Article

Ordinary Meaning and Plain Meaning

With textualism’s ascendancy, courts increasingly invoke the canon to assume “ordinary meaning” unless the context indicates otherwise and the rule to enforce “plain meaning” regardless of extratextual considerations. Yet the relationship between ordinary meaning and plain meaning can become confused in practice. Courts use the terms interchangeably, and they conflate them doctrinally.

Ordinary meaning and plain meaning are distinct. Ordinary meaning is what the text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the text conveys in context is clear from the text. Thus, a term’s ordinary meaning is also its plain meaning only when it is clear from how the term is used in the statute that its context is ordinary, as opposed to technical. Courts conflate the two, however, when they assume ordinary meaning under the ordinary meaning canon and then conclude that they are therefore bound to enforce that meaning under the plain meaning rule. As a result, they end interpretation prematurely, excluding extratextual aids that might well show that the ordinary meaning assumption should give way.

This Article is the first to investigate the relationship between ordinary meaning and plain meaning. It clarifies their differences, identifies the ways in which they are conflated, and evaluates when they should converge. For textualists, greater clarity on this score illuminates when and how to bring ordinary meaning and plain meaning together in a principled manner. For methodological pluralists, understanding the gap between ordinary meaning and plain meaning opens opportunities to argue beyond the text in our increasingly textualist world.

Introduction

Today, the two most fundamental doctrines of statutory interpretation are the ordinary meaning canon and the plain meaning rule. The ordinary meaning canon: assume statutory terms bear their “ordinary meaning” unless the context indicates otherwise.1 1.E.g., Gonzales v. Carhart, 550 U.S. 124, 152 (2007) (“In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result.”).Show More The canon is regularly described as “the [m]ost [f]undamental [p]rinciple of [l]egal [i]nterpretation,”2 2.Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2015); see also William N. Eskridge, Jr., Interpreting Law 33 (2016) (calling the ordinary meaning canon “[t]he prime directive in statutory interpretation”); Antonin Scalia & Bryan A. Garner, Reading Law 69 (2012) (“The ordinary-meaning rule is the most fundamental semantic rule of interpretation.”).Show More and the Supreme Court has long treated it as an “axiom.”3 3.E.g., Burns v. Alcala, 420 U.S. 575, 580 (1975).Show More The plain meaning rule: if the statutory text’s meaning is “plain” (as in clear), then a court must enforce that meaning regardless of other considerations.4 4.E.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“[W]here . . . the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’” (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))).Show More The Supreme Court has deemed it the “cardinal” rule of statutory interpretation that comes “before all others.”5 5.Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992).Show More

Neither doctrine is textualism,6 6.Cf. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 420 (2005) (“[T]extualism does not admit of a simple definition.”).Show More but their prominence has skyrocketed with textualism’s ascendancy.7 7.See, e.g., Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev. 1915, 1973–74 (finding from a statistical analysis of the U.S. Reports that the Supreme Court’s use of “plain meaning” and “ordinary meaning” has increased exponentially since the 1970s).Show More The ordinary meaning canon is an old practice with supporting aphorisms from Blackstone, Marshall, and Holmes,8 8.See1 William Blackstone, Commentaries *59 (“Words are generally to be understood in their usual and most known signification . . . .”); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C.J.) (observing that a legal text’s “words are to be understood in that sense in which they are generally used by those for whom the instrument was intended”); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417–18 (1899) (positing that legal interpretation asks “what [the] words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”).Show More and it “straddles judicial philosophies.”9 9.Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 23 & n.238 (2022) (documenting how “all current members of the Supreme Court have invoked this rule of ordinary meaning”).Show More But the canon is particularly important to textualists.10 10.See, e.g., Amy Coney Barrett, Assorted Canards of Contemporary Legal Analysis: Redux, 70 Case W. Rsrv. L. Rev. 855, 856 (2020) (“Textualism . . . insists that judges must construe statutory language consistent with its ‘ordinary meaning.’”).Show More Thus, courts invoke “ordinary meaning” today three times as often as they did half a century ago,11 11.Kevin Tobia, Brian G. Slocum & Victoria Nourse, Statutory Interpretation from the Outside, 122 Colum. L. Rev. 213, 217 (2022) [hereinafter Tobia et al., Statutory Interpretation] (finding from a sample of six million cases that “[o]ver the past fifty years, citation to ‘ordinary meaning’ has tripled”).Show More before the rise of “the new textualism.”12 12.SeeWilliam N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623–24 (1990) (describing the development in the 1980s of a methodological commitment to enacted text over legislative history as “the new textualism”).Show More As for the plain meaning rule, it was not always in favor,13 13.In 1892, the Supreme Court famously articulated a quite different rule “that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892).Show More and Judge Wald even wrote its obituary in the early 1980s.14 14.SeePatricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 197–98 (1983); cf.Arthur W. Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum. L. Rev. 1299, 1302 (1975) (describing “the refusal of the courts to abandon” the plain meaning rule despite “reports of its death”).Show More But the plain meaning rule is textualism’s “bedrock principle,”15 15.Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 164 (2010); see alsoJohn F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1309–10 (2010) (describing the “defining feature of ‘second-generation textualism’” to be the “proposition that courts must respect the terms of an enacted text when its semantic meaning is clear, even if it seems contrary to the statute’s apparent overall purpose”).Show More and the Supreme Court now invokes the plain meaning of text more than any other interpretive tool save for precedent.16 16.Cf.Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev. 76, 95–97 (2021) (finding that the “text/plain meaning” of a statute was the most used interpretive source other than precedent in a sample of statutory interpretation cases from 2005–2017 Supreme Court Terms).Show More Thus, when Justice Kagan said “we’re all textualists now,”17 17.Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, at 8:29–30 (Nov. 17, 2015), https://www.youtube.com/‌wat‌ch?v=dpEtszFT0Tg [https://perma.cc/R67U-65ZS].Show More presumably she meant at least this: the text has primacy over other considerations and therefore controls if what it says is plain.18 18.Indeed, when Justice Kagan later quipped about this remark that “[i]t seems I was wrong,” she was faulting the Court for using a “get-out-of-text-free card[].” West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting); John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 129–30 (describing “nontextualist” Justices’ acceptance of the plain meaning rule). On Justice Kagan’s remark and her later retraction, see generally Kevin Tobia, We’re Not All Textualists Now, 78 N.Y.U. Ann. Surv. Am. L. 243 (2023).Show More

Yet despite how fundamental ordinary meaning and plain meaning are to our “law of interpretation,”19 19.William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1084–85 (2017) (developing an account of legal canons as part of the unwritten law that governs legal interpretation).Show More their relationship can become confused in practice. Courts, litigants, and commentators use the terms interchangeably20 20.See sources cited infra notes 310–11.Show More because “plain” can also be a synonym for “ordinary” (as in plain vanilla).21 21.William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. 539, 545 (2017). The wonderful “plain vanilla” example is theirs.Show More And courts conflate them doctrinally by beginning interpretation with “ordinary meaning” (or “plain meaning” in the plain-vanilla sense) under the ordinary meaning canon and then concluding that they are therefore bound to end interpretation with that meaning, regardless of extratextual considerations, under the plain meaning rule.22 22.See infra Part III.Show More The problem is that statutes sometimes have technical (i.e., non-ordinary or specialized) meanings.23 23.SeeAmy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev. 2193, 2202 (2017) (noting that textualists accept that “terms are sometimes used in their ordinary and sometimes in their technical sense”).Show More When courts conflate ordinary meaning and plain meaning, they risk excluding extratextual interpretive aids that would illuminate whether the ordinary meaning assumption should give way to a different meaning.

Consider an example involving a term with a clear ordinary meaning but less clear statutory context. The Penobscot Nation is a “riverine” Native nation.24 24.H.R. Rep. No. 96-1353, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 3786, 3787.Show More A statute defines the “Penobscot Indian Reservation” as “the islands in the Penobscot River reserved to the Penobscot Nation by agreement with the States of Massachusetts and Maine” as of June 29, 1818.25 25.Me. Stat. tit. 30, § 6203(8) (2023). The federal Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, § 3, 94 Stat. 1785, 1786–87 (1980), incorporates the definition from the Maine Implementing Act, Me. Stat. tit. 30, § 6203(8) (2023). See 25 U.S.C. § 1722(i).Show More An “island,” no doubt, ordinarily does not include its surrounding waters.26 26.SeePenobscot Nation v. Frey, 3 F.4th 484, 491 (1st Cir. 2021) (en banc) (determining from dictionary definitions that it is “clear” that “an island is ‘a piece of land’” and that “[l]and does not ordinarily mean land and water”).Show More But is it plain in this statutory context that “islands” excludes the waters? Notably, the provision references a historical agreement as well as a specific set of “islands,” and the Supreme Court has said that a reservation defined by reference to specific “islands” may encompass the surrounding waters.27 27.See Alaska Pac. Fisheries v. United States, 248 U.S. 78, 86–89 (1918) (interpreting a reference to “the body of lands known as Annette Islands” in the statutory definition of the Metlakahtla Reservation and holding that “the geographical name was used, as is sometimes done, in a sense embracing the intervening and surrounding waters as well as the upland—in other words, as descriptive of the area comprising the islands”).Show More Moreover, a neighboring provision guarantees fishing rights “within the boundaries of [the] Indian reservation[],”28 28.Me. Stat. tit. 30, § 6207(4) (2023).Show More and there is nowhere on the islands themselves to fish.29 29.Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 186 (D. Me. 2015) (“None of those islands contains a body of water in which fish live.”).Show More The U.S. Court of Appeals for the First Circuit nevertheless felt bound to enforce the ordinary meaning of “island” under the plain meaning rule—regardless of what the historical agreement was, the purpose for codifying it, or the canon that ambiguous statutes are construed to Indians’ benefit.30 30.SeePenobscot Nation, 3 F.4th at 491 & n.5 (“Because ‘islands’ is an undefined term, we construe it in accordance with [its] ordinary meaning.” (internal quotation marks omitted) (citation omitted)); id. at 493 (citing McGirt v. Oklahoma, 140 S. Ct. 2452, 2469 (2020) (“There is no need to consult extratextual sources when the meaning of a statute’s terms is clear.”)); see also id. at 490–91 (citing additional plain meaning precedents); id. at 496 (“[The statute’s] reference to these treaties does not alter the plain meaning of ‘islands’ and creates no ambiguity.”); id. at 503 (“This canon only applies to ambiguous provisions.”). But see County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985))).Show More

Or consider an example of a term with a disputed ordinary meaning. Bostock v. Clayton County31 31.140 S. Ct. 1731 (2020).Show More held that the federal bar on workplace discrimination “because of . . . sex”32 32.Id. at 1738 (quoting 42 U.S.C. § 2000e-2(a)(1)).Show More protects employees against discrimination based on sexual orientation or gender identity.33 33.Id. at 1754.Show More Much has been written in Bostock’s wake on the differences among textualist Justices’ opinions in the case regarding what constitutes ordinary meaning.34 34.See, e.g., Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265, 266 (2020) (“Bostock revealed . . . important tensions within textualism.”); Ilya Somin, Bostock v. Clayton County and the Debate over the Meaning of “Ordinary Meaning,” Volokh Conspiracy (June 19, 2020, 11:25 PM), https://reason.com/volokh/2020/06/19/bostock-v-clayton-county-and-the-debate-over-the-meaning-of-ordinary-meaning/ [https://perma.cc/ZS6W-YN87] (describing “an interesting dispute over what exactly counts as ‘ordinary meaning’” between Justices Gorsuch and Kavanaugh in Bostock); Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev. 461, 465–72 (2021) (arguing that Bostock revealed competing versions of “empirical textualism”—one focused on “what ordinary people understand [a provision] to mean, applying their own criteria” and the other focused “on the ordinary application of the established legal criterion . . . to interpret and apply the” provision).Show More Left out of that discussion is a stark point about what all the Justices signed on to: the provision’s ordinary meaning was its plain meaning. Indeed, after determining the provision’s “ordinary public meaning,”35 35.Bostock, 140 S. Ct. at 1741 (“From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”).Show More the majority repeatedly justified enforcement of that meaning based on what the majority variously called the provision’s “plain meaning,”36 36.Id. at 1750.Show More “plain terms,”37 37.Id. at 1743, 1748–50, 1752.Show More “plain text,”38 38.Id. at 1751.Show More and “plain statutory command[].”39 39.Id. at 1754.Show More The dissenters drew a similar equation; they just found a different ordinary meaning.40 40.Seeinfra notes 404–07 and accompanying text.Show More Sharp intramural, text-based disputes over the ordinary meaning of the provision would seem to suggest at least that there were other plausible, even if less ordinary, readings of the text. Yet not a single Justice posited that there was any textual ambiguity warranting recourse to additional interpretive aids.

