First Amendment Law Prof Blog

First Amendment Scholarship Update

Here is this week’s collection of First Amendment scholarship:

1. Jamin Ben Raskin (Washington College of Law), No Enclaves of Totalitarianism: The Triumph and Unrealized Promise of the Tinker Decision, 58 American U. L. Rev. (forthcoming 2009). The abstract states:

   The Supreme Court’s decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America’s public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school’s interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was a decisive victory for what Robert Post has called 'democracy' values over 'management' and 'community' values within a key institutional setting. For its dramatic infusion of democratic speech values into a classic authoritarian relationship — that between powerful adults and powerless children in an institutional setting — the Tinker decision was remarkable at its inception. But the true First Amendment meaning of the decision travels well beyond the schoolhouse gate and has yet to be recognized, much less realized. The Tinker formula, which protects speech that does not substantially disrupt functional operations or violate the rights of other participants, harmonizes the managerial power of democratic government to accomplish its ends through social institutions with the cross-cutting sovereign freedom of democratic citizens to speak inside these institutions. Tinker is the 'inside' speech correlate to the 'outside' speech principle of Brandenburg v. Ohio, which protects all speech in the street (or elsewhere in society outside of specific institutional contexts), that is not likely (or intended) to 'incit[e] . . . imminent lawless action.' But the striking implications of the Tinker formula remain vastly unrealized. The freedom to speak in most social institutions is not the default standard suspended in rare and extreme cases but rather a weak and secondary value regularly subordinated to the foreground interests of authority, property, hierarchy, punishment and retribution, militarism, social order, political stability, and commercial profit. We can see how the constitutional right of free speech is constantly balanced into oblivion against weighty social interests by the way that the school cases themselves have unfolded since Tinker was decided. Part II of this Article examines the roots and meaning of the powerful libertarian doctrine of Tinker and then canvasses how the doctrine has been eroded (much like the egalitarian vision of Brown) by the sharp undertow of sympathy for authoritarian structure on the Burger, Rehnquist, and Roberts Courts. The conservative Court has carved out major exceptions to Tinker in the interests of social conformity, sexual prudishness, protection of sensitive adults’ feelings, and promotion of ideological unity for drug prohibition. Part III explores how a traveling Tinker principle differs from the illiberal doctrines of speech regulation and suppression that govern other institutional settings, focusing illustratively on the public sector workplace and the military. Part IV concludes by arguing that the current weakness of the Tinker commitment undermines democratic progress both in public schools and in other public institutions. The way to renew the momentum of the decision is to shift rhetorical emphasis from the more manipulable 'material and substantial interference' prong of the Tinker standard to the 'invasion of the rights of others' prong. Although consideration of the former has tended to subsume the latter, my hope is that doctrinal focus on concrete individual rights at stake will liberate courts from a tendency to validate abstract invocations of state interests as justifying censorship.

2. Eugene Volokh (University of California, Los Angeles - School of Law), Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms, Defend Life, and Practice Religion, Stan. L. Rev. (forthcoming 2009). The abstract states:

   Much has been written about the law of lethal self-defense, but comparatively little has been written about nonlethal self-defense. And very little has been written on what is likely the most significant restrictions on nonlethal self-defense - restrictions on possessing and carrying stun guns and irritant sprays, which are indeed almost always nonlethal. Seven states and several cities, for instance, totally ban private possession of stun guns, even in the home. And that’s so even though in all those states gun possession in the home is perfectly legal.

   This article discusses the most common such nonlethal weapon restrictions: (1) general bans on possession or carrying, (2) bans on possession by minors (including older minors), (3) bans on possession by felons (including nonviolent felons), (4) bans on possession or carrying in public universities, public housing, and public transportation systems, and (5) bans on carrying in public parks and in places that sell alcohol. All of these, it argues, are generally bad policy, though the case against them is stronger as to some restrictions than others.

   It also argues that many such restrictions should be seen as unconstitutional under the right to bear arms, whether federal or state (at least 40 state constitutions secure an individual right to bear arms). It argues that they should be seen as unconstitutional under the right to defend life, which is expressly secured by 21 state constitutions and that might be implicitly secured by the federal constitution. And it argues that when a law allows possession of deadly weapons and not nondeadly weapons, then people who have religious beliefs that forbid deadly force (even in self-defense) but allow nondeadly force should get religious exemptions from such rules, in the roughly half the states that have presumptive religious exemption regimes.

3. Sadiq Reza (New York Law School), Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice, Geo. J. Int'l L. (forthcoming 2009). The abstract states:

   Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular — one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' — are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists of premodern and modern times have articulated on the basis of the pertinent texts; (2) discussing the evidence, or the lack thereof, in the historical record that such rules operated in criminal practice in the premodern Arab-Ottoman Muslim world; and (3) comparing the apparent theories and policies of Islam’s pertinent provisions with those of the Fourth Amendment. The Article concludes that authority for Fourth-Amendment-like protections certainly exists in Islamic law, but assertions that such protections do so exist, or have ever been routinely practiced before the modern period, are unsupported by the doctrinal and historical records. There is, in the end, no obstacle to articulating search and seizure protections in Islamic law that meet modern notions of criminal due process; in this is the possibility of common ground between those who seek a greater role for Islamic law in today’s Muslim world and those who seek a lesser one.

4. Mano Singham (Case Western Reserve University), GOD VS. DARWIN: THE WAR BETWEEN EVOLUTION AND CREATIONISM IN THE CLASSROOM (Rowan & Littlefield 2009). The abstract states:

   In God vs. Darwin, Mano Singham dissects the legal battle between evolution and creationism in the classroom beginning with the Scopes Monkey trial in 1925 and ending with an intelligent design trial in Dover, Pennsylvania, in 2005. A publicity stunt, the Scopes Monkey trial had less to do with legal precedence than with generating tourism dollars for a rural Tennessee town. But the trial did successfully spark a debate that has lasted more than 80 years and simply will not be quelled despite a succession of seemingly definitive court decisions. In the greatest demonstration of survival, opposition to the teaching of evolution has itself evolved. Attempts to completely eliminate the teaching of evolution from public schools have given way to the recognition that evolution is here to stay, that explicitly religious ideas will never be allowed in public schools, and that the best that can be hoped for is to chip away at the credibility of the theory of evolution.

5. Sean Oliver-Dee (London School of Theology), THE CALIPHATE QUESTION: THE BRITISH GOVERNMENT AND PAN-ISLAMIC GOVERNANCE (Lexington Books 2009). The abstract states:

   The Caliphate Question combines the disciplines of theology, history, and international relations in order to approach the complex and sensitive issue of how Western governments—in this case the British—have historically engaged with foreign policy issues that have centered around questions of theology or faith. The British government's approach to policy-making in the field of Islamic governance from the First World War through to the early Cold War is the case study for this book, both because of the extensive documentation that exists on the period and because of its relevance to the current geo-political world.

   While the book is not a critique of current British foreign policy, it does seek to furnish policy-makers and commentators with a framework within which such increasingly necessary policy-making can be created.

6. Frederick M. Shepherd (Samford University), CHRISTIANITY AND HUMAN RIGHTS: CHRISTIANS AND THE STRUGGLE FOR GLOBAL JUSTICE (Lexington Books 2009). The abstract states:

   In Christianity and Human Rights: Christians and the Struggle for Global Justice, Frederick M. Shepherd has collected essays by scholars and activists who, in a wide variety of ways, confront the issue of Christianity's role in the burgeoning movement for human rights. The volume's contributors provide diverse perspectives on the theology behind the idea of human rights, the debate over the its meaning, and the evolution of the struggle for human rights. A wide variety of disciplinary perspectives are represented, from economics, political science and law to history, philosophy and theology. The essays also represent a broad political spectrum, including specific accounts from activists participating in the struggle for human rights. Separate chapters focus on cases from Europe, Africa, Latin America and Asia. Christianity and Human Rights begins and ends with attempts to synthesize current theory and practice, acknowledging both Christianity's great success and its failures in defending basic human rights around the globe.

7. Günter Schucher (German Institute of Global and Area Studies (GIGA)), Liberalization in Times of Instability: Margins of Unconventional Participation in Chinese Authoritarianism, available online at http://ssrn.com/abstract=1430809 (2009). The abstract states:

   Unconventional participation is by no means regime-threatening per se, not even in an authoritarian regime like China. On the contrary, the Chinese government has been able to generate legitimacy by tolerating certain forms of unconventional participation and by localizing the responsibility for solving conflicts. The current leadership in Beijing has chosen these strategies to channel protests, co-opt civic society, and avoid blame - complementary to rather repressive forms of governance. An evaluation of protest events shows that the government has succeeded in containing protests quantitatively as well as qualitatively (that is, in terms of scope and the potential threat to the political system) through the extension of opportunities to air grievances.

8. Todd James Bush, Holocaust Denial: Laws and Public Policy, Available online at http://ssrn.com/abstract=1430182 (2009). The abstract states:

   Holocaust denial has been present since the fall of the Third Reich and continues to build an underground following to this day. This paper presents a look at the major players in Holocaust denial and revisionism, the various laws allowing and restricting denial and appropriate suggestions to help prevent this movement from continuing to thrive behind the guise of freedom of speech.

