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Eugene Volokh - One of the best experts on this subject based on the ideXlab platform.
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Freedom of Speech, Shielding Children, and Cost-Benefit Comparisons
1997Co-Authors: Eugene VolokhAbstract:The Court has long accepted that the government has a strong interest in shielding children from speech that's supposedly unsuitable for them, for instance speech that's sexually explicit or profane. But the Court has also long accepted that such speech does have substantial First Amendment value. The question thus becomes: How is the Court to reconcile the strong claim of government interest with the strong claim of First Amendment rights? The conventional answer, which the Court followed in the recent cyberspace indecency case (Reno v. ACLU), is that the court must apply "Strict Scrutiny" -- must uphold the law if and only if it's the least reStrictive means of serving the government interest. In this article, I make four claims: 1. Though the Court's result in Reno was right, its application of Strict Scrutiny was less than candid. 2. Under a more accurate application of Strict Scrutiny, the Court might well have had to uphold the Communications Decency Act. In my view, this suggests that Strict Scrutiny is itself an unsound test for such cases. 3. There are several different alternatives for dealing with speech reStrictions aimed at shielding children; the best one is probably something analogous to the Court's "undue burden" (or, more precisely, "substantial burden") test. 4. This criticism of the Court's "Strict Scrutiny" approach also applies to other kinds of speech reStrictions. Strict Scrutiny is generally an unsound approach to free speech cases; I offer some suggestions for a possible framework to replace it.
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Freedom of Speech, Shielding Children, and Transcending Balancing
Supreme Court Review, 1997Co-Authors: Eugene VolokhAbstract:The Court has long accepted that the government has a strong interest in shielding children from speech that's supposedly unsuitable for them, for instance speech that's sexually explicit or profane. But the Court has also long accepted that such speech does have substantial First Amendment value. The question thus becomes: How is the Court to reconcile the strong claim of government interest with the strong claim of First Amendment rights? The conventional answer, which the Court followed in the recent cyberspace indecency case (Reno v. ACLU), is that the court must apply "Strict Scrutiny" -- must uphold the law if and only if it's the least reStrictive means of serving the government interest. In this article, I make four claims: 1. Though the Court's result in Reno was right, its application of Strict Scrutiny was less than candid. 2. Under a more accurate application of Strict Scrutiny, the Court might well have had to uphold the Communications Decency Act. In my view, this suggests that Strict Scrutiny is itself an unsound test for such cases. 3. There are several different alternatives for dealing with speech reStrictions aimed at shielding children; the best one is probably something analogous to the Court's "undue burden" (or, more precisely, "substantial burden") test. 4. This criticism of the Court's "Strict Scrutiny" approach also applies to other kinds of speech reStrictions. Strict Scrutiny is generally an unsound approach to free speech cases; I offer some suggestions for a possible framework to replace it.
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freedom of speech permissible tailoring and transcending Strict Scrutiny
University of Pennsylvania Law Review, 1996Co-Authors: Eugene VolokhAbstract:The Court has long said that content-based speech reStrictions are constitutional if they're narrowly tailored to a compelling state interest. This Article argues that the official doctrine is wrong, both descriptively and normally: There are cases where the Court would and should strike down laws *even though* they're narrowly tailored to a compelling interest. The Article makes two alternative proposals. One is that the Court add a third prong to the Strict Scrutiny framework: The question must be whether the law is *permissibly tailored* -- whether, even if it's aimed at compelling ends, and even if the means are practically well-suited to those ends, the means still operate in an impermissible way. The other, which the Article most strongly recommends, is that the Court abandon means-ends Scrutiny here, and instead shift to a system of categorical rules with categorical exceptions. This system is already in play in other areas of con law, and even in free speech law generally. And it should operate more effectively than the means-ends Scrutiny the Court claims to be using. The Article also suggests (without going into that much detail) that Strict Scrutiny may have similar flaws in the race classifications area and in the religious freedom area.
Chinyere Ezie - One of the best experts on this subject based on the ideXlab platform.
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deconstructing the body transgender and intersex identities and sex discrimination the need for Strict Scrutiny
Columbia journal of gender and law, 2017Co-Authors: Chinyere EzieAbstract:Sex is documented, administered, and adjudicated via a network of statutes, regulations, and administrative rules that is astonishing for both its inconsistencies and its complexity. (1) Courts and agencies tasked with issuing identity documents, or determining who qualifies as a spouse for the purposes of marriage licenses or same-sex marriage bans, routinely adjudicate the question of sex--employing "common sense" approaches to determine whether a person is "male" or "female." (2) For transgender persons seeking new drivers' licenses or other forms of official recognition, (3) the folkways of sex can be particularly dire because courts have naturalized both the idea of binary sex and the impossibility of sex reassignment. In refusing to recognize a transgender woman as a legal woman, a Texas appeals court exclaimed, "There are some things we cannot will into being. They just are." (4) The Kansas Supreme Court followed suit, stating: "[W]e recognize that J'Noel has traveled a long and difficult road. J'Noel has undergone electrolysis, thermolysis, tracheal shave, hormone injections, extensive counseling, and reassignment surgery. Unfortunately, after all that, J'Noel remains a transsexual, and a male." (5) Yet, despite our collective belief in the inevitability of sex and the categories "male" and "female," sex identities evade binary categorization and neat, tidy description even at the level of biology. Every year, thousands of infants are born intersex, with bodies that fuse the chromosomes, hormones, gonads, genitals, internal sex organs, and secondary sex characteristics typically thought to be defining of "male" and "female." (6) Every year, thousands of adults also seek to change their sex--resisting the notion that sex is fixed and accurately determined at birth. (7) In addition, even those who grow up secure in their identities as "male" or "female" are assigned to a sex category, not by karyotyping, (8) but by cursory inspection of their genitals at birth, so that their anxious parents can know whether to swaddle them in a pink or blue blanket. These phenomena challenge the very foundation of sex; indeed, as one researcher has noted, "any close study of sexual anatomy results in a loss of faith that there is a simple, 'natural' sex distinction that will not break down in the face of certain anatomical, behavioral, or philosophical challenges." (9) Faced with the true complexity of sex identity and sex difference, binary sex classifications can only be viewed as a social construct that disciplines the body in ways that defy logic, compassion, and medical science. (10) This Article breaks new ground by proposing a new equal protection doctrine that takes cognizance of the realities of sex, and regards sex categories as a suspect classification, not based on immutability, but on ground of sex categories' very imprecision. In arguing that sex should be accorded Strict, not intermediate, Scrutiny, this Article takes note of the parallels between sex discrimination and race discrimination--parallels that emerge when binary sex classification is understood to be neither innate nor natural. Viewed through this lens, demanding that people be officially classified by sex is just as invidious as maintaining registries of racial composition, a now disavowed practice. (11) Part I of this Article explores myths and realities of sex difference and examines how binary conceptions of sex break down. Turning to transgender and intersex identities, this Part explores the way that science and medicine manage and discipline unruly bodies in an effort to deny the pluralism of sexual identities that truly exists. It also focuses on law's complicity--examining how courts and administrative agencies have naturalized the notion of "male" and "female" and perpetuated myths of innate sex difference. Part II urges the adoption of a new equal protection standard for sex--a constitutional doctrine that recognizes the way that the categories of male and female are socially constructed, and regards sex classifications as suspect because of their arbitrariness. …
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Deconstructing the Body: Transgender and Intersex Identities and Sex Discrimination – The Need for Strict Scrutiny
Columbia journal of gender and law, 2017Co-Authors: Chinyere EzieAbstract:Sex is documented, administered, and adjudicated via a network of statutes, regulations, and administrative rules that is astonishing for both its inconsistencies and its complexity. (1) Courts and agencies tasked with issuing identity documents, or determining who qualifies as a spouse for the purposes of marriage licenses or same-sex marriage bans, routinely adjudicate the question of sex--employing "common sense" approaches to determine whether a person is "male" or "female." (2) For transgender persons seeking new drivers' licenses or other forms of official recognition, (3) the folkways of sex can be particularly dire because courts have naturalized both the idea of binary sex and the impossibility of sex reassignment. In refusing to recognize a transgender woman as a legal woman, a Texas appeals court exclaimed, "There are some things we cannot will into being. They just are." (4) The Kansas Supreme Court followed suit, stating: "[W]e recognize that J'Noel has traveled a long and difficult road. J'Noel has undergone electrolysis, thermolysis, tracheal shave, hormone injections, extensive counseling, and reassignment surgery. Unfortunately, after all that, J'Noel remains a transsexual, and a male." (5) Yet, despite our collective belief in the inevitability of sex and the categories "male" and "female," sex identities evade binary categorization and neat, tidy description even at the level of biology. Every year, thousands of infants are born intersex, with bodies that fuse the chromosomes, hormones, gonads, genitals, internal sex organs, and secondary sex characteristics typically thought to be defining of "male" and "female." (6) Every year, thousands of adults also seek to change their sex--resisting the notion that sex is fixed and accurately determined at birth. (7) In addition, even those who grow up secure in their identities as "male" or "female" are assigned to a sex category, not by karyotyping, (8) but by cursory inspection of their genitals at birth, so that their anxious parents can know whether to swaddle them in a pink or blue blanket. These phenomena challenge the very foundation of sex; indeed, as one researcher has noted, "any close study of sexual anatomy results in a loss of faith that there is a simple, 'natural' sex distinction that will not break down in the face of certain anatomical, behavioral, or philosophical challenges." (9) Faced with the true complexity of sex identity and sex difference, binary sex classifications can only be viewed as a social construct that disciplines the body in ways that defy logic, compassion, and medical science. (10) This Article breaks new ground by proposing a new equal protection doctrine that takes cognizance of the realities of sex, and regards sex categories as a suspect classification, not based on immutability, but on ground of sex categories' very imprecision. In arguing that sex should be accorded Strict, not intermediate, Scrutiny, this Article takes note of the parallels between sex discrimination and race discrimination--parallels that emerge when binary sex classification is understood to be neither innate nor natural. Viewed through this lens, demanding that people be officially classified by sex is just as invidious as maintaining registries of racial composition, a now disavowed practice. (11) Part I of this Article explores myths and realities of sex difference and examines how binary conceptions of sex break down. Turning to transgender and intersex identities, this Part explores the way that science and medicine manage and discipline unruly bodies in an effort to deny the pluralism of sexual identities that truly exists. It also focuses on law's complicity--examining how courts and administrative agencies have naturalized the notion of "male" and "female" and perpetuated myths of innate sex difference. Part II urges the adoption of a new equal protection standard for sex--a constitutional doctrine that recognizes the way that the categories of male and female are socially constructed, and regards sex classifications as suspect because of their arbitrariness. …
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deconstructing the body transgender and intersex identities sex discrimination the need for a Strict Scrutiny approach
2010Co-Authors: Chinyere EzieAbstract:Despite the judiciary’s belief in the permanency and inevitability of sex, and its confidence hat “[e]very schoolchild, even of tender years . . . can tell the difference [between a man and a woman],” even at the level of biology, sexual identities evade neat and tidy description and binary categorization. Every year, hundreds of people seek to change their legal genders like J’Noel Gardiner – resisting the notion that sex is fixed and determined at birth. In addition, every year hundreds of infants are born intersex – with bodies that fuse the chromosomes, hormones, gonads, genitals, internal sex organs and secondary sex characteristics typically thought to be so defining of “male” and “female.”Faced with the true complexity of sex difference and sexual identities, the binary sex classification system can only be viewed as an arbitrary system that disciplines the body and naturalizes the notions of “male and female” in ways that defy logic, compassion and medical science. Thus, this Article envisions a new equal protection doctrine that regards sex classifications as suspect on grounds that their very imprecision. In so doing, this Article advocates for transgender and intersex persons as well as all those who are harmed by the narrow and rigid jurisprudence on sex. This includes pregnant women, gays lesbians and bisexuals, and all those who are non-normatively gendered or sexual identity deviant – e.g., masculine women, effeminate men, men who enter female-dominated professions like nursing, women who long to work in a labor market not beholden to sex stereotyping.
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Deconstructing the Body: Transgender and Intersex Identities & Sex Discrimination – The Need for a Strict Scrutiny Approach
2010Co-Authors: Chinyere EzieAbstract:Despite the judiciary’s belief in the permanency and inevitability of sex, and its confidence hat “[e]very schoolchild, even of tender years . . . can tell the difference [between a man and a woman],” even at the level of biology, sexual identities evade neat and tidy description and binary categorization. Every year, hundreds of people seek to change their legal genders like J’Noel Gardiner – resisting the notion that sex is fixed and determined at birth. In addition, every year hundreds of infants are born intersex – with bodies that fuse the chromosomes, hormones, gonads, genitals, internal sex organs and secondary sex characteristics typically thought to be so defining of “male” and “female.”Faced with the true complexity of sex difference and sexual identities, the binary sex classification system can only be viewed as an arbitrary system that disciplines the body and naturalizes the notions of “male and female” in ways that defy logic, compassion and medical science. Thus, this Article envisions a new equal protection doctrine that regards sex classifications as suspect on grounds that their very imprecision. In so doing, this Article advocates for transgender and intersex persons as well as all those who are harmed by the narrow and rigid jurisprudence on sex. This includes pregnant women, gays lesbians and bisexuals, and all those who are non-normatively gendered or sexual identity deviant – e.g., masculine women, effeminate men, men who enter female-dominated professions like nursing, women who long to work in a labor market not beholden to sex stereotyping.
John A. Humbach - One of the best experts on this subject based on the ideXlab platform.
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The Constitution and Revenge Porn
Pace law review, 2015Co-Authors: John A. HumbachAbstract:Most of the recently enacted revenge-porn laws are unconstitutional as content-based regulations of speech unless (as is unlikely) they can either (i) pass Strict Scrutiny or (ii) fit within one of the recognized categorical exceptions to First Amendment protection. By paying close attention to the constitutional precedents, however, a legislature should be able to write a law that addresses the primary harms of revenge porn without resorting to the content discrimination which subjects the law to Strict Scrutiny. One approach, suggested here, is to frame the law so that it establishes an otherwise valid crime whose burden on speech can be regarded as only “incidental” (within the meaning of O’Brien and other precedents). By avoiding the content-discrimination trap, such a law should be able to thus survive constitutional Scrutiny for the same reasons that, for example, the Title VII harassment prohibitions are constitutional. There are, however, no guarantees. Any such a law would still represent, in the final analysis, an attempt by government to suppress speech it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing.
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How to Write a Constitutional 'Revenge Porn' Law
SSRN Electronic Journal, 2014Co-Authors: John A. HumbachAbstract:Most of the recently enacted revenge-porn laws are content-based regulations of speech. They are, as such, unconstitutional unless (as is unlikely) they can either (i) pass Strict Scrutiny or (ii) fit within one of the recognized categorical exceptions to First Amendment protection. However, by paying closer attention to the constitutional precedents, a legislature should be able to write a law that addresses the primary harms of revenge porn without being subject to Strict Scrutiny as content discrimination. One approach, suggested here, is to frame the law so that it establishes an otherwise valid non-speech crime and has a burden on speech that is only “incidental.” Such law should be able to avoid the content-discrimination trap and thus survive constitutional Scrutiny for the same reasons that the harassment prohibitions of Title VII do. There are, however, no guarantees. Any such a law would still represent, in the final analysis, an initiative by government to suppress speech that it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing.
Adam Winkler - One of the best experts on this subject based on the ideXlab platform.
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The Federal Government as a Constitutional Niche in Affirmative Action Cases
2009Co-Authors: Adam WinklerAbstract:Although the U.S. Supreme Court has held that the same Strict Scrutiny standard applies to both state and federal affirmative action, federal courts often appear to apply a more deferential form of Strict Scrutiny to the federal government's use of race. Analyzing the entire corpus of published federal court decisions between 1990 and 2003, I show that federal affirmative action laws are twice as likely to survive as state efforts. Moreover, lower federal courts commonly admit that they are giving unusual deference to federal actors or, alternatively, rely on reasoning that implicitly but effectively allows the federal government to use race in ways barred to states. I conclude that federal courts treat the federal government as a special niche when it comes to affirmative action, and I examine some of the reasons for, and implications of, this practice.
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Fundamentally Wrong About Fundamental Rights
Constitutional commentary, 2006Co-Authors: Adam WinklerAbstract:This short essay argues that the traditional and often repeated notion that laws burdening fundamental rights receive Strict Scrutiny is wrong. Many fundamental rights are not protected by Strict Scrutiny but by lesser standards or by categorical rules. Even rights, such as speech, free exercise of religion, and privacy, which do trigger Strict Scrutiny only do so occasionally; in many speech, religion, and privacy cases, the courts require the government to meet far less burdensome standards. In short, fundamental rights are governed by Strict Scrutiny only some of the time.
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fatal in theory and Strict in fact an empirical analysis of Strict Scrutiny in the federal courts
Vanderbilt Law Review, 2006Co-Authors: Adam WinklerAbstract:A popular myth in American constitutional law is that the Strict Scrutiny standard of review applied to enforce rights such as free speech and equal protection is, in the famous words of Gerald Gunther, 'Strict' in theory and fatal in fact. In recent years, however, this traditional understanding of Strict Scrutiny's inevitable deadliness has been challenged in high-profile cases such as Adarand Constructors v. Pena, where the Supreme Court expressed the wish to dispel the notion that Strict Scrutiny is 'Strict' in theory, but fatal in fact, and Grutter v. Bollinger, where the Court turned wish into action and upheld an affirmative action policy under Strict Scrutiny. According to the Court in Grutter, when applying Strict Scrutiny, [c]ontext matters. This Article offers a systematic empirical study of Strict Scrutiny in the federal courts. Reporting the results of a census of every Strict Scrutiny decision published by the diStrict, circuit, and Supreme courts between 1990 and 2003, this study shows that Strict Scrutiny is far from the inevitably deadly test imagined by the Gunther myth and more closely resembles the context-sensitive tool described by O'Connor. Overall, 30% of all applications of Strict Scrutiny - nearly one in three - result in the challenged law being upheld. Rather than fatal in fact, Strict Scrutiny is survivable in fact, and is so across constitutional doctrine: 27% of suspect classifications, 22% of free speech reStrictions, 24% of fundamental rights infringements, 33% of freedom of association burdens, and 59% of religious liberty burdens adjudicated under Strict Scrutiny survive. Employing logistic regression, this Article shows that this high survival rate for a supposedly fatal standard of review is context-sensitive. Although political ideology and regional variation are found to have no significant impact on voting in Strict Scrutiny cases, courts are strongly influenced by the identity of the governmental actor. Most prominently, laws adopted by the federal government are far more likely to survive (50%) than those adopted by state (29%) or local (17%) governments. Surprisingly, however, Strict Scrutiny has become more fatal in the years since Adarand declared the standard to be survivable (from 40% in the early 1990s to 20% in the early 2000s). I also offer an in-depth look at Strict Scrutiny cases within each area of law where that standard is found, showing which types of laws are more likely to be upheld than others even within discrete doctrines.
