First Amendment Law Prof Blog

First Amendment Scholarship Update

Here is this  week's list of newly available scholarship on First Amendment subjects:

1)Craig A. Stern (Regent University School of Law), Another Sign from Hein: Does the Generalized Grievance Fail a Constitutional or a Prudential Test of Federal Standing to Sue?, 12 Lewis & Clark Law Review --- (2008). The abstract states:

The Supreme Court seems to have shuttled the federal rule against hearing generalized grievances back and forth between a home in the Constitution and a home in the Court's prudence. Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007), stamped the latest forwarding address.

Where the generalized grievance finds its home orients the whole map to justiciability. The much controverted question of the sort of injury required for standing to sue may find answers in the location of the generalized grievance test. The prudential tests of standing focus upon the legal theory a party argues. The constitutional test of standing focuses upon the harm a party suffers. If the generalized grievance test retains its focus upon legal theory even as the test is drawn into constitutional standing doctrine, the injury-in-fact of that doctrine moves from simple harm towards the old invasion-of-legal-interest reminiscent of standing as a test of merits and not of justiciability.

This Article tracks the generalized grievance, exploring along the way the whole terrain of standing, ripeness, and mootness. (And in so doing, