First Amendment Law Prof Blog

NH Law Authorizes Parental Override of “Objectionable” Curriculum Material

HB 542, enacted after an override of the governor’s veto, states:

Require school districts to adopt a policy allowing an exception to specific course material based on a parent’s or legal guardian’s determination that the material is objectionable. Such policy shall include a provision requiring the parent or legal guardian to notify the school principal or designee in writing of the specific material to which they object and a provision requiring an alternative agreed upon by the school district and the parent, at the parent’s expense, sufficient to enable the child to meet state requirements for education in the particular subject area. The name of the parent or legal guardian and any specific reasons disclosed to school officials for the objection to the material shall not be public information and shall be excluded from access under RSA 91-A.

According to the Manchester Union Leader, the law was introduced in reaction to a controversy involving the use of Barbara Ehrenreich’s book, “Nickel and Dimed: On (Not) Getting By In America” at Bedford High School. The law’s approach is a contrast to what has been deemed constitutionally required in cases such as   Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008)  and Mozert v. Hawkins County Bd. of Educ. 827 F.2d 1058 (6th Cir. 1987). The New York Times Room for Debate feature offers reactions to the New Hampshire law.

JFB

U.S. Falls in Press Freedom Rankings

As noted by Slate, Reporters Without Borders annual Press Freedom Index shows the US slipping to 47^th in the world, a ranking below Lithuania, El Salvador, Botswana, and Taiwan. Police treatment of the press as they tried to cover the Occupy Wall Street protests is cited as contributing to the slip downward for the US.  The Index places  Eritrea, Turkmenistan, and North Korea at the bottom of the rankings and notes significant declines in press freedom in countries such as Malawi, Uganda, and Cote d’Ivoire.  Due to high level of violence resulting in the deaths of three journalists and bloggers, Brazil dropped 41 places to 99th overall, the largest drop among Latin American countries.

JFB

New Documents Confirm NYPD Use of Inflammatory and Inaccurate Video on Islam in the U.S.

Today’s New York Times reports on recent NYPD documents obtained by NYU Brennan Center after an extend legal battle. The documents confirm that, as part of Department anti-terrorism training, 68 lieutenants, 159 sergeants, 31 detectives and 1,231 patrol officers had been shown the film, The Third Jihad, which presents an inflammatory and distorted view of Islam and American Muslims. Funded by the Clarion Fund, the film begins with this opening sequence in the Times’ description:

Ominous music plays as images appear on the screen: Muslim terrorists shoot Christians in the head, car bombs explode, executed children lie covered by sheets and a doctored photograph shows an Islamic flag flying over the White House.

This is the true agenda of much of Islam in America,” a narrator intones. “A strategy to infiltrate and dominate America. ... This is the war you don’t know about.”

Despite acknowledging the seriously flawed character of the film and subsequently discontinuing its use, the NYPD has, according to a spokesperson contacted by the Times, no plans to offer those shown the film follow-up training to correct misunderstandings and biases it could have stoked.    

JFB

Evaluating Impact of Statutory Location Limits, NJ Supreme Court Rules Existence of Strip Clubs in Adjoining States Can Be Considered in Assessing Availability of Adequate Alternative Avenues of Communication

In Borough of Sayreville v. 35 Club, L.L.C., the owners of  the “XXXV Gentlemen’s Club,  an “all-nude gentlemen’s cabaret”  presented an as-applied challenge to  N.J.S.A. 2C:34-7(a), which prohibits the operation of a sexually-oriented business within 1,000 feet of a public park or residential zone.  The court held:

In evaluating the adequacy of alternative channels of communication when deciding an as-applied constitutional challenge to the State’s statute limiting the places where sexually-oriented businesses may operate, trial courts are not precluded from considering the existence of sites that are located outside of New Jersey but that are found within the relevant market area as defined by the parties’ experts. In the case, the approved analytical approach would allow consideration of the existence of comparable enterprises in Staten Island, New York.

Justifying this perspective, the majority wrote:

First, as a practical matter, it may be far more convenient for a patron to travel a few minutes into New York or Pennsylvania than to travel twenty minutes away to Newark or Elizabeth. Second, patrons of businesses like that of defendant’s often travel from and to states other than the ones in which they reside to access this sort of entertainment. Third, when this Court announced its rule for the evaluation of such ordinances in Saddle Brook, it intentionally adopted a regional approach to the relevant market. Fourth, refusing to permit any consideration of locations that are found in nearby states would result in unequal treatment among our municipalities themselves. Finally, the suggestion that our courts cannot consider sites beyond our borders in evaluating whether there are adequate alternate avenues of communication because the operators of these businesses have no voice in the government of municipalities in our neighboring states ignores the fact that they have no more voice in the government of other municipalities within our borders. Today the Court does no more than hold that as a part of the evaluation of the regional market, it is permissible to consider not only the “neighboring communities” that lie within our State’s borders, but to consider as relevant to the question those “neighboring communities” that are beyond those borders. The Court holds that the availability of such sites is an appropriate factor to consider as part of evaluating whether there are adequate alternative channels of communication within the relevant market area.

David Hudson of the First Amendment Center discusses the ruling’s implications.

Bills Aimed at Undermining Teaching of Evolution Filed in Four States

Religion Clause Blog notes the National Center for Science Education (NCSE) is following recently introduced bills in Oklahoma, Missouri, New Hampshire, and Indiana.  The Indiana bill would authorize school systems to “require the teaching of various theories concerning the origin of life, including creation science.”  Reviving the tactic used unsucessfully in Edwards v. Aguillard, other proposals style themselves as advancing academic freedom by “promoting critical thinking” and “prohibiting the promotion of a particular belief system.” For example, the Oklahoma bill, SB 1742, prescribes:

The State Board of Education, upon the request of a school district board of education, shall allow and assist teachers, principals, and school administrators in creating an environment within the public school system that promotes critical thinking, logical analysis, open and objective discussion of scientific theories including, but not limited to, evolution, the origin of life, global warming, and human cloning.  Assistance shall include support and guidance for teachers regarding effective ways to help students understand, analyze, critique, and objectively review scientific theories being studied, including those enumerated in this subsection.

In light of efforts like the Oklahoma bill which addresses climate change curricula, the NCSE has launched an initiative to support climate change education in primary and secondary schools. Last week on NPR’s Science Friday NCSE executive director Eugenie Scott outlined how the organization plans to support teachers and parents fighting climate change denial campaigns aimed at public school science instruction.    

JFB

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:

1. Michael Kent Curtis (Wake Forest University School of Law), The Fraying Fabric of Freedom: Crisis and Criminal Law in Struggles for Democracy and Freedom of Expression, forthcoming in Texas Tech Law Review, Volume 44, 2011. The abstract states:

The democratic ideal is one of the strongest justifications for robust protection of freedom of expression in America. In its English and early American origins, freedom of expression was anti-hierarchical. Far-flung commentary on the management of public affairs reinforces the conception of government officials as agents or trustees with a fiduciary duty to “the people.” Yet the democratic function of free speech is being eclipsed by a “market” for speech, in which wealth is increasingly concentrated in fewer hands, and speech in the most crucial political media of television and radio belongs predominantly to those who buy it. (The Internet, for now, remains an exception.)

A historical review of struggles for free expression demonstrates the original anti-hierarchical nature of freedom of expression, which technological advances initially galvanized. Earlier Supreme Court cases contain eloquent tributes to the values of free expression, the importance of diverse information from multiple perspectives, and of avenues for expression for the less wealthy. These ideals are being challenged by the modern reality of ever more concentrated economic power and Supreme Court decisions that further empower the powerful. Davis v. FEC, Citizens United v. FEC, and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett are landmarks of our new Gilded Age Court.

In short, great combinations of power (including private combinations) can threaten practical democracy and freedom of expression. All levels of government have abridged civil liberties, but the view that government power is oppressive and private or corporate power is benign has served to undermine freedom of expression for the non-wealthy. The anti-hierarchical purpose historically served by freedom of expression is fraying under a sustained and multi-pronged assault.

2. Aziz Z. Huq (University of Chicago Law School), Preserving Political Speech from Ourselves and Others, Forthcoming in Columbia Law Review Sidebar. The abstract states:

This Essay is a case study of how and why strict scrutiny varies between cases decided within a particular doctrinal category (political speech) by a given court (the Roberts Court). Two lines of Roberts Court jurisprudence implicate political speech: federal campaign finance cases and a challenge to the federal statute criminalizing “material support” to designated foreign terrorist organizations. My aim here is to examine the common doctrinal matrix of First Amendment strict scrutiny used in those cases to explore how divergent results emerge from a unified analytic framework. A secondary goal is to illustrate how post-9/11 national security concerns find expression inside familiar and seemingly durable doctrinal frameworks.

3. Aziz Z. Huq (University of Chicago Law School), Private Religious Discrimination, National Security, and the First Amendment. Harvard Law and Policy Review, Vol. 5, p. 347, 2011. The abstract states:

This essay identifies a negative feedback loop between private discrimination directed at American Muslims and security against terrorism. The first part of the loop is familiar: Concerns about terrorism animate greater antipathy toward outsiders. The second part is novel: social discrimination corrodes trust in the police and makes cooperation with police less likely. Insecurity thus creates discrimination, which deepens insecurity. The Religion Clauses of the First Amendment, now greatly weakened, still provide one tool to break this negative feedback loop.

4. Adam D. Moore (University of Washington – Department of Philosophy), Privacy, Speech, and the Law. The abstract states:

Part I will provide an overview of the moral foundations of privacy — while brief, the goal is to establish the claim that privacy more than a mere interest. Part II will consider several arguments — or strands of argument — purporting to justify free speech rights. While these arguments, taken together, establish that free speech is important, they do not support the view that speech should nearly always trump privacy. In Part III I will suggest a way to balance free speech and privacy claims in the law.

5. Puja Kapai (University of Hong Kong – Centre for Comparative and Public Law), Freedom of Conscience and Religious Belief, published in The Law of the Hong Kong Constitution, Johannes M. M. Chan, Lim Chin Leng, eds., Sweet & Maxwell, 2011. The abstract states:

Although the freedom of religion is a constitutionally guaranteed right in numerous jurisdictions around the world, ambiguities surrounding the content of the right continue to baffle courts as well as religious subjects seeking protection pursuant to the right the world over. The conceptual underpinnings of the right continue to prove elusive. This paper traces the journey of Hong Kong courts in the elaboration of various aspects of this right through an examination of local jurisprudence to determine the scope and limits of the protections as enshrined in the Basic Law of the Hong Kong Special Administrative Region (HKSAR). An examination of the jurisprudence indicates the need for a sophisticated approach towards the construction of religion. Given the limitations inherent in any attempt to comprehensively categorize social and psychological phenomena, particularly in light of the importance of the liberty of conscience, the task becomes increasingly challenging given the amorphous nature of the right and the likely ramifications if it is over-extended.

