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Vagueness Avoidance

Introduction

It is no secret that legislatures often enact exceedingly broad and indefinite penal statutes1 1.F. Andrew Hessick & Carissa Byrne Hessick, Constraining Criminal Laws, 106 Minn. L. Rev. 2299, 2342 (2022) (“[L]egislatures routinely enact broad criminal statutes that sweep in far more conduct than the perceived problem that motivated the law.”); Carissa Byrne Hessick & Joseph E. Kennedy, Criminal Clear Statement Rules, 97 Wash. U. L. Rev. 351, 360–61 (2019) (describing legislative incentive to write broad and imprecise laws); Kiel Brennan-Marquez, Extremely Broad Laws, 61 Ariz. L. Rev. 641, 658–59 (2019) (“[O]urs is not a world where lawmakers tend to draft well-tailored, proportional statutes. Particularly in the realm of criminal law, the tendency is just the opposite.”); Marc A. Levin, At the State Level, So-Called Crimes Are Here, There, Everywhere, 28 Crim. Just. 4, 6 (2013) (highlighting “the deluge of overly broad and vague criminal laws”).The term “penal statutes” refers both to criminal statutes and to civil statutes that impose some form of penalty on those who violate them. Cf.Wooden v. United States, 142 S. Ct. 1063, 1086 n.5 (2022) (Gorsuch, J., concurring in the judgment) (explaining how the category of “‘penal’ laws” historically “includ[ed] ones we might now consider ‘civil’ forfeitures or fines”); Caleb Nelson, The Constitutionality of Civil Forfeiture, 125 Yale L.J. 2446, 2498–500 (2016) (explaining how early courts “often said that penal as well as criminal statutes should be ‘construed strictly’” (quoting United States v. Eighty-Four Boxes of Sugar, 32 U.S. (7 Pet.) 453, 462–63 (1833))).Show More that delegate enormous enforcement discretion to prosecutors and police officers.2 2.Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 360–61 (2021) [hereinafter Johnson, Vagueness Attacks] (explaining how indeterminate low-level order-maintenance crimes, “coupled with Fourth Amendment precedents . . . , effectively enable police officers to ‘search and seize whomever they wish’” (quoting William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 Harv. L. Rev. 842, 855 (2001) [hereinafter Stuntz, Transsubstantive Fourth Amendment])); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1664–65 (2010) (noting how legislatures “leave determinations of optimal enforcement to the executive[]” and “purposefully avoid the particulars [when drafting criminal statutes], anticipating case-specific, back-end equitable intervention”); Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 Hastings L.J. 633, 639 (2005) (observing that modern criminal codes “reflect[] a shift of practical authority away from the legislature to prosecutors and police, who now have broad discretion over who gets punished and the level of punishment” so that “[a]rrest, punishment, and the level of punishment are now determined as much by the ad hoc decision-making of individual law enforcement officials as they are by the legal rules”); see William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 547 (2001) (describing dynamics that lead to indeterminate criminal laws).Show More The constitutional void-for-vagueness doctrine promises to provide a check on that practice, at least to the extent sweeping and indeterminate statutory language “fails to give ordinary people fair notice of the conduct it punishes” or “invites arbitrary enforcement.”3 3.Johnson v. United States, 576 U.S. 591, 595 (2015); see also Kolender v. Lawson, 461 U.S. 352, 357–58 (1983) (explaining that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement”); Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 (1982); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926).Show More Yet, in most cases presenting such concerns, courts need not strike down the statute as unconstitutionally vague. Instead, they can typically avoid the vagueness conclusion by narrowly construing the indefinite statutory language. This approach—vagueness avoidance—is common and well documented.4 4.See Skilling v. United States, 561 U.S. 358, 405–06 (2010) (“It has long been our practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”); Joel S. Johnson, Vagueness and Federal-State Relations, 90 U. Chi. L. Rev. 1565, 1592 (2023) [hereinafter Johnson, Federal-State] (“In the typical federal-law vagueness case, the Supreme Court engages in vagueness avoidance. It narrowly construes the indefinite law to avoid any constitutional vagueness issues.”); Shon Hopwood, Clarity in American Criminal Law, 54 Am. Crim. L. Rev. 695, 698 (2017) (noting that the Supreme Court “rarely” invalidates “vague federal criminal laws”); Peter W. Low & Joel S. Johnson, Changing the Vocabulary of the Vagueness Doctrine, 101 Va. L. Rev. 2051, 2087 (2015) (observing that the “usual result” in a federal law vagueness case is for the Supreme Court to “avoid[] the problem by a narrowing interpretation”); Cristina D. Lockwood, Creating Ambiguity in the Void for Vagueness Doctrine by Avoiding a Vagueness Determination in Review of Federal Laws, 65 Syracuse L. Rev. 395, 396–97 (2015) (observing that the Supreme Court has “strive[d] to avoid invalidating federal laws as unconstitutionally vague”).Show More But it has never been theorized. This Article takes up that task, articulating a theory of vagueness avoidance as a tool of construction for constraining penal statutes.

Opportunities for its use are many. Each of the last ten Supreme Court Terms, for example, has provided at least one occasion for application of vagueness avoidance.5 5.See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1572 (2023) (avoiding construction that would give federal aggravated identity theft statute “incongruous breadth” and noting a “concern that a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed” (citing Marinello v. United States, 138 S. Ct. 1101, 1106 (2018))); Ruan v. United States, 142 S. Ct. 2370, 2377–78, 2380 (2022) (construing federal drug statute to include a strong scienter requirement, with the effect of narrowing the “vague, highly general language of the regulation defining the bounds of” the proscribed conduct); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021) (avoiding construction of the Computer Fraud and Abuse Act that “would attach criminal penalties to a breathtaking amount of commonplace . . . activity”); Kelly v. United States, 140 S. Ct. 1565, 1568 (2020) (avoiding construction of federal fraud statutes that would “criminalize all . . . conduct” that involves “deception, corruption, [or] abuse of power”); Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019) (construing the felon firearm statute narrowly to include strong scienter requirement in order to “separat[e] wrongful from innocent acts”); Marinello, 138 S. Ct. at 1107–08, 1110 (“‘exercis[ing]’ interpretive ‘restraint’” to reject broad construction of tax obstruction law that would create “fair warning” concerns by “transform[ing] every violation of the Tax Code into [a felony] obstruction charge” (quoting United States v. Aguilar, 515 U.S. 593, 600 (1995))); Salman v. United States, 580 U.S. 39, 51 (2016) (noting that narrow construction of insider trading statute avoided constitutional vagueness concerns); McDonnell v. United States, 579 U.S. 550, 574, 576–77 (2016) (rejecting “expansive” reading of bribery statute that rendered “outer boundaries” of federal bribery law “shapeless”); McFadden v. United States, 576 U.S. 186, 187, 197 (2015) (adopting a narrow construction of the Controlled Substances Act but declining to rely on vagueness avoidance as a basis for doing so); Burrage v. United States, 571 U.S. 204, 218–19 (2014) (rejecting broad reading that would have violated the principle that criminal laws must be “express[ed] . . . in terms ordinary persons can comprehend”).Show More

To the extent vagueness avoidance has been recognized, however, it has been assumed to be a simple application of ordinary constitutional avoidance.6 6.See, e.g., McFadden, 576 U.S. at 196–97 (treating the avoidance of “vagueness concerns” as a simple application of “the canon of constitutional avoidance,” a “tool for choosing between competing plausible interpretations of a provision” (citation omitted) (quoting Warger v. Shauers, 574 U.S. 40, 50 (2014))).Show More The Court is asked to choose between two or three plausible readings of indeterminate language in a penal statute—each usually having been adopted by some portion of the lower courts—and vagueness concerns are highlighted as a constitutional avoidance reason to reject one reading in favor of another.7 7.See, e.g., supra note 5.Show More Yet the ordinary formulations of constitutional avoidance do not capture what occurs when a court engages in vagueness avoidance.8 8.See infra Part II.Show More

The difference derives from the distinct concepts of ambiguity and vagueness. Ambiguity refers to indeterminacy that arises when a term is open to a “discrete number of possible meanings.”9 9.Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 38–39 (2010).Show More It calls for interpretation that determines semantic meaning. Ordinary constitutional avoidance canons are triggered by ambiguity, and their application points toward semantic meaning that avoids a constitutional infirmity. But vagueness and related indeterminacies in language are not resolved through interpretation; rather, a vague term is open to practically “innumerable possible meanings” or applications10 10.Id.Show More and requires judicial construction to determine legal effect. In other words, the court must craft a supplementary rule of decision to be applied to the facts of the case before it. This fundamental difference calls for a distinct conception of vagueness avoidance.11 11.See infra Part I.Show More

Vagueness and related indeterminacies are ubiquitous in law. But they pose a constitutional concern only in a specific circumstance—namely, when penal statutes contain language so indeterminate that it does not supply a textual basis to define the standard of conduct.12 12.See supra note 3.Show More That creates a constitutional concern because it effectively delegates the legislative task of defining criminal conduct and, in doing so, invites arbitrary enforcement and fails to provide sufficient notice.13 13.See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (explaining that the vagueness doctrine “rests on the twin constitutional pillars of due process and separation of powers,” and that “[v]ague laws . . . undermine the Constitution’s separation of powers” by “threaten[ing] to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide”); Johnson, Federal-State, supra note 4, at 26–27.Show More

By engaging in vagueness avoidance, courts can usually defuse the delegation threat posed by vague statutory language while also constraining its reach. Because such language typically has some practically identifiable core, courts may legitimately craft a judicial construction of the text that retains only that core while excising its indeterminate penumbra.14 14.See infra Subsection II.B.2; cf. H.L.A. Hart, The Concept of Law 123 (3d ed. 2012) [hereinafter Hart, Concept of Law] (observing that general rules have an “open texture” or “fringe of vagueness” and describing such rules as having a “core of certainty” and a “penumbra of doubt”); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 606–07 (1958) [hereinafter Hart, Positivism] (distinguishing the “core of settled meaning” from the “penumbra of debatable cases”).Show More In doing so, courts do not offend the principle requiring the legislature to define crime and fix punishments,15 15.Jones v. Thomas, 491 U.S. 376, 381 (1989) (making clear that, as a matter of federal law, “the substantive power to define crimes and proscribe punishments” lies with the “legislative branch of government”).Show More because the narrowing construction hews to the identifiable core within the linguistic meaning of the vague term enacted by the legislature. In such circumstances, that act of constraining the legal effect of the vague term often functions as a form of severance—the court declines to endorse the statute’s outer peripheries while simultaneously recognizing that some portion of the statute remains in force and is constitutionally valid.16 16.See infra Subsection II.B.2.Show More

Engaging in vagueness avoidance in this manner also promotes the legality principle in criminal law by preventing retroactive crime definition through judicial innovation.17 17.John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 189–90 (1985) (describing how the legality principle “forbids the retroactive definition of criminal offenses” through “judicial innovation”).Show More Those whose conduct falls within the identifiable core have no claim that they lacked notice, and those whose conduct falls outside it will not be subject to punishment under the narrowly construed statute.18 18.See infra Subsection II.B.2.Show More

This conception of vagueness avoidance is not merely an attractive normative principle. It also has a basis in the Supreme Court’s decisions. Although the Court has never fully articulated the justifications for vagueness avoidance, it has traditionally been explicit about taking that approach in cases involving federal penal statutes with indeterminate language. In 2010, the Court recognized that “[i]t has long been [its] practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”19 19.Skilling v. United States, 561 U.S. 358, 405 (2010); see also United States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise. . . . And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.” (citation omitted)).Show More

In more recent cases, however, the Court has retreated from explicit vagueness avoidance. In these cases of implicit vagueness avoidance, the Court still ultimately adopts a narrowing construction of an indeterminate statutory term, but it purports to justify that result on the basis of mere interpretation that determines semantic meaning, rather than expressly relying on vagueness avoidance as a tool of construction.20 20.See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1563 (2023); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); Kelly v. United States, 140 S. Ct. 1565, 1568–69 (2020); Yates v. United States, 574 U.S. 528, 539–47 (2015) (plurality opinion).Show More The Court sometimes invokes vagueness concerns in these cases. But when it does so, those concerns are not included as an essential component of its reasoning.21 21.See infra Section III.B.Show More

That trend is unfortunate. The Court is treating vagueness avoidance as indistinguishable from ordinary constitutional avoidance, a tool used merely to resolve ambiguity when ordinary tools of statutory interpretation are inadequate to recover semantic meaning.22 22.See infra Section III.B.Show More The Court thus gives vagueness concerns a significantly diminished role—tacking them on as an extra justification for an already-adopted reading,23 23.See, e.g., McDonnell v. United States, 579 U.S. 550, 576 (2016).Show More relegating them to dicta,24 24.See, e.g., Van Buren, 141 S. Ct. at 1661.Show More or not even mentioning them at all.25 25.See, e.g., Ciminelli v. United States, 143 S. Ct. 1121 (2023); Kelly, 140 S. Ct. 1565; Yates, 574 U.S. 528 (plurality opinion).Show More Each of those outcomes renders vagueness avoidance less useful as an analytical matter and less forceful as a doctrinal tool, much like the modern form of the rule of lenity that can be used only in the rare case of “grievous ambiguity” after all other interpretive tools have been exhausted.26 26.Muscarello v. United States, 524 U.S. 125, 139 (1998) (quoting Staples v. United States, 511 U.S. 600, 619 n.17 (1994)); see Wooden v. United States, 142 S. Ct. 1063, 1083–86 (2022) (Gorsuch, J., concurring in the judgment) (criticizing the weakening of the rule of lenity); Mila Sohoni, Notice and the New Deal, 62 Duke L.J. 1169, 1205 (2013) (observing that the rule of lenity “los[t] its bite” while Justice Frankfurter was on the Court); Dan M. Kahan, Lenity and Federal Common LawCrimes, 1994 Sup. Ct. Rev. 345, 386; Hessick & Hessick, supra note 1, at 2339 (calling the rule of lenity a “hollow shell of its historic ancestors” that “rarely affects the interpretation of criminal statutes”); see also Joel S. Johnson, Ad Hoc Constructions of Penal Statutes, 100 Notre Dame L. Rev. (forthcoming 2024) (manuscript at 4) (on file with author) [hereinafter Johnson, Ad Hoc Constructions] (observing that the Supreme Court “never firmly relied upon the rule of lenity . . . to justify a narrow construction” of a penal statute over the ten-year period studied).Show More

The practical effect is that the Court’s recent decisions rejecting exceedingly broad lower court readings of federal penal statutes27 27.See supra note 20.Show More do little to deter lower courts from adopting similarly broad constructions in other contexts.28 28.Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 45–49) (explaining how the Court’s ad hoc approach to construing penal statutes “gives lower courts license to adopt sweeping constructions of penal statutes”).Show More Each decision is essentially “ad hoc,” providing no widely applicable principles of construction.29 29.Id. at 4.Show More The lack of controlling principles emboldens prosecutors to continue exploiting indeterminate language in the federal criminal code to “attach criminal penalties to a breathtaking amount of commonplace” conduct.30 30.Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 49–51) (explaining that the Court’s ad hoc approach “invites broad theories of prosecution”).Show More And some lower courts justify those broad applications at the interpretation stage on the basis of the “plain meaning” of the statute’s literal text,31 31.See, e.g., United States v. Dubin, 982 F.3d 318, 325 (5th Cir. 2020), aff’d,27 F.4th 1021 (5th Cir. 2022) (en banc); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 47) (“[T]he Court’s consistent preference for ad hoc constructions [of penal statutes] thus likely yields a lower-court preference” for a “simple ordinary-meaning analysis” that leads to “more broad and literalistic constructions in the lower courts.”).Show More without any real consideration of whether a plain meaning that is open-ended might pose vagueness concerns. As a result, the Supreme Court’s correction of broad lower court readings “has become nearly an annual event.”32 32.Dubin, 27 F.4th at 1041 (Costa, J., dissenting).Show More

The Court should change course by disentangling vagueness avoidance from ordinary constitutional avoidance, explicating it as a robust tool of construction for penal statutes. When applying that tool, the Court should clearly identify the core-penumbra framework exhibited by the vague term, looking to clues from the text or other sources for aid in ascertaining the practically identifiable core. Once that core has been identified, the Court should expressly excise the indeterminate penumbra.33 33.See infra Part IV.Show More

Consistent adherence to that approach would provide a replicable framework for lower courts addressing other penal statutes containing indeterminate language and would encourage prosecutors to adopt charging policies that more readily acknowledge hard limits on the scope of federal criminal laws and expressly prohibit prosecutions beyond those limits.

Robust application of vagueness avoidance would also help answer recent calls by commentators for interpretative tools to reduce the breadth and imprecision of criminal law.34 34.See, e.g., Hessick & Hessick, supra note 1, at 2302–03 (arguing for restoration of the historical practice of construing criminal statutes narrowly); Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, 95 N.Y.U. L. Rev. 918, 921–24 (2020) (arguing that courts should restore the more robust, historical version of the rule of lenity as a tool for constraining criminal laws); see also Brennan-Marquez, supra note 1, at 656–65 (advocating for due process constraint on overbroad criminal laws that are not necessarily ambiguous or vague).Show More Those commentators have often focused their energy on arguments in favor of something resembling a more muscular version of the rule of lenity—one that is more frequently triggered by ambiguity and that more often “deliberately favor[s] criminal defendants” in constraining those ambiguous criminal laws.35 35.Hessick & Hessick, supra note 1, at 2303 (advocating for “historic rules of constraint”—namely, “interpret[ing] statutes to reach no further than the text or the purpose” and “treat[ing] broadly written laws as ambiguous and in need of narrowing constructions”); see Hopwood, supra note 34, at 921–24 (specifically arguing for a more robust version of the rule of lenity).Show More Making that argument, however, requires them to take on a significant methodological fight, contending that modern courts should loosen their modern textualist or purposivist commitment to implementing the will of the legislature—i.e., faithful agency36 36.See, e.g., John F. Manning, Response, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1651 (2001) (contending that the “faithful agent theory” of interpretation derives from “the best reading of the constitutional structure”). Although some scholars debate whether courts should be “faithful agents of the legislature or . . . independent cooperative partners” in interpretation, Kent Greenawalt, Statutory and Common Law Interpretation 20 (2013), the faithful-agent theory is the “conventional” approach. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 112 (2010).Show More—so as to accommodate an interpretive approach for criminal statutes that gives systemic preference to defendants’ liberty interests.37 37.See, e.g., Hessick & Hessick, supra note 1, at 2309, 2314 (observing that, because “textualists and purposivists agree that the role of a court in interpreting statutes is to be a faithful agent of the legislature,” courts committed to those methodologies have “not categorically approached the interpretation of criminal statutes differently from the interpretation of other statutes”); see also Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298, 1303 (2018) (finding implementing legislative will to be a common goal among judges).Some have argued that textualism best advances the legislative will. See, e.g., John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 7 (2001); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63, 64 (1994); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Court and the Law 3, 17–18 (Amy Gutmann ed., 1997). For a textualist, the legislature’s will is faithfully implemented by adhering to statutory text, with the goal of giving effect to its objective meaning. See, e.g., John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) (“[Textualism] ask[s] how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context.”). Others have argued that purposivism better advances legislative will. See, e.g., Henry J. Friendly, Benchmarks 200–01 (1967) (describing interpretation as “the art of proliferating a purpose” (quoting Brooklyn Nat’l Corp. v. Comm’r of Internal Revenue, 157 F.2d 450, 451 (2d Cir. 1946))); Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1113–14 (William N. Eskridge, Jr. & Philip F. Frickey eds., 1994) (arguing that the goal of interpretation is to implement the purpose underlying the law); Roscoe Pound, Spurious Interpretation, 7 Colum. L. Rev. 379, 381 (1907) (“The object of genuine interpretation is to discover the rule which the law-maker intended to establish.”). For a purposivist, the primary goal is to implement the “spirit” of the legislative enactment, Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 272 (2020), though statutory text remains key evidence of that sprit. See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1283–84, 1296 (2020) (showing that purposivists consider text but “are willing to reject a statute’s seemingly plain meaning when contrary indications of purpose cut strongly against such meaning”).Show More That argument has some normative appeal. But it will not likely gain traction in the current faithful-agent paradigm of statutory construction, which views the rule of lenity as inconsistent with the methodological commitment to implementing the legislative will.38 38.See infra Section II.C.Show More

A robust conception of vagueness avoidance is more promising. It comports with that methodological commitment,39 39.See infra Section II.C.Show More both because it is indisputably rooted in constitutional concerns and because it is not triggered by ambiguity—a type of indeterminacy that can often be resolved through the use of descriptive canons of interpretation and other ways of recovering semantic meaning.40 40.See infra Section I.B.Show More

The Article proceeds in four parts. Part I sets the table by distinguishing between several types of linguistic indeterminacy—ambiguity, vagueness, and contestability—and then describing how those categories closely relate to the important legal-process distinction between interpretation and construction. Part II is the heart of the Article. It builds on the interpretation-construction distinction to articulate a theory of vagueness avoidance that stands apart from ordinary constitutional avoidance. Part III then considers the extent to which that theory aligns with the Supreme Court’s decisions involving vagueness concerns, highlighting a recent and unfortunate trend toward implicit vagueness avoidance. Part IV argues that the Court should restore a more robust version of explicit vagueness avoidance.

  1.  F. Andrew Hessick & Carissa Byrne Hessick, Constraining Criminal Laws, 106 Minn. L. Rev. 2299, 2342 (2022) (“[L]egislatures routinely enact broad criminal statutes that sweep in far more conduct than the perceived problem that motivated the law.”); Carissa Byrne Hessick & Joseph E. Kennedy, Criminal Clear Statement Rules, 97 Wash. U. L. Rev. 351, 360–61 (2019) (describing legislative incentive to write broad and imprecise laws); Kiel Brennan-Marquez, Extremely Broad Laws, 61 Ariz. L. Rev

    .

    641, 658–59 (2019) (“[O]urs is not a world where lawmakers tend to draft well-tailored, proportional statutes. Particularly in the realm of criminal law, the tendency is just the opposite.”); Marc A. Levin, At the State Level, So-Called Crimes Are Here, There, Everywhere, 28 Crim. Just. 4, 6 (2013) (highlighting “the deluge of overly broad and vague criminal laws”).

    The term “penal statutes” refers both to criminal statutes and to civil statutes that impose some form of penalty on those who violate them. Cf. Wooden v. United States, 142 S. Ct. 1063, 1086 n.5 (2022) (Gorsuch, J., concurring in the judgment) (explaining how the category of “‘penal’ laws” historically “includ[ed] ones we might now consider ‘civil’ forfeitures or fines”); Caleb Nelson, The Constitutionality of Civil Forfeiture, 125 Yale L.J. 2446, 2498–500 (2016) (explaining how early courts “often said that penal as well as criminal statutes should be ‘construed strictly’” (quoting United States v. Eighty-Four Boxes of Sugar, 32 U.S. (7 Pet.) 453, 462–63 (1833))). ↑

  2.  Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 360–61 (2021) [hereinafter Johnson, Vagueness Attacks] (explaining how indeterminate low-level order-maintenance crimes, “coupled with Fourth Amendment precedents . . . , effectively enable police officers to ‘search and seize whomever they wish’” (quoting William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 Harv. L. Rev. 842, 855 (2001) [hereinafter Stuntz, Transsubstantive Fourth Amendment])); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1664–65 (2010) (noting how legislatures “leave determinations of optimal enforcement to the executive[]” and “purposefully avoid the particulars [when drafting criminal statutes], anticipating case-specific, back-end equitable intervention”); Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 Hastings L.J. 633, 639 (2005) (observing that modern criminal codes “reflect[] a shift of practical authority away from the legislature to prosecutors and police, who now have broad discretion over who gets punished and the level of punishment” so that “[a]rrest, punishment, and the level of punishment are now determined as much by the ad hoc decision-making of individual law enforcement officials as they are by the legal rules”); see William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 547 (2001) (describing dynamics that lead to indeterminate criminal laws). ↑

  3.  Johnson v. United States, 576 U.S. 591, 595 (2015); see also Kolender v. Lawson, 461 U.S. 352, 357–58 (1983) (explaining that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement”); Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 (1982); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926). ↑

  4.  See Skilling v. United States, 561 U.S. 358, 405–06 (2010) (“It has long been our practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”); Joel S. Johnson, Vagueness and Federal-State Relations, 90 U. Chi. L. Rev

    .

    1565, 1592 (2023) [hereinafter Johnson, Federal-State] (“In the typical federal-law vagueness case, the Supreme Court engages in vagueness avoidance. It narrowly construes the indefinite law to avoid any constitutional vagueness issues.”); Shon Hopwood, Clarity in American Criminal Law, 54 Am. Crim. L. Rev. 695, 698 (2017) (noting that the Supreme Court “rarely” invalidates “vague federal criminal laws”); Peter W. Low & Joel S. Johnson, Changing the Vocabulary of the Vagueness Doctrine, 101 Va. L. Rev. 2051, 2087 (2015) (observing that the “usual result” in a federal law vagueness case is for the Supreme Court to “avoid[] the problem by a narrowing interpretation”); Cristina D. Lockwood, Creating Ambiguity in the Void for Vagueness Doctrine by Avoiding a Vagueness Determination in Review of Federal Laws, 65 Syracuse L. Rev. 395, 396–97 (2015) (observing that the Supreme Court has “strive[d] to avoid invalidating federal laws as unconstitutionally vague”). ↑

  5.  See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1572 (2023) (avoiding construction that would give federal aggravated identity theft statute “incongruous breadth” and noting a “concern that a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed” (citing Marinello v. United States, 138 S. Ct. 1101, 1106 (2018))); Ruan v. United States, 142 S. Ct. 2370, 2377–78, 2380 (2022) (construing federal drug statute to include a strong scienter requirement, with the effect of narrowing the “vague, highly general language of the regulation defining the bounds of” the proscribed conduct); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021) (avoiding construction of the Computer Fraud and Abuse Act that “would attach criminal penalties to a breathtaking amount of commonplace . . . activity”); Kelly v. United States, 140 S. Ct. 1565, 1568 (2020) (avoiding construction of federal fraud statutes that would “criminalize all . . . conduct” that involves “deception, corruption, [or] abuse of power”); Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019) (construing the felon firearm statute narrowly to include strong scienter requirement in order to “separat[e] wrongful from innocent acts”); Marinello, 138 S. Ct. at 1107–08, 1110 (“‘exercis[ing]’ interpretive ‘restraint’” to reject broad construction of tax obstruction law that would create “fair warning” concerns by “transform[ing] every violation of the Tax Code into [a felony] obstruction charge” (quoting United States v. Aguilar, 515 U.S. 593, 600 (1995))); Salman v. United States, 580 U.S. 39, 51 (2016) (noting that narrow construction of insider trading statute avoided constitutional vagueness concerns); McDonnell v. United States, 579 U.S. 550, 574, 576–77 (2016) (rejecting “expansive” reading of bribery statute that rendered “outer boundaries” of federal bribery law “shapeless”); McFadden v. United States, 576 U.S. 186, 187, 197 (2015) (adopting a narrow construction of the Controlled Substances Act but declining to rely on vagueness avoidance as a basis for doing so); Burrage v. United States, 571 U.S. 204, 218–19 (2014) (rejecting broad reading that would have violated the principle that criminal laws must be “express[ed] . . . in terms ordinary persons can comprehend”). ↑

  6.  See, e.g., McFadden, 576 U.S. at 196–97 (treating the avoidance of “vagueness concerns” as a simple application of “the canon of constitutional avoidance,” a “tool for choosing between competing plausible interpretations of a provision” (citation omitted) (quoting Warger v. Shauers, 574 U.S. 40, 50 (2014))). ↑

  7.  See, e.g., supra note 5. ↑

  8.  See infra Part II. ↑

  9.  Lawrence M. Solan,

     

    The Language of Statutes: Laws and Their Interpretation

     

    38–39 (2010). ↑

  10.  Id. ↑

  11.  See infra Part I. ↑

  12.  See supra note 3. ↑

  13.  See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (explaining that the vagueness doctrine “rests on the twin constitutional pillars of due process and separation of powers,” and that “[v]ague laws . . . undermine the Constitution’s separation of powers” by “threaten[ing] to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide”); Johnson, Federal-State, supra note 4, at 26–27. ↑

  14.  See infra Subsection II.B.2; cf.

    H

    .L.A. Hart, The Concept of Law 123 (3d ed. 2012) [hereinafter Hart, Concept of Law] (observing that general rules have an “open texture” or “fringe of vagueness” and describing such rules as having a “core of certainty” and a “penumbra of doubt”); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 606–07 (1958) [hereinafter Hart, Positivism] (distinguishing the “core of settled meaning” from the “penumbra of debatable cases”). ↑

  15.  Jones v. Thomas, 491 U.S. 376, 381 (1989) (making clear that, as a matter of federal law, “the substantive power to define crimes and proscribe punishments” lies with the “legislative branch of government”). ↑

  16.  See infra Subsection II.B.2. ↑

  17.  John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 189–90 (1985) (describing how the legality principle “forbids the retroactive definition of criminal offenses” through “judicial innovation”). ↑

  18.  See infra Subsection II.B.2. ↑

  19.  Skilling v. United States, 561 U.S. 358, 405 (2010); see also United States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise. . . . And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.” (citation omitted)). ↑

  20.  See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1563 (2023); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); Kelly v. United States, 140 S. Ct. 1565, 1568–69 (2020); Yates v. United States, 574 U.S. 528, 539–47 (2015) (plurality opinion). ↑

  21.  See infra Section III.B. ↑

  22.  See infra Section III.B. ↑

  23.  See, e.g., McDonnell v. United States, 579 U.S. 550, 576 (2016). ↑

  24.  See, e.g., Van Buren, 141 S. Ct. at 1661. ↑

  25.  See, e.g., Ciminelli v. United States, 143 S. Ct. 1121 (2023); Kelly, 140 S. Ct. 1565; Yates, 574 U.S. 528 (plurality opinion). ↑

  26.  Muscarello v. United States, 524 U.S. 125, 139 (1998) (quoting Staples v. United States, 511 U.S. 600, 619 n.17 (1994)); see Wooden v. United States, 142 S. Ct. 1063, 1083–86 (2022) (Gorsuch, J., concurring in the judgment) (criticizing the weakening of the rule of lenity); Mila Sohoni, Notice and the New Deal, 62 Duke L.J. 1169, 1205 (2013) (observing that the rule of lenity “los[t] its bite” while Justice Frankfurter was on the Court); Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 386; Hessick & Hessick, supra note 1, at 2339 (calling the rule of lenity a “hollow shell of its historic ancestors” that “rarely affects the interpretation of criminal statutes”); see also Joel S. Johnson, Ad Hoc Constructions of Penal Statutes, 100 Notre Dame L. Rev. (forthcoming 2024) (manuscript at 4) (on file with author) [hereinafter Johnson, Ad Hoc Constructions] (observing that the Supreme Court “never firmly relied upon the rule of lenity . . . to justify a narrow construction” of a penal statute over the ten-year period studied). ↑

  27.  See supra note 20. ↑

  28.  Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 45–49) (explaining how the Court’s ad hoc approach to construing penal statutes “gives lower courts license to adopt sweeping constructions of penal statutes”). ↑

  29.  Id. at 4. ↑

  30.  Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 49–51) (explaining that the Court’s ad hoc approach “invites broad theories of prosecution”). ↑

  31.  See, e.g., United States v. Dubin, 982 F.3d 318, 325 (5th Cir. 2020), aff’d, 27 F.4th 1021 (5th Cir. 2022) (en banc); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 47) (“[T]he Court’s consistent preference for ad hoc constructions [of penal statutes] thus likely yields a lower-court preference” for a “simple ordinary-meaning analysis” that leads to “more broad and literalistic constructions in the lower courts.”). ↑

  32.  Dubin, 27 F.4th at 1041 (Costa, J., dissenting). ↑

  33.  See infra Part IV. ↑

  34.  See, e.g., Hessick & Hessick, supra note 1, at 2302–03 (arguing for restoration of the historical practice of construing criminal statutes narrowly); Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, 95 N.Y.U. L. Rev. 918, 921–24 (2020) (arguing that courts should restore the more robust, historical version of the rule of lenity as a tool for constraining criminal laws); see also Brennan-Marquez, supra note 1, at 656–65 (advocating for due process constraint on overbroad criminal laws that are not necessarily ambiguous or vague). ↑

  35.  Hessick & Hessick, supra note 1, at 2303 (advocating for “historic rules of constraint”—namely, “interpret[ing] statutes to reach no further than the text or the purpose” and “treat[ing] broadly written laws as ambiguous and in need of narrowing constructions”); see Hopwood, supra note 34, at 921–24 (specifically arguing for a more robust version of the rule of lenity). ↑

  36.  See, e.g., John F. Manning, Response, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1651 (2001) (contending that the “faithful agent theory” of interpretation derives from “the best reading of the constitutional structure”). Although some scholars debate whether courts should be “faithful agents of the legislature or . . . independent cooperative partners” in interpretation, Kent Greenawalt, Statutory and Common Law Interpretation 20 (2013), the faithful-agent theory is the “conventional” approach. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev

    .

    109, 112 (2010). ↑

  37.  See, e.g., Hessick & Hessick, supra note 1, at 2309, 2314 (observing that, because “textualists and purposivists agree that the role of a court in interpreting statutes is to be a faithful agent of the legislature,” courts committed to those methodologies have “not categorically approached the interpretation of criminal statutes differently from the interpretation of other statutes”); see also Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298, 1303 (2018) (finding implementing legislative will to be a common goal among judges).

    Some have argued that textualism best advances the legislative will. See, e.g., John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 7 (2001); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63, 64 (1994); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Court and the Law 3, 17–18 (Amy Gutmann ed., 1997). For a textualist, the legislature’s will is faithfully implemented by adhering to statutory text, with the goal of giving effect to its objective meaning. See, e.g., John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) (“[Textualism] ask[s] how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context.”).

    Others have argued that purposivism better advances legislative will. See, e.g., Henry J. Friendly, Benchmarks 200–01 (1967) (describing interpretation as “the art of proliferating a purpose” (quoting Brooklyn Nat’l Corp. v. Comm’r of Internal Revenue, 157 F.2d 450, 451 (2d Cir. 1946))); Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law

    1113–14 (

    William N. Eskridge, Jr. & Philip F. Frickey eds.,

    1994) (

    arguing that the goal of interpretation is to implement the purpose underlying the law); Roscoe Pound, Spurious Interpretation, 7 Colum. L. Rev. 379, 381 (1907) (“The object of genuine interpretation is to discover the rule which the law-maker intended to establish.”). For a purposivist, the primary goal is to implement the “spirit” of the legislative enactment, Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev.

    265

    , 272 (2020), though statutory text remains key evidence of that sprit. See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J

    .

    1275, 1283–84, 1296 (2020) (showing that purposivists consider text but “are willing to reject a statute’s seemingly plain meaning when contrary indications of purpose cut strongly against such meaning”). ↑

  38.  See infra Section II.C. ↑

  39.  See infra Section II.C. ↑

  40.  See infra Section I.B. ↑

First Amendment Disequilibrium

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers decision embody this view. Professor Cass Sunstein has described these cases as establishing a “First Amendment equilibrium,” one that arises out of the structural competition between the press and the executive. Today, judges and legislators continue to treat the press and the government as equal combatants in these disputes.

Yet whatever equilibrium might once have existed between the press and executive branch has been destabilized. The institutional press has been eviscerated in recent years—hemorrhaging talent, expertise, resources, and legitimacy. Wide swaths of the country now qualify as “news deserts,” lacking any local press presence at all. Public trust in the mainstream media has also plummeted. At the same time, many internal checks no longer constrain the ability of the executive branch to guard its secrets. This combination of a hollowed-out press and an insufficiently checked executive has given rise to a First Amendment disequilibrium, unsettling the foundations of this critical segment of constitutional law. This Article describes the causes and consequences of this disequilibrium and argues that recalibration is essential to fostering effective democratic self-governance.

Introduction

In the fall of 1968, a pair of FBI agents visited New York Times reporter Earl Caldwell.1 1.Josiah Bates, How a Journalist’s Refusal to Testify Against the Black Panthers Changed First Amendment Rights, Time (Feb. 28, 2022, 2:41 PM), https://time.com/6149443/earl-cald‌well-black-panthers-fbi/ [https://perma.cc/KP5X-L97H].Show More At the time, Caldwell was among the most prominent journalists in the country. He was the first Black reporter the Times assigned to cover Martin Luther King, Jr., and the only journalist on the scene when the civil rights leader was shot.2 2.Id.Show More The newspaper had recently assigned him to cover the Black Panther movement, and the FBI agents wanted to know if Caldwell would pass along information about the group. He refused.3 3.Id.Show More A year and a half later, a federal prosecutor subpoenaed him to testify before a grand jury about the movement. Again, he refused, arguing that the First Amendment protected the identity of his confidential sources and his eyewitness observations of the group’s activities.4 4.Branzburg v. Hayes, 408 U.S. 665, 675–77 (1972).Show More

The ensuing legal dispute reached the Supreme Court in 1972.5 5.Id. at 665.Branzburg was a consolidation of four separate cases. In addition to the case involving Caldwell, see id. at 675, there were two cases involving a Kentucky newspaper reporter who reported on individuals making hashish and using illegal drugs. Id. at 667–69. A third involved a television reporter in Massachusetts who obtained information while inside the headquarters of the Black Panthers. Id. at 672–73. The reason the reporters advanced this constitutional claim was that there were no federal or state shield laws available to offer protection. One of the consolidated cases involved a federal grand jury, and there was (and is) no federal shield statute. Id. at 689. One involved a state grand jury in Massachusetts, which had no shield statute at the time. Id. The other two involved a grand jury in Kentucky, whose shield statute was held to be inapplicable. Id. at 668–70.Show More In a set of four consolidated cases, Caldwell and two other reporters argued that a qualified constitutional privilege protected them from being compelled to divulge confidential information.6 6.Id. at 681 (“The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.”).Show More Without such protection, the reporters argued, their informational sources would dry up, impairing their ability to keep the electorate informed. The journalists argued that implicit in the constitutional rights of speech and press is a right to gather news and information.7 7.Id. at 680–81, 691–92.Show More

The Supreme Court rejected their privilege claims.8 8.Id. The holding in this case is debated. Much of the confusion stems from a concurrence written by Justice Powell—who served as the majority’s fifth vote—which seemed to advocate for a First Amendment balancing test that the majority had expressly rejected. Id. at 709–10 (Powell, J., concurring); see Michele Bush Kimball, The Intent Behind the Cryptic Concurrence That Provided a Reporter’s Privilege, 13 Commc’n L. & Pol’y 379, 381–82 (2008) (contending, based on historical research, that Justice Powell intended to support recognition of a qualified reporter’s privilege). For years, the lower courts have puzzled over how to interpret the case. See Christina Koningisor, The De Facto Reporter’s Privilege, 127 Yale L.J. 1176, 1196–98 (2018) (describing the split among the circuits). More recently, however, the trend among lower courts has been to read the case more narrowly. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (Posner, J.) (“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege . . . .”); see also RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, 84 Wash. L. Rev. 317, 346 & n.111 (2009) (suggesting that “media-generous reading[s] [of] Branzburg” were in decline).Show More In a 5-4 decision, the Court held there is no First Amendment privilege allowing reporters to shield confidential sources in response to a grand jury subpoena.9 9.Branzburg, 408 U.S. at 667–68.Show More A central assertion the Court made to justify this conclusion was that such a privilege was unnecessary. Justice Bryon White, writing for the majority, noted that the press had flourished for 200 years without a privilege and had proven capable of engaging in its own self-defense. “[T]he press has at its disposal powerful mechanisms of communication and is far from helpless to protect itself from harassment or substantial harm,” he wrote.10 10.Id. at 706.Show More The Court assumed that the press possessed the economic, political, cultural, and social clout needed to protect itself and penetrate government secrecy without judicial assistance.

This is no longer true today. The institutional press has been in free fall for more than two decades.11 11.See infra Section II.A.Show More Cycles of layoffs have stripped talent and expertise from newsrooms, and wide swaths of the country now qualify as “news deserts,” without any local newspapers and often no local press presence at all to keep communities informed and hold government actors accountable.12 12.Penelope Muse Abernathy, Ctr. for Innovation & Sustainability in Loc. Media, News Deserts and Ghost Newspapers: Will Local News Survive? 8 (June 24, 2020), https://www.usnewsdeserts.com/wp-content/uploads/‌2020/‌06/2020_News_‌Deserts_‌and‌_‌Gh‌ost_Newspapers.pdf [https://perma.cc/87KA-BHCP]; see also Steven Waldman, The Local-News Crisis Is Weirdly Easy to Solve, Atlantic (Aug. 8, 2023), https://www.theatlantic.com/‌ideas/archive/2023/08/local-news-investment-economic-value/674942/ [https://perma.cc/‌K3‌3J-RNFA] (“On average, two newspapers close each week. Some 1,800 communities that used to have local news now don’t.”).Show More Meanwhile, public trust in the media has declined dramatically.13 13.Megan Brenan, Americans’ Trust in Media Dips to Second Lowest on Record, Gallup (Oct. 7, 2021), https://news.gallup.com/poll/355526/americans-trust-media-dips-second-low‌est-record.aspx [https://perma.cc/R7B8-R9B4].Show More Even so, Branzburg v. Hayes’s assumptions about press power remain part of the foundational legal backdrop framing the relationship between the executive branch and the press—and, by extension, the public.

This Article reexamines the premises of Branzburg, along with those of other landmark cases and critical legislation addressing government control of information. This body of law includes foundational Supreme Court decisions defining the press’s right to gather news and access government information. It also includes landmark government transparency and accountability legislation, such as federal and state freedom of information laws.14 14.See infra Section I.B.Show More

Revisiting these sources uncovers two key assumptions upon which the government-press legal regime has been built. The first is that the institutional press is a powerful actor capable of asserting its professional interests and checking executive branch overreach at all levels of government—through the courts, via legislation, and by appealing directly to the public in the pages of its own publications.15 15.This Article uses the term “the executive” to refer to executive officials and agencies at federal, state, and local levels of government. This includes the president and federal agencies; state governors and state agencies; and local elected officials and local agencies, including local law enforcement agencies.Show More The second is that executive branch officials are bound by various internal and external constraints on their ability to keep information secret.

Judges and legislators have long assumed that the combination of a robust press and a constrained executive would establish a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Key First Amendment cases from this era, including Branzburg, New York Times Co. v. United States (The Pentagon Papers Case), and Houchins v. KQED, Inc., embody this view.16 16.See infra Section I.C.Show More Alexander Bickel famously described this as the “disorderly situation.”17 17.Alexander Bickel, The Morality of Consent 80 (1975).Show More Cass Sunstein, in turn, has referred to it as an “equilibrium model of the first amendment.”18 18.Cass R. Sunstein, Government Control of Information, 74 Calif. L. Rev. 889, 890 (1986). The First Amendment equilibrium is not intended to capture all of First Amendment law. It focuses more narrowly on a subset of cases and statutes that establish the legal foundation that governs press-government relations. See id.Show More

Both pillars of this constitutional equilibrium have been destabilized in recent years. The power and influence of the institutional press, particularly at state and local levels, has dramatically declined.19 19.See Brenan, supra note 13. Of course, there are exceptions. A handful of institutional media actors and some non-institutional ones continue to uncover secrets that the executive branch would prefer to withhold at the national level. See discussion infra notes 215–21 and accompanying text; see also Azmat Khan, Hidden Pentagon Records Reveal Patterns of Failure in Deadly Airstrikes, N.Y. Times (Dec. 18, 2021), https://www.nytimes.com/‌interactive/2021/12/18/us/airstrikes-pentagon-records-civilian-deaths.html [https://perma.cc/‌WZ34-VXQQ] (“Except for the rare instances of revelation and subsequent outcry, the Pentagon’s brief published reports on the minority of cases it finds credible are the only public acknowledgment of the air war’s civilian toll. The Times’s reporting in Iraq, Syria and Afghanistan points to the broader truth.”). However, some of these actors have faced serious consequences, including prosecution, for doing so. See, e.g., Press Release, U.S. Dep’t of Just., WikiLeaks Founder Julian Assange Charged in 18-Count Superseding Indictment (May 23, 2019), https://www.justice.gov/opa/pr/wikileaks-founder-julian-assange-charged-18-count-superseding-indictment [https://perma.cc/S52X-5SG8]. Further, the ability of media actors to perform a watchdog role at the national level is not matched at the local level. See discussion infra Section II.A.Show More At the same time, many intra- and intergovernmental checks on the executive branch no longer operate as effective constraints against government secrecy.20 20.See infra Section II.B; see also Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2316 (2006) (“The first-best concept of ‘legislature v. executive’ checks and balances must be updated to contemplate second-best ‘executive v. executive’ divisions.”).Show More This combination of a hollowed-out press and an unchecked executive has given rise to a First Amendment disequilibrium—a development that has been largely overlooked by the courts. The collapse of the institutional press at state and local levels and its further consolidation at the national level, together with the unleashing of many intergovernmental constraints on executive branch secrecy, has undermined a cornerstone of First Amendment law. These developments have jeopardized the press’s ability to check the executive branch and disseminate truthful information to the public.21 21.In this sense, this Article is in keeping with Tim Wu’s influential essay. See Tim Wu, Is the First Amendment Obsolete?, 117 Mich. L. Rev. 547 (2018). In that essay, Wu observes that a core set of First Amendment cases were decided at a time when there was information scarcity and government suppression of dissent was the primary threat to free speech. Id. at 548. He argues that these previous First Amendment holdings do not necessarily hold up under the conditions of the digital public sphere today, in which an abundance of cheap and easily manipulated speech threatens the nation’s information ecosystem. Id. at 548–49. This Article identifies a similar mismatch between the economic and political conditions under which the major First Amendment press cases were decided and those decided today.Show More

Existing scholarship fails to fully describe the forces destabilizing this equilibrium or the threat they pose to democratic self-governance. A prominent strand of recent First Amendment scholarship highlights how the Roberts Court’s deregulatory turn has contributed to a disordered information ecosystem.22 22.See, e.g., Richard L. Hasen, Cheap Speech and What It Has Done (To American Democracy), 16 First Amend. L. Rev. 200, 216–18 (2018) (describing how First Amendment restrictions on campaign finance laws can facilitate misinformation campaigns); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 202 (arguing that this deregulatory approach to the First Amendment concentrates power in the hands of a few and “displaces the policy preferences and the mechanisms for intelligent policy-preference development of a broader public with those of a smaller elite”); Ari Ezra Waldman, The Marketplace of Fake News, 20 U. Pa. J. Const. L. 845, 863–65 (2018) (describing how First Amendment protections for false speech limit the effect of consumer protection laws in addressing misinformation); Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393–94 (2017) (arguing that “the outward creep of the First Amendment . . . risks undermining the theoretical traditions of the First Amendment itself, especially with respect to listeners’ rights and individual autonomy”).Show More Based on this diagnosis, scholars and policymakers have sought cures for these disorders in various sources of law, including antitrust law,23 23.See, e.g., Staff of H. Subcomm. on Antitrust, Com., & Admin. L. of the Comm. on the Judiciary, 117th Cong., Investigation of Competition in Digital Markets 13 (Comm. Print 2022).Show More consumer protection law,24 24.See, e.g., Callum Borchers, How the Federal Trade Commission Could (Maybe) Crack Down on Fake News, Wash. Post (Jan. 30, 2017, 12:22 PM), https://www.washingtonpost.‌com/‌news/the-fix/wp/2017/01/30/how-the-federal-trade-commission-could-maybe-crack-down-on-fake-news/ [https://perma.cc/CDV3-MBNR] (describing how consumer protection laws could be harnessed to attack misinformation campaigns).Show More and the laws governing intermediary liability.25 25.See, e.g., Noah Feldman, Free Speech, Libel and the Truth After Pizzagate, Bloomberg (Dec. 16, 2016, 12:24 PM), https://www.bloomberg.com/opinion/articles/2016-12-16/free-sp‌eech-libel-and-the-truth-after-pizzagate#xj4y7vzkg [https://perma.cc/WSJ7-8EEF].Show More Yet this body of work has not fully captured the extent to which the nation’s information ecosystem is dependent on the body of law—both statutory and constitutional—that defines the rights of the press in the contest for control of information.

Media law scholars have focused more squarely on this legal regime. They have identified the crucial role of legislation in enabling the press to inform the public,26 26.David A. Anderson, Freedom of the Press, 80 Tex. L. Rev. 429, 432 (2002) (discussing the importance of nonconstitutional protections for the press).Show More recognized the inadequacy of constitutional protections for news-gathering,27 27.See generally Sonja West, Awakening the Press Clause, 58 UCLA L. Rev. 1025 (2011) (explaining that the Supreme Court does not recognize any independent right or protection arising solely from the Press Clause).Show More and emphasized how the fragility of the press compromises its ability to play its watchdog role.28 28.RonNell Andersen Jones, Litigation, Legislation, and Democracy in a Post-Newspaper America, 68 Wash. & Lee L. Rev. 557, 570–71 (2011) (showing how the decline of news-gathering resources is undermining democracy); Luke Morgan, The Broken Branch: Capitalism, the Constitution, and the Press, 125 Pa. St. L. Rev. 1, 6 (2020) (arguing “that the institutional press is critically important in the constitutional structure, and that it is dying for reasons that have nothing to do with intentional censorship by the government and everything to do with market capitalism”).Show More Although these scholars have paid close attention to the inadequacy of legal protections for the press, they have not fully examined how the shifting power dynamics in the press-government relationship have contributed to the decay of those legal protections.29 29.There are important exceptions. See, e.g., Jones, supra note 28, at 559 (arguing that “discussions about the risks that might accompany the death of newspapers have almost entirely ignored the ramifications for development and enforcement of the law”); David McCraw & Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in a Post-Pentagon Papers World, 48 Harv. C.R.-C.L. L. Rev. 473, 473–74 (2013) (describing the relationship between the press and the federal executive branch in the context of national security disclosures).Show More

This Article turns attention to these dynamics. It addresses the causes and consequences of First Amendment disequilibrium.30 30.In examining the press side of the balance, we build on the work of researchers who have documented the causes of the economic decline of the institutional press. Researchers, for example, have chronicled the dire financial consequences of the rise of online advertising and the decoupling of ad revenue from newspaper publishing.See, e.g., James T. Hamilton, Democracy’s Detectives: The Economics of Investigative Reporting 17 (2016); Martha Minow, Saving the News 19–20, 34–35 (2021); Jones, supra note 28, at 562–63, 568; RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U. L. Rev. 567, 576–78 (2017). We also look to the impact the economic decline of the institutional press has had on the democratic process. See, e.g., Joshua P. Darr, Matthew P. Hitt & Johanna L. Dunaway, Newspaper Closures Polarize Voting Behavior, 68 J. Commc’n 1007, 1008 (2018) (showing that when a local newspaper closes, voting becomes more polarized); Sam Schulhofer-Wolf & Miguel Garrido, Do Newspapers Matter? Short-Run and Long-Run Evidence from the Closure of The Cincinnati Post, 26 J. Media Econ. 60, 61 (2011) (finding that in the wake of a newspaper closure, voter turnout and campaign spending fell); Pengjie Gao, Chang Lee & Dermot Murphy, Financing Dies in Darkness? The Impact of Newspaper Closures on Public Finance 4–5, 21 (Hutchins Ctr. on Fiscal & Monetary Pol’y at Brookings, Working Paper No. 44, 2018), https://www.brookings.edu/wp-content/‌uploads/‌2018/‌09/‌WP‌44.pdf [https://perma.cc/XKA5-3EUK] (finding that, in the wake of a newspaper closure, the salaries of top government officials rose). Finally, we incorporate insights from those researchers who have examined various pathologies of democratic discourse in the social media era, including the rise of misinformation and political polarization, and demonstrated how this rise corresponds with a loss of public confidence in the press as an arbiter of truth. See, e.g., Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election, 31 J. Econ. Persps. 211, 212–13 (2017) (evaluating the consumption of fake news on social media platforms prior to the 2016 presidential election); Jane R. Bambauer, Snake Oil Speech, 93 Wash. L. Rev. 73, 83 (2018) (arguing in favor of greater government intervention to regulate fake speech); Caroline Mala Corbin, The Unconstitutionality of Government Propaganda, 81 Ohio St. L.J. 815, 820 (2020) (proposing that the government violates the speech clause of the First Amendment by spreading false information to citizens); Hasen, supra note 22, at 204–05 (describing the role that the decline of newspapers and the rise of social media has played in the spread of misinformation during election campaigns); Helen Norton, The Government’s Lies and the Constitution, 91 Ind. L.J. 73, 74–75 (2015) (exploring constitutional limits on the government’s authority to lie).Show More It also offers remedies designed to aid the press in combatting government secrecy, informing the electorate, and checking governmental abuses of power. Revisiting this legal regime reveals how much of the nation’s information infrastructure has been constructed around a set of factual assumptions about the press and the government that no longer hold true. This insight, in turn, opens up new paths for reforming key parts of the public sphere.

