First Amendment Scholarship Update

New scholarship on First Amendment topics include the following papers:

1)Ronald J. Krotoszynski, Jr. (University of Alabama School of Law) & Clint A. Carpenter ( Law Clerk to the Honorable Norman K. Moon, United States District Court for the Western District of Virginia; J.D., Washington and Lee University School of Law, 2007), The Return of Seditious Libel, 55 UCLA L. REV. 1239 (2008). The abstract states:

Does the First Amendment protect a speaker’s interest in reaching a particular audience if the expressive activity occurs in a traditional public forum? The intuitive answer to this question might be “yes” or “usually,” but the federal courts have taken a decidedly different approach—at least when the intended speech is political protest and the intended audience includes high-ranking government officials or political party leaders. Indeed, so long as government efforts to squelch political dissent invoke the talisman of “security” and are facially content and viewpoint neutral, the Speech and Assembly Clauses of the First Amendment have proven remarkably ineffective at protecting an individual’s right to protest in a location physically proximate to incumbent government officials—even in a traditional public forum.

This Article questions whether genuine security concerns actually motivate the censoring of political dissent. It posits instead that judges have wrongly permitted local, state, and federal officials to equate the government’s dignity interests with its national security interests. In short, avoiding embarrassment as a result of media coverage, as much as genuine concern about public safety, undergirds decisions to squelch dissent proximate to the venues in which major political theater occurs. This practice of censoring core political speech to avoid embarrassing incumbent politicians constitutes a limited return of the doctrine of seditious libel, which also equated the embarrassment of government officials with harm to national security.

Consistent with the oft-forgotten Petition Clause of the First Amendment, which proclaims “the right of the people . . . to petition the Government for a redress of grievances,” this Article argues that citizens should have a right to bring grievances to the personal attention of their ostensibly democratically accountable government. As an historical matter, the First Amendment right of petition carried with it absolute immunity from prosecution for seditious libel: Citizens could bring complaints, both in person and in groups, to government officials to seek a redress of grievances without fear of reprisal. In the early years of the Republic, however, the Petition Clause fell into desuetude because abolitionists engaged in what pro-slavery members of Congress characterized as “abusive” petitioning of the federal government to abolish the practice of human slavery. The Petition Clause has never recovered from this most odious legal and political banishment. This Article argues that federal courts should restore the relevance of the Petition Clause by using it to establish a qualified right to demonstrate in public forums within the sight and hearing of government officials and party leaders.

2) Keith Hylton (Boston University - School of Law), Yulia Rodionova (UCL SSEES),and Fei Deng (National Economic Research Associates),  Church and State: An Economic Analysis. The abstract states:

What purpose is served by a government's protection of religious liberty? Many have been suggested, the most prominent of which center on the protection of freedom of belief and expression. However, since every regulation potentially interferes with religious freedom, it is useful to consider more concrete purposes that could suggest limits on the degree to which religious liberty should be protected. This paper focuses on the concrete economic consequences of state regulation of religion. We examine the effects of state regulation on corruption, economic growth, and inequality. The results suggest that laws and practices burdening religion enhance corruption. Laws burdening religion reduce economic growth and are positively associated with inequality.

3) Martin R. West (Harvard University - Graduate School of Arts and Sciences), Ludger Woessmann (University of Munich - Ifo Institute for Economic Research (Ifo Institute for Economic Research). 'Every Catholic Child in a Catholic School': Historical Resistance to State Schooling, Contemporary Private Competition, and Student Achievement Across Countries,
CESifo Working Paper Series No. 2332. The abstract states:

Nineteenth-Century Catholic doctrine strongly opposed state schooling. We show that countries with larger shares of Catholics in 1900 (but without a Catholic state religion) tend to have larger shares of privately operated schools even today. We use this historical pattern as a natural experiment to estimate the causal effect of contemporary private competition on student achievement in cross-country student-level analyses. Our results show that larger shares of privately operated schools lead to better student achievement in mathematics, science, and reading and to lower total education spending, even after controlling for current Catholic shares.

