Wednesday, December 17, 2014

Informing the Reasonable Observer

By Michael Dorf

My latest Verdict column discusses the new SCOTUS case, Walker v. Texas Division, Sons of Confederate Veterans (TSCV). The case poses the question whether Texas violated the First Amendment when it refused to issue specialty license plates bearing the Conferedate battle flag as part of the logo. As I explain in the column, the outcome appears to turn on whether specialty plates are best conceived as government speech--in which case Texas wins--or private speech--in which case TSCV probably wins. I say "probably" because the state argues that even if the plates are private speech, its refusal to grant them is valid as viewpoint neutral. I explain in the column why I think that latter contention should (and probably will) be rejected.

I also explore another possibility: University of Miami law professor Caroline Mala Corbin's argument, in a 2008 NYU Law Review article, that there ought to be an intermediate category of "mixed" private-government speech. Although I find Professor Corbin's argument persuasive, there is a substantial possibility that the Court will not accept her suggestion. After all, neither party proposes the adoption of her mixed speech category. Moreover, the last time the Court addressed a case that could have been evaluated under a mixed-speech framework--in 2009 in Pleasant Grove City v. Summum---neither the majority nor any of the four concurrences considered the possibility (although Justice Breyer came close in his concurrence).

Assuming that the Court is committed to a strict dichotomy between government speech and private speech, how should the line between the two be drawn? The Summum case sheds only limited light on that question because Justice Alito, writing for the majority, thought that on the facts it was easy. He wrote:
There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation. Permanent monuments displayed on public property typically represent government speech.
Accordingly, in TSCV, the 5th Circuit looked to a concurrence by Justice Souter, in which he proposed the following test:
whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige.
There is a substantial body of academic work criticizing reasonable-person tests as loaded: Courts hypothesize a reasonable person as a means of rendering the judgment objective, but no actual person is in fact perspectiveless, and so the abstract reasonable person typically has implicit majoritarian characteristics: he is male, object feminists; he is white, object critical race scholars; etc.

I think there is a lot to the foregoing sorts of crticisms of the reasonable person test, but I nonetheless agree with Justice Souter and others (including Justice O'Connor, whose views on the Establishment Clause informed Justice Souter's proposed test in Summum) that a reasonable person test can sometimes be the best that the law can do. In response to the critiques, the usual approach is to incorporate some objective elements of the particular observer into the reasonable observer. How would a reasonable woman react? Or a reasonable non-Christian? Or a reasonable African American man? Etc.

Here I want to register my qualms with a different aspect of Justice Souter's test: the requirement that the reaonable observer be "fully informed." If the government's aim is to ensure that people do not attribute offensive or otherwise objectionable private speech to the government--and if most people would not be fully informed--then shouldn't the government be permitted to take account of actual less-than-fully-informed observers?

Before I address that question, I should note that this is not the only context in which the Court inquires about what a fully-informed observer would do. For example, in explaining why he was not recusing himself from a 2004 case involving Vice President Cheney despite having gone on a hunting trip together, Justice Scalia described the circumstances in detail. He then considered the possibility that he ought to recuse in light of how things looked. Quoting a recusal ruling by Chief Justice Rehnquist, Justice Scalia said: "It is well established that the recusal inquiry must be 'made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.'" Here too, we might ask, if the worry is the appearance of impropriety and most people are not fully informed, then why should it matter how things would appear to the people who are fully informed?

I think the answer in both contexts must be the same: The law should assume a fully informed observer because the cost of taking informers as they come, i.e., as ignorant, is too high. Government may not censor offensive speech on public property out of concern that some or even many people will mistakenly attribute the offensive messages to the government because doing so would be too great an infringement on free speech. Likewise (if one agrees with Justice Scalia on this point, as I do), asking whether judges appear biased to uninformed observers would result in an unmanageable number of recusals.

I would nonetheless quibble with the practice of merely asking how a fully-informed reasonable observer would view things. It seems to me that one might also ask whether available practicable steps have been taken to educate the public. Justice Scalia's opinion defending his non-recusal in the Cheney case qualifies as such a step.

By contrast, I think Summum was a harder case than Justice Alito thought, in part because the Court did not inquire into whether a disclaimer might have been adequate to fully inform the public that Pleasant Grove City's acceptance of Summum's monument did not constitute endorsement of its views (which are pretty awesome). The Summum Court still could have concluded that, due to limited space or for other reasons, acceptance of a monument amounted to government speech not subject to the First Amendment. However, given the important role that "more speech" plays in First Amendment doctrine, a test that takes account of fully informed observers would be more credible if the government made efforts to fully inform observers.