Policing Protest: Speech, Space, Crime, and the Jury
abstract. Speech is more than just an individual right—it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights—either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal statutes and ordinances adversely affect marginalized or dissenting speech. Despite their general classification as constitutionally permissible time, place, and manner restrictions, this Feature concludes that enforcement of such statutes contributes to a subordinating First Amendment landscape, disproportionately burdening some speakers and some messages more than others.
To address these concerns, this Feature makes two critical normative claims. First, scholars and courts alike have failed to prioritize access to spaces properly. This, in turn, carries a second normative claim: the current consideration of access to space as a forum of speech ignores the reality that presence, at times, is the message. To force a speaker to an alternative forum through the enforcement of criminal law is effectively to regulate the message out of existence. Finally, this Feature proposes a novel First Amendment defense when criminal charges implicate the defendant’s speech activity. This proposed defense provides a mechanism to vindicate the overlooked First Amendment consequences of such charges and empower citizen jurors to engage in community-based decision-making about the value of speech.
author. Wiggins, Childs, Quinn & Pantazis Professor of Law, University of Alabama School of Law. This Feature benefitted tremendously from the comments of Adam N. Steinman, Robert C. Post, Genevieve Lakier, RonNell Andersen Jones, Kate Klonick, Hannah Bloch-Wehba, Jack M. Balkin, Rachel López, Ronald J. Krotoszynski, Jr., Judith Resnik, Darrell A.H. Miller, Jocelyn Simonson, Jamelia Morgan, Monica C. Bell, Fiona Doherty, Amber Baylor, Anna Roberts, Russell Gold, Hadiyah Cummings, Rachel Talamo, and John F. Acevedo as well as participants at the Freedom of Expression Scholars Conference, CrimFest, Southeastern Association of Law Schools, and faculty workshops at Texas A&M University School of Law, Temple University Beasley School of Law, and the Florida International University College of Law. I appreciate the time and insight provided by social-justice organizers, including members of Black Lives Matter, Women’s March, and Southerners on New Ground. Thank you to Casey Duncan at the Bounds Law Library for patiently helping me find sources. Finally, thank you to the editors of the Yale Law Journal, especially Christopher D’Urso, Natasha Reifenberg, Arty Zapata, and Dena Shata.
Introduction
Speech is a component of democratic processes in the United States. Whatever debate may exist around the First Amendment’s history or its, at times, confounding jurisprudence, the proposition that expression matters to our democracy seems uncontested.1 Admittedly, not all communication may drive democratic engagement. The promise of whiter teeth or hastily scrawled professions of love on gas-station bathroom doors may not move the body politic toward change. Yet, other speech may serve both as a means to inform and drive accurate representation in formal democratic institutions and a mechanism of direct participation in which those who live under the law may push back on its application and enforcement in their realm.2
This democratically vital speech need not be formal or even civil. From John Peter Zenger’s closing argument in his trial for seditious libel that helped fuel a revolution,3 to marches on Washington and Selma that pushed forward civil rights4 and voting-rights legislation,5 to graffiti tags that marked gentrification’s displacement of diasporas in major cities,6 to protests for social justice and policing reform following the murders of Michael Brown, Eric Garner, George Floyd, Breonna Taylor, Ahmaud Arbery, and beyond, speech in a variety of forms has driven revolutions and change.7
Democratic significance, however, does not
guarantee speech or speakers constitutional protection.8 Consider participants in the Watts Uprising
of 1965 who both communicated dissatisfaction with policing policies and
contributed to grassroots efforts that remain ongoing nearly sixty years later
to reform criminal-legal and law-enforcement systems.9 Yet, even as they engaged in vitally
democratic acts of communicating dissent and urging change, participants may
have neither expected nor received First Amendment protection for their efforts
even if they had tried to claim
it.10 In
fact, regulation of speech and speakers is common and often accepted as
necessary and appropriate to maintain social order. Criminal law is a mechanism
through which much of this regulation occurs.11 Despite its commonality and acceptance,
questions linger: who decides what
speech deserves First Amendment protection and, if the communicative act falls
outside of that protected category, when
may enforcement of criminal statutes impede it?
Courts applying First Amendment doctrine and
free-speech scholars alike tend to relegate this decision-making power to
judicial actors alone, reserving questions of constitutional protection for
pretrial litigation.12
There is a logic to this relegation. Such claims may raise questions of law
that require judicial interpretation.13
Beyond this, given the complexity and ever-shifting nature of First Amendment
jurisprudence,14 professional decision makers may be better
suited to parse the legal issues each case presents.15 Yet, to rely on judicial actors alone to set
the boundaries of First Amendment protection is to risk the creation of First
Amendment doctrines at odds with the very democratic principles they purport to
embody and the very people who might rely on First Amendment protections to
speak at all. It is to risk the construction of a formalistic doctrine that
ignores the functional realities of its implementation—that some speech
and some speakers simply lose their rights.
