To defer or not to defer? Deference and its differential impact on First Amendment rights in the Roberts Court.

• Author: Calvert, Clay

ABSTRACT

This Article examines the concept of deference as it affects First Amendment speech rights under the Roberts Court. Using six recent decisions as analytical springboards, including high-profile disputes in Brown v. Entertainment Merchants Ass'n and Citizens United v. FEC, the Article illustrates that deference often determines a case's outcome. The Article also demonstrates profound disagreements among the Justices on the use of deference in all six cases. Thus, like a spigot, deference is turned on and off by individual Justices, and even when turned on, it can flow freely or be reduced to a trickle. It is precisely such malleability that makes deference a critical concept on today's Court when speech rights hang in the balance. Deference, the Article argues, muddies judicial analysis because it is a judicial wildcard that Justices can play regardless of whether they purport to apply strict scrutiny, intermediate scrutiny, or rational basis review--to help sustain a law's constitutionality and, in the process, sacrifice free speech.

CONTENTS INTRODUCTION I. EXPLICATING DEFERENCE AND ITS ROLE IN FIRST AMENDMENT JURISPRUDENCE A. The Pervasive and Persuasive Nature of Deference B. Deference and Free Speech II. FREE SPEECH RULINGS UNDER THE ROBERTS COURT: SIX CASES ILLUSTRATE VARYING DEGREES OF DEFERENCE AND DISAGREEMENTS AMONG THE JUSTICES A. Brown v. Entertainment Merchants Ass'n: Should Deference Be Given to Social Scientists? B. Morse v. Frederick: Deference to Educators in Interpreting an Ambiguous Message's Meaning C. Citizens United v. FEC: Deference Denied to Congress Opens Spending Spigots for Political Speech D. Holder v. Humanitarian Law Project: Divisions on Deference Granted to Congress in the Name of National Security Stifles Speech E. Banks v. Beard: Disagreement on Deference Owed to Prison Officials in the Name of Serving Penological Interests F. FCC v. Fox Television Stations, Inc.: Deferring to an Administrative Agency in the Realm of Indecency CONCLUSION INTRODUCTION

More than a half-century ago, sociologist Erving Goffman defined deference as "that component of activity which functions as a symbolic means by which appreciation is regularly conveyed to a recipient of this recipient, or of something of which this recipient is taken as a symbol, extension, or agent." (1) But when courts engage in deference by acknowledging the wisdom, expertise, or understanding of others--be it legislative bodies, administrative agencies, (2) institutions, or individuals such as arbitrators, (3) social scientists, (4) and educators (5)--their actions are anything but symbolic. Deference granted and deference denied may, in fact, have profound constitutional implications that affect free speech rights and reflect on the duties of the judiciary. (6) This is especially true when judicial deference involves blanket reliance on the authority of someone or something else to restrict constitutional rights. (7)

On the other hand, deference seems essential in some situations. For instance, there is "widespread agreement that Congress's decisions warrant deference [by the Court] because it is a coequal branch that represents the popular will." (8) Similarly, when it comes to the President of the United States, former Chief Justice Warren Burger once wrote for a unanimous Court that "[t]he President's need for complete candor and objectivity from advisers calls for great deference from the courts." (9)

This Article examines how deference or the lack thereof--has significantly affected multiple First Amendment-based speech (10) decisions by the United States Supreme Court since John G. Roberts, Jr. became Chief Justice in September 2005. The sextet of cases analyzed here, starting with the most recent decision, are: (1) Brown v. Entertainment Merchants Ass'n; (11) (2) Holder v. Humanitarian Law Project; (12) (3) Citizens United v. FEC; (13) (4) FCC v. Fox Television Stations, Inc.; (14) (5) Morse v. Frederick; (15) and (6) Beard v. Banks. (16) These cases were selected for scrutiny because they

* cover a factually diverse range of deference scenarios;

* demonstrate deep disagreements among the justices when it comes to bestowing deference and, more specifically, to how much deference should be bestowed; and

* illustrate the often negative consequences that granting substantial deference has on free speech interests.

