First Amendment Equal Protection addresses discretionary incursions on freedom of expression that violate both clauses‘ norms of
equality.140 At its core, First Amendment Equal Protection enforces the
ideal ―that all citizens should have an equal opportunity to participate in 140. As Professor Kenneth Karst has observed, ―the principle of equal liberty lies at the heart of the first amendment‘s protections against government regulation of the content of speech.‖ Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U.CHI. L.REV. 20, 21 (1975) [hereinafter Karst, Equality in the First Amendment].
public discourse.‖141
First Amendment Equal Protection is largely concerned with abuse of discretion by official and unofficial decision makers that results in a violation of equality norms.142 In practice, First Amendment Equal Protection requires courts to be equally intolerant of discretion in the realm of political participation as they are in the realm of freedom of expression, based upon the suspicion that discretion can mask intentional discrimination. In this regard, First Amendment Equal Protection allows courts to undertake a more robust analysis to
determine whether discriminatory motives are at play.143
Rather than treat constitutional doctrines as hermetically sealed from one another, the Supreme Court has invited—and in some instances unwittingly instigated—the cross-pollination of legal theories and doctrines. First Amendment Equal Protection is one such example. First Amendment Equal Protection is a theory founded on the First Amendment and equal protection doctrines‘ coherence in protecting against discretionary incursions on freedom of expression that violate norms of equality. To be clear, First Amendment Equal Protection is not a First Amendment claim. Rather, rooted in the Fourteenth Amendment, First Amendment Equal Protection is a discrete dimension of equal
protection jurisprudence informed by First Amendment principles.144 It
describes the Court‘s treatment of official discretion under the Equal
Protection Clause on matters involving speech or expression. First
Amendment Equal Protection does not expand the First Amendment‘s scope; instead, it enlarges the qualitative considerations for enforcing equal protection of the laws under the Fourteenth Amendment.
The phrase ―First Amendment Equal Protection‖, coined by Professor Daniel Tokaji, echoes Professor Henry Monaghan‘s theory of
―First Amendment Due Process.‖145
First Amendment Due Process refers to the Supreme Court‘s development of distinct procedural safeguards to protect freedom of expression and is distinguishable from First Amendment Equal Protection by the latter‘s focus on the
141. Tokaji, First Amendment Equal Protection, supra note 12, at 2410. 142. See id. at 2414–21.
143. Notably, First Amendment Equal Protection as it applies to felon disenfranchisement is not predicated upon including the right to vote within the ambit of First Amendment protections. See id. at 2498 (―Acceptance of the First Amendment Equal Protection approach to political equality does not require belief that the vote itself falls within the scope of the First Amendment.‖).
144. Edward B. Foley, The Future of Bush v. Gore?, 68 OHIO ST. L.J. 925, 960 n.85 (2007).
145. See Tokaji, First Amendment Equal Protection, supra note 12, at 2410 n.7 (―The use of [First Amendment Equal Protection] is meant to recall Professor Monaghan‘s use of the term First Amendment ‗Due Process‘ in his article of the same title.‖ (citing Henry P. Monaghan, First Amendment ―Due Process,‖ 83 HARV.L.REV. 518 (1970))).
substantive equality principle of the First Amendment. First Amendment Due Process differs further because it involves actual First Amendment claims, whereas First Amendment Equal Protection operates as a dimension of equal protection under the Fourteenth Amendment. The theories share, however, the overarching principle that political speech or expression requires heightened judicial protection.146 Importantly, neither theory has been accepted (or rejected) by the Supreme Court. Instead, First Amendment Equal Protection represents a typology of the Court‘s analyses in a distinct body of cases.147
The heart of First Amendment Equal Protection executes the value that every citizen should have an equal chance to participate in public dialogue.148 In doing so, ―[i]t takes up Kenneth Karst‘s insight that ‗the principle of equal liberty lies at the heart of the first amendment‘s
protections against government regulation of the content of speech.‘‖149
It also furthers Dean Robert Post‘s instruction that ―[e]quality of speech derives from an equality of speakers.‖150
As a substantive matter, the theory of First Amendment Equal Protection derives from civil rights era cases where the Equal Protection Clause was used to protect and secure First Amendment rights to unpopular expression.151 It also derives from certain First Amendment cases in which vague and incoherent standards permitted officials to deny access to public fora ―based on [officials‘] hostility [toward] particular viewpoints.‖152
Like the Equal Protection Clause, the First Amendment is foremost
146. See Monaghan, supra note 145, at 524 (―[W]hen the subject matter of speech is political in character . . . , the need for a disinterested judicial judgment is even greater.‖).
147. See infra Section I.B.
148. See Tokaji, First Amendment Equal Protection, supra note 12.
149. Id. at 2410 n.7 (citing Karst, Equality in the First Amendment, supra note 140, at 21). This is consistent with Professor Karst‘s definition of equal citizenship, whereby the Fourteenth Amendment confers a right to every citizen ―to be treated as a respected and responsible participant in community public life.‖ Kenneth L. Karst, The Liberties of Equal Citizens: Groups and the Due Process Clause, 55 UCLAL.REV. 99, 102 (2007).
150. Post, supra note 36, at 484–85 (―The equality of status of ideas within public discourse follows directly from the equality of political status of citizens who attempt to make government responsive to their views.‖).
151. See, e.g., Police Dep‘t of Chi. v. Mosley, 408 U.S. 92, 101 (1972) (―The Equal Protection Clause requires that statutes affecting First Amendment interests be narrowly tailored to their legitimate objectives.‖ (citing Williams v. Rhodes, 393 U.S. 23 (1968), and Dunn v. Blumstein, 405 U.S. 330, 342–43 (1972))).
152. See Foley, supra note 144, at 960–61. The abuse of discretion is often aided by vague legal standards that camouflage discriminatory intentions. Tokaji, First Amendment Equal Protection, supra note 12, at 2441. As a result, ―[a]bsent clearly defined rules that limit official decisionmakers‘ discretion, discrimination against unpopular speech may escape detection.‖ Id. at 2430.
concerned with improper government motive.153 The synthesis of these interests, along with both clauses‘ pursuit of equality, gives rise to the
theory of First Amendment Equal Protection.154
Because discretion can conceal intentional discrimination, under the theory of First Amendment Equal Protection, courts must be as wary of discretion in the sphere of political participation as they are in the sphere of freedom of expression. Importantly, First Amendment Equal Protection does not rely exclusively on discretion as a trigger for the conjoined application of First Amendment and equal protection principles; rather, it is the core nature of expressive activity itself that commands the dual protection of these muscular constitutional provisions.
Thus, First Amendment Equal Protection leads to a more robust undertaking of equality claims under the Fourteenth Amendment that is informed by the First Amendment to determine whether discriminatory motives are at play. To that end, First Amendment Equal Protection embodies four ideals: (1) the requirement of clear standards, (2) broadened justiciability, (3) leniency toward facial challenges, and (4) increased judicial fact-finding.155 These ideals comprise both procedural and substantive variations from conventional equal protection. Clear standards limit the exercise of discretion that can mask discrimination.156 Broad justiciability allows courts to entertain cases by relaxing standing requirements in order to increase enforcement against rights violations.157 Leniency toward facial challenges permits litigants to challenge suspect laws directly before harm or injury occurs.158 Finally, increased judicial fact-finding enables courts to consider context in investigating specific constitutional violations and their underlying motivations.159
Without identifying it as such, the Court has employed First Amendment Equal Protection in certain categories of cases involving freedom of expression. For example, the Court‘s inherent distrust of official discretion in the speech context ―animates [many] public fora, censorship, and civil rights era cases.‖160
In these cases, the Court 153. Kagan, supra note 6, at 414 (―[T]he application of First Amendment law is best understood and most readily explained as a kind of motive-hunting.‖).
154. Tokaji, First Amendment Equal Protection, supra note 12, at 2441. 155. Id. at 2430.
156. Id. at 2442. 157. Id. at 2447. 158. Id. at 2446–47. 159. Id. at 2447.
160. The Court was animated in these cases by a suspicion of racial bias or viewpoint discrimination. See id. at 2441 (―For the most part, these cases arise in contexts where the Court smelled a rat—that is, where circumstances suggested that discrimination against disfavored
employs an especially searching mode of analysis that involves relaxed standards of justiciability, facial challenges, and increased judicial fact- finding when faced with official discretion that potentially masks discrimination in the realm of expression.161