3. Rights, reinterpretation, and reform

Reconstructions of Constitutional rights are a popular academic topic, but reinterpreting the Constitution should be a disfavored reform strategy. Reconstruction is piecemeal, changes have holistic significance, and unexpected consequences are apt to defeat the reformers' aim. Consider the construction of the First Amendment's free-speech right and the hypothetical legal consequences of accepting Justice Hugo Black's superior First Amendment jurisprudence.

Our First Amendment jurisprudence bifurcates free-speech policy into preventing viewpoint discrimination and opportunity or volume constriction. The courts use, to a first approximation, strict scrutiny for discrimination by viewpoint and an intermediate level of scrutiny for time, place, and manner constraints. (See Stone, Content-Neutral Restrictions (1987) 54 U. Chi. L. Rev. 46.) Respected scholars advocate various analyses, which must limit First Amendment liberty because exercising “no restraint” literally would induce cacophony. (See, e.g., McDonald, Speech and distrust: Rethinking the content approach to protecting freedom of expression. (2006) 81 Notre Dame L. Rev. [advocating balancing test].) Justice Black's speech-versus-act approach can't, as he hoped, avoid construction, not for the sophistic reason that speech is action but rather because restraints on speech-related acts constrain associated speech. The vagueness subtracted from "speech" is added to the vagueness of "restrain." Just as one act is more or less speechlike than another, one measure is more restraintlike, but no objective metric or guidance prescribes a dichotomy. Yet, Black's approach is superior even it if doesn't achieve the hoped for constructionless textual interpretation. Black specifies the behavior the First Amendment protects as speech differently. On restricting seditious speech, for example, Black rejected any balancing test, even the clear and present danger test modified by the currently leading case, Brandenburg v. Ohio (1969) 395 U.S. 444. Black contended the law could suppress calls for unlawful antigovernment action only when immediately obeyed commands turned speech into the act of incitement. Although viewpoint neutrality and volume maximization don't formally conflict, Black's First Amendment jurisprudence emphasizes viewpoint neutrality protection at volume maximization's expense.

Sheer jurisprudential elegance favors Black, and strong arguments tell against the prevailing view. Where does the Constitution's text distinguish between intermediate and strict scrutiny? The test comes from an inference about intended policy, weighing viewpoint discrimination and volume constriction. Does the policy inference come from social practices contemporary with the Founders? Then we assume the Constitution capable only of enshrining social practices, rather than changing them. We may also have to assume that law authorizes whatever a majority of its proponents believe, instead of being limited to that portion of their beliefs they sought to codify. By comparison, Black's view escapes Occam's Razor by avoiding multiplication of a single right's aims. Black's interpretation also seems a stronger bar to oppression. Black's literal interpretation of "speech" minimizes the restraints applied further than Brandenburg v. Ohio, supra, and invalidates all defamation law and anti-obscenity laws. But this same concrete interpretation prevents giving speech the broad sweep of contemporary First Amendment jurisprudence in extending it to acts speechlike only in their communicative intent. While Black would sacrifice some decisions civil libertarians are fond of, explicitly verbal communication is still ideology's main vehicle, and suppressing speech based on viewpoint is historically the main motive for suppressing speech to obfuscate and deceive.

The motive for the volume-maximization policy is hard to understand on its own terms because volume maximization serves a different right. Speech restrictions most disadvantage those with fewest means. Intermediate scrutiny of nonideological speech constraints protects the expressive rights of citizens without means to circumvent time, place, and manner restrictions. Because the courts haven't used economic status to define any suspect class, the First Amendment's recentering without broadening the Fifth Amendment would delete Constitutional protection for accessible expressive outlets.

2.1. Practitioners' Notes on Invalidating the California Vexatious Litigant Statute

Only one federal case has considered California's vexatious litigant statute, Wolfe v. George (9th Cir. 2007) 486 F.3d 1120, a fatally flawed decision upholding the statute. The Wolfe court's error is demonstrable because it depends on a construction of California law at odds with the California Supreme Court. The 9th Circuit held:

When no bond is required, the California prefiling order does little more than require sua sponte review of a vexatious litigant's complaint to see whether it states a claim before imposing the burden of litigation on a defendant. The defendant could move to dismiss for the same reason, so the statute is not a substantial or irrational bar to access. (Id., at pp. 1126-7.)

The appellate panel didn't absorb enough California law to call the state's pre-answer procedure for a complaint's facial dismissal a demurrer. The panel's startling ignorance of state law, whose construction by California controls, distorted the panel's view of the scope the vexatious litigant statute confers on the summary procedure it authorizes. This misinterpretation of California law trivializes the vexatious-litigant statute's harm.The statute provides for an impromptu and sua sponte summary judgment, as was always clear and a California Supreme Court decision, a month before, had established:

[M]ay the trial court weigh the evidence presented on the motion, or must it assume the truth of plaintiffs alleged facts and determine only whether the claim is foreclosed as a matter of law? ¶ We conclude the trial court is permitted to weigh the evidence ... (Moran v. Murtaugh Miller Meyer & Nelson (2007) 40 Cal.4th 780.)

Litigants challenging the California vexatious litigant statute have invariably erred on basic appellate tactics. Usually they fail to isolate the statute's legal vulnerabilities, as opposed to the most morally salient features, Wolfgram's lead issue a notable exception. Wolfgram, nonetheless, mistakenly included every conceived issue. (See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43.)

