Issue 6

Conflicts of Precedent

The law of the circuit doctrine requires three-judge panels in the federal courts of appeals to give stare decisis effect to past decisions of the circuit, which can only be overruled by the circuit sitting en banc or by the U.S. Supreme Court. This doctrine presents a recurring dilemma for circuit panels: the applicability of circuit precedent that is undermined by, but not conclusively overruled by, intervening Supreme Court precedent. The circuits have developed disparate approaches to addressing these scenarios: some permit three-judge panels to overrule undermined circuit precedent, others require an en banc proceeding to reject circuit precedent that is not unequivocally overruled by the Supreme Court, and still others have an internal procedure for circuit judges to agree on the proper approach.

This Note explores how federal courts of appeals ought to treat undermined-but-not-overruled circuit precedent. It first rejects the potential argument that horizontal stare decisis in the court of appeals is compelled by the Constitution or by statute. As such, the Note explains how the values of uniformity, institutional legitimacy, accuracy, reliance, and judicial economy are served by the practices of vertical and horizontal stare decisis, and it concludes that those values are better served by following vertical precedent than horizontal. Accordingly, this Note argues that circuit panels should apply a presumption in favor of overruling undermined precedent to align circuit doctrine with recent Supreme Court decisions. Moreover, the Note argues that the strength of this presumption should be tailored to the context of the case. By re-orienting the focus of precedent toward Supreme Court decisions rather than contradicted circuit doctrine, the courts of appeals can bring greater uniformity to the content of federal law, enhance efficiency within the legal system, and better enable the Supreme Court to realize its position atop the judicial hierarchy.

I. Introduction

Recall the classic case of Flood v. Kuhn, where the U.S. Supreme Court had to decide whether the Sherman Antitrust Act applied to professional baseball.1 1.407 U.S. 258, 259 (1972).Show More The Court was not writing on a blank slate in Kuhn; fifty years earlier in Federal Baseball Club of Baltimore Inc. v. National League of Professional Baseball Clubs, it held that the Sherman Act did not cover professional baseball.2 2.259 U.S. 200, 209 (1922).Show More But in the meantime, the Supreme Court had interpreted the Sherman Act to reach professional boxing3 3.United States v. Int’l Boxing Club of N.Y., Inc., 348 U.S. 236, 242 (1955).Show More and football.4 4.Radovich v. Nat’l Football League, 352 U.S. 445, 452 (1957). The Supreme Court had also reaffirmed Federal Baseball Club’s holding in Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953) (per curiam), but that case was decided before International Boxing Club or Radovich.Show More By the time of Flood v. Kuhn, Federal Baseball Club was an outlier, and yet the Court adhered to baseball’s unique exemption from antitrust liability on the grounds of stare decisis.5 5.Kuhn, 407 U.S. at 283–84.Show More

Now let’s put a twist on that story. Imagine that at Time 1, a federal court of appeals, rather than the Supreme Court, decided Federal Baseball Club and held professional baseball to be exempt from the Sherman Act. Subsequently at Time 2, the U.S. Supreme Court held that the Sherman Act was applicable to professional boxing and football. At Time 3, the equivalent of Flood v. Kuhn, challenging the continued viability of Federal Baseball Club, comes before the court of appeals. How should the court proceed in light of the Time 2 Supreme Court decisions that cast doubt on, but do not directly overturn, the appellate court’s Time 1 precedent?

This type of case poses a significant dilemma for stare decisis in the federal courts of appeals. Under the law of the circuit doctrine, circuit precedents are binding on that court unless a majority of active judges in the circuit overturn a decision in an en banc proceeding or the precedent is directly overruled by the Supreme Court.6 6.See, e.g., Lewis v. Humboldt Acquisition Corp., 634 F.3d 879, 881 (6th Cir. 2011) (en banc).Show More But in some circuits, when a Supreme Court decision casts doubt on—without directly overruling—a prior circuit precedent, a panel of court of appeals judges can overrule that precedent and bypass an en banc proceeding.7 7.See, e.g.,United States v. Villareal-Amarillas, 562 F.3d 892, 898 n.4 (8th Cir. 2009).Show More In other circuits, a panel’s authority to overrule circuit precedent under these circumstances is very narrowly circumscribed.8 8.See, e.g.,United States v. Staten, 466 F.3d 708, 717–20 (9th Cir. 2006).Show More This type of situation commonly arises when the Supreme Court interprets a statute that bears some relation to the one addressed by a circuit precedent. The issue also presents itself when the Supreme Court interprets the same constitutional or statutory provision as the circuit precedent but considers different factual subject matter.

The problem of undermined-but-not-overruled circuit precedent is a recurring dilemma for federal courts of appeals.9 9.Andrew C. Michaels, Implicit Overruling and Foreign Lost Profits, 25 B.U. J. Sci. & Tech. L. 408, 409 (2019) (“[H]ow might a court choose between following a directly-on-point circuit panel precedent, versus a subsequent Supreme Court case that is less directly on point but arguably overruled that panel precedent? Despite the fact that federal circuit courts (and district courts) are faced with this question on a regular basis, the answer is not clear.”).Show More The Sixth Circuit, for example, recently faced this dilemma in Jacobs v. Alam.10 10.915 F.3d 1028 (6th Cir. 2019).Show More The plaintiff filed a Bivens11 11.Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).Show More action against federal law enforcement agents to recover damages for excessive force, false arrest, malicious prosecution, fabrication of evidence, and civil conspiracy.12 12.Jacobs, 915 F.3d at 1033.Show More The Sixth Circuit (but not the Supreme Court) had previously recognized Bivens claims for damages in all of those contexts.13 13.See Webb v. United States, 789 F.3d 647, 659–60, 666–72 (6th Cir. 2015) (discussing the merits of Bivens actions for malicious prosecution, false arrest, fabrication of evidence, and civil conspiracy); Burley v. Gagacki, 729 F.3d 610, 621 (6th Cir. 2013) (explaining plaintiff’s burden for an excessive force Bivens action).Show More But after those Sixth Circuit decisions, the Supreme Court decided Ziglar v. Abbasi, which concluded that if a case presents a new Bivens context that is “different in a meaningful way from previous Bivens cases decided by [the Supreme] Court,” then the deciding court should not make a Bivens remedy available if there are “special factors counselling hesitation.”14 14.137 S. Ct. 1843, 1857, 1859 (2017) (emphasis added) (quoting Carlson v. Green, 446 U.S. 14, 18 (1980)) (internal quotation marks omitted).Show More The Sixth Circuit panel in Jacobs recognized that had Abbasi not been decided, “defendants’ appeal would have no merit” under circuit precedent.15 15.Jacobs, 915 F.3d at 1036.Show More But although Abbasi did not directly overrule those Bivens circuit precedents,16 16.AccordLoumiet v. United States, 292 F. Supp. 3d 222, 229 (D.D.C. 2017) (rejecting the theory that “after Abbasi, a district court may no longer rely on circuit court precedent recognizing a Bivens cause of action in a context that has not expressly been recognized (or expressly rejected) by the Supreme Court”).Show More the decision called into question whether they were still good law, or whether the court needed to perform a special factors analysis. Ultimately, the Jacobs panel did not “deem these Sixth Circuit precedents inconsistent with Ziglar [v. Abbasi],” and thus, it concluded that it was bound to follow them without resort to a special factors analysis.17 17. Jacobs, 915 F.3d at 1036–39.Show More

The D.C. Circuit, however, took the opposite tack in the context of Bivens claims following Ziglar v. Abbasi. In Loumiet v. United States, the court considered whether to permit a Bivens action for a First Amendment retaliation claim.18 18.948 F.3d 376, 378 (D.C. Cir. 2020).Show More Although the D.C. Circuit had previously recognized Bivens claims in this context,19 19.See, e.g., Haynesworth v. Miller, 820 F.2d 1245, 1255 (D.C. Cir. 1987) (holding that “retaliatory prosecution constitutes an actionable First Amendment wrong redressable under Bivens” (footnote omitted)).Show More the court held that “those cases have been overtaken by Abbasi’s holding that the new-context analysis may consider only Supreme Court decisions approving Bivens actions.”20 20.Loumiet, 948 F.3d at 382.Show More Instead, the D.C. Circuit panel performed a special factors analysis and held that a Bivens remedy was not available for First Amendment retaliation, despite the fact that its own circuit precedents supported a contrary decision.21 21.Id.at 382–86; accordVanderklok v. United States, 868 F.3d 189, 198–99 (3d Cir. 2017) (concluding that “[the circuit’s own] past pronouncements are thus not controlling” in the context of Bivens claims that had not been addressed by the Supreme Court).Show More

While the problem of undermined circuit precedent is frequently presented, the circuits have not developed a sufficiently nuanced framework for handling these challenging cases. The courts of appeals take disparate approaches in addressing these situations, and notably, no circuit tailors its approach to the specific legal context presented by the case.

In light of the motivations behind vertical and horizontal stare decisis, this Note argues that circuit court panels ought to apply a general presumption in favor of overruling an undermined circuit precedent. Importantly, however, special circumstances justify a stronger or weaker application of this general rule. This Note proceeds in four parts. Part II examines how the federal courts of appeals have handled latent conflicts between on-point circuit precedents and intervening Supreme Court cases that undermine those decisions. Part III explores the practice of stare decisis in the American judiciary. It explains the potential constitutional, statutory, and pragmatic sources of vertical and horizontal precedent at the court of appeals level. Part IV proposes an approach for how courts of appeals ought to handle these conflicts grounded in the justifications behind vertical and horizontal stare decisis. Part V concludes.

  1. * J.D., University of Virginia School of Law, 2020. Winner of the Roger and Madeleine Traynor Prize. Special thanks are first owed to my advisor Caleb Nelson, who provided invaluable commentary and direction throughout this project. I would also like to thank those whose feedback further refined the paper, including Hanaa Khan, Jackson Myers, Jonah Panikar, and the rest of the Virginia Law Review’s hard-working staff. Final and most important thanks are owed to my wife, Allyson Dickman, whose editorial assistance and constant encouragement made this Note possible. ↑

  2. 407 U.S. 258, 259 (1972). ↑

  3. 259 U.S. 200, 209 (1922). ↑

  4. United States v. Int’l Boxing Club of N.Y., Inc., 348 U.S. 236, 242 (1955). ↑

  5. Radovich v. Nat’l Football League, 352 U.S. 445, 452 (1957). The Supreme Court had also reaffirmed Federal Baseball Club’s holding in Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953) (per curiam), but that case was decided before International Boxing Club or Radovich. ↑

  6. Kuhn, 407 U.S. at 283–84. ↑

  7. See, e.g., Lewis v. Humboldt Acquisition Corp., 634 F.3d 879, 881 (6th Cir. 2011) (en banc). ↑

  8. See, e.g., United States v. Villareal-Amarillas, 562 F.3d 892, 898 n.4 (8th Cir. 2009). ↑

  9. See, e.g., United States v. Staten, 466 F.3d 708, 717–20 (9th Cir. 2006). ↑

  10. Andrew C. Michaels, Implicit Overruling and Foreign Lost Profits, 25 B.U. J. Sci. & Tech. L. 408, 409 (2019) (“[H]ow might a court choose between following a directly-on-point circuit panel precedent, versus a subsequent Supreme Court case that is less directly on point but arguably overruled that panel precedent? Despite the fact that federal circuit courts (and district courts) are faced with this question on a regular basis, the answer is not clear.”). ↑

  11. 915 F.3d 1028 (6th Cir. 2019). ↑

  12. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). ↑

  13. Jacobs, 915 F.3d at 1033. ↑

  14. See Webb v. United States, 789 F.3d 647, 659–60, 666–72 (6th Cir. 2015) (discussing the merits of Bivens actions for malicious prosecution, false arrest, fabrication of evidence, and civil conspiracy); Burley v. Gagacki, 729 F.3d 610, 621 (6th Cir. 2013) (explaining plaintiff’s burden for an excessive force Bivens action). ↑

  15. 137 S. Ct. 1843, 1857, 1859 (2017) (emphasis added) (quoting Carlson v. Green, 446 U.S. 14, 18 (1980)) (internal quotation marks omitted). ↑

  16. Jacobs, 915 F.3d at 1036. ↑

  17. Accord Loumiet v. United States, 292 F. Supp. 3d 222, 229 (D.D.C. 2017) (rejecting the theory that “after Abbasi, a district court may no longer rely on circuit court precedent recognizing a Bivens cause of action in a context that has not expressly been recognized (or expressly rejected) by the Supreme Court”). ↑

  18. Jacobs, 915 F.3d at 1036–39. ↑

  19. 948 F.3d 376, 378 (D.C. Cir. 2020). ↑

  20. See, e.g., Haynesworth v. Miller, 820 F.2d 1245, 1255 (D.C. Cir. 1987) (holding that “retaliatory prosecution constitutes an actionable First Amendment wrong redressable under Bivens” (footnote omitted)). ↑

  21. Loumiet, 948 F.3d at 382. ↑

  22. Id. at 382–86; accord Vanderklok v. United States, 868 F.3d 189, 198–99 (3d Cir. 2017) (concluding that “[the circuit’s own] past pronouncements are thus not controlling” in the context of Bivens claims that had not been addressed by the Supreme Court). ↑

Firearms, Extreme Risk, and Legal Design: “Red Flag” Laws and Due Process

Extreme risk protection order (“ERPO”) laws—often called “red flag” laws—permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of the Parkland murders, such orders are now authorized by law in nineteen states and the District of Columbia and under consideration in many others. Advocates argue that they provide a tailored, individualized way to deter homicide, suicide, and even mass shootings by providing a tool for law enforcement or others to intervene when harm appears imminent, without having to wait for injury, lethality, or criminal actions to occur. But the laws have also garnered criticism and have become a primary target of the Second Amendment sanctuary movement.

As a matter of constitutional law, the most serious questions about ERPO laws involve not the right to keep and bear arms but due process. Such orders—like domestic violence restraining orders, to which they are often compared—can initially be issued ex parte, and critics often allege that this feature (and others including the burden of proof) raises constitutional problems.

This Article provides a comprehensive analysis of the applicable due process standards and identifies the primary issues of concern. It concludes that, despite some variation, current ERPOs generally satisfy the relevant standards. It also notes those features that are likely to give rise to the strongest challenges. The analysis both builds on and suggests lessons for other areas of regulation where laws are designed so as to lessen extreme risk.

