2. Legal Framing Innovation
2.2 Explaining Legal Framing Innovation
2.2.3 Legal Context
Just as changes in political and cultural contexts can act as catalysts for changes in a movement’s tactics, changes in the legal context can produce changes in movement framing. For example, in his development of the legal framing perspective, Pedriana (2006) demonstrates how Title VII provided the women’s movement with the means to shift from the protection frame, which emphasized protections exclusively for women, to the equal treatment frame, which argued for an equal standard for women and men. In the following section, I review literature
19 In NOW v. Scheidler (1994), antichoice protesters framed the murder of abortion provider, Dr. David Gunn, as a noble attempt to bring about social change by referencing the Court’s decision in a civil rights case brought by the NAACP: “[If r]espondents must take responsibility, based on their pro-life stance, for the death of Dr. David Gunn, then Charles Evers who participated in the civil rights boycott that this Court reviewed in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), was responsible for the shots that were fired at houses, the brick that was thrown through the windshield, the slashed tires, and the threatening phone call... Neither vicarious attribution of responsibility is appropriate.”
20 In their party brief in Bray v. Alexandra (1993), protesters attempted to discredit opponent claims of sex discrimination by strategically framing the behaviors of Operation Rescue founder, Terry Randall, as paternal and moralistic “… by documenting that his religious beliefs forbid him to condemn others, including ‘abortion-bound women;’ that he has a loving relationship with his wife and daughters; that he works along with women to help other women who face crisis pregnancies; and that ‘rescues’ aim at stopping the business of abortion itself by preventing entry of anyone into the abortion facility” (p. 14).
21 See Earl et al. (2004) for a review of the use of newspaper data in social movement research.
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that empirically demonstrates how changes in the legal context, specifically important changes in the law and the composition of the Court, affect framing innovation.
2.2.3.1 Prior Law and Precedent
Research shows that prior law and precedent influence the types of legal frames that can be made (Andersen 2004). We can see this as well in the abortion protest cases. In the cases22 brought by NOW against Joseph Scheidler and other protest organizations for violations under RICO, both sides had to contend with whether or not RICO required that an organization must be acting in pursuit of an economic motive in order to be defined as a racketeering enterprise.
Legal precedent and legal norms also shape subsequent legal mobilization efforts (Andersen 2004; Zemans 1983). In Roe v. Wade (1973), the Court accepted the individual privacy framing and most abortion litigation since Roe has been concerned with the state’s ability to limit the right to privacy. Had the Supreme Court framed its decision differently23, abortion litigation would have been altered (Andersen 2004). Work by Vanhala (2011) and Meyer and Boutcher (2007) parallel this assertion. In her comparison of legal frames used by disability rights activism in Canada and the United Kingdom, Vanhala (2011) attributes the emergence of different legal frames regarding reasonable accommodation to differences in Court understandings of accommodation24. Similarly, Meyer and Boutcher (2007) contend that the
22 510 U. S. 249 (1994), 537 U. S. 393 (2003), 547 U. S. 9 (2006)
23 Koppelman (1990), for example, argues that the Court erred in its decision to frame Roe in terms of the right to privacy, and instead, should have anchored the right to abortion on the equal protection clause of the fourteenth amendment.
24 In Canada, reasonable accommodation was developed around the basis of religion while in the UK it was developed in case law on disability and later applied to discrimination based on pregnancy and race. As a result, argues Vanhala (2011), disability rights activists in Canada framed reasonable accommodation in terms of the experiences of marginalized groups while activists in the UK emphasized the distinction between disability discrimination and other forms of discrimination.
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Supreme Court’s decision in Brown v. Board of Education (1954) encouraged subsequent civil rights litigants to borrow legal frames from the civil rights movement.
In short, prior research suggests that activists may adjust their litigation strategies – particularly their legal frames – in response to important Court decisions. Turning to the abortion clinic protest cases in my dissertation research, the Supreme Court’s landmark ruling25 on
“buffer zones” that prohibited protest demonstrations within fifteen feet of abortion clinic entrances represented a significant change in the law regarding abortion protests. Therefore, I hypothesize that legal framing innovation is more likely to occur in cases involving disputes over buffer-zone laws when the brief’s supporting party and type are held constant.
2.2.3.2 Court Composition
In addition to access to political institutions, scholars of political opportunity structure have paid attention to what Doug McAdam refers to as “the stability or instability of that broad set of elite alignments that typically undergird a polity” (1996:27). Several scholars have pointed out that the instability of political alignments, in particular, create the opportunity for successful mobilization (e.g., Tarrow 1994; Kriesi 1995). A similar dynamic may occur in the legal context, concerning the makeup of the Supreme Court. Much of the work that examines the effects of the court composition – that is, the ideology of the members of the judiciary – have used it to explain other movement outcomes such as the decision to litigate (Perry 1991; Andersen 2004) and litigation strategies and tactics (De Fazio 2012). When it comes to the effects of judicial attitudes on legal framing specifically, McCammon and Beeson-Lynch (2021) found that prochoice cause lawyers engage in framing innovation when facing a more hostile judiciary. As such, I
25 Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357 (1997)
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hypothesize that legal framing innovation is more likely to occur in legal contexts that are more hostile towards feminists.
Prior research strongly suggests that the perspectives of individual justices influence the trajectory of legal mobilization, and activists, usually aware of judges’ ideologies, plan their legal framing strategies accordingly (Andersen 2004; McCammon & Beeson-Lynch, 2020).
There is a great deal of research that indicates that judicial decisions/trial outcomes tend to reflect ideological preferences of judges (Segal & Cover 1989; Segal 1997; Segal & Spaeth 1993; Segal, Epstein, Cameron, & Spaeth 1995; Gely & Spiller 1990; Spiller & Gely 1992;
Epstein 1995; de Figueiredo & Tiller 1996; McCubbins, Noll, & Weingast 1989, 1995; Cross &
Tiller 1998), and studies commonly use the Martin-Quinn score as a measure of judicial ideology.