This Feature pushes back against the notion that decisions about the scope of First Amendment protection in the face of criminal charges ought to rest with formal actors alone. Instead, this Feature argues that defendants, arrested and charged in the course of communicative activity, ought to have the opportunity to present a First Amendment defense—a claim that the value of their speech outweighs whatever interests enforcement of the criminal law might promote. Such a defense is distinct from current practice and scholarly treatment of First Amendment concerns that intersect with criminal law. In the courtroom, defendants raise First Amendment issues either as a defense that hinges on a factual finding that the State has failed to meet its burden of proof with regard to a particular element16 or, more commonly, in pretrial motions that contest the constitutionality of the law itself.17 These motions allow a court to decide, as a matter of law, whether a regulation is constitutional. And, unlike their defense counterparts, these facial challenges avoid or minimize factual analysis. A court may find that a law is overly broad, void for vagueness, or runs afoul of First Amendment doctrine, regardless of how or to whom it is applied.
Such First Amendment defenses are consistent with other constitutional
defenses.18 Defendants can and do raise facial due-process
challenges under the Fifth and Fourteenth Amendments to the overbreadth or
vagueness of regulations. Defendants may also raise fact-specific or as-applied
challenges that are distinct from questions of factual guilt. For example, a
defendant may challenge prosecution as a violation of the Double Jeopardy
Clause,19 the Equal Protection Clause,20 or the Ex Post Facto
Clause.21 They may move to suppress the evidence used
to support the allegations that was obtained in violation of the defendant’s
Fourth, Fifth, or Fourteenth Amendment rights. For their part, judges
adjudicate each of these constitutional claims, rendering legal decisions about
the constitutional validity of the law or the evidence. In the end, even as
these defenses challenge the constitutionality of the State’s actions,
like their First Amendment counterparts, they do not raise questions jurors
decide, nor do they ask the fact finder to weigh the value of the right at
stake against the State’s interest in prosecution.
In contrast, the First Amendment defense this Feature contemplates allows the accused to challenge the application of the law—even a facially constitutional one—and urges the fact finder to serve as arbitrator between the interests the State seeks to preserve through enforcement of law and the speech rights sacrificed by such enforcement. This defense promotes democratic objectives in a variety of ways by vesting decision-making power in the very body who must live under the resulting, albeit limited, construction of law: the community. First, it allows the defendant the opportunity to present a distinct counternarrative to the State’s accusation in the case-in-chief (as opposed to raising a failure-of-proof defense or a pretrial challenge) and to stake a constitutional value to their communicative efforts, even if their counternarrative is ultimately rejected. Second, it shifts the terms of the constitutional analysis. Instead of formal actors—whether executive actors prior to a charge, or a judicial actor after a charge—addressing the facial or as-applied constitutionality of a statute, this defense empowers the citizen jury to determine what application of law resonates with their own communal values and what is discordant.22 In the case of bench trials, the defense allows the judge, sitting not as arbiter of law, but as a fact finder, to make the same determination.23 In doing this, the defense not only reconstructs First Amendment doctrine on a case-by-case basis around community values, but also deconstructs the current First Amendment landscape that subordinates marginalized speakers’ rights to competing State interests in preserving private property and public order.
Admittedly, the defense will, at times, fail, as all criminal defenses do. Fact finders—whether juror or judge—may reject claims based on bias or majoritarian ideals that suppress dissenting perspectives.24 Some acts and some actors will remain so discordant with communal values that the fact finder will reject the defense. The juror or judge will balance the harm caused by the communication with the harm of suppressing the speech and ultimately vote to convict. For those who throw sticks and stones to communicate, this defense may offer little shelter and may result in conviction.
For others, the rejection will be more personal. The fact finder will reject the speaker themselves and convict based on bias.25 While this is a disturbing result, it too is not inconsistent with current systems in which individual bias may inform a myriad of discretionary decisions from arrest to prosecution to conviction to sentence.26 In the context of juries, this concern may raise questions about jury composition.27 However, it does not alone undermine the value of the defense as a mechanism to allow fact finders to render application of law consistent with community values.28 Nor would recognizing such a defense to a criminal charge eliminate the defendant’s ability to raise a failure-of-proof defense or constitutional claims pretrial or to appeal a conviction. Rather, the defense offers an opportunity for a populist construction of First Amendment rights consistent with the original role of the jury in criminal legal systems in the United States.29
Current First Amendment doctrine highlights the need for a such a defense. Free-speech jurisprudence divides relevant regulations between those that regulate speech for its content—directly targeting what is said and denying protection for low-value speech (such as obscenity and fighting words)30—and those that incidentally burden speech by regulating how, when, or where the communication occurs.31 The latter regulations, also known as time, place, and manner restrictions, are constitutional “provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest, and that they leave open ample alternative channels for communication of the information.”32
The Court’s adoption of this bifurcated speech jurisprudence, between regulation of speech content and regulation of speech methodology, renders access to forums of speech especially critical to constitutional protection. This regime entwines the ability to control the spaces in which speech occurs with the ability to engage in communication. Access to forums of speech may afford refuge to even low-value speech while lack of such access may consign ordinarily protected speech to locations that render it all but silent. The resulting First Amendment landscape is decidedly uneven.33 Well-resourced speech enjoys ever-expanding protections as the Court moves toward a construction of free speech that eschews substantively equalizing principles.34 For less well-resourced speakers, access to speech forums may be limited at best and illusory at worst, as criminal statutes and ordinances regulate that access on purportedly content-neutral grounds. The result is that, for some speakers, the distinction between direct content regulation of speech and time, place, and manner restrictions is a false one. For these marginalized speakers, both categories of regulation serve a common purpose—to exclude some speakers and, as a result, some messages.