Suzanne E. Eckes - One of the best experts on this subject based on the ideXlab platform.
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Strict Scrutiny & Fisher: The Court's Decision and its Implications
2014Co-Authors: David Hòa Khoa Nguyễn, Colleen Chesnut, Suzanne E. EckesAbstract:During the 2012-2013 term of the U.S. Supreme Court, many were in suspense over how the Court would rule on Fisher v. University of Texas at Austin, the latest higher education case involving race-conscious admissions. Because it has been less than ten years since the Supreme Court ruled on Grutter v. Bollinger and Gratz v. Bollinger, some expected the Court to overrule the use of race in deciding admissions into colleges and universities. Instead, the Supreme Court affirmed that diversity is a compelling state interest and race-conscious admissions are permissible under a Strict Scrutiny review. However, the Court remanded the case back to the Fifth Circuit because it did not properly review the University’s admissions plan to determine whether it was narrowly tailored. In Fisher, Abigail Fisher, a Caucasian Texas resident, claimed that the University of Texas at Austin denied her admission because of her race and that other minority students with fewer qualifications were admitted instead of her. Affirming the diStrict court’s opinion, the Fifth Circuit Court of Appeals held in favor of the University presuming that the University’s decision to use race was made in good faith. The Supreme Court ruled that deference to the University under the narrow tailoring prong does not follow the standard of Strict Scrutiny. After briefly explaining the equal protection analysis and earlier Supreme Court decisions involving race-conscious admissions, we provide a background on the Fisher v. University of Texas at Austin case and ruling. We further analyze the case under the Strict Scrutiny judicial review standard and explore how social science could play a role in determining the outcome. The article then expands on the ruling’s implications in higher education, K-12 education, private colleges and universities, and the hiring of faculty and teachers.
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Strict Scrutiny fisher the court s decision and its implications
SSRN, 2014Co-Authors: David Hòa Khoa Nguyễn, Colleen Chesnut, Suzanne E. EckesAbstract:During the 2012-2013 term of the U.S. Supreme Court, many were in suspense over how the Court would rule on Fisher v. University of Texas at Austin, the latest higher education case involving race-conscious admissions. Because it has been less than ten years since the Supreme Court ruled on Grutter v. Bollinger and Gratz v. Bollinger, some expected the Court to overrule the use of race in deciding admissions into colleges and universities. Instead, the Supreme Court affirmed that diversity is a compelling state interest and race-conscious admissions are permissible under a Strict Scrutiny review. However, the Court remanded the case back to the Fifth Circuit because it did not properly review the University’s admissions plan to determine whether it was narrowly tailored. In Fisher, Abigail Fisher, a Caucasian Texas resident, claimed that the University of Texas at Austin denied her admission because of her race and that other minority students with fewer qualifications were admitted instead of her. Affirming the diStrict court’s opinion, the Fifth Circuit Court of Appeals held in favor of the University presuming that the University’s decision to use race was made in good faith. The Supreme Court ruled that deference to the University under the narrow tailoring prong does not follow the standard of Strict Scrutiny. After briefly explaining the equal protection analysis and earlier Supreme Court decisions involving race-conscious admissions, we provide a background on the Fisher v. University of Texas at Austin case and ruling. We further analyze the case under the Strict Scrutiny judicial review standard and explore how social science could play a role in determining the outcome. The article then expands on the ruling’s implications in higher education, K-12 education, private colleges and universities, and the hiring of faculty and teachers.
