First Amendment Scholarship Update

Here is this week's collection of newly available papers on FIrst Amendment topics:   

1) Martha M. Ertman (University of Maryland Law School), 'They Ain't Whites; They're Mormons': An Illustrated History of Polygamy as Race Treason. The abstract states:

Legal doctrines banning polygamy grew out of nineteenth century Americans' view that Mormons betrayed the nation by engaging in conduct associated with people of color. This article reveals the racial underpinnings of polygamy law by examining cartoons and other antipolygamy rhetoric of the time to demonstrate Sir Henry Maine's famous observation that the move in progressive societies is "from status to contract." It frames antipolygamists' contentions as a visceral defense of racial and sexual status in the face of encroaching contractual thinking. Polygamy, they reasoned, was "natural" for people of color but so "unnatural" for whites as to produce a new, degenerate race, licentious and submissive to despotism. The article suggests that the tension between status and contract, together with anthropologist Edward Said's concept of Orientalism, bridge the seemingly separate issues of Mormon polygamy and racial inferiority. In particular, Orientalism explains how the nation deprived overwhelmingly white Mormons of citizenship rights such as voting on grounds of racial inferiority.

2) Susan Pace Hamill (University of Alabama School of Law), An Argument for Providing Drug Courts in all Alabama Counties Based on Judeo-Christian Ethics, 59 Alabama Law Review---(2008). The abstract states:

A drug court is an alternative process in the criminal justice system for eligible nonviolent drug offenders that focuses on treatment and allows successful defendants to avoid prison time and a criminal record. This article first provides a snap-shot of the availability of drug courts both nationwide and in Alabama and presents two strong arguments supporting the drug court alternative. The first argument summarizes the substantial evidence indicating that the drug court alternative costs taxpayers substantially less money and enhances public safety. The second and even more compelling argument illustrates that the moral principles of Judeo-Christian ethics, which require laws to be compassionate towards the sick and support the reasonable opportunity of each person to reach their potential as well as condemn oppressive laws imposing excessive punishment, compel all Alabamians of faith to insist that political leaders adopt an appropriate plan that implements drug courts on all sixty-seven of the state's counties.

3) Intisar A Rabb (Princeton University), 'We the Jurists': Islamic Constitutionalism in Iraq, 10 Univ. of Pennsylvania Journal of Constitutional Law 527(2008). The abstract states:

This article examines the implications of incorporating Islamic law in a modern democratic constitutional context. The new Iraqi constitution's designation of Islamic law as "a source of law" placed the issue of Islamic law's role in new democracies at the forefront of the debates on "Islamic constitutionalism"-governing structures characterized by written constitutions that incorporate Islamic law. With its incorporation of both Islamic law and democratic/human rights provisions, the Iraqi constitution establishes a scenario where the government must legislate or adjudicate with respect to a set of dual norms. What challenges does the government face in attempts to legislate and adjudicate vis-a-vis an ostensibly religious legal system? Must it delineate a relationship between its traditional three branches and Islamic law's traditional interpreters (the jurists)? This article takes up these questions, positing that the role of Islamic law in an Islamic constitutional regime revolves around issues of interpretation and the institutional relationship between the government and the jurists. Taking the debates about family law reforms as a case study, the article assesses ways in which sentiments about Islamic law play out in discussions of popular sovereignty ("we the people"), juristic input ("we the jurists"), and legal reform. By comparing Iraq to existing models for Islamic constitutionalism, the article shows how the prospects for progressive laws and legal reform in Iraq depend on the form of Islamic constitutionalism adopted. More generally, the article offers insights in the areas of Islamic law and legislation in contemporary contexts of democracy-building, legal reform, and rule-of-law.

4) Laurent Pech (National University of Ireland, Galway - Faculty of Law), US Report. Symposium on 'Constitution and Freedom of Speech' , 22 Annuaire International de Justice Constitutionnelle --- ( 2007). No abstract is available. Downloadable document is in French.

