First Amendment Law Prof Blog

LAPD Drops Muslim Mapping Plan

After a barrage of criticism that the initiative amounted to religious profiling (see prior posting), the LA Police Department has abandoned its plan to map Muslim communities within the city. As coverage of the controversy in the Christian Science Monitor notes, LA Police Chief William Bratton conceded that the effort to use demographic data to identify which local Muslim communities might be vulnerable to the appeal of violent extremist ideology was "ill conceived".  In consultation with local Islamic community leaders, the department will now work to develop better strategies to gather information with the cooperation of members of the relevant communities, efforts reminiscent of the successful work of the Coalition of Islamic Organizations of Greater Chicago.

JFB

An Entrepreneurial Faith

Yesterday's New York Times featured the latest installment of their series on how governmental policies increasingly provide controversial benefits to American religious groups. The article, entitled "In God's Name - Megachurches Add Local Economy to Their Mission", focuses on the entry of megachurches into a variety of economic endeavors, such as the operation of shopping centers, residential developments, sports arenas, and investment partnerships. 

This phenomenon gives the churches involved a high degree of visibility in the community and makes them influential both economically and politically. In one North Carolina scenario, a megachurch serves as a prominent commercial landlord and sponsors a free all-day Fourth of July event for the town in an intriguing symbolic linkage of religious and civic life. The religious groups examined in the article connect their economic ventures to community service through economic development that meets local needs and to evangelization opportunities.

The operation of mixed purpose facilities, such as shopping centers that house worship and religious education facilties as well as other enterprises which may employ church-affiliated personnel, raises sometimes difficult issues as to how to allocate the portion of the premises that should be considered exempt from property taxes and how to isolate the activities represent taxable commercial pursuits.

* * * 

Looking at life in India, scholars have recently examined the relationship between membership in specific faith groups and entrepreneurial initiatives. Their findings are available on SSRN.

JFB

          

Update on Developments in Westboro Baptist Case

Last week the Westboro Baptist Church filed post-trial motions in federal district court asking the trial judge to overrule the  $10.9 million dollar verdict. The Religion Clause Blog provided links to Baltimore Sun coverage which summarized the recent filings by the defendants in which the church asserted that the verdict was prompted by "passion, prejudice, and bias, based specifically and exclusively upon disagreement with the defendants' religion" and in which the church and three named leaders estimated their net worth to be approximately $1 million. 

Dorf on Law has also posted a link to an article that reports that a number of the lawyers in the Phelps family, whose members constitute the bulk of the Westboro congregation, are employed by the Kansas  corrections system.

Findlaw's Writ currently includes a debate between by UC Davis law professors Vikram Amar and Alan Brownstein about whether the Westboro verdict should survive a First Amendment challenge.

JFB

                  

How Indiana Voter ID Law Implicates Religious Liberty Concerns

Blog from the Capital notes that an amicus brief by the League of Women Voters in Crawford v. Marion County Election Board, the challenge to Indiana's voter ID law now pending before the Supreme Court, highlights a religious freedom issue within the case. The brief addresses how the ID requirement could affect hundreds of Amish and Mennonite voters in Indiana:

Indiana provides for the issuance of photo-exempt identification cards and driver’s licenses for those whose religion prohibits them from being photographed. However, because this type of state identification lacks a photograph, a voter with a photo-exempt identification card or license fails to satisfy the Voter ID Law, from which she is not exempt. Such a voter must cast a provisional ballot and then, if the voter wants her vote counted, she must appear before the county election board and complete another affidavit stating that the voter objects to being photographed for religious reasons. All of this must be done by the voter during and after every election, despite having presented this same type of evidence to the BMV to satisfy the requirement to secure the photo-exempt identification or license in the first place.
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Thus those Amish and Mennonites who have photo-exempt identification cards and who seek to vote are improperly burdened because they must prove after every election that their religion prohibits them from being photographed. As with the indigency affidavit, there is no reason the affidavit regarding photo-exempt identification cannot be executed at the polling place on Election Day. Instead, those Amish and Mennonites who do not have mechanized transportation must make the trip to the county election board after each primary and general election. Moreover, Old Order Amish may be reluctant to take steps to assert their right to vote, such as appearing before the county election board or executing a sworn affidavit. Their value of “Gelassenheit,” roughly meaning calmness or composure, often translates into an unwillingness to use the legal system to protect their rights. The Mennonites have a similar reluctance to engage in formal legal disputes. This makes Amish and Mennonites unlikely candidates for vigorously defending their right to vote in the face of election officials who tell them that their state-issued identification is inadequate.

The LWV amicus brief also incorporates a news account that Mennonites in Missouri planned to move after that state refused to continue to allow members of the sect to obtain an exemption from the requirement that a photo appear on all drivers licenses. Argument in Crawford has been scheduled for Wednesday, January 9, 2008.

JFB

   

         

Photography, Fear of Terrorism and the First Amendment

After being detained by local police, frisked, handcuffed, and jailed after officers saw her photographing power lines, University of Washington art professor has filed suit against the town of Snohomish, Washington and its police department, alleging that her treatment violated her First and Fourth Amendment rights and asserting claims for negligence, invasion of privacy, and false arrest. According to an account in the Seattle Post-Intelligencer,the professor planned to use the photographs for artistic purposes, but,citing the Department of Homeland Security's identification of the substation near where the photos were taken as a "critical infrastructure-key asset target",the police have defended their response to what could have been target surveillance by a terrorist.

The police reaction was not unprecedented. In 2004, the New York City Metropolitan Transit Authority banned unauthorized photography or filming in the subway system.  Facing protest over the restriction, the MTA decided to discontinue the policy.  As the New York Times has reported, last month New York City settled a case brought by the ACLU on behalf of photographers and filmmakers to challenge a city permitting policy that required any group of two or more people using a camera in a public place for more than half an hour or a group of five or more using a tripod for more than five minutes to obtain a permit and at least $1 million in insurance.  Discovery later revealed that no guidelines existed to determine when to grant or deny the required permit, a clear violation of prior restraint doctrine. The settlement has prompted the issuance of new rules which allow such photographic activity on sidewalks and parks if the activity does not obstruct pedestrian traffic.  If the work will block traffic or leave less than eight feet of pedestrian walking space, the photographers must seek a permit.  Insurance requirements can be waived when an applicant can show financial hardship.

JFB                     

         

Judge Rejects Establishment Clause Challenge to Utah Troopers Memorial

Federal District Judge David Sam has found that the Establishment Clause is not violated by the erection of 12 foot crosses in a variety of sites in Utah, including on the side of public highways, to remember state troopers who died in the line of duty. Drawing on the reasoning of Van Orden v. Perry, the 2005 Texas Ten Commandments monument case, the judge found that the markers did not overstep  Establishment Clause boundaries as an endorsement of Christianity because a cross could have both a secular meaning of remembrance and a particular religious meaning. Judge Sam wrote:

Even classic religious symbols may have various meanings and purposes depending on their context. The memorial crosses at issue communicate a secular message, a message that a patrolman died or was mortally wounded at a particular location.

A copy of the judge's ruling is available via the How Appealing blog. How Appealing also provides links to local newspaper coverage of the decision. The plaintiffs, American Atheists, Inc., have announced that they plan to appeal the rejection of their claim to the Tenth Circuit.

JFB   

Recent Scholarship on Free Speech Questions

The following articles, available on SSRN, address a variety of interesting free speech topics:

Douglas Linder, The Trials of Lenny Bruce ;   

Brannon Denning and Molly Taylor, Morse v. Frederick and the Regulation of Student Cyberspeech - Forthcoming in Hastings Constitutional Law Quarterly;   

Robert Sedler,The First Amendment Right to Silence; 

Gregory Magarian, Market Triumphalism, Electoral Pathologies, and the Abiding Wisdom of First Amendment Access Rights - Forthcoming in Hofstra Law Review;   

Michael Cassidy, The Prosecutor and the Press: Lessons (Not) Learned from the Mike Nifong Debacle - Forthcoming in 71 Law & Contemporary Problems(2008); and

Claudia Haupt, The Scope of Democratic Public Discourse: Defending Democracy, Tolerating Intolerance, and the Problem of Neo-Nazi Demonstrations in Germany - Forthcoming in Emory International Law Review.

Two recent pieces focus on the speech rights of particular classes of public employees in the wake of Garcetti v. Ceballos:

Paul Secunda, Whither the Pickering Rights of Federal Employees? -Forthcoming in 78 Colorado Law Review (2008) 

Susan Stuart, Citizen Teacher: Damned If You Do, Damned If You Don't  - Forthcoming in University of Cincinnati Law Review

JFB   

The Grassley Investigation of Mega-churches Generates Opposition

In a Sunday editorial, the LA Times took issue with the Grassley investigation, warning that probing the financial operation of the targeted "prosperity ministries"  had "the potential for upsetting the delicate balance between regulation and harassment" and could tread on the First Amendment rights of the mega-churches and their members. In a commentary on the First Amendment Center website, Charles Haynes raises similar concerns. Haynes writes:

Grassley sent the wrong message when he told The New York Times this week: “Jesus comes into the city on a simple mule, and you got people today expanding his gospel in corporate jets. Somebody ought to raise questions about is it right or wrong.”

Well, if the question is “What would Jesus do?” the “somebody” providing the answers should be Christians themselves, not a Senate committee. Taking sides in theological disputes isn’t the business of government.

Having said that, I’d add that Grassley does raise legitimate questions about possible abuses of tax laws, including use of the organization’s assets for personal gain, excessive executive compensation, and unreported income. Unlike other nonprofit organizations, churches aren’t required to file IRS financial-disclosure Form 990, making it difficult to account for how donations are used.

But is a Senate investigation the best — or fairest — way to get the answers? Before going public (one group heard about Grassley’s letter from the news media before receiving it), why not ask the IRS to determine whether or not a formal inquiry is needed? That would protect the reputation of religious leaders while simultaneously ensuring that the tax code is enforced.

As reported by the AP, one of the ministers from whom Senator Grassley has sought financial data, Eddie Long, has called the Grassley investigation "unjust", "intrusive", and "an attack on our religious freedom and privacy rights." More information about the investigation is available in a prior posting. 

JFB

      

New Report Chronicles Governmental Denial of Religious Liberty in Egypt

Human Rights Watch and the Egyptian Initiative for Personal Rights have renewed their call for the Egyptian government to end discriminatory practices that punish or thwart open expression of religious identity by members of the Baha'i faith and converts from Islam to Christianity. In a new report entitled "Prohibited Identities - State Interference with Religious Freedom", the groups focus on the oppressive effects of Egypt's national identity card policy. The card, which reflects the holder's religious identity, is necessary for school enrollment, employment, voting, and travel, as well as many financial activities. However,the Egyptian Ministry of the Interior, operating under its interpretation of Shari`a law refuses to issue a card to anyone whose birth documents do not specify membership in one of the three officially recognized religions, Islam, Christianity and Judaism.

Identity card applications by members of the Baha'i sect are repeatedly refused by the government. However, Baha'i applicants may be told that they can obtain a card if they agree to identify themselves as Muslim.  There is no option to identify as "other" or to leave the religious identity information section blank.  Converts from Islam to Christianity also face frustration as they try to obtain the card without agreeing to continue to identify as a Muslim.  The religious identity information is then used by the government in several problematic ways. For example, because Egypt's plural law system resolves personal status disputes, such as divorce or custody proceedings, in accordance with the doctrine of the litigants' faith, the government claims such information must be listed on the identity card in order to address possible claims appropriately. Such information is also used to assign children to religious education classes in public school. Such classes are mandatory in Egypt, and particularly difficult situations arise when the children of converts out of Islam are required to send their children to study Islam due to the state's refusal to recognize or record a conversion out of Egypt's dominant faith.  90 per cent of Egyptians identify themselves as Muslim.

The identity card policy and its imposition of discriminatory burdens on religious liberty represent a violation of the International Covenant on Civil and Political Rights to which Egypt is a signatory.  The practices also appear to contradict Egyptian constitutional provisions guaranteeing freedom of belief, freedom to practice religious rites, and the right to be protected from religious discrimination.         

The complete report, which includes personal accounts of mistreatment of religious minorities, can be downloaded from the HRW website.

JFB 

Former Principal of NY Arabic Language School Alleges First Amendment Violations in Suit Against City

As reported in today's New York Times, Debbie Almontaser, the first principal of Khalil Gibran International Academy, the first public Arabic-language school in New York City, has filed suit in federal court. In her complaint, Ms. Almontaser alleges that Chancellor Joel Klein and Mayor Bloomberg violated her free speech rights and engaged in a conspiracy to deny her future employment as a principal. Pressure mounted for the principal's resignation last summer when she was quoted as defending the use of the word “intifada” on a T-shirt sold by an Arab women's organization.

JFB

Use of Crosses as Utah Troopers Memorial Attacked as Establishment Clause Violation

Last week in federal district court in Salt Lake City Judge David Sam heard arguments in a case filed by American Atheists, Inc. in which the group asserts that Establishment Clause is violated when 12 foot white crosses are erected along state highways as memorials to state troopers who have died in the line of duty. The name of a deceased trooper and the insignia of the state highway patrol are inscribed on each cross. The markers are paid for by the Highway Patrol Association (HPA), but the state of Utah has had to give the Association permission to put the crosses on public property. The state and the HPA argue that the crosses are secular symbols of remembrance in this context rather than symbols of Christianity as American Atheists, Inc. claim.  How Appealing provides links to coverage of the controversy in Newsweek Online, the Salt Lake Tribune, and the Deseret Morning News.

JFB

Philadelphia Plans to End Boy Scouts' Rent Subsidy

The Philadelphia Boy Scouts Cradle of Liberty Council has rented the Beaux Arts Building from the city for one dollar a year since 1928. However, as today's Washington Post reports, Philadelphia plans to terminate this rent subsidy if the Boys Scouts do not end their discrimination against homosexuals. As quoted in the Post article, City Solicitor Romulo Diaz expressed the city's position in the dispute: "While we respect the right of the Boy Scouts to prohibit participation in its activities by homosexuals, we will not subsidize that discrimination by passing on the costs to the people of Philadelphia." 

In its 2000 decision in Boy Scouts of America v. Dale, the Supreme Court held that the New Jersey's public accommodations law could not be used to force the Boys Scouts to admit homosexuals as group leaders because such action would infringe on the Boy Scouts' right of expressive association. As noted in Rumsfeld v. FAIR, governmental action short of forced reconstitution of a group's membership could represent a violation of an organization's freedom of association if it made group membership significantly less attractive, but the denial of a rent subsidy may not constitute such an unconstitutional burden.

Some of the possible constitutional complications which can develop out of a leasing arrangement between a governmental entity and the Boy Scouts are examined in Shelley Ross Saxer's 2006 Rutgers Law Review article, Government and Religion as Landlord and Tenant.

JFB

    

Ohio: Proposed Rules Govern Access to Documents

The Ohio Supreme Court has proposed new rules governing public access to court documents, The Cincinnati Post reports.  According to Chief Justice Thomas Moyer, the proposed rules seek to balance privacy concerns with presumptions of open access.  One proposal would open specific parts of previously sealed court files, while others would redact personal information to prevent identity theft. 

Recommendations from a subcommittee of the Supreme Court's Advisory Committee on Technology and the Courts, comprised of members of the public and the media, led to the proposals.  According to a statement on the court’s website:  

Proposed rules 44 through 47 apply specifically to court records, although in many respects they are similar to the Ohio Public Records Act. The rules propose that court records are presumed open unless otherwise exempt as particularly specified. The proposed rules include:

• Definitions of court record, case information, case record, administrative record and other terms.
• Modifications to the current process of sealing court records. The proposed rules put into place a process by which a court can consider whether to allow limited public access to a case record or case information upon request by a party to a case after determining whether the presumption of public access is outweighed by a higher interest.
• The proposed rules also create a process by which any person may request access to a case record or case information that has been granted limited public access. Currently when an entire record is sealed, no part of the record is accessible to the public, nor can it be petitioned to be accessible.
• A provision calling for partial redaction or omission of personal identifiers or personal information that might contribute to identity theft from case information before a document or other item is filed with a court or a clerk of court. The rule also proposes that a clerk of court may provide a form for the recording of information to which there is no public access. The court and parties would continue to have full access to this information.

A complete listing of the proposed rules can be accessed here.  Public comment ends December 19.

-Kathleen A. Bergin

Legal Threats Database Goes Live

The Citizen Media Law Project in partnership with Harvard’s Berkman Center for the Internet and Society launched a database to track information about lawsuits and other threats to internet journalists.  The Legal Threats Database archives information about lawsuits, cease & desist letters, subpoenas and other legal action relating to internet-based expression.  Users can add content directly to the database.

-Kathleen A. Bergin 

Somalia: Proposed Legislation Threatens Media Independence

AllAfrica.com reports that Somalia's Ministry of Information has proposed a new law that threatens media independence.  According to The National Union of Somali Journalists, which won the 2005 Reporters Without Borders International Press Freedom Defenders Prize, the draft law gives the Ministry power to "suspend media organization, arrest journalists and take over ownership of media organizations." It also purports to allow the Ministry to intervene in the "managerial, financial and editorial system[s]" of the media. Journalists seeking to operate in the country will need permission from the Ministry which also would exercise discretion to withhold press credentials.

-Kathleen A. Bergin

Turkey: New ISP Regulations On Access And User Data

The Eurasian Daily Monitor reports on new regulations in Turkey that require commercial ISPs to prevent access to “illegal content,” use government filters to block certain websites, and record and store subscriber use details.  Access to websites associated with the Kurdistan Workers’ Party is already blocked and in March, a Turkish court temporarily shut down access to You-Tube following a video claiming that the Republic’s founder, Mustafa Kemal Ataturk, was homosexual. 

The new regulations will undoubtedly continue to erode Turkey's fragile relationship with the EU, which is already strained by continued prosecutions under Article 301, the provision of the Turkish Code that criminalizes insults to “Turkishness.”

- Kathleen A. Bergin