A central feature of First Amendment law is the prohibition on content discrimination. It provides that the government generally may not regulate expression on the basis of the message it communicates. It has become commonplace to say that the Supreme Court’s content-discrimination jurisprudence is incoherent—that it has suffered so many complications, elaborations, and exceptions that it looks deeply inconsistent, if not end-determined. This article argues that this criticism is overblown. The case law is united in an overarching concern with subject-matter and viewpoint discrimination. The Court has consistently treated facial classifications of these kinds as suspect. When it examines laws that do not facially discriminate on these bases, covert subject-matter and viewpoint discrimination are its constant concerns, and it has been unwilling to impute them without particular kinds of strong evidence. One may argue that the Court should be doing something different, or that it should be doing what it does in a different way. But to the extent that a major criticism of the existing approach is its lack of coherence, a reevaluation is in order.
Issue 2
The Untold Story of Rhode Island v. Innis: Justice Potter Stewart and the Development of Modern Self-Incrimination Doctrine
Self-incrimination doctrine took a surprising turn in Rhode Island v. Innis (1980). Interpreting the meaning of “interrogation” under Miranda v. Arizona (1966), the Supreme Court ruled expansively: interrogation included words or actions that police should know are likely to elicit an incriminating response from a suspect. Thus, after years of relentless attack, the Burger Court obviated the possibility of overruling Miranda.
Literature is sparse on Innis, though existing analyses suggest that a circuit split on the meaning of “interrogation” and a need to resolve issues left outstanding by Brewer v. Williams (1977), a previous Sixth Amendment right to counsel case that also implicated the Fifth Amendment privilege against self-incrimination, created sufficient pressure to force the Court’s hand. These explanations, however, are deficient: they fail to account for the fact that there were narrower definitions of interrogation that the Innis Court could have chosen and that there existed plausible grounds other than Miranda upon which the Court could have ruled.
This Note argues that two previously unacknowledged factors explain Innis: (1) Justice Potter Stewart—whose legacy in Sixth Amendment jurisprudence gained considerably from an expansive Fifth Amendment ruling; and (2) stare decisis—which garnered Miranda begrudging respect from Court conservatives. By reassessing law literature contemporaneous to Innis, and drawing on Supreme Court cases, briefs, and oral arguments, and previously unavailable primary source material from Justice Stewart’s Supreme Court files, this Note argues convincingly that Innis’s result was predictable and that its impact on self-incrimination jurisprudence was more significant than previously acknowledged.
Toward Recognition of a Monetary Threshold in Campaign Finance Disclosure Law
Laws requiring the disclosure of donor identity have been the one area of campaign finance that the Supreme Court has left virtually untouched, an approach that stands in marked contrast to cases in which the government has attempted to compel the identification of authors of election-related handbills. In the latter cases, the Court applies strict scrutiny to protect First Amendment interests, but applies only intermediate scrutiny in the former.
This has led to inconsistent results, protecting the lone pamphleteer but not the donor of modest means. It has also created substantial confusion and line-drawing problems in lower courts. Many scholars and courts have noted the tension between these two doctrines and some have suggested ways to distinguish them, but none have identified the rationales motivating the Court. A critical assessment of these rationales suggests that lesser scrutiny applied to disclosure of donations is warranted only above a certain substantive threshold amount.
The existence of substantive (that is, more than de minimis) thresholds in disclosure laws—amounts below which public disclosure is not required—would reconcile a fundamental tension between the two doctrines. This Note argues that courts have a role to play by reviewing challenges to these thresholds, and proposes that they apply the intermediate scrutiny test already articulated for disclosure requirements in order to do so. While lower courts have so far refused to review thresholds with anything more than rationality review, this is based on a misguided interpretation of Supreme Court precedent. In evaluating future challenges, this Note contends that courts should evaluate the cogency of governments’ justifications for their thresholds, rather than fashioning the numerical thresholds themselves.