5) Michael Perry (Emory University School of Law), Human Rights as Morality, Human Rights as Law. The abstract states:

There has been growing interest in, and scholarly attention to, issues and questions that arise within the subject matter domain we may call "human rights theory". See, in particular, Amartya Sen, "Elements of a Theory of Human Rights," 32 Philosophy & Public Affairs 315 (2004); James W. Nickel, Making Sense of Human Rights (rev. ed. 2006); Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts (2007); James Griffin, On Human Rights (2008); Nicholas Wolterstorff, Justice: Rights and Wrongs (2008). This essay - a version of which will appear in a multi-authored collection of essays to be published by Oxford University Press in 2009 - is intended as a contribution to human rights theory. These are the principal questions, or sets of questions, I address in the essay:

1. What is the morality of human rights - by which I mean the morality that, according to the International Bill of Human Rights, is the principal warrant for the law of human rights?

2. How does the morality of human rights warrant the law of human rights?

3. Some human-rights-claims are legal claims, but some are moral claims, and some are both. What does a human-rights-claim of the legal sort mean? A human-rights-claim of the moral sort? And when does it make sense to think of a right that only some human beings have - children, for example - as a human right?

4. Is there a plausible secular ground for the morality of human rights?

5. At the end of the proverbial day, what difference does it make - why should we care - if there is no plausible secular ground for the morality of human rights?

6) Bryan Thomas (No affiliation provided),Secular Law and Inscrutable Faith. The abstract states:

Liberals often claim that coercive laws can not be justified on religious grounds. Accordingly, they urge citizens to 'bracket' religious arguments in the public square; they often endorse judicial review, as a mechanism for ensuring compliance with these strictures of public reason. Critics complain that this call to bracket religion is arbitrary and unfair, as all viewpoints - religious and secular alike - rest fundamentally upon articles of faith. I offer a reply. I begin by challenging this view that religious and secular viewpoints are on a par, drawing upon jurisprudence under the Canadian Charter of Rights and Freedoms. In Charter jurisprudence, religious beliefs and practices are singled out for especially generous protection (relative to secular beliefs and practices). The justification for this generosity, I argue, is that religious beliefs are taken (by the courts) to be inscrutable. This inscrutability justifies the accommodation of religious beliefs and practices, but it also justifies the bracketing of religion from deliberations over laws and policies of general application, in the way that political liberalism prescribes. I then consider whether my account offends the equality rights of religious believers, or the Charter's commitment to multiculturalism.

7) Lawrence Rosenthal (Chapman University - School of Law ), The Emerging First Amendment Law of Managerial Prerogative, 77 Fordham L. Rev. 33( 2008), The abstract states:

In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney's office, were unprotected by the First Amendment because his expressions were made pursuant to his duties.... The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.

This article rejects the scholarly consensus on Garcetti. The critics' claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived, I will argue, because Garcetti is not properly understood as a whistleblower case. Ceballos did not take his case against the district attorney's office to the public; therefore his speech could not have advanced the public's understanding and evaluation of the district attorney's performance. Moreover, although the Court's opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law. Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment's commitment to free speech as a means of achieving political accountability - an understanding with powerful roots in First Amendment jurisprudence. The Court's opinion contains a sketch - concededly partial and somewhat obscure - of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions. This article endeavors to fill out the sketch.

The article begins with an exploration of Garcetti. Part I demonstrates that Garcetti essentially abandons the Court's prior approach to the First Amendment rights of public employees by embracing a new inquiry that focuses on an identification of the scope of legitimate managerial prerogatives. Managerial prerogative, in turn, ensures that political officials have effective control over the functioning of public offices - and therefore are fairly held politically accountable for the operations of those offices. Part I concludes with a consideration of the future of public employee speech litigation in light of the emerging law of managerial prerogative.

Part II considers the implications of this new law of managerial prerogative in another employment-related context - laws forbidding discriminatory harassment. There has been a powerful current of scholarly argument that the First Amendment places substantial limitations on the power of government to forbid sexually or racially harassing speech. At least four Members of the United States Supreme Court have expressed significant support for this view. Part II demonstrates that under the concept of managerial prerogative embraced by Garcetti, governmental power to forbid harassing speech in the workplace is largely unconstrained by the First Amendment.

In Part III, the article places Garcetti within the context of a broader trend in recent First Amendment jurisprudence. Part III sketches the emerging doctrinal framework of this new First Amendment law of managerial prerogative and then, to illustrate the character of emerging doctrine, applies this framework to institutions of higher education and the concept of academic freedom - an issue noted but set aside in Garcetti. Part III argues that the emerging First Amendment law of managerial prerogative permits public universities to regulate academic speech in a manner that is consistent with scholarly norms as a means of achieving legitimate institutional objectives.

8) Lisa P. Ramsey (University of San Diego School of Law), Increasing First Amendment Scrutiny of Trademark Law, 61 SMU L. Rev. 381         (2008).  The abstract states:

Trademarks consist of language. Trademark law regulates certain uses of trademarked language to communicate information or ideas, yet few courts subject trademark law to First Amendment scrutiny. This Article argues that more courts should. Not every infringing use of a trademark is misleading commercial speech. The Supreme Court has struck down other nonmisleading commercial speech regulations using intermediate constitutional scrutiny. Moreover, the Court's First Amendment jurisprudence dictates that content-based trademark laws regulating noncommercial speech should be subject to strict scrutiny analysis. This Article provides a detailed framework for understanding how trademark law can raise serious First Amendment concerns and sets forth the options for courts who acknowledge this conflict. Most courts protect speech by narrowly construing trademark claims and broadly interpreting defenses. This doctrinal approach protects expression in individual cases, but protected speech is still harmed by trademark law in the real world. It is often difficult to predict the outcome of trademark law's multi-factor balancing tests. Those who cannot afford to litigate will self-censor rather than fight for their right of free expression. Trademark law will better serve First Amendment interests if it contains more speech-protective trademark rules or categorical safe harbors for certain uses of trademarks. Among other benefits, categorical rules create more predictability and make it easier for courts to dispose of frivolous trademark disputes early. Finally, when trademark laws suppress or chill protected expression, courts should not hesitate to apply First Amendment scrutiny and find that law unconstitutional.

9) Luke M. Milligan (University of Louisville School of Law), Rethinking Press Rights of Equal Access, 66 Washington and Lee Law Review ---(2008). The abstract states:

The prevailing approach to First Amendment equal-access litigation, turning on the "general inclusivity" of government access, is deeply flawed. The standard has proved to be, in the end, unduly formalistic, hopelessly vague, and, perhaps most importantly, theoretically incompatible with the Supreme Court's emerging view that access is a form of government subsidy.

This paper calls on the courts to abandon their reliance on inclusiveness, and, in its place, tailor the definition of "access" to include only those government acts conducted "pursuant to official duties." The resulting doctrine would be one worthy of the federal courts - durable, coherent, and duly respectful of the traditional relations between public officials and the press.

10) Erwin Chemerinsky (University of California, Irvine Law School),  Injunction in Defamation Cases, 57 Syracuse L. Rev. 157(2006-2007). The abstract states: 

Is an injunction a permissible remedy in a defamation case? The traditional answer is that equity will not enjoin a defamation, but an increasing number of courts have imposed injunctions in defamation actions. The issue was presented to the United States Supreme Court in Tory v. Cochran, but ultimately, was not decided. The plaintiff in the suit, renowned attorney Johnnie Cochran, died a week after oral argument and the Supreme Court resolved the case on narrow grounds without resolving the question presented as to whether injunctions are permissible in defamation cases. The issue is now pending before the California Supreme Court in Balboa Island Village Inn v. Lemen.

The issue is sure to recur across the country. Individuals defamed in a blog or on the internet are likely to turn to the courts and seek injunctions. Perhaps damages will be unavailable as the defendant will not have assets or maybe the plaintiff will just want the false, injurious speech to stop. Can a court issue an injunction?

That is the focus of this article. In addressing this question, the first part of the article recounts the facts of Tory to provide a context for analyzing the issue. The second part of the article explains why injunctions never should be allowed as a remedy in defamation cases.

JFB