Introduction

What process is due when people who pose an extreme risk of harm to themselves or others are temporarily deprived of a constitutional right? What design choices can legislators make to ensure that such deprivations provide constitutionally adequate protections?

Although such questions have arisen in many different contexts, including domestic violence restraining orders and civil commitments, they are now front and center for what is arguably the most important current development in firearms regulation: the spread of “extreme risk” or “red flag” laws that permit courts to order that firearms be temporarily removed from individuals who pose an imminent risk of harm to themselves or others. Advocates see these laws as an effective, targeted way to save lives while respecting the Second Amendment.1 1.See infra Section I.A.Show More Critics allege that they amount to “pre-crime” punishment and that they violate not only the right to keep and bear arms but also the due process guarantee.2 2.See infra note 159 and accompanying text (“pre-crime” comparison); infra notes 81–88 and accompanying text (Second Amendment critique); infra notes 29–30 (due process critique).Show More In fact, opposition to extreme risk laws has helped fuel the “Second Amendment sanctuary” movement, by which some local governments have pledged their refusal to enforce state and federal gun laws.3 3.Noah Shepardson, America’s Second Amendment Sanctuary Movement Is Alive and Well, Reason (Nov. 21, 2019, 4:00 PM), https://reason.com/2019/11/21/americas-second-amendment-sanctuary-movement-is-alive-and-well/ [https://perma.cc/XKV7-ADF4]; see also Scott Pelley, A Look at Red Flag Laws and the Battle Over One in Colorado, 60 Minutes, CBS News (Nov. 17, 2019), https://www.cbsnews.com/news/red-flag-gun-laws-a-standoff-in-colorado-60-minutes-2019-11-17/ [https://perma.cc/GF5D-BSH2] (examining Second Amendment sanctuaries in Colorado).Show More

Behind the political claims lies an enormously important and difficult set of questions regarding the ways in which the law can be constitutionally designed to account for risky-but-not-criminal behavior. Judges and scholars have long recognized that laws regulating on the basis of future risk raise a different and in many ways harder set of questions than those that, for example, punish prior behavior.4 4.Both categories, of course, may well be based on prior behavior—in the former set, that behavior is evidence of future risk; in the latter, it is the basis for retribution or some other governmental interest.Show More On the one hand, the law often restricts behavior on the basis of predictions. Even basic cost-benefit analysis—which is foundational to the regulatory state5 5.See Richard L. Revesz & Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health9–10 (2008) (noting that the use of cost-benefit analysis has been a contentious issue in regulatory policy making for decades); Cass R. Sunstein, The Cost-Benefit Revolution3–4, 6–7 (2018) (describing how successive Presidents since Ronald Reagan have required that regulations promulgated during their administrations be justified on a cost-benefit basis).Show More—is largely forward-looking. Regulation of risk, in short, is nothing new.6 6.Nor, for that matter, is the notion that regulation often involves trading off one risk against another: denying a firearm to a particular person might lower the risk that he will misuse it, while raising the risk that he will be unable to defend himself in a time of need. For an influential analysis of the tradeoff question, seeRisk Versus Risk: Tradeoffs in Protecting Health and the Environment 3­–5 (John D. Graham & Jonathan Baert Wiener eds., 1995).Show More

But when such regulation intersects with constitutional rights and interests in the absence of a criminal conviction or its equivalent, harder questions arise about the necessary procedures and evidentiary burdens. Intuitively, restraining a person who has harmed others is different from restraining someone who is only at risk of doing so. There is no bright line: civil commitments, restraining orders, and the like all impose significant restraints in an effort to prevent future harms and are not categorically unconstitutional. Scholars have explored those related contexts7 7.For a sampling of the literature regarding involuntary commitments for mental illness, seeDavid L. Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev. 897, 899–900 (1975) (asking “[i]s confinement on the basis of ‘dangerousness’ alone constitutional?” and providing a skeptical answer); Veronica J. Manahan, When Our System of Involuntary Civil Commitment Fails Individuals with Mental Illness: Russell Weston and the Case for Effective Monitoring and Medication Delivery Mechanisms, 28 Law & Psych. Rev. 1, 32 (2004) (“Civil liberty concerns, as evidenced by the extensive due process protections afforded to those facing involuntary commitment, and the state’s interest in protecting all of its citizens, are fundamentally at odds.”); Alexander Tsesis, Due Process in Civil Commitments, 68 Wash. & Lee L. Rev. 253, 300–01 (2011) (arguing that civil commitment should require a beyond-a-reasonable-doubt standard of proof).Scholars have also explored due process protections as they apply to domestic violence restraining orders (“DVROs”) and similar legal restrictions. See, e.g., Shawn E. Fields, Debunking the Stranger-in-the-Bushes Myth: The Case for Sexual Assault Protection Orders, 2017 Wis. L. Rev. 429, 484 (arguing that sexual assault protection orders—which are different from DVROs—“should employ the lower preponderance-of-the-evidence standard to ensure that victims have an effective mechanism to seek prospective relief and governments have an effective tool in combating the sexual assault epidemic” and stating “[h]owever, procedural due process may require a more nuanced approach with respect to the types of evidentiary showings necessary to meet this standard and with the types of prospective relief available to petitioners”).Show More but have only recently devoted attention to these questions in the context of extreme risk laws,8 8.Timothy Zick, The Constitutional Case for “Red Flag” Laws, Jurist (Dec. 6, 2019, 8:39 PM), https://www.jurist.org/commentary/2019/12/timothy-zick-red-flag-laws/ [https://perm a.cc/G3TS-L53G]. Other scholars have looked at the due process implications of other types of similar statutory mechanisms, like DVROs with specific firearm prohibitions, Aaron Edward Brown, This Time I’ll Be Bulletproof: Using Ex Parte Firearm Prohibitions to Combat Intimate-Partner Violence, 50 Colum. Hum. Rts. L. Rev. 159, 196–98 (2019) (arguing that domestic violence ex parteorders for protection that prohibit firearm possession can survive due process challenges), or laws designed to disarm those in the throes of severe mental health crises, Fredrick E. Vars, Symptom-Based Gun Control, 46 Conn. L. Rev. 1633, 1646–47 (2014) (arguing that a law allowing temporary firearm removal from individuals suffering delusions or hallucinations would not violate due process). None, so far, has assessed the new spate of extreme risk laws passed predominantly in the last two years.Show More and this Article is the first to provide an in-depth examination of the due process issues they raise. (These are often called “red flag” laws, though that label might convey a stigma, so we will use the increasingly common “extreme risk” label.9 9.See Red Flag Laws: Examining Guidelines for State Action: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (2019) (statement of Ronald Honberg, Senior Policy Advisor, National Alliance on Mental Illness) (describing the risk that “red flag” language can stigmatize individuals with mental illness).Show More)

In the past two years alone, a dozen states have adopted or expanded such laws. Although the details vary, their form is similar: law enforcement officers or sometimes family members or other professionals can petition a court for an extreme risk protection order (“ERPO”)10 10.In California, the order is known as a “gun violence restraining order” or “GVRO.” Cal. Penal Code § 18100 (Deering Supp. 2020).Show More that would require a person to surrender his or her firearms and refrain from acquiring new ones. After receiving the petition, the court can enter a short-term, ex parte ERPO if the petitioner carries his or her burden of proof (which can range from showing “good cause” to “clear and convincing” evidence11 11.See infra notes 302–09 and accompanying text; see also infra Section II.B (discussing constitutional principles for establishing burden of proof and how they should apply in the ERPO context).Show More). After a full, adversary hearing—at which petitioner again bears the burden of proof—the court can enter a lengthier, but still temporary, ERPO.12 12.See infranote 309 and accompanying text.Show More