In urging a First Amendment defense to criminal charges stemming from communicative acts, this Feature also urges reconsideration of this distinction. Criminal laws’ regulation of access to spaces is, for some speakers, more than a mere incidental burden. It is entwined with individual speech rights, and it carries implications for speech content. To borrow Timothy Zick’s phrase, for some speakers, the “expressive topography”35 does more than create access to audiences. It serves to contextualize communication, to force dialogue, and to demonstrate the pervasiveness or depth of commitment to a viewpoint. At times, the space is the message. It is not just the quality of Zenger’s defense that changes without a public trial and its accompanying audience. It is the message itself that a citizen jury, sitting in judgment, is the last resort for the rights of citizenship and those rights ought to include the opportunity to criticize a governor.36 Crossing a bridge in Selma in defiance of criminal law matters as marchers elsewhere may not sway a nation that the denial of voting rights in Alabama or across the South requires federal legislative action.37 Graffiti in a former Dominican neighborhood carries significance to mark the location of a community broken apart in the name of urban renewal in ways that the same tag in another neighborhood does not.38 In the same way, a “stop killing us” tag on a confederate monument in Virginia scrawled in protest in the summer of 2020 carries a message absent in another context.39 And Black Lives Matter protests that fill streets across the nation signal a broad-based call for change in ways that Instagram posts and yard signs cannot.40 Sometimes, even just the presence of a marginalized actor in a majority-dominated location can serve as a catalyst for conversation about how notions of belonging and danger are constructed and what role policing plays in enforcing and/or creating those notions.41
In these instances and for these speakers, location is more than a mere place that speech occurs. It is the speech. And jurisprudential distinctions that seek to split or cabin that speech from those locations ignore the implications of forums to the content of speech. To relegate Zenger’s trial to a closed courtroom, to confine civil rights activists to their own churches across the midcentury South, to keep demonstrations for social justice in city parks and on sidewalks, or to regulate presence itself is not just to change the time, place, and manner of the speech. It is to create an unequal speech landscape that silences some speech and some speakers. Just as some speech matters for democracy, access to location matters for speech.
To recognize the centrality of forums of speech, in turn, requires an acknowledgment that regulating spaces is a means to regulate speech and to create a hierarchy of rights and interests.42 Criminal law is a central mechanism of this regulation and serves as a tool to reinforce this hierarchy. Speech is increasingly suppressed not through statutes that directly target it, but through the enforcement of criminal statutes that curtail access to spaces in which speech occurs or might occur. Yet enforcement of property and orderly conduct regulations typically evades constitutional scrutiny. Either the speech in question is deemed outside the realm of First Amendment protection altogether, or the regulation itself is viewed as an acceptable time, place, and manner restriction that imposes only incidental burdens on speech. This compartmentalization trivializes the significance of these burdens—particularly on dissenting and marginalized speech. Indeed, those burdens are major contributors to what Professor Genevieve Lakier has termed a subordinating First Amendment landscape. Lakier argues that this uneven landscape relies on the Court’s modern allegiance to formalistic speech equality.43 I do not disagree with that assessment, but here, I argue, more is at stake. The modern First Amendment doctrine that Lakier critiques endorses a hierarchy of rights that devalues marginalized speech and overvalues protection of property and majoritarian order. Simply put, the incidental burdens of criminal law’s regulation of spaces drive a speech landscape that determines who can speak. These burdens also serve as a sort of content curator, dictating which messages can reach audiences and which are confined to backrooms or are “incidentally” regulated out of existence.