Although scores of law journal pages are filled with articles about general concepts like administrative deference, (17) scant scholarship is devoted specifically to how deference affects First Amendment speech rights under the Roberts Court across a broad swath of free expression cases. The cases explored here stretch from governmental regulation of both violent video games (Brown) and broadcast indecency (Fox Television Stations) to laws or actions affecting national security (Humanitarian Law Project), political speech funding by corporations (Citizens United), student speech (Morse), and inmate expression (Beard).

Part I of this Article, drawing on literature from outside the law, initially examines and explicates (deference. (18) Part I then illustrates how the Supreme Court deployed deference in a broad array of First Amendment cases predating the Roberts Court. (19) After providing this essential context, Part II analyzes the previously noted opinions rendered during Chief Justice Roberts's tenure, (20) concentrating on the different ways in which deference, or the lack thereof, affected the free speech interests at stake. (21)

Finally, the Article concludes by asserting that deference, given the wide disagreements about it in each of the half-dozen cases analyzed here, constitutes a judicial wildcard that Justices can play when dealt a First Amendment hand. Specifically, deference is a malleable concept they can invoke, regardless of the name of the standard of review they purport to apply, to help ease the burden of sustaining a law's constitutionality or, in the case of Morse, a government official's censorial actions. (22) Ultimately, the Article demonstrates that deference's elasticity makes it ripe for misuse and abuse that often leave First Amendment rights hanging out to dry. (23)

1. EXPLICATING DEFERENCE AND ITS ROLE IN FIRST AMENDMENT JURISPRUDENCE

   This Part has two sections, the first of which provides a primer on deference, while the second explores how deference seeps into modern, yet pre-Roberts First Amendment jurisprudence.

   1. The Pervasive and Persuasive Nature of Deference

      Deference is a type of behavior that permeates human existence from an early age. Cornell University Professor Robert V. Presthus wrote more than fifty years ago that "from infancy on the individual is trained to defer to authority. He develops over time a generalized deference to the authority of parenthood, experience, knowledge, power, and status." (24) It thus comes as no surprise that deference infuses the legal system, in which multiple people and institutions hold positions of authority--rom the Justices on the High Court to the members of Congress to the chairs of administrative agencies.

      Acts of deference constitute "status behaviors" based on honor and esteem. (25) In particular, as sociology professor Brian Colwell observed, "[a]cts of deference communicate one person's yielding of their own will, ideas, or interests to those of another, and by doing so, highlight the power and prestige differences between them." (26) Although drawn from sociology, this description is relevant for the law because one must query whether it is constitutionally proper for Supreme Court Justices to yield their own will to the ideas of others. How much power, for example, should be bestowed on social scientists (Brown), educators (Morse), prison officials (Beard) or administrative agencies (Fox Television Stations) when First Amendment interests hang in the balance?

      Sociologists observe that "[d]eference is symbolic power in potential form: once deference is acquired, it can be deployed as the symbolic power to frame actions, situations, and events in ways that induce compliance and constitute the social order." (27) Here too one finds relevance for the study of judicial deference in free speech cases. One must consider, for instance, whether sanctioning social scientists with deference improperly vests them with too much power to influence judicial framing of censorship issues. A pivotal problem is the vast disconnect between social science frames and legal frames. Framing issues in terms of statistical significance, derived from tightly controlled--more derisively, contrived--experiments, simply does not comport with framing legal issues in terms of real-world injuries and the more subjective interests-of-justice balancing that transpire in First Amendment contexts.

      Although difficult to define from a legal perspective, deference generally "involves a decisionmaker (D1) setting aside its own judgment and following the judgment of another decisionmaker (D2) in circumstances in which the deferring decisionmaker, D1, might have reached a different decision." (28) As Paul Horwitz encapsulated it, deference can be defined "as a decisionmaker's decision to follow a determination made by some other individual or institution that it might not otherwise have reached had it decided the same question independently." (29) Professors Larry Alexander and Frederick Schauer offered an even simpler definition, writing that "we temporarily set aside the issue of the strength of deference and consider a decisionmaker to have deferred whenever she takes someone else's decision to be a reason for making the same decision." (30)

      To the extent judicial deference is not mandated by another authority, (31) it necessarily is discretionary. (32) In such discretionary situations, when deference should be given, to whom deference should be given and how much deference should be given thus become key issues. Deference, in brief, is...