Some lines of attack on the statute promise success. Noting much frivolous litigation is not vexatious, the first theory is based on the argument that imposing penalties for merely frivolous filing, without proving wrongful motivation, fails to allow breathing space for the First Amendment. (Be&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 531.) The breathing-space argument depends, however, on the court's employing the strict scrutiny that a measure limiting access to the courts deserves. Another promising theory argues that the statute's method of measuring vexatiousness fails a rational-basis test. If a pro se plaintiff wins five cases in seven years, the single truly frivolous action initiated might attach the vexatious-litigant label. But winning five cases proves the litigation was meritorious, hence as a matter of law not vexatious or even frivolous, the decision procedure's irrationality amplified if the litigant filed only five lawsuits. (See De Long v. Hennessey (9th Cir. 1990) 912 F.2d 1144, 1148 [district court must address the content of the filings as indicia of frivolousness].)

2.0 Constraint on Right to Petition: For Invalidation of Vexatious-Litigant Statutes

Every public court system must deal with abusive-litigation problems. Regulating court access is a framework consideration because the right to be heard is fundamental to due process. (Molski v. Evergreen Dynasty Corp. (9th Cir. 2008) 521 F.3d 1215, 1216 (dis. opn. of Berzon, C. J.) ["pre-filing orders infringe the fundamental right to access the courts"].) Unconstitutional practices accompanied vilification of litigiousness.

California was first to pass a vexatious-litigant statute (Code Civ. Proc., § 391 et seq.) and to include provision for prefiling orders; Texas and Hawaii have passed laws modeled on California's. The California statute allows the court to uphold a motion labeling a pro-se litigant vexatious if the party filed five unsuccessful lawsuits in the past seven years and the current action is one for which no reasonable attorney would anticipate success. The "vexatious litigant" label, once applied, was effectively deemed permanent until Lucket v. Panos (2008) 161 Cal.App.4th 77. The unsuccessful lawsuits need not have been frivolous themselves, and successful lawsuits don't change the calculus.

California's vexatious-litigant statute is less rights-protective than the federal standard, which insists on crucial distinctions California ignores: vexatiousness can't be equated with litigiousness; low-probability cases aren't necessarily baseless; and litigation doesn't become sham — hence unprotected — without bad-faith motivation. (Professional Real Estate Investment Inc. v. Columbia Pictures Industries Inc. (1993) 508 U.S. 49.) The U.S. Supreme Court hasn't formally considered whether the full protection of the right to access the courts on which federal law insists derives from the U.S. Constitution. The High Court qualified Bill Johnson's Restaurants Inc. v. NLRB (1983) 461 U. S. 731, disavowing complete absence of First Amendment protection for frivolous litigation. Even unmeritorious filings must receive some protection to secure breathing room for the First Amendment. (Be&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 531.) Dicta suggest that it is likely federal requirements apply to the states under the Fourteenth Amendment. (But see Wolfe v. George (9th Cir. 2007) 486 F.3d 1120.)

California appellate courts have been gentle with the vexatious-litigant statute despite the rift with federal courts, even as superior-court judges respect the right to court access by their reluctance to impose prefiling orders. The most sophisticated challenge to the vexatious litigation statute was denied by the California Court of Appeal in Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43. Wolfgram maintained that suits against the government could not count toward his five losses because petitioning the government was a basic constitutional right. Analogy to well-settled precedent favored Wolfgram, the Supreme Court having held that the government could not sue for malicious prosecution because it would chill the right to petition. (City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 538-9 [Bozek].)

Since Bozek held the government could not penalize petitioning activity, plaintiff Wolfgram sustained his argument. The Court of Appeal panel, however, agreed with the dissent in Bozek that it had been wrongly decided, and the court evaded Bozek's logic by holding the prefiling order is not a penalty keeping the litigant out of court, not noticing that neither is the analogously treated damages award for malicious prosecution. The Ninth Circuit made the penalty's terms clear in Moy v. United States (9th Cir. 1990) 906 F.2d 467, 470:

Among all other citizens, he is to be restricted in his right of access to the courts. As far as he is concerned, his future filings run the risk of delay and even possible rejection before he can call upon defendants to respond to those filings. ... We cannot predict what harm might come to him as a result, and he should not be forced to predict it either. What he does know is that a Sword of Damocles hangs over his hopes for federal access for the foreseeable future.

The dissent in Bozek, supra, 31 Cal.3d at p. 539 (dis. opn. of Kaus, J.) argued that petitioning activity includes actions against private persons. The Bozek court's holding, then, proves too much, excluding all suits for malicious prosecution. The dissenting Bozek argument ignores the reasoning of the Bozek court was itself based on numerous precedents holding the government could not sue for defamation. (See Bozek, supra, 31 Cal.3d at p. 545.) If the government can't sue for false speech directed against it, the same principles dictate it can't penalize for sham litigation against it. The right to free speech and petition are equally fundamental First Amendment rights.

One usually unremarked consequence of the vexatious-litigation statute is the poisoning of the courts against parties labeled "vexatious litigants." The witchhunt against more litigious citizens frees judges to express their natural antipathy toward parties carrying the vexatious-litigant label. Such prejudice is also suffered by attorneys with State Bar discipline records — sometimes, for frivolous filings. Legislation targeting aggressive attorneys or litigious parties creates a partly disenfranchised class in a climate subjecting it to increasingly limited enjoyment of fundamental rights, a second tier to our huge class of disenfranchised felons.