Scholarship Update

The following is a collection of newly available scholarship of interest to those teaching and writing about First Amendment topics:

1) Katherine J. Strandburg (DePaul University College of Law), Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance, 49 B.C. L. Rev. 741 (2008). The abstract states:

Recent controversies about the National Security Agency's warrantless wiretapping of international calls have overshadowed equally disturbing allegations that the government has acquired access to a huge database of domestic call traffic data, revealing information about times, dates, and numbers called. Although communication content tradition-ally has been the primary focus of concern about overreaching government surveillance, law enforcement officials are increasingly interested in using sophisticated computer analysis of noncontent traffic data to "map" networks of associations. Despite the rising importance of digitally mediated association, current Fourth Amendment and statutory schemes pro-vide only weak checks on government. The potential to chill association through overreaching relational surveillance is great. This Article argues that the First Amendment's freedom of association guarantees can and do provide a proper framework for regulating relational surveillance and suggests how these guarantees might apply to particular forms of analysis of traffic data.

2) Miriam A. Cherry (University of the Pacific -McGeorge School of Law  and Robert L. Rogers (Legal Times) , Prediction Markets and the First Amendment, 2008 U. Ill. L. Rev ----.  The abstract states:

The continuing development of prediction markets is important because of their success in foretelling the future in politics, economics, and science. In this article, we identify the expressive elements inherent in prediction markets and explore how legislation such as the Unlawful Internet Gambling Enforcement Act of 2006 might harm such predictive speech. This article is the first to explore First Amendment protections for prediction markets in such depth, and in so doing, we distinguish prediction markets from other regulated areas such as gambling, commodities, and securities trading. The article's examination of prediction markets also illustrates the limitations of current commercial speech doctrine. We conclude by discussing how the executive, legislative, and judicial branches might resolve the First Amendment challenges of regulating prediction markets, and we propose a new legal test, modeled on existing free speech jurisprudence, which may assist courts in adjudicating any constitutional challenges.

3) Heidi Kitrosser (University of Minnesota School of Law), Classified Information Leaks and Free Speech, 2008 U. Ill. L. Rev. ----. The abstract states:

This article provides a timely response to the recent trend toward "cracking down" on classified information leaks and the absence of significant scholarship, theory, and doctrine on classified information leaks. The article begins by explaining the President's vast secret-keeping capacity and the capacity's manifestation in the classification system. This capacity is particularly manifest in the problems, at least partly intrinsic, of broad executive branch classification discretion and overclassification. The author then describes the major constitutional arguments for deference to political branch decisions to criminalize classified information leaks and publication of the same: such leaks are not speech but conduct; such leaks—even if speech—fall within the political branches' wide ranging power to protect national security; and the judiciary lacks the expertise to second-guess such political branch decision making. The author refutes these arguments by explaining that a common thread underlying them is the notion of vast deference to political branch—particularly executive branch—determinations regarding what information disclosures constitute national security threats. The author contends that this notion's fatal flaw is that the Constitution's speech- and transparency-related checks and balances not only do not vanish upon the wielding of a classification stamp, but are of special constitutional importance in this context given the vast secret-keeping capacities of the executive branch. Finally, the author considers the doctrinal implications of the preceding analysis and proposes judicial standards to test the First Amendment validity of prosecutions for classified information leaks.

4)Anita L. Allen  (U of Penn Law School),  Undressing Difference: The Hijab in the West, Berkeley Journal of Gender, Law & Justice (2008). The abstract states:

On March 15, 2006, French President Jacques Chirac signed into law an amendment to his country's education statute, banning the wearing of conspicuous signs of religious affiliation in public schools. Prohibited items included a large cross, a veil, or skullcap. The ban was expressly introduced by lawmakers as an application of the principle of government neutrality, du principe de laïcité. Opponents of the law viewed it primarily as an intolerant assault against the hijab, a head and neck wrap worn by many Muslim women around the world. In Politics of the Veil, Professor Joan Wallach Scott offers an illuminating account of the significance of the hijab in France. Scott's lucid, compact examination of the hijab complements previous feminist scholarship on veiling with a close look at its role in a particular time and place - contemporary France - where it has been the subject matter of a unique political discourse. How different is America's political discourse surrounding religious symbols in the schools as compared to the French? I offer a U.S. constitutional perspective on the rights of religious minorities and women in the public schools, and suggest that a ban on the hijab must be considered unconstitutional. A proposal for a national rule against the hijab in public schools or universities would fall flat in the United States. When compared to U.S. approaches to the hijab, the French experience examined by Joan Wallach Scott underscores an important point: there is more than one way to be a modern, multicultural western liberal democracy with a Muslim population, and some ways are better than others. 