What’s more, Justice Gorsuch’s majority opinion justified giving statutory terms their “ordinary public meaning” because “only the words on the page constitute the law adopted by Congress and approved by the President.”41 41.Bostock,140 S. Ct. at 1738.Show More Yet while the fact that only the text has met the Constitution’s bicameralism and presentment requirements for making statutory law may justify enforcing its plain meaning, even textualists recognize that those requirements do not mandate reading the text according to its ordinary meaning.42 42.See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 71–72 (2001).Show More After all, the Constitution does not tell us how to read the text.

In short, how ordinary meaning and plain meaning relate under their respective doctrines has become something of an enigma in practice. Justice Scalia and Bryan Garner’s influential treatise on statutory interpretation even gives a cryptic secondary definition for the plain meaning rule as: “Loosely, the ordinary-meaning canon.”43 43.Scalia & Garner, supranote 2, at 436.Show More

While there are rich literatures on both ordinary meaning44 44.See, e.g., sources cited infra notes 99, 103, 114–15, 120–22.Show More and plain meaning,45 45.See, e.g., sources cited infra notes 135, 196, 215.Show More these literatures have studied the topics separately. Scholars have noted that ordinary meaning and plain (as in clear) meaning are different,46 46.SeeBaude & Doerfler, supra note 21, at 545 (noting that “plain” means obvious under the plain meaning rule, as distinguished from its occasional use “to denote something like ordinary meaning”); Eskridge, supra note 2, at 33 (“‘Plain meaning’ ought to be reserved for a judicial declaration that there is a clear legal meaning for the provision in question . . . .”); Peter W. Schroth, Language and Law, 46 Am. J. Compar. L. 17, 26 n.41 (Supp. 1998) (“Ordinary meaning seems to differ from plain meaning, in that the former denotes something like ‘the sense this expression usually has in such contexts’ while the latter may require absence of ambiguity.”); Slocum, supra note 2, at 23–25 (briefly distinguishing the ordinary meaning canon and plain meaning rule).Show More and others have flagged that “there may be important differences” even between ordinary meaning and plain-vanilla meaning.47 47.Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev. 726, 736 (2020) [hereinafter Tobia, Testing Ordinary Meaning]; see also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 234 n.6 (observing in a footnote “the important point that plain meaning is not equivalent to ordinary meaning”).Show More But no one has explained these differences in any depth. That is my goal—to clarify the differences between ordinary meaning and plain meaning, to identify the ways in which they are conflated, and to evaluate when they should converge.

My thesis: “ordinary meaning” under the ordinary meaning canon and “plain meaning” under the plain meaning rule have different definitions, functions, consequences, and justifications. Both are sensitive to context, however, because courts agree that statutory terms have meaning only in context.48 48.See infra note 84 and accompanying text.Show More Thus, a term bears its ordinary meaning unless the context indicates a technical meaning. But a term’s ordinary meaning is also its plain meaning only when it is plain from how the term is used in the statute that its context is ordinary, not technical. How plain must it be? Because “plainness” is ultimately a legal characterization,49 49.See Ryan D. Doerfler, How Clear Is “Clear”?, 109 Va. L. Rev. 651, 657–58 (2023); Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1505–09 (2019).Show More how plain (and to whom it must be plain) should depend on the court’s purposes for assuming ordinary meaning. The following roadmap previews the details.

Part I defines “meaning.” What the words and phrases in a statute “mean” in a legal sense differs from what they “mean” in a linguistic sense. Ordinary meaning and plain meaning are both claims about linguistic meaning—specifically, what the statutory words and phrases in context would convey to a reasonable English user. But the nature of their claims as well as the consequences for legal meaning are very different.

Part II clarifies the differences between ordinary meaning and plain meaning. First, different definitions: ordinary meaning refers to the content of what the statutory text would convey to a reasonable English user in the context of everyday communication. Plain meaning refers to a judgment that whatever the statutory text conveys in context is clear from the text. Second, different functions: ordinary meaning provides a starting point for what the statute means subject to other considerations, while plain meaning acts as an evidentiary rule to bar other considerations if the statute’s meaning is clear from the text. Third, different consequences: ordinary meaning provides a statute’s default legal meaning, while plain meaning specifies its legal meaning (arguably subject to absurdity). Fourth, different justifications: because statutes are not, in fact, everyday communications, ordinary meaning must ultimately be justified counterfactually (e.g., asking how an ordinary member of Congress, as opposed to a court, would interpret the statute) or by normative values (e.g., democracy and the rule of law). In contrast, courts enforce plain meaning for an epistemic reason: the clear meaning of the text that survived the constitutional process for making statutory law is the best evidence of the legal norms that Congress promulgated.

Part III identifies how courts conflate these differences in practice. Courts refer to ordinary meaning and plain meaning interchangeably, which can lead them to invoke the plain meaning rule to enforce plain-vanilla meaning. Courts also conflate the doctrines by relying on the plain meaning rule to enforce ordinary meaning merely absent a statutory definition, like in Penobscot Nation v. Frey, or other clear statement from Congress. And in recent cases, such as Bostock, the Supreme Court has begun to muddle their justifications, suggesting that the rationale for enforcing plain meaning mandates reading statutes according to their ordinary meaning.

Part IV evaluates when courts should enforce ordinary meaning as plain meaning. A term’s ordinary meaning—even when clear—is also its plain meaning only if the statutory context plainly supports that reading. Thus, ordinary meaning is not always plain meaning. But often they converge. Not only are there easy cases with only one—both ordinary and plain—meaning, but “plainness” also should not require the complete absence of alternative readings. Rather, whether a meaning is “plain” is ultimately a legal judgment that should depend on the court’s purposes for assuming ordinary meaning. If a court assumes that “island” bears its ordinary meaning as an expedient method to reach an agreement among the judges, then the question is “how plain to us?” and the threshold for plainness is low—the whole point is to reach a solution efficiently. But if a court assumes that “island” bears its ordinary meaning because, in a democracy, laws should be interpreted according to how the public would understand them, then the question changes to “how plain to ordinary people?” And the threshold for plainness may go up, depending on the court’s beliefs about how ordinary people distinguish between ordinary and technical language. Thus, for plain meaning, much depends on the reasons for ordinary meaning.

The Conclusion sums up the implications for legal practice. First, courts and litigators should be clear about when they are making a claim about ordinary meaning as opposed to plain meaning, given their different interpretive consequences. Second, courts should ensure they match the correct consequences to ordinary meaning and plain meaning respectively. Third, courts should enforce ordinary meaning as plain meaning only when it is plain from a term’s statutory context that it bears its ordinary meaning.

What lies outside this Article’s scope, however, is whether ordinary meaning and plain meaning are coherent guideposts for statutory interpretation. There is, to be sure, profound disagreement on that score. But what I take to be a less controversial point is that today’s practitioners and courts operate in an environment in which claims about ordinary meaning and plain meaning are facts of life. So this Article is written in the spirit that, regardless of one’s views on ordinary meaning and plain meaning, it is worth trying to understand how they relate.

  1.  E.g., Gonzales v. Carhart, 550 U.S. 124, 152 (2007) (“In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result.”). ↑
  2.  Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2015); see also William N. Eskridge, Jr., Interpreting Law 33 (2016) (calling the ordinary meaning canon “[t]he prime directive in statutory interpretation”); Antonin Scalia & Bryan A. Garner, Reading Law 69 (2012) (“The ordinary-meaning rule is the most fundamental semantic rule of interpretation.”). ↑
  3.  E.g., Burns v. Alcala, 420 U.S. 575, 580 (1975). ↑
  4.  E.g., United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“[W]here . . . the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms.’” (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917))). ↑
  5.  Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992). ↑
  6.  Cf. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev
    .

    419, 420 (2005) (“[T]extualism does not admit of a simple definition.”). ↑

  7.  See, e.g., Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev
    .

    1915, 1973–74 (finding from a statistical analysis of the U.S. Reports that the Supreme Court’s use of “plain meaning” and “ordinary meaning” has increased exponentially since the 1970s). ↑

  8.  See 1 William Blackstone, Commentaries *59 (“Words are generally to be understood in their usual and most known signification . . . .”); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 332 (1827) (Marshall, C.J.) (observing that a legal text’s “words are to be understood in that sense in which they are generally used by those for whom the instrument was intended”); Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev
    .

    417, 417–18 (1899) (positing that legal interpretation asks “what [the] words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used”). ↑

  9.  Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 23 & n.238 (2022) (documenting how “all current members of the Supreme Court have invoked this rule of ordinary meaning”). ↑
  10.  See, e.g., Amy Coney Barrett, Assorted Canards of Contemporary Legal Analysis: Redux, 70 Case W. Rsrv. L. Rev
    .

    855, 856 (2020) (“Textualism . . . insists that judges must construe statutory language consistent with its ‘ordinary meaning.’”). ↑

  11.  Kevin Tobia, Brian G. Slocum & Victoria Nourse, Statutory Interpretation from the Outside, 122 Colum. L. Rev
    .

    213, 217 (2022) [hereinafter Tobia et al., Statutory Interpretation] (finding from a sample of six million cases that “[o]ver the past fifty years, citation to ‘ordinary meaning’ has tripled”). ↑

  12.  See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev
    .

    621, 623–24 (1990) (describing the development in the 1980s of a methodological commitment to enacted text over legislative history as “the new textualism”). ↑

  13.  In 1892, the Supreme Court famously articulated a quite different rule “that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). ↑
  14.  See Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev
    .

    195, 197–98 (1983); cf. Arthur W. Murphy, Old Maxims Never Die: The “Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75 Colum. L. Rev. 1299, 1302 (1975) (describing “the refusal of the courts to abandon” the plain meaning rule despite “reports of its death”). ↑

  15.  Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev
    .

    109, 164 (2010); see also John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev

    .

    1287, 1309–10 (2010) (describing the “defining feature of ‘second-generation textualism’” to be the “proposition that courts must respect the terms of an enacted text when its semantic meaning is clear, even if it seems contrary to the statute’s apparent overall purpose”). ↑

  16.  Cf. Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev
    .

    76, 95–97 (2021) (finding that the “text/plain meaning” of a statute was the most used interpretive source other than precedent in a sample of statutory interpretation cases from 2005–2017 Supreme Court Terms). ↑

  17.  Harvard Law School, The 2015 Scalia Lecture | A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, at 8:29–30 (Nov. 17, 2015), https://www.youtube.com/‌wat‌ch?v=dpEtszFT0Tg [https://perma.cc/R67U-65ZS]. ↑
  18.  Indeed, when Justice Kagan later quipped about this remark that “[i]t seems I was wrong,” she was faulting the Court for using a “get-out-of-text-free card[].” West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting); John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev
    .

    113, 129–30 (describing “nontextualist” Justices’ acceptance of the plain meaning rule). On Justice Kagan’s remark and her later retraction, see generally Kevin Tobia, We’re Not All Textualists Now, 78 N.Y.U. Ann. Surv. Am. L. 243 (2023). ↑

  19.  William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev
    .

    1079, 1084–85 (2017) (developing an account of legal canons as part of the unwritten law that governs legal interpretation). ↑

  20.  See sources cited infra notes 310–11. ↑
  21.  William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev
    .

    539, 545 (2017). The wonderful “plain vanilla” example is theirs. ↑

  22.  See infra Part III. ↑
  23.  See Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev
    .

    2193, 2202 (2017) (noting that textualists accept that “terms are sometimes used in their ordinary and sometimes in their technical sense”). ↑

  24. H.R.

    Rep

    .

