First Amendment Law Prof Blog

Will First Amendment Analysis Be Reshaped By the Roberts Court?

The First  Amendment Center website features an essay by David L. Hudson, Jr. in which he examines whether the Roberts Court will jettison several much criticized First Amendment precedents from the Burger Court era. The rejection of the doctrinal frameworks presented in these cases, Lemon, Central Hudson, and Miller, would mark a siginificant re-orientation of the analysis of Establishment Clause, commercial speech and obscenity problems.

JFB

First Amendment Scholarship Update

Newly available articles on First Amendment topics include:

1)Catherine J. Lanctot, University School of Law), "We are at War and You Should Not Bother the President": The Suffrage Pickets and Freedom of Speech During World War I. The abstract states:

The story of Alice Paul's National Woman's Party and its 1917 picketing campaign on behalf of woman suffrage is almost unknown in legal circles. Yet the suffrage pickets were among the earliest victims of the suppression of dissent that accompanied the entry of the United States into World War I. Nearly forty years before the modern civil rights movement brought the concept of nonviolent civil disobedience to the forefront of American political discourse, the NWP conducted a direct action campaign at the very doorstep of the President of the United States, and they did so during a time of war.

In the course of this campaign, Paul and her supporters learned to use the apparatus of the municipal courts and the prison system to focus attention on the powerlessness of women, while at the same time elevating their very real suffering to a kind of suffrage martyrdom. Their principal goal was to keep pressure on government officials so that the cause of woman suffrage would not be swept away in the wartime hysteria that gripped the nation in 1917. As the police regularly hauled them off to jail, however, the suffragists began to realize that their ability to pursue that goal hinged largely on the recognition of a constitutional right to free speech.

This Article represents the first step in recovering this forgotten story. I present, for the first time, a detailed narrative account of the legal battles of the suffrage pickets of 1917, beginning with the first round of arrests in late June, and concluding with their victory in the Court of Appeals in March 1918. Although the women themselves did not directly shape legal doctrine, the saga of the suffrage pickets provides an excellent vehicle for examining the emergence of free speech consciousness during 1917. Bringing the story of the suffrage pickets to the attention of legal scholars may cause a significant reevaluation of the traditional narrative of First Amendment history.

2)Martha Minow(Harvard Law School), The Government Can't, May, or Must Fund Religious Schools: Three Riddles of Constitutional Change for Laurence Tribe, 42 Tulsa Law Review ---(2008). The abstract states:

Three linked puzzles arise with the constitutionality of public funding private schools - where the funding scheme excludes religious schools: how can the demands of both the Establishment and Free Exercise clause be satisfied; what does respecting precedent mean when there is a recent reversal of one line of cases, and when does federalism demand deference to the supremacy of the federal constitution or instead respect for state autonomy? The puzzling conjunction of the free exercise and establishment could lead government actors has led the Supreme Court to call for "play-in-the-joints," allowing some distance between government aid and religious institutions even at if it limits the free exercise of some individuals who at the margin may choose a non-religious path in order to get the public subsidy. The second puzzle - how to respect precedent when a recent new precedent overturns an older one - suggests some respect people's reliance on surrounding precedents, here governing the pre-existing relationship between religion and government. The third puzzle, federalism's Janus-faced tribute to state autonomy, requires federal supremacy but should permit the variety that decentralization enables. Given these puzzles, consideration of policy effects is justified; it is relevant to consider how mandating public funding of vouchers and tax credits redeemable at parochial schools as part of any public educational aid would likely lead many more families to opt for private religious schools, schools - and would alter the character of schooling and socialization in America. Taken together, stare decisis and the religion clauses suggest that federal courts now should leave room for state experimentation and variety rather than a uniform national solution on the issue of compelled public aid to religious schools. This approach is informed by Professor Tribe's approach to constitutional doctrine not a straight-jacket but instead a tool for addressing complex difficulties in light of past resolutions of analogous difficulties as well as past and enduring normative commitments.

3)Mark Spottswood ( Law Clerk to the Hon. Rebecca Pallmeyer, District Court for the Northern District of Illinois), Falsity, Insincerity, and the Freedom of Expression, 16 William & Mary Bill of Rights Journal 1203( 2008). The abbstract states:

Three decades ago, the Supreme Court announced that false statements of fact are devoid of constitutional value, without providing either a reasoned explanation for that principle or any supporting citations. This assertion has become one of the most frequently repeated dogmas of First Amendment law and theory, endlessly repeated and never challenged. Disturbingly, this idea has provided the theoretic foundation for a regime in which some speakers can be penalized for even honestly believed factual errors. Even worse, this dogma is flat wrong.

False statements often have value in themselves, and we should protect them even in some situations where we are not concerned with chilling truthful speech. When false statements are spoken sincerely, they are a useful and necessary part of argumentation, which is a powerful means of increasing human knowledge. When confronted with honest errors, proponents of competing beliefs have a natural impulse to contest them; in so doing, they unearth and disseminate facts that deepen the understanding of both speakers and listeners. False speech, therefore, is valuable because it is an essential part of a larger system that works to increase society's knowledge.

4)Randall P. Bezanson ( University of Iowa College of Law) Art and the Constitution , forthcoming in 93 Iowa L. Rev. 101(2008). The abstract states:

Art and the Constitution addresses a longstanding problem in free speech theory: the status of art as expression protected by the First Amendment. The article, drawn from Professor Bezanson's forthcoming book, Art and the First Amendment (U. Ill. Press 2008-09), suggests that art should be broken down into two separate forms, propositional art and non-propositional art, with propositional art to be protected under the traditional speech paradigm and non-propositional art to be protected under an altogether different paradigm that results in art enjoying a distinct and greater degree of freedom under the First Amendment

5)Paul M. Secunda (University of Mississippi - School of Law) Garcetti's Impact on the First Amendment Speech Rights of Federal Employees, 7 First Amendment Law Review --- (2008). Its abstract states:

Garcetti v. Ceballos does nothing less than redefine the whole conception of what role public employees should play in ensuring the fair and efficient administration of government services. Through its holding, the Court has now made it nearly impossible for conscientious public servants to speak out in the best interests of the public without jeopardizing their careers. Yet, if possible, the situation is even worse for federal employees.

