First Amendment Scholarship Update

Here is this week's collection of new papers with a First Amendment dimension:   

1) Paul Horwitz (University of Alabama School of Law), Religion and American Politics: Three Views of the Cathedral. The abstract states: 

The relationship between religion and politics in the American social and constitutional structure is a subject of endless contestation. Much of that discussion, taking place as it has in an academic environment, has had a decidedly abstract air. In this paper, I shift the focus from the abstract to the practical by looking at the central participants in the debate over religion and politics: the political candidates themselves. I offer a close reading of speeches by three of the most prominent political candidates to offer an examination of religion's role in politics: John F. Kennedy, Mitt Romney, and Barack Obama. A close reading of these three speeches reveals much common ground, but also a good deal of change and, I argue, progress in the terms of debate, although that progress is incomplete.

The overall movement in the speeches is from a strategy of avoidance, practiced most notably by John F. Kennedy, in which minority religious candidates are welcomed in the public square but religion is rendered a private matter for both candidates and voters alike, to one of engagement and inclusion, in which both religious candidates and religious arguments are increasingly accepted in the public square. Each of the modern candidates examined here achieves only a partial marriage of inclusion and engagement. Mitt Romney pursues a strategy of inclusion in which religious views are permitted in political debate, but seeks to foreclose any genuine engagement with religion. By contrast, Barack Obama offers a thoughtful engagement between religion and politics. But he prescribes a rule of dialogue in which religious individuals are required to speak in publicly accessible terms, thus precluding the total inclusion of religious individuals in the political process in their own voices.

In contrast to all three, I argue here for a model of genuine inclusion and engagement, in which religion and openly religious arguments are welcome in the public square but also subject to critical inquiry and disagreement. The model of inclusion and engagement may be messy, but it is also the fairest and best approach to the relationship between religion and politics.

2) George P. Smith II (Catholic University of America - Columbus School of Law), Biotechnology, Religion, Modern Science and Law: Shaping or Testing the New Modernity? The Curse of Itching Ears. The abstract states:

This paper assesses how the modern Church of Rome, while maintaining its anchor in faith, is taking a balanced and-indeed-enlightened approach in dealing with complex challenges presented by the "New Biology." This assessment is undertaken specifically within three contentious issues: evolution; condom use where one partner in a marriage is infected with AIDS; and the transplantation of animal organs into humans. These three issues bring into dramatic focus the question of change and immutability in Church doctrine. As well, these areas demonstrate-clearly-a refreshing openness and willingness of the Church to engage in honest dialogue with the laity. The contrasting attitudes of His Holiness Pope John Paul II and His Holiness Pope Benedict XVI regarding the outreach of science and of faith is analyzed and the conclusion reached that an ongoing ethical and compassionate discourse into the vexatious issues of modernity and post modernity is being undertaken within a framework of enlightened reason which underscores the dignity of personhood. And, interestingly, the framework for this discourse is to be found in the work of The Pontifical Academy of Sciences reconstituted by His Holiness Pope Pius XI in 1936. 

3) Arno Tausch (Innsbruck University - Faculty of Political Science and Sociology - Department of Political Science), Muslim Values, Global Values: Empirical Data from the 'World Values Survey'. The abstract states:

This book is based on the quantitative, multivariate analysis of the World Values Survey data from more than 80 countries around the globe on the political and social values of the world's Muslim communities by international comparison.

For the first time, a fully documented and comprehensive world-wide representative analysis of

* Global Muslim perceptions of life
* Global Muslim perceptions on problems of the environment
* Global Muslim attitudes to work
* Global Muslim attitudes on the family
* Global Muslim opinions on politics and society
* Global Muslim opinions on religion and morale
* Global Muslim opinions on national identity
* Global Muslim Sociodemographics

is thus available to the public. By and large, the study comes to the conclusion that global Muslims and also the Muslim communities in Western democracies are value-conservative, family-oriented, but supportive of democracy.

Which perspectives then are available to analyze the facts? The study takes up the idea of "Asabiyya" ("social cohesion"), inherent in classic Arab historiography, first described by Ibn Chaldun (1332 to 1406) in his important work "Muqaddimah".

Is "modernization" without "spiritual values" possible in the long run? Starting from the sophisticated multivariate analysis of the World Values Survey data (factor analysis), it is shown that two factors are decisive in understanding global value change: a continuum of "traditional versus secular", and a continuum "cheating versus active society". Asabiyya is defined then empirically by the residuals from the factor scores of "traditional versus secular", and "cheating versus active society". Asabiyya in the 21st Century, as a way out from the modernization trap of societies, characterized by large-scale social anomaly, is a high secularism combined with a high active society score, thus avoiding the "modernization trap" of an increasingly secular society, which accepts cheating on taxes; accepts government benefits fraud and taking bribes.

According to the empirical analysis of this book, the "active society" of volunteer organization work is the best societal medicine against this kind of value decay, which is so common in countries like France, Brazil, or most of East Central Europe and the former USSR. An active form of religious or non-religious humanism, which provides a noble motivation for such activities as volunteer social services, is a very necessary precondition for social cohesion in the 21st Century.