In most cases the court is ready to find violation if there is discrimination. However, the courts are yet to develop an analytical framework within which competing interests between religious freedom and the interests of the public are properly and rigorously assessed. There is also a need for greater sensitivity in the consideration of claims based on religious freedom. In many cases concerning substantive rights of manifestation, for example, the courts have found the defense based on religion as lacking in genuineness to warrant serious treatment. On the other hand, the court’s unfamiliarity with some religious ideas may also have contributed to its reluctance in pronouncing definitively on issues of doctrinal religion. The difficulty however, lies in identifying the extent to which the framework of belief motivates a particular way of life or percolates into various spheres of existence and activity to have a deep impact on matters of conscience. The bifurcation of religious practice into beliefs and actions motivated by such beliefs may be artificial and modeled on established religions and their common expression. Care must be taken to avoid holding beliefs to standards that are common to the established religions and their traditional spheres of activity. If we are to be flexible, there must be further probing of the criteria which elevate mere thoughts or beliefs to a realm beyond legitimate state intervention. A more nuanced approach would serve to increase the confidence of people in the robustness of the courts and their protection of fundamental rights.

6. Douaa Hussein (American University in Cairo – Department of Law), Legal Reform as a Way to Women’s Rights: The Case of Personal Status Law in Yemen. OIDA International Journal of Sustainable Development, Vol. 3, No. 1, pp. 21-46, 2012. The abstract states:

In this paper, the researcher argues that the legal reform of the Personal Status Law is not sufficient to ensure gender equality within the Yemeni context where the religiousand cultural value systems of rights remain untouched. Narrow and conservative interpretation of sharia forms the main conceptualization of the rights in the current law. The tribal value system and conceptualization of rights and its practices on the ground has affected the equitable marital rights. The researcher further claims that the current law which is premised mainly on sharia, consolidates the concept of 'Wrong Rights', obstructing women’s efforts to ensure equality in the Personal Status Law.

In this respect, there are several conclusions that can be drawn. First, there are three drivers for the conceptualization of rights that affect the formulation of Personal Status Law namely, guardianship (Sharia), sisterhood (constitution), and the weak and dependent (tribal customary norms). The three of them articulate and reflect the narrow interpretation of Sharia and patriarchal policies advanced by the state and the community. Thus the current Personal Status Law consolidates a number of wrong rights which paradoxically, constitute the basic human rights such as the denial of the freedom of choice and full consent, the freedom of movement and the right to terminate the marital relationship. In addition, the right to inheritance is the wrong right for women in practice.

Thus, the realization of gender justice in the area of Personal Status Law and the effective application of the law need a multi-dimensional approach namely an enlightened interpretation of Sharia, adopting the principle of reciprocity and the consequences-based approach. Societal reform suggests a four-pronged approach. One deals with the gender sensitive institutional reform while the second addresses education and the third adopts an Islamic feminist approach. The fourth is geared towards demolishing the dual legal systems.

7. Eric Easton (University of Baltimore School of Law), Ten Years After: Bartnicki v. Vopper as a Laboratory for First Amendment Advocacy and Analysis. University of Louisville Law Review, Vol. 50, No. 2, pp. 287-335, 2011. The abstract states:

How many ways can one approach a First Amendment analysis? What influences a lawyer or a judge to select one analytical approach over another? And what is the long-term effect of a court's choice of one over another? In Bartnicki v. Vopper, a 2001 case in which the U.S. Supreme Court considered federal and state statutes prohibiting the disclosure of illegally intercepted telephone conversations, we are privileged to have a small laboratory through which to study the first two questions. And, from the vantage point of ten years, we ought to be able to make some informed predictions as to the third.

In Bartnicki, the US Supreme' Court held that the First Amendment gave the news media a right to publish truthful information on matters of public concern, even if unlawfully acquired, provided the publisher did not participate in the unlawful conduct. How the Court ultimately reached that conclusion is one principal focus of this Article, precisely because the story of this litigation reveals so much about alternative First Amendment analyses and the process of influencing the courts' choices among them.

Part II of this Article recounts the underlying facts of the Bartnicki case and its procedural posture up to certiorari. Part III examines the two contending precedents initially asserted by the parties and accepted as the basis for analysis in the district court. Part IV looks at the shift to doctrinal analysis in the court of appeals, prompted at least in part by the federal government's entry into the case. Part V studies the proceedings before the U.S. Supreme Court, with emphasis on the participation and analytical approach of prominent media lawyers. Part VI dissects the opinion and the shift to an ad hoc balancing approach, particularly in light of the press arguments, while Part VII ventures some predictions about the significance of the decision with the WikiLeaks.com controversy as a backdrop.

JFB

In 6-2 Opinion in Golan, Supreme Court Rejects First Amendment Challenge to URAA Copyright Restoration

Today the Supreme Court announced its decision in Golan v. Holder. Justice Ginsburg wrote for the majority, summarizing the petitioners’ claims and the essence of the majority’s ruling as follows:

Petitioners include orchestra conductors, musicians, pub¬lishers, and others who formerly enjoyed free access to works §514 [of the Uruguay Round Agree¬ments Act], removed from the public domain. They main¬tain that the Constitution’s Copyright and Patent Clause, Art. I, §8, cl. 8, and First Amendment both decree the invalidity of §514. Under those prescriptions of our high¬est law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there.

In accord with the judgment of the Tenth Circuit, we conclude that §514 does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.

Justice Ginsburg drew heavily on Eldred v. Ashcroft in considering the interplay between congressional authority pursuant to the Copyright Clause and the protections of the First Amendment. 

In dissent, Justice Breyer, joined by Justice Alito, was more receptive to the petitioners’ First Amendment concerns, writing: 

Taken together, these speech-related harms (e.g., restricting use of previously available material; reversing payment expectations; rewarding rent-seekers at the public’s expense) at least show the presence of a First Amendment interest. And that is enough. For present purposes, I need not decide whether the harms to that interest show a violation of the First Amendment. I need only point to the importance of interpreting the Constitution as a single document—a document that we should not read as setting the Copyright Clause and the First Amendment at cross-purposes. Nor need I advocate the application here of strict or specially heightened review. I need only find that the First Amendment interest is important enough to require courts to scrutinize with some care the reasons claimed to justify the Act in order to determine whether they constitute reasonable copyright related justifications for the serious harms, including speech-related harms, which the Act seems likely to impose.

Patently-O provides a quick recap of the elements of the ruling.

Protests Spur Congressional Retreat from Support of Anti-Piracy Bills

As websites such as Wired and Wikipedia went dark today to express their opposition to the Stop Online Piracy Act and the PROTECT IP Act, at least two Senators announced they would no longer support the legislation as introduced and urged fellow lawmakers to undertake further study of the problem of web piracy in the hope of crafting better bills.  In the House, Reps. Lee Terry (R-Neb.) and Ben Quayle (R-Ariz.) also announced that they were no longer willing to be SOPA co-sponsors.  Opponents of SOPA and PIPA assert that enactment of these provisions would stifle Internet innovation and squelch free speech without effectively remedying concerns about the misuse of content.  In submissions to Congress, Professors Laurence Tribe and Marvin Ammori have argued that SOPA would violate the First Amendment.

JFB

Cert. Denied on Cases Seeking Review of Schools’ Authority to Discipline Students for On-line Speech

In its Order List issued today, the Supreme Court denied petitions for certiorari seeking review of the Fourth Circuit’s upholding such authority in Kowalski v. Berkeley County Schools and the Third Circuit's rulings in Blue Mountain School District v. Snyder and Hermitage School District v. Layshock, which took a skeptical view of such claims of authority on the facts presented.  

JFB

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:

1. Randall P. Bezanson (University of Iowa College of Law), Whither Freedom of the Press?, forthcoming in the Iowa Law Review. The abstract states:

The essay is a critique of the treatment of the freedom of the press clause in the Supreme Court's opinion in Citizens United. It is a critique, also, of the decision's originalist underpinnings as recently elaborated by Professor Eugene Volokh.

2. Nick Gamse (Northwestern University School of Law), The Indecency of Indecency: How Technology Affects the Constitutionality of Content-Based Broadcast Regulation, published in Fordham Intellectual Property, Media & Entertainment Law Journal (Jan. 10, 2012). The abstract states:

In the thirty-plus years since FCC v. Pacifica Foundation revolutionized content-based broadcast regulation, much has changed. Although broadcast television was recognized as a dangerously pervasive medium in 1978, it is no longer the dominant force that it once was, with the vast majority of Americans now paying for subscription television services like cable or satellite. And while the Pacifica Court strove to support parents in their struggle to protect their children from pervasive inappropriate content by upholding the FCC’s content regulation, technological developments like the V-Chip, cable boxes, DVRs, and satellite boxes have afforded modern parents various self-help alternatives.

Many critics have argued that changes like these in the convergent media environment have obviated any need for the Supreme Court to evaluate the constitutionality of broadcast speech regulations with special deference, or so-called “intermediate scrutiny.” They contend that broadcast restrictions should instead be evaluated like all other content-based media regulation, with “strict scrutiny.” Some have suggested that no content-based television regulation could pass constitutional muster under a strict scrutiny test because new self-help media filters like the V-Chip necessarily present a less restrictive means to control indecent or profane speech. These arguments have found welcome ears in some courts, most notably the Second Circuit. Upon hearing Fox v. FCC on remand from the Supreme Court, the court pulled no punches in forcefully arguing that changes in the technology landscape should unravel any special First Amendment status for broadcast speech restrictions.

Unfortunately, both law review articles and judicial opinions that have lobbied against content-based broadcasting regulation have generally neglected to offer specific empirical evidence to support their positions. These critics tend to focus on how new technology might be used in theory rather than how it is actually used in practice. This approach is problematic. If the Supreme Court is to uproot three decades of its broadcast speech precedent (as it will have the opportunity to do when it rehears Fox v. FCC this term), it should do so on the basis of specific empirical data that directly address the status of the bedrock governmental interest from Pacifica: parental control over their children’s exposure to pervasive content. Thus, it is critical to understand precisely how the changes in media consumption and technology have affected these parents and their perceptions of control. It is equally important to empirically distinguish between the efficiencies of the alternatives that the Court would consider under a strict scrutiny analysis: one regime based on media filters and one based on regulation. Without such empirical considerations, it is impossible to accurately determine which alternative is the less restrictive method of protecting children (or whether the Federal Communications Commission (FCC) has less restrictive ways of accomplishing its mandate).

This study is the first to use actual survey data to examine how technology has changed the perspectives of parents. With generous funding from the Media Management Center at Northwestern University, I conducted an original survey of 575 American parents to better understand their perspectives on the intersection between television regulation and media filter technology. Parental views are fundamental to the indecency inquiry because they are at the core of the First Amendment carve-out for the content-based regulation of television broadcasting. The survey results offer clear empirical support for the argument that the FCC’s content-based regulation of indecent and profane content should be deemed unconstitutional.

Broadcast television is no longer a uniquely pervasive threat to parental control over what their children watch on television. The survey data reveal that there is no statistically significant difference in perceptions of control between parents who consume only broadcast television in their homes and those who receive their television through some other means of distribution (such as cable or satellite). Moreover, there is not a statistically significant difference between those two groups of parents in their perceptions of how much exposure their children have to inappropriate content on television. In other words, the data show that parents do not perceive an underlying practical need for regulations of broadcast speech to be measured with any less scrutiny than regulations on other media. It is not a uniquely pervasive medium.

Second, parents overwhelmingly report that media filter technology like the V-chip is at least an equally effective substitute for government regulation of inappropriate content. This is a significant finding that could justify the eradication of the FCC’s authority to regulate television content at all. Although most parents would like to rely on a multifaceted defense comprised of both technology and regulation, that position stands at odds with the Supreme Court’s strict scrutiny jurisprudence. If media filters are just as effective as regulation at achieving the government’s interest of helping parents control what their children see, then the regulations should be deemed unconstitutional abridgements of the First Amendment.

3. Jessie Hill (Case Western Reserve University School of Law), (Dis)Owning Religious Speech. The abstract states:

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality.

The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as its own speech a facially religious monument of the Ten Commandments. The second, Salazar v. Buono, which dealt with an establishment clause challenge to a Latin cross in the middle of the Mojave Desert National Preserve, was resolved primarily on the basis of the literal ownership of the religious speech at issue in the case. What both cases have in common is a claim, on one side, that the government has improperly and unconstitutionally excluded one religious group, both literally and metaphorically, and a response, on the other side, that is formulated in the language of ownership, property, and sovereignty.

This Article explores the possible causes and implications of the Court’s recent embrace of property concepts and property rhetoric. It argues that the Court has turned to the language and even the law of property partly as a way of avoiding knotty First Amendment questions. But the rhetoric of property functions on another level, as well. Property rhetoric legitimates and naturalizes the acts of exclusion and subordination inherent in the Court’s decisions. It also gives the appearance of a concrete stake held by some in the religious majority - and a material loss that is incurred - when dominant religious symbols are removed. Ultimately, this article concludes that, for all their flaws, the endorsement test and public forum doctrine, which the Court appears to have temporarily marginalized, are superior approaches to the problem of public displays of religious symbolism.

4. David A. Skeel, Jr. (University of Pennsylvania Law School; European Corporate Governance Institute), Hauerwasian Christian Legal Theory, forthcoming in Law & Contemporary Problems. The abstract states:

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like.

After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy.

5. Sahar F. Aziz (Texas Wesleyan University School of Law), From the Oppressed to the Terrorist: American Muslim Women Caught in the Crosshairs of Intersectionality, published in Hastings Race & Poverty Law Journal (2012). The abstract states:

In the post-9/11 era, Muslim women donning a headscarf in America find themselves trapped at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women’s rights organizations, or civil liberties advocates.

The paper argues that the Muslim woman is a casualty of the post-9/11 “war on terror” in ways different from Muslim men. Not only are her religious freedoms under attack in ways different from men because the headscarf is unique to women, but she is objectified in ideological and corporal domestic conflicts that profoundly affect her life. Perhaps worse than the gender rights debates of the 1990s when Muslim women were talked about rather than talked to, their experiences post-9/11 are completely neglected by Western feminists or used by Muslim male spokespersons to implement a civil rights agenda tailored to the Muslim male experience. Consequently, Muslim women are trapped in the crosshairs of national security conflicts that profoundly affect their lives but not yet adequately addressed by advocacy groups focused solely on defending Muslims, women’s rights, or civil liberties post-9/11.

Section I of this paper prefaces the paper’s thesis by highlighting Islam’s transition from obscurity to notoriety in the American public’s psyche as a result of the September 11th attacks. Section II highlights how the recasting of Islam from a bona fide religion to a political ideology is a necessary precursor for accepting otherwise discriminatory acts as legitimate national security practices. The reclassification is most glaring in the nationwide campaigns opposing mosque constructions because of the public’s fixation on mosques as hotbeds of extremism. Likewise, as Islam becomes defined as an expression of politics instead of religion, demands for religious accommodation by Muslims are deemed stealth Islamic imperialism not protected by law. Against this backdrop, Section III demonstrates how the meaning of the Muslim headscarf has transformed from a symbol of female subjugation to a symbol of terror(ism). Through an analysis of employment discrimination, racial violence, political marginalization, and exclusion from the courthouse, this article demonstrates how the transition in meaning of the headscarf has resulted in palpable and widespread discrimination against Muslim women donning the headscarf. Yet, discourse on civil liberties in the national security context are woefully lacking due to the glaring absence of the Muslim woman’s voice. Section IV calls for a prescriptive rethinking of strategies aimed at redressing anti-Muslim bias and civil liberties infringements that take into account the gender component of post-9/11 discrimination.

By developing a more accurate and in-depth analysis of their complicated circumstances post-9/11, this article aims to include “headscarved Muslim women” in the relevant debates among legal theorists.

6. Candan Turkkan, Secularisation of the Politics of Law: On Roots of Liberal Democracy, published in CEU Political Science Journal (2011). The abstract states:

This paper offers a theoretical analysis of the interplays of secularization in the sphere of law and the sources of legality in liberal democracies. First section focuses on the sphere of law, and argues that not only its form and content, but also its enforcement has become secular. These surely happen simultaneously with secularization in a different yet related aspect of governance – namely, the practices of law-making. The following section argues that secularization in this particular area of who makes the law has taken place in conjunction with the rise of liberal, parliamentary, constitutional democracy that attributes the constituent power of the politico-legal system to the people. A direct effect of this is observable in the ways people identify (identity) with the politico-legal system and how the system represents (representation) the people have changed; this is extensively discussed in the last section.

JFB

Summary Affirmance in Bluman v. FEC Lets Stand Ban on Campaign Contributions by Foreign Nationals

On SCOTUSblog, Lyle Denniston comments on the Court’s rejection of the opportunity to extend Citizens United.    Last week the NY Times Room for Debate feature presented varying assessments of the merits of the Bluman's challenge. Participants included from UC Irvine election law expert  Richard L. Hasen,  Ben Freeman from the Project on Government Oversight,  Yaakov Roth, the lawyer for petitioner Bluman, Viet D. Dinh of Georgetown Law School , Ian Millhiser from the Center for American Progress, and  Toni M. Massaro of University of Arizona Law School .    

JFB 

Considering the Claim that President Obama Has Waged "War on Religion”

On NPR, Barbara Bradley Hagerty examines why many Republican presidential candidates as well a number of Catholic bishops and conservative advocacy groups are advancing the claim that the Obama administration has waged a “war on religion.”  This hyperbolic rhetorical tone may reflect, in significant part, anxiety about the implications of the increasing legal recognition of LGBT rights, through legislative initiatives and judicial rulings, for the religious entities that assert a faith-based imperative to exclude gay persons from marriage and parenthood.   

JFB   

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:

1. John D. Inazu (Washington University in Saint Louis - School of Law), Justice Ginsburg and Religious Liberty, forthcoming in Hastings Law Journal. The abstract states:

Justice Ginsburg has left an important mark on many areas of the Supreme Court’s jurisprudence, but she has written relatively little in the area of religion. This relatively small footprint increased significantly in the opinion that she wrote in the Court's 2010 decision in Christian Legal Society v. Martinez. In particular, Martinez's dismissal of the religious association claim at the center of the case dealt a severe blow to religious liberty advocates who have struggled to find alternate means of protecting religious expression in the twenty years since the Court’s decision in Employment Division v. Smith (which relegated to rational basis review free exercise challenges to generally applicable, neutral laws).

This essay examines three strands of Justice Ginsburg’s jurisprudence leading up to the opinion that she authored in Martinez: religion, government funding of expression, and equality. It first traces Justice Ginsburg’s religious liberty views through four facets of her legal career: her role as an advocate, her opinions on the D.C. Circuit, her Supreme Court nomination testimony, and her opinions and votes on the Supreme Court. It turns next to her views about government funding of expression, relying principally upon her dissent in DKT Memorial Fund v. AID. It then examines Justice Ginsburg’s longstanding commitment to principles of liberal equality. Finally, it considers the interplay of these three strands in Martinez, and offers three observations. First, because Martinez pitted religious liberty against liberal equality, it forced Justice Ginsburg to make a choice that prioritized one over the other and may have caused her to overlook some of the religious dimensions of the case. Second, Justice Ginsburg’s previous views about government funding of speech should have caused her greater concern over the implications of unconstitutional conditions in this case. Third, Martinez ultimately failed to address the values clash directly, relying instead on doctrinal intricacies that detracted from the core issues raised in this case.

2. Andrew Koppelman (Northwestern University School of Law), Justice Stevens, Religious Enthusiast, forthcoming in Northwestern University Law Review. The abstract states:

It is sometimes alleged that Justice John Paul Stevens is hostile to religion. In fact, however, Justice Stevens espouses a position with religious roots and enthusiastically embraces a distinct conception of religion. This casts doubt on the claim, made in different ways by Eduardo Peñalver and Christopher Eisgruber, that the fundamental concern of his religion clause jurisprudence is equality. At least as important to him is protecting religion from corruption by the state.

Stevens’s position, in order to be consistent, ought to acknowledge, more forthrightly than he does, that it treats religion as a distinctive human good. Any notion of corruption implies a norm or ideal state from which the corruption is a falling off. An invocation of the corruption rationale presupposes that religion is a good thing deserving of protection. To call this view hostile to religion is confused to the point of perversity.

3. Emir Crowne (University of Windsor - Faculty of Law) and Fiorina Santelli, Veiled Prejudice - Caught in the Cross-Examination: The Niqab and Witness Testimony, forthcoming in Constitutional Forum, Centre for Constitutional Studies. The abstract states:

In R. v. N.S., 2010 ONCA 670, a unanimous Court of Appeal for Ontario ruled that preliminary inquiry judges can consider Charter values in evaluating matters relating to the preliminary inquiry and established a framework for establishing and reconciling competing rights claims. The matter is now under appeal to the Supreme Court of Canada, with oral arguments heard on December 8th, 2011.

4.Benoit Frydman (Perelman Centre for Legal Philosophy) and Isabelle Rorive, Fighting Nazi and Anti-Semitic Material on the Internet: The Yahoo! Case and It's Global Implications. The abstract states:

The paper provides an analysis of the French Yahoo! case, a landmark case in global internet law, which led to the removal of Nazi paraphernalia from Yahoo! auction website and was the starting point of a fierce and spectacular transatlantic judicial battle about freedom of speech and content monitoring on the Internet.

5. Mark A. Lemley (Stanford Law School) , David S. Levine (Elon University School of Law) and David G. Post (Temple University School of Law), Don't Break the Internet , Stanford Law Review Online, Vol. 64, p. 34, December 2011. The abstract states:

Two bills now pending in Congress – the “Protect IP Act” (“Protect IP”) in the Senate, the “Stop Online Piracy Act” (“SOPA”) in the House – represent the latest legislative attempts to address online copyright and trademark infringement. Although the bills differ in certain respects, they share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet's addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.

6. Adam D. Moore (University of Washington - Department of Philosophy), Ethical Challenges for Technology Managers: Privacy, Consent, and Security . The abstract states:

In this essay, several of the most prominent ethical challenges that confront technology managers will be presented. After an overview of privacy theory a case based analysis will be offered. Issues to be discussed include: workplace monitoring; video voyeurism; free speech; and security.

7. Matthew J. Wilson (University of Wyoming - College of Law), E-Elections: Law in Asia & Online Political Activities, Wyoming Law Review, Vol. 12, No. 1, p. 237, 2012. The abstract states:

The Internet has had a profound influence on our global society. Widespread and affordable access to the Internet has facilitated a proliferation of “netizens” around the world. The Internet is accessible through a broad range of conduits including desktop computers, laptops, mobile phones, smart phones, televisions, and even game consoles. Easy access to the Internet and World Wide Web has generated a wide-sweeping societal transformation across the globe. In fact, the Internet has altered the way people exchange information, communicate, socially network, transact business, and seek entertainment. Electronic mail, texting, instant messaging, and online chatting have become staples in the realm of societal interaction. In addition, technological innovation increasingly focuses on new and useful applications of the Internet and World Wide Web.

The impact of online interaction, however, extends beyond social functions. Increased reliance upon the Internet has given rise to a plethora of legal and ethical issues in both domestic and international contexts as well. Legal issues in the online world involve commercial relationships, personal rights, criminal acts, and nearly every area of the law. This essay focuses on one particular important legal issue involving the Internet — namely, the clash between online electioneering restrictions and freedom of expression in select countries in Asia, particularly in China, Taiwan, Singapore, South Korea, and Japan. It also suggests that the democratic countries of South Korea and Japan need to relax their strict restrictions regarding online campaigning activities and fully recognize the importance of freedom of expression.

This essay is an edited version of a speech given by Professor Matthew J. Wilson at the Second East Asian Law and Society Conference, Dialects and Dialectics: East Asian Dialogues in Law and Society, at Yonsei University in Seoul, South Korea on October 1, 2011.

The Roberts Court's Selective Protection of Speech

Today’s New York Times spotlights a recent analysis of the Roberts Court’s record in free speech cases. In The Roberts Court’s Free Speech Double Standard, Monica Youn, Brennan Center Constitutional Fellow at NYU School of Law, presents the following assessment:

In its first five years, from 2006 until 2011, the Roberts Court granted certiorari in 29* cases in which a free speech violation was claimed (including the speech, press, assembly, and association guarantees). In these cases, the Court held that that a free speech violation existed in 10 of the cases, and that no free speech violation had been demonstrated in 19 of these cases. Thus, simply looking at the numbers, the Roberts Court has supported a free speech claim in 34.48 percent of argued cases. By way of comparison, as Lee Epstein and Jeffrey A. Segal have shown, from 1953 to 2004, the Supreme Court supported claims of deprivation of First Amendment liberties in 53.95 percent of argued cases. Thus, at the most basic quantitative level, the Roberts Court seems to be not especially protective of free speech rights.

Disaggregated, these numbers become more dramatic. Out of the 10 cases where the Roberts Court has supported a free speech claim, six of those are cases in which the Court struck down campaign finance reform laws (counting WRTL twice, per Epstein and Segal’s protocol*). These numbers bear out Chemerinsky’s argument that “what really animates [the Roberts Court’s ] decisions is a hostility to campaign finance laws much more than a commitment to expanding speech.”

Out of the four non-campaign finance cases in which the Roberts Court has supported a free speech claim, three -- the animal cruelty videos case, the funeral picketing case, and the violent video games case -- were what I will call free speech “slam-dunks” – that is, cases that were decided by an 8-1 or 7-2 majority, and in which (contrary to the usual Supreme Court’s certiorari practices) there was no split among circuit courts, and the Court affirmed the lower court decision. These free speech slam-dunks, with their colorful facts, were among the Roberts Court’s cases that have attracted the most press attention, but they are hardly indicative of a conservative majority with an expansive view of First Amendment freedoms. The remaining case in which the Roberts Court was willing to uphold a non-campaign finance related free speech claim was Sorrell v. IMS Health Inc., a relatively low-profile commercial speech case in which a 6-3 majority of the Court struck down a state “prescription confidentiality” law, which barred sale or disclosure of doctors’ prescription practices to pharmaceutical marketers. An interesting case, and one which warrants more attention than it has received so far, but not really a banner-worthy free speech decision. At the same time, the conservative majority has shown itself willing to disregard free speech claims by, inter alia, government employee whistleblowers, humanitarian aid organizations, and, most pertinently for today’s purposes, unions. Thus, it seems that the most that can be said of the conservative majority’s free speech record is that “The Roberts court strongly protects speech that it likes, while allowing regulation of speech it disfavors,” as Adam Winkler has put it.

First Amendment Cases on Today’s Supreme Court Conference Docket

As flagged by Scotusblog, the cert petitions in the following cases present First Amendment issues:

*Kansas City Premier Apartments v. Missouri Real Estate Commission (Docket No. 11-552). The question presented in the petition asks “[w]hether a court considering a First Amendment challenge to a law that restricts protected speech may presume the law’s constitutionality and require the party whose speech is being restricted to prove that the law “clearly and undoubtedly violates the constitution.” In the case, the operator of an Internet-based service that provides listings of local rental properties questions the application of Missouri’s real estate licensing requirements to this type of business enterprise.

*Locke v. Shore (Docket No. 11-348). This challenge to Florida’s regime for the licensing of interior decorators seeking to work in a commercial setting. Lawyers from the Institute for Justice outline the basis for their First Amendment attack on the licensing law’s restriction of “occupational speech” in a recent piece in the National Law Journal.

*NATSO v. 3 Girls Enterprises (Docket No. 11-350). The questions presented in the petition are: (1) Whether a First Amendment objection to a federal district court discovery order requiring the production of private political communications and petitioning strategies by trade associations and their members falls within the Cohen collateral order or Perlman doctrines of appellate jurisdiction, or whether a timely objection to such an order may be raised on appeal only via an extraordinary petition for writ of mandamus; and (2) whether a district court order compelling trade associations and their members to disclose private political communications and petitioning strategies to their political opponents without limitation has so self-evident a chilling effect on First Amendment rights as to trigger First Amendment scrutiny without the need for any additional evidentiary showing.

Bluman v. Federal Election Commission (Docket No. 11-275), which asserts that the federal bar on campaign contributions or independent expenditures by non-citizens violates the First Amendment, will also be considered at today’s conference.

JFB

 

 

Remembering Judge Robert Carter’s First Amendment Legacy

This week Judge Robert Carter, part of the legendary team of NAACP lawyers who won Brown v. Board of Education, died at the age of 94. First Amendment Center scholar David Hudson pays tribute to Judge Carter’s work on behalf of the First Amendment, writing:

Carter noted in his book, A Matter of Law: A Memoir of Struggle in the Cause of Equal Rights, that he wrote his thesis at Columbia Law School (where he earned a master’s in law in 1941) “on the essentiality of the First Amendment for the preservation of a democratic society.”

Carter later used this thesis when developing arguments before the Supreme Court, including NAACP v. Alabama (1958), in which he successfully argued that the First Amendment protected the free-association rights of rank-and-file members of the NAACP from having their names disclosed to Alabama state officials bent on using that information for negative purposes.

NAACP v. Alabama was one of eight First Amendment cases Carter argued at the Supreme Court.

JFB

Crosses at Camp Pendleton Raise Constitutional Questions

A thirteen foot cross was erected on Veterans Day on a hill in Camp Pendleton as a memorial to Lance Cpls. Robert Zurheide and Aaron Austin and Majs. Douglas Zembiec and Ray Mendoza, four Second Battalion Marines killed in Iraq. After making a 3,00 foot climb, a group of fellow Marines, family members of the slain soldiers, and a retired Navy chaplain installed the cross. The group had not sought permission to do so. Another cross had been erected in the same location in 2003 by a group of Marines that included Zurheide, Zembiec, and Mendoza, but a brushfire destroyed it in 2007. A replacement appeared in 2008 so two crosses are now on the hillside, which cannot be seen from nearby Interstate 5. The LA Times reports that, over the last few years, the hill within the 125,000 acre facility has been used by Camp Marines as an informal memorial site, where they leave small tribute items, such as coins, medals, dog tags as well as battlefield sand, to honor comrades lost in action.

The Military Association of Atheists and Freethinkers has called for the crosses to be taken down, and the Commandant of the Marines and the Pentagon are now reviewing the situation. An editorial in the LA Times calls for the removal of the crosses and differentiates these structures from a white cross on the Camp’s northern end. The white cross is a historic marker commemorating where the first baptism in California is believed to have been performed in 1769.

In the LA Times, constitutional law professor and UC Irvine Law Dean Erwin Chemerinsky projected that a court would have to determine if a reasonable observer would perceive the crosses as endorsing Christianity or instead as simply memorializing those killed in action. Although Chemerinsky noted that, in his view, “a cross by itself on a military base” should be seen as an Establishment Clause violation whether a court would agree was far from certain. Earlier this term the Supreme Court declined to review a Tenth Circuit ruling finding that the use of large crosses as memorials for slain Utah State Troopers was an Establishment Clause violation. The case had been seen as an opportunity for the Court to revise or clarify its analysis of the use of religious symbols on government property.

JFB

More Campaign Finance Cases May Be on Supreme Court Horizon

Via law.com, the National Law Journal spotlights campaign finance cases percolating up from the lower federal courts post-Citizens United:

1. Bluman v. FEC, in which a petition for cert awaits Supreme Court review, examines whether foreign nationals can be barred from making donations to local, state and federal campaigns. An op-ed in yesterday’s NY Times urges the Court to find that such a ban violates the First Amendment;

2. U.S. v. Danielczyk, now on appeal to the Fourth Circuit, looks at the constitutionality of the federal prohibition of direct corporate contributions to candidates, which the district court judge invlaidated;

3. Wagner v. FEC, filed in federal court in D.C., tackles a Federal Election Campaign Act provision making it illegal for individuals with government contracts to contribute to a candidate, political committee or political party in connection with an election for federal office. One of the plaintiffs in the case is Texas law professor Wendy Wagner, who is represented by the ACLU and GWU law professor and eminent public interest litigator Alan Morrison.

James Bopp, the lawyer considered the principal architect of the increasingly successful campaign to dismantle federal campaign finance restrictions, is the subject of a profile in The American Prospect.

JFB

Flag Burning at Occupy Charlotte Encampment Draws Criticism from Other Protesters

According to the LA Times, four men who burned two American flags at an Occupy Charlotte encampment faced misdemeanor charges as well as harsh criticism from inside the local Occupy movement. The men were charged with “careless use of fire” because they did not use a fire pit. One of the men, Alex Tyler, apologized to other Occupiers for any trouble his actions caused and offered this explanation of the flag burning: "Those were actions taken on my own behalf. I did it to display my utter contempt for American greed, not (the military)." As reported in the Charlotte Observer, some other Occupiers called the flag burning "hideous," "shocking," and "disrespectful" and called for those responsible to be ejected from the Occupy Charlotte site.

JFB

New Biography of Roger Williams Reviewed

In the NY Times Sunday Book Review section Joyce E. Chaplin, James Duncan Phillips professor of history at Harvard, reviews Roger Williams and the Creation of the Amercian Soul - Church, State, and the Birth of Liberty by John M. Barry. Williams, who sought a “hedge or wall of Separation between the Garden of the Church and the Wildernes of the world,” played an enormously important role in defending liberty of conscience. Persecuted on both sides of the Atlantic, Williams bravely fought against governmental assaults on freedom of belief. In her review, Professor Chaplin notes that this new biography neglects one especially important element of Williams’ work, his insistence that rights and respect should not be reserved only for European settlers but were also entitlements of the Indians, the colonies’ original inhabitants.

JFB