    No. 96-1353, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 3786, 3787. ↑

  25.  Me. Stat. tit. 30, § 6203(8) (2023). The federal Maine Indian Claims Settlement Act of 1980, Pub. L. No. 96-420, § 3, 94 Stat. 1785, 1786–87 (1980), incorporates the definition from the Maine Implementing Act, Me. Stat. tit. 30, § 6203(8) (2023). See 25 U.S.C. § 1722(i). ↑
  26.  See Penobscot Nation v. Frey, 3 F.4th 484, 491 (1st Cir. 2021) (en banc) (determining from dictionary definitions that it is “clear” that “an island is ‘a piece of land’” and that “[l]and does not ordinarily mean land and water”). ↑
  27.  See Alaska Pac. Fisheries v. United States, 248 U.S. 78, 86–89 (1918) (interpreting a reference to “the body of lands known as Annette Islands” in the statutory definition of the Metlakahtla Reservation and holding that “the geographical name was used, as is sometimes done, in a sense embracing the intervening and surrounding waters as well as the upland—in other words, as descriptive of the area comprising the islands”). ↑
  28.  Me. Stat. tit. 30, § 6207(4) (2023). ↑
  29.  Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 186 (D. Me. 2015) (“None of those islands contains a body of water in which fish live.”). ↑
  30.  See Penobscot Nation, 3 F.4th at 491 & n.5 (“Because ‘islands’ is an undefined term, we construe it in accordance with [its] ordinary meaning.” (internal quotation marks omitted) (citation omitted)); id. at 493 (citing McGirt v. Oklahoma, 140 S. Ct. 2452, 2469 (2020) (“There is no need to consult extratextual sources when the meaning of a statute’s terms is clear.”)); see also id. at 490–91 (citing additional plain meaning precedents); id. at 496 (“[The statute’s] reference to these treaties does not alter the plain meaning of ‘islands’ and creates no ambiguity.”); id. at 503 (“This canon only applies to ambiguous provisions.”). But see County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992) (“[S]tatutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985))). ↑
  31.  140 S. Ct. 1731 (2020). ↑
  32.  Id. at 1738 (quoting 42 U.S.C. § 2000e-2(a)(1)). ↑
  33.  Id. at 1754. ↑
  34.  See, e.g., Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265, 266 (2020) (“Bostock revealed . . . important tensions within textualism.”); Ilya Somin, Bostock v. Clayton County and the Debate over the Meaning of “Ordinary Meaning,” Volokh Conspiracy (June 19, 2020, 11:25 PM), https://reason.com/volokh/2020/06/19/bostock-v-clayton-county-and-the-debate-over-the-meaning-of-ordinary-meaning/ [https://perma.cc/ZS6W-YN87] (describing “an interesting dispute over what exactly counts as ‘ordinary meaning’” between Justices Gorsuch and Kavanaugh in Bostock); Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev
    .

    461, 465–72 (2021) (arguing that Bostock revealed competing versions of “empirical textualism”—one focused on “what ordinary people understand [a provision] to mean, applying their own criteria” and the other focused “on the ordinary application of the established legal criterion . . . to interpret and apply the” provision). ↑

  35.  Bostock, 140 S. Ct. at 1741 (“From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”). ↑
  36.  Id. at 1750. ↑
  37.  Id. at 1743, 1748–50, 1752. ↑
  38.  Id. at 1751. ↑
  39.  Id. at 1754. ↑
  40.  See infra notes 404–07 and accompanying text. ↑
  41.  Bostock, 140 S. Ct. at 1738. ↑
  42.  See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 71–72 (2001). ↑
  43.  Scalia & Garner
    ,

    supra note 2, at 436. ↑

  44.  See, e.g., sources cited infra notes 99, 103, 114–15, 120–22. ↑
  45.  See, e.g., sources cited infra notes 135, 196, 215. ↑
  46.  See Baude & Doerfler, supra note 21, at 545 (noting that “plain” means obvious under the plain meaning rule, as distinguished from its occasional use “to denote something like ordinary meaning”); Eskridge
    ,

    supra note 2, at 33 (“‘Plain meaning’ ought to be reserved for a judicial declaration that there is a clear legal meaning for the provision in question . . . .”); Peter W. Schroth, Language and Law, 46 Am. J. Compar. L. 17, 26 n.41 (Supp. 1998) (“Ordinary meaning seems to differ from plain meaning, in that the former denotes something like ‘the sense this expression usually has in such contexts’ while the latter may require absence of ambiguity.”); Slocum

    ,

    supra note 2, at 23–25 (briefly distinguishing the ordinary meaning canon and plain meaning rule). ↑

  47.  Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev
    .

    726, 736 (2020) [hereinafter Tobia, Testing Ordinary Meaning]; see also Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 234 n.6 (observing in a footnote “the important point that plain meaning is not equivalent to ordinary meaning”). ↑

  48.  See infra note 84 and accompanying text. ↑

  49.  See Ryan D. Doerfler, How Clear Is “Clear”?, 109 Va. L. Rev. 651, 657–58 (2023); Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev

    .

    1497, 1505–09 (2019). ↑

Vagueness Avoidance

Introduction

It is no secret that legislatures often enact exceedingly broad and indefinite penal statutes1 1.F. Andrew Hessick & Carissa Byrne Hessick, Constraining Criminal Laws, 106 Minn. L. Rev. 2299, 2342 (2022) (“[L]egislatures routinely enact broad criminal statutes that sweep in far more conduct than the perceived problem that motivated the law.”); Carissa Byrne Hessick & Joseph E. Kennedy, Criminal Clear Statement Rules, 97 Wash. U. L. Rev. 351, 360–61 (2019) (describing legislative incentive to write broad and imprecise laws); Kiel Brennan-Marquez, Extremely Broad Laws, 61 Ariz. L. Rev. 641, 658–59 (2019) (“[O]urs is not a world where lawmakers tend to draft well-tailored, proportional statutes. Particularly in the realm of criminal law, the tendency is just the opposite.”); Marc A. Levin, At the State Level, So-Called Crimes Are Here, There, Everywhere, 28 Crim. Just. 4, 6 (2013) (highlighting “the deluge of overly broad and vague criminal laws”).The term “penal statutes” refers both to criminal statutes and to civil statutes that impose some form of penalty on those who violate them. Cf.Wooden v. United States, 142 S. Ct. 1063, 1086 n.5 (2022) (Gorsuch, J., concurring in the judgment) (explaining how the category of “‘penal’ laws” historically “includ[ed] ones we might now consider ‘civil’ forfeitures or fines”); Caleb Nelson, The Constitutionality of Civil Forfeiture, 125 Yale L.J. 2446, 2498–500 (2016) (explaining how early courts “often said that penal as well as criminal statutes should be ‘construed strictly’” (quoting United States v. Eighty-Four Boxes of Sugar, 32 U.S. (7 Pet.) 453, 462–63 (1833))).Show More that delegate enormous enforcement discretion to prosecutors and police officers.2 2.Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 360–61 (2021) [hereinafter Johnson, Vagueness Attacks] (explaining how indeterminate low-level order-maintenance crimes, “coupled with Fourth Amendment precedents . . . , effectively enable police officers to ‘search and seize whomever they wish’” (quoting William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 Harv. L. Rev. 842, 855 (2001) [hereinafter Stuntz, Transsubstantive Fourth Amendment])); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1664–65 (2010) (noting how legislatures “leave determinations of optimal enforcement to the executive[]” and “purposefully avoid the particulars [when drafting criminal statutes], anticipating case-specific, back-end equitable intervention”); Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 Hastings L.J. 633, 639 (2005) (observing that modern criminal codes “reflect[] a shift of practical authority away from the legislature to prosecutors and police, who now have broad discretion over who gets punished and the level of punishment” so that “[a]rrest, punishment, and the level of punishment are now determined as much by the ad hoc decision-making of individual law enforcement officials as they are by the legal rules”); see William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 547 (2001) (describing dynamics that lead to indeterminate criminal laws).Show More The constitutional void-for-vagueness doctrine promises to provide a check on that practice, at least to the extent sweeping and indeterminate statutory language “fails to give ordinary people fair notice of the conduct it punishes” or “invites arbitrary enforcement.”3 3.Johnson v. United States, 576 U.S. 591, 595 (2015); see also Kolender v. Lawson, 461 U.S. 352, 357–58 (1983) (explaining that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement”); Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 (1982); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926).Show More Yet, in most cases presenting such concerns, courts need not strike down the statute as unconstitutionally vague. Instead, they can typically avoid the vagueness conclusion by narrowly construing the indefinite statutory language. This approach—vagueness avoidance—is common and well documented.4 4.See Skilling v. United States, 561 U.S. 358, 405–06 (2010) (“It has long been our practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”); Joel S. Johnson, Vagueness and Federal-State Relations, 90 U. Chi. L. Rev. 1565, 1592 (2023) [hereinafter Johnson, Federal-State] (“In the typical federal-law vagueness case, the Supreme Court engages in vagueness avoidance. It narrowly construes the indefinite law to avoid any constitutional vagueness issues.”); Shon Hopwood, Clarity in American Criminal Law, 54 Am. Crim. L. Rev. 695, 698 (2017) (noting that the Supreme Court “rarely” invalidates “vague federal criminal laws”); Peter W. Low & Joel S. Johnson, Changing the Vocabulary of the Vagueness Doctrine, 101 Va. L. Rev. 2051, 2087 (2015) (observing that the “usual result” in a federal law vagueness case is for the Supreme Court to “avoid[] the problem by a narrowing interpretation”); Cristina D. Lockwood, Creating Ambiguity in the Void for Vagueness Doctrine by Avoiding a Vagueness Determination in Review of Federal Laws, 65 Syracuse L. Rev. 395, 396–97 (2015) (observing that the Supreme Court has “strive[d] to avoid invalidating federal laws as unconstitutionally vague”).Show More But it has never been theorized. This Article takes up that task, articulating a theory of vagueness avoidance as a tool of construction for constraining penal statutes.

Opportunities for its use are many. Each of the last ten Supreme Court Terms, for example, has provided at least one occasion for application of vagueness avoidance.5 5.See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1572 (2023) (avoiding construction that would give federal aggravated identity theft statute “incongruous breadth” and noting a “concern that a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed” (citing Marinello v. United States, 138 S. Ct. 1101, 1106 (2018))); Ruan v. United States, 142 S. Ct. 2370, 2377–78, 2380 (2022) (construing federal drug statute to include a strong scienter requirement, with the effect of narrowing the “vague, highly general language of the regulation defining the bounds of” the proscribed conduct); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021) (avoiding construction of the Computer Fraud and Abuse Act that “would attach criminal penalties to a breathtaking amount of commonplace . . . activity”); Kelly v. United States, 140 S. Ct. 1565, 1568 (2020) (avoiding construction of federal fraud statutes that would “criminalize all . . . conduct” that involves “deception, corruption, [or] abuse of power”); Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019) (construing the felon firearm statute narrowly to include strong scienter requirement in order to “separat[e] wrongful from innocent acts”); Marinello, 138 S. Ct. at 1107–08, 1110 (“‘exercis[ing]’ interpretive ‘restraint’” to reject broad construction of tax obstruction law that would create “fair warning” concerns by “transform[ing] every violation of the Tax Code into [a felony] obstruction charge” (quoting United States v. Aguilar, 515 U.S. 593, 600 (1995))); Salman v. United States, 580 U.S. 39, 51 (2016) (noting that narrow construction of insider trading statute avoided constitutional vagueness concerns); McDonnell v. United States, 579 U.S. 550, 574, 576–77 (2016) (rejecting “expansive” reading of bribery statute that rendered “outer boundaries” of federal bribery law “shapeless”); McFadden v. United States, 576 U.S. 186, 187, 197 (2015) (adopting a narrow construction of the Controlled Substances Act but declining to rely on vagueness avoidance as a basis for doing so); Burrage v. United States, 571 U.S. 204, 218–19 (2014) (rejecting broad reading that would have violated the principle that criminal laws must be “express[ed] . . . in terms ordinary persons can comprehend”).Show More

To the extent vagueness avoidance has been recognized, however, it has been assumed to be a simple application of ordinary constitutional avoidance.6 6.See, e.g., McFadden, 576 U.S. at 196–97 (treating the avoidance of “vagueness concerns” as a simple application of “the canon of constitutional avoidance,” a “tool for choosing between competing plausible interpretations of a provision” (citation omitted) (quoting Warger v. Shauers, 574 U.S. 40, 50 (2014))).Show More The Court is asked to choose between two or three plausible readings of indeterminate language in a penal statute—each usually having been adopted by some portion of the lower courts—and vagueness concerns are highlighted as a constitutional avoidance reason to reject one reading in favor of another.7 7.See, e.g., supra note 5.Show More Yet the ordinary formulations of constitutional avoidance do not capture what occurs when a court engages in vagueness avoidance.8 8.See infra Part II.Show More