For the uninitiated, Garcetti is the watershed public employment free speech case that drastically cuts down on public employees' First Amendment expression rights while such employees are working pursuant to their official duties. In the name of managerial prerogative, federalism, and separation of powers, it has the effect of making government less transparent, accountable, and responsive because public employees are less secure in their ability to speak out against governmental fraud, corruption, abuse, and waste, without facing retribution from their public employers.

The reason for Garcetti's magnified effect on federal employees relates to three primary factors, which include: (1) the unique administrative framework established for federal employees to vindicate their First Amendment interests under the Civil Service Reform Act of 1978 (CSRA); (2) the inexpert nature of the Merit Systems Protection Board (MSPB), the federal agency which has been delegated to hear federal employees First Amendment claims; and finally, (3) the apparent inability of the Federal Circuit Court of Appeals, the court delegated to hear appeals from the MSPB, to understand the nuances and subtleties of the Garcetti decision, given their lack of experience deciding these types of constitutional issues.

The cumulative impact of these factors is that federal employees, post-Garcetti, will primarily have to vindicate their rights to free speech in the workplace through a hodge-podge of civil service laws, grievances filed under collective bargaining agreements, and ineffective federal whistleblower statutes. When all of these fail, as they inevitably will, federal employees will have to just grin and bear the evisceration of their constitutional rights and stay silent at work. Collectively as citizens, we are all the poorer for tolerating this undemocratic state of affairs.

6) Joel M. Gora, The Source of the Problem of Sources: The First Amendment Fails the Fourth Estate, 29 Cardozo L. Rev. 1399 (2008). The abstract states:

The effort to investigate and discover who leaked the identity of CIA agent Valerie Plame to journalist Robert Novak and other prominent reporters, and the subsequent prosecution of key White House aide, Scooter Libby in connection with that investigation, put on the national front burner the question of whether journalists have a right to protect their confidential sources. That has been a prominent First Amendment question ever since the Supreme Court's 1972 decision in Branzburg v. Hayes, 408 U.S. 665 (1972), where a bare 5 to 4 majority broadly rejected First Amendment protection for confidential sources, though a concurring opinion left the door open to granting relief on a case-by-case basis. Since that time, the press has advanced its arguments on three fronts (1) persuading courts to recognize a qualified journalistic privilege on the basis of the Branzburg concurring opinion, (2) lobbying for so-called shield laws at the state level, and (3) seeking a federal shield law as well. The first tack had great success for about three decades, but then suffered two significant recent setbacks in the form of the opinion in the Plame matter, sharply rejecting constitutional protection, and another skeptical ruling by a very prominent appeals court judge. The state legislation route has successfully resulted in a doubling of the number of states that give journalists statutory protection. Finally, the federal legislative path has led, at this writing and quite surprisingly, to the strongest prospects in 35 years of passage of a strong federal shield law. This article surveys these various trends, from Branzburg through the federal shield bill, and concludes with some recommendations for journalists as well as lawyers as to the best way to establish the credibility of their claims.

7)Patrick M. Garry ( University of South Dakota - School of Law) The Democratic Aspect of the Establishment Clause: A Refutation of the Argument that the Clause Serves to Protect Religious or Nonreligious Minorities , 59 Mercer Law Review 596 (2008). The abstract states:

The Article relies on constitutional history to argue that the proper interpretation of the Establishment Clause-one that reconciles the Establishment and Free Exercise Clauses-is as a majority-rights provision, protecting the freedom of religious associations to assert themselves in the social arena in accordance with the strength of their numbers.

A survey of Establishment Clause doctrines and commentary reveals that the Clause is often viewed as a minority rights provision, protecting religious and nonreligious minorities from being exposed in certain ways to society's dominant religions. This Article argues against such an interpretation. It portrays the Establishment Clause as a structural provision of the Constitution, concerned with democratic processes and limited government, much like the doctrines of federalism and separation of powers. The Article also asserts that a respect for majority rule constitutes a core value of the Establishment Clause. Whereas the Free Exercise Clause protects minority rights, the Establishment Clause protects the democratic, communal side of religious freedom. Essentially, the Establishment Clause protects the freedom of association-a freedom that includes not only the right of individuals to align themselves with religious institutions, free of any restrictions caused by a state-mandated religion, but also the right of those institutions to reflect and represent their members' desires for public action and involvement. Consequently, the Endorsement Clause should be applied in a way that will leave as broad an opportunity for the involvement of religious organizations in civil society.

JFB

Phelps Family Fails to Post Bond to Delay Collection of Damage Award While Case On Appeal

How Appealing provides links to coverage of the failure of Phelps family members, leaders of the Westboro Baptist Church, to post the required bond amounts in order to stay the seizure of Church property while the Church appeals the verdict delivered in February by a Maryland federal district court jury. The jury found that the funeral protesters from Westboro Baptist Church had intentionally inflicted emotional distress on Albert Snyder, the father of Marine Lance Cpl. Matthew Snyder, who died in Iraq in 2006. The jury awarded $2.9 million in compensatory damages and $8 million in punitive damages. The judge in the case subsequently reduced the total award to $5 million. The Church has challenged the verdict in the Fourth Circuit Court of Appeals and sought a stay of the collection of the award pending the appellate court's decision. In April the district judge agreed to delay collection if two members of the Phelps family, whose members make up the Church, would post collateral in the amount of $225,000 by Monday, May 5.  The Topeka, Kansas Capital-Journal reported that the Fourth Circuit has contacted the lawyer for Mr. Snyder to set an expedited briefing schedule in the appeal of the district judge's ruling on the stay.

JFB

Tenth Circuit Rejects Native American's RFRA Challlenge of Prosecution for Killing of Bald Eagle Can

From How Appealing:

Tenth Circuit holds that the Religious Freedom Restoration Act does not preclude the federal government from prosecuting a member of the Northern Arapaho Tribe of Wyoming who shot a bald eagle for use in the tribe's traditional religious ceremony: Circuit Judge Michael W. McConnell was the author of today's unanimous, 44-page opinion.

Today's ruling holds that "the Eagle Act and its regulations are the least restrictive means of pursuing the government's compelling interest in preserving the bald eagle."

