Article by Steven Alan Childress
The Supreme Court's “constitutional fact” doctrine traditionally empowers appellate courts to apply independent review in First Amendment cases. A closer examination of the cases that make up this tradition, including New York Times Co. v. Sullivan and Bose v. Consumers Union, reveals that the review rule may well apply even to historical facts and other issues far short of the ultimate “legal” conclusion in these cases. Yet scholars and lower courts almost uniformly read the tradition as merely confirming an appellate court's authority to decide legal or mixed law-fact questions. This is error, in part because the Court's cases do not in fact limit their scrutiny to such conclusions, or do not involve questions that can fairly be described as legal. The review process instead rests on a proper error-correction function rather than simple law-declaration.
More broadly, the tradition actually draws on an accepted and heightened procedural component of First Amendment protection, as well as a pre-constitutional history of locating decisionmaking power within a skeptical judicial body when important speech interests are challenged. The Article thus asserts that constitutional fact review properly embraces and reflects its true First Amendment origins, and today properly enforces recognized speech policy. It urges a new model of censorial discretion to explain and justify such procedural anomalies, and to rectify a series of lower court errors following Bose and Sullivan. The model posits that exercises of factfinding discretion at trial are potential acts of censorship, apart from the substantive line drawing of traditional First Amendment theory, and that other judicial actors on review must be imbued with their own factfinding discretion to prevent manipulation, abuse, and error. Ultimately, the Article argues, much more is at stake than routine appellate procedure. Process in speech cases is special, protectionist, and appropriately skeptical of judicial discretion.
About the Author
Steven Alan Childress. Professor of Law, Tulane Law School. B.A., University of Alabama; J.D., Harvard Law School; M.A., Ph.D. (Jurisprudence and Social Policy), University of California, Berkeley. Portions of the analysis were originally developed in chapters 6-8 of a doctoral dissertation, APPEAL AND ERROR IN FIRST AMENDMENT ADJUDICATION (UC Library, May 1995).
Citation
70 Tul. L. Rev. 1229 (1996)