To imagine a modern free-speech doctrine that recognizes and preserves the vital role speech plays in our democracy requires imagining a universe that takes into account the burden some criminal laws place on spaces of communication and so on communication itself. This Feature sparks this imagination by proposing a novel First Amendment defense to criminal statutes that create burdens on speech through their regulation of access to spaces where speech might occur. In this, my proposal follows a legal-realist tradition that acknowledges the significance of such burdens on speech and pushes toward an antisubordinating First Amendment doctrine.44
There are three component parts to this argument. Part I begins with a discussion of illustrative criminal statutes that create burdens on speech through their regulation of access to spaces or locations and their place in the First Amendment canon. Such criminal regulations run the gamut of criminal codes (federal and state) and municipal ordinances that reside at the intersection of criminal law, property interests, and speech rights. Importantly, such criminal provisions enjoy a typical elemental simplicity that carries hidden implications. With fewer elements to meet, enforcement discretion is extremely broad. Yet such regulations and their enforcement avoid constitutional rebuke because they are deemed to impose incidental, as opposed to direct, burdens on First Amendment speech rights. In addition, they often present in the criminal law canon as low-level felonies, misdemeanors, and infractions. Although their place on the bottommost rungs of the criminal or culpability ladder creates the temptation to dismiss them as less significant, such simplistic, low-level offenses often serve as a first point of contact within criminal legal systems, allowing police to stop, arrest, and search; prosecutors to charge; and judges to convict and ultimately sentence. Their lowly position may also place them outside of the federal and most state constitutional promises of a right to counsel45 or jury trial,46 stripping marginalized defendants of procedural protections. Even when not charged, these laws carry implications. They may serve to justify searching a suspect for evidence of other, often more serious crimes. Or prosecutors may threaten to add them to a defendant’s existing charge or charges with an eye toward coercing guilty pleas and thereby avoiding the procedural protections of criminal trials. Or they may serve to simply suppress speech by discouraging further action by individuals arrested or threatened with arrest.47 Rigorous enforcement and even the threat of enforcement of such laws, coupled with no opportunity to claim a First Amendment shelter as a defense, have had a corroding effect on diverse, underresourced, and otherwise marginalized speakers.48
With this general overview of criminal regulations that impact speech in place, Part II engages with the work of First Amendment scholars who have sought to map what is admittedly an inconsistent jurisprudence around speech while describing the impact of this doctrine on marginalized speakers and messages. This work only incidentally explores the implications of the criminal regulations described in Part I. Nonetheless, it provides vital context to the resulting speech landscape, helping to describe a jurisprudence of speech equality that is at odds with the lived experience of those affected by the regulation of speech. This Part makes a critical descriptive claim that current doctrine around time, place, and manner restrictions creates an unequal or subordinating First Amendment landscape that underestimates the impact of criminal law on speech, particularly among marginalized speakers. In doing so, this Part challenges the treatment of incidental burdens that flow from criminal law’s regulation of spaces and argues that scholars and courts alike have overlooked the vital role presence plays in free speech—a neglect this Feature corrects by asserting the novel normative claim that there are times when presence is the message.
Finally, Part III argues that, as the nation grows increasingly polarized and as speech, specifically protest, enjoys a resurgence as a critical force to drive democratic change, burdens on speech, even incidental ones, require attention. Here, this Feature takes a prescriptive turn, urging a First Amendment defense to criminal prosecutions that impose incidental burdens on speech. This Part considers the parameters of such a defense, including how it differs from existing First Amendment and necessity defenses or pretrial challenges to the constitutionality of regulations and how it would be actualized. Part III asserts that the proposed defense offers an opportunity to present a counternarrative to the State’s accusation—rendering evidence of the defendant’s intent to communicate and the value of that communication relevant to the assessment of culpability that is a verdict.
While this democratic function is, in part, reliant on a trial, the proposed defense matters even in criminal legal systems in which defendants are more likely to plead guilty than go to trial and may not enjoy a right to a jury even if they go to trial. In a jury trial, this defense would offer an opportunity for community-based decision makers to draw more nuanced boundaries around protected communicative conduct that they value, even in the face of competing interests. In the absence of a jury or a trial, the proposed defense would still allow underresourced people an ironic (and admittedly imperfect) access to courts, opening avenues of negotiation around charges or potential charges and pushing formal actors, including judges, to consider discordance between current application of the law and communal expectations. With sufficient prevalence, the defense would potentially shape policing, prosecutorial, and even judicial decision-making.
In all these ways, the availability of this defense would serve a legitimating and democratic function for resulting legal doctrine. Written law may create the scaffolding of doctrine, but on-the-ground enforcement ultimately lends meaning and nuance to such scaffolding. Discretionary decision-making from formal governmental actors often dominates this arena. The defense proposed here opens the possibility that community-based actors, such as defendants or jurors, may exercise their own discretionary power, a power that is uniquely transparent as it literally occurs in public spaces and may be approved or rejected by the same public that the law claims to serve. A defense thus opens its own space for an alternative rights hierarchy that creates an equalizing speech landscape—one that depends less on access to resources to realize its democratic principles.