9. Fred C. Zacharias (University of San Diego - School of Law), True Confessions About the Role of Lawyers in a Democracy, 77 Fordham L. Rev. (forthcoming 2009). The abstract states:

   The title of this Symposium, The Lawyer’s Role in a Contemporary Democracy, has several possible interpretations. It could represent a call to discuss the nature of democracy itself. Alternatively, it might employ the term 'contemporary democracy' as shorthand for freedoms commonly associated with liberal democracies, such as free speech and equality, and anticipate that Symposium participants will explore how lawyers can promote those freedoms. Although this essay discusses these approaches, it ultimately takes a different perspective. Fordham Law School’s Louis Stein Center for Professional Ethics, which typically focuses on how lawyers should act in their professional lives, has sponsored this Symposium. Given the Center’s orientation, I perceive its invitation as encouraging the Symposium participants to consider the common notion that attorneys, because of their status, have unique obligations to support law reform enhancing individual rights and open, representative government.

Call for Papers on "The First Amendment Meets Cyber-Stalking Meets Character and Fitness"

The AALS Section on Women in Legal Education has posted a call for papers on "The First Amendment Meets Cyber-Stalking Meets Character and Fitness". The papers selected would be presented as part of a panel discussion at the AALS Annual Meeting in New Orleans in January, 2010.  The announcement states:

Cyber-harassment has made its way to the legal academy, in part by way of the Auto-Admit debacle implicating law students and in part by way of other similar situations. The resulting dialogue has raised legal issues related to ethics, gender equality, freedom of speech, and internet regulation and liability.  Some legal scholars say that on-line attacks by law students, prospective law students, or lawyers, while noxious, constitute protected speech that should not be penalized. Others say that on-line attacks can raise sexual harassment or civil rights concerns given that the conduct often targets women. Still others say that outrageous on-line conduct by law students, prospective law students, or lawyers raises character and fitness concerns, particularly when the conduct is overtly racist or gendered. 
 
Discussion about these issues is complicated by internet anonymity and evolving internet-related case law, and more questions are raised than are answered.  Is it a problem when gender- or race-specific comments are made on the internet by law students, prospective law students, jurists, or lawyers? What, if anything, should be done in response to this conduct by law schools, bar examiners, or state disciplinary counsel? More generally and not specific to law students or lawyers, should cyber-harassment be addressed by legislation, litigation, regulation, or prosecution? How?  

Those interested in participating in the program on this topic should submit a paper proposal or a draft paper by September 10, 2009, to Professor Elizabeth Nowicki, Chair of the AALS Section on Women in Legal Education, at enowicki@tulane.edu.

JFB

"Holy Hullabaloos" Provides Law Professor's Guided Tour of the Sites of Major Religion Clause Controversies

Boston University law professor Jay Wexler has recently published "Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church-State Wars." The book has received appreciative reviews, many of which praise the sense of humor Wexler displays as he chronicles his trips to a Santa Fe, Texas football game, to a congressional session as it is opened by the designated chaplain, and to the Wisconsin Amish community where Wisconsin v. Yoder originated,  A highlight from the book's website is the chance to hear Michael Newdow, inveterate Establishment Clause plaintiff, sing the book's theme song.

JFB

   

First Circuit Rejects Challenge to Massachusetts Abortion Clinic Buffer Zone Statute

In a unanimous opinion in McCullen v. Coakley, the First Circuit has rejected a facial challenge to a Massachusetts statute that creates a 35-foot fixed buffer zone around reproductive health care facilities. The court found the law to be content neutral and narrowly tailored, noting that testimony from law enforcement officers and clinic workers had established that the prior floating buffer zone regime had not been effective at ensuring clinic access and maintaining a safe and orderly area around the clinic entrances.

Ninth Circuit Finds First Amendment Does Not Bar Enforcement of Washington Rules Requiring Pharmacists to Dispense Plan B Pills

In a ruling issued yesterday in Stroman's v. Selecky, the Ninth Circuit has found that the First Amendment's Free Exercise Clause does not require that pharmacists with a religious objection to the Plan B contraceptive be exempted from the state mandate that all pharmacies stock and dispense the medication.  The objecting pharmacists have also presented other constitutional arguments to invalidate the regulations, and those arguments will proceed to trial. The state has agreed that it will not pursue sanctions against the plaintiffs until the conclusion of that trial. 

JFB     

 

Fifth Circuit Hears Argument in Case of Student Punished for Wearing Campaign T-shirt

The Houston Chronicle reports that the Fifth Circuit heard oral argument yesterday in a Texas student's challenge to his school's application of its dress code so as to bar him from wearing a "John Edwards 08" t-shirt  at school.  The school's disciplinary action had been upheld by the district court, but the student, Pete Palmer, argues that the school's action should have been treated as a First Amendment violation . Palmer asserts that  the school suppressed his political speech and that its action could not be plausibly grounded in the avoidance of a substantial disruption of school activities. Questioning of the school district's lawyer revealed that the school allows the wearing  political buttons and the display of political stickers on bookbags but prohibits any "non-school messages" on clothing. In its brief, the Waxahachie Independent School District exlpained the clothing policy seeks  to "promote school pride and foster a learning environment free of distractions" and does to in a viewpoint neutral and content neutral manner. A recording of the oral argument can be found via the Fifth Circuit's website.

JFB      

Brookings Institution Offers Report on Sotomayor Rulings in Religion Cases

As the Sotomayor confirmation hearings approach, Melissa Rogers, Non-Resident Senior Fellow at the Brookings Institution has published a brief examination of Judge Sotomayor’s rulings in church-state cases.  The report summarizes its findings as follows: 

Judge Sotomayor’s style is methodical and her church-state rulings are decidedly mainstream. Generally speaking, she is sensitive to the rights of religious people and groups to express their faith without unnecessary governmental interference, and she is protective of the prerogative of religious institutions to hire and fire their ministers free from state meddling. Sotomayor has not often had to face issues related to government sponsorship of religious messages, and she apparently has never decided cases involving government subsidies and religious institutions and activities. In part for that reason, Senators should engage Sotomayor in a discussion of the broad principles and values animating the constitutional commands on religious freedom.

The Brookings report goes on to note that Judge Sotomayor would likely vote much as Justice Souter had in free exercise cases but that she may not resort as much Souter did to church-state history in explaining rulings.  Because Judge Sotomayor has decided few Establishment Clause cases her rulings in that domain seem harder to predict, but Melissa Rogers sees possible differences in Sotomayor and Souter’s views on displays of religious symbols in public spaces. 

An retrospective assessment of Justice Souter’s Religion Clause jurisprudence is also available from Brookings.    

JFB  

Baptist Joint Committee for Religious Liberty Finds Sotomayor Church-State Record "Commendable"

The Baptist Joint Committee has issued an assessment of Judge Sotomayor's opinions addressing free exercise and Establishment Clause issues. The report summarizes the BJC's conclusions as follows: 

[Judge Sotomayor] has written opinions suggesting a strong willingness to protect free exercise – even in difficult settings such as prisons and in cases where the religious practices of plaintiffs are unfamiliar. She has participated in fewer Establishment Clause cases, but her opinions in that area generally fit within the mainstream of Supreme Court decisions. Moreover, in a couple of cases where the governing case law was not settled, she accurately predicted the Supreme Court’s eventual resolution.

    Among the specific cases discussed by the BJC is Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003), which, the report indicates, Judge Sotomayor identified as one of the ten most significant cases she has decided in her responses to the Senate Judiciary Committee pre-confirmation hearing questionnaire. In Ford, the Second Circuit considered a Muslim prisoner's claim that his free exercise rights were violated by prison officials' refusal to allow him to observe the Eid ul Fitr feast at the end of Ramadan. The appellate panel overruled the district court's ruling that the prisoner had to failed to state a claim beacuse he had not offered objective evidence of the feast's significance or demonstrated that the denial imposed more than a trivial burden.  Judge Sotomayor's opinion admonished, “District courts have
no aptitude to pass upon the question of whether particular religious beliefs are wrong or right,” and chided the lower court for failing to frame its evaluation of the claim in terms of  whether participation
in the Eid ul Fitr feast was considered important to the claimant’s practice of Islam rather than insisting that such a claim could only be sustained if Muslim clerics considered the observance of the
requested meal a mandate of Islam.

    The BJC also noted that Judge Sotomayor's ruling in  Mehdi v. United States Postal Service, 988 F. Supp. 721 (S.D.N.Y. 1997), rejecting  Muslim plaintiffs's free speech and Establishment Clause challenge to the Postal Service’s refusal to display the Star and Crescent alongside Christmas and Hanukkah symbols or to remove all sectarian symbols from holiday displays reflected reasoning similar to that later adopted by the Supreme Court in Pleasant Grove City, Utah, et. al., v. Summum, 555 U.S. ____ (2009). Judge Sotomayor treated the post office facility as a non-public forum and conluded that the Postal Service's refusal to alter its decorations was a “reasonable restriction designed to further its business.”

