First Amendment equal protection: on discretion, inequality, and participation.

AuthorTokaji, Daniel P.

[A]n ordinance which ... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official--as by requiring a permit or license which may be granted or denied in the discretion of such official--is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.

--Shuttlesworth v. City of Birmingham (1)

In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants ... the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.

--McCleskey v. Kemp (2)

The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirements for non-arbitrary treatment of voters.... The formulation of uniform rules to determine [voter] intent ... is practicable and, we conclude, necessary.

--Bush v. Gore (3)

INTRODUCTION

The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The considerable discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detection. This is true in a variety of settings, whether discretion lies over speakers' access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment (4) violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place? (5) Is equal protection denied where the absence of uniform standards for vote recounts gives low-level bureaucrats wide latitude in determining which votes to count? (6)

The subject of this Article is the role of the courts in policing the distorting effects of discretion upon constitutional equality, particularly where rights of political participation are at stake. It uses the term "First Amendment Equal Protection" to refer to those cases applying an especially searching mode of analysis where the government threatens to undermine equality in the realm of expression. (7) At the core of First Amendment Equal Protection, I argue, is the democratic ideal that all citizens should have an equal opportunity to participate in public discourse. The cases that I include under this rubric exhibit a heightened sensitivity to the threat to equality posed by excessive official discretion,. (8) This sensitivity has led to stringent tests designed to "smoke out" illicit motivations. (9) Among the doctrines developed to cabin discretion in the realm of speech are rules requiring exceptionally clear standards where government requires permission to speak in public places, and liberal rules regarding facial challenges, justiciability, and appellate factfinding. (10) These safeguards against inequality in the realm of speech have for the most part endured, despite the changing makeup of the Court and judicial philosophies of its members.

This searching mode of analysis contrasts sharply with the standard applied where nonspeech forms of equality are at issue. Outside the area of free speech, the Court generally exhibits a much greater tolerance for schemes that vest broad discretion in government officials. That is true even where the existence of such discretion may allow intentional group-based discrimination, including race discrimination, to persist undetected and thereby defy judicial remedy. (11) Cases such as Washington v. Davis (12) and McCleskey v. Kemp, (13) for example, rest on a presumption that decisionmakers will generally exercise their discretion free from racial bias. Even in the face of evidence showing a statistically significant disparate impact on those of a particular racial or ethnic group, (14) the Court is loathe to find an equal protection violation without "smoking gun" evidence of illicit motive. (15) Put simply, the Court exhibits a much greater willingness to trust government decisionmakers--to assume that they will exercise their discretion in a fair and unbiased manner--where race is concerned, than where speech is concerned.

The critical distinction between First Amendment Equal Protection and Conventional Equal Protection lies not so much in how they answer the theoretical question of what constitutes a violation. The difference lies instead in their answer to the question of how to prevent and remedy such violations. (16) Thus, it is important to consider why these mechanisms for dealing with discretion differ so dramatically.

In considering this question, it is instructive to examine three lines of equal protection jurisprudence that depart from the norm: specifically, those involving jury exclusion, (17) political restructuring,18 and the "one person, one vote" standard. (19) These areas exhibit modes of analysis similar though not identical to First Amendment Equal Protection, reflecting the importance of safeguarding equality in realms of democratic participation. Even without clear evidence of discriminatory intent, the Court has been willing to find an equal protection violation in these areas. (20)

This Article argues that the decision whether to cabin official discretion, or, alternatively, to adopt a more deferential test in a given context reflects a judgment, usually a silent one, about the relative value of discretion and equality. The First Amendment Equal Protection cases suggest a new gloss on inequalities that have not traditionally been viewed as serious equal protection problems. These include not only the electoral inequalities that have received considerable attention in the wake of Bush v. Gore, (21) but also practices such as incumbent-preferential gerrymandering schemes and viewpoint-based peremptory challenges. Considering such practices in the light cast by First Amendment Equal Protection cases should, I argue, cause courts to view the exercise of official discretion in these contexts more skeptically than Conventional Equal Protection doctrine would demand.

Part I of this Article assesses various areas in which official and quasi-official (22) decisionmakers are called upon to exercise discretion, and describes two equality norms that may be threatened by such discretion: racial equality and expressive equality. Part II traces the development of First Amendment Equal Protection and shows how its special doctrinal rules are rooted in concerns that public officials will misuse their discretion to suppress dissenting viewpoints.

Part III contrasts First Amendment Equal Protection with "Conventional Equal Protection," a term I use to refer to the less searching mode of analysis generally applied to official discretion outside the realm of speech. Part IV discusses three areas, collectively referred to as "Unconventional Equal Protection," (23) which represent exceptions to this general rule. In these cases, the Court has adopted different modes of analysis, which place a higher premium on eliminating inequality even where it requires some diminution of official discretion.

Part V attempts to explain these divergent approaches to the problem of equality and discretion, noting that the equal protection cases that most closely resemble the First Amendment model are those concerning inequalities in the realm of political participation. I argue that this heightened sensitivity suggests a First Amendment-like dimension to questions of political equality that have traditionally been examined under the lens of the Equal Protection Clause. The Article closes by suggesting a new analytic framework within which to examine such problems as inequalities in voting systems, incumbent gerrymandering, and peremptory challenges, drawing from the approach to official discretion developed in First Amendment Equal Protection cases.

  1. DISCRETION AND INEQUALITY

    Discretion pervades our systems of government, from the actions of police officers on the beat, to verdicts handed down by juries, to decisions made by innumerable administrative agencies, to the manner in which states and localities choose to structure their political processes. Any system aspiring to individualized justice depends upon placing some degree of discretionary decisionmaking authority in public or quasi-public officials. (24) Discretion to determine how the law should be applied--and to decide when not to apply the law--is therefore an integral component of our systems of justice. (25)

    This Part begins by examining the literature regarding official discretion in various spheres. It then provides an overview of two types of equality that the misuse of official discretion jeopardizes: expressive equality and racial equality. As I shall attempt to show, First Amendment and Equal Protection Clause jurisprudence is centrally occupied with how best to curb intentional discrimination without unduly infringing on official discretion.

    1. Defining Discretion

      Roscoe Pound defined discretion as "an authority conferred by law to act in certain conditions or situations in accordance with an official's or an official agency's own considered judgment and conscience." (26) In a similar vein, Kenneth Culp Davis stated that "[a] public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction." (27)

      The common thread running through these two definitions is the idea that discretion exists where the law leaves public officials free to exercise their judgment. So defined, discretion permeates virtually every aspect of governmental functioning. (28) Police officers, for example, enjoy considerable discretion in deciding which of the many drivers speeding through an intersection to stop. But discretion does not only come into play where the law ends. It also...

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