JFB

Effort to Shield Press Draws Conservatives' Support

In today's New York Times, Eric Lichtblau and Philip Shenon report on the prominence of political conservatives among advocates for shielding the press from the compelled disclosure of their sources. The article states:

An unusual cast of conservatives has added momentum to a bill that would protect the confidentiality of reporters’ sources, even as the Bush administration has lobbied vigorously against the idea.

The latest flashpoint in the debate came Friday in an appellate courtroom in Washington, as a former reporter for USA Today faced fines of $5,000 a day for refusing to disclose the sources of her articles on the Federal Bureau of Investigation’s 2001 anthrax investigation.

A conservative judge on the United States Court of Appeals for the District of Columbia Circuit, Brett M. Kavanaugh, a former Bush White House official, offered perhaps the broadest defense of reporters’ rights during oral arguments in the case.

Judge Kavanaugh noted that “49 states have recognized some sort of common-law privilege” protecting the confidentiality of reporters’ relationships with their sources, and he questioned why lawyers for Toni Locy, the former USA Today reporter now facing a contempt citation, had not asserted that privilege more aggressively.

The appeals court hearing came three weeks after Senator John McCain of Arizona, the presumptive Republican presidential nominee, joined both candidates for the Democratic nomination in backing a federal “shield law” offering some protection for the confidentiality of reporters’ sources. Mr. McCain cautioned that his support for the law was “narrow” because of his concerns about damaging national security leaks in the news media. But he said he would support legislation now pending in the Senate, despite the opposition of the White House.

A federal shield law passed the House last year by a veto-proof margin of 398 to 21, with a conservative Republican — Representative Mike Pence of Indiana — leading the effort.

“What’s a conservative like me doing passing a bill that helps reporters?” Mr. Pence asked in the House debate last year. The answer, he said, came from his belief that “the only check on government power in real time is a free and independent press.”

JFB

Maryland Court of Appeals Refuses to Enforce Talaq Divorce

As reported in Thursday's Washington Post, the Maryland Court of Appeals has refused to afford comity to the terms of Pakistani divorce decree issued in accordance with the Islamic religious concept of "talaq". The Post provides this summary of the events leading to the Court's decision:

After his wife of more than two decades filed for divorce in Montgomery County Circuit Court, Irfan Aleem responded in writing in 2003, and not just in court.

Aleem went to the Pakistani Embassy in the District, where he executed a written document that asserted he was divorcing Farah Aleem. He performed "talaq," exercising a provision of Islamic religious and Pakistani secular law that allows husbands to divorce their wives by declaring "I divorce thee" three times. In Muslim countries, men have used talaq to leave their wives for centuries.

... Irfan Aleem, who worked for years as an economist with the World Bank, is worth about $2 million, half of which Farah Aleem is entitled to under Maryland law. When Irfan Aleem tried to divorce his wife under the concept of talaq, a sum of $2,500 was mentioned as a "full and final" settlement, according to the appellate decision.

That amount was written into the marriage contract Farah Aleem signed the day she married him in their native Pakistan in 1980, according to the appellate decision. The contract was in accordance with Pakistani custom. At the time, he was 29 and she was 18. The couple moved to the Washington area in 1985.

In the ruling, the Court found that enforcing the terms of the talaq divorce would contradict the public policy of the state with regard to the distribution of marital property. Central to the Court's conclusion was the lack of due process provided to the woman in such a process, which offers the man alone the unilateral prerogative to terminate the marriage.  The problems arising when secular courts are asked to enforce principles of religious law were examined in a prior post.  When interviewed for the Post article, Muneer Fareed, secretary general of the Islamic Society of North America, is quoted as saying, "For the most part, Muslims expected this kind of ruling.The contrary would be a surprise to them. They do not expect the U.S. legal system to give full recognition of talaq."

JFB

Germany's Treatment of Scientology Questioned

On the Newsweek/Washington Post blog, "On Faith", Claire Hoffman has the following post on the German government's hostility to Scientology:

Whatever you think about Scientology, you have to wonder about the Church's treatment by the German state.

In December, Germany's interior ministers said they considered the religion to be "not compatible with the constitution." Yesterday, an AP story reported that the German Scientologists have dropped a legal battle to keep the country's intelligence services from monitoring its activities. What is Germany so afraid of?

German officials have categorized Scientology as a business, not a religion, and tax accordingly. Scientology has responded by complaining about "religious discrimination."

The AP reports that "The North Rhine-Westphalia Higher Administrative Court in Muenster refused last month to hear an appeal to a February ruling allowing the intelligence agencies to continue observing the Scientologists.

German authorities suspect Scientology of maintaining ''ambitions against the free, democratic basic order,'' according to the February ruling.

The Church of Scientology has long battled to end the surveillance, saying it is an abuse of freedom of religion, and the U.S. State Department regularly criticizes Germany for the practice in its annual Human Rights Report.

Germany's top security officials reiterated in December that they consider Scientology to be in conflict with the principles of the nation's constitution. They asked state officials to begin gathering information to consider whether they have sufficient grounds to seek a ban on Scientology."

Ban Scientology? Doesn't that seem kind of extreme? They are a religion largely focused on self-improvement. While I'm well aware of their checkered past, decrying it unconstitutional seems like a threatened position to take by a nation.

JFB

Voter ID Law Thwarts Elderly Nuns' Attempt to Vote in Indiana Democratic Primary

Tuesday's Indiana Democratic primary provided an opportunity to see the effects of the state's voter ID statute in practice. Last week, the statute was upheld as constitutional by the Supreme Court in Crawford v. Marion County Election Board.  Although a report in today's Washington Post characterized the impact of the new ID requirements as "mild", it did note an AP story describing how the law led to twelve elderly Roman Catholic nuns being denied the opportunity to vote because they were unable to produce a driver's license or current passport.

JFB 

McCain Derides Newdow Pledge Challenge in Speech about the Federal Judiciary

Education Week's School Law Blog provides coverage of Senator McCain's comments about Michael Newdow's constitutional challenge to the Pledge of Allegiance. McCain was delivering a speech at Wake Forest University about his views on the federal judiciary. He offered this appraisal of the case:

...there was the case of the man in California who filed a suit against the entire United States Congress, which I guess made me a defendant too. This man insisted that the words "Under God" in the Pledge of Allegiance violated his rights under the establishment clause of the First Amendment. The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were -- and I quote -- "impermissible." And it was so ordered -- generations of pious, unoffending custom supposedly overturned by one decree out of a courtroom in San Francisco. And now it turns out the same litigant is back for more in the Ninth Circuit, this time demanding that the words "In God We Trust" be forever removed from our currency. I have a feeling this fellow will get wind of my remarks today -- and we're all in for trouble when he hears that we met in a chapel.

As Mark Walsh of School Law Blog notes, McCain did not refer to the Supreme Court's eventual rejection of Newdow's claim on standing grounds. His remarks appear to suggest the Pledge was not permitted within the Ninth Circuit, a mischaracterization of the present effect of Newdow's original case.

In the address, McCain also expressed his admiration for Chief Justice Roberts and Justice Alito and stated that these Justices would serve as the model for the kind of nominees he would present to the Senate if a vacancy on the Court developed during a McCain presidency. 

JFB                

University of Miami Symposium Examines " Balancing Animal Law and the First Amendment: A Double Edged Sword"

Moderated by Prof. Marcy LaHart,  who teaches Animal Law at University of Miami, the symposiumtackled the following  topics, as summarized on the website of the UM Student Animal Legal Defense Fund:

In the first panel, opposing counsels of the Supreme Court case Church of Lukumi Babalu Aye v City of Hialeah described the case and discussed current issues surrounding the freedom of religion. Richard Garrett, who is currently General Counsel at Greenberg Traurig, described what it was like to represent the City of Hialeah in the case. Jeanne Baker, the President of the American Civil Liberties Union of Florida, then told the case from the perspective as an ACLU counsel and advocate for the Church. The discussion then turned to current topics, such as freedom of religion in the face of polygamy.

The next panel presented two different sides on Animal rights protestors and defamation. Patricia Acosta, an associate at Hunton Williams, described her role as counsel in the case, Animal Rights Foundation of Florida v. Seigel , and what it was like to represent animal rights protestors. Emily Graham, principal of the Law Office of Emily Patricia Graham, then described the difficulties a fashion designer faces from animal rights protestors when the designer uses fur in their fashion. She illustrated this point with the example of Nicole Miller, and the activists who called her, “Nicole Killer”.

The final panel presented the case of Jason Atkins’ website toughsportslive.com, a pay-per-view internet site where visitors could watch cockfighting streamed live from Puerto Rico, among other animal fights from around the world. Jason Atkins spoke to the audience about his business, how he researched the cockfighting, and then his lawsuit, brought by his Attorney David Markus, claiming that 18 USC § 48, the federal prohibition on the sale of depictions of animal cruelty for commercial gain was unconstitutional on First Amendment grounds. Madeline Bernstein, President of the Los Angeles Society for the Prevention of Cruelty to Animals, then described her experiences as an investigator of animal fights and animal cruelty. She also described the legal counter arguments to Mr. Atkins’ constitutional claim.

JFB

Legislation in France Seeks to Impose Penalties on Those Who Promote Excessive Thinness

Legislation  in France aims to criminalize the promotion of "excessive thinness" and extreme dieting as a way of addressing anorexia among young women. According the the Christian Science Monitor, similar laws have been enacted in Spain and Italy. The bill, approved by the French lower house of Parliament and awaiting action by the country's Senate, has been strongly endorsed by the country's ruling party, led by President Nicolas Sarkozy.       

As quoted in a Reuters article posted on the Scientific American website, French Health Minister Roselyne Bachelot defended the law in these terms in the parliamentary debate:

Giving young girls advice about how to lie to their doctors, telling them what kinds of food are easiest to vomit, encouraging them to torture themselves whenever they take any kind of food is not part of liberty of expression...The messages sent out here are messages of death. Our country should have the means of finding and prosecuting those behind sites like this.

The legislation hopes to eliminate what are known as "pro-ana" blogs and Web sites. In  such fora anorexics recount their dieting experiences and offer recommendatiopns on the use of appetite suppressants and other unhealthy weight loss techniques. Those convicted of "incitement to excessive thinness" through publicizing such information would face two years imprisonment and a fine of 30,000 euros ($47,450).  If such activities resulted in someone's death, the punishment would be three years imprisonment and a fine of 45,000 euros.

In the U.S., the intersection of free speech claims and government efforts to promote public health can be seen in anti-obesity initiatives like the New York City's ordinance requiring restaurants to post the calorie count of foods served. (See prior post on rejection of First Amendment challenge to the NYC ordinance.) For a useful examination of this set of issues in the context of food advertising aimed at children, see Northeastern law professor Wendy E. Parmet 's article, Free Speech and Public Health: A Population -Based Approach to the First Amendment, 39 Loy. L.A. L. Rev. 363 (2006).

JFB

Senator Specter Speaks Out for Shield Law

As noted on How Appealing, Sen. Arlen Specter writes to advocate the passage of a federal press shield law in today’s Washington Post. Specter responds to Attorney General Mukasey’s prior USA Today op-ed opposing such legislation.   

JFB

Perceived Evocation of Islamic Crescent Creates Opposition to Flight 93 Memorial Design in Pennsylvania

Today New York Times includes a report on opposition to the design selected for the memorial to the 9/11 victims of United Flight 93. The article summarizes the complaints as follows:

As envisioned by its designer, the memorial to the victims who died on Sept. 11, 2001, when United Flight 93 crashed into a field near Shanksville, Pa., would follow the topography of the bowl-shaped land, creating a circular pathway ringed by trees, all focused on the “sacred ground” of the crash site near the bottom of the circle.

But almost from the moment the winning entry for the memorial was chosen in 2005 over 1,058 others it has been beset by controversy, most of it coming from critics who see Islamic symbolism in the design.

The critics complain that the shape of the memorial — designed by Paul Murdoch, an architect based in Los Angeles — is an Islamic crescent, that a wind-chime tower mirrors an Islamic minaret and that the memorial would point east toward the Islamic holy city of Mecca.

The complaints gained traction recently because Tom Burnett Sr., the father of a Flight 93 victim, has become one of the most prominent opponents.

“It’s really revolting to me, this whole thing,” said Mr. Burnett, a retired high school English teacher from Northfield, Minn. “It’s an insult to my son and all the others.”

JFB   

Scholarship Update

The following is a collection of newly available scholarship of interest to those teaching and writing about First Amendment topics:

1) Katherine J. Strandburg (DePaul University College of Law), Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance, 49 B.C. L. Rev. 741 (2008). The abstract states:

Recent controversies about the National Security Agency's warrantless wiretapping of international calls have overshadowed equally disturbing allegations that the government has acquired access to a huge database of domestic call traffic data, revealing information about times, dates, and numbers called. Although communication content tradition-ally has been the primary focus of concern about overreaching government surveillance, law enforcement officials are increasingly interested in using sophisticated computer analysis of noncontent traffic data to "map" networks of associations. Despite the rising importance of digitally mediated association, current Fourth Amendment and statutory schemes pro-vide only weak checks on government. The potential to chill association through overreaching relational surveillance is great. This Article argues that the First Amendment's freedom of association guarantees can and do provide a proper framework for regulating relational surveillance and suggests how these guarantees might apply to particular forms of analysis of traffic data.

2) Miriam A. Cherry (University of the Pacific -McGeorge School of Law  and Robert L. Rogers (Legal Times) , Prediction Markets and the First Amendment, 2008 U. Ill. L. Rev ----.  The abstract states:

The continuing development of prediction markets is important because of their success in foretelling the future in politics, economics, and science. In this article, we identify the expressive elements inherent in prediction markets and explore how legislation such as the Unlawful Internet Gambling Enforcement Act of 2006 might harm such predictive speech. This article is the first to explore First Amendment protections for prediction markets in such depth, and in so doing, we distinguish prediction markets from other regulated areas such as gambling, commodities, and securities trading. The article's examination of prediction markets also illustrates the limitations of current commercial speech doctrine. We conclude by discussing how the executive, legislative, and judicial branches might resolve the First Amendment challenges of regulating prediction markets, and we propose a new legal test, modeled on existing free speech jurisprudence, which may assist courts in adjudicating any constitutional challenges.

3) Heidi Kitrosser (University of Minnesota School of Law), Classified Information Leaks and Free Speech, 2008 U. Ill. L. Rev. ----. The abstract states:

This article provides a timely response to the recent trend toward "cracking down" on classified information leaks and the absence of significant scholarship, theory, and doctrine on classified information leaks. The article begins by explaining the President's vast secret-keeping capacity and the capacity's manifestation in the classification system. This capacity is particularly manifest in the problems, at least partly intrinsic, of broad executive branch classification discretion and overclassification. The author then describes the major constitutional arguments for deference to political branch decisions to criminalize classified information leaks and publication of the same: such leaks are not speech but conduct; such leaks—even if speech—fall within the political branches' wide ranging power to protect national security; and the judiciary lacks the expertise to second-guess such political branch decision making. The author refutes these arguments by explaining that a common thread underlying them is the notion of vast deference to political branch—particularly executive branch—determinations regarding what information disclosures constitute national security threats. The author contends that this notion's fatal flaw is that the Constitution's speech- and transparency-related checks and balances not only do not vanish upon the wielding of a classification stamp, but are of special constitutional importance in this context given the vast secret-keeping capacities of the executive branch. Finally, the author considers the doctrinal implications of the preceding analysis and proposes judicial standards to test the First Amendment validity of prosecutions for classified information leaks.

4)Anita L. Allen  (U of Penn Law School),  Undressing Difference: The Hijab in the West, Berkeley Journal of Gender, Law & Justice (2008). The abstract states:

On March 15, 2006, French President Jacques Chirac signed into law an amendment to his country's education statute, banning the wearing of conspicuous signs of religious affiliation in public schools. Prohibited items included a large cross, a veil, or skullcap. The ban was expressly introduced by lawmakers as an application of the principle of government neutrality, du principe de laïcité. Opponents of the law viewed it primarily as an intolerant assault against the hijab, a head and neck wrap worn by many Muslim women around the world. In Politics of the Veil, Professor Joan Wallach Scott offers an illuminating account of the significance of the hijab in France. Scott's lucid, compact examination of the hijab complements previous feminist scholarship on veiling with a close look at its role in a particular time and place - contemporary France - where it has been the subject matter of a unique political discourse. How different is America's political discourse surrounding religious symbols in the schools as compared to the French? I offer a U.S. constitutional perspective on the rights of religious minorities and women in the public schools, and suggest that a ban on the hijab must be considered unconstitutional. A proposal for a national rule against the hijab in public schools or universities would fall flat in the United States. When compared to U.S. approaches to the hijab, the French experience examined by Joan Wallach Scott underscores an important point: there is more than one way to be a modern, multicultural western liberal democracy with a Muslim population, and some ways are better than others. 

5) Laura E. Little (Temple University - James E. Beasley School of Law), Regulating Funny: Humor and the Law,94 Cornell Law Review ---(2009). The abstract states:

When humor hurts people, they may press claims in court, ascribing blame and demanding redress. Courts respond by matching injuries with legal rules, and choose to insulate, tolerate, encourage, condemn or suppress the humor. Patterns emerge from this humor regulation, with courts systematically preferring some types of humor over others.

Explicit analysis of the law's regulatory effect on different types of humor is conspicuously absent in case law and legal scholarship. Non-legal theorists have, however, for centuries devoted considerable effort to defining and cataloguing humor. Philosophers, literary theorists, natural scientists, and social scientists have created a rich literature explaining how humor affects individual and group well-being. This article analyzes legal regulation of humor through the lens of that literature.

Using tools developed by humor theorists, the article explores how the law regulates humor in three doctrinal areas: contract, trademark, and employment discrimination. Across this diverse array of legal categories, the article identifies remarkable consistency in the types of humor that courts choose to regulate and the types that courts instead allow to flourish unimpeded by legal rules. The cases in all three areas regulate two types of humor with particular vigor: superiority humor and release humor. Superiority humor seeks amusement through a communication that makes one person feel successful at the expense of others. Release humor taps into repressed sources of pleasure, pressure, or anxiety, focusing on taboo or difficult topics such as sex, excretion, or death.

Courts' imposition of liability for superiority and release humor is consistent with civil law's corrective justice goals and with the specific cause of action requirements for contract, trademark, and employment discrimination. What is more surprising, however, is courts' tendency to privilege another type of humor: incongruity humor. Incongruity humor arises from the juxtaposition of two inconsistent or unrelated phenomena. Where the humor in a suit has incongruous qualities, courts tend to avoid liability, thereby placing incongruous humor beyond the law's grip.

Documenting patterns in humor regulation provides important guidance for courts, attorneys, and humorists seeking to understand and predict legal regulation. The article nevertheless seeks to accomplish more than that positive mission, and thus assesses the beneficial and potentially detrimental consequences of current humor regulation. Concluding that the law closely integrates social norms about appropriate humor, the article finds cause for both celebration and concern. The article ends by identifying three bodies of literature to assist with improving humor regulation: law and social norm theory, First Amendment literature, and the current interdisciplinary work of humor theorists.

6)Andrew Koppelman (Northwestern University School of Law), Phony Originalism and the Establishment Clause. The abstract states:

The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.

7)W. Kenneth Ferree (The Progress & Freedom Foundation), Whose Airwaves are They Anyway?. The abstract states:

Whatever happened to: Congress shall make no law abridging the freedom of speech? In the context of broadcasting, representatives Anna Eshoo (D-CA 14th) and Tammy Baldwin (D-WI 2nd) are the latest to transgress, offering this year their "Broadcast Licensing in the Public Interest Act" (HR 4882).

Congressional critics of broadcasting often begin their attacks by asserting that the airways belong to the public. The Eshoo/Baldwin bill is no exception. But one must ask why these selfsame critics deem themselves better qualified to determine how "the public" would like its airwaves used than are broadcasters whose livelihoods depend on their ability to deliver content with broad appeal.

Broadcast licensees, after all, compete with an increasingly diverse variety of other media for a share of a highly fragmented market. As such they have an economic imperative to deliver that programming which will most interest "the public." Broadcasters no more need the government to tell them what that programming is than Macy's needs bureaucratic direction on the styles of women's shoes to sell. Divining what the public wants carried on its airwaves is therefore no more difficult than switching on your television.

If broadcasters really are to serve the public, they cannot be held hostage to the individual programming tastes of any one person or group of people - even if that group is known as Congress.

8)Edward Correia , A Constitutional Framework for Addressing Religious Viewpoints in Public Classrooms, ACS Issue Brief. The summary states:

In the debate over the constitutional separation of church and state in the U.S., one ongoing issue is how religious viewpoints may be addressed in our nation’s public schools. In this paper, the author takes on this sometimes controversial subject by reviewing various possible approaches and examining those approaches in light of the legal precedent in this area of the law. Throughout the paper, the author uses the specific examples of the teaching of creationism, intelligent design, and evolution in science class to illustrate community tensions over these issues and to convey his views on what is constitutionally permissible and what is not. Corriea concludes by arguing that it is possible to distinguish among three distinct classroom approaches in specific course contexts: acknowledging religious beliefs, explaining religious beliefs and endorsing religious beliefs. Under his approach, the first is always constitutionally permissible, the second may be permissible depending upon the context, and the third fails to pass constitutional muster. He advocates a thoughtful, nuanced approach that respects religious freedom, diversity and tolerance while advocating compliance with the Constitution’s prohibition on the State establishment of religion.

9)Brian J Bilford ,Harper's Bazaar: The Marketplace of Ideas and Hate Speech in Schools , 4 Stanford Journal of Civil Rights and Civil Liberties --- (2008). The abstract states:

The following Note discusses the rationale of Harper v. Poway School District, a recent opinion of the United States Court of Appeals for the Ninth Circuit. In Harper, the court held that a student wearing a T-shirt bearing the message "Homosexuality is Shameful" could constitutionally be censored under Tinker, since it interfered with the rights of other students to be secure and to be let alone. In this Note, I argue that while Supreme Court precedent precludes the censorship of hate speech in public fora, the Harper decision is an attempt to prohibit hate speech in schools on the grounds that students are both captive and vulnerable in ways that adults subject to similar speech are not. While the court does not state the legal justifications for relying on these two factors in great detail, I argue that the captivity and vulnerability of a young audience are legitimate reasons for this distinction as a matter of both policy and law, although the result in this particular case is questionable. I also argue that this ruling reflects the legal and logical implausibility of a holding based on Tinker's substantial disruption prong in circumstances where arguably disruptive hate speech is proffered in response to equally disruptive messages of tolerance condoned or expressed by the school.

10) Lincoln Davis Wilson, Judgmental Neutrality: When the Supreme Court Inevitably Implies that Your Religion is Just Plain Wrong , 38 Seton Hall Law Review ----(2008). The abstract states:

This Comment posits that in certain Free Exercise cases the Supreme Court necessarily implies that a religious adherent's beliefs are false, despite that the Court has expressly stated that it makes no truth judgments about religions. Namely, when the Court denies a Free Exercise claim premised on a religious belief purporting to be universally, objectively true, the Court necessarily implies, through simple logical forms, that the underlying religious doctrine is false. The Comment suggests this implication is inevitable, and that because it is inconsistent with the Court's principle of neutrality toward religion, the neutrality principle should be clarified, modified, or abandoned.

The Comment first outlines the unity of the Court's neutrality principle with its policy against judging religious truth, and then discusses the fundamental axioms underlying the argument. The Comment then sets forth the formal argument, illustrating it with Free Exercise cases such as Reynolds v. United States and Employment Division v. Smith. The Comment then clarifies the scope of the thesis, noting that this implication does not result in all circumstances, and responds to foreseeable objections. Finally, the Comment addresses some of the implications of its thesis, suggesting that the neutrality principle be clarified, modified, or abandoned.

11)Robert MacCulloch and Silvia Pezzini , The Role of Freedom, Growth and Religion in the Taste for Revolution , LSE STICERD Research Paper No. DEDPS36. The abstract states:

A fundamental issue for economists is what determines civil conflict. One unsettled question is the relative importance of political freedoms versus economic development. This paper takes a new approach to provide an answer by using micro-data based on surveys of revolutionary preferences of 130,000 people living in 61 nations between 1980 and 1997. Controlling for personal characteristics, country and year fixed effects, more freedom and economic growth both reduce revolutionary support. Losing one level of freedom, equivalent to a shift from the US to Turkey, increases support for revolt by 4 percentage points. To reduce support by the same amount requires adding 14 percentage points on to the GDP growth rate. Being Muslim in a free country has no effect on the probability of supporting revolt compared to a non-religious person. However, being Muslim in a country that is not free increases it by 13 percentage points. Being Christian in a free country decreases the chance of supporting revolt by 4 percentage points, compared to a non-religious person, and in a not-free country by 1 percentage point.

12) David Simon (Concordia University Chicago),  Register Trademarks and Keep the Faith: Trademarks, Religion, and Identity. The abstract states:

Religions frequently wage battles in court over the use of various religious trademarks. These battles, however, are not directed toward winning traditional trademark rights. At the heart of these disputes is a struggle to protect religious identity. This article argues that religions use trademark law to protect their identities because there are no other viable legal means available. Nevertheless, trademark law cannot wholly protect religious identity because of its focus on consumer perception. Because of the deficiency provided by current trademark law, this article proposes a new conceptual framework for resolving these disputes.

JFB

More Casualties of California Loyalty Oath Revealed

As noted on How Appealing, Friday's Los Angeles Times provides details about other employees of the California state university system who have been fired for refusing to sign a loyalty oath imposed by a 1952 amendment to the California Constitution. The article observes that the oath requirement, adopted as a byproduct of McCarthy era paranoia about Communist subversion of American institutions, now often leads to dilemmas for Jehovah's Witnesses as well as Quakers and other pacifists seeking to work for the state government. California's continued use of the loyalty oath had previously been denounced in a  LA TImes op-ed by eminent First Amendment scholar and University of Chicago law professor Geoffrey Stone.

Originally hired to be a lecturer in the American Studies program at Cal State Fullerton, Wendy Gonaver, a Quaker, lost that position when she refused to sign the oath's pledge to defend the federal and state constitutions against all enemies. Gonaver refused to sign after she was told she could not append a statement to the pledge in an effort to affirm her commitment to pacifism. Prior posts here had reported the firing and eventual reinstatement of Marianne Kearney-Brown at Cal State East Bay. After Kearney-Brown was allowed to attach to the pledge a statement from the California Attorney General's Office that validated that the oath should not be understood to require any employee to take up arms, she signed the oath and was reinstated as a math instructor.

Responding to the Gonaver situation,a representative Cal State system maintained that state law does not allow an employee to draft and file an addendum to the oath and differentiated the declaration Gonaver sought to file from the state AG's Office statement Kearney-Brown submitted with her oath. In a strange inconsistency among the different branches of the California higher education system, UC Berkeley informs new employees that they are allowed to submit statements of belief to accompany the oath and offers employees with reservations about signing sample declarations to submit resolve the oath dilemma. Such sample statements include "This is not a promise to take up arms against my religious beliefs" and "I owe allegiance to Jehovah".  Berkeley became the first California university to require a loyalty oath in 1949 and subsequently fired thirty one faculty members who would not sign.    

If readers of this blog are aware of other state or local governments' current use of such oaths, please let us know about such practices.

JFB 

UNC's First Amendment Law Review Issues Symposium Edition on the Regulation of 501(c)(3) Organizations

As noted on the Election Law blog, the UNC First Amendment Law Review has recently announced the publication of their volume presenting the articles generated by their 2007 symposium, "No Strings Attached?: The First Amendment and Tax-Exempt Organizations". The articles are listed below:

Lloyd Hitoshi Mayer, Grasping Smoke: Enforcing the Ban on Political Activity by Charities, 6 First Amend. L. Rev. 1 (2007);

Donald B. Tobin, Political Advocacy and Taxable Entities: Are They the Next "Loophole"?, 6 First Amend. L. Rev. 41 (2007);

Miriam Galston, Campaign Speech and Contextual Analysis, 6 First Amend. L. Rev. 100 (2007);

Kay Guinane, Wanted: A Bright-Line Test Defining Prohibited Intervention in Elections by 501(c)(3) Organizations, 6 First Amend. L. Rev. 142 (2007);

Arnold H. Loewy, Distributing Government Suppression of Speech, 6 First Amend. L. Rev. 171 (2007); and

James Bopp, Jr., Preserving Judicial Independence: Judicial Elections as the Antidote to Judicial Activism, 6 First Amend. L. Rev. 180 (2007);

The text of the articles is not available via the journal's website but are available on Westlaw. 

JFB

Thoughts on The Free Flow of Information Act - Part II

Lets assume the Free Flow of Information Act, the proposed reporter’s shield law I blogged about on Tuesday, would lead to greater public disclosure of government wrongdoing. That alone might explain why AG Michael Mukasey opposes the law. But what about his claim that a reporter’s shield would place vital information beyond the reach of federal prosecutors and "core national security authorities." We've heard the "war on terrorism" cry before, so Mukasey’s claim deserves a closer look.

First, its important to understand what the bill does not do. It does not withhold essential information from any federal agent. In fact, I’d call it an exaggeration to say the bill guarantees confidentiality at all. It only requires investigating agents to look elsewhere for essential information before a reporter can be subpoenaed. They can in fact compel disclosure if that initial search bears no fruit. Requiring the feds to play by the rules is not the same as hiding the ball.

Second, important limitations narrow the reporter’s protection. The right of confidentiality is not absolute if the reporter commits a crime or witnesses a crime, and it doesn't apply at all to information that would help prevent the most serious crimes.  See section 4.

What about national security? Confidentiality does not apply to information "a federal court has found by a preponderance of the evidence would assist in preventing an act of terrorism." Period. Doesn’t apply. Nor does it apply when a "significant and articulable harm to national security" outweighs the public interest in maintaining the free flow of information. See section 5. The very act of balancing interests presumes the former would trump the latter in necessary circumstances.

Perhaps its the "preponderance of the evidence" standard that gives Mukasey pause, or the requirement for showing a "significant and articulable harm to national security." But isn’t any threat to national security "significant," so long as it is credible? And doesn’t the "preponderance of the evidence" standard simply mean that the information is more likely than not to establish cause? Here that means cause to believe the information would "assist" federal agents in doing their job. Assist: to give aid, to advance in some degree. Is this what’s so objectionable? It might be different if agents had to show that the desired information was "necessary," "essential" or even "highly likely" to benefit national security. But they don’t. And there is no doubt that federal courts already know how to protect legitimate executive secrets when conducting a disclosure hearing; think in-camera review.

Besides, government agents wouldn’t have to worry about any of this if the information they want would help prevent a specific case of death, kidnapping or serious bodily harm. The proposed statute doesn’t recognize a right to confidentiality in those circumstances. Again, section 4. And isn’t death, kidnapping and bodily harm what most terrorist acts and threats to national security involve?

Maybe the burden of accountability troubles Mukasey, the very idea of having to appear before a federal court and articulate a reason for disclosure. But to borrow words from the late Justice Thurgood Marshall, "it is not burdensome to give reasons where reasons exist." The Administration, just like reporters, must operate within the bounds of the law, and ever since Marbury v. Madison that’s meant submitting to the jurisdiction of a competent court. If there’s a case for compelling disclosure, surely the government can make it, and I don’t see how the Free Flow of Information Act would stand in its way.

There’s more . . . but that’s for another day.

-Kathleen A. Bergin

Thoughts on The Free Flow of Information Act - Part I

In an opinion piece in USA Today, Attorney General Michael Mukasey sounds off against the Free Flow of Information Act presently being debated in Congress. If enacted into law, the measure would protect members of the press under certain circumstances from being compelled to identify  informants or the information they traded on a promise of confidentiality. Mukasey argues that the bill would put reporters "above the law" and "impede investigations of serious crimes," including terrorism and other threats to national security. Besides, he says, the most notable news stories, think Pentagon Papers, Watergate break-in, Enron scandal, all broke with the help of confidential informants whose identity was not protected by a statutory reporter's shield. And so, the argument goes, a statutory shield will unnecessarily intrude on legitimate law enforcement objectives without delivering any countervailing benefits to members of the press or the public that benefits from their work.

Setting aside for a moment the details of the proposed law, consider Mukasey's threshold argument: that the press has functioned fine without a statutory shield so why enact one now?  History is certainly rich with confidential informants who've accepted the risk of of possible disclosure, but I think Mukasey overstates the case.  Whatever incentive confidential informants may have had to come forward in the past, can we really say that the press, and through it the public at large, wouldn't benefit from added protection?

In Branzburg v. Hayes, the Supreme Court declined to grant the press an unqualified right of confidentiality under the First Amendment.  But the press still flourished, as did the use of confidential informants, in part because the decision left room for recognizing a qualified privilege on a case by case basis that takes into account the risks and benefits present in each independent circumstance. Indeed, most jurisdictions follow this approach, but the standards vary, and what is protected in one jurisdiction may not be protected in another. A federal shield statute would at least bring some consistency in the law that in turn may encourage otherwise wary informants to come forward with valuable information the public would want to know.

Moreover, its true that Pentagon, Watergate and Enron insiders were willing to talk without guaranteed protection, as were informants who leaked the Bush Administration's domestic spying, torture and rendition programs - matters Mukasey neglects to mention in his op-ed. But could we ever quantify (or qualify) how many episodes of government or corporate wrongdoing have yet to be discovered because those in the know are unwilling to talk without adequate protection?  To borrow the words of another Administration insider, there are things "we don't know we don't know."  And its likely to remain that way until a federal shield becomes law.

Mukasey's additional concern that the Free Flow of Information Act would undermine legitimate law enforcement investigations also deserves a closer look.  More on that tomorrow . . .

-Kathleen A. Bergin

UVA Welcoms Leading First Amend Scholar to the Law School Faculty

Professor Frederick Schauer will join the faculty at UVA law school this fall.  From the UVA website:

Frederick Schauer, a leading expert on the First Amendment, constitutional law and legal philosophy, will join the University of Virginia Law School faculty in August. Schauer has served as the Frank Stanton Professor of the First Amendment at Harvard's John F. Kennedy School of Government since 1990, and was previously professor of law at the University of Michigan. . . .

"We are delighted to welcome Fred Schauer to the University of Virginia," said Dean John C. Jeffries Jr. "He is an extraordinarily prolific scholar who combines wide-ranging interests with keen analytic discipline. He will make a wonderful addition to the Law School faculty."

Schauer is the author of numerous books, including "The Law of Obscenity" (BNA, 1976), "Free Speech: A Philosophical Enquiry" (Cambridge, 1982); "Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life" (Clarendon/Oxford, 1991); and most recently, "Profiles, Probabilities, and Stereotypes" (Belknap/Harvard, 2003). He also co-edited "The Philosophy of Law: Classic and Contemporary Readings" (Oxford, 1996) and "The First Amendment: A Reader" (West, 1992, 1995), and is the author of more than 200 published articles on constitutional law and theory, freedom of speech and press, legal reasoning and the philosophy of law. He is currently George Eastman Visiting Professor at Oxford University and a fellow of Balliol College.

-Kathleen A. Bergin

SCT Upholds Indiana Voter ID Law

In a 6-3 decision released this morning the Supreme Court upheld an Indiana requirement that requires voters to produce a photo id in order to cast a ballot.  Its not an easy decision to digest.  Justice Stevens authored the lead opinion, joined by CJ Roberts and Justice Kennedy.  Justices Thomas and Alito joined Scalia's concurrence.  Souter, Ginsburg and Breyer were in dissent. 

Couple points to note, however.  Civil rights groups had lined up with Democrats to oppose the Republican inspired measure on the ground that the burdens imposed will discourage poor, elderly and minority voters from participating in the political process - all without delivering any counterbalancing benefits to the state.  One of the primary motivations behind the law is the asserted need to deter in-person voter misidentification.  The problem is, as pointed out by Justice Souter, not a single instance of this type of voter fraud has been recorded in the history of Indiana elections.  Ever.  But real problems, such as absentee-voter fraud, duplicate registrations, and the like, go unremedied.   

The decision leaves room for future "as applied" challenges - an increasingly favorite strategy for disposing of controversial cases - but those challenges are difficult to win, and certainly don't leave much promise for the tens of thousands of Indiana voters who are now disenfranchised, just in time for the state's May 6 primary.   

Access Crawford v. Marion County Election Board here.  More from Rick Casen, (Loyola Los Angeles) who authored an amicus brief in support of the challengers, at Election Law Blog.

-Kathleen A. Bergin