Wednesday, November 15, 2017

The Free Speech and Equal Protection Exclusionary Rule

by Michael Dorf

My latest Verdict column asks whether the Justice Department is violating the First Amendment by conditioning its approval of AT&T's acquisition of Time Warner on divestiture of either DirecTV or Turner Broadcasting, the parent company of CNN. I conclude that there is probably enough prima facie evidence that the decision is in retaliation for CNN's "fake" (i.e., appropriately negative) coverage of Trump to justify discovery regarding subjective motivation should the issue end up in court.

En route to that conclusion, I compare and contrast the legal approach that prevails in free speech and equal protection pretext cases, on one hand, with the legal approach that prevails in Fourth Amendment pretext cases. Here I want to explore a point that seems to be insufficiently appreciated: the existence and strength of what I'll call the "Free Speech and Equal Protection exclusionary rule."

Before coming to the exclusionary rule, however, let me briefly recap the contrast I draw in the column. In 1995, in Whren v. US, the SCOTUS held that the Fourth Amendment does not preclude pretextual searches and seizures. DC police suspected the driver and occupants of an SUV of being drug dealers, but they did not have a sufficient basis for stopping the vehicle for a drug offense, so instead, they watched and waited until the driver failed to signal a right turn and drove over the speed limit. The police then stopped the vehicle and found drugs inside. The driver and occupants of the car moved to suppress the evidence as the fruit of an unlawful--because pretextual--stop, but the Court rejected the contention. Whether a search or seizure is lawful, Justice Scalia wrote for a unanimous Court, turns on the objective facts known to the officers, not their subjective motives.

The Whren Court distinguished other kinds of constitutional violations, to which subjective intent is relevant. In particular, the Court noted that if the petitioners could show selective enforcement based on race, they would have a valid equal protection claim. My column notes that the same logic applies to selective enforcement based on viewpoint, where the Constitution also contains an anti-discrimination rules. Thus, I say, pretext matters in equal protection and free speech cases, but not in search and seizure cases.

As I also note in the column, just this Monday the Supreme Court granted cert in a case that might be thought to cast doubt on the availability of pretext objections in free speech cases. Lozman v. City of Riviera Beach has the same case name as the 2013 case featuring the same parties. That earlier case addressed the timeless puzzle "Is a houseboat a house or a boat?" In Lozman II, the question is whether a plaintiff can successfully sue a municipality for retaliatory arrest where there was probable cause for the arrest. The Eleventh Circuit said no.

One might think that if the SCOTUS were to affirm the Eleventh Circuit, that would mean that the First Amendment is like the Fourth Amendment as construed in Whren--i.e., that pretext would be irrelevant. However, while it is possible that the Court could write a sweeping opinion to that effect, this strikes me as unlikely.

Lozman II is a sequel to Hartman v. Moore, a 2006 case in which the Court held that when a plaintiff sues an investigator for retaliatory prosecution, probable cause to prosecute defeats the claim. The Court said that the existence of probable cause tends to undermine the claim that the prosecution was motivated by animus but did not say--and indeed acknowledged that it's not true that--there could never be a First Amendment violation based on retaliatory animus if there is probable cause. The crucial factor for the Hartman Court was one of proof in civil cases. Because a prosecutor has absolute immunity to civil damages claims, proof of retaliatory animus by the investigator does not necessarily show causation. In the context of such civil cases, the Court essentially adopted an  irrebuttable presumption that probable cause to prosecute breaks the causal chain from the investigator's animus to the prosecutor.

Maybe Hartman is rightly decided, maybe not. Maybe it should be extended to cases like Lozman II, maybe not. Whatever one thinks of these questions, my point here is that the Hartman rule, unless it is dramatically expanded, is a rule about civil liability, not a rule about free speech as such. Unless and until the SCOTUS says otherwise, one should assume that the rule with respect to free speech is the same rule regarding equal protection cases to which Justice Scalia adverted in dicta in Whren: Unlike the Fourth Amendment, which focuses only on the objective facts known to the officer, free speech objections can make a pretextual prosecution impermissible.

Let me try to justify that conclusion for both equal protection and free speech claims using a couple of sets of hypothetical examples.

Suppose a statute said either (A) "Nonwhite drivers must come to a complete stop at stop signs" or (B) "Persons driving cars with bumper stickers favoring Jones for sheriff must come to a complete stop at stop signs." Statute A would violate equal protection and statute B would violate free speech. If a nonwhite person were charged with violating statute A, the charge would have to be dismissed on equal protection grounds. If the driver of a car with a "Jones for sheriff" license plate were charged with violating statute B, the charge would have to be dismissed on free speech grounds.

Now suppose that the statute is facially neutral. It simply says that "All drivers must come to a complete stop at stop signs." If the jurisdiction only enforces the statute against nonwhite drivers or only against drivers of cars with "Jones for sheriff" license plates, the selective prosecution would be unconstitutional on, respectively, equal protection or free speech grounds. It might be difficult to prove selective prosecution, but if proven, the prosecution would be no less impermissible than if the jurisdiction attempted to enforce the facially impermissible statute A or B. That is the enduring meaning of modern cases that build on Yick Wo v. Hopkins, which has come to be understood to establish the rule that discriminatory enforcement of a facially neutral law is equivalent to the enforcement of a facially discriminatory law.

If I'm right about all of the foregoing, then we can note two ways in which protection for equal protection and free speech is more generous to persons charged with offenses than is the case law construing the Fourth Amendment. First, equal protection and free speech are more protective as a substantive matter. Pretextual law enforcement can violate equal protection or free speech, but not (per Whren) the Fourth Amendment.

Second, equal protection and free speech are more protective as a remedial matter. When a person charged with a crime says that the evidence against him was obtained in violation of the Fourth Amendment, the courts may or may not exclude that evidence, depending on whether the particular circumstances fall within one of the many exceptions to the exclusionary rule. By contrast, when a person charged with a crime says that although the act he committed was criminal, he is being targeted on the basis of an illicit criterion (such as his race or the viewpoint his speech expressed), the prosecution is automatically terminated. Although we don't ordinarily talk about a "free speech and equal protection exclusionary rule," it turns out we have one, and it is stronger than the Fourth Amendment one.


Joe said...

"By contrast, when a person charged with a crime says that although the act he committed was criminal, he is being targeted on the basis of an illicit criterion (such as his race or the viewpoint his speech expressed), the prosecution is automatically terminated."

Is there an opinion one can read where a pretty serious crime (something akin to breaking bones or whatever) where the charges were dropped because even though the person committed it, the police officer in charge only arrested the person because of illicit 1st or 14A reasons?

Michael C. Dorf said...

I'm not aware of any such case. Illicit motive is nearly impossible to prove and, although not formally a consideration, I'm sure that the seriousness of an offense would make judges even more reluctant to find it in any particular case.

egarber said...

(Full disclosure: I'm a Turner employee)

If a district court were to allow discovery into motive / pretext, would treatment of other conglomerates be fair game? In other words, even though Comcast / Universal was approved pre Trump, is there anything pertinent about the government's current treatment of THAT company (monitoring, compliance, etc.) in this context? I say that because it is a similar exercise in vertical integration.

I know it would be relevant in a wider court case - I'm asking about its potential importance on the First Amendment issue.

Michael C. Dorf said...

The answer to Eric's question is yes, although, as he suggests, though relevant, the different treatment wouldn't necessarily be dispositive. A change in administration could be the explanation for the change in policy. Also, monitoring specific limits is different in some key ways from a divestiture order.