See, e.g., Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207 (2015) (“[T]he Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of government that, through words and deeds, will reflect its electoral mandate.”); Citizens United v. FEC, 558 U.S. 310, 340 (2010) (“Speech is an essential mechanism of democracy.”); Buckley v. Valeo, 424 U.S. 1, 48-49 (1976) (describing the value of free speech to democratic principles); Stromberg v. California, 283 U.S. 359, 369 (1931) (“The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people . . . is a fundamental principle to our constitutional system.”); Alexander Meiklejohn, Political Freedom: The Constitutional Power of the People 27 (1979) (“The principle of the freedom of speech springs from the necessities of the program of self-government.”); Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L. Rev. 601, 670 (1990) [hereinafter Post, Public Discourse] (noting the role of speech in deliberative democratic moments). For a discussion of confounding doctrine, see, for example, David M. Rabban, The Emergence of Modern First Amendment Doctrine, 50 U. Chi. L. Rev. 1205, 1208-13 (1983), which describes shifts in First Amendment doctrine before and after World War I; and Robert Post, Recuperating First Amendment Doctrine, 47 Stan. L. Rev. 1249, 1249-50 (1995) [hereinafter Post, Recuperating], which notes that “contemporary First Amendment doctrine is nevertheless striking chiefly for its superficiality, its internal incoherence, its distressing failure to facilitate constructive judicial engagement with significant contemporary social issues connected with freedom of speech.”
See Robert C. Post, Constitutional Domains: Democracy, Community, Management, 270-75 (1995) (noting that speech is not just a means to contest policy but also how the democracy operates); Post, Recuperating, supra note 1, at 1271-72 (describing speech as a means to inform and to shape social values and institutions); Ashutosh Bhagwat, Details: Specific Facts and the First Amendment, 86 S. Calif. L. Rev. 1, 33-35 (2012) (discussing cases that center a democratic function of speech); James Weinstein, Participatory Democracy as the Central Value of American Free Speech Doctrine, 97 Va. L. Rev. 491, 493-97 (2011) (noting that free speech advances self-governance not only through creation of consensus but also by creating spaces for dissent). Professor Ashutosh Bhagwat urges a slight variation on this claim, arguing that a “democratic First Amendment” ought to be a broadly conceived one in which discourse—flowing from freedom of speech and press—combines with rights of assembly, association, and petition to promote social change and citizen engagement. See Ashutosh Bhagwat, The Democratic First Amendment, 110 Nw. U. L. Rev. 1097, 1117-18 (2016). Even as this Feature in later Parts defines presence as speech, such a claim does not preclude broader consideration of the regulation of protest and dissent as impinging on other First Amendment rights. See infra note 264 and accompanying text.
John Peter Zenger’s case is often cited as an example of jury nullification. See, e.g., Jenny E. Carroll, The Jury’s Second Coming, 100 Geo. L.J. 657, 674-75 (2011). Embedded in this call for nullification, Zenger’s defense also urged resistance and defense of colonial speech rights even in the face of law that prohibited it. See Albert W. Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 872-74 (1994) (describing Zenger’s trial in detail). Zenger was a printer of the New York Weekly Journal. Carroll, supra, at 668. In 1735, he was tried for seditious libel after publishing articles alleging corruption by New York’s colonial royal governor. Id. The court found as a matter of law that those articles met the definition of seditious libel, essentially directing a verdict of guilt. Id. Zenger’s counsel, however, argued to the jury that truth ought to be a defense to the charge or, in the alternative, the colonial jurors could determine whether or not the law ought to apply in this case. Id. at 668-69. In doing so, Zenger’s defense urged the jury to find the application of the law as the court had described to be unjust. Id. at 669.
See Kenneth W. Mack, Foreword: A Short Biography of the Civil Rights Act of 1964, 67 SMU L. Rev. 229, 229-30 (2014) (noting that the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were the products of protest and civic engagement, including marches on Washington in 1963 and in Selma, Alabama, in 1965).
See Jack Bass, Taming the Storm: The Life and Times of Judge Frank M. Johnson, Jr., and the South’s Fight over Civil Rights 236-37 (1993) (quoting Dr. Martin Luther King, Jr. as saying, “We are going to bring a voting bill into being in the streets of Selma”). For descriptions of the Selma marches and their role in shaping legislation, see, for example, Ronald J. Krotoszynski, Jr., Reclaiming the Petition Clause: Seditious Libel, “Offensive” Protests, and the Right to Petition the Government for Redress of Grievances 3 (2012).
See Tricia Rose, Black Noise: Rap Music and Black Culture in Contemporary America 33-36 (1994) (chronicling the role of graffiti in pushing back on gentrification and urban revitalization in New York City in the 1970s and 1980s); Jenny E. Carroll, Graffiti, Speech, and Crime, 103 Minn. L. Rev. 1285, 1297-98 (2018) (describing graffiti’s role in marking the presence of displaced communities).