4) Karol Edward, SoBtan (Affiliation Unknown) Constitutional Patriotism and Militant Moderation, 6 Intl. J. of Const. Law 96 (2008). The abstract states:

Constitutional patriotism is a form of political loyalty combining a commitment to universal principles with a love of a unique object of loyalty, and with a special connection to a constitution. This paper outlines a version of constitutional patriotism with three distinctive characteristics. First, constitutions are not the object of the loyalty, but its most important expression. Second, constitutions are seen as commitments to a certain form of moderate politics. And, finally, constitutional patriotism can be directed toward many different objects of loyalty, but only when it can be simultaneously directed toward a universal civilization. Constitutional patriotism seems to be the best possible form of political loyalty, and hence the form we should adopt. Loyalty is not necessarily always a virtue. But a certain form of loyalty (constitutional patriotism)-to individuals and groups, institutions and causes that deserve loyalty-is a virtue. There are many conceptions of constitutional patriotism; this paper argues in favor of one that expresses a passionate, ambitious, and militant moderation.

5) Richard Delgado (University of Pittsburgh - School of Law ), Of Cops and Bumper Stickers: Notes Toward a Theory of Selective Prosecution, 57 Syracuse L. Rev. 175 (2007). The abstract states:

The author, Professor Richard Delgado, takes as his point of departure a remark by the chair of the University of Colorado committee that voted academic sanctions against Ward Churchill. This essay explores the role of retaliatory motives in academic misconduct cases. In Churchill's case, Colorado authorities delved deeply and painstakingly into Churchill's publications only when it appeared that the state could not fire him from his tenured position for his inflammatory remarks on the victims of the 9/11 tragedy. What bearing should the investigation's relation to the hue and cry that led to it have on its own legitimacy?

Professor Delgado examines various possible frameworks for analyzing cases like these and argues that the committee chair's way of seeing the matter was the incorrect framework.

6) Alan E. Brownstein (University of California at Davis Law School), The Nonforum as a First Amendment Category: Bringing Order Out of the Chaos of Free Speech Cases Involving School Sponsored Activities,    The abstract states:

This article critically evaluates the way that federal courts adjudicate student free speech claims arising out of school sponsored activities. In doing so, it challenges conventional orthodoxy in several ways. First, it rejects the often stated truism that student free speech rights at school are less rigorously protected than the rights of speakers outside the school environment. In fact, under current authority, students at public school often have greater free speech rights than adults in other areas of public life. Second, it contest the way that most federal courts interpret and apply Hazelwood v. Kuhlmeier, the controlling Supreme Court decision in this area, by arguing that school sponsored activities should not be characterized as a nonpublic forum in which viewpoint discriminatory regulations are prohibited. The article also suggests that a key factor in the Hazelwood analysis - whether the expressive activity at issue bears the imprimatur of the school - is largely irrelevant to the free speech analysis in these cases.

As an alternative to the current morass of inconsistent decisions and incoherent analysis in this area, I argue that school sponsored activities should be characterized as a nonforum - a new free speech category developed in the article. The nonforum category covers government property or activities that should not be subject to judicial review under the free speech clause. As a working definition of the category, nonforums involve intrinsically and pervasively expressive government property and activities where the burden of complying with free speech requirements would unreasonably interfere with the activity's purpose or the use to which the property was being put. They also involve government functions which, for separation of powers and federalism reasons, should not be subject to intrusive judicial review under the free speech clause.

7) R. George Wright (Indiana University Purdue University- Indianapolis), Doubtful Threats and the Limits of Student Speech. The abstract states:

The purposes of public schools are widely recognized to be various, even if we disagree over specific lists of such purposes, or over their tradeoffs and priorities.

It would, however, be a serious mistake not to attend to the basic widely acknowledged missions of the public school when we must shape school speech law.

The full text of the Wright paper is not yet available on SSRN. The Wright and Brownstein papers will be published in the forthcoming symposium edition of the UC Davis Law Review. The title of the symposium was "First Amendment Rights in America's Public Schools - From the Schoolhouse Gate to the Courthouse Steps". The link to the webcast of the full set of symposium presentations is available in the immediately preceding port.

JFB