Hat tip to Religion Clause Blog for flagging the BJC report.

JFB  

First Amendment Scholarship Update

Here is this week’s collection of First Amendment scholarship:

1. Mohammad Fadel (University of Toronto), Political Liberalism, Islamic Family Law and Family Law Pluralism: Lessons from New York on Family Law Arbitration, MARRIAGE AND DIVORCE IN A MULTICULTURAL CONTEXT: RECONSIDERING THE BOUNDARIES OF CIVIL LAW AND RELIGION (Joel A. Nichols, ed., Forthcoming 2010). The abstract states:

   Recent controversies involving Islamic family law in the context of liberal jurisdictions (as exemplified in the Shari’a arbitration controversy of Ontario, Canada) have raised fundamental questions regarding the nature of family law in a liberal jurisdiction and the place of Islamic religious and legal commitments in such a jurisdiction. In this chapter, which is part of a book dedicated to discussing the question of family law pluralism in liberal states, the author argues that orthodox Muslims would prefer a policy of family law pluralism that is derived from a liberal family law rather than a system of family law pluralism that would give religious bodies greater authority. Working with a Rawlsian conception of the role of the family within political liberalism, the author argues that orthodox Muslims could support this version of family law because it creates a space for private ordering within the family that is sufficient for robust manifestations of Islamic family life that are also consistent with liberalism, and most importantly, does not require Muslims to endorse what would be, from their perspective, metaphysically controversial conceptions of marriage, such as the norm of lifelong marriage. The chapter describes how various Islamic ethical and legal doctrines give rise to and support a system of family law pluralism which, although different from the pluralism of liberalism, creates the possibility for overlap between authentically Islamic doctrines and liberal ones. The author then offers examples of the salient historical differences in Muslim understandings of family law by comparing two distinct Sunni Muslim systems of substantive law: the Hanafî and the Mâlikî. The author also describes the tension that exists between the values of Islamic law as a legal system and traditionalist Islamic religious discourse: the former protects and vindicates the individual rights of the parties to the marriage contract while the latter promotes an ethic of sacrifice, trust, love and female subordination to their husbands. The pluralist conception of marriage in Islam, whether at the legal or moral level, means as a practical matter that not all Islamic conceptions are consistent with a liberal order, and accordingly, any kind of Islamic arbitration system must be subject to the supervision of the liberal legal order to confirm that results of arbitration do not violate mandatory provisions of family law. Finally, the author offers the practical example of New York courts’ experience with enforcing (or not) family law arbitrations conducted pursuant to Jewish law to demonstrate the capacity of the courts in a liberal jurisdiction to give effect to the autonomy of nonliberal citizens while ensuring that the autonomy of the family is not used to deprive any of its members of their fundamental rights as citizens.

2. Yehiel S. Kaplan (University of Haifa), A Father's Consent to the Marriage of His Minor Daughter: Feminism and Multiculturalism in Jewish Law, 18 S. Cal. Rev. L. & Soc. Just. 393-460 (2009). The abstract states:

   The marriage of minor daughters in conservative societies stems from a stereotypic outlook that a woman's place is in her home, and her main roles in life are childbearing and her contribution to the growth and education of her children. ... During the first stage, rules concerning the authority of the father were dominant; the father could betroth his minor daughter without her consent. ... These scholars should consider that another approach might enhance and promote the desirable balance between multiculturalism and feminism. ... Al-Hibri stressed that a feminist perspective favoring reform in Muslim countries or within groups of Muslim immigrants in Western countries should always be balanced by the counter-perspective of respect for the religious and cultural principles of Muslims. ... Maimonides held that the ancient point of view of Rabbi Yehudah, quoting the legal statement of Rav, or according to another tradition, Rabbi Elazar, that it is forbidden for a father to betroth his daughter while she is a minor, and therefore, he should wait until she matures and says she desires to wed a particular person, is binding law of the ancient sages that "commanded" Jews not to betroth their minor daughters. ... The abovementioned rationale of "harsh reality" and financial uncertainty, mentioned in sources written by prominent Jewish scholars of Franco-German Jewry during the eleventh through thirteenth centuries, might not be identical to the abovementioned rationale of the temporary opportunity to betroth the daughter. ... In the seventeenth century, Rabbi Ephraim Cohen, an Ashkenazi Jewish scholar in Buda, Hungary, mentioned an "ancient" enactment of the Jews that fathers should not betroth their daughters before their eleventh year of life. ... Enactments of some Jewish communities prior to the enactment of the Chief Rabbinate of Israel prohibited the betrothal of minor daughters. ... Professor An-Na'im held that the reconciliation between Muslim religious values and Western principles of human rights is possible, and his Jewish religious colleague Professor Louis Henkin also stressed: Religion, and religions, have little to fear from the human rights idea and ideology, or from legal norms and political institutions that promote respect for human rights... .

3. Liaquat Ali Khan (Washburn University), Jurodynamics of Islamic Law, 61 Rutgers L. Rev. 231-293 (2009). The abstract states:

   Jurodynamics recognizes the Shariah as the Basic Code, which empowers Islamic states to construct dynamic bonds with classical jurisprudence (fiqh), positive law (qanun), and international law (siyar). ... Part IV presents the concept of inter-scriptural jurodynamics, explaining the theses of Al-Shafi'i and Al-Ghazali. ... Because of the textual presence of both abrogating and abrogated verses in the Quran, and because of potentially abusive practices of abrogation, some jurists completely reject the concept of abrogation and make every effort to reconcile the conflicting verses. ... Jurists of immense competence must engage in extensive research to prioritize conflicting norms of the Shariah's primary sources, the Quran, and the Prophet's Sunnah. ... A universal consensus exists among Muslims that the Prophet's Sunnah prescribes the stoning punishment for adultery. ... Classical Theses of Abrogation In Islam, inter-scriptural reconciliation is a method of harmonizing incompatible prescriptions found in the primary divine texts - the Quran and the Prophet's Sunnah. ... Western imperialism was not content with the exploitation of trade and commerce in colonized lands; it was aggressively self-righteous in imposing Western laws over Muslim communities. ... The Quran's permissibility that prisoners of war may be released without any ransom or penalty allows Muslim states to universalize such a norm when other states are also willing to do so.

4. Mark Strasser (Capital University Law School), The Coercion Test: On Prayer, Offense, and Doctrinal Inculcation, 53 St. Louis Univ. L.J. 417-483 (2009). The abstract states:

   Certainly, Engel discusses the importance of preventing religious persecution by the state, and it suggests that there is a positive correlation between state endorsement of particular religious views on the one hand and religious persecution on the other. ... Justice Kennedy does not spell out the coercion test sufficiently clearly to know what it permits and what it does not, although Justice O'Connor warned in her Allegheny concurrence that an Establishment Clause standard that prohibits only "coercive" practices or overt efforts at government proselytization ... but fails to take account of the numerous more subtle ways that government can show favoritism to particular beliefs or convey a message of disapproval to others, would not, in my view, adequately protect the religious liberty or respect the religious diversity of the members of our pluralistic political community. ... By implying that public graduation invocations or benedictions should be analyzed as forced speech cases, the Court suggests that there are ways to remove the constitutional taint without omitting the invocation or benediction. ... Further, when interpreting the first prohibition, the court seemed to downplay the need to show that several children were being coerced before a violation would be found, noting that "the heightened review given to school-sponsored prayer does not turn on any particular children-to-adults ratio, above which prayers are prohibited, but below which they are constitutionally permissible." ... Santa Fe might be read to suggest that the Constitution does not permit the state to avoid Establishment Clause guarantees by adopting policies that foreseeably and actually result in students praying before large audiences at either public football games or graduations, even if those prayers are composed by individual students. ... Yet, the Adler II court failed to mention two points: (1) Santa Fe had involved other allegedly secular goals, since the message was to "solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition," and (2) the other goals articulated in Adler were to (a) afford "graduating students an opportunity to direct their own graduation ceremony by selecting a student speaker to express a message," and (b) permit "student freedom of expression, whether the content of the expression takes a secular or religious form."

5. Suzie Chiodo (University of Western Ontario Faculty of Law), Big M, Little Freedom: Accommodating Religion in a Secular Society, Available online at http://ssrn.com/abstract=1367837. The abstract states:

   By seeing religion as an aspect of life instead of a framework of existence, Canadian courts have committed some fundamental errors in balancing religious freedom with other rights. Such pitfalls must be avoided if the protections for religious freedom (section 2(a)) and equality regardless of religion (section 15) in the Canadian Charter of Rights and Freedoms are to retain any kind of meaning. These pitfalls include:

   • The limitation of religion to the private sphere;
   • Ranking freedom of religion below other equality rights such as sexual orientation;
   • Using section 2(a) to impose freedom from religion, rather than freedom of religion;
   • Assuming that ‘secular’ means non-religious or religiously neutral.

   Landmark cases such as R. v. Big M Drug Mart Ltd. and Syndicat Northcrest v. Amselem have established several tests to guide courts in their consideration of religious freedom. When taken in conjunction with the preamble to the Charter, and the protections in sections 2(a) and 15, courts and human rights tribunals can avoid the above errors and ensure the preservation of freedom of religion together with other fundamental Canadian values.

6. Lorenzo Zucca (King's College London School of Law), The Crisis of the Secular State-A Reply to Professor Sajó, 7 Int'l J. Const. L. 494-514 (2009). The abstract states:

   The failure of the European Constitution ignited two apparently independent debates, on the future of European states and on the place of Christian values in the European public sphere. In recent years, the latter question has become more and more burning; so much so that the future of European secular states is considered to depend to a great extent on its ability to cope with the alleged threat of religion. Responding to an essay by András Sajó, Preliminaries to a Concept of Constitutional Secularism, which appeared in I•CON in October of 2008, this paper distinguishes two competing theories of the place of religion in Europe and suggests that the best understanding of secularism does not exclude religious minorities from the public sphere. European states should develop a common secular position that articulates and promotes conditions of coexistence and communication.

7. András Sajó The Crisis that Was Not There: Notes on a Reply, 7 Int'l J. Const. L. 515-528 (2009). The abstract states:

   In this response to Lorenzo Zucca's critique (A reply to Professor Sajó) of his 2008 article, Preliminaries to a Concept of Constitutional Secularism, Professor Sajó pronounces himself grateful for the opportunity to examine specific examples of the rationales being advanced in order to “create a space for special practices that do not conform to constitutional values.” At the end of the day, he remains persuaded of the dangers of including religious phraseology and concepts in law that would give “too much aid and comfort” to already privileged religious organizations, in the name of free exercise of religion.

8. Elizabeth A. Rowe (University of Florida - Fredric G. Levin College of Law), Trade Secret Litigation and Free Speech: Is it Time to Restrain the Plaintiffs?, Boston Coll. L. Rev. (forthcoming 2009). The abstract states:

   Trade secret misappropriation litigation is often criticized for its negative effects on competition and speech. In particular, some accuse plaintiff trade-secret owners of filing complaints for the purpose of running a competitor out of business, or restraining individuals from discussing matters which are unfavorable to the company. This paper enters the discussion to critically assess whether there is reason to consider restricting these suits or changing the law.

   The Article concludes that trade secret litigation on the whole does not inappropriately impinge on free speech rights. The fundamental nature of trade secret rights, in particular the underlying proprietary and corporate privacy interests, has implications for how courts and plaintiff trade-secret holders view, interpret, and approach these cases, and ultimately help illustrate why the free speech issues do not pose an overriding concern sufficient to justify restrictions on trade secret litigation. Even if certain cases sometimes come closer to offending defendants' free speech rights, these occasions and concerns are not unique to trade secret law. Instead, they stem from the broader issue of litigation misuse in civil cases, and the other areas of intellectual property litigation suffer from similar problems. Accordingly, any necessary modifications are best addressed in the context of general litigation reform, rather than singling out trade secret cases. Indeed, there are particular reasons not to be overly concerned about trade secret actions because existing litigation safeguards, when properly applied, should minimize the risk of free speech incursions.

9. Amos N. Guiora (University of Utah - S.J. Quinney College of Law), Religious Extremism: A Fundamental Danger, 50 S. Tex. L. Rev. (forthcoming 2009) The abstract states:

   Terrorism constitutes one of the gravest threats against democratic societies in the 21st century; in particular, religiously motivated terrorism. Why is this the case? There are many reasons. Religion is a powerful motivator for both positive social change and mass violence. It is a force in society that is difficult for many in a secular society to truly understand. It is an institution that is protected in civil society, whether by a state's own Constitution or international agreements.

   Given that religious violence constitutes such a grave threat to democracies, governments must begin to examine this institution more critically than they have in the past. Governments are charged not only with protecting civil liberties, like freedom of or from religion, but with protecting their citizens from internal and external threats. This Article discusses the framework modern democratic governments must begin to institute if they are to protect freedom of religion and effectively respond to a unique threat to safety. Five countries - the United States, the United Kingdom, Turkey, Israel and the Netherlands - will be examined. My primary thesis is that civil societies cannot afford to continue to treat religion as an "untouchable" subject - we must begin to understand what religion is in order to know when and how it may be appropriately limited for the benefit of society.

10. Steven G. Gey (Florida State University - College of Law), The Brandenburg Paradigm and Other First Amendments, Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429152. The abstract states:

    This article addresses the fracturing of modern First Amendment law into multiple different sets of rules and rationales for the protection of speech, depending on what kind of speech is an issue. It is no longer accurate to say that there is one universal First Amendment jurisprudence; indeed, it is no longer accurate to say that there is one First Amendment. Today there are many different - often very different - First Amendments for different types of speech. On a practical level, this fracturing of First Amendment law creates difficulties only in that it requires litigators and judges addressing First Amendment issues to identify the category or categories into which a particular example of speech fits. But on a theoretical level, the fracturing of First Amendment jurisprudence is much more problematic. These theoretical problems arise because First Amendment jurisprudence is not just a collection of narrow rules and doctrines. These rules and doctrines are based on series of presuppositions about the nature of individuals, the proper relationship between the government and its citizens, the extent to which society should accept risks posed by dangerous or antisocial ideas, and the liability of speakers for the consequences of their speech. The problem is that the courts make one set of assumptions when dealing with one area of expression and very different (and often contradictory) assumptions when dealing with other areas of expression.

    The article starts by describing the baseline for all free speech jurisprudence - the jurisprudence that applies to political advocacy. It then distills from the Court's major political speech cases a set of principles that will be called "the Brandenburg paradigm." The remainder of the article discusses whether the theoretical assumptions made in the Brandenburg paradigm should also be applied to areas of speech other than political advocacy. Several areas of expression are addressed specifically, including threats, obscenity, "teaching speech," and student speech in public schools. An assessment of these different speech categories indicates that there is no good reason to ignore the Brandenburg paradigm outside the political advocacy category. Indeed, there is one very good reason to apply the Brandenburg paradigm to the entire range of First Amendment issues: The assumptions that underlie Brandenburg - for example, that citizens control the government rather than vice versa, that citizens should develop their own value systems free of government coercion, and that the government should suppress ideas it dislikes only in the face of serious, concrete harms stemming from that expression - should not be regarded solely as artifacts of the First Amendment, but rather as indispensable elements of constitutional democracy itself.

11. Ryan Benjamin Witte (Columbia University - Law School), It's My News Too! Online Journalism and Discriminatory Access to the Congressional Press Gallery, Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1426190. The abstract states:

    Since March 2007, dozens of newspapers have gone out of business entirely, and still others, like the Seattle Post-Intelligencer, the Capital Times, and the Christian Science Monitor have moved to the internet to stay afloat. Since 1990, a quarter of all American newspaper jobs have disappeared. Despite its three hundred year existence, the American newspaper is being devastated in the span of a decade. Meanwhile, the internet is becoming the go-to source for news, information, weather, movie reviews, and classified advertisements. Congress and the courts can no longer afford to relegate internet journalism to a second-class news medium. In Consumers Union v. Periodical Correspondence Association, the question arose as to the constitutionality of certain rules governing the issuance of press credentials to the congressional press galleries. In that case, based on separation of powers concerns, the court avoided the issue with the political question doctrine. Since then, many courts have taken a similar path when faced with the exclusion of a journalist from an established press facility. Given the switch from traditional print media to websites and Kindles, the question of who has access to the news becomes extremely important. This article will address several issues relating to the freedom of access to the Periodical Press Gallery. The first part of the article will briefly describe the history of the press and the history of congressional reporting leading up to the passage of the Periodical Press Gallery Rules. Part two of the article will describe the rules that govern admission to the Periodical Press Gallery as they exist today. Part three will describe the nature of the right afforded to journalists to access government buildings which have already been opened up to the press. Cases within this section challenge the denial of access to the White House, the Periodical Press Galley, and the Guantanamo Bay detention facility. Discussion in this section will reveal how the D.C. Circuit Court has used the political question doctrine to avoid deciding these press gallery cases on their merits, while taking a deferential approach to denials from other established press pools. Because I believe that Consumers Union was wrongly decided, the final section will address how the courts should decide cases which stem from a denial of admission to the galleries. If the courts still refuse to decide these cases on nonjusticiability grounds, I will argue why Congress should unilaterally refine its rules to cabin the discretion of the Executive Committee and permit more online journalists to enter the Periodical Press Gallery. This section will describe how the current Press Gallery Rules act as an unconstitutional obstacle to the First Amendment rights of online journalists, as well as a Fifth Amendment violation of Due Process. Lastly, I will detail a few substantive amendments to the existing Rules which would provide for a fairer review of an online-journalist’s application.

 

Global Free Speech Update

Ethiopia:  Deputy Secretary of State Jacob Lew expressed concern to Prime Minister Meles during a trip to Ethiopia about a proposed anti-terrorism law that reportedly would define criticism of the government as a "terrorist act."  Good Lord, what kind of government does that?

France:  What to do about illegal downloads?  A proposal that would have punished illegal file-sharers by blocking their access to the internet was rejected recently by the Constitutional Council.  From reports on the decision, it appears that the problem with the law was not the interference with internet access itself, but the authority conferred upon administrative agents, as opposed to a judge, to suspend service.  

Italy:  Careful what you write about.  If a new media law is passed, journalists in Italy could serve 3 years in prison and face hefty fines for writing about an on-going police investigation, publishing a related document or disclosing the contents of a leaked wire-tap.  Could be worse, though.  Publish this stuff in the Czec Republic and you could get 5 years under a law passed last February.  

Kazakhstan:  Activists are criticizing a move to categorize blogs, chat rooms and social networking sites as forms of "mass media" under a new law that would place them under arbitrary government control.  The country already lacks a free and open internet, and bloggers have been prosecuted for anti-government criticism.  President Nursultan Nazarbayev faces pressure from the OSCE to nullify the measure and align the country's laws on freedom of the press with regional standards.  Kazakhstan becomes the organization's chair in six months.

Turkey:  Laws against insulting religion, the military, and the Turkish state continue to be used as a basis for politically motivated prosecutions despite reforms to the penal code undertaken last year. By one estimate more than 70 such cases are pending.  Though imprisonment and convictions are rare, the threat of prosecution itself has a profound chilling effect on speech.  Most recently, author Nedim Gursel was charged with insulting religion in his book, The Daughters of Allah.  Charges were dismissed last week after lawyers uncovered evidence that the complainant probably never read the book.      

-Kathleen Bergin

Westboro Baptist Case Denied SCT Review

The Supreme Court denied cert in Nixon v. Phelps-Roper, leaving in place a Eight Circuit decision that enjoined Missouri's ban on funeral picketing. 

The suit was brought by Shirley Phelps-Roper, grand-daughter of Westboro Baptist Church founder Fred Phelps.  The group you'll recall is best known for disrupting the funerals of gay soldiers while protesting America's supposed toleration of homosexuality.  Here's Shirley's reaction to Monday's decision:

All things are falling apart. Your people are rotten to the core. Your leaders are self-centered, greedy thieves," she said. "You have absolutely no hope for recovery. The final event for this country is your final and complete destruction. And you think we care whether someone says we're hate mongers? Let me sum this up. We don't care. 

But I digress . . .      

In 2006, Missouri passed a law that was meant to provide a buffer between Phelps and the funerals he and his crew wanted to protest.  The Spc. Edward Lee Myers' Law makes it unlawful to picket in front of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral.

One problem for the Eighth Circuit was the langauge "in front of or about," which it said made it difficult for those protesting a moving funeral procession to know with any certainty where they could or could not gather.

"Floating buffer zones" have been upheld before, however, and I'm not sure why Missouri's statute wasn't more narrowly tailored.  Hill v. Colorado upheld a law that made it unlawful for anyone within 100 feet of an abortion clinic to come within 8 feet of another person to hand out literature and the like without their consent. 

For sure there are differences between an abortion clinic with a fixed point of reference and a moving funeral procession, and its true that an 8 foot buffer zone probably wouldn't suffice to balance the privacy interests of grieving families.  But MIssouri would have done better to mark out the size of its buffer and argue that a foot here or there shouldn't raise a constitutional concern, rather than try to enforce a buffer with no defined limits whatsoever.

-Kathleen A. Bergin

Supreme Court Delays Critical Campaign Finance Decision

What to make of the delay in Citizens United v. Federal Election Commission? 

Proponents of campaign finance reform aren't optimistic that the Court's decision to schedule additional arguments for September will work to their favor.  The outcome in Citizens United could have been decided on statutory grounds, but the constitutionality of limits on corporate campaigning is now squarely on the table, making the case even more important than it already would have been. 

If history is our guide, there's a strong likelihood that the Court asked for additional arguments because it its looking for a reason to overturn prior cases under which the campaign limits at issue would have been upheld.

-Katheen A. Bergin

Practice Skills in Doctrinal Classrooms

They're talking about the value of practice skills to the law school curriculum over at the Conglomerate.  Here's my take on it:

Though I'm a First Amendment doctrinal prof fond of critical theory, I side with those who think that US law schools must do more to develop and reward those who teach effective writing, process and skills programs.  Let's face it, most of our students won't become Law Profs, or legal philosophers, or theorists of any kind.  They'll become lawyers, and they want to be good ones.

So besides substantive knowledge, what can a doctrinal prof bring to the table? 

Plenty.  My colleague Rocky Rhodes and I just completed a final manuscript for the First Amendment volume of the new Skills & Values series by Lexis (shameless plug acknowledged).  The book includes 14 problems and associated tasks that make students think like actual lawyers.  They're asked to draft pleadings, interrogatories, requests for production, and other litigation documents.  They also navigate tactical dilemmas.  As a prosecutor, when should they bring charges in the course of an on-going factual investigation?  As a defense attorney, is it best to address the charges on the merits or move to dismiss?  Other problems place students in the role of a judicial law clerk, a lawyer in private practice, or an advocate who submits written testimony to a legislative committee.    

We strived to make each problem as realistic as possible given the format.  Lawyers aren't handed a narrative hypothetical in practice, so we don't give them to students.  We give just enough background information to make the problems workable, but otherwise rely on client correspondence, charging documents, subpoenas, and the like - the kinds of things attorneys in the real world build a case out of.

I've experimented with some of these problems in class last semester, and the result was overwhelmingly positive.  Most notable was the collective glaze that swept over the class on the weeks we went back to the socratic method.  It was painful all around. 

I'm hoping projects like these will lead to more integration between doctrine and skills without discounting the need to support existing practice-oriented courses.

-Kathleen Bergin

Cross-post Faculty Lounge.

Mother May Seek Cert in Case Challenging School's Refusal to Allow Reading from the Bible As Part of "All About Me" Presentation

In June, the Third Circuit decided Busch v. Marple Newtown School Dist., 567 F.3d 89 (3d. Cir. 2009), ruling that school officials had not acted unconstitutionally when they refused to allow a kindergartener’s mother to read a selection  from the Bible as part of an “All About Me” activity in which students were invited to have a parent read to the class from a favorite book.  Asserting that allowing the student’s mother to read the passages from the Book of Psalms would have created an Establishment Clause violation, the school principal invited the fundamentalist Christian mother to read from a Halloween book instead .  Writing for the majority, Chief Judge Scirica explained the crux of the ruling as follows:

It may be reasonably argued that a mother’s reading of the Bible to a kindergarten class, especially sublime verses from the Book of Psalms, should be permitted. In this sense and for many, the conduct is benign and the message inspiring. But a reading from the Bible or other religious text is more than a message and unquestionably conveys a strong sense of spiritual and moral authority. In this case, the audience is involuntary and very young. Parents of public school kindergarten students may reasonably expect their children will not become captive audiences to an adult’s reading of religious texts.

In dissent, Judge Hardiman concluded the school’s actions reflected unconstitutional viewpoint discrimination, echoing concerns voiced by then Judge Alito’s dissent from the en banc ruling in C.H. v. Oliva, 226 F.3d 198 (3d Cir.2000), in which a school’s handling of the display of an elementary school student’s religiously themed artwork was challenged. As noted on How Appealing, the Philadelphia Inquirer reports that the mother in the case is considering asking the Supreme Court to review the ruling.  I address some of the constitutional questions raised by students’ religious speech at school in my recent article, Representative Tension: Student Religious Speech and the Public School’s Institutional Mission, 38 J.L. & Educ. 1 (2009).

JFB

First Amendment Scholarship Update

Here is this week’s collection of First Amendment scholarship:

1)  Zachary R. Calo (Valparaiso University School of Law), Law, Language and Love: James Boyd White’s Living Speech: Resisting the Empire of Force, J.L. Phil. & Culture (forthcoming 2009). The abstract states:

     A review essay considering James Boyd White's, Living Speech.

2) Berin Michael Szoka & Adam D. Thierer (The Progress & Freedom Foundation), Cyberbullying Legislation: Why Education is Preferable to Regulation, 16 Progress & Freedom Found. Progress on Point Paper, No. 12 (2009). The abstract states:

Cyberbullying is a rising online safety concern. Compared to previous fears about online predation, which have been greatly overblown, concerns about cyberbullying are more well-founded. Evidence suggests that cyberbullying is on the rise and can have profoundly damaging consequences for children.

In the wake of a handful of high-profile cyberbullying incidents that resulted in teen suicides, some state lawmakers began floating legislation to address the issue. More recently, two very different federal approaches have been proposed. One approach is focused on the creation of a new federal felony to punish cyberbullying, which would include fines and jail time for violators. The other legislative approach is education-based and would create an Internet safety education grant program to address the issue in schools and communities.

Criminalizing what is mostly child-on-child behavior will not likely solve the age-old problem of kids mistreating each other, a problem that has traditionally been dealt with through counseling and rehabilitation at the local level. Moreover, criminalization could raise thorny free speech and due process issues related to legal definitions of harassing or intimidating speech. To the extent criminal sanctions are pursued as a solution, it may be preferable to defer to state experimentation with varying models at this time.