For a description of these protests and their impact on public opinion and reform efforts, see, for example, Audra D.S. Burch, Weiyi Cai, Gabriel Gianordoli, Morrigan McCarthy & Jugal K. Patel, How Black Lives Matter Reached Every Corner of America, N.Y. Times (June 13, 2020), https://www.nytimes.com/interactive/2020/06/13/us/george-floyd-protests-cities-photos.html [https://perma.cc/KK2Y-SCZM]. Protests following the murder of George Floyd galvanized many reform efforts. For descriptions of these efforts, see, for example, Michael Tesler, The Floyd Protests Have Changed Public Opinion About Race and Policing, Wash. Post (June 9, 2020), https://www.washingtonpost.com/politics/2020/06/09/floyd-protests-have-changed-public-opinion-about-race-policing-heres-data [https://perma.cc/T83U-LNJD]; Brad Brooks, Citizens Lead the Call for Police Reform Since George Floyd’s Death, Reuters (Apr. 13, 2021), https://www.reuters.com/world/us/protesting-shaping-police-reform-citizens-lead-way-since-george-floyds-death-2021-04-13 [https://perma.cc/5NV3-WSNW]; Ram Subramanian & Leily Arzy, State Policing Reforms Since George Floyd’s Murder, Brennan Ctr. for Just. (May 21, 2021), https://www.brennancenter.org/our-work/research-reports/state-policing-reforms-george-floyds-murder [https://perma.cc/3DQG-F694]; and Patrick McGreevy, Gov. Newson Approves Sweeping Reforms to Law Enforcement in California, L.A. Times (Sept. 30, 2021), https://www.latimes.com/california/story/2021-09-30/newsom-approves-sweeping-changes-to-californias-criminal-justice-system [https://perma.cc/AB68-UMCW].
Indeed, some of the most famous free-speech cases came to the Court as challenges to criminal convictions. See, e.g., Schenck v. United States, 249 U.S. 47, 48-49 (1919) (contesting a conviction for attempting and conspiring to incite and “cause insubordination in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States”); Stromberg v. California, 283 U.S. 532, 532-33 (1931) (challenging a conviction for unlawful display of a red flag in a public place as “a sign, symbol or emblem of opposition to organized government as an invitation or stimulus to anarchistic action” (quoting Cal. Penal Code § 403a)); Cantwell v. Connecticut, 310 U.S. 296, 300-01 (1940) (challenging a conviction for disorderly conduct and improper solicitation of funds); Chaplinsky v. New Hampshire, 315 U.S. 568, 569-70 (1942) (challenging a conviction for use of offensive language in a public place); Brandenburg v. Ohio, 395 U.S. 444, 448 (1969) (challenging a conviction under Ohio’s Criminal Syndicalism Act). For a more general discussion of the criminalization of speech, see, for example, Timothy Zick, The Dynamic Free Speech Clause: Free Speech and its Relation to Other Constitutional Rights, at xi (2018); and Lakier, supra note 8, at 2186-92.
See Neder v. United States, 527 U.S. 1, 14 (1999) (noting that questions of law—here, materiality—were “for the court, not the jury”). But see United States v. Gaudin, 515 U.S. 506, 518-19 (1999) (holding that when the materiality of a statement is an element of an offense, the question must be presented to the jury to resolve).
See Post, Recuperating, supra note 1, at 1272 (noting the challenges of constructing and understanding a coherent First Amendment doctrine); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2121 (2018) (arguing that modern First Amendment jurisprudence is highly formalistic and unintuitive).
Such instructions urge the jury to draw a distinction between mere speech, which is protected, and speech that falls outside of the First Amendment’s protective purview because it incites or encourages others to engage in criminal activity. See, e.g., United States v. Freeman, 761 F.2d 549, 551-52 (9th Cir. 1985) (holding that the defendant was entitled to a First Amendment jury instruction on some counts of his indictment and that, in order to convict, the government needed to prove that Freeman had incited or encouraged tax evasion or fraud with his speech); Brandenburg, 395 U.S. at 447-48 (holding that, to survive First Amendment scrutiny, a criminal-syndication statute required proof that the defendant had incited or encouraged others to engage in the prohibited conduct with his speech).
See, e.g., Schenck v. United States, 249 U.S. 47, 48-49 (1919) (challenging the constitutionality of statutes as a matter of law pretrial and later on appeal); Stromberg v. California, 283 U.S. 532, 532-33 (1931) (same); Cantwell v. Connecticut, 310 U.S. 296, 300-01 (1940) (same); Chaplinsky v. New Hampshire, 315 U.S. 568, 569-70 (1942) (same); Brandenburg, 395 U.S. at 448 (same); Walker v. City of Birmingham, 388 U.S. 307, 321 (1967) (same); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150 (1968) (same).
As recently as last year, the Court recognized the democratic value of juror decision-making in Flowers v. Mississippi. There, Justice Kavanaugh, writing for the majority, noted that “[o]ther than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process.” Flowers v. Mississippi, 139 S. Ct. 2228, 2238 (2019).