The difference derives from the distinct concepts of ambiguity and vagueness. Ambiguity refers to indeterminacy that arises when a term is open to a “discrete number of possible meanings.”9 9.Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 38–39 (2010).Show More It calls for interpretation that determines semantic meaning. Ordinary constitutional avoidance canons are triggered by ambiguity, and their application points toward semantic meaning that avoids a constitutional infirmity. But vagueness and related indeterminacies in language are not resolved through interpretation; rather, a vague term is open to practically “innumerable possible meanings” or applications10 10.Id.Show More and requires judicial construction to determine legal effect. In other words, the court must craft a supplementary rule of decision to be applied to the facts of the case before it. This fundamental difference calls for a distinct conception of vagueness avoidance.11 11.See infra Part I.Show More

Vagueness and related indeterminacies are ubiquitous in law. But they pose a constitutional concern only in a specific circumstance—namely, when penal statutes contain language so indeterminate that it does not supply a textual basis to define the standard of conduct.12 12.See supra note 3.Show More That creates a constitutional concern because it effectively delegates the legislative task of defining criminal conduct and, in doing so, invites arbitrary enforcement and fails to provide sufficient notice.13 13.See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (explaining that the vagueness doctrine “rests on the twin constitutional pillars of due process and separation of powers,” and that “[v]ague laws . . . undermine the Constitution’s separation of powers” by “threaten[ing] to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide”); Johnson, Federal-State, supra note 4, at 26–27.Show More

By engaging in vagueness avoidance, courts can usually defuse the delegation threat posed by vague statutory language while also constraining its reach. Because such language typically has some practically identifiable core, courts may legitimately craft a judicial construction of the text that retains only that core while excising its indeterminate penumbra.14 14.See infra Subsection II.B.2; cf. H.L.A. Hart, The Concept of Law 123 (3d ed. 2012) [hereinafter Hart, Concept of Law] (observing that general rules have an “open texture” or “fringe of vagueness” and describing such rules as having a “core of certainty” and a “penumbra of doubt”); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 606–07 (1958) [hereinafter Hart, Positivism] (distinguishing the “core of settled meaning” from the “penumbra of debatable cases”).Show More In doing so, courts do not offend the principle requiring the legislature to define crime and fix punishments,15 15.Jones v. Thomas, 491 U.S. 376, 381 (1989) (making clear that, as a matter of federal law, “the substantive power to define crimes and proscribe punishments” lies with the “legislative branch of government”).Show More because the narrowing construction hews to the identifiable core within the linguistic meaning of the vague term enacted by the legislature. In such circumstances, that act of constraining the legal effect of the vague term often functions as a form of severance—the court declines to endorse the statute’s outer peripheries while simultaneously recognizing that some portion of the statute remains in force and is constitutionally valid.16 16.See infra Subsection II.B.2.Show More

Engaging in vagueness avoidance in this manner also promotes the legality principle in criminal law by preventing retroactive crime definition through judicial innovation.17 17.John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 189–90 (1985) (describing how the legality principle “forbids the retroactive definition of criminal offenses” through “judicial innovation”).Show More Those whose conduct falls within the identifiable core have no claim that they lacked notice, and those whose conduct falls outside it will not be subject to punishment under the narrowly construed statute.18 18.See infra Subsection II.B.2.Show More

This conception of vagueness avoidance is not merely an attractive normative principle. It also has a basis in the Supreme Court’s decisions. Although the Court has never fully articulated the justifications for vagueness avoidance, it has traditionally been explicit about taking that approach in cases involving federal penal statutes with indeterminate language. In 2010, the Court recognized that “[i]t has long been [its] practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”19 19.Skilling v. United States, 561 U.S. 358, 405 (2010); see also United States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise. . . . And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.” (citation omitted)).Show More

In more recent cases, however, the Court has retreated from explicit vagueness avoidance. In these cases of implicit vagueness avoidance, the Court still ultimately adopts a narrowing construction of an indeterminate statutory term, but it purports to justify that result on the basis of mere interpretation that determines semantic meaning, rather than expressly relying on vagueness avoidance as a tool of construction.20 20.See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1563 (2023); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); Kelly v. United States, 140 S. Ct. 1565, 1568–69 (2020); Yates v. United States, 574 U.S. 528, 539–47 (2015) (plurality opinion).Show More The Court sometimes invokes vagueness concerns in these cases. But when it does so, those concerns are not included as an essential component of its reasoning.21 21.See infra Section III.B.Show More

That trend is unfortunate. The Court is treating vagueness avoidance as indistinguishable from ordinary constitutional avoidance, a tool used merely to resolve ambiguity when ordinary tools of statutory interpretation are inadequate to recover semantic meaning.22 22.See infra Section III.B.Show More The Court thus gives vagueness concerns a significantly diminished role—tacking them on as an extra justification for an already-adopted reading,23 23.See, e.g., McDonnell v. United States, 579 U.S. 550, 576 (2016).Show More relegating them to dicta,24 24.See, e.g., Van Buren, 141 S. Ct. at 1661.Show More or not even mentioning them at all.25 25.See, e.g., Ciminelli v. United States, 143 S. Ct. 1121 (2023); Kelly, 140 S. Ct. 1565; Yates, 574 U.S. 528 (plurality opinion).Show More Each of those outcomes renders vagueness avoidance less useful as an analytical matter and less forceful as a doctrinal tool, much like the modern form of the rule of lenity that can be used only in the rare case of “grievous ambiguity” after all other interpretive tools have been exhausted.26 26.Muscarello v. United States, 524 U.S. 125, 139 (1998) (quoting Staples v. United States, 511 U.S. 600, 619 n.17 (1994)); see Wooden v. United States, 142 S. Ct. 1063, 1083–86 (2022) (Gorsuch, J., concurring in the judgment) (criticizing the weakening of the rule of lenity); Mila Sohoni, Notice and the New Deal, 62 Duke L.J. 1169, 1205 (2013) (observing that the rule of lenity “los[t] its bite” while Justice Frankfurter was on the Court); Dan M. Kahan, Lenity and Federal Common LawCrimes, 1994 Sup. Ct. Rev. 345, 386; Hessick & Hessick, supra note 1, at 2339 (calling the rule of lenity a “hollow shell of its historic ancestors” that “rarely affects the interpretation of criminal statutes”); see also Joel S. Johnson, Ad Hoc Constructions of Penal Statutes, 100 Notre Dame L. Rev. (forthcoming 2024) (manuscript at 4) (on file with author) [hereinafter Johnson, Ad Hoc Constructions] (observing that the Supreme Court “never firmly relied upon the rule of lenity . . . to justify a narrow construction” of a penal statute over the ten-year period studied).Show More

The practical effect is that the Court’s recent decisions rejecting exceedingly broad lower court readings of federal penal statutes27 27.See supra note 20.Show More do little to deter lower courts from adopting similarly broad constructions in other contexts.28 28.Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 45–49) (explaining how the Court’s ad hoc approach to construing penal statutes “gives lower courts license to adopt sweeping constructions of penal statutes”).Show More Each decision is essentially “ad hoc,” providing no widely applicable principles of construction.29 29.Id. at 4.Show More The lack of controlling principles emboldens prosecutors to continue exploiting indeterminate language in the federal criminal code to “attach criminal penalties to a breathtaking amount of commonplace” conduct.30 30.Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 49–51) (explaining that the Court’s ad hoc approach “invites broad theories of prosecution”).Show More And some lower courts justify those broad applications at the interpretation stage on the basis of the “plain meaning” of the statute’s literal text,31 31.See, e.g., United States v. Dubin, 982 F.3d 318, 325 (5th Cir. 2020), aff’d,27 F.4th 1021 (5th Cir. 2022) (en banc); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 47) (“[T]he Court’s consistent preference for ad hoc constructions [of penal statutes] thus likely yields a lower-court preference” for a “simple ordinary-meaning analysis” that leads to “more broad and literalistic constructions in the lower courts.”).Show More without any real consideration of whether a plain meaning that is open-ended might pose vagueness concerns. As a result, the Supreme Court’s correction of broad lower court readings “has become nearly an annual event.”32 32.Dubin, 27 F.4th at 1041 (Costa, J., dissenting).Show More

The Court should change course by disentangling vagueness avoidance from ordinary constitutional avoidance, explicating it as a robust tool of construction for penal statutes. When applying that tool, the Court should clearly identify the core-penumbra framework exhibited by the vague term, looking to clues from the text or other sources for aid in ascertaining the practically identifiable core. Once that core has been identified, the Court should expressly excise the indeterminate penumbra.33 33.See infra Part IV.Show More

Consistent adherence to that approach would provide a replicable framework for lower courts addressing other penal statutes containing indeterminate language and would encourage prosecutors to adopt charging policies that more readily acknowledge hard limits on the scope of federal criminal laws and expressly prohibit prosecutions beyond those limits.

Robust application of vagueness avoidance would also help answer recent calls by commentators for interpretative tools to reduce the breadth and imprecision of criminal law.34 34.See, e.g., Hessick & Hessick, supra note 1, at 2302–03 (arguing for restoration of the historical practice of construing criminal statutes narrowly); Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, 95 N.Y.U. L. Rev. 918, 921–24 (2020) (arguing that courts should restore the more robust, historical version of the rule of lenity as a tool for constraining criminal laws); see also Brennan-Marquez, supra note 1, at 656–65 (advocating for due process constraint on overbroad criminal laws that are not necessarily ambiguous or vague).Show More Those commentators have often focused their energy on arguments in favor of something resembling a more muscular version of the rule of lenity—one that is more frequently triggered by ambiguity and that more often “deliberately favor[s] criminal defendants” in constraining those ambiguous criminal laws.35 35.Hessick & Hessick, supra note 1, at 2303 (advocating for “historic rules of constraint”—namely, “interpret[ing] statutes to reach no further than the text or the purpose” and “treat[ing] broadly written laws as ambiguous and in need of narrowing constructions”); see Hopwood, supra note 34, at 921–24 (specifically arguing for a more robust version of the rule of lenity).Show More Making that argument, however, requires them to take on a significant methodological fight, contending that modern courts should loosen their modern textualist or purposivist commitment to implementing the will of the legislature—i.e., faithful agency36 36.See, e.g., John F. Manning, Response, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1651 (2001) (contending that the “faithful agent theory” of interpretation derives from “the best reading of the constitutional structure”). Although some scholars debate whether courts should be “faithful agents of the legislature or . . . independent cooperative partners” in interpretation, Kent Greenawalt, Statutory and Common Law Interpretation 20 (2013), the faithful-agent theory is the “conventional” approach. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 112 (2010).Show More—so as to accommodate an interpretive approach for criminal statutes that gives systemic preference to defendants’ liberty interests.37 37.See, e.g., Hessick & Hessick, supra note 1, at 2309, 2314 (observing that, because “textualists and purposivists agree that the role of a court in interpreting statutes is to be a faithful agent of the legislature,” courts committed to those methodologies have “not categorically approached the interpretation of criminal statutes differently from the interpretation of other statutes”); see also Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298, 1303 (2018) (finding implementing legislative will to be a common goal among judges).Some have argued that textualism best advances the legislative will. See, e.g., John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 7 (2001); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63, 64 (1994); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Court and the Law 3, 17–18 (Amy Gutmann ed., 1997). For a textualist, the legislature’s will is faithfully implemented by adhering to statutory text, with the goal of giving effect to its objective meaning. See, e.g., John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) (“[Textualism] ask[s] how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context.”). Others have argued that purposivism better advances legislative will. See, e.g., Henry J. Friendly, Benchmarks 200–01 (1967) (describing interpretation as “the art of proliferating a purpose” (quoting Brooklyn Nat’l Corp. v. Comm’r of Internal Revenue, 157 F.2d 450, 451 (2d Cir. 1946))); Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1113–14 (William N. Eskridge, Jr. & Philip F. Frickey eds., 1994) (arguing that the goal of interpretation is to implement the purpose underlying the law); Roscoe Pound, Spurious Interpretation, 7 Colum. L. Rev. 379, 381 (1907) (“The object of genuine interpretation is to discover the rule which the law-maker intended to establish.”). For a purposivist, the primary goal is to implement the “spirit” of the legislative enactment, Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 272 (2020), though statutory text remains key evidence of that sprit. See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1283–84, 1296 (2020) (showing that purposivists consider text but “are willing to reject a statute’s seemingly plain meaning when contrary indications of purpose cut strongly against such meaning”).Show More That argument has some normative appeal. But it will not likely gain traction in the current faithful-agent paradigm of statutory construction, which views the rule of lenity as inconsistent with the methodological commitment to implementing the legislative will.38 38.See infra Section II.C.Show More

A robust conception of vagueness avoidance is more promising. It comports with that methodological commitment,39 39.See infra Section II.C.Show More both because it is indisputably rooted in constitutional concerns and because it is not triggered by ambiguity—a type of indeterminacy that can often be resolved through the use of descriptive canons of interpretation and other ways of recovering semantic meaning.40 40.See infra Section I.B.Show More

The Article proceeds in four parts. Part I sets the table by distinguishing between several types of linguistic indeterminacy—ambiguity, vagueness, and contestability—and then describing how those categories closely relate to the important legal-process distinction between interpretation and construction. Part II is the heart of the Article. It builds on the interpretation-construction distinction to articulate a theory of vagueness avoidance that stands apart from ordinary constitutional avoidance. Part III then considers the extent to which that theory aligns with the Supreme Court’s decisions involving vagueness concerns, highlighting a recent and unfortunate trend toward implicit vagueness avoidance. Part IV argues that the Court should restore a more robust version of explicit vagueness avoidance.

