Neuborne, Burt

English

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Informal Remarks on the Limits of Facial Review in Complex Cases

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INFORMAL REMARKS ON THE LIMITSOF FACIAL REVIEW IN COMPLEX CASESBurt NeubornI want to try to take a posture on this panel in critiquing the dis-trict court's opinion that is a little bit removed from my actual par-ticipation in the case itself. I'm participating in this litigation as oneof the counsel for the parties, so I think it is inappropriate for me tospend time critiquing the substance of the lower court opinion. Ihave an audience for that, and that will unfold over the next coupleof months. But I do feel that it is appropriate for me to critique theprocess.I think that what happened in the district court was an institu-tional train wreck of serious proportions. I know that half of theopinion was facts, and therefore, instead of 1700 pages, we only hadsomething like 900 pages. But 900 pages is something quite extraor-dinary. I know that the judges were asked to do a difficult task. Theydid it conscientiously and, I think, maybe as well as anybody is goingto do it under the circumstances. Moreover, since I did not partici-pate in the trial court (I was ill and away from the process), I havestanding to say this. I know the lawyers on both sides did a splendidjob in attempting to present the issues to the court. I think, however,that the process is just deeply flawed. I think that the idea of facialreview of complex statutes has simply gotten out of control. To be-lieve that there is any body of individuals ranging from the SupremeCourt down, because this starts in Buckley,1 capable of exercising thekind of predictive judgment necessary to carry out facial review here,simply asks more than the Article IIIjudiciary can provide. Indeed, itpushes the Article III judiciary into looking something very like theCouncils of Revision that were rejected by the Founders, and makesthe Article IIIjudiciary resemble European Constitutional Courts thatroutinely review legislation before it goes into effect. The law thatcomes out of these complex facial processes is inevitably flawed. It'stime to rethink the reflexive notion that just because it's a FirstAmendment case, the case is to be decided on the basis of predictionsabout how statutes are likely to be applied in years to come to hypo-John Norton Pomeroy Professor of Law, New York University School of Law. Legal Direc-tor, Brennan Center forJustice at New York University School of Law.Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).JOURNAL OF CONSTITUTIONAL LA[ Wthetical parties and hypothetical contexts.If there's one thing that characterizes the opinions of all three ofthe districtjudges, it is guesswork on two crucial issues. The first cru-cial issue is: how likely is it that there will be a genuine appearance ofcorruption in connection with contributions of soft money in futureelections to political parties? How likely is it that a genuine appear-ance of corruption is going to occur? Now, it's hard enough, as wetalked about in the first panel, that we're not even sure what "corrup-tion" means. But assume that we develop a definition of "corruption"that we all agree on. You ask judges to speculate about how likely it isthat a hypothetical contribution in a hypothetical election by a hypo-thetical person to a hypothetical party, would generate in the percep-tion of the public, an appearance of corruption. Should it surpriseyou that on a record of sand like that, what happens is that expertscome in and say "well we think it would be," "we think it wouldn'tbe," "we think in the past it was perceived this way by undergraduatesat Arizona State University," "we think it wasn't perceived this way"?Does it surprise you that on a record of sand, three conscientiousjudges came to three completely different results?Judge Henderson said, I don't see why there would be any ap-pearance of corruption in the future on this. Judge Kollar-Kotellysaid, of course there is going to be an appearance of corruption inthe future on this. And Judge Leon said, there will be an appearanceof corruption in one place, but not somewhere else. And you knowwhat? All three of them are right, and all three of them are wrong,because they're just guessing. And in the absence of some sort of re-quirement that you have an enforcement history, and that you movethe judicial determinations to actual cases and controversies involvingactual communications in the context of actual disputes between realworld parties, what you're going to get is treatises, or 900 pages oflaw, because judges have to canvass abstract propositions, and whatthey are writing are not judicial opinions, but law review articlesdressed up as judicial opinions.Secondly, the judges had to speculate on how likely it would bethat the primary definition of "electioneering communication" is go-ing to include too much pure issue advocacy. Again, hypotheticalstatements in hypothetical future elections, in hypothetical settings.They're supposed to make a judgment about whether or not that isgoing to be a communication about issues or a communication aboutcandidates. The best evidence they had before them were the twoBuying Time studies.2 The two Buying Time studies were subjected to2 CRAIG B. HOLMAN & LUKE P. McLOUGHLIN, BUYING TIME 2000: TELEVISION ADVERTISINGIN THE 2000 FEDERAL ELECTIONS (2001);JONATHAN S. KRASNO & DANIEL E. SELTZ, BUYING TIME:TELEVISION ADVERTISING IN THE 1998 CONGRESSIONAL ELECTIONS (2000).(Vol. 6:1Sept. 2003] THE LIMITS OFFACIAL REVIEWIN COMPLEX CASESvery serious criticism, and came through quite well. Both Judge Leonand Jude Kollar-Kotelly upheld the Buying Time studies as useful andhelpful. But let me say immediately, this is a study in which under-graduates at Arizona State and the University of Wisconsin looked atstoryboards pulled from context, and made their best judgmentabout whether it was intended as an issue ad or not an issue ad. Use-ful in making general predictive determinations? Sure, but it doesn'tsubstitute for ajudge's ability to decide an actual case in an actual set-ting with an actual communication in a real world controversy.If we eschewed facial review, and said, let's let this work the wayeverything else works when judicial review occurs-bring us real casesor controversies-within three years, you would have the followingthings. First, you would have cases generating narrow constructionsof the statutes that would create safe harbors for a lot of the problemsthat the parties raise with some of the statutes. They would be heldby the courts not to be within the statute. Second, you would have aseries of constitutional safe harbors created by "as applied" decisionssaying that the statute couldn't be applied to the following type ofcommunication. So you would have a narrow statute with constitu-tional safe harbors. Third, you would have the courts requiring theFEC to have advisor mechanisms that would be consistent withFreedman v. Mayland, and that would provide a procedural mecha-nism in advance for anybody to find out whether or not their speechfell in one category or another, and that if you invoke such a proce-dural mechanism, it would be an absolute defense to a criminalprosecution until the decision finally came down.So, if we went the ordinary case-by-case way, we can have the bestof both worlds. We can have regulation of what everybody admits isan important problem that needs regulation. We could have protec-tion of the areas of unconstitutional application of the statutes. Weshouldn't have to choose between the two.A legitimate exception exists in some First Amendment cases tothe as-applied rule, the usual rule, in an American court. When acourt reviews a case "as applied" to the litigants, the litigants raisetheir own rights in the context of a determination that is made as ap-plied to the facts of that particular case. The exception to that forsome First Amendment cases is clearly legitimate in certain contexts,but remember what those contexts are. Facial review of First3 See, e.g., McConnell v. FEC, 251 F. Supp. 2d 176, 634 (D.D.C.) (three-judge court) (Kollar-Kotelly, J.), prob. juris. noted, 123 S. Ct. 2268 (2003) (mem.) ("Importantly, much, if not all, ofthe objective findings in the Buying Time reports have not been undermined by Plaintiffs' ex-pert."); id. at 796 (Leon, J.) ("Unlike Judge Henderson, I believe that the Buying Time studiesare entitled to some evidentiary weight." (footnote omitted)).4 380 U.S. 51 (1965).JOURNAL OF CONSTITUTIONAL LAWAmendment cases comes out of the civil rights movement in theSouth and the labor movement. The early cases involve state statutesthat could not be narrowed by the Supreme Court. The statutes werebeing unfairly used by sheriffs and local law enforcement officials tocrush labor pickets and to crush civil rights marches. The statute wasbeing used to prevent vulnerable speakers who had no access to thecourts and couldn't protect themselves against this process. That'swhat generated Thornill v. Alabama,' Dombrowski v. Pfister,6 Coates v. Cityof Cincinnati,7 and Gooding v. Wilson," the line of cases that said thatunder certain circumstances, you challenge the statute not by whatthe parties do, but by how the statute might be used in the future.That narrow exception has mutated into a routine form of FirstAmendment litigation in which statutes are tested not by how they'rebeing used, but by the ingenuity of counsel and how they might beused in the future in hypothetical settings. It's law school run amok.I support facial review in appropriate settings. I support facial re-view in settings where there is a reasonable fear of viewpoint-baseddiscrimination in the application of a broad statute. You need a fearthat legitimate protected activity will be suppressed, and will be sup-pressed without the opportunity of the usual as-applied access to thecourts. It mocks facial review to say that the National Rifle Associa-tion lacks ability to defend its own free speech rights in as-applied set-tings-that the nation's strongest speakers cannot protect themselvesthrough the vigorous application of as-applied review.We have allowed facial review to morph into a situation that turnsthe First Amendment into a tool of deregulation. It is no longer be-ing used to decide whether a speech is protected or not. Vastamounts of unprotected activity get swept up through the facial re-view process, and you have a Scylla and Charybdis situation, whereyou have vagueness on one hand, overbreadth on the other, and theimpossibility of a legislature to get between those two obstacles with-5 310 U.S. 88, 96 (1940) ("The section in question must be judged on its face.").6 380 U.S. 479, 486 (1965) ("[W]e have consistently allowed attacks on overly broad statuteswith no requirement that the person making the attack demonstrate that his own conductcould not be regulated by a statute drawn with the requisite narrow specificity.").7 402 U.S. 611, 616 (1971) (Black, J., concurring) ("[L]aws which broadly forbid conduct oractivities which are protected by the Federal Constitution, such as, for instance, the discussionof political matters, are void on their face."); id. at 619-20 (White, J., dissenting) ("Although astatute may be neither vague, overbroad, nor otherwise invalid as applied to the conductcharged against a particular defendant, he is permitted to raise its vagueness or unconstitu-tional overbreadth as applied to others.").8 405 U.S. 518, 521 (1972) ("[T]he transcendent value to all society of constitutionally pro-tected expression is deemed to justify allowing 'attacks on overly broad statutes with no re-quirement that the person making the attack demonstrate that his own conduct could not beregulated by a statute drawn with the requisite specificity.'" (quoting Dombrowski, 380 U.S. at486)).[Vol. 6:1Sept. 2003] THE LIMITS OFFACIAL REVIEWIN COMPLEX CASES 105out judicial help. And so my plea is, let's stop this. There is no wayyou are going to get a good three-judge decision. There is no wayyou are going to get a good Supreme Court opinion. It is only goingto go from bad to worse, as long as we keep unnecessarily resorting tofacial review in complex cases. It is time to rethink the process.

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Informal Remarks on the Limits of Facial Review in Complex Cases

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