First Amendment Scholarship Update

The following are recently published articles on First Amendment topics:   

1) Dena S. Davis (Cleveland-Marshall College of Law), Religion, Genetics, and Sexual Orientation: A First Cut , Kennedy Institute of Ethics Journal (forthcoming).  The SSRN abstract states:

This essay explores the implications for religions of a genetic etiology of sexual orientation, using Judaism as an example. It begins with a brief overview of the current state of the scientific research into genetic elements of sexual orientation. Then it looks at contemporary attitudes toward homosexuality across the Jewish spectrum, and inquires whether there is any evidence to suggest that a scientific finding of a genetic basis for sexual orientation would have a positive influence on those who currently condemn homosexuality.

2) Nicholas James Nelson (Notre Dame Law School), Note - A Textual Approach to Harmonizing Sherbert and Smith on Religious Accommodations, 83 Notre Dame Law Review ---- (2008). The SSRN abstract states:

In Sherbert v. Verner, the Supreme Court interpreted the First Amendment's protection of religious freedom to require strict scrutiny - the highest standard of constitutional review - for laws that burden the exercise of religion. This required the courts to invalidate religion-burdening laws unless they were the least restrictive means of implementing a compelling governmental interest.

But from the perspective of religious freedom, the theoretical results of Sherbert were quite problematic. This Note explains how the adoption of strict scrutiny, by requiring courts to determine whether a specific religious practice was so harmful as to imperil a compelling state interest, also tended to force the federal judiciary to evaluate the merits and demerits of religious practices themselves - precisely the type of government inquiry the First Amendment must prohibit, if it is to mean anything at all.

This reveals the dilemma at the heart of the religious accommodations question: we cannot exempt every religious practice, no matter how abhorrent, from regulation; and yet to permit the government to decide which religious practices are acceptable would be to eviscerate the First Amendment. What is needed is some proxy standard that will clearly and reliably distinguish tolerable from intolerable religious practices without requiring direct government evaluations thereof.
This Note proposes that the text of the First Amendment itself supplies such a standard. The Constitution's requirement that Congress make no law prohibiting free exercise, I suggest, should be interpreted as invalidating a statute only if that statute burdens religious practices that were being conducted in the United States at the time of its adoption.

3) Steven Douglas Smith (University of San Diego School of Law), Constitutional Agnosticism, Religious Pluralism, and the Problem of Community. The SSRN abstract states:

The text of the Constitution nowhere mentions God; the document is, as some scholars put it, "godless." What is the significance of that silence? This brief essay, written for a discussion conference on religion, multiculturalism, and citizenship, considers and criticizes two possible responses, which would hold (a) that the Constitution's silence about God has no constitutional implications and (b) that the Constitution's godless qualities entails a general policy of mandatory public secularism. Instead, the Constitution's silence about God reflects a policy of "constitutional agnosticism" that leaves governments free to make affirmations (religious or otherwise) while assuring citizens that these affirmations are not constitutive of the political community. The essay argues that constitutional agnosticism, though misunderstood and subverted by modern Supreme Court doctrine, is a valuable strategy for addressing the challenge of e pluribus unum.

4) Alexander Benard , The Advantage to Islam of Mosque-State Separation: What the American Founders Can Teach, 8 Policy Review --- (Spring 2008). The SSRN abstract states: 

Mosque-state separation and religious freedom appear to have stalled in the Middle East. Recent public opinion surveys, however, indicate that in a number of key Middle Eastern countries, including Iraq and Algeria, a majority of people favor mosque-state separation. The question, then, is how to help this majority advance its interests vis-a-vis vocal extremists. This article presents an example of a different group of advocates for separation of religion and politics - the Founding Fathers of the United States of America. It argues that their approach serves as a valuable template and shows how the arguments they used to persuade their deeply religious fellow citizens to favor separation of religion and politics can be applied in the Middle East today.

5) Caroline Mala Corbin (Columbia Law School),  Mixed Speech: When Speech Is Both Private and Governmental, Forthcoming in the New York University Law Review. The SSRN abstract states:

Speech is generally considered to be either private or governmental, and this dichotomy is embedded in First Amendment jurisprudence. However, speech is often not purely private or purely governmental, but rather a combination of the two. Nonetheless, the Supreme Court has not yet recognized mixed speech as a distinct category of speech. This Article suggests considerations for identifying mixed speech and exposes the shortcomings of the current approach of classifying all speech as either private or governmental when determining whether viewpoint restrictions pass First Amendment muster. Treating mixed speech as government speech gives short shrift to the free speech interests of speakers and audiences. According it private speech status overlooks compelling state interests, including the need to avoid establishment clause violations. This Article concludes that a better approach to mixed speech is to subject viewpoint restrictions to intermediate scrutiny. This will allow a more nuanced and transparent balancing of interests than the present either-or approach.

6) R. George Wright (Indiana University Purdue University Indianapolis), An Emotion-Based Approach to Freedom of Speech. The SSRN abstract states: 

Free speech law often protects emotional expression. However, we lack an understanding of the scope and limits of protection for emotional expression. This Essay seeks to make progress toward such an understanding because a better understanding and grasp of the nature of emotion itself is crucial to achieving this goal. If we can arrive at an improved understanding of emotions and how they can be expressed, we will be better able to explain when we do and do not constitutionally protect the expression of emotion.

7) Justin Nemunaitis (Student - Chicago-Kent College of Law), Mayer v. Monroe: The Seventh Circuit Sheds Freedom of Speech at the Classroom Door, 2 Seventh Circuit Review --- (2007). The SSRN abstract states:

During a curriculum-specified class discussion of the war in Iraq, a sixth grader asked her teacher, Ms. Mayer, if she would ever march to protest the war. The school dismissed the teacher for answering the student. In Mayer v. Monroe County Community School Corp., the Seventh Circuit ruled that no teacher has the First Amendment right to express an opinion in the classroom. The case inappropriately applied the U.S. Supreme Court's recent Garcetti v. Ceballos decision in a way that overruled previous precedent. This Note will argue that the Seventh Circuit should have followed its earlier decisions by asking the school to show a legitimate pedagogical reason for its decision.

8)  Patrick M. Garry (University of South Dakota Law School), A New First Amendment Model for Evaluating Content-Based Regulation of Internet Pornography: Revising the Strict Scrutiny Model to Better Reflect the Realities of the Modern Media Age, in Brigham Young University Law Review (2007). The SSRN abstract states:

In the modern media age, the number of media venues, along with the types of information and programming those venues carry, is exploding. Nowhere is that explosion more evident than with the Internet. On the positive side, the Internet offers a wealth of information and communications opportunities. But, on the negative side, it brings a boundless store of harmful material within easy access of children. In recognition of the destructive effects of such material - especially obscenity and pornography - Congress on several occasions has tried to curb the accessibility of this material to children. The Supreme Court, however, has struck down these attempts using a strict scrutiny approach.

Part I of this Article outlines the case against the Court's current use of strict scrutiny. This approach hinges on a single factor: whether or not a regulation of speech hinges on a content distinction. Once such a distinction is found, the law is almost always struck down, regardless of the speech burdens actually imposed by the law, whether the subject speech is in plentiful supply in other media venues, or whether the laws would result in a banishment of certain ideas from the public discourse. This myopic focus on content discrimination is outmoded in today's multimedia world and prohibits regulations of speech even when the burdens imposed by the law are slight and the speech remains available and accessible in the broader marketplace of ideas.

Part II of the Article proposes a new judicial model for evaluating content-based laws regulating media programming that is not political speech. This new model examines the actual burdens placed on the subject speech. It also considers perhaps the most vulnerable freedom in the current media environment - the freedom of the unwilling recipient to avoid unwanted and offensive media speech. Furthermore, the new model - a variation of the intermediate scrutiny approach now used for so-called content-neutral regulations of speech - takes into account and incorporates the realities of the modern media world. It does so by recognizing that there is a vast array of media channels through which any one type of speech can flow, and that a restriction of speech in one venue may not rise to the level of an unconstitutional censorship.

9) Orly Lobel (University of San Diego School of Law), Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations, forthcoming in the 2008 California Law Review. The SSRN abstract states:

Ranging from strict disclosure prohibitions to generous monetary incentives for informants, the legal approaches to conflicts between organizational loyalty and legal compliance reveal a deep ambivalence about the role of individual dissent in group settings. In fact, recent constitutional and private law cases have had the undesirable effect of denying protections to those most likely to identify and report corporate misconduct. This article argues that, particularly in light of broad shifts from command-and-control regulation to new governance processes, the corollary to skepticism about government's ability to remedy organizational illegalities is the ability of individuals to internally confront violations. The article develops a way to reconcile the pervasive tensions of conflicting obligations by connecting organizational citizenship to both institutional learning and broader civic obligation and by developing a systemic linkage between the substance of dissent and its form. It calls for the adoption of sequenced protections creating a reporting pyramid that prioritizes internal problem-solving when feasible. The analysis of mediating the conflicting demands of citizenship and organizational citizenship extends more broadly to legal debates on family immunities in criminal procedure, civic disobedience and military hierarchies, and professional roles in legal ethics, bringing analytical clarity to dilemmas about following rules while maintaining independent judgment.

10) Sunny Woan (Santa Clara University), The Blogosphere: Past, Present, and Future; Preserving the Unfettered Development of Alternative Journalism, 44 California Western Law Review --- (2008). The SSRN abstract states:

This article emphasizes the importance of preserving the unfettered development of alternative journalism. In its analysis, the article takes on a global perspective of blogosphere regulation, examining the European Union's approach alongside China and the United States. Unlike the national borders of the physical world, people create borders in the cyber world based on communities. These online communities tend to be more segregated by homogenous interests than the natural diversity of world nations. This article contends that first, due to the unique conditions of the blogosphere, traditional regulation is infeasible, and second, the most effective means of standard setting on the blogosphere is by self-regulation. The article then explains this concept of self-regulation and proposes a hands-off approach by the government to the blogosphere.

11) Josh Blackman (George Mason University School of Law), Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual's Image Over the Internet. The SSRN abstract states:

Internet giant Google recently began photographing American streets with a new technology they entitled Google Street View. These high-resolution cameras capture people, both outside, and inside of their homes, engaged in private matters. Although the present iteration of this technology only displays previously recorded images, current privacy laws do not prevent Google, or other technology companies, or wealthy individuals, from implementing a system that broadcasts live video feeds of street corner throughout America. Such pervasive human monitoring is the essence of the phenomenon this Article has termed omniveillance. This threat is all the more realistic in light of projected trends in technology, and the path of future Internet developments. This Article proposes the right to your digital identity, a tort to balance privacy rights with free speech, and provide a remedy for victims of omniveillance.

This tort emerged from existing privacy torts, borrowing from criminal law, criminal procedure, and paparazzi and voyeurism statutes, and develops a workable framework to remedy victims of omniveillance. The tort has four factors that are balanced to create a workable equilibrium between privacy and free speech. The first element modifies the tort of intrusion upon seclusion and adopts a reasonable expectation of privacy standard. The second element serves as a reflection on society's changing perceptions of offensiveness, lowering the standard from "highly offensive" to "offensive," mirroring contemporary sensibilities. The third element of the tort focuses on the new, more pervasive methods of electronic data dissemination over social networks and viral Internet distributions, and accords greater liability to larger and more indiscriminate distribution. The fourth element weighs the newsworthiness exception from the tort of public disclosure of private facts against the level of intrusion into an individual's privacy, attempting to strike a fair balance so that privacy has a chance to outweigh free speech when applied in our courts. Enforced as a common law tort, where each state can define the contours of the tort to meet their citizen's specific needs, the right to your digital identity is a viable remedy for victims of omniveillance.

12) Edward Lee (Ohio State University Moritz College of Law), Warming Up to User-Generated Content, 2008 University of Illinois Law Review ---- . The SSRN abstract states:

The most significant copyright development of the twenty first century has not arisen through any law enacted by Congress or opinion rendered by the Supreme Court. Instead, it has come from the unorganized, informal practices of various, unrelated users of copyrighted works, many of whom probably know next to nothing about copyright law. In order to comprehend this paradox, one must look at what is popularly known as "Web 2.0," and the growth of user-generated content in blogs, wikis, podcasts, "mashup" videos, and social networking sites like Facebook and MySpace. Although users often create new works of their own, sometimes the works are "remixed" with copyrighted content of others.

The growth of user-generated content challenges the conventional understandings of copyright law under which copyrights are understood largely as static and fixed from the top down. Under this view, copyright holders are at the center of the copyright universe and exercise considerable control over their exclusive rights. Obtaining prior authorization from the copyright holder is typically assumed to be necessary for others legally to re-use the copyrighted work, apart from a fair or other permitted use (which often is not easy to determine in advance).

This Article challenges the conventional account of copyright law, particularly as applied to Web 2.0. The formalist understanding of copyright law ignores reality. The Copyright Act is riddled with gray areas and gaps, many of which persist over time because so few copyright cases are ever filed and the majority of those filed are not resolved through a judgment. My core thesis is that informal copyright practices - i.e., practices that are not authorized by formal copyright licenses, but whose legality falls within a gray area of copyright law - effectively serve as important gap-fillers in our copyright system.

The informal practices related to user-generated content provide a compelling example of this phenomenon. These practices make manifest three significant features of our copyright system that have escaped the attention of legal scholars: (i) our copyright system could not function without informal copyright practices; (ii) collectively, users wield far more power in influencing the shape of copyright law than is commonly perceived; and (iii) uncertainty in formal copyright law can lead to the phenomenon of "warming," in which - unlike chilling - users are emboldened to make unauthorized uses of copyrighted works based on seeing what appears to be an increasingly accepted practice. In the Web 2.0 world, warming may serve as a powerful counterforce to the chilling of speech.

JFB