Politically and empirically, it is easy to see why such laws are increasingly popular. They provide tailored, individualized risk assessments, rather than regulating people’s access to firearms based on their membership in broad classes like felons or the mentally ill.13 13.See infraSubsection I.B.1.Show MoreAnd although scholars are just beginning to evaluate the effectiveness of these new laws, early studies have shown encouraging results.14 14.See infra notes 70–82 and accompanying text. That extreme risk laws might be effective does not make them a panacea, nor should they distract from other forms of effective gun regulation. SeeJoseph Pomianowski & Ling Liang Dong, Red Flag Laws Are Red Herrings of Gun Control, Wired (Sept. 9, 2019, 9:00 AM), https://www.wired.com/story/red-flag-laws-are-red-herrings-of-gun-control/ [https://perma.cc/PSN8-B2UK].Show More This all points to ERPOs being an increasingly important part of the debate about gun rights and regulation going forward.

Of course, there are critics. Some argue that extreme risk laws violate the right to keep and bear arms.15 15.Ivan Pereira, Lawmaker Introduces ‘Anti-Red Flag’ Bill in Georgia To Combat Gun Control Proposals, ABC News (Jan. 15, 2020, 12:52 PM), https://abcnews.go.com/­US/lawmaker-introduces-anti-red-flag-bill-georgia-combat/story?id=68299434 [https://perm a.cc/7V9S-7CMX] (describing legislation introduced in Georgia to forbid extreme risk laws that bears the title “Anti-Red Flag—Second Amendment Conservation Act”).Show More These critics challenge the very notion of a law that allows disarming individuals who have not committed any crime. District of Columbia v. Heller, after all, said the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”16 16.554 U.S. 570, 635 (2008) (emphasis added).Show More

The focus on the right to keep and bear arms is unsurprising, given the magnetic pull of the Second Amendment in nearly any political or legal discussion of gun regulation; the tendency is often to evaluate any proposed rule related to firearms for its conformity with that right in particular.17 17.See generally Joseph Blocher, Gun Rights Talk, 94 B.U. L. Rev. 813 (2014) (arguing that the invocation of the Second Amendment in debates over proposed gun control laws has defeated many of these measures).Show More But a myopic focus on the Second Amendment unnecessarily flattens the gun debate and minimizes different—and often stronger—constitutional claims.18 18.A federal court in California, for example, blocked on First Amendment grounds a Los Angeles law that would have required city contractors to disclose ties to the NRA. As the NRA put it, the “First Amendment Defends the Second.” See First Amendment Defends the Second, NRA-ILA (Dec. 16, 2019), https://www.nraila.org/articles/20191216/first-amendment-defends-the-second [https://perma.cc/L5TF-6PVS].Show More More generally, it demonstrates the importance of firearms law and scholarship which consider how gun rights intersect with other constitutional rights, including those emanating from the First,19 19.See, e.g., Timothy Zick, Arming Public Protests, 104 Iowa L. Rev. 223, 236–37 (2018) (considering, interalia, the First Amendment rights of speech and assembly and their interaction with the Second Amendment); Luke Morgan, Note, Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations, 68 Duke L.J. 175, 179, 211–13 (2018) (same).Show More Fourth,20 20.See, e.g., Jeffrey Bellin, The Right To Remain Armed, 93 Wash. U. L. Rev. 1, 4–5 (2015) (considering implications for search and seizure).Show More and Fourteenth21 21.See, e.g., Pratheepan Gulasekaram, “The People” of the Second Amendment: Citizenship and the Right to Bear Arms, 85 N.Y.U. L. Rev. 1521, 1538 (2010) (illustrating and analyzing the difficulties of limiting “the people” to non-citizens).Show More Amendments.22 22.Not only do these other rights and interests intersect with the Second Amendment in important ways, but the courts have also borrowed from many of these frameworks when fleshing out the contours of the right to keep and bear arms. SeeJacob D. Charles, Constructing a Constitutional Right: Borrowing and Second Amendment Design Choices, 99 N.C. L. Rev. (forthcoming 2021) (manuscript at 1–2) (on file with the Virginia Law Review) (describing how courts and commentators have borrowed from other constitutional rights domains in creating a framework for the Second Amendment).Show More

In this increasingly rich and diverse area of constitutional law, scholarship, and rhetoric, due process has a particularly notable role to play. Consider the debate over “No Fly No Buy,” which would have forbidden gun purchases by those on the federal terror watch list. The proposal had broad23 23.See, e.g., Press Release, Quinnipiac Univ., Overwhelming Support for No-Fly, No-Buy Gun Law, Quinnipiac University National Poll Finds; Support for Background Checks Tops 90 Percent Again (June 30, 2016), https://poll.qu.edu/national/release-detail?ReleaseID=2364 [https://perma.cc/C74J-XGWG].Show More and bipartisan24 24.David M. Herszenhorn, Bipartisan Senate Group Proposes ‘No Fly, No Buy’ Gun Measure, N.Y. Times (June 21, 2016), https://www.nytimes.com/2016/06/22/us/politics/ senate-gun-control-no-fly-list-terrorism.html [https://perma.cc/4J99-TKVT].Show More political support. Some critics predictably argued that it violated the Second Amendment,25 25.See, e.g., Chris W. Cox, Gun Laws Don’t Deter Terrorists: Opposing View, USA Today (June 14, 2016, 1:01 AM), https://www.usatoday.com/story/opinion/2016/06/13/gun-laws-deter-terrorists-opposing-view/85844946/ [https://perma.cc/Q6S7-9C52].Show More but as a matter of doctrine the more serious objections had to do with due process.26 26.See Hina Shamsi & Christopher Anders, The Use of Error-Prone and Unfair Watchlists Is Not the Way To Regulate Guns in America, ACLU (June 20, 2016, 2:45 PM), https://www.aclu.org/blog/washington-markup/use-error-prone-and-unfair-watchlists-not-way-regulate-guns-america [https://perma.cc/YA9S-NYBS]; see also Joseph Greenlee, No Fly, No Buy (And No Due Process), Federalist Soc’y (Feb. 17, 2016), http://www.fed-soc.org/blog/detail/no-fly-no-buy-and-no-due-process [https://perma.cc/V4U6-7ERV].Show More Partly as a result, the proposal ultimately died in the Senate.27 27.Lisa Mascaro & Jill Ornitz, Senate Rejects New Gun Sales Restrictions, L.A. Times, June 21, 2016, at A8.Show More

A similar dynamic seems to be at work with ERPOs, except that the consequences are far more important, since such laws have been widely adopted.28 28.See infra Section I.A (describing the spread of extreme risk laws).Show More Although the Second Amendment continues to draw much of the attention, the more substantive and pressing concern is whether ERPOs violate gun owners’ due process rights. When the Senate held a hearing in 2019 about possibly providing federal incentives for state extreme risk laws, due process concerns were front and center.29 29.Marianne Levine, Senate GOP Open to States Allowing Narrow Gun Restriction, Politico (Mar. 26, 2019, 1:05 PM), https://www.politico.com/story/2019/03/26/senate-republicans-state-gun-law-reform-1237446 [https://perma.cc/F32F-F6EQ].Show More Indeed, in some areas of the states that have adopted extreme risk laws, local officials have vowed not to implement them. One Colorado sheriff put the critique bluntly: “This is the only bill I know of that allows law enforcement officers to take somebody’s property without due process.”30 30.Governor Polis Signs ERPO Into Law, Delta Cnty. Indep. (Apr. 17, 2019), https://www.deltacountyindependent.com/governor-polis-signs-erpo-into-law-cms-15033 [https://perma.cc/S2N7-NW6M].Show More

But, of course, that assumes the answer to the central question: do extreme risk laws provide due process? If so, then “due process” objections should be recognized for what they are: political rhetoric, rather than doctrinal claims.31 31.To be clear, we do not suppose that there is a bright line between “constitutional” and “political” claims—constitutional law and argument often occur outside the courts, and in fact the Second Amendment provides an especially robust and interesting example in that regard. SeeJacob D. Charles, The Right To Keep and Bear Arms Outside the Second Amendment 7 (Feb. 23, 2020) (unpublished manuscript) (on file with the Virginia Law Review).Show More If not, then no amount of political or empirical support will suffice, and this promising new avenue of gun regulation will be shut down by the courts.

This Article examines that question. Part I explains the spread and substance of current extreme risk laws. The wave of new extreme risk laws has encountered opposition from those who claim, often with little attention to the details of the different statutory regimes and the variety among them, that they violate due process. Part II lays out the relevant requirements of due process and applies that framework to the extreme risk context. Such an analysis can, we hope, be useful to lawmakers, litigants, judges, and scholars interested in designing or evaluating the constitutionality of extreme risk laws. Although we do not undertake an exhaustive or individualized assessment of various state laws, we conclude that the basic structure of existing extreme risk laws satisfies the requirements of due process.

The point of the analysis, however, is not to provide a blanket constitutional defense of extreme risk laws. The goal instead is to identify and explore an engaging set of constitutional issues raised by a new wave of firearm regulations. Those issues, in turn, are relevant to our understanding of how the Constitution intersects with risk regulation, and what options society has to protect itself from potential harms.

  1. * Lanty L. Smith ’67 Professor of Law, Duke University School of Law. ↑
  2. ** Lecturing Fellow & Executive Director, Center for Firearms Law, Duke University School of Law.Many thanks to Saul Cornell, Dave Kopel, Anne Levinson, Darrell Miller, Kelly Roskam, Eric Ruben, Jeff Swanson, Fredrick Vars, Julia Weber, Shawn Fields, and Tim Zick for invaluable comments and feedback, as well as to the participants at the University of Alabama School of Law symposium, “Seeing Red: Risk-Based Gun Regulation.” ↑
  3. See infra Section I.A. ↑
  4. See infra note 159 and accompanying text (“pre-crime” comparison); infra notes 81–88 and accompanying text (Second Amendment critique); infra notes 29–30 (due process critique). ↑
  5. Noah Shepardson, America’s Second Amendment Sanctuary Movement Is Alive and Well, Reason (Nov. 21, 2019, 4:00 PM), https://reason.com/2019/11/21/americas-
    second-amendment-sanctuary-movement-is-alive-and-well/ [https://perma.cc/XKV7-ADF4]; see also Scott Pelley, A Look at Red Flag Laws and the Battle Over One in Colorado, 60 Minutes, CBS News (Nov. 17, 2019), https://www.cbsnews.com/news/red-flag-gun-laws-a-standoff-in-colorado-60-minutes-2019-11-17/ [https://perma.cc/GF5D-BSH2] (examining Second Amendment sanctuaries in Colorado). ↑
  6. Both categories, of course, may well be based on prior behavior—in the former set, that behavior is evidence of future risk; in the latter, it is the basis for retribution or some other governmental interest. ↑
  7. See Richard L. Revesz & Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health
    9

    –

    10

    (2008) (noting that the use of cost-benefit analysis has been a contentious issue in regulatory policy making for decades); Cass R. Sunstein, The Cost-Benefit Revolution

    3

    –

    4, 6–7

    (2018) (describing how successive Presidents since Ronald Reagan have required that regulations promulgated during their administrations be justified on a cost-benefit basis). ↑

  8. Nor, for that matter, is the notion that regulation often involves trading off one risk against another: denying a firearm to a particular person might lower the risk that he will misuse it, while raising the risk that he will be unable to defend himself in a time of need. For an influential analysis of the tradeoff question, see Risk Versus Risk: Tradeoffs in Protecting Health and the Environment 3­–5 (John D. Graham & Jonathan Baert Wiener eds., 1995). ↑
  9. For a sampling of the literature regarding involuntary commitments for mental illness, see David L. Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev
    .

    897, 899–900 (1975) (asking “[i]s confinement on the basis of ‘dangerousness’ alone constitutional?” and providing a skeptical answer); Veronica J. Manahan, When Our System of Involuntary Civil Commitment Fails Individuals with Mental Illness: Russell Weston and the Case for Effective Monitoring and Medication Delivery Mechanisms, 28 Law & Psych. Rev

    .

    1, 32 (2004) (“Civil liberty concerns, as evidenced by the extensive due process protections afforded to those facing involuntary commitment, and the state’s interest in protecting all of its citizens, are fundamentally at odds.”); Alexander Tsesis, Due Process in Civil Commitments, 68 Wash. & Lee L. Rev

    .

    253, 300–01 (2011) (arguing that civil commitment should require a beyond-a-reasonable-doubt standard of proof).

    Scholars have also explored due process protections as they apply to domestic violence restraining orders (“DVROs”) and similar legal restrictions. See, e.g., Shawn E. Fields, Debunking the Stranger-in-the-Bushes Myth: The Case for Sexual Assault Protection Orders, 2017 Wis. L. Rev. 429, 484 (arguing that sexual assault protection orders—which are different from DVROs—“should employ the lower preponderance-of-the-evidence standard to ensure that victims have an effective mechanism to seek prospective relief and governments have an effective tool in combating the sexual assault epidemic” and stating “[h]owever, procedural due process may require a more nuanced approach with respect to the types of evidentiary showings necessary to meet this standard and with the types of prospective relief available to petitioners”). ↑

  10. Timothy Zick, The Constitutional Case for “Red Flag” Laws, Jurist (Dec. 6, 2019, 8:39 PM), https://www.jurist.org/commentary/2019/12/timothy-zick-red-flag-laws/ [https://perm a.cc/G3TS-L53G]. Other scholars have looked at the due process implications of other types of similar statutory mechanisms, like DVROs with specific firearm prohibitions, Aaron Edward Brown, This Time I’ll Be Bulletproof: Using Ex Parte Firearm Prohibitions to Combat Intimate-Partner Violence, 50 Colum. Hum. Rts. L. Rev. 159, 196–98 (2019) (arguing that domestic violence ex parte orders for protection that prohibit firearm possession can survive due process challenges), or laws designed to disarm those in the throes of severe mental health crises, Fredrick E. Vars, Symptom-Based Gun Control, 46 Conn. L. Rev
    .