Our study also constructs various indices of global value change and also performs a factor analysis of global value differences. Without active society, multicultural societies will fail. The study also quantitatively compares European values and paths of secularization, and cautiously argues in favor of the rediscovery of the classic democratic workers' parties agenda of Europe during the pre-war and post-world-war II period in large sections of the Muslim world.

4) Karl S. Coplan (Pace University School of Law), Ideological Plaintiffs, Administrative Lawmaking, Standing and the Petition Clause. The abstract states:

Although Article I of the Constitution vests legislative power in the Congress, the lawmaking process in this country has evolved to involve all three branches. Congress enacts regulatory programs, but delegates to the executive branch the task of formulating and legislating the details of implementation through regulations. Once the executive branch agencies have acted, Article III courts routinely step in to review the consistency of these regulations with congressional mandates. In many cases, especially in the case of controversial regulations, the lawmaking process is not complete until judicial review. Entities burdened by such regulations - so called "regulatory objects" - enjoy presumed standing to challenge the scope of agency regulations. Groups of individuals benefited by such regulations enjoy no such presumption of "standing," rather, their right to challenge depends on their ability to establish specific "injury in fact," and the "redressibility" of that injury through judicial decree.

These "injury in fact" and redressibility requirements are most difficult to establish precisely in the context that underlies the modern regulatory schema; that is, regulation of societal risks such as environmental and consumer risks. These regulations seek to protect the public against harms that may have a low probability of occurrence for any given individual, but pose significant risks for society at large, or even for substantial groups of individual citizens. Courts have wrestled with the concepts of "injury" and "redressibility" in the context of probabilistic harms, and have split on the question of whether individuals, or combinations of individuals, can establish the requisites of justiciability based on low-probability events.

Many, if not most, rulemaking challenges by regulatory beneficiaries are brought by public interest organizations. These organizations usually have memberships ranging from thousands to millions of individuals. These organizational plaintiffs fall into the category of "ideological" plaintiffs - parties who invoke the judicial process to establish and enforce public rights for the benefit of many people, who are not primarily motivated by individual gain. Ideological plaintiffs, litigating everything from religion clause issues to consumers' rights to environmental and health concerns, have had mixed success in establishing justiciability in Article III courts. These organizations have been required by Supreme Court doctrine to rely on the individual interests of their members to establish standing.

The traditional test for representative standing requires an organizational party to demonstrate that it has at least one member who would have standing in their own right. Under this approach, no single member of an organization may be able to show a significant "injury" to herself, even though, probabilistically, serious harm to at least one member of a large organization may be nearly certain. This aggregation of the risk of harm lead a DC Circuit panel to reverse itself, and to recognize organizational standing on the part of the Natural Resources Defense Council based on the likelihood that at least two to four of its members would contract skin cancer from exposure to ultraviolet radiation caused by continued use of ozone depleting chemicals, despite the fact that the individual risk for any single member of NRDC was vanishingly small. In such a case the whole of the "injury in fact" may be greater than the sum of the individual parts, and an organization representing thousands or millions of individuals with strong concerns about a regulatory program may well possess the requisite interest in enforcing statutory norms. Literal application of the representational standing requirements, requiring a specific individual member with standing to sue in their own right, would be problematic for such organizations.

Although barely recognized by the courts, the Constitution contains a provisions specifically meant to ensure the right of individuals to associate and seek remedies from all branches of the government, including the judicial branch. The First Amendment guarantees the "right of the people peaceably to assemble, and to petition the government for a redress of grievances." Like the First Amendment guarantees of speech and freedom of the press, this constitutional provision is designed to ensure public representation and participation in the lawmaking process. Constitutional jurisprudence likewise has evolved to ensure maximum input to the political processes that lead to legislation. This is particularly true in the area of First Amendment jurisprudence, where the Supreme Court has recognized the functional importance of political speech to a representative democracy.

This article argues for an expanded notion of organizational standing and "injury-in-fact" in judicial review of agency lawmaking action, based on the functional values implicit in the First Amendment right to assembly and petition for redress of grievances. Judge-made standing doctrine should recognize the difference between litigation to enforce individual rights, where inquiries into individual "injury in fact" and the relationship between an organization and its individually-injured members may be appropriate, and regulatory review litigation that is the ultimate step in the lawmaking process, where full airing of competing views is essential to the judicial review function and the dangers to the constitutional assignment of functions is at a minimum.