The Article proceeds in four parts. Part I describes how the Supreme Court and legislatures of the 1960s and ’70s enshrined into law a “First Amendment equilibrium” that continues to set the terms of the struggle between the press and the executive branch over control of information. It examines the growing power of the press and the adoption of various constraints on the executive’s control of information in the wake of the Vietnam War and Watergate.31 31.See Jonathan M. Ladd, Why Americans Hate the Media and How It Matters 6 (2012) (“The existence of an independent, powerful, widely respected news media establishment is an historical anomaly. Prior to the twentieth century, such an institution had never existed in American history.”).Show More It then maps the ways that assumptions about both the strength of the press and the constraints on government have been baked into the current legal regime. It traces these two assumptions throughout the major press cases of this era, as well as through the construction of the major transparency statutes and intergovernmental checks enacted at both the federal and state levels in this period.

Part II examines the current state of disequilibrium between the government and the press. It describes the collapse of press power and the erosion of many Watergate-era intergovernmental constraints. It then traces the impact of this disequilibrium on various parts of the law, including the law governing access to national security secrets, the protection of confidential sources, and the development of constitutional and statutory rights of information access. In doing so, it also explores the extent to which obsolete assumptions about power dynamics and dependencies within the government-press relationship permeate First Amendment theory in a manner that thwarts today’s press from playing its constitutionally assigned role as government watchdog and enabler of democratic self-governance.

Part III surveys potential critiques of the First Amendment equilibrium model, including the views that this equilibrium is undesirable or unimportant, or that it was a fiction from the start. Part IV then concludes with potential remedies to the current disequilibrium. It asks how we might recalibrate the equilibrium destabilized by the collapse of key segments of the press. It argues that there are two central paths forward: fixing the press, so that there is sufficient public oversight of government; and fixing the law, so that the distortions caused by the press’s decline are minimized.

  1.  Josiah Bates, How a Journalist’s Refusal to Testify Against the Black Panthers Changed First Amendment Rights, Time (Feb. 28, 2022, 2:41 PM), https://time.com/6149443/earl-cald‌well-black-panthers-fbi/ [https://perma.cc/KP5X-L97H]. ↑
  2.  Id. ↑
  3.  Id. ↑
  4.  Branzburg v. Hayes, 408 U.S. 665, 675–77 (1972). ↑
  5.  Id. at 665. Branzburg was a consolidation of four separate cases. In addition to the case involving Caldwell, see id. at 675, there were two cases involving a Kentucky newspaper reporter who reported on individuals making hashish and using illegal drugs. Id. at 667–69. A third involved a television reporter in Massachusetts who obtained information while inside the headquarters of the Black Panthers. Id. at 672–73. The reason the reporters advanced this constitutional claim was that there were no federal or state shield laws available to offer protection. One of the consolidated cases involved a federal grand jury, and there was (and is) no federal shield statute. Id. at 689. One involved a state grand jury in Massachusetts, which had no shield statute at the time. Id. The other two involved a grand jury in Kentucky, whose shield statute was held to be inapplicable. Id. at 668–70. ↑
  6.  Id. at 681 (“The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.”). ↑
  7.  Id. at 680–81, 691–92. ↑
  8.  Id. The holding in this case is debated. Much of the confusion stems from a concurrence written by Justice Powell—who served as the majority’s fifth vote—which seemed to advocate for a First Amendment balancing test that the majority had expressly rejected. Id. at 709–10 (Powell, J., concurring); see Michele Bush Kimball, The Intent Behind the Cryptic Concurrence That Provided a Reporter’s Privilege, 13 Commc’n L. & Pol’y 379, 381–82 (2008) (contending, based on historical research, that Justice Powell intended to support recognition of a qualified reporter’s privilege). For years, the lower courts have puzzled over how to interpret the case. See Christina Koningisor, The De Facto Reporter’s Privilege, 127 Yale L.J. 1176, 1196–98 (2018) (describing the split among the circuits). More recently, however, the trend among lower courts has been to read the case more narrowly. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (Posner, J.) (“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege . . . .”); see also RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, 84 Wash. L. Rev. 317, 346 & n.111 (2009) (suggesting that “media-generous reading[s] [of] Branzburg” were in decline). ↑
  9.  Branzburg, 408 U.S. at 667–68. ↑
  10.  Id. at 706. ↑
  11.  See infra Section II.A. ↑
  12.  Penelope Muse Abernathy, Ctr. for Innovation & Sustainability in Loc. Media, News Deserts and Ghost Newspapers: Will Local News Survive? 8 (June 24, 2020), https://www.usnewsdeserts.com/wp-content/uploads/‌2020/‌06/2020_News_‌Deserts_‌and‌_‌Gh‌ost_Newspapers.pdf [https://perma.cc/87KA-BHCP]; see also Steven Waldman, The Local-News Crisis Is Weirdly Easy to Solve, Atlantic (Aug. 8, 2023), https://www.theatlantic.com/‌ideas/archive/2023/08/local-news-investment-economic-value/674942/ [https://perma.cc/‌K3‌3J-RNFA] (“On average, two newspapers close each week. Some 1,800 communities that used to have local news now don’t.”). ↑
  13.  Megan Brenan, Americans’ Trust in Media Dips to Second Lowest on Record, Gallup (Oct. 7, 2021), https://news.gallup.com/poll/355526/americans-trust-media-dips-second-low‌est-record.aspx [https://perma.cc/R7B8-R9B4]. ↑
  14.  See infra Section I.B. ↑
  15.  This Article uses the term “the executive” to refer to executive officials and agencies at federal, state, and local levels of government. This includes the president and federal agencies; state governors and state agencies; and local elected officials and local agencies, including local law enforcement agencies. ↑
  16.  See infra Section I.C. ↑
  17.  Alexander Bickel, The Morality of Consent 80 (1975). ↑
  18.  Cass R. Sunstein, Government Control of Information, 74 Calif. L. Rev. 889, 890 (1986). The First Amendment equilibrium is not intended to capture all of First Amendment law. It focuses more narrowly on a subset of cases and statutes that establish the legal foundation that governs press-government relations. See id. ↑
  19.  See Brenan, supra note 13. Of course, there are exceptions. A handful of institutional media actors and some non-institutional ones continue to uncover secrets that the executive branch would prefer to withhold at the national level. See discussion infra notes 215–21 and accompanying text; see also Azmat Khan, Hidden Pentagon Records Reveal Patterns of Failure in Deadly Airstrikes, N.Y. Times (Dec. 18, 2021), https://www.nytimes.com/‌interactive/2021/12/18/us/airstrikes-pentagon-records-civilian-deaths.html [https://perma.cc/‌WZ34-VXQQ] (“Except for the rare instances of revelation and subsequent outcry, the Pentagon’s brief published reports on the minority of cases it finds credible are the only public acknowledgment of the air war’s civilian toll. The Times’s reporting in Iraq, Syria and Afghanistan points to the broader truth.”). However, some of these actors have faced serious consequences, including prosecution, for doing so. See, e.g., Press Release, U.S. Dep’t of Just., WikiLeaks Founder Julian Assange Charged in 18-Count Superseding Indictment (May 23, 2019), https://www.justice.gov/opa/pr/wikileaks-founder-julian-assange-charged-18-count-superseding-indictment [https://perma.cc/S52X-5SG8]. Further, the ability of media actors to perform a watchdog role at the national level is not matched at the local level. See discussion infra Section II.A. ↑
  20.  See infra Section II.B; see also Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2316 (2006) (“The first-best concept of ‘legislature v. executive’ checks and balances must be updated to contemplate second-best ‘executive v. executive’ divisions.”). ↑
  21.  In this sense, this Article is in keeping with Tim Wu’s influential essay. See Tim Wu, Is the First Amendment Obsolete?, 117 Mich. L. Rev. 547 (2018). In that essay, Wu observes that a core set of First Amendment cases were decided at a time when there was information scarcity and government suppression of dissent was the primary threat to free speech. Id. at 548. He argues that these previous First Amendment holdings do not necessarily hold up under the conditions of the digital public sphere today, in which an abundance of cheap and easily manipulated speech threatens the nation’s information ecosystem. Id. at 548–49. This Article identifies a similar mismatch between the economic and political conditions under which the major First Amendment press cases were decided and those decided today. ↑
  22.  See, e.g., Richard L. Hasen, Cheap Speech and What It Has Done (To American Democracy), 16 First Amend. L. Rev. 200, 216–18 (2018) (describing how First Amendment restrictions on campaign finance laws can facilitate misinformation campaigns); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 202 (arguing that this deregulatory approach to the First Amendment concentrates power in the hands of a few and “displaces the policy preferences and the mechanisms for intelligent policy-preference development of a broader public with those of a smaller elite”); Ari Ezra Waldman, The Marketplace of Fake News, 20 U. Pa. J. Const. L. 845, 863–65 (2018) (describing how First Amendment protections for false speech limit the effect of consumer protection laws in addressing misinformation); Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393–94 (2017) (arguing that “the outward creep of the First Amendment . . . risks undermining the theoretical traditions of the First Amendment itself, especially with respect to listeners’ rights and individual autonomy”). ↑
  23.  See, e.g., Staff of H. Subcomm. on Antitrust, Com., & Admin. L. of the Comm. on the Judiciary, 117th Cong., Investigation of Competition in Digital Markets 13 (Comm. Print 2022). ↑
  24.  See, e.g., Callum Borchers, How the Federal Trade Commission Could (Maybe) Crack Down on Fake News, Wash. Post (Jan. 30, 2017, 12:22 PM), https://www.washingtonpost.‌com/‌news/the-fix/wp/2017/01/30/how-the-federal-trade-commission-could-maybe-crack-down-on-fake-news/ [https://perma.cc/CDV3-MBNR] (describing how consumer protection laws could be harnessed to attack misinformation campaigns). ↑
  25.  See, e.g., Noah Feldman, Free Speech, Libel and the Truth After Pizzagate, Bloomberg (Dec. 16, 2016, 12:24 PM), https://www.bloomberg.com/opinion/articles/2016-12-16/free-sp‌eech-libel-and-the-truth-after-pizzagate#xj4y7vzkg [https://perma.cc/WSJ7-8EEF]. ↑
  26.  David A. Anderson, Freedom of the Press, 80 Tex. L. Rev. 429, 432 (2002) (discussing the importance of nonconstitutional protections for the press). ↑
  27.  See generally Sonja West, Awakening the Press Clause, 58 UCLA L. Rev. 1025 (2011) (explaining that the Supreme Court does not recognize any independent right or protection arising solely from the Press Clause). ↑
  28.  RonNell Andersen Jones, Litigation, Legislation, and Democracy in a Post-Newspaper America, 68 Wash. & Lee L. Rev. 557, 570–71 (2011) (showing how the decline of news-gathering resources is undermining democracy); Luke Morgan, The Broken Branch: Capitalism, the Constitution, and the Press, 125 Pa. St. L. Rev. 1, 6 (2020) (arguing “that the institutional press is critically important in the constitutional structure, and that it is dying for reasons that have nothing to do with intentional censorship by the government and everything to do with market capitalism”). ↑
  29.  There are important exceptions. See, e.g., Jones, supra note 28, at 559 (arguing that “discussions about the risks that might accompany the death of newspapers have almost entirely ignored the ramifications for development and enforcement of the law”); David McCraw & Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in a Post-Pentagon Papers World, 48 Harv. C.R.-C.L. L. Rev. 473, 473–74 (2013) (describing the relationship between the press and the federal executive branch in the context of national security disclosures). ↑
  30.  In examining the press side of the balance, we build on the work of researchers who have documented the causes of the economic decline of the institutional press. Researchers, for example, have chronicled the dire financial consequences of the rise of online advertising and the decoupling of ad revenue from newspaper publishing. See, e.g., James T. Hamilton, Democracy’s Detectives: The Economics of Investigative Reporting 17 (2016); Martha Minow, Saving the News 19–20, 34–35 (2021); Jones, supra note 28, at 562–63, 568; RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U. L. Rev. 567, 576–78 (2017). We also look to the impact the economic decline of the institutional press has had on the democratic process. See, e.g., Joshua P. Darr, Matthew P. Hitt & Johanna L. Dunaway, Newspaper Closures Polarize Voting Behavior, 68 J. Commc’n 1007, 1008 (2018) (showing that when a local newspaper closes, voting becomes more polarized); Sam Schulhofer-Wolf & Miguel Garrido, Do Newspapers Matter? Short-Run and Long-Run Evidence from the Closure of The Cincinnati Post, 26 J. Media Econ. 60, 61 (2011) (finding that in the wake of a newspaper closure, voter turnout and campaign spending fell); Pengjie Gao, Chang Lee & Dermot Murphy, Financing Dies in Darkness? The Impact of Newspaper Closures on Public Finance 4–5, 21 (Hutchins Ctr. on Fiscal & Monetary Pol’y at Brookings, Working Paper No. 44, 2018), https://www.brookings.edu/wp-content/‌uploads/‌2018/‌09/‌WP‌44.pdf [https://perma.cc/XKA5-3EUK] (finding that, in the wake of a newspaper closure, the salaries of top government officials rose). Finally, we incorporate insights from those researchers who have examined various pathologies of democratic discourse in the social media era, including the rise of misinformation and political polarization, and demonstrated how this rise corresponds with a loss of public confidence in the press as an arbiter of truth. See, e.g., Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election, 31 J. Econ. Persps. 211, 212–13 (2017) (evaluating the consumption of fake news on social media platforms prior to the 2016 presidential election); Jane R. Bambauer, Snake Oil Speech, 93 Wash. L. Rev. 73, 83 (2018) (arguing in favor of greater government intervention to regulate fake speech); Caroline Mala Corbin, The Unconstitutionality of Government Propaganda, 81 Ohio St. L.J. 815, 820 (2020) (proposing that the government violates the speech clause of the First Amendment by spreading false information to citizens); Hasen, supra note 22, at 204–05 (describing the role that the decline of newspapers and the rise of social media has played in the spread of misinformation during election campaigns); Helen Norton, The Government’s Lies and the Constitution, 91 Ind. L.J. 73, 74–75 (2015) (exploring constitutional limits on the government’s authority to lie). ↑

  31.  See Jonathan M. Ladd, Why Americans Hate the Media and How It Matters 6 (2012) (“The existence of an independent, powerful, widely respected news media establishment is an historical anomaly. Prior to the twentieth century, such an institution had never existed in American history.”). ↑

Sex Discrimination Formalism

Critics of antidiscrimination law have long lamented that the Supreme Court is devoted to a shallow, formal version of equality that fails to account for substantive inequities and stands in the way of affirmative efforts to remediate systemic injustice. But these criticisms are primarily focused on the Supreme Court’s interpretations of race discrimination law. The Court’s most recent foray into statutory sex discrimination law, Bostock v. Clayton County, employed formalistic reasoning to move the law in an expansive direction, interpreting Title VII’s sex discrimination provision to prohibit discrimination against lesbian, gay, and transgender employees. Examining post-Bostock developments, this Article asks whether formal equality might have more potential to advance civil rights than previously thought. It argues that “formal equality” is not a single legal inquiry; rather, in practice, it takes the form of at least three distinct tests. These tests lead to different results in different sex discrimination controversies, such as whether it is discrimination to treat someone adversely for being bisexual or nonbinary; to single out pregnancy, menstruation, breasts, or other aspects of reproductive biology for disparate treatment; to enforce sex-specific dress codes; to exclude transgender people from restrooms consistent with their gender identities; to ban gender-affirming health care; or to restrict who can change the sex designations on their identity documents. Although no formal test neatly maps onto prevailing normative theories and sociological insights about what discrimination is, in recent cases, courts have used formal tests to achieve results consistent with those theories. This account suggests that, rather than insisting that courts adopt substantive tests, civil rights scholars might reconsider the virtues of formalism.

“Equality, in the abstract, has no limits; it is forever demanding to be carried to its ultimate logical conclusions.”1 1.Kenneth L. Karst, The Supreme Court, 1976 Term—Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 39 (1977).Show More

Introduction

The law of race discrimination is mired in what critics call “formal equality”: an ahistorical, decontextualized vision of equality law that ignores the social, economic, and political realities of systemic racial inequality and treats affirmative action as the moral equivalent of 1950s-style segregation.2 2.See, e.g., Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. Rev. 1779, 1784 (2012) (“[D]iscriminatory intent doctrine excludes evidence of continued discrimination against non-Whites rooted in history, contemporary practices, and social science . . . . Meanwhile, . . . colorblindness similarly closes courthouse doors to evidence showing that state actors sometimes use race to break down inequality and to foster integration.”); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1113 (1997) (criticizing “[c]ontemporary equal protection law” because it “is premised on a formal and historically static conception of ‘discrimination’” focused on “classification” or “discriminatory purpose—a concept the Court has defined as tantamount to malice”).Show More As a result, antidiscrimination scholars are almost uniformly scornful of formal equality, proposing that it be replaced with more substantive definitions of discrimination attuned to context;3 3.See, e.g., Haney-López, supranote 2, at1876 (proposing a “contextual intent” test).Show More social, historical, and cultural meanings;4 4.See, e.g., Issa Kohler-Hausmann, Eddie Murphy and the Dangers of Counterfactual Causal Thinking About Detecting Racial Discrimination, 113 Nw. U. L. Rev. 1163, 1166, 1172 (2019) (arguing for a definition that accounts for “the system of social meanings or practices” that constitute social categories such as race and sex); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 355–56 (1987) (proposing a “cultural meaning” test that “would evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance” and “considering evidence regarding the historical and social context in which the decision was made and effectuated”).Show More systemic and accumulated group-based disadvantages;5 5.See, e.g., Richard Thompson Ford, Bias in the Air: Rethinking Employment Discrimination Law, 66 Stan. L. Rev. 1381, 1384 (2014) (“[T]he law should replace the conceptually elusive goal of eliminating discrimination with the more concrete goal of requiring employers, government officials, and other powerful actors to meet a duty of care to avoid unnecessarily perpetuating social segregation or hierarchy.”); Siegel, supranote 2, at1146 (suggesting that equal protection doctrine might require scrutiny for “facially neutral policies” that “perpetuate, or aggravate, historic patterns of race and gender inequality”).Show More or “costs and benefits of alternative proposals in each specific setting.”6 6.See, e.g., R. Richard Banks, Class and Culture: The Indeterminacy of Nondiscrimination, 5 Stan. J. C.R. & C.L. 1, 3 (2009) (“[W]e should approach race-related policy disputes in a pragmatic manner, weighing the costs and benefits of alternative proposals in each specific setting.”).Show More

By contrast to the atrophy of race discrimination law through formalism, the law of sex discrimination seems relatively vibrant. In its landmark decision in Bostock v. Clayton County, the Roberts Court ruled that discrimination on the basis of “sex” under Title VII of the Civil Rights Act includes discrimination against lesbian, gay, and transgender workers.7 7.140 S. Ct. 1731, 1737 (2020).Show More But that decision’s reasoning is not based in any sort of contextual or historically grounded understanding of gender-based subordination.8 8.Id.at 1750–51 (denying the relevance of history and pointing out that “applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees in the 1960s—often may be seen as unexpected”).Show More Rather, it relied on a formal, sterile, individualistic concept of “but-for” causation—“if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.”9 9.Id. at 1741.Show More Thus, if an employer would not fire a woman for being attracted to men, that employer may not fire a man for being attracted to men.10 10.Id. The same argument works for the transgender employees—for example, a transgender woman may not be penalized for having traits that would be acceptable in an employee who was assigned female at birth. Id.Show More Lower courts have extended Bostock to new contexts, holding, for example, that it requires that schools allow transgender children to use restrooms consistent with their gender identities,11 11.See, e.g., infraSubsection II.A.1 (discussing Grimm v. Gloucester County School Board, 972 F.3d 586, 616, 619 (4th Cir. 2020) (affirming summary judgment in favor of a transgender plaintiff on equal protection and Title IX claims), cert. denied, 141 S. Ct. 2878 (2021)).Show More forbids an employer from firing an employee because her tampon triggered a security scanner,12 12.SeeinfraSubsection II.A.2 (discussing Flores v. Virginia Department of Corrections, No. 20-cv-00087, 2021 WL 668802, at *6 (W.D. Va. Feb. 22, 2021) (denying summary judgment in a sex discrimination case in which an employee was fired when her tampon set off a security scanner triggering the false suspicion that she was smuggling contraband)).Show More and bars schools from imposing dress codes requiring girls to wear skirts.13 13.See, e.g., infraSubsection II.A.1 (discussing Peltier v. Charter Day School, Inc., 37 F.4th 104 (4th Cir. 2021) (en banc) (affirming grant of summary judgment to plaintiffs on § 1983 equal protection claim and reversing grant of summary judgment to school on Title IX claim challenging discriminatory dress code)).Show More

This Article argues that Bostock’s but-for test is an example of a broader phenomenon that it describes as “sex discrimination formalism”: attempts to define intentional sex discrimination according to formal, abstract, logical tests, minimizing consideration of social realities and normative values.14 14.I define discrimination formalism more precisely infra Section I.A. Cf.Morton J. Horwitz, The Transformation of American Law, 1780–1860, at 254 (1977) (discussing “legal formalism” as “an intellectual system which gave common law rules the appearance of being self-contained, apolitical, and inexorable, and which, by making ‘legal reasoning seem like mathematics,’ conveyed ‘an air . . . of . . . inevitability’ about legal decisions”). I do not suggest formal rules succeed at perfect abstraction or constraint; formalism is a matter of degree. See, e.g., Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. Chi. L. Rev. 636, 640 (1999) (“The real question is ‘what degree of formalism?’ rather than ‘formalist or not?’”).Show More It identifies and examines abstract tests used by courts to determine what types of reasons count as intentional sex discrimination in various constitutional and statutory contexts and assesses how those tests work in particular cases. Contrary to the consensus view among civil rights scholars that formalism is anathema to equality,15 15.See, e.g.,supranotes 2, 4, 6 and accompanying text. But cf.Mary Anne Case,“The Very Stereotype the Law Condemns”: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1448–52 (2000) (characterizing equal protection cases on sex as standing for the formalistic rule that, when a law, on its face, treats men and women differently, it may not be based on a generalization that would be untrue for even a single individual man or woman, and arguing that, if courts took this rule seriously, it would lead “in interesting and radical directions” like marriage equality).Show More this Article argues that recent cases relying on formal tests have expanded the reach of sex discrimination law to forms of gender inequality overlooked in the past.

One contribution of this Article is to offer a typology of formal tests of disparate treatment. Much scholarship on discrimination law assumes that there are only two modes for thinking about equality: formal and substantive, and that all formal rules are the same.16 16.See, e.g.,Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Pathological Racism, Chronic Racism & Targeted Universalism, 109 Calif. L. Rev. 1107, 1111 (2021) (discussing the “standard doctrinal account,” which lumps together concerns about formal equality and anticlassification in equal protection law);cf.Aziz Z. Huq, What Is Discriminatory Intent?, 103 Cornell L. Rev. 1211, 1223–24 (2018) (“Questions of how discriminatory intent is defined and proved tend to be ancillary and subordinate to a larger critique of the ideological orientation of the doctrine.”).Show More This Article argues there are at least three distinct types of formal rules when it comes to intentional sex discrimination: (1) but-for causation, which asks whether mistreatment would have befallen an individual if their sex were different; (2) anticlassification rules, also referred to as “blindness,”17 17.This is a problematic metaphor, for, among other reasons, the fact that blind people do see race. See generally Osagie Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (2013).Show More which ask whether a decision-maker acted pursuant to an explicit or implicit policy that considers sex; and (3) “similarly situated” rules, which forbid decision-makers from treating individuals of different sexes who are alike in all relevant respects differently. Importantly, these heuristics for determining discriminatory intent do not require proof of the specific motives of discriminators.18 18.Cf.Pers. Adm’r v. Feeney, 442 U.S. 256, 279 (1979) (“‘Discriminatory purpose’ . . . implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”).Show More While ostensibly aimed at discerning the same core phenomenon—discriminatory intent—these tests have taken on lives of their own in the case law as independent legal “theories” or “claims.” They most often point to the same result, but in a subset of difficult cases, the choice of formal rule can change the outcome. For example, one district judge, a Republican appointee, concluded that Bostock’s but-for test would not count discrimination on the basis of bisexuality as sex discrimination, but an anticlassification inquiry that requires decisions that are “blind” to sex would.19 19.Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571, 622 (N.D. Tex. 2021) (concluding that an employer who discriminates on the basis of bisexuality is not discriminating on the basis of sex under “[t]he traditional but-for ‘favoritism’ analyses,” but is failing to act in a way that is “‘blind’ to sex”), vacated sub nom. Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 940 (5th Cir. 2023). Ideology is unlikely to be the explanation for this twist in reasoning. The district court judge, Reed O’Connor, was appointed by President George W. Bush, and is known for striking down the policies of the Biden and Obama administrations. Tierney Sneed, Judge Notorious for Anti-Obamacare Rulings Has Another Crack, CNN (Jan. 28, 2022, 7:56 AM), https://www.cnn.com/2022/01/28/politics/obamacare-reed-oconnor-biden-doj-health/index.html [https://perma.cc/H3G3-TMDH].Show More

Another contribution of this Article is to offer an assessment of the reach of these various formal tests, relevant to next-generation sex discrimination disputes. While scholars have debated the theoretical potential of Bostock’s but-for inquiry,20 20.CompareKatie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621, 1624–25 (2021) (applauding the but-for theory on the ground that it clarifies disparate treatment law and avoids the intent requirement), withRobin Dembroff & Issa Kohler-Hausmann, Supreme Confusion About Causality at the Supreme Court, 25 CUNY L. Rev. 57, 58 (2022) (arguing thatBostock’s but-for test is incoherent and “threaten[s] to limit the reach of antidiscrimination law”), Benjamin Eidelson, Dimensional Disparate Treatment, 95 S. Cal. L. Rev. 785, 794 (2022) (arguing that rather than clarifying disparate treatment law, the but-for theory compounds confusion, is not justified by statutory text, and leads to “untenable results”), and Guha Krishnamurthi, Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law, 108 Va. L. Rev. Online 1, 4, 11 (2022) (arguing “that the Court’s simple but-for causation test, by its own lights, does not advance anti-discrimination law”).Show More they have not examined how judges are applying it in new contexts. Nor have they compared the but-for rule to other formal rules on the ground. In just over three years, Bostock has been cited by almost a thousand cases.21 21.According to the Westlaw database, Bostock had been cited by 962 federal and state cases as of October 1, 2023.Show More This Article discusses more than fifty cases decided since Bostock that are related to arguably novel or potentially controversial applications of sex discrimination doctrine.22 22.This Article reviews cases through October 1, 2023.Show More It examines these decisions from the inside out,23 23.While this is a work of legal scholarship, I draw loose inspiration from anthropological methods. Cf.Annelise Riles, The Network Inside Out 6, 16, 19 (2000) (describing an ethnographic method that attempts to gain access to modern knowledge practices from within, beginning by rendering familiar and mundane artifacts visible for analysis, in contexts in which “thick description” is challenging “because the phenomena are dispersed and the cultures are many”); Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 Buff. L. Rev. 973, 1029–30 (2005) (urging “that the cultural study of legal technology make a methodological commitment not to reduce technology to the politics, culture, history, or personalities surrounding it—that we take the agency of technological form seriously, as a subject on its own terms, as the legal engineers among us do”).Show More endeavoring to see how their reasoning works, to take it seriously, and to hypothesize about where it might go.

This analysis reveals that courts extending sex discrimination law are foregrounding formal rules as the reasons for their decisions, not sociological arguments about the nature of discrimination or feminist or other such normative theories of the harms of discrimination.24 24.Bostock itself is an example. Cary Franklin, Living Textualism, 2020 Sup. Ct. Rev. 119, 143 n.106 (pointing out that Bostock could have been justified based on “antisubordinationist and anti-stereotyping arguments,” but these arguments “necessitate more analytical work than the simple anticlassificationist argument, and conservatives generally reject them”).Show More Formal rules can sometimes circumvent roadblocks to antidiscrimination projects, such as judgments that traits that are unique to men or women cannot be the bases for discrimination,25 25.See infraSubsection II.A.2.Show More that certain groups and individuals are too blameworthy to deserve protection,26 26.See supranote 8 (quoting Bostock v. Clayton County, 140 S. Ct. 1731, 1750 (2020)).Show More or that discriminatory practices are justified by tradition or convention.27 27.See infra Subsection II.A.1.Show More The results are not always what would be expected based on crude measures of judicial ideology.28 28.See, e.g., supranote 19. I note the political affiliations of judges throughout this Article.Show More But a close look at post-Bostock cases reveals that rather than applying formal tests with the rigor of a philosopher, judges apply them with some plasticity, reaching situations that strike them as substantively unfair. Moreover, while courts extending sex discrimination law to new contexts often gesture to Bostock’s but-for inquiry, they are more likely to rely on anticlassification and similarly situated rules. A similarly situated inquiry, which asks whether people are alike in relevant respects, has been particularly prominent in transgender rights litigation.29 29.See infra Subsection II.A.1.Show More

But formalism also has well-known drawbacks. Abstract tests of discrimination suffer from the flaws of all formalistic legal reasoning: they are, to varying degrees, indeterminate, requiring that judges rely on normative and empirical premises to apply them, but deny that they are doing so,30 30.This is a standard criticism of legal formalism. See, e.g., Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 820 (1935) (“In every field of law we should find peculiar concepts which are not defined either in terms of empirical fact or in terms of ethics but which are used to answer empirical and ethical questions alike, and thus bar the way to intelligent investigation of social fact and social policy.”).Show More and they are both over- and underinclusive.31 31.See, e.g., Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1701 (1976) (“The more general and the more formally realizable the rule, the greater the equitable pull of extreme cases of over- or underinclusion.”); Frederick Schauer, Formalism, 97 Yale L.J. 509, 510, 535 (1988) (describing formalism as “the concept of decisionmaking according to rule,” and pointing out that “it is exactly a rule’s rigidity, even in the face of applications that would ill serve its purpose, that renders it a rule”).Show More This Article does not make any broad claims about the causal role of formal legal reasoning in judicial decision-making—causation is complex and context specific. It is also not a brief in support of discrimination formalism as a tool of progressive politics—what tools movement lawyers of any political persuasion ought to use will depend on the circumstances. Nor does it argue that sex discrimination formalism achieves rule of law aspirations such as determinacy, predictability, or judicial constraint—particularly not in legal disputes that implicate acute ideological conflicts. Rather, this Article attempts, to the extent possible, to offer a thick description32 32.See supranote 23.Show More of how thin legal rules33 33.Cf.Toni M. Massaro, Gay Rights, Thick and Thin, 49 Stan. L. Rev. 45, 46–47 (1996) (contrasting “thin” doctrinal arguments that appeal to “principles of neutrality” with “thick” arguments that ask judges to “define, or appear to endorse,” particular sexual orientations).Show More operate in a discrete set of cases. It contributes to scholarly criticism of formalism in discrimination law by arguing that, like unhappy families, each of the various formal tests is problematic in its own way. It departs from those criticisms in disputing that a wholesale move toward more substantive inquiries of the sort favored by most progressive scholars would achieve those scholars’ ultimate aspirations for the law. This Article does not endeavor to advance any one single theory of discrimination law, which is a “ramshackle institution, full of compromise and contradiction.”34 34.Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1, 16 (2000).Show More Rather, it adds to the evidence that a unified theory is not normatively desirable.35 35.See, e.g., Banks, supranote 6, at19 (“The effort to arrive at a unitary conception of discrimination would be misguided even if an authoritative single decision maker—say, the United States Supreme Court—propounded the definition. Any single definition would fail to account for the distinctive features of the various settings where claims of racial discrimination might arise.”); Huq, supranote 16, at 1240 (explaining that discriminatory intent is “unavoidabl[y]” “protean and plural”); George Rutherglen, Disaggregated Discrimination and the Rise of Identity Politics, 26 Wm. & Mary J. Race, Gender & Soc. Just. 391, 394–95 (2020) (arguing that the multiplicity of plausible philosophical theories of the wrong of discrimination and “discrepancies” in legal doctrines “counsel against the quest for uniformity based on the essential nature of discrimination”).Show More

Questions about the meaning of sex discrimination are timely as courts resolve issues involving the scope of LGBTQ+ rights after Bostock and the constitutionality of legal restrictions on abortion after Dobbs.36 36.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).Show More Bostock did not address whether its holding would apply to dress codes, restrooms, health care, and many other topics—controversies now being resolved by federal courts.37 37.Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020); id.at 1778–83 (Alito, J., dissenting) (noting these among “some of the potential consequences” of Bostock).Show More While transgender litigants racked up an impressive win rate through 2021,38 38.Katie Eyer, Transgender Constitutional Law, 171 U. Pa. L. Rev. 1405, 1405, 1408 (2023) (surveying constitutional transgender rights cases from 2017–2021 and concluding that “recent transgender rights litigation has resulted in important and consistent victories for transgender constitutionalism in the lower and state courts”).Show More results since have been mixed.39 39.There have been significant recent losses. See, e.g., Williams ex rel. L.W. v. Skrmetti, No. 23-5600, 2023 WL 6321688, at *23 (6th Cir. Sept. 28, 2023) (reversing grants of preliminary injunctions against Kentucky and Tennessee laws barring gender-affirming health care for transgender minors); Eknes-Tucker v. Governor of Ala., No. 22-11707, 2023 WL 5344981, at *1 (11th Cir. Aug. 21, 2023) (vacating district court’s preliminary injunction of Alabama law prohibiting gender-affirming health care for transgender minors); Kasper ex rel. Adams v. Sch. Bd., 57 F.4th 791, 799–800 (11th Cir. 2022) (en banc) (reversing district court’s conclusions, following a bench trial, that school policy barring a transgender boy from the boys’ restroom violated the Equal Protection Clause and Title IX); Fowler v. Stitt, No. 22-cv-00115, 2023 WL 4010694, at *24 (N.D. Okla. June 8, 2023) (granting motion to dismiss challenge to state policy prohibiting transgender individuals from changing the sex designations on their birth certificates), appeal docketed, No. 23-5080 (10th Cir. July 7, 2023); Gore v. Lee, No. 19-cv-00328, 2023 WL 4141665, at *37 (M.D. Tenn. June 22, 2023) (similar), appeal docketed, No. 23-5669 (6th Cir. July 26, 2023); B.P.J. v. W. Va. State Bd. of Educ., No. 21-cv-00316, 2023 WL 111875, at *10 (S.D. W. Va. Jan. 5, 2023) (denying transgender litigant’s motion for summary judgment in case challenging law forbidding transgender girls from playing girls’ sports in school), argued, No. 23-1078 (4th Cir. Oct. 27, 2023); A.H. ex rel. D.H. v. Williamson Cnty. Bd. of Educ., 638 F. Supp. 3d 821, 837 (M.D. Tenn. Nov. 2, 2022) (denying preliminary injunction in case challenging Tennessee state law barring transgender schoolchildren from using restrooms consistent with their gender identities).Show More Most notably, a 2022 en banc decision by the Eleventh Circuit rejected a “cornucopia” of formal theories advanced by a transgender student in a case over restroom access.40 40.Adams, 57 F.4th at 846 n.13 (Jill Pryor, J., dissenting) (describing six distinct theories that the majority rejected).Show More While Dobbs addressed equal protection issues, its statements on that question are dicta.41 41.Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 68, 93 (2022) (noting that the parties had not asserted an equal protection claim in Dobbs and observing that “Justice Alito’s attempt to block an equal protection claim that was not even before the Court in Dobbs is evidence of equality’s power, not its weakness”).Show More State courts are now resolving equal protection challenges to abortion bans under their own state constitutions.42 42.SeePlanned Parenthood of the Great Nw. v. State, 522 P.3d 1132, 1198–200 (Idaho 2023) (rejecting equal protection challenges to Idaho law restricting abortion); Siegel et al., supranote 41, at 95–96 (discussing state court decisions on the right to abortion as a matter of gender equality).Show More Yet few scholars are focused “on questions of equal protection and pregnancy.”43 43.Siegel et al., supranote 41, at 73–74 (explaining that “[t]his is because, for decades, the question has been buried under the substantive due process doctrines regulating abortion . . . , and under federal statutes that prohibit pregnancy discrimination, including by government actors”).Show More

This Article proceeds in four Parts. Part I defines discrimination formalism, explains its importance, and offers a typology of formal theories of disparate treatment. Part II argues that courts are relying on formalistic tests to expand sex discrimination law in several contested contexts, including debates over discrimination based on bisexuality, nonbinary gender, menstruation, genitalia, and other aspects of reproductive biology, and sex-segregated restrooms, dress codes, and other such policies. It asks whether various formal tests have potential to further expand sex discrimination law on these issues, and explains the reasons for the appeal of formal over substantive inquiries. Part III probes the limits of sex discrimination formalism and addresses potential criticisms of formal rules. Part IV draws out lessons from this account for debates over formal equality and the future of civil rights law.

  1.  Kenneth L. Karst, The Supreme Court, 1976 Term—Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 39 (1977). ↑
  2.  See, e.g., Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. Rev. 1779, 1784 (2012) (“[D]iscriminatory intent doctrine excludes evidence of continued discrimination against non-Whites rooted in history, contemporary practices, and social science . . . . Meanwhile, . . . colorblindness similarly closes courthouse doors to evidence showing that state actors sometimes use race to break down inequality and to foster integration.”); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1113 (1997) (criticizing “[c]ontemporary equal protection law” because it “is premised on a formal and historically static conception of ‘discrimination’” focused on “classification” or “discriminatory purpose—a concept the Court has defined as tantamount to malice”). ↑
  3.  See, e.g., Haney-López, supra note 2, at 1876 (proposing a “contextual intent” test). ↑
  4.  See, e.g., Issa Kohler-Hausmann, Eddie Murphy and the Dangers of Counterfactual Causal Thinking About Detecting Racial Discrimination, 113 Nw. U. L. Rev. 1163, 1166, 1172 (2019) (arguing for a definition that accounts for “the system of social meanings or practices” that constitute social categories such as race and sex); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 355–56 (1987) (proposing a “cultural meaning” test that “would evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance” and “considering evidence regarding the historical and social context in which the decision was made and effectuated”). ↑
  5.  See, e.g., Richard Thompson Ford, Bias in the Air: Rethinking Employment Discrimination Law, 66 Stan. L. Rev. 1381, 1384 (2014) (“[T]he law should replace the conceptually elusive goal of eliminating discrimination with the more concrete goal of requiring employers, government officials, and other powerful actors to meet a duty of care to avoid unnecessarily perpetuating social segregation or hierarchy.”); Siegel, supra note 2, at 1146 (suggesting that equal protection doctrine might require scrutiny for “facially neutral policies” that “perpetuate, or aggravate, historic patterns of race and gender inequality”). ↑
  6.  See, e.g., R. Richard Banks, Class and Culture: The Indeterminacy of Nondiscrimination, 5 Stan. J. C.R. & C.L. 1, 3 (2009) (“[W]e should approach race-related policy disputes in a pragmatic manner, weighing the costs and benefits of alternative proposals in each specific setting.”). ↑
  7.  140 S. Ct. 1731, 1737 (2020). ↑
  8.  Id. at 1750–51 (denying the relevance of history and pointing out that “applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees in the 1960s—often may be seen as unexpected”). ↑
  9.  Id. at 1741. ↑
  10.  Id. The same argument works for the transgender employees—for example, a transgender woman may not be penalized for having traits that would be acceptable in an employee who was assigned female at birth. Id. ↑
  11.  See, e.g., infra Subsection II.A.1 (discussing Grimm v. Gloucester County School Board, 972 F.3d 586, 616, 619 (4th Cir. 2020) (affirming summary judgment in favor of a transgender plaintiff on equal protection and Title IX claims), cert. denied, 141 S. Ct. 2878 (2021)). ↑
  12.  See infra Subsection II.A.2 (discussing Flores v. Virginia Department of Corrections, No. 20-cv-00087, 2021 WL 668802, at *6 (W.D. Va. Feb. 22, 2021) (denying summary judgment in a sex discrimination case in which an employee was fired when her tampon set off a security scanner triggering the false suspicion that she was smuggling contraband)). ↑
  13.  See, e.g., infra Subsection II.A.1 (discussing Peltier v. Charter Day School, Inc., 37 F.4th 104 (4th Cir. 2021) (en banc) (affirming grant of summary judgment to plaintiffs on § 1983 equal protection claim and reversing grant of summary judgment to school on Title IX claim challenging discriminatory dress code)). ↑
  14.  I define discrimination formalism more precisely infra Section I.A. Cf. Morton J. Horwitz, The Transformation of American Law, 1780–1860, at 254 (1977) (discussing “legal formalism” as “an intellectual system which gave common law rules the appearance of being self-contained, apolitical, and inexorable, and which, by making ‘legal reasoning seem like mathematics,’ conveyed ‘an air . . . of . . . inevitability’ about legal decisions”). I do not suggest formal rules succeed at perfect abstraction or constraint; formalism is a matter of degree. See, e.g., Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. Chi. L. Rev. 636, 640 (1999) (“The real question is ‘what degree of formalism?’ rather than ‘formalist or not?’”). ↑
  15.  See, e.g., supra notes 2, 4, 6 and accompanying text. But cf. Mary Anne Case, “The Very Stereotype the Law Condemns”: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1448–52 (2000) (characterizing equal protection cases on sex as standing for the formalistic rule that, when a law, on its face, treats men and women differently, it may not be based on a generalization that would be untrue for even a single individual man or woman, and arguing that, if courts took this rule seriously, it would lead “in interesting and radical directions” like marriage equality). ↑
  16.  See, e.g., Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Pathological Racism, Chronic Racism & Targeted Universalism, 109 Calif. L. Rev. 1107, 1111 (2021) (discussing the “standard doctrinal account,” which lumps together concerns about formal equality and anticlassification in equal protection law); cf. Aziz Z. Huq, What Is Discriminatory Intent?, 103 Cornell L. Rev. 1211, 1223–24 (2018) (“Questions of how discriminatory intent is defined and proved tend to be ancillary and subordinate to a larger critique of the ideological orientation of the doctrine.”). ↑
  17.  This is a problematic metaphor, for, among other reasons, the fact that blind people do see race. See generally Osagie Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (2013). ↑
  18.  Cf. Pers. Adm’r v. Feeney, 442 U.S. 256, 279 (1979) (“‘Discriminatory purpose’ . . . implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”). ↑
  19.  Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571, 622 (N.D. Tex. 2021) (concluding that an employer who discriminates on the basis of bisexuality is not discriminating on the basis of sex under “[t]he traditional but-for ‘favoritism’ analyses,” but is failing to act in a way that is “‘blind’ to sex”), vacated sub nom. Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 940 (5th Cir. 2023). Ideology is unlikely to be the explanation for this twist in reasoning. The district court judge, Reed O’Connor, was appointed by President George W. Bush, and is known for striking down the policies of the Biden and Obama administrations. Tierney Sneed, Judge Notorious for Anti-Obamacare Rulings Has Another Crack, CNN (Jan. 28, 2022, 7:56 AM), https://www.cnn.com/2022/01/28/politics/obamacare-reed-oconnor-biden-doj-health/index.html [https://perma.cc/H3G3-TMDH]. ↑
  20.  Compare Katie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621, 1624–25 (2021) (applauding the but-for theory on the ground that it clarifies disparate treatment law and avoids the intent requirement), with Robin Dembroff & Issa Kohler-Hausmann, Supreme Confusion About Causality at the Supreme Court, 25 CUNY L. Rev. 57, 58 (2022) (arguing that Bostock’s but-for test is incoherent and “threaten[s] to limit the reach of antidiscrimination law”), Benjamin Eidelson, Dimensional Disparate Treatment, 95 S. Cal. L. Rev. 785, 794 (2022) (arguing that rather than clarifying disparate treatment law, the but-for theory compounds confusion, is not justified by statutory text, and leads to “untenable results”), and Guha Krishnamurthi, Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law, 108 Va. L. Rev. Online 1, 4, 11 (2022) (arguing “that the Court’s simple but-for causation test, by its own lights, does not advance anti-discrimination law”). ↑
  21.  According to the Westlaw database, Bostock had been cited by 962 federal and state cases as of October 1, 2023. ↑
  22.  This Article reviews cases through October 1, 2023. ↑
  23.  While this is a work of legal scholarship, I draw loose inspiration from anthropological methods. Cf. Annelise Riles, The Network Inside Out 6, 16, 19 (2000) (describing an ethnographic method that attempts to gain access to modern knowledge practices from within, beginning by rendering familiar and mundane artifacts visible for analysis, in contexts in which “thick description” is challenging “because the phenomena are dispersed and the cultures are many”); Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 Buff. L. Rev. 973, 1029–30 (2005) (urging “that the cultural study of legal technology make a methodological commitment not to reduce technology to the politics, culture, history, or personalities surrounding it—that we take the agency of technological form seriously, as a subject on its own terms, as the legal engineers among us do”). ↑
  24.  Bostock itself is an example. Cary Franklin, Living Textualism, 2020 Sup. Ct. Rev. 119, 143 n.106 (pointing out that Bostock could have been justified based on “antisubordinationist and anti-stereotyping arguments,” but these arguments “necessitate more analytical work than the simple anticlassificationist argument, and conservatives generally reject them”). ↑
  25.  See infra Subsection II.A.2. ↑
  26.  See supra note 8 (quoting Bostock v. Clayton County, 140 S. Ct. 1731, 1750 (2020)). ↑
  27.  See infra Subsection II.A.1. ↑
  28.  See, e.g., supra note 19. I note the political affiliations of judges throughout this Article. ↑
  29.  See infra Subsection II.A.1. ↑
  30.  This is a standard criticism of legal formalism. See, e.g., Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 820 (1935) (“In every field of law we should find peculiar concepts which are not defined either in terms of empirical fact or in terms of ethics but which are used to answer empirical and ethical questions alike, and thus bar the way to intelligent investigation of social fact and social policy.”). ↑
  31.  See, e.g., Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1701 (1976) (“The more general and the more formally realizable the rule, the greater the equitable pull of extreme cases of over- or underinclusion.”); Frederick Schauer, Formalism, 97 Yale L.J. 509, 510, 535 (1988) (describing formalism as “the concept of decisionmaking according to rule,” and pointing out that “it is exactly a rule’s rigidity, even in the face of applications that would ill serve its purpose, that renders it a rule”). ↑
  32.  See supra note 23. ↑
  33.  Cf. Toni M. Massaro, Gay Rights, Thick and Thin, 49 Stan. L. Rev. 45, 46–47 (1996) (contrasting “thin” doctrinal arguments that appeal to “principles of neutrality” with “thick” arguments that ask judges to “define, or appear to endorse,” particular sexual orientations). ↑
  34.  Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1, 16 (2000). ↑
  35.  See, e.g., Banks, supra note 6, at 19 (“The effort to arrive at a unitary conception of discrimination would be misguided even if an authoritative single decision maker—say, the United States Supreme Court—propounded the definition. Any single definition would fail to account for the distinctive features of the various settings where claims of racial discrimination might arise.”); Huq, supra note 16, at 1240 (explaining that discriminatory intent is “unavoidabl[y]” “protean and plural”); George Rutherglen, Disaggregated Discrimination and the Rise of Identity Politics, 26 Wm. & Mary J. Race, Gender & Soc. Just. 391, 394–95 (2020) (arguing that the multiplicity of plausible philosophical theories of the wrong of discrimination and “discrepancies” in legal doctrines “counsel against the quest for uniformity based on the essential nature of discrimination”). ↑
  36.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). ↑
  37.  Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020); id. at 1778–83 (Alito, J., dissenting) (noting these among “some of the potential consequences” of Bostock). ↑
  38.  Katie Eyer, Transgender Constitutional Law, 171 U. Pa. L. Rev. 1405, 1405, 1408 (2023) (surveying constitutional transgender rights cases from 2017–2021 and concluding that “recent transgender rights litigation has resulted in important and consistent victories for transgender constitutionalism in the lower and state courts”). ↑
  39.  There have been significant recent losses. See, e.g., Williams ex rel. L.W. v. Skrmetti, No. 23-5600, 2023 WL 6321688, at *23 (6th Cir. Sept. 28, 2023) (reversing grants of preliminary injunctions against Kentucky and Tennessee laws barring gender-affirming health care for transgender minors); Eknes-Tucker v. Governor of Ala., No. 22-11707, 2023 WL 5344981, at *1 (11th Cir. Aug. 21, 2023) (vacating district court’s preliminary injunction of Alabama law prohibiting gender-affirming health care for transgender minors); Kasper ex rel. Adams v. Sch. Bd., 57 F.4th 791, 799–800 (11th Cir. 2022) (en banc) (reversing district court’s conclusions, following a bench trial, that school policy barring a transgender boy from the boys’ restroom violated the Equal Protection Clause and Title IX); Fowler v. Stitt, No. 22-cv-00115, 2023 WL 4010694, at *24 (N.D. Okla. June 8, 2023) (granting motion to dismiss challenge to state policy prohibiting transgender individuals from changing the sex designations on their birth certificates), appeal docketed, No. 23-5080 (10th Cir. July 7, 2023); Gore v. Lee, No. 19-cv-00328, 2023 WL 4141665, at *37 (M.D. Tenn. June 22, 2023) (similar), appeal docketed, No. 23-5669 (6th Cir. July 26, 2023); B.P.J. v. W. Va. State Bd. of Educ., No. 21-cv-00316, 2023 WL 111875, at *10 (S.D. W. Va. Jan. 5, 2023) (denying transgender litigant’s motion for summary judgment in case challenging law forbidding transgender girls from playing girls’ sports in school), argued, No. 23-1078 (4th Cir. Oct. 27, 2023); A.H. ex rel. D.H. v. Williamson Cnty. Bd. of Educ., 638 F. Supp. 3d 821, 837 (M.D. Tenn. Nov. 2, 2022) (denying preliminary injunction in case challenging Tennessee state law barring transgender schoolchildren from using restrooms consistent with their gender identities). ↑
  40.  Adams, 57 F.4th at 846 n.13 (Jill Pryor, J., dissenting) (describing six distinct theories that the majority rejected). ↑
  41.  Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 68, 93 (2022) (noting that the parties had not asserted an equal protection claim in Dobbs and observing that “Justice Alito’s attempt to block an equal protection claim that was not even before the Court in Dobbs is evidence of equality’s power, not its weakness”). ↑
  42.  See Planned Parenthood of the Great Nw. v. State, 522 P.3d 1132, 1198–200 (Idaho 2023) (rejecting equal protection challenges to Idaho law restricting abortion); Siegel et al., supra note 41, at 95–96 (discussing state court decisions on the right to abortion as a matter of gender equality). ↑

  43.  Siegel et al., supra note 41, at 73–74 (explaining that “[t]his is because, for decades, the question has been buried under the substantive due process doctrines regulating abortion . . . , and under federal statutes that prohibit pregnancy discrimination, including by government actors”). ↑

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