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The Management of Speech: Discretion and Rights, 1984 SUPREME COURT REVIEW 169.


Discretion is pervasive in our legal system, and yet we scarcely know what it is. Ronald Dworkin, for example, has compared discretion to "the hole in the doughnut." Dworkin's metaphor is unsettling because it so precisely captures our instinctive sense of discretion as dead analytic space.

Discretion most often appears to us as merely the negative reflection of the law. It subsists in the interstices of the law. "Where the law ends," Kenneth Davis writes, "discretion begins." It is as if law and discretion were binary opposites, as if the presence of one signaled the absence of the other. We can have law or discretion, but not both. And this is because, as Herbert Packer put it, "The basic trouble with discretion is simply that it is lawless, in the literal sense of that term."

The difficulty with this view is that it blinds us to the subtle and various ways in which law and discretion are in fact related. Discretion is not simply the negative reflection of law, and if we persist with such a vision, we truncate our understanding of important and complicated occasions when law authorizes the exercise of discretion. This is particularly true when litigants seek to curb the management of government institutions by the assertion of constitutional rights. In such circumstances the demands of law and of discretion are at their greatest, as is the necessity of accurately comprehending the relationship of one to the other.

This was demonstrated in the 1983 Term in Seattle Times Co. v. Rhinehart, a case concerned with the constitutional rules governing protective orders that prohibit the disclosure of information received in civil discovery. On one side was the First Amendment right to be free from restraints on speech. On the other was the need for flexibility in the management of pretrial discovery. The Supreme Court perceived the case as a choice between law, with its attendant rules and rights, and discretion, with its attendant flexibility and effectiveness. The Court opted for discretion.

The decision placed the Court at odds with a long line of precedents holding that discretion in the suppression of First Amendment rights is particularly suspect. The most striking aspect of the Court's opinion is its refusal to address this tension, which suggests that the Court lacked an underlying theory of the relationship between First Amendment rights and government discretion. If law and discretion are viewed as irreconcilable, such a theory is impossible. But if law and discretion are instead seen as complementary, one can develop what the Court in Rhinehart so clearly needed: a theory of the management of speech.

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