  1.  F. Andrew Hessick & Carissa Byrne Hessick, Constraining Criminal Laws, 106 Minn. L. Rev. 2299, 2342 (2022) (“[L]egislatures routinely enact broad criminal statutes that sweep in far more conduct than the perceived problem that motivated the law.”); Carissa Byrne Hessick & Joseph E. Kennedy, Criminal Clear Statement Rules, 97 Wash. U. L. Rev. 351, 360–61 (2019) (describing legislative incentive to write broad and imprecise laws); Kiel Brennan-Marquez, Extremely Broad Laws, 61 Ariz. L. Rev

    .

    641, 658–59 (2019) (“[O]urs is not a world where lawmakers tend to draft well-tailored, proportional statutes. Particularly in the realm of criminal law, the tendency is just the opposite.”); Marc A. Levin, At the State Level, So-Called Crimes Are Here, There, Everywhere, 28 Crim. Just. 4, 6 (2013) (highlighting “the deluge of overly broad and vague criminal laws”).

    The term “penal statutes” refers both to criminal statutes and to civil statutes that impose some form of penalty on those who violate them. Cf. Wooden v. United States, 142 S. Ct. 1063, 1086 n.5 (2022) (Gorsuch, J., concurring in the judgment) (explaining how the category of “‘penal’ laws” historically “includ[ed] ones we might now consider ‘civil’ forfeitures or fines”); Caleb Nelson, The Constitutionality of Civil Forfeiture, 125 Yale L.J. 2446, 2498–500 (2016) (explaining how early courts “often said that penal as well as criminal statutes should be ‘construed strictly’” (quoting United States v. Eighty-Four Boxes of Sugar, 32 U.S. (7 Pet.) 453, 462–63 (1833))). ↑

  2.  Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 360–61 (2021) [hereinafter Johnson, Vagueness Attacks] (explaining how indeterminate low-level order-maintenance crimes, “coupled with Fourth Amendment precedents . . . , effectively enable police officers to ‘search and seize whomever they wish’” (quoting William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 Harv. L. Rev. 842, 855 (2001) [hereinafter Stuntz, Transsubstantive Fourth Amendment])); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1664–65 (2010) (noting how legislatures “leave determinations of optimal enforcement to the executive[]” and “purposefully avoid the particulars [when drafting criminal statutes], anticipating case-specific, back-end equitable intervention”); Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 Hastings L.J. 633, 639 (2005) (observing that modern criminal codes “reflect[] a shift of practical authority away from the legislature to prosecutors and police, who now have broad discretion over who gets punished and the level of punishment” so that “[a]rrest, punishment, and the level of punishment are now determined as much by the ad hoc decision-making of individual law enforcement officials as they are by the legal rules”); see William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 547 (2001) (describing dynamics that lead to indeterminate criminal laws). ↑

  3.  Johnson v. United States, 576 U.S. 591, 595 (2015); see also Kolender v. Lawson, 461 U.S. 352, 357–58 (1983) (explaining that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement”); Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 (1982); Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972); Connally v. Gen. Constr. Co., 269 U.S. 385, 393 (1926). ↑

  4.  See Skilling v. United States, 561 U.S. 358, 405–06 (2010) (“It has long been our practice, . . . before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction.”); Joel S. Johnson, Vagueness and Federal-State Relations, 90 U. Chi. L. Rev

    .

    1565, 1592 (2023) [hereinafter Johnson, Federal-State] (“In the typical federal-law vagueness case, the Supreme Court engages in vagueness avoidance. It narrowly construes the indefinite law to avoid any constitutional vagueness issues.”); Shon Hopwood, Clarity in American Criminal Law, 54 Am. Crim. L. Rev. 695, 698 (2017) (noting that the Supreme Court “rarely” invalidates “vague federal criminal laws”); Peter W. Low & Joel S. Johnson, Changing the Vocabulary of the Vagueness Doctrine, 101 Va. L. Rev. 2051, 2087 (2015) (observing that the “usual result” in a federal law vagueness case is for the Supreme Court to “avoid[] the problem by a narrowing interpretation”); Cristina D. Lockwood, Creating Ambiguity in the Void for Vagueness Doctrine by Avoiding a Vagueness Determination in Review of Federal Laws, 65 Syracuse L. Rev. 395, 396–97 (2015) (observing that the Supreme Court has “strive[d] to avoid invalidating federal laws as unconstitutionally vague”). ↑

  5.  See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1572 (2023) (avoiding construction that would give federal aggravated identity theft statute “incongruous breadth” and noting a “concern that a fair warning should be given to the world in language that the common world will understand of what the law intends to do if a certain line is passed” (citing Marinello v. United States, 138 S. Ct. 1101, 1106 (2018))); Ruan v. United States, 142 S. Ct. 2370, 2377–78, 2380 (2022) (construing federal drug statute to include a strong scienter requirement, with the effect of narrowing the “vague, highly general language of the regulation defining the bounds of” the proscribed conduct); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021) (avoiding construction of the Computer Fraud and Abuse Act that “would attach criminal penalties to a breathtaking amount of commonplace . . . activity”); Kelly v. United States, 140 S. Ct. 1565, 1568 (2020) (avoiding construction of federal fraud statutes that would “criminalize all . . . conduct” that involves “deception, corruption, [or] abuse of power”); Rehaif v. United States, 139 S. Ct. 2191, 2195–96 (2019) (construing the felon firearm statute narrowly to include strong scienter requirement in order to “separat[e] wrongful from innocent acts”); Marinello, 138 S. Ct. at 1107–08, 1110 (“‘exercis[ing]’ interpretive ‘restraint’” to reject broad construction of tax obstruction law that would create “fair warning” concerns by “transform[ing] every violation of the Tax Code into [a felony] obstruction charge” (quoting United States v. Aguilar, 515 U.S. 593, 600 (1995))); Salman v. United States, 580 U.S. 39, 51 (2016) (noting that narrow construction of insider trading statute avoided constitutional vagueness concerns); McDonnell v. United States, 579 U.S. 550, 574, 576–77 (2016) (rejecting “expansive” reading of bribery statute that rendered “outer boundaries” of federal bribery law “shapeless”); McFadden v. United States, 576 U.S. 186, 187, 197 (2015) (adopting a narrow construction of the Controlled Substances Act but declining to rely on vagueness avoidance as a basis for doing so); Burrage v. United States, 571 U.S. 204, 218–19 (2014) (rejecting broad reading that would have violated the principle that criminal laws must be “express[ed] . . . in terms ordinary persons can comprehend”). ↑

  6.  See, e.g., McFadden, 576 U.S. at 196–97 (treating the avoidance of “vagueness concerns” as a simple application of “the canon of constitutional avoidance,” a “tool for choosing between competing plausible interpretations of a provision” (citation omitted) (quoting Warger v. Shauers, 574 U.S. 40, 50 (2014))). ↑

  7.  See, e.g., supra note 5. ↑

  8.  See infra Part II. ↑

  9.  Lawrence M. Solan,

     

    The Language of Statutes: Laws and Their Interpretation

     

    38–39 (2010). ↑

  10.  Id. ↑

  11.  See infra Part I. ↑

  12.  See supra note 3. ↑

  13.  See United States v. Davis, 139 S. Ct. 2319, 2325 (2019) (explaining that the vagueness doctrine “rests on the twin constitutional pillars of due process and separation of powers,” and that “[v]ague laws . . . undermine the Constitution’s separation of powers” by “threaten[ing] to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide”); Johnson, Federal-State, supra note 4, at 26–27. ↑

  14.  See infra Subsection II.B.2; cf.

    H

    .L.A. Hart, The Concept of Law 123 (3d ed. 2012) [hereinafter Hart, Concept of Law] (observing that general rules have an “open texture” or “fringe of vagueness” and describing such rules as having a “core of certainty” and a “penumbra of doubt”); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 606–07 (1958) [hereinafter Hart, Positivism] (distinguishing the “core of settled meaning” from the “penumbra of debatable cases”). ↑

  15.  Jones v. Thomas, 491 U.S. 376, 381 (1989) (making clear that, as a matter of federal law, “the substantive power to define crimes and proscribe punishments” lies with the “legislative branch of government”). ↑

  16.  See infra Subsection II.B.2. ↑

  17.  John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 189–90 (1985) (describing how the legality principle “forbids the retroactive definition of criminal offenses” through “judicial innovation”). ↑

  18.  See infra Subsection II.B.2. ↑

  19.  Skilling v. United States, 561 U.S. 358, 405 (2010); see also United States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise. . . . And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.” (citation omitted)). ↑

  20.  See, e.g., Dubin v. United States, 143 S. Ct. 1557, 1563 (2023); Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); Kelly v. United States, 140 S. Ct. 1565, 1568–69 (2020); Yates v. United States, 574 U.S. 528, 539–47 (2015) (plurality opinion). ↑

  21.  See infra Section III.B. ↑

  22.  See infra Section III.B. ↑

  23.  See, e.g., McDonnell v. United States, 579 U.S. 550, 576 (2016). ↑

  24.  See, e.g., Van Buren, 141 S. Ct. at 1661. ↑

  25.  See, e.g., Ciminelli v. United States, 143 S. Ct. 1121 (2023); Kelly, 140 S. Ct. 1565; Yates, 574 U.S. 528 (plurality opinion). ↑

  26.  Muscarello v. United States, 524 U.S. 125, 139 (1998) (quoting Staples v. United States, 511 U.S. 600, 619 n.17 (1994)); see Wooden v. United States, 142 S. Ct. 1063, 1083–86 (2022) (Gorsuch, J., concurring in the judgment) (criticizing the weakening of the rule of lenity); Mila Sohoni, Notice and the New Deal, 62 Duke L.J. 1169, 1205 (2013) (observing that the rule of lenity “los[t] its bite” while Justice Frankfurter was on the Court); Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 386; Hessick & Hessick, supra note 1, at 2339 (calling the rule of lenity a “hollow shell of its historic ancestors” that “rarely affects the interpretation of criminal statutes”); see also Joel S. Johnson, Ad Hoc Constructions of Penal Statutes, 100 Notre Dame L. Rev. (forthcoming 2024) (manuscript at 4) (on file with author) [hereinafter Johnson, Ad Hoc Constructions] (observing that the Supreme Court “never firmly relied upon the rule of lenity . . . to justify a narrow construction” of a penal statute over the ten-year period studied). ↑

  27.  See supra note 20. ↑

  28.  Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 45–49) (explaining how the Court’s ad hoc approach to construing penal statutes “gives lower courts license to adopt sweeping constructions of penal statutes”). ↑

  29.  Id. at 4. ↑

  30.  Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 49–51) (explaining that the Court’s ad hoc approach “invites broad theories of prosecution”). ↑