    1633, 1646–47 (2014) (arguing that a law allowing temporary firearm removal from individuals suffering delusions or hallucinations would not violate due process). None, so far, has assessed the new spate of extreme risk laws passed predominantly in the last two years. ↑

  11. See Red Flag Laws: Examining Guidelines for State Action: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (2019) (statement of Ronald Honberg, Senior Policy Advisor, National Alliance on Mental Illness) (describing the risk that “red flag” language can stigmatize individuals with mental illness). ↑
  12. In California, the order is known as a “gun violence restraining order” or “GVRO.” Cal. Penal Code § 18100 (Deering Supp. 2020). ↑
  13. See infra notes 302–09 and accompanying text; see also infra Section II.B (discussing constitutional principles for establishing burden of proof and how they should apply in the ERPO context). ↑
  14. See infra note 309 and accompanying text. ↑
  15. See infra Subsection I.B.1. ↑
  16. See infra notes 70–82 and accompanying text. That extreme risk laws might be effective does not make them a panacea, nor should they distract from other forms of effective gun regulation. See Joseph Pomianowski & Ling Liang Dong, Red Flag Laws Are Red Herrings of Gun Control, Wired (Sept. 9, 2019, 9:00 AM), https://www.wired.com/story/red-flag-laws-are-red-herrings-of-gun-control/ [https://perma.cc/PSN8-B2UK]. ↑
  17. Ivan Pereira, Lawmaker Introduces ‘Anti-Red Flag’ Bill in Georgia To Combat Gun Control Proposals, ABC News (Jan. 15, 2020, 12:52 PM), https://abcnews.go.com/­US/lawmaker-introduces-anti-red-flag-bill-georgia-combat/story?id=68299434 [https://perm a.cc/7V9S-7CMX] (describing legislation introduced in Georgia to forbid extreme risk laws that bears the title “Anti-Red Flag—Second Amendment Conservation Act”). ↑
  18. 554 U.S. 570, 635 (2008) (emphasis added). ↑
  19. See generally Joseph Blocher, Gun Rights Talk, 94 B.U. L. Rev. 813 (2014) (arguing that the invocation of the Second Amendment in debates over proposed gun control laws has defeated many of these measures). ↑
  20. A federal court in California, for example, blocked on First Amendment grounds a Los Angeles law that would have required city contractors to disclose ties to the NRA. As the NRA put it, the “First Amendment Defends the Second.” See First Amendment Defends the Second, NRA-ILA (Dec. 16, 2019), https://www.nraila.org/articles/20191216/first-amendment-defends-the-second [https://perma.cc/L5TF-6PVS]. ↑
  21. See, e.g., Timothy Zick, Arming Public Protests, 104 Iowa L. Rev. 223, 236–37 (2018) (considering, inter alia, the First Amendment rights of speech and assembly and their interaction with the Second Amendment); Luke Morgan, Note, Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations, 68 Duke L.J
    .

    175, 179, 211–13 (2018) (same). ↑

  22. See, e.g., Jeffrey Bellin, The Right To Remain Armed, 93 Wash. U. L. Rev
    .

    1, 4–5 (2015) (considering implications for search and seizure). ↑

  23. See, e.g., Pratheepan Gulasekaram, “The People” of the Second Amendment: Citizenship and the Right to Bear Arms, 85 N.Y.U. L. Rev
    .

    1521, 1538 (2010) (illustrating and analyzing the difficulties of limiting “the people” to non-citizens). ↑

  24. Not only do these other rights and interests intersect with the Second Amendment in important ways, but the courts have also borrowed from many of these frameworks when fleshing out the contours of the right to keep and bear arms. See Jacob D. Charles, Constructing a Constitutional Right: Borrowing and Second Amendment Design Choices, 99 N.C. L. Rev. (forthcoming 2021) (manuscript at 1–2) (on file with the Virginia Law Review) (describing how courts and commentators have borrowed from other constitutional rights domains in creating a framework for the Second Amendment). ↑
  25. See, e.g., Press Release, Quinnipiac Univ., Overwhelming Support for No-Fly, No-Buy Gun Law, Quinnipiac University National Poll Finds; Support for Background Checks Tops 90 Percent Again (June 30, 2016), https://poll.qu.edu/national/release-detail?ReleaseID=2364 [https://perma.cc/C74J-XGWG]. ↑
  26. David M. Herszenhorn, Bipartisan Senate Group Proposes ‘No Fly, No Buy’ Gun Measure, N.Y. Times (June 21, 2016), https://www.nytimes.com/2016/06/22/us/politics/ senate-gun-control-no-fly-list-terrorism.html [https://perma.cc/4J99-TKVT]. ↑
  27. See, e.g., Chris W. Cox, Gun Laws Don’t Deter Terrorists: Opposing View, USA Today (June 14, 2016, 1:01 AM), https://www.usatoday.com/story/opinion/2016/06/13/gun-laws-deter-terrorists-opposing-view/85844946/ [https://perma.cc/Q6S7-9C52]. ↑
  28. See Hina Shamsi & Christopher Anders, The Use of Error-Prone and Unfair Watchlists Is Not the Way To Regulate Guns in America, ACLU (June 20, 2016, 2:45 PM), https://www.aclu.org/blog/washington-markup/use-error-prone-and-unfair-watchlists-not-way-regulate-guns-america [https://perma.cc/YA9S-NYBS]; see also Joseph Greenlee, No Fly, No Buy (And No Due Process), Federalist Soc’y (Feb. 17, 2016), http://www.fed-soc.org/blog/detail/no-fly-no-buy-and-no-due-process [https://perma.cc/V4U6-7ERV]. ↑
  29. Lisa Mascaro & Jill Ornitz, Senate Rejects New Gun Sales Restrictions, L.A. Times
    ,

    June 21, 2016, at A8. ↑

  30. See infra Section I.A (describing the spread of extreme risk laws). ↑
  31. Marianne Levine, Senate GOP Open to States Allowing Narrow Gun Restriction, Politico (Mar. 26, 2019, 1:05 PM), https://www.politico.com/story/2019/03/26/senate-republicans-state-gun-law-reform-1237446 [https://perma.cc/F32F-F6EQ]. ↑
  32. Governor Polis Signs ERPO Into Law, Delta Cnty. Indep. (Apr. 17, 2019), https://www.deltacountyindependent.com/governor-polis-signs-erpo-into-law-cms-15033 [https://perma.cc/S2N7-NW6M]. ↑
  33. To be clear, we do not suppose that there is a bright line between “constitutional” and “political” claims—constitutional law and argument often occur outside the courts, and in fact the Second Amendment provides an especially robust and interesting example in that regard. See Jacob D. Charles, The Right To Keep and Bear Arms Outside the Second Amendment 7 (Feb. 23, 2020) (unpublished manuscript) (on file with the Virginia Law Review). ↑

Weaponizing the First Amendment: An Equality Reading

This Article traces how and why the First Amendment has gone from a shield of the powerless to a sword of the powerful in the past hundred years. The central doctrinal role of “content neutrality” and “viewpoint neutrality” in this development is analyzed; the crucial tipping points of anti-Semitism, in Collin v. Smith, and pornography, in Hudnut v. American Booksellers, are identified. The potential for substantive equality to promote freedom of speech is glimpsed.

