Wednesday, January 27, 2016

Rights, Rules, and Legal Scholarship's Influence on the SCOTUS

by Michael Dorf

My latest Verdict column discusses last week's Supreme Court oral argument in Heffernan v. Paterson. Heffernan, a police officer, was demoted because his supervisors mistakenly believed that he was engaged in political activity favoring the mayoral challenger, when in fact he was simply picking up a sign for his mother. The city of Paterson argues that in order for him to state a valid claim under the First Amendment he must allege both that: (1) he was engaged in protected speech or association; and (2) that he was subject to an adverse employment decision because of government hostility to speech or association. Because Heffernan only alleges (2) but not (1), the city says he loses. Heffernan--supported by the federal government as amicus curiae on this point--argues that only (2) is necessary for a successful free speech claim.

My column does not reach a firm conclusion on the bottom line, but I am highly critical of a distinction that the city, through lawyer and SCOTUSblog founder Tom Goldstein, tries to draw. The city says that a free speech claimant can prevail in a (2)-only case if, but only if, he brings an overbreadth claim challenging some rule, such as a statute, regulation, or formal policy, that is applied to him. Because Heffernan is challenging a one-time decision, Goldstein contends, he cannot bring an overbreadth challenge, and therefore he must show that his own free speech or association rights were violated. Picking up on a line of questioning by Justice Kagan, I suggest that this argument rests on a dubious distinction between rules and reasons. I cite a very insightful argument by Fred Schauer explaining that reason-motivated decision making is a kind of rule-driven decision making.

Accordingly, I conclude that the burden should be on the city to explain why this one kind of rule-driven decision making should be treated differently from other kinds of rule-driven decision making. The government's best argument for such different treatment goes like this: The purpose of the First Amendment overbreadth doctrine is to address the chilling effect of overbroad laws on protected speech. It allows people whose own speech is unprotected to challenge an overbroad rule because of the risk that people whose speech is protected will simply self-censor, i.e., their speech will be chilled. The overbreadth doctrine is thus a kind of exception to the prudential rule barring third-party claims. It makes sense where the overbroad rule appears in an express statute or otherwise. However, a one-time decision to demote (or fire or refuse to hire) someone for a bad reason does not chill others' protected speech, and therefore should not be the occasion for an overbreadth challenge.

To my mind, that argument is wrong in two ways. First, as Heffernan's attorney argued, an ostensibly one-time decision can in fact have a chilling effect. Where the government's illicit reason for the adverse employment decision is generally known, as it was here, it will have the same chilling effect as an express rule.

Second, the foregoing italicized argument assumes that overbreadth challenges are permitted only because of the chilling effect phenomenon. As some of my own recent empirical scholarship accepts, the chilling effect is one important basis for overbreadth doctrine, but there are others. For example, in an important 1981 article in the Supreme Court Review (not available free online) Henry Monaghan argued that the overbreadth doctrine implements the principle that everyone has a right to be judged by a valid rule of law--a proposition which, if true, would appear to have the corollary that everyone has a right to be assessed by government acting with permissible purposes. More recently, Richard Fallon has argued that facial attacks on laws for reasons other than chilling effects are quite common. In my own conceptual work, I have also expressed skepticism about how central the chilling effect is to overbreadth-type litigation.

None of that is to say that there cannot be categories of cases that succeed only if the claimant alleges both (1) and (2). But the relation between rights and rules is complicated and, as I explained in a paper in Legal Theory in 2000, quite heterogeneous. There are cases in which only (2) is required. There are cases in which both (1) and (2) are required. And there are cases in which only (1) is required. For example, in the closely related context of religious claims, the Religious Freedom Restoration Act (RFRA) and parallel state RFRAs allow claimants to challenge neutral laws of general applicability--i.e., laws that do not have the (2)-flaw--so long as the claimants assert that they were engaged in protected conduct--i.e., so long as they make an allegation of (1).

It is fair to say that the Supreme Court case law sorting out the relation between rights and rules is at best confused and arguably incoherent. There is a lot of scholarship out there that tries to impose order on the cases, including works by Monaghan, by Fallon, by yours truly, by Nick Rosenkranz, and by others. For the most part, the Court has ignored the scholarship. Perhaps Heffernan will be an exception, because one of the leading articles on the relation between free speech and government purpose was written by a law professor named Elena Kagan. Based on the oral argument, however, it looks like that work will likely be invoked in the dissent.