5)  Jack Lee Sammons (Mercer University), Censoring Samba: An Aesthetic Justification for the Protection of Speech, 37 Stetson Law Review --- (2008). The abstract states:

Responding to well known challenges to any attempt to justify any principle for the protection of speech, this Article argues that principled protection of speech is justified because speech, all speech, has as one of its elements a participation in the same self-justifying activity that the aesthetic always is. To demonstrate what he means by "the aesthetic", to show the aesthetic aspect of speech, and to explain why this aspect justifies speech's protection, the Author takes his readers into the "polity of samba," an aesthetic cultural community, in Brazil in the sixties, as it defends its samba speech against the censorship of the "polity of common sense." In doing so, he focuses on the role played by the famous Brazilian composer, Chico Buarque, who, he argues, was the primary voice of the polity of samba. (Links to Buarque's most important musical compositions from this time are provided in footnotes.) From this Brazilian samba experience, and from Buarque, the Author argues, we can learn that expressive speech is always grounded in the ongoing possibility of the aesthetic and is always to be found at the boundaries between the polities in which we live our lives. It is this being at the boundary, and thus capturing our fullness, that makes speech special, that is, distinguishable from our other activities, and justifies the special protection that we offer to it. Showing how surprisingly similar conceptions of speech can be found in the early opinions of Judge Hand and Justice Holmes, the Article goes on to explain how such a justification for speech works in the law. It does so, the Author argues, in a manner similar to the way moral intuitions work in moral decision-making: as non-inferentially justified principles, grounded only in our experience, that operate as prima facie, defeasible, thumbs on the scales in judicial decision-making about speech. The Article then concludes with the Author's appeal to law teachers to nurture a non-instrumental, non-political, samba conception of law, one not reducible to force, as against what he sees as the instrumental and political conception of law lying behind the claims of those who reject any principled protection of speech.

6) Adrian Vermeule (Harvard Law School), The Force of Majority Rule. The abstract states:

This essay attempts to recover a line of argument, developed by James Fitzjames Stephen and Justice Holmes, that describes majority rule as an irresistible force of nature. Majority rule has political and psychological force independent of its intrinsic merits. That force arises from a range of mechanisms, including the threat of majoritarian violence, the simplicity and focal-point character of majority rule, and political envy. Where the force of majority rule is sufficiently powerful, Stephen argues, majority rule is simply a political constraint, whatever its merits from an ideal point of view. Holmes then urges a least-cost principle: where majorities will inevitably get their way, law should at least ensure that they get their way efficiently - in a manner that minimizes total social cost. This principle has implications for the extension of the suffrage, legislative voting rules, delegation to bureaucracies, criminal law, free speech law, and the law and politics of emergency powers. The conclusion argues for an explanatory approach to social choice theory, as opposed to normative social choice, and for a second-best approach to normative social choice, in which the analyst assumes realistic political constraints.

7) Janis L. McDonald (Syracuse University - College of Law), Heroes & Spoilers: The Role of the Media in Unsolved Civil Rights Era Murder Prosecutions, 34 Ohio Northern University Law Review ---. The abstract states:

The author is a co-director of the Syracuse University College of Law Cold Case Justice Initiative consisting of volunteer law students, faculty, investigative reporters and family members dedicated to bringing long delayed justice for individuals murdered by members of the Ku Klux Klan. This article describes the relative roles played by the black press and the mainstream white controlled press in the early days of the civil rights era and in the current efforts to address these unsolved cases. The author discusses the 2007 federal conviction of James Ford Seale, a member of the White Knights of the Ku Klux Klan of Mississippi for the kidnapping leading to the deaths of Henry Hezekiah Dee and Charles Eddie Moore in May, 1964. According to the testimony of a fellow klansman who was given full immunity from prosecution Seale and others kidnapped the two nineteen year old black men, tortured them by whipping them for three hours and then carried them across the Mississippi and drowned them in an old tributory of the river. The article describes the comparative silence by the media about the disappearance of these two men as opposed to the three Freedom Summer civil rights workers, two white and one black, who were murdered by the Klan later that summer. In fact, when the Navy Seal divers were dredging the river searching for the three civil rights workers they found some of the remains of Mr. Dee and Mr. Moore, however, the attention returned to the other murders and almost no attention was paid to the deaths of these two young men. After forty-three years, as a result of the efforts of Mr. Moore's brother, Charles Moore, and a documentary film maker from the Canadian Broadcasting Corporation, David Ridgen, renewed interest in the case by the media led to the prosecution of Seale.

This article identifies some of the powerful ways the media has contributed to reviving unsolved murder investigations and also some of the potential pitfalls of their efforts. Questions of problems leading to a change of venue, the role of "ancient documents", and the use of media exposure as impeachment material are addressed briefly and in the context of the James Ford Seale federal prosecution. As this article goes to press two new events have affected the recent efforts to bring justice to these cold cases. In mid September the United States Court of Appeals for the 5th Circuit reversed the conviction of James Ford Seale based on its retroactive application of a change to the statute of limitations. A decision on a petition for a rehearing en banc is pending. A local prosecution against Seale for murder remains a viable option. Further, the United States Senate, on September 24th, passed the "Emmett Till Unsolved Civil Rights Act" which will allocate ten million dollars a year for the next ten years to the FBI and the Justice Department to focus on investigations and prosecutions of unsolved civil rights era murders that occurred before 1969. In addition two million will be available from the Justice Department to local prosecutors for related murder prosecutions. The Justice Department Civil Rights Service division will receive 1.5 million each year to provide for community outreach in an effort to solve these cases.

JFB