Once a defense of the powerless, the First Amendment1 1.U.S. Const. amend. I.Show More over the last hundred years has mainly become a weapon of the powerful. Starting toward the beginning of the twentieth century, a protection that was once persuasively conceived by dissenters as a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers, and corporations buying elections in the dark.2 2.All the examples in this sentence are discussed in this Article except the last, which is exemplified by Citizens United v. FEC, 558 U.S. 310 (2010), and preceding cases, discussion of which is beyond the scope of this Article.Show More In public discourse, with which these legal developments are tightly connected, freedom of speech has at the same time gone from a rallying cry for protesters against dominant power to a claimed immunity of those who hold dominant power. Thus weaponized,3 3.Justice Elena Kagan spoke of “weaponizing” the First Amendment in a dissenting opinion contending that fees assessed by statute by public employee unions on all who benefitted from their collective bargaining should have been permitted rather than invalidated under the First Amendment: “There is no sugarcoating today’s opinion. The majority . . . prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting). Although the power alignments in her recognition parallel those argued here, I am not claiming that Justice Kagan agrees with the analysis in this Article.Show More the First Amendment has morphed from a vaunted entitlement of structurally unequal groups to have their say, to expose their inequality, and to seek equal rights, to a claim by dominant groups to impose and exploit their hegemony.

On the social level of the speech itself, dominant groups promoting ideologies of supremacy have solidified and enhanced their power through inaccurately but successfully positioning themselves as marginal powerless dissenters, or as debaters just expressing ideas. As much public speech has accordingly escalated in its abusiveness, markedly on social media, from racist dog whistles and worse through sexual objectification and worse, to some electoral and other political assaults and invitations to violence, a First Amendment appeal is often used to support dominant status and power, backing white supremacy and masculinist misogynistic attacks in particular. Voices challenging inequality on campuses and in media as well as on streets, in communities, in social media, and in courts are frequently effectively muted and exposed to further abuse and silenced through subordinating aggression, including verbal, physical, and legal threats, in the name of freedom of speech. And everyone wonders, how did we get here?

In law, the doctrinal pivot of this twisted development turns on a vicious irony. The very First Amendment doctrine that has supported intensifying hierarchies of power in its results is founded in a purported equality principle. Starting in the 1970s, the First Amendment began to build a doctrine of content neutrality, extended (where applicable) to viewpoint neutrality, said to be predicated on equality.4 4.As traced in detail below, this trajectory went from Schacht v. United States, 398 U.S. 58 (1970), to Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), to Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20 (1975), as recounted in Geoffrey R. Stone, Kenneth Karst’sEquality as a Central Principle in the First Amendment, 75 U. Chi. L. Rev. 37 (2008). None identifies the “equality” being applied as formal equality, which it is.Show More Neutrality has become its principal tool, overwhelming even its few substantive recognitions. Content neutrality, like gender neutrality or racial neutrality (often termed colorblindness) under the Equal Protection Clause,5 5.U.S. Const.amend. XIV, § 1. For discussion, see Catharine A. MacKinnon, Feminism Unmodified 33–37, 55, 71–74, 164–67, 275 n.6 (1987), and Catharine A. MacKinnon, Sex Equality (3d ed. 2016).Show More is rooted in the abstract Aristotelian notion of formal equality, which can distinguish sameness from difference within a prescribed range, but lacks substantive comprehension or direction. Absent the injection of substance—considered non-neutral, hence non-principled and prohibited by this doctrine—this doctrine has proven to be an instrument of reproduction of the status quo, incapable of reliably distinguishing social dominance from subordination, thus maintaining that dominance. That is, it is incapable of seeing hierarchy, markedly the rank ordering of white over not white, of male and masculine over female and feminine, that (among many other inequalities) defines inequality in reality.6 6.See, e.g., Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 27 (2011); Catharine A. MacKinnon, Substantive Equality Past and Future: The Canadian Charter Experience, in Canada in the World: Comparative Perspectives on the Canadian Constitution 227, 227–44 (Richard Albert & David R. Cameron eds., 2018) [hereinafter MacKinnon, Substantive Equality Past and Future]; Catharine A. MacKinnon, Substantive Equality Revisited: A Reply to Sandra Fredman, 14 Int’l J. Const. L. 739 (2016); Catharine A. MacKinnon, Substantive Equality Revisited: A Rejoinder to Sandra Fredman, 15 Int’l J. Const. L. 1174 (2017).Show More So this law has proven unable to support opposition to the way things are, or to counter and change it.

An inadequate approach to power, resulting in an incapacity to identify substantive inequality when it animates First Amendment cases—including a failure to identify inequality in these cases at all—is a major part of the underlying story of the First Amendment’s transformation. Being unable to tell the difference between power and powerlessness relatively speaking—for instance, being unable to identify the deployment of racial and/or gender-based terrorism through historically unambiguous means, that is, a determined blindness to social reality—has become firmly entrenched in the First Amendment, and the social discourse invoking it, as the virtue termed “neutrality.” Inevitably, existing unequal social arrangements, namely structures and practices of inequality, sometimes in aggressive forms, are thereby protected.

The First Amendment, firmly ensconced within the liberal tradition, tends reflexively to see power as residing in the state, which it sees as power’s fountainhead.7 7.This ground zero assumption is so fundamental it is virtually impossible to find articulated explicitly because it operates as unconscious ideology. It is most visible in the choice, when discussing power, only to argue for the legitimacy of state power, that is, the principal power seen to exist, as well as in the relative absence of analysis, for example, of male power (Locke analyzes it in the family only to justify it) or white privilege. See, e.g., John Rawls, Political Liberalism 136 (1996) (“[P]olitical power is always coercive power backed by the government’s use of sanctions, for government alone has the authority to use force in upholding its laws.”); Robert Nozick, Anarchy, State, and Utopia 23 (1974) (“A state claims a monopoly on deciding who may use force when; it says that only it may decide who may use force and under what conditions; it reserves to itself the sole right to pass on the legitimacy and permissibility of any use of force within its boundaries[.]”); Ronald Dworkin, Law’s Empire 188, 190–92 (1986). Given how much violence against women occurs that is no less effectively coercive for being extra-legal, this is all mythic.Show More In liberalism, power, rendered “coercive power,” is seen as emanating nearly exclusively from government; society, absent intrusion by the state, is deemed free. Freedom—here, freedom of speech—thus becomes about protecting existing social arrangements, which includes inequalities of power in society, from the state. This includes protecting inequality when the state supports intervention to address that inequality by means of, for example, civil laws against discrimination that include an expressive element.8 8.This is not always the case. For examples of a lesser but nonetheless existing line of authority, see Part II’s discussion of Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973), and Roberts v. United States Jaycees, 468 U.S. 609 (1984).Show More As a result, statutes that aim (for example) to protect socially disempowered and discriminated-against social groups from inequality imposed through speech or expressive conduct, violent or otherwise, because they are statutes, are seen to turn those harmed by such conduct into actors with power, as if they are the state. The statutes are legally mispositioned this way instead of recognizing them as attempted legal interventions on behalf of subordinated social groups, passed in an attempt to shift or mitigate their relative powerlessness, or to shield them from its violent excesses. Social relations are overwhelmingly not grasped as a locus or source or wellspring of power, hence of its inequality. The blinkering or overtly prohibiting of any explicit statutory recognition of grounds of substantive equality such as race or sex—First Amendment rulings considering their realities instead to be “discussions of” those “topics” or “ideas about” those realities9 9.See infra text accompanying notes 91–104 (focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)); infra text accompanying notes 158–62 (focusing on Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem.,475 U.S. 1001 (1986)).Show More—implements this assumption.10 10.Infra Part II discusses this, focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).Show More

The absence of an operative substantive theory of social equality is thus—in the guise of equality, no less—embedded in the First Amendment’s content neutrality. Few if any of its outcomes are neutral as to content, however, and its doctrine of viewpoint neutrality misses the many times dominant viewpoints are obscured while being protected. The upshot is that this doctrine, systematically implemented, protects “speech” that promotes substantive social inequality as it currently exists.11 11.See infra Part II.Show More Claiming freedom of speech, practices of inequality are converted into expressions of ideas about inequality, transforming actionable discrimination into protectable “speech.”