  31.  See, e.g., United States v. Dubin, 982 F.3d 318, 325 (5th Cir. 2020), aff’d, 27 F.4th 1021 (5th Cir. 2022) (en banc); see also Johnson, Ad Hoc Constructions, supra note 26 (manuscript at 47) (“[T]he Court’s consistent preference for ad hoc constructions [of penal statutes] thus likely yields a lower-court preference” for a “simple ordinary-meaning analysis” that leads to “more broad and literalistic constructions in the lower courts.”). ↑

  32.  Dubin, 27 F.4th at 1041 (Costa, J., dissenting). ↑

  33.  See infra Part IV. ↑

  34.  See, e.g., Hessick & Hessick, supra note 1, at 2302–03 (arguing for restoration of the historical practice of construing criminal statutes narrowly); Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, 95 N.Y.U. L. Rev. 918, 921–24 (2020) (arguing that courts should restore the more robust, historical version of the rule of lenity as a tool for constraining criminal laws); see also Brennan-Marquez, supra note 1, at 656–65 (advocating for due process constraint on overbroad criminal laws that are not necessarily ambiguous or vague). ↑

  35.  Hessick & Hessick, supra note 1, at 2303 (advocating for “historic rules of constraint”—namely, “interpret[ing] statutes to reach no further than the text or the purpose” and “treat[ing] broadly written laws as ambiguous and in need of narrowing constructions”); see Hopwood, supra note 34, at 921–24 (specifically arguing for a more robust version of the rule of lenity). ↑

  36.  See, e.g., John F. Manning, Response, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1651 (2001) (contending that the “faithful agent theory” of interpretation derives from “the best reading of the constitutional structure”). Although some scholars debate whether courts should be “faithful agents of the legislature or . . . independent cooperative partners” in interpretation, Kent Greenawalt, Statutory and Common Law Interpretation 20 (2013), the faithful-agent theory is the “conventional” approach. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev

    .

    109, 112 (2010). ↑

  37.  See, e.g., Hessick & Hessick, supra note 1, at 2309, 2314 (observing that, because “textualists and purposivists agree that the role of a court in interpreting statutes is to be a faithful agent of the legislature,” courts committed to those methodologies have “not categorically approached the interpretation of criminal statutes differently from the interpretation of other statutes”); see also Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298, 1303 (2018) (finding implementing legislative will to be a common goal among judges).

    Some have argued that textualism best advances the legislative will. See, e.g., John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 7 (2001); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 63, 64 (1994); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Court and the Law 3, 17–18 (Amy Gutmann ed., 1997). For a textualist, the legislature’s will is faithfully implemented by adhering to statutory text, with the goal of giving effect to its objective meaning. See, e.g., John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003) (“[Textualism] ask[s] how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context.”).

    Others have argued that purposivism better advances legislative will. See, e.g., Henry J. Friendly, Benchmarks 200–01 (1967) (describing interpretation as “the art of proliferating a purpose” (quoting Brooklyn Nat’l Corp. v. Comm’r of Internal Revenue, 157 F.2d 450, 451 (2d Cir. 1946))); Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law

    1113–14 (

    William N. Eskridge, Jr. & Philip F. Frickey eds.,

    1994) (

    arguing that the goal of interpretation is to implement the purpose underlying the law); Roscoe Pound, Spurious Interpretation, 7 Colum. L. Rev. 379, 381 (1907) (“The object of genuine interpretation is to discover the rule which the law-maker intended to establish.”). For a purposivist, the primary goal is to implement the “spirit” of the legislative enactment, Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev.

    265

    , 272 (2020), though statutory text remains key evidence of that sprit. See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J

    .

    1275, 1283–84, 1296 (2020) (showing that purposivists consider text but “are willing to reject a statute’s seemingly plain meaning when contrary indications of purpose cut strongly against such meaning”). ↑

  38.  See infra Section II.C. ↑

  39.  See infra Section II.C. ↑

  40.  See infra Section I.B. ↑

First Amendment Disequilibrium

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers decision embody this view. Professor Cass Sunstein has described these cases as establishing a “First Amendment equilibrium,” one that arises out of the structural competition between the press and the executive. Today, judges and legislators continue to treat the press and the government as equal combatants in these disputes.

Yet whatever equilibrium might once have existed between the press and executive branch has been destabilized. The institutional press has been eviscerated in recent years—hemorrhaging talent, expertise, resources, and legitimacy. Wide swaths of the country now qualify as “news deserts,” lacking any local press presence at all. Public trust in the mainstream media has also plummeted. At the same time, many internal checks no longer constrain the ability of the executive branch to guard its secrets. This combination of a hollowed-out press and an insufficiently checked executive has given rise to a First Amendment disequilibrium, unsettling the foundations of this critical segment of constitutional law. This Article describes the causes and consequences of this disequilibrium and argues that recalibration is essential to fostering effective democratic self-governance.

Introduction

In the fall of 1968, a pair of FBI agents visited New York Times reporter Earl Caldwell.1 1.Josiah Bates, How a Journalist’s Refusal to Testify Against the Black Panthers Changed First Amendment Rights, Time (Feb. 28, 2022, 2:41 PM), https://time.com/6149443/earl-cald‌well-black-panthers-fbi/ [https://perma.cc/KP5X-L97H].Show More At the time, Caldwell was among the most prominent journalists in the country. He was the first Black reporter the Times assigned to cover Martin Luther King, Jr., and the only journalist on the scene when the civil rights leader was shot.2 2.Id.Show More The newspaper had recently assigned him to cover the Black Panther movement, and the FBI agents wanted to know if Caldwell would pass along information about the group. He refused.3 3.Id.Show More A year and a half later, a federal prosecutor subpoenaed him to testify before a grand jury about the movement. Again, he refused, arguing that the First Amendment protected the identity of his confidential sources and his eyewitness observations of the group’s activities.4 4.Branzburg v. Hayes, 408 U.S. 665, 675–77 (1972).Show More

The ensuing legal dispute reached the Supreme Court in 1972.5 5.Id. at 665.Branzburg was a consolidation of four separate cases. In addition to the case involving Caldwell, see id. at 675, there were two cases involving a Kentucky newspaper reporter who reported on individuals making hashish and using illegal drugs. Id. at 667–69. A third involved a television reporter in Massachusetts who obtained information while inside the headquarters of the Black Panthers. Id. at 672–73. The reason the reporters advanced this constitutional claim was that there were no federal or state shield laws available to offer protection. One of the consolidated cases involved a federal grand jury, and there was (and is) no federal shield statute. Id. at 689. One involved a state grand jury in Massachusetts, which had no shield statute at the time. Id. The other two involved a grand jury in Kentucky, whose shield statute was held to be inapplicable. Id. at 668–70.Show More In a set of four consolidated cases, Caldwell and two other reporters argued that a qualified constitutional privilege protected them from being compelled to divulge confidential information.6 6.Id. at 681 (“The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.”).Show More Without such protection, the reporters argued, their informational sources would dry up, impairing their ability to keep the electorate informed. The journalists argued that implicit in the constitutional rights of speech and press is a right to gather news and information.7 7.Id. at 680–81, 691–92.Show More

The Supreme Court rejected their privilege claims.8 8.Id. The holding in this case is debated. Much of the confusion stems from a concurrence written by Justice Powell—who served as the majority’s fifth vote—which seemed to advocate for a First Amendment balancing test that the majority had expressly rejected. Id. at 709–10 (Powell, J., concurring); see Michele Bush Kimball, The Intent Behind the Cryptic Concurrence That Provided a Reporter’s Privilege, 13 Commc’n L. & Pol’y 379, 381–82 (2008) (contending, based on historical research, that Justice Powell intended to support recognition of a qualified reporter’s privilege). For years, the lower courts have puzzled over how to interpret the case. See Christina Koningisor, The De Facto Reporter’s Privilege, 127 Yale L.J. 1176, 1196–98 (2018) (describing the split among the circuits). More recently, however, the trend among lower courts has been to read the case more narrowly. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (Posner, J.) (“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege . . . .”); see also RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, 84 Wash. L. Rev. 317, 346 & n.111 (2009) (suggesting that “media-generous reading[s] [of] Branzburg” were in decline).Show More In a 5-4 decision, the Court held there is no First Amendment privilege allowing reporters to shield confidential sources in response to a grand jury subpoena.9 9.Branzburg, 408 U.S. at 667–68.Show More A central assertion the Court made to justify this conclusion was that such a privilege was unnecessary. Justice Bryon White, writing for the majority, noted that the press had flourished for 200 years without a privilege and had proven capable of engaging in its own self-defense. “[T]he press has at its disposal powerful mechanisms of communication and is far from helpless to protect itself from harassment or substantial harm,” he wrote.10 10.Id. at 706.Show More The Court assumed that the press possessed the economic, political, cultural, and social clout needed to protect itself and penetrate government secrecy without judicial assistance.

This is no longer true today. The institutional press has been in free fall for more than two decades.11 11.See infra Section II.A.Show More Cycles of layoffs have stripped talent and expertise from newsrooms, and wide swaths of the country now qualify as “news deserts,” without any local newspapers and often no local press presence at all to keep communities informed and hold government actors accountable.12 12.Penelope Muse Abernathy, Ctr. for Innovation & Sustainability in Loc. Media, News Deserts and Ghost Newspapers: Will Local News Survive? 8 (June 24, 2020), https://www.usnewsdeserts.com/wp-content/uploads/‌2020/‌06/2020_News_‌Deserts_‌and‌_‌Gh‌ost_Newspapers.pdf [https://perma.cc/87KA-BHCP]; see also Steven Waldman, The Local-News Crisis Is Weirdly Easy to Solve, Atlantic (Aug. 8, 2023), https://www.theatlantic.com/‌ideas/archive/2023/08/local-news-investment-economic-value/674942/ [https://perma.cc/‌K3‌3J-RNFA] (“On average, two newspapers close each week. Some 1,800 communities that used to have local news now don’t.”).Show More Meanwhile, public trust in the media has declined dramatically.13 13.Megan Brenan, Americans’ Trust in Media Dips to Second Lowest on Record, Gallup (Oct. 7, 2021), https://news.gallup.com/poll/355526/americans-trust-media-dips-second-low‌est-record.aspx [https://perma.cc/R7B8-R9B4].Show More Even so, Branzburg v. Hayes’s assumptions about press power remain part of the foundational legal backdrop framing the relationship between the executive branch and the press—and, by extension, the public.

This Article reexamines the premises of Branzburg, along with those of other landmark cases and critical legislation addressing government control of information. This body of law includes foundational Supreme Court decisions defining the press’s right to gather news and access government information. It also includes landmark government transparency and accountability legislation, such as federal and state freedom of information laws.14 14.See infra Section I.B.Show More

Revisiting these sources uncovers two key assumptions upon which the government-press legal regime has been built. The first is that the institutional press is a powerful actor capable of asserting its professional interests and checking executive branch overreach at all levels of government—through the courts, via legislation, and by appealing directly to the public in the pages of its own publications.15 15.This Article uses the term “the executive” to refer to executive officials and agencies at federal, state, and local levels of government. This includes the president and federal agencies; state governors and state agencies; and local elected officials and local agencies, including local law enforcement agencies.Show More The second is that executive branch officials are bound by various internal and external constraints on their ability to keep information secret.

