First Amendment Scholarship Update

Newly available articles on First Amendment topics include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JFB