Opposition to discriminatory practices becomes censorship of thoughts or ideas on one side of a discussion. In this light, because discrimination, including through expressive acts of the powerful and advantaged, silences the speech of disadvantaged and subordinated groups as well as promotes their disadvantage and actualizes their subordination, neutrality as a doctrinal approach supports the status quo distribution of social power under the First Amendment just as effectively as it largely does under the Equal Protection Clause, where neutrality became the mainstream doctrine during roughly the same time period.12 12.As discussed in infra Part III, watershed public debates and judicial decisions in this respect revolved around two Seventh Circuit cases on which certiorari was denied concerning, substantively, anti-Semitism and commercialized misogyny: a permitting restriction applied to Nazis marching in Skokie, Illinois, see Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978), and a civil statute recognizing harms of pornography as sex discrimination,see Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem.,475 U.S. 1001 (1986).Show More

If substantive inequality is all but invisible in the text of First Amendment doctrine and commentary, it is vividly visible in the facts of many, even most, First Amendment cases, if read through a substantive inequality lens. In early First Amendment cases, asymmetrical harms of what amounts to inequalities, if not so called, were clearly recognized. Passing without notice or comment, over time the underlying alignments of power, seen in substantive terms, have been reversed. Originally, the statutes suppressing speech sided with state power; those they silenced were its critics. Increasingly, the statutes subjected to First Amendment attack have sided with the powerless and have been attacked by those with power, claiming to be powerless dissenters. Power’s victims were those the statutes aimed to protect or those whose victimization the statutes aimed to remedy. But the statutes have been legally invalidated as First Amendment violations either as applied or on their face by representatives of social dominance, claiming the mantle of the powerless and dispossessed.

  1. * The insightful assistance of Lori Watson and Lisa Cardyn, of Max Waltman (especially in helping to wrestle the vast empirical materials on the harms of pornography below the line), and of Lori Interlicchio for her tremendous help with footnote form and accuracy, is gratefully acknowledged. The essential University of Michigan Law Library and the Cook Fund supported my work beyond measure, always being there. Deliveries of the core ideas at the First Amendment conference at Columbia University sponsored by Vince Blasi in November, 2019, and at The McCorkle Lecture at the University of Virginia, February 6, 2020, produced clarifying discussions. A preliminary sketch appears in The Free Speech Century 140 (Lee Bollinger & Geoffrey Stone eds., 2019). Lee and Geoff practice freedom of expression, contrasting with goose-steppers to First Amendment fundamentalism. Overcoming the best efforts of the latter, this Article is finally being published in full. The Virginia Law Review has my gratitude for courage, principle, and independent thinking, as well as for precision, persistence, and undaunted hard work at a time of challenge. This Article is dedicated to the memory of my teacher and dear friend, Thomas I. Emerson. ↑
  2. U.S. Const. amend. I. ↑
  3. All the examples in this sentence are discussed in this Article except the last, which is exemplified by Citizens United v. FEC, 558 U.S. 310 (2010), and preceding cases, discussion of which is beyond the scope of this Article. ↑
  4. Justice Elena Kagan spoke of “weaponizing” the First Amendment in a dissenting opinion contending that fees assessed by statute by public employee unions on all who benefitted from their collective bargaining should have been permitted rather than invalidated under the First Amendment: “There is no sugarcoating today’s opinion. The majority . . . prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting). Although the power alignments in her recognition parallel those argued here, I am not claiming that Justice Kagan agrees with the analysis in this Article. ↑
  5. As traced in detail below, this trajectory went from Schacht v. United States, 398 U.S. 58 (1970), to Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), to Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20 (1975), as recounted in Geoffrey R. Stone, Kenneth Karst’s Equality as a Central Principle in the First Amendment, 75 U. Chi. L. Rev. 37 (2008). None identifies the “equality” being applied as formal equality, which it is. ↑
  6.  U.S. Const.
     

    amend. XIV, § 1. For discussion, see Catharine A. MacKinnon, Feminism Unmodified 33–37, 55, 71–74, 164–67, 275 n.6 (1987), and Catharine A. MacKinnon, Sex Equality (3d ed. 2016). ↑

  7. See, e.g., Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 27 (2011); Catharine A. MacKinnon, Substantive Equality Past and Future: The Canadian Charter Experience, in Canada in the World: Comparative Perspectives on the Canadian Constitution 227, 227–44 (Richard Albert & David R. Cameron eds., 2018) [hereinafter MacKinnon, Substantive Equality Past and Future]; Catharine A. MacKinnon, Substantive Equality Revisited: A Reply to Sandra Fredman, 14 Int’l J. Const. L. 739 (2016); Catharine A. MacKinnon, Substantive Equality Revisited: A Rejoinder to Sandra Fredman, 15 Int’l J. Const. L.
    1174 (2017)

    . ↑

  8. This ground zero assumption is so fundamental it is virtually impossible to find articulated explicitly because it operates as unconscious ideology. It is most visible in the choice, when discussing power, only to argue for the legitimacy of state power, that is, the principal power seen to exist, as well as in the relative absence of analysis, for example, of male power (Locke analyzes it in the family only to justify it) or white privilege. See, e.g., John Rawls, Political Liberalism 136 (1996) (“[P]olitical power is always coercive power backed by the government’s use of sanctions, for government alone has the authority to use force in upholding its laws.”); Robert Nozick, Anarchy, State, and Utopia 23 (1974) (“A state claims a monopoly on deciding who may use force when; it says that only it may decide who may use force and under what conditions; it reserves to itself the sole right to pass on the legitimacy and permissibility of any use of force within its boundaries[.]”); Ronald Dworkin, Law’s Empire 188, 190–92 (1986). Given how much violence against women occurs that is no less effectively coercive for being extra-legal, this is all mythic. ↑
  9. This is not always the case. For examples of a lesser but nonetheless existing line of authority, see Part II’s discussion of Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973), and Roberts v. United States Jaycees, 468 U.S. 609 (1984). ↑
  10. See infra text accompanying notes 91–104 (focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)); infra text accompanying notes 158–62 (focusing on Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986)). ↑
  11. Infra Part II discusses this, focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). ↑
  12. See infra Part II. ↑
  13. As discussed in infra Part III, watershed public debates and judicial decisions in this respect revolved around two Seventh Circuit cases on which certiorari was denied concerning, substantively, anti-Semitism and commercialized misogyny: a permitting restriction applied to Nazis marching in Skokie, Illinois, see Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978), and a civil statute recognizing harms of pornography as sex discrimination, see Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986). ↑
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