Judges and legislators have long assumed that the combination of a robust press and a constrained executive would establish a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Key First Amendment cases from this era, including Branzburg, New York Times Co. v. United States (The Pentagon Papers Case), and Houchins v. KQED, Inc., embody this view.16 16.See infra Section I.C.Show More Alexander Bickel famously described this as the “disorderly situation.”17 17.Alexander Bickel, The Morality of Consent 80 (1975).Show More Cass Sunstein, in turn, has referred to it as an “equilibrium model of the first amendment.”18 18.Cass R. Sunstein, Government Control of Information, 74 Calif. L. Rev. 889, 890 (1986). The First Amendment equilibrium is not intended to capture all of First Amendment law. It focuses more narrowly on a subset of cases and statutes that establish the legal foundation that governs press-government relations. See id.Show More

Both pillars of this constitutional equilibrium have been destabilized in recent years. The power and influence of the institutional press, particularly at state and local levels, has dramatically declined.19 19.See Brenan, supra note 13. Of course, there are exceptions. A handful of institutional media actors and some non-institutional ones continue to uncover secrets that the executive branch would prefer to withhold at the national level. See discussion infra notes 215–21 and accompanying text; see also Azmat Khan, Hidden Pentagon Records Reveal Patterns of Failure in Deadly Airstrikes, N.Y. Times (Dec. 18, 2021), https://www.nytimes.com/‌interactive/2021/12/18/us/airstrikes-pentagon-records-civilian-deaths.html [https://perma.cc/‌WZ34-VXQQ] (“Except for the rare instances of revelation and subsequent outcry, the Pentagon’s brief published reports on the minority of cases it finds credible are the only public acknowledgment of the air war’s civilian toll. The Times’s reporting in Iraq, Syria and Afghanistan points to the broader truth.”). However, some of these actors have faced serious consequences, including prosecution, for doing so. See, e.g., Press Release, U.S. Dep’t of Just., WikiLeaks Founder Julian Assange Charged in 18-Count Superseding Indictment (May 23, 2019), https://www.justice.gov/opa/pr/wikileaks-founder-julian-assange-charged-18-count-superseding-indictment [https://perma.cc/S52X-5SG8]. Further, the ability of media actors to perform a watchdog role at the national level is not matched at the local level. See discussion infra Section II.A.Show More At the same time, many intra- and intergovernmental checks on the executive branch no longer operate as effective constraints against government secrecy.20 20.See infra Section II.B; see also Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2316 (2006) (“The first-best concept of ‘legislature v. executive’ checks and balances must be updated to contemplate second-best ‘executive v. executive’ divisions.”).Show More This combination of a hollowed-out press and an unchecked executive has given rise to a First Amendment disequilibrium—a development that has been largely overlooked by the courts. The collapse of the institutional press at state and local levels and its further consolidation at the national level, together with the unleashing of many intergovernmental constraints on executive branch secrecy, has undermined a cornerstone of First Amendment law. These developments have jeopardized the press’s ability to check the executive branch and disseminate truthful information to the public.21 21.In this sense, this Article is in keeping with Tim Wu’s influential essay. See Tim Wu, Is the First Amendment Obsolete?, 117 Mich. L. Rev. 547 (2018). In that essay, Wu observes that a core set of First Amendment cases were decided at a time when there was information scarcity and government suppression of dissent was the primary threat to free speech. Id. at 548. He argues that these previous First Amendment holdings do not necessarily hold up under the conditions of the digital public sphere today, in which an abundance of cheap and easily manipulated speech threatens the nation’s information ecosystem. Id. at 548–49. This Article identifies a similar mismatch between the economic and political conditions under which the major First Amendment press cases were decided and those decided today.Show More

Existing scholarship fails to fully describe the forces destabilizing this equilibrium or the threat they pose to democratic self-governance. A prominent strand of recent First Amendment scholarship highlights how the Roberts Court’s deregulatory turn has contributed to a disordered information ecosystem.22 22.See, e.g., Richard L. Hasen, Cheap Speech and What It Has Done (To American Democracy), 16 First Amend. L. Rev. 200, 216–18 (2018) (describing how First Amendment restrictions on campaign finance laws can facilitate misinformation campaigns); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 202 (arguing that this deregulatory approach to the First Amendment concentrates power in the hands of a few and “displaces the policy preferences and the mechanisms for intelligent policy-preference development of a broader public with those of a smaller elite”); Ari Ezra Waldman, The Marketplace of Fake News, 20 U. Pa. J. Const. L. 845, 863–65 (2018) (describing how First Amendment protections for false speech limit the effect of consumer protection laws in addressing misinformation); Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393–94 (2017) (arguing that “the outward creep of the First Amendment . . . risks undermining the theoretical traditions of the First Amendment itself, especially with respect to listeners’ rights and individual autonomy”).Show More Based on this diagnosis, scholars and policymakers have sought cures for these disorders in various sources of law, including antitrust law,23 23.See, e.g., Staff of H. Subcomm. on Antitrust, Com., & Admin. L. of the Comm. on the Judiciary, 117th Cong., Investigation of Competition in Digital Markets 13 (Comm. Print 2022).Show More consumer protection law,24 24.See, e.g., Callum Borchers, How the Federal Trade Commission Could (Maybe) Crack Down on Fake News, Wash. Post (Jan. 30, 2017, 12:22 PM), https://www.washingtonpost.‌com/‌news/the-fix/wp/2017/01/30/how-the-federal-trade-commission-could-maybe-crack-down-on-fake-news/ [https://perma.cc/CDV3-MBNR] (describing how consumer protection laws could be harnessed to attack misinformation campaigns).Show More and the laws governing intermediary liability.25 25.See, e.g., Noah Feldman, Free Speech, Libel and the Truth After Pizzagate, Bloomberg (Dec. 16, 2016, 12:24 PM), https://www.bloomberg.com/opinion/articles/2016-12-16/free-sp‌eech-libel-and-the-truth-after-pizzagate#xj4y7vzkg [https://perma.cc/WSJ7-8EEF].Show More Yet this body of work has not fully captured the extent to which the nation’s information ecosystem is dependent on the body of law—both statutory and constitutional—that defines the rights of the press in the contest for control of information.

Media law scholars have focused more squarely on this legal regime. They have identified the crucial role of legislation in enabling the press to inform the public,26 26.David A. Anderson, Freedom of the Press, 80 Tex. L. Rev. 429, 432 (2002) (discussing the importance of nonconstitutional protections for the press).Show More recognized the inadequacy of constitutional protections for news-gathering,27 27.See generally Sonja West, Awakening the Press Clause, 58 UCLA L. Rev. 1025 (2011) (explaining that the Supreme Court does not recognize any independent right or protection arising solely from the Press Clause).Show More and emphasized how the fragility of the press compromises its ability to play its watchdog role.28 28.RonNell Andersen Jones, Litigation, Legislation, and Democracy in a Post-Newspaper America, 68 Wash. & Lee L. Rev. 557, 570–71 (2011) (showing how the decline of news-gathering resources is undermining democracy); Luke Morgan, The Broken Branch: Capitalism, the Constitution, and the Press, 125 Pa. St. L. Rev. 1, 6 (2020) (arguing “that the institutional press is critically important in the constitutional structure, and that it is dying for reasons that have nothing to do with intentional censorship by the government and everything to do with market capitalism”).Show More Although these scholars have paid close attention to the inadequacy of legal protections for the press, they have not fully examined how the shifting power dynamics in the press-government relationship have contributed to the decay of those legal protections.29 29.There are important exceptions. See, e.g., Jones, supra note 28, at 559 (arguing that “discussions about the risks that might accompany the death of newspapers have almost entirely ignored the ramifications for development and enforcement of the law”); David McCraw & Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in a Post-Pentagon Papers World, 48 Harv. C.R.-C.L. L. Rev. 473, 473–74 (2013) (describing the relationship between the press and the federal executive branch in the context of national security disclosures).Show More

This Article turns attention to these dynamics. It addresses the causes and consequences of First Amendment disequilibrium.30 30.In examining the press side of the balance, we build on the work of researchers who have documented the causes of the economic decline of the institutional press. Researchers, for example, have chronicled the dire financial consequences of the rise of online advertising and the decoupling of ad revenue from newspaper publishing.See, e.g., James T. Hamilton, Democracy’s Detectives: The Economics of Investigative Reporting 17 (2016); Martha Minow, Saving the News 19–20, 34–35 (2021); Jones, supra note 28, at 562–63, 568; RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U. L. Rev. 567, 576–78 (2017). We also look to the impact the economic decline of the institutional press has had on the democratic process. See, e.g., Joshua P. Darr, Matthew P. Hitt & Johanna L. Dunaway, Newspaper Closures Polarize Voting Behavior, 68 J. Commc’n 1007, 1008 (2018) (showing that when a local newspaper closes, voting becomes more polarized); Sam Schulhofer-Wolf & Miguel Garrido, Do Newspapers Matter? Short-Run and Long-Run Evidence from the Closure of The Cincinnati Post, 26 J. Media Econ. 60, 61 (2011) (finding that in the wake of a newspaper closure, voter turnout and campaign spending fell); Pengjie Gao, Chang Lee & Dermot Murphy, Financing Dies in Darkness? The Impact of Newspaper Closures on Public Finance 4–5, 21 (Hutchins Ctr. on Fiscal & Monetary Pol’y at Brookings, Working Paper No. 44, 2018), https://www.brookings.edu/wp-content/‌uploads/‌2018/‌09/‌WP‌44.pdf [https://perma.cc/XKA5-3EUK] (finding that, in the wake of a newspaper closure, the salaries of top government officials rose). Finally, we incorporate insights from those researchers who have examined various pathologies of democratic discourse in the social media era, including the rise of misinformation and political polarization, and demonstrated how this rise corresponds with a loss of public confidence in the press as an arbiter of truth. See, e.g., Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election, 31 J. Econ. Persps. 211, 212–13 (2017) (evaluating the consumption of fake news on social media platforms prior to the 2016 presidential election); Jane R. Bambauer, Snake Oil Speech, 93 Wash. L. Rev. 73, 83 (2018) (arguing in favor of greater government intervention to regulate fake speech); Caroline Mala Corbin, The Unconstitutionality of Government Propaganda, 81 Ohio St. L.J. 815, 820 (2020) (proposing that the government violates the speech clause of the First Amendment by spreading false information to citizens); Hasen, supra note 22, at 204–05 (describing the role that the decline of newspapers and the rise of social media has played in the spread of misinformation during election campaigns); Helen Norton, The Government’s Lies and the Constitution, 91 Ind. L.J. 73, 74–75 (2015) (exploring constitutional limits on the government’s authority to lie).Show More It also offers remedies designed to aid the press in combatting government secrecy, informing the electorate, and checking governmental abuses of power. Revisiting this legal regime reveals how much of the nation’s information infrastructure has been constructed around a set of factual assumptions about the press and the government that no longer hold true. This insight, in turn, opens up new paths for reforming key parts of the public sphere.

The Article proceeds in four parts. Part I describes how the Supreme Court and legislatures of the 1960s and ’70s enshrined into law a “First Amendment equilibrium” that continues to set the terms of the struggle between the press and the executive branch over control of information. It examines the growing power of the press and the adoption of various constraints on the executive’s control of information in the wake of the Vietnam War and Watergate.31 31.See Jonathan M. Ladd, Why Americans Hate the Media and How It Matters 6 (2012) (“The existence of an independent, powerful, widely respected news media establishment is an historical anomaly. Prior to the twentieth century, such an institution had never existed in American history.”).Show More It then maps the ways that assumptions about both the strength of the press and the constraints on government have been baked into the current legal regime. It traces these two assumptions throughout the major press cases of this era, as well as through the construction of the major transparency statutes and intergovernmental checks enacted at both the federal and state levels in this period.

Part II examines the current state of disequilibrium between the government and the press. It describes the collapse of press power and the erosion of many Watergate-era intergovernmental constraints. It then traces the impact of this disequilibrium on various parts of the law, including the law governing access to national security secrets, the protection of confidential sources, and the development of constitutional and statutory rights of information access. In doing so, it also explores the extent to which obsolete assumptions about power dynamics and dependencies within the government-press relationship permeate First Amendment theory in a manner that thwarts today’s press from playing its constitutionally assigned role as government watchdog and enabler of democratic self-governance.

Part III surveys potential critiques of the First Amendment equilibrium model, including the views that this equilibrium is undesirable or unimportant, or that it was a fiction from the start. Part IV then concludes with potential remedies to the current disequilibrium. It asks how we might recalibrate the equilibrium destabilized by the collapse of key segments of the press. It argues that there are two central paths forward: fixing the press, so that there is sufficient public oversight of government; and fixing the law, so that the distortions caused by the press’s decline are minimized.

