Litigant Sensitivity in First Amendment Law
87 Pages Posted: 5 Nov 2004
Abstract
Do First Amendment claimants matter to First Amendment law? Much Supreme Court decision-making indicates that they do not. Doctrines like overbreadth and prior restraint, as well as opposition to content- and sect-based discrimination, can be operated without paying much or any attention to the litigant raising the First Amendment objection. The Court's focus is often on the form of a government rule, the justification for regulation, and the connection between the two.
Yet there is a "litigant sensitive" component to First Amendment law, one that openly calls for judicial evaluation of individual claimant conduct. It is difficult to find in recent Supreme Court decisions, but other sources confirm that litigant sensitivity survives. Is it worth preserving? To answer, this Article examines extreme models for First Amendment law. It concludes that a radically litigant sensitive model - one that always evaluates claimant conduct but never government conduct - is untenable, but a radically litigant insensitive model - one that never evaluates claimant conduct - might be available. Sensibly resolving First Amendment claims requires courts to know something about the government's conduct, but judicial assessment of claimant conduct is problematic. For example, it adds complexity to adjudication, it could entail intolerable risks of error and bias, and it might distract us from the kind of categorical thinking that provides better insight into the consequences of a judicial decision.
A mixed model that includes a measure of litigant sensitivity is nevertheless desirable. To understand its forms and functions, the Article constructs a typology of litigant sensitivity within current law. The analysis closes by critically assessing the options and endorsing a mixed model. Simplicity is just one value in doctrinal and institutional design. In addition, error risks and controversial value judgments arise across analytical structures. The advantage of categorical thinking, moreover, does not erase the virtues of litigant sensitivity. It is only good reason for caution. And a mixed model affords greater flexibility in resolving disputes in ways that can enhance liberty and identify illegitimate government conduct, without honoring every private claim. Although there are many versions of radical insensitivity, too, the ability to consider claimant conduct sometimes adds a valuable dimension to judicial analysis.
Keywords: First Amendment, Supreme Court, overbreadth, prior restraint, discrimination
Suggested Citation: Suggested Citation