In the context of judicial decision-making, legal realists have long urged judges to consider the effect of law in reaching their verdict. See, e.g., Roscoe Pound, Mechanical Jurisprudence, 8 Colum. L. Rev. 609-10 (1908) (urging “adjustment of [legal] principles and doctrines to the human conditions they are to govern rather than to assumed first principles”). Under this view, judges sitting as a fact finder must sit as a sort of juror substitute—bringing community interests and values into their assessment of culpability.
See Peña-Rodriguez v. Colorado, 580 U.S. 206, 223 (2017) (“[D]iscrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the administration of justice[]’ . . . .” (quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979))); Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 Calif. L. Rev. 733, 739 (1995) (describing the effect of stereotypes on decision maker bias); Samuel R. Sommers & Phoebe C. Ellsworth, How Much Do We Really Know About Race and Juries? A Review of Social Science Theory and Research, 78 Chi.-Kent L. Rev. 997, 997-98 (2003) (reviewing studies of juror bias); Jennifer S. Hunt, Race, Ethnicity, and Culture in Jury Decision Making, 11 Ann. Rev. L. & Soc. Sci. 269, 270, 273 (2015) (noting that studies of juror bias have concluded that “the race and ethnicity of defendants, victims, and jurors can impact outcomes of criminal trials”); Jerry Kang, Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson & Jennifer Mnookin, Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1132 (2012) (noting the effect of juror implicit bias on verdicts).
There is a broad trove of literature describing discretion and bias within criminal legal systems. For a small sampling, see, for example, Radley Balko, There’s Overwhelming Evidence That the Criminal Justice System Is Racist. Here’s the Proof, Wash. Post (June 10, 2020), https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system [https://perma.cc/HQS2-KQGA], which notes that Black drivers are more likely to be stopped in traffic stops than are white drivers and more likely, once stopped, to be arrested; Alice Ristroph, The Thin Blue Line from Crime to Punishment, 108 J. Crim. L. & Criminology 305, 327 (2018), which argues that “[w]ith discretion, of course, comes the potential for discrimination. It is all too well established that police and prosecutorial discretion yield patterns of racially disparate treatment, in which minorities are more likely to receive the greatest investigative scrutiny, the most serious charges, and the heaviest penalties”; Carlos Berdejó, Criminalizing Race: Racial Disparities in Plea-Bargaining, 59 B.C. L. Rev. 1187, 1231-38 (2018), which describes the impact of racial and ethnic bias in prosecutorial plea offers and bargaining; Joe Soss & Vesla Weaver, Police Are Our Government: Politics, Political Science, and the Policing of Race-Class Subjugated Communities, 20 Ann. Rev. Pol. Sci. 565, 571-72 (2017), which describes studies showing that high-volume stops and arrests on low-level offenses are weakly correlated with crime but strongly correlated with race and socioeconomic class; Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform, 104 Geo. L.J. 1419, 1455 (2016), which notes that perceptions of dangerousness based on race affect discretionary decision-making from arrest to sentencing; Traci Schlesinger, Racial Disparities in Pretrial Diversion: An Analysis of Outcomes Among Men Charged with Felonies and Processed in State Courts, 3 Race & Just. 210, 215 (2013), which finds that “when asked to match photos of criminals to the crimes they committed, people match photos of Black men to violent crimes. These findings suggest that Americans associate Black men not only with criminality generally but also with violence in particular;” and Justin D. Levinson, Danielle M. Young & Laurie A. Rudman, Implicit Racial Bias: A Social Science Overview, in Implicit Racial Bias Across the Law 9, 10-11 (Justin D. Levinson & Robert J. Smith eds., 2012), which describes studies documenting racial bias in criminal legal systems. For a description of the lived experience of this bias, see Jay-Z, 99 Problems, on The Black Album (Roc-a-Fella Records 2004), which details, “So I pull over to the side of the road / I heard, ‘Son do you know why I’m stopping you for?’ / ‘Cause I’m young and I’m [B]lack and my hat’s real low / Do I look like a mind reader sir? I don’t know.”
It is well established that the composition of the jury can affect decision-making. See, e.g., David C. Baldus, George Woodworth, David Zuckerman, Neil Alan Weiner & Barbara Broffitt, The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const. L. 3, 124-25 (2001); Ann M. Eisenberg, Amelia Courtney Hritz, Caisa Elizabeth Royer & John H. Blume, If It Walks Like Systematic Exclusion and Quacks Like Systematic Exclusion: Follow-Up on Removal of Women and African-Americans in Jury Selection in South Carolina Capital Cases, 1997-2014, 68 S.C. L. Rev. 373, 376-77 (2017); Catherine M. Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531, 1533, 1535-36, 1550-56 (2012). Similar concerns could be raised around judicial fact finders. The composition of the judiciary and bias of judges may create bias. See Allison P. Harris & Maya Sen, Bias and Judging, 22 Ann. Rev. Poli. Sci 241, 253 (2019) (finding that “judges’ backgrounds—including their race, gender, ethnicity, and religion—shape their decision-making”). Interestingly, Harris and Sen concluded that judicial ideology, as opposed to the judge’s race or gender identity, had the greatest impact on individual decision-making, though, as an aggregate, other factors did appear to influence the judiciary as a whole. Id. at 242-45.
The Court has repeatedly described the jury as serving a critical function to check improper application of law. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (“The purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.”); Duncan v. Louisiana, 391 U.S. 145, 155 (1968) (“A right to jury trial is granted . . . to prevent oppression.”).
See Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting 2 Joseph Story, Commentaries on the Constitution of the United States: With a Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution 540-41 (Boston, Little, Brown & Co. 4th ed. 1873)) (describing the role of the jury to “guard against a spirit of oppression and tyranny on the part of rulers” and to function “as the great bulwark of [our] civil and political liberties”); Blakely v. Washington, 542 U.S. 296, 306-07 (2004) (rejecting a limit on the jury’s role by noting that “[t]he jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish”).
See Brandenburg v. Ohio, 395 U.S. 444, 455-56 (1969) (Douglas, J., concurring) (noting that the Court had repeatedly defined picketing as “free speech plus” and permitted regulation of “the number of pickets and the place and hours,” even as it declined to regulate their content because “traffic and other community problems would otherwise suffer”); Michael Anthony Lawrence, Government as Liberty’s Servant: The “Reasonable Time, Place, and Manner” Standard of Review for All Government Restrictions on Liberty Interests, 68 La. L. Rev. 1, 48 (2007).
See Stanley Nider Katz, Introduction to James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger, Printer of the New York Weekly Journal 1, 1 (Stanley Nider Katz ed., Belknap Press Harvard Univ. Press ed. 1963) (describing Zenger’s trial and defense); Stephen Botein, ‘Mr. Zenger’s Malice and Falsehood’: Six Issues of the New York Weekly Journal, 1733-34, at 5 (Stephen Botein ed., 1985).
See David J. Garrow, Protest at Selma: Martin Luther King, Jr. and the Voting Rights Act of 1965, at 1 (1978); Daniel Q. Gillion, The Political Power of Protest: Minority Activism and Shifts in Public Policy 84-87 (2013); Taeku Lee, Mobilizing Public Opinion: Black Insurgency and Racial Attitudes in the Civil Rights Era 1-3 (2002).
See Ezra Marcus, Will the Last Confederate Statue Standing Turn Off the Lights?, N.Y. Times (July 9, 2021), https://www.nytimes.com/2020/06/23/style/statue-richmond-lee.html [https://perma.cc/SZQ7-6YMP] (describing graffiti placed on confederate statutes in Richmond and elsewhere in the United States as part of protests over police killings of Black men).
See, e.g., id. at 2121; J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 380-83; Richard Delgado, First Amendment Formalism Is Giving Way to First Amendment Legal Realism, 29 Harv. C.R.-C.L. L. Rev. 169, 171 (1994); Richard Delgado & Jean Stefancic, Southern Dreams and a New Theory of First Amendment Legal Realism, 65 Emory L.J. 303, 313-14 (2015); Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 Duke L.J. 1, 17-22.
The right to counsel has been interpreted more broadly than the right to jury trial. Even in this broad interpretation, however, the Court has recognized that the Sixth Amendment does not guarantee the right to counsel when the accused does not face imprisonment if convicted. See Argersinger v. Hamlin, 407 U.S. 25, 30-31, 37 (1972); Alabama v. Shelton, 535 U.S. 654, 661-62 (2002). Despite the Court’s efforts to broaden the category of offenses for which counsel must be appointed, studies suggest that no-lawyer courts are not unusual. See, e.g., Thomas B. Harvey, Jared H. Rosenfeld & Shannon Tomascak, Right to Counsel in Misdemeanor Prosecutions After Alabama v. Shelton: No-Lawyer-Courts and Their Consequences on the Poor and Communities of Color in St. Louis, 29 Crim. Just. Pol’y Rev. 688, 688-89 (2018) (describing the de facto creation of no-counsel courts in St. Louis, Missouri as a result of lack of funding to provide defense counsel to indigent defendants); Robert C. Boruchowitz, Fifty Years After Gideon: It Is Long Past Time to Provide Lawyers for Misdemeanor Defendants Who Cannot Afford to Hire Their Own, 11 Seattle J. for Soc. Just. 891, 892 (2013) (noting that misdemeanor courts are often no-counsel courts and “thousands of individuals go to criminal court every year and are convicted without ever speaking with a defense lawyer or being adequately informed of their right to counsel”).
See Blanton v. City of N. Las Vegas, 489 U.S. 538, 541-42 (1989) (holding that state legislatures may designate some criminal offenses as petty and so allow them to evade the right to jury trial); Duncan v. Louisiana, 391 U.S. 145, 159 (1968) (“[T]here is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision . . . .”).