By contrast, education and awareness-based approaches have a chance of effectively reducing truly harmful behavior, especially over the long haul. Such approaches would have the added benefit of avoiding constitutional pitfalls and subsequent court challenges. Thus, if lawmakers feel the need to address cyberbullying concerns at this time, it is clear that regulation is, at best, premature and that education is the better approach. If federal criminal law has a role to play, it is in punishing clear cases of harassment of minors by adults in ways that do not chill free speech protected by the First Amendment.

3.  ISLAMIC RADICALISATION: THE CHALLENGE FOR EURO-MEDITERRANEAN RELATIONS, (Michael Emerson et al. eds. 2009) The abstract states:

On June 4th, Obama will deliver his long-anticipated speech in Cairo, which is expected to convey a reconciliatory message to Arabs and Muslims across the world. As both the US and the EU are trying to reset their policies in the Middle East, the challenge of how to deal with the most important emerging actors in the region – Islamists – remains a matter of great controversy. In this book, Arab and European authors ask whether the EU's current policies are contributing to the radicalisation of Islamist movements in the Middle East and North Africa, and argue in favour of an EU policy based on inclusion.

4) Dr. Tamar Gidron (College of Management, Israel), Publication of Private Information: An Examination of the Right to Privacy from a Comparative Perspective (2009). The abstract states:

How much did the chairman of an Israeli political party – with a social-democratic platform – pay for his apartment? Who were the guests of the former prime minister of Israel at his son's Bar Mitzvah and what was the cost of this celebration? Was pumpkin carving the favorite hobby of Barack Obama as a child growing up in Hawaii? What was Hillary Clinton's favorite type of sandwich as a law student? Is it permissible to “out” a person as a homosexual against his wishes? And just how “private” is our privacy when we are walking down the street and some aspect of our appearance catches the eye of a passing photographer?

In general, how does a modern society cope with the need to protect the right to privacy when an individual wishes to prevent the public disclosure of personal information, and within what boundaries is the media – motivated by economic, commercial, and social interests – protected when, on the one hand, it feeds society morsels of trivia, but, on the other hand, also provides information of general, social importance? Is there a difference between the protection of privacy and the protection of reputation, particularly when the boundaries of these two rights overlap? How do courts deal with the need to apply the social, moral, and economic theories underlying these fundamental rights and freedoms – on the one hand, the right to privacy and the right to reputation, and, on the other hand, freedom of expression and the right to information – none of which, as we know, is absolute?

The above examples, as well as those discussed below, illustrate the need to strike a balance between two, and sometimes three, competing interests. On the one hand, the right of an individual unwillingly exposed to the public eye – often in disgrace – to maintain his privacy and sometimes also his reputation, and, on the other hand, the complex right – anchored both in the collective, public interest as well as the personal, private interest of each member of society – to the free and unrestrained flow of information

Five random examples taken from recent case law best illustrate the moral and ideological dilemmas raised by the subject of this article: (1) a university professor publicly advises his colleagues that the academic level of a candidate for doctoral studies at the institution where he teaches is sub-standard and that the student should not be accepted for advanced studies;9 (2) a young man wearing an Israel Defense Forces (IDF) uniform is photographed at the center of a gay pride parade marching through the streets of Israel's capital and the photo is published two years later in an article unrelated to the parade, without his consent; (3) the promo for a television program dealing with the phenomenon of obesity, dieting, and the health risks of being overweight (“On the Scale”) makes unauthorized use of the image of an overweight woman filmed in the public domain; (4) a politician's biography reveals the names of HIV carriers; (5) the medical history of a cabinet member holding the health portfolio, containing details of her drinking habits and associated medical problems, is disclosed in the press.

It is this struggle between the desire and need to publish, on the one hand, and the fear of causing injury to a person's emotional state, reputation, and dignity, on the other, that confronts a modern society in its attempt to provide legal protection for the right to privacy and the right to reputation. This is made particularly difficult by the fact that modern society is hungry for knowledge, news, the exposure of “confidential,” even gossipy, details, and the unceasing flow of information – whereas the actual importance of such information is usually disproportionate to the interest that it arouses among the consumer public.

Every legal system chooses to protect privacy, in all of its various aspects and nuances, according to the degree of importance ascribed to this right in comparison to other, sometimes competing, interests. An examination of the similarities and variations between different legal systems with respect to the legal tools and rules regulating protection of the privacy right could teach us much about the nature, content, source, and importance of the right itself. Such an examination can also provide insights about the protection granted by each legal system to the cluster of personality rights, which – alongside the right to privacy – also includes the right to reputation, the right to publicity, and the right to dignity and autonomy. Finally, it can shed light on the relation between the protection granted to the privacy right by constitutional law and that granted by private law.

In the present article, I will examine only one aspect of the right to privacy, which, in contrast to most other fundamental rights, is multi-faceted and may thus be infringed in diverse ways. I have chosen to focus solely on the manner and extent of protection granted to an individual who wishes to prevent the publication of personal information. This article will not deal with invasion of privacy through methods such as wiretapping, surveillance, computer hacking, and so forth, when such acts do not lead to a public disclosure of the information obtained. The aim of this article is to examine prevailing trends in case law that deals with safeguards against the publication of private information and the direction that this case law may take in the future.

The evolution of this body of case law will be examined through an analysis of several important, recent judgments addressing protection of the privacy right, along with a comparative treatment of the right to reputation, when both these rights are confronted by the competing interests of freedom of expression, in general, and freedom of the press, in particular. An examination of the legal systems compared below highlights their differences in terms of the cultural background of each society, the historical development of the right to privacy within the societal context, and the manner in which the prevailing law incorporates, alters, and balances conflicting factors and opposing viewpoints through the use of flexible legal tools. This is usually accomplished with some impressive rhetorical acrobatics, but, unfortunately, it often lacks an adequate explanation for the choice between competing values. This comparison will also serve as a basis for examining the development of each of these legal systems, different from one another in affiliation and origin – common law versus mixed systems – as well as in the manner in which they have adopted human rights within the framework of private law, whether by force of an international convention or a constitution and whether by force of a basic law or specific tort legislation

The current state of English law will be examined mainly through the prism of the judgment in Mosley v. News Group Newspapers Ltd. Apart from the journalistic lessons that may be drawn from the treatment of its professional, editorial aspects, and due to its scandalous circumstances, this case offered the London Queen's Bench a golden opportunity to review the precedential basis for privacy protection in England while combining the common law with the constitutional protection derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Mosley will also be compared here to the noteworthy Jameel defamation case. In the latter case, following a series of judgments reflecting genuine indecision as to the proper balance between the individual's right to reputation and the press's right to publish stories it believes to be in the public interest, the House of Lords was required to reformulate the complicated tests for striking a balance between these competing interests. Jameel indicates the adoption of a different point of balance from that reflected by Mosley, where the cause of action was based on an invasion of privacy tort.

An examination of the legal situation in South Africa could enrich the discussion with an original and novel perspective. This is a truly mixed legal system, reflecting various origins and different elements of tort law, in general, and of the right to privacy, in particular. Therefore, it could serve as an interesting basis for comparison. The prevailing approach of South African case law regarding the protection of privacy will be presented through two of the most important South African judgments of recent years. In these cases, the South African courts were required to decide on the legitimacy of published information that was particularly revealing. In the first case, the plaintiffs were identified – without their consent – as HIV carriers. The second case dealt with the right of the minister of health to prevent the press from publishing reports of her drinking habits, in general, and her hospitalization for liver disease, in particular.

This survey will also entail a comparative treatment of new South African case law regarding the proper balance between application of the law of defamation, on the one hand, and freedom of expression and the press, on the other, particularly because the South African Constitutional Court itself has often been called upon to address this conflict.

The comparative survey will be concluded with a review of recent Israeli case law. Each year, Israeli courts deal with more and more cases involving both defamation and privacy issues. These cases require a value-based cultural and social, as well as a complex economic, resolution. Therefore, the Israeli perspective offers quite an interesting source for the purpose of comparison.

The picture emerging from this comparative study indicates an expanded protection of the privacy right – which are not always consistent with prevailing trends in case law dealing with the protection of reputation – at the expense of the “rights” of the media. This picture is identical in all three legal systems examined here: English law, South African law, and Israeli law. However, despite the identical cultural-legal process of these three societies, which leads to an identical legal outcome, there are still considerable differences between the rhetoric employed by each legal system, the force of the value-based arguments raised, and the legal analysis of the relevant issues.

5. Rob Frieden (Pennsylvania State University - School of Law), Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits,. The abstract states:

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values.

While professing to support marketplace resource allocation and a regulation-free Internet, the FCC has selectively imposed compulsory duties on ISPs who qualify for classification as largely unregulated information service providers. Such regulation can tilt the competitive playing field, possibly favoring some First Amendment speakers to the detriment of others. Yet the FCC has summarily dismissed any concerns that the Commission’s regulatory regime inhibits First Amendment protected expression.

For their part, ISPs have evidenced inconsistency in how seriously they value and exercise their First Amendment speaker rights. Such reticence stems, in part, from the fact that ISPs combine the provision of conduits, using telecommunications transmission capacity, with content. While not operating as regulated common carriers, the traditional classification of conduit-only providers, ISPs can avoid tort and copyright liability when they refrain from operating as speakers and editors of content. In other instances, the same enterprise becomes an aggressive advocate for First Amendment speaker rights when selecting content, packaging it into a easily accessible and user friendly “walled garden,” and employing increasingly sophisticated information processing techniques to filter, prioritize and inspect digital packets.

Technological and marketplace convergence creates the ability and incentive for ISPs to operate as publishers, editors, content aggregators, and non-neutral conduit providers. No single First Amendment media model (print, broadcast, cable television and telephone), or legislative definition of service (telecommunications, telecommunications service and information service) cover every ISP activity. Despite the lack of single applicable model and the fact that ISPs provide different services, the FCC continues to apply a single, least regulated classification. The inclination to classify everything that an ISPs does into one category promotes administrative convenience, but ignores the complex nature of ISP services and the potential for to harm individuals, groups and First Amendment values absent government oversight. For example, the information service classification enables ISPs to engage in price and quality of service discrimination that network neutrality advocates worry will distort a free marketplace of ideas.

This paper will examine the different First Amendment rights and responsibilities borne by ISPs when they claim to operate solely as conduits and when they combine conduit and content. The paper will show that ISPs face conflicting motivations with light FCC regulation favoring diversification into content management services, like that provided by editors and cable television operators, but with legislatively conferred exemptions from liability available when ISPs avoid managing content. The paper concludes that current media models provide inconsistent and incomplete direction on how to consider ISPs’ joint provision of conduit and content. The paper provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs.

6. Winnifred F. Sullivan (University of Buffalo Law School, PRISON RELIGION: FAITH-BASED REFORM AND THE CONSTITUTION, (Princeton Univ. Press, 2009). The abstract states:

More than the citizens of most countries, Americans are either religious or in jail--or both. But what does it mean when imprisonment and evangelization actually go hand in hand, or at least appear to? What do "faith-based" prison programs mean for the constitutional separation of church and state, particularly when prisoners who participate get special privileges? In Prison Religion, law and religion scholar Winnifred Fallers Sullivan takes up these and other important questions through a close examination of a recent trial challenging the constitutionality of a faith-based residential rehabilitation program in an Iowa state prison, a trial in which she served as an expert witness for the prisoner-plaintiffs.

Using the trial to illuminate the interrelationship of American law and religion today, Prison Religion argues that the plaintiffs' case unintentionally shows that separation of church and state is no longer possible because religious authority has radically shifted from institutions to individuals, making it difficult to define religion, let alone disentangle it from the state. In the course of advancing this unconventional view, Prison Religion casts new light on church-state law, the debate over government-funded faith-based programs, and the predicament of prisoners who have precious little choice about what kind of rehabilitation they receive, if they are offered any at all.

7. James M. O'Toole, THE FAITHFUL: A HISTORY OF CATHOLICS IN AMERICA, (Belknap Press, Nov. 2009). The abstract states:

Shaken by the ongoing clergy sexual abuse scandal, and challenged from within by social and theological division, Catholics in America are at a crossroads. But is today’s situation unique? And where will Catholicism go from here? With the belief that we understand our present by studying our past, James O’Toole offers a bold and panoramic history of the American Catholic laity.

O’Toole tells the story of this ancient church from the perspective of ordinary Americans, the lay believers who have kept their faith despite persecution from without and clergy abuse from within. It is an epic tale, from the first settlements of Catholics in the colonies to the turmoil of the scandal-ridden present, and through the church’s many American incarnations in between. We see Catholics’ complex relationship to Rome and to their own American nation. O’Toole brings to life both the grand sweep of institutional change and the daily practice that sustained believers. The Faithful pays particular attention to the intricacies of prayer and ritual—the ways men and women have found to express their faith as Catholics over the centuries.

With an intimate knowledge of the dilemmas and hopes of today’s church, O’Toole presents a new vision and offers a glimpse into the possible future of the church and its parishioners. Moving past the pulpit and into the pews, The Faithful is an unmatched look at the American Catholic laity. Today’s Catholics will find much to educate and inspire them in these pages, and non-Catholics will gain a newfound understanding of their religious brethren.

8. Moshik Temkin (Harvard University Kennedy School of Government), THE SACCO-VANZETTI AFFAIR: AMERICA ON TRIAL, (Yale University Press, April 2009). The abstract states:

What began as the obscure local case of two Italian immigrant anarchists accused of robbery and murder flared into an unprecedented political and legal scandal as the perception grew that their conviction was a judicial travesty and their execution a political murder. This book is the first to reveal the full national and international scope of the Sacco-Vanzetti affair, uncovering how and why the two men became the center of a global cause célèbre that shook public opinion and transformed America’s relationship with the world.

Drawing on extensive research on two continents, and written with verve, this book connects the Sacco-Vanzetti affair to the most polarizing political and social concerns of its era. Moshik Temkin contends that the worldwide attention to the case was generated not only by the conviction that innocent men had been condemned for their radical politics and ethnic origins but also as part of a reaction to U.S. global supremacy and isolationism after World War I. The author further argues that the international protest, which helped make Sacco and Vanzetti famous men, ultimately provoked their executions. The book concludes by investigating the affair’s enduring repercussions and what they reveal about global political action, terrorism, jingoism, xenophobia, and the politics of our own time.

9. Shayne Lee & Phillip Luke Sinitiere, HOLY MAVERICKS: EVANGELICAL INNOVATORS AND THE SPIRITUAL MARKETPLACE, (NYU Press, April 2009). The abstract states:

Joel Osteen, Paula White, T. D. Jakes, Rick Warren, and Brian McLaren pastor some the largest churches in the nation, lead vast spiritual networks, write best-selling books, and are among the most influential preachers in American Protestantism today. Spurred by the phenomenal appeal of these religious innovators, sociologist Shayne Lee and historian Phillip Luke Sinitiere investigate how they operate and how their style of religious expression fits into America’s cultural landscape. Drawing from the theory of religious economy, the authors offer new perspectives on evangelical leadership and key insights into why some religious movements thrive while others decline.

Holy Mavericks provides a useful overview of contemporary evangelicalism while emphasizing the importance of "supply-side thinking" in understanding shifts in American religion. It reveals how the Christian world hosts a culture of celebrity very similar to the secular realm, particularly in terms of marketing, branding, and publicity. Holy Mavericks reaffirms that religion is always in conversation with the larger society in which it is embedded, and that it is imperative to understand how those religious suppliers who are able to change with the times will outlast those who are not.

10. Hasia R. Diner, WE REMEMBER WITH REVERENCE AND LOVE: AMERICAN JEWS AND THE MYTH OF SILENCE AFTER THE HOLOCAUST, 1945-1962, (NYU Press, April 2009). The abstract states:

It has become an accepted truth: after World War II, American Jews chose to be silent about the mass murder of millions of their European brothers and sisters at the hands of the Nazis. Whether motivated by fear, shame, or the desire to assimilate, the Jewish community in the United States simply did not memorialize the Holocaust until the Eichmann trial and the 1967 Arab-Israeli War made it socially acceptable for them to do so.

In a compelling work sure to draw fire from academics and pundits alike, Hasia R. Diner shows this assumption of silence to be categorically false. Uncovering a rich and incredibly varied trove of remembrances—in song, literature, liturgy, public display, political activism, and hundreds of other forms—We Remember with Reverence and Love shows that publicly memorializing those who died in the Holocaust arose from a deep and powerful element of Jewish life in postwar America. Not only does she marshal enough evidence to dismantle the idea of American Jewish "forgetfulness," she brings to life the moving and manifold ways that this widely diverse group paid tribute to the tragedy.

Uncovering a wonderfully rich and incredibly varied trove of remembrances—in song, literature, liturgy, public display, and hundreds of other forms—the NYU professor shows that publicly memorializing those who died in the Holocaust was a deep and powerful element of Jewish life in postwar America. Not only does she marshal enough evidence to utterly destroy the idea of American Jewish "forgetfulness," she brings to life the moving and manifold ways that this widely diverse group paid tribute to the tragedy.

Diner also offers a compelling new perspective on the 1960s and its potent legacy, by revealing how our typical understanding of the postwar years emerged from the cauldron of cultural divisions and campus battles a generation later. The student activists and "new Jews" of the 1960s who, in rebelling against the American Jewish world they had grown up in"a world of remarkable affluence and broadening cultural possibilities"created a flawed portrait of what their parents had, or rather, had not, done in the postwar years. This distorted legacy has been transformed by two generations of scholars, writers, rabbis, and Jewish community leaders into a taken-for-granted truth.

Diner has at last recovered these vital years in American Jewish history, and radically alters our understanding not only of postwar America Jewry, but of the ways that the Holocaust and the 1960s alike continue to reverberate in our lives.

11. Alan E. Steinweis, KRISTALLNACHT 1938, (Belknap Press, Nov. 2009). The abstract states:

On November 7, 1938, a Jewish teenager, Herschel Grynspan, fatally shot a German diplomat in Paris. Within three days anti-Jewish violence erupted throughout Germany, initially incited by local Nazi officials, and ultimately sanctioned by the decisions of Hitler and Goebbels at the pinnacle of the Third Reich. As synagogues burned and Jews were beaten in the streets, police stood aside. Men, women, and children—many neighbors of the victims—participated enthusiastically in acts of violence, rituals of humiliation, and looting. Within two days, a nationwide anti-Semitic pogrom had inflicted massive destruction on synagogues, Jewish schools, and Jewish-owned businesses. During and after this spasm of violence and plunder, 30,000 Jewish men were rounded up and sent to concentration camps, where hundreds would perish in the following months.

Kristallnacht revealed to the world the intent and extent of Nazi Judeophobia. However, it was seen essentially as the work of the Nazi leadership. Now, Alan Steinweis counters that view in his vision of Kristallnacht as a veritable pogrom—a popular cathartic convulsion of anti-Semitic violence that was manipulated from above but executed from below by large numbers of ordinary Germans rioting in the streets, heckling and taunting Jews, cheering Stormtroopers’ hostility, and looting Jewish property on a massive scale.

Based on original research in the trials of the pogrom’s perpetrators and the testimonies of its Jewish survivors, Steinweis brings to light the evidence of mob action by all sectors of the civilian population. Kristallnacht 1938 reveals the true depth and nature of popular anti-Semitism in Nazi Germany on the eve of the Holocaust.

12. Rebecca Nedostup, SUPERSTITIOUS REGIMES: RELIGION AND THE POLITICS OF CHINESE MODERNITY, (Harvard East Asian Monographs, Nov. 2009). The abstract states:

We live in a world shaped by secularism—the separation of numinous power from political authority and religion from the political, social, and economic realms of public life. Not only has progress toward modernity often been equated with secularization, but when religion is admitted into modernity, it has been distinguished from superstition. That such ideas are continually contested does not undercut their extraordinary influence.

These divisions underpin this investigation of the role of religion in the construction of modernity and political power during the Nanjing Decade (1927–1937) of Nationalist rule in China. This book explores the modern recategorization of religious practices and people and examines how state power affected the religious lives and physical order of local communities. It also looks at how politicians conceived of their own ritual role in an era when authority was meant to derive from popular sovereignty. The claims of secular nationalism and mobilizational politics prompted the Nationalists to conceive of the world of religious association as a dangerous realm of “superstition” that would destroy the nation. This is the first “superstitious regime” of the book’s title. It also convinced them that national feeling and faith in the party-state would replace those ties—the second “superstitious regime.”

13. Benjamin J. Kaplan, DIVIDED BY FAITH: RELIGIOUS CONFLICT AND THE PRACTICE OF TOLERATION IN EARLY MODERN EUROPE, (Belknap Press, Oct. 2009). The abstract states:

As religious violence flares around the world, we are confronted with an acute dilemma: Can people coexist in peace when their basic beliefs are irreconcilable? Benjamin Kaplan responds by taking us back to early modern Europe, when the issue of religious toleration was no less pressing than it is today.

Divided by Faith begins in the wake of the Protestant Reformation, when the unity of western Christendom was shattered, and takes us on a panoramic tour of Europe's religious landscape--and its deep fault lines--over the next three centuries. Kaplan's grand canvas reveals the patterns of conflict and toleration among Christians, Jews, and Muslims across the continent, from the British Isles to Poland. It lays bare the complex realities of day-to-day interactions and calls into question the received wisdom that toleration underwent an evolutionary rise as Europe grew more "enlightened." We are given vivid examples of the improvised arrangements that made peaceful coexistence possible, and shown how common folk contributed to toleration as significantly as did intellectuals and rulers. Bloodshed was prevented not by the high ideals of tolerance and individual rights upheld today, but by the pragmatism, charity, and social ties that continued to bind people divided by faith.

Divided by Faith is both history from the bottom up and a much-needed challenge to our belief in the triumph of reason over faith. This compelling story reveals that toleration has taken many guises in the past and suggests that it may well do the same in the future.

14. Ali A. Allawi (Senior Visiting Fellow, Princeton University), THE CRISIS OF ISLAMIC CIVILIZATION, (Yale University Press, March 2009). The abstract states:

Islam as a religion is central to the lives of over a billion people, but its outer expression as a distinctive civilization has been undergoing a monumental crisis. Buffeted by powerful adverse currents, Islamic civilization today is a shadow of its former self. The most disturbing and possibly fatal of these currents—the imperial expansion of the West into Muslim lands and the blast of modernity that accompanied it—are now compounded by a third giant wave, globalization.

These forces have increasingly tested Islam and Islamic civilization for validity, adaptability, and the ability to hold on to the loyalty of Muslims, says Ali A. Allawi in his provocative new book. While the faith has proved resilient in the face of these challenges, other aspects of Islamic civilization have atrophied or died, Allawi contends, and Islamic civilization is now undergoing its last crisis.

The book explores how Islamic civilization began to unravel under colonial rule, as its institutions, laws, and economies were often replaced by inadequate modern equivalents. Allawi also examines the backlash expressed through the increasing religiosity of Muslim societies and the spectacular rise of political Islam and its terrorist offshoots. Assessing the status of each of the building blocks of Islamic civilization, the author concludes that Islamic civilization cannot survive without the vital spirituality that underpinned it in the past. He identifies a key set of principles for moving forward, principles that will surprise some and anger others, yet clearly must be considered.

15. THE RELIGIOUS IN RESPONSES TO MASS ATROCITY: INTERDISCIPLINARY PERSPECTIVES, (Thomas Brudholm & Thomas Cushman eds.,Cambridge University Press, Feb. 2009). The abstract states:

A peculiar and fascinating aspect of many responses to mass atrocities is the creative and eclectic use of religious language and frameworks. Some crimes are so extreme that they “cry out to heaven,” drawing people to employ religious vocabulary to make meaning of and to judge what happened, to deal with questions of guilt and responsibility, and to re-establish hope and trust in their lives. Moreover, in recent years, religious actors have become increasingly influential in worldwide contexts of conflict-resolution and transitional justice. This collection offers a critical assessment of the possibilities and problems pertaining to attempts to bring religious – or semi-religious – allegiances and perspectives to bear in responses to the mass atrocities of our time: When and how can religious language or religious beliefs and practices be either necessary or helpful? And what are the problems and reasons for caution or critique? In this book, a group of distinguished scholars explore these questions and offer a range of original explanatory and normative perspectives.

JFB

Seventh Circuit Upholds Interview Limits for Federal Death Row Inmates

Via How Appealing:

This week the Seventh Circuit issued an en banc opinion upholding the federal policy prohibiting federal death row inmates from giving face-to-face interviews with the media and from talking with the media about other inmates.

JFB

New Biography of I.F. Stone

The Washington Post and Christian Science Monitor feature reviews of D.D. Guttenplan's book, "American Radical: The Life and Times of I.F. Stone," a biography of the man who paved the way for today's political bloggers. For more information on Stone, see  Myra MacPherson's “All Governments Lie!: The Life and Times of a Rebel Journalist”  and the 2006 Stone anthology, “The Best of I.F. Stone,”

JFB

 

Online Symposium Examines Justice Souter's First Amendment Decisions

Justice Souter's First Amendment legacy is the subject of an online symposium on the First Amendment Center website.

JFB

New Documentary Explores the Boundaries of Free Speech

A new documentary, "Shouting Fire: Stories From the Edge of Free Speech",  examines First Amendment controversies in a post September 11 environment. The film, which will air on HBO on June 29 at 9 p.m., is the work of filmmaker Liz Garbus, whose father, attorney Martin Garbus, has taken on many controversial free speech cases, including the defense of comedian Lenny Bruce when he faced obscenity charges and the representation of Nazi Party members seeking to march in Skokie, Illinois, a site chosen because a number of Holocaust survivors resided there. Among the cases chronicled in the film is Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), in which Supreme Court nominee Judge Sonia Sotomayor filed a dissenting opinion. Judge Sotomayor took issue with the majority’s conclusion that the NYPD had properly disciplined a police officer who had anonymously disseminated racist leaflets while off duty. The officer was part of the department’s Management Systems Information Division, where he worked on tasks that did not involve law enforcement contact.  Applying the Pickering balancing test to assess the government’s authority to discipline an employee for private speech, Judge Sotomayor emphasized that the officer had no supervisory authority or opportunity to interact with the public in the computer unit, and argued that the material would not have created the possibility of attribution to the department but for the commencement of disciplinary proceedings against the officer.

JFB

Burqa Draws Contrasting Responses from Obama and Sarkozy

Today's Christian Scientist Monitor examines the differing perspectives of Presidents Obama and Sarkozy on the nature of appropriate governmental responses to the wearing of the burqa, a contrast that manifests American constitutional commitments to freedom of religious expression.

JFB