  1.  Josiah Bates, How a Journalist’s Refusal to Testify Against the Black Panthers Changed First Amendment Rights, Time (Feb. 28, 2022, 2:41 PM), https://time.com/6149443/earl-cald‌well-black-panthers-fbi/ [https://perma.cc/KP5X-L97H]. ↑
  2.  Id. ↑
  3.  Id. ↑
  4.  Branzburg v. Hayes, 408 U.S. 665, 675–77 (1972). ↑
  5.  Id. at 665. Branzburg was a consolidation of four separate cases. In addition to the case involving Caldwell, see id. at 675, there were two cases involving a Kentucky newspaper reporter who reported on individuals making hashish and using illegal drugs. Id. at 667–69. A third involved a television reporter in Massachusetts who obtained information while inside the headquarters of the Black Panthers. Id. at 672–73. The reason the reporters advanced this constitutional claim was that there were no federal or state shield laws available to offer protection. One of the consolidated cases involved a federal grand jury, and there was (and is) no federal shield statute. Id. at 689. One involved a state grand jury in Massachusetts, which had no shield statute at the time. Id. The other two involved a grand jury in Kentucky, whose shield statute was held to be inapplicable. Id. at 668–70. ↑
  6.  Id. at 681 (“The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.”). ↑
  7.  Id. at 680–81, 691–92. ↑
  8.  Id. The holding in this case is debated. Much of the confusion stems from a concurrence written by Justice Powell—who served as the majority’s fifth vote—which seemed to advocate for a First Amendment balancing test that the majority had expressly rejected. Id. at 709–10 (Powell, J., concurring); see Michele Bush Kimball, The Intent Behind the Cryptic Concurrence That Provided a Reporter’s Privilege, 13 Commc’n L. & Pol’y 379, 381–82 (2008) (contending, based on historical research, that Justice Powell intended to support recognition of a qualified reporter’s privilege). For years, the lower courts have puzzled over how to interpret the case. See Christina Koningisor, The De Facto Reporter’s Privilege, 127 Yale L.J. 1176, 1196–98 (2018) (describing the split among the circuits). More recently, however, the trend among lower courts has been to read the case more narrowly. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (Posner, J.) (“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege . . . .”); see also RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, 84 Wash. L. Rev. 317, 346 & n.111 (2009) (suggesting that “media-generous reading[s] [of] Branzburg” were in decline). ↑
  9.  Branzburg, 408 U.S. at 667–68. ↑
  10.  Id. at 706. ↑
  11.  See infra Section II.A. ↑
  12.  Penelope Muse Abernathy, Ctr. for Innovation & Sustainability in Loc. Media, News Deserts and Ghost Newspapers: Will Local News Survive? 8 (June 24, 2020), https://www.usnewsdeserts.com/wp-content/uploads/‌2020/‌06/2020_News_‌Deserts_‌and‌_‌Gh‌ost_Newspapers.pdf [https://perma.cc/87KA-BHCP]; see also Steven Waldman, The Local-News Crisis Is Weirdly Easy to Solve, Atlantic (Aug. 8, 2023), https://www.theatlantic.com/‌ideas/archive/2023/08/local-news-investment-economic-value/674942/ [https://perma.cc/‌K3‌3J-RNFA] (“On average, two newspapers close each week. Some 1,800 communities that used to have local news now don’t.”). ↑
  13.  Megan Brenan, Americans’ Trust in Media Dips to Second Lowest on Record, Gallup (Oct. 7, 2021), https://news.gallup.com/poll/355526/americans-trust-media-dips-second-low‌est-record.aspx [https://perma.cc/R7B8-R9B4]. ↑
  14.  See infra Section I.B. ↑
  15.  This Article uses the term “the executive” to refer to executive officials and agencies at federal, state, and local levels of government. This includes the president and federal agencies; state governors and state agencies; and local elected officials and local agencies, including local law enforcement agencies. ↑
  16.  See infra Section I.C. ↑
  17.  Alexander Bickel, The Morality of Consent 80 (1975). ↑
  18.  Cass R. Sunstein, Government Control of Information, 74 Calif. L. Rev. 889, 890 (1986). The First Amendment equilibrium is not intended to capture all of First Amendment law. It focuses more narrowly on a subset of cases and statutes that establish the legal foundation that governs press-government relations. See id. ↑
  19.  See Brenan, supra note 13. Of course, there are exceptions. A handful of institutional media actors and some non-institutional ones continue to uncover secrets that the executive branch would prefer to withhold at the national level. See discussion infra notes 215–21 and accompanying text; see also Azmat Khan, Hidden Pentagon Records Reveal Patterns of Failure in Deadly Airstrikes, N.Y. Times (Dec. 18, 2021), https://www.nytimes.com/‌interactive/2021/12/18/us/airstrikes-pentagon-records-civilian-deaths.html [https://perma.cc/‌WZ34-VXQQ] (“Except for the rare instances of revelation and subsequent outcry, the Pentagon’s brief published reports on the minority of cases it finds credible are the only public acknowledgment of the air war’s civilian toll. The Times’s reporting in Iraq, Syria and Afghanistan points to the broader truth.”). However, some of these actors have faced serious consequences, including prosecution, for doing so. See, e.g., Press Release, U.S. Dep’t of Just., WikiLeaks Founder Julian Assange Charged in 18-Count Superseding Indictment (May 23, 2019), https://www.justice.gov/opa/pr/wikileaks-founder-julian-assange-charged-18-count-superseding-indictment [https://perma.cc/S52X-5SG8]. Further, the ability of media actors to perform a watchdog role at the national level is not matched at the local level. See discussion infra Section II.A. ↑
  20.  See infra Section II.B; see also Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within, 115 Yale L.J. 2314, 2316 (2006) (“The first-best concept of ‘legislature v. executive’ checks and balances must be updated to contemplate second-best ‘executive v. executive’ divisions.”). ↑
  21.  In this sense, this Article is in keeping with Tim Wu’s influential essay. See Tim Wu, Is the First Amendment Obsolete?, 117 Mich. L. Rev. 547 (2018). In that essay, Wu observes that a core set of First Amendment cases were decided at a time when there was information scarcity and government suppression of dissent was the primary threat to free speech. Id. at 548. He argues that these previous First Amendment holdings do not necessarily hold up under the conditions of the digital public sphere today, in which an abundance of cheap and easily manipulated speech threatens the nation’s information ecosystem. Id. at 548–49. This Article identifies a similar mismatch between the economic and political conditions under which the major First Amendment press cases were decided and those decided today. ↑
  22.  See, e.g., Richard L. Hasen, Cheap Speech and What It Has Done (To American Democracy), 16 First Amend. L. Rev. 200, 216–18 (2018) (describing how First Amendment restrictions on campaign finance laws can facilitate misinformation campaigns); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 202 (arguing that this deregulatory approach to the First Amendment concentrates power in the hands of a few and “displaces the policy preferences and the mechanisms for intelligent policy-preference development of a broader public with those of a smaller elite”); Ari Ezra Waldman, The Marketplace of Fake News, 20 U. Pa. J. Const. L. 845, 863–65 (2018) (describing how First Amendment protections for false speech limit the effect of consumer protection laws in addressing misinformation); Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1393–94 (2017) (arguing that “the outward creep of the First Amendment . . . risks undermining the theoretical traditions of the First Amendment itself, especially with respect to listeners’ rights and individual autonomy”). ↑
  23.  See, e.g., Staff of H. Subcomm. on Antitrust, Com., & Admin. L. of the Comm. on the Judiciary, 117th Cong., Investigation of Competition in Digital Markets 13 (Comm. Print 2022). ↑
  24.  See, e.g., Callum Borchers, How the Federal Trade Commission Could (Maybe) Crack Down on Fake News, Wash. Post (Jan. 30, 2017, 12:22 PM), https://www.washingtonpost.‌com/‌news/the-fix/wp/2017/01/30/how-the-federal-trade-commission-could-maybe-crack-down-on-fake-news/ [https://perma.cc/CDV3-MBNR] (describing how consumer protection laws could be harnessed to attack misinformation campaigns). ↑
  25.  See, e.g., Noah Feldman, Free Speech, Libel and the Truth After Pizzagate, Bloomberg (Dec. 16, 2016, 12:24 PM), https://www.bloomberg.com/opinion/articles/2016-12-16/free-sp‌eech-libel-and-the-truth-after-pizzagate#xj4y7vzkg [https://perma.cc/WSJ7-8EEF]. ↑
  26.  David A. Anderson, Freedom of the Press, 80 Tex. L. Rev. 429, 432 (2002) (discussing the importance of nonconstitutional protections for the press). ↑
  27.  See generally Sonja West, Awakening the Press Clause, 58 UCLA L. Rev. 1025 (2011) (explaining that the Supreme Court does not recognize any independent right or protection arising solely from the Press Clause). ↑
  28.  RonNell Andersen Jones, Litigation, Legislation, and Democracy in a Post-Newspaper America, 68 Wash. & Lee L. Rev. 557, 570–71 (2011) (showing how the decline of news-gathering resources is undermining democracy); Luke Morgan, The Broken Branch: Capitalism, the Constitution, and the Press, 125 Pa. St. L. Rev. 1, 6 (2020) (arguing “that the institutional press is critically important in the constitutional structure, and that it is dying for reasons that have nothing to do with intentional censorship by the government and everything to do with market capitalism”). ↑
  29.  There are important exceptions. See, e.g., Jones, supra note 28, at 559 (arguing that “discussions about the risks that might accompany the death of newspapers have almost entirely ignored the ramifications for development and enforcement of the law”); David McCraw & Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in a Post-Pentagon Papers World, 48 Harv. C.R.-C.L. L. Rev. 473, 473–74 (2013) (describing the relationship between the press and the federal executive branch in the context of national security disclosures). ↑
  30.  In examining the press side of the balance, we build on the work of researchers who have documented the causes of the economic decline of the institutional press. Researchers, for example, have chronicled the dire financial consequences of the rise of online advertising and the decoupling of ad revenue from newspaper publishing. See, e.g., James T. Hamilton, Democracy’s Detectives: The Economics of Investigative Reporting 17 (2016); Martha Minow, Saving the News 19–20, 34–35 (2021); Jones, supra note 28, at 562–63, 568; RonNell Andersen Jones & Sonja R. West, The Fragility of the Free American Press, 112 Nw. U. L. Rev. 567, 576–78 (2017). We also look to the impact the economic decline of the institutional press has had on the democratic process. See, e.g., Joshua P. Darr, Matthew P. Hitt & Johanna L. Dunaway, Newspaper Closures Polarize Voting Behavior, 68 J. Commc’n 1007, 1008 (2018) (showing that when a local newspaper closes, voting becomes more polarized); Sam Schulhofer-Wolf & Miguel Garrido, Do Newspapers Matter? Short-Run and Long-Run Evidence from the Closure of The Cincinnati Post, 26 J. Media Econ. 60, 61 (2011) (finding that in the wake of a newspaper closure, voter turnout and campaign spending fell); Pengjie Gao, Chang Lee & Dermot Murphy, Financing Dies in Darkness? The Impact of Newspaper Closures on Public Finance 4–5, 21 (Hutchins Ctr. on Fiscal & Monetary Pol’y at Brookings, Working Paper No. 44, 2018), https://www.brookings.edu/wp-content/‌uploads/‌2018/‌09/‌WP‌44.pdf [https://perma.cc/XKA5-3EUK] (finding that, in the wake of a newspaper closure, the salaries of top government officials rose). Finally, we incorporate insights from those researchers who have examined various pathologies of democratic discourse in the social media era, including the rise of misinformation and political polarization, and demonstrated how this rise corresponds with a loss of public confidence in the press as an arbiter of truth. See, e.g., Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election, 31 J. Econ. Persps. 211, 212–13 (2017) (evaluating the consumption of fake news on social media platforms prior to the 2016 presidential election); Jane R. Bambauer, Snake Oil Speech, 93 Wash. L. Rev. 73, 83 (2018) (arguing in favor of greater government intervention to regulate fake speech); Caroline Mala Corbin, The Unconstitutionality of Government Propaganda, 81 Ohio St. L.J. 815, 820 (2020) (proposing that the government violates the speech clause of the First Amendment by spreading false information to citizens); Hasen, supra note 22, at 204–05 (describing the role that the decline of newspapers and the rise of social media has played in the spread of misinformation during election campaigns); Helen Norton, The Government’s Lies and the Constitution, 91 Ind. L.J. 73, 74–75 (2015) (exploring constitutional limits on the government’s authority to lie). ↑

  31.  See Jonathan M. Ladd, Why Americans Hate the Media and How It Matters 6 (2012) (“The existence of an independent, powerful, widely respected news media establishment is an historical anomaly. Prior to the twentieth century, such an institution had never existed in American history.”). ↑

©Virginia Law Review Association. All rights reserved.