5) Laura E. Little (Temple University - James E. Beasley School of Law), Regulating Funny: Humor and the Law,94 Cornell Law Review ---(2009). The abstract states:

When humor hurts people, they may press claims in court, ascribing blame and demanding redress. Courts respond by matching injuries with legal rules, and choose to insulate, tolerate, encourage, condemn or suppress the humor. Patterns emerge from this humor regulation, with courts systematically preferring some types of humor over others.

Explicit analysis of the law's regulatory effect on different types of humor is conspicuously absent in case law and legal scholarship. Non-legal theorists have, however, for centuries devoted considerable effort to defining and cataloguing humor. Philosophers, literary theorists, natural scientists, and social scientists have created a rich literature explaining how humor affects individual and group well-being. This article analyzes legal regulation of humor through the lens of that literature.

Using tools developed by humor theorists, the article explores how the law regulates humor in three doctrinal areas: contract, trademark, and employment discrimination. Across this diverse array of legal categories, the article identifies remarkable consistency in the types of humor that courts choose to regulate and the types that courts instead allow to flourish unimpeded by legal rules. The cases in all three areas regulate two types of humor with particular vigor: superiority humor and release humor. Superiority humor seeks amusement through a communication that makes one person feel successful at the expense of others. Release humor taps into repressed sources of pleasure, pressure, or anxiety, focusing on taboo or difficult topics such as sex, excretion, or death.

Courts' imposition of liability for superiority and release humor is consistent with civil law's corrective justice goals and with the specific cause of action requirements for contract, trademark, and employment discrimination. What is more surprising, however, is courts' tendency to privilege another type of humor: incongruity humor. Incongruity humor arises from the juxtaposition of two inconsistent or unrelated phenomena. Where the humor in a suit has incongruous qualities, courts tend to avoid liability, thereby placing incongruous humor beyond the law's grip.

Documenting patterns in humor regulation provides important guidance for courts, attorneys, and humorists seeking to understand and predict legal regulation. The article nevertheless seeks to accomplish more than that positive mission, and thus assesses the beneficial and potentially detrimental consequences of current humor regulation. Concluding that the law closely integrates social norms about appropriate humor, the article finds cause for both celebration and concern. The article ends by identifying three bodies of literature to assist with improving humor regulation: law and social norm theory, First Amendment literature, and the current interdisciplinary work of humor theorists.

6)Andrew Koppelman (Northwestern University School of Law), Phony Originalism and the Establishment Clause. The abstract states:

The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.

7)W. Kenneth Ferree (The Progress & Freedom Foundation), Whose Airwaves are They Anyway?. The abstract states:

Whatever happened to: Congress shall make no law abridging the freedom of speech? In the context of broadcasting, representatives Anna Eshoo (D-CA 14th) and Tammy Baldwin (D-WI 2nd) are the latest to transgress, offering this year their "Broadcast Licensing in the Public Interest Act" (HR 4882).

Congressional critics of broadcasting often begin their attacks by asserting that the airways belong to the public. The Eshoo/Baldwin bill is no exception. But one must ask why these selfsame critics deem themselves better qualified to determine how "the public" would like its airwaves used than are broadcasters whose livelihoods depend on their ability to deliver content with broad appeal.

Broadcast licensees, after all, compete with an increasingly diverse variety of other media for a share of a highly fragmented market. As such they have an economic imperative to deliver that programming which will most interest "the public." Broadcasters no more need the government to tell them what that programming is than Macy's needs bureaucratic direction on the styles of women's shoes to sell. Divining what the public wants carried on its airwaves is therefore no more difficult than switching on your television.

If broadcasters really are to serve the public, they cannot be held hostage to the individual programming tastes of any one person or group of people - even if that group is known as Congress.

8)Edward Correia , A Constitutional Framework for Addressing Religious Viewpoints in Public Classrooms, ACS Issue Brief. The summary states:

In the debate over the constitutional separation of church and state in the U.S., one ongoing issue is how religious viewpoints may be addressed in our nation’s public schools. In this paper, the author takes on this sometimes controversial subject by reviewing various possible approaches and examining those approaches in light of the legal precedent in this area of the law. Throughout the paper, the author uses the specific examples of the teaching of creationism, intelligent design, and evolution in science class to illustrate community tensions over these issues and to convey his views on what is constitutionally permissible and what is not. Corriea concludes by arguing that it is possible to distinguish among three distinct classroom approaches in specific course contexts: acknowledging religious beliefs, explaining religious beliefs and endorsing religious beliefs. Under his approach, the first is always constitutionally permissible, the second may be permissible depending upon the context, and the third fails to pass constitutional muster. He advocates a thoughtful, nuanced approach that respects religious freedom, diversity and tolerance while advocating compliance with the Constitution’s prohibition on the State establishment of religion.

9)Brian J Bilford ,Harper's Bazaar: The Marketplace of Ideas and Hate Speech in Schools , 4 Stanford Journal of Civil Rights and Civil Liberties --- (2008). The abstract states:

The following Note discusses the rationale of Harper v. Poway School District, a recent opinion of the United States Court of Appeals for the Ninth Circuit. In Harper, the court held that a student wearing a T-shirt bearing the message "Homosexuality is Shameful" could constitutionally be censored under Tinker, since it interfered with the rights of other students to be secure and to be let alone. In this Note, I argue that while Supreme Court precedent precludes the censorship of hate speech in public fora, the Harper decision is an attempt to prohibit hate speech in schools on the grounds that students are both captive and vulnerable in ways that adults subject to similar speech are not. While the court does not state the legal justifications for relying on these two factors in great detail, I argue that the captivity and vulnerability of a young audience are legitimate reasons for this distinction as a matter of both policy and law, although the result in this particular case is questionable. I also argue that this ruling reflects the legal and logical implausibility of a holding based on Tinker's substantial disruption prong in circumstances where arguably disruptive hate speech is proffered in response to equally disruptive messages of tolerance condoned or expressed by the school.

10) Lincoln Davis Wilson, Judgmental Neutrality: When the Supreme Court Inevitably Implies that Your Religion is Just Plain Wrong , 38 Seton Hall Law Review ----(2008). The abstract states:

This Comment posits that in certain Free Exercise cases the Supreme Court necessarily implies that a religious adherent's beliefs are false, despite that the Court has expressly stated that it makes no truth judgments about religions. Namely, when the Court denies a Free Exercise claim premised on a religious belief purporting to be universally, objectively true, the Court necessarily implies, through simple logical forms, that the underlying religious doctrine is false. The Comment suggests this implication is inevitable, and that because it is inconsistent with the Court's principle of neutrality toward religion, the neutrality principle should be clarified, modified, or abandoned.

The Comment first outlines the unity of the Court's neutrality principle with its policy against judging religious truth, and then discusses the fundamental axioms underlying the argument. The Comment then sets forth the formal argument, illustrating it with Free Exercise cases such as Reynolds v. United States and Employment Division v. Smith. The Comment then clarifies the scope of the thesis, noting that this implication does not result in all circumstances, and responds to foreseeable objections. Finally, the Comment addresses some of the implications of its thesis, suggesting that the neutrality principle be clarified, modified, or abandoned.

11)Robert MacCulloch and Silvia Pezzini , The Role of Freedom, Growth and Religion in the Taste for Revolution , LSE STICERD Research Paper No. DEDPS36. The abstract states:

A fundamental issue for economists is what determines civil conflict. One unsettled question is the relative importance of political freedoms versus economic development. This paper takes a new approach to provide an answer by using micro-data based on surveys of revolutionary preferences of 130,000 people living in 61 nations between 1980 and 1997. Controlling for personal characteristics, country and year fixed effects, more freedom and economic growth both reduce revolutionary support. Losing one level of freedom, equivalent to a shift from the US to Turkey, increases support for revolt by 4 percentage points. To reduce support by the same amount requires adding 14 percentage points on to the GDP growth rate. Being Muslim in a free country has no effect on the probability of supporting revolt compared to a non-religious person. However, being Muslim in a country that is not free increases it by 13 percentage points. Being Christian in a free country decreases the chance of supporting revolt by 4 percentage points, compared to a non-religious person, and in a not-free country by 1 percentage point.

12) David Simon (Concordia University Chicago),  Register Trademarks and Keep the Faith: Trademarks, Religion, and Identity. The abstract states:

Religions frequently wage battles in court over the use of various religious trademarks. These battles, however, are not directed toward winning traditional trademark rights. At the heart of these disputes is a struggle to protect religious identity. This article argues that religions use trademark law to protect their identities because there are no other viable legal means available. Nevertheless, trademark law cannot wholly protect religious identity because of its focus on consumer perception. Because of the deficiency provided by current trademark law, this article proposes a new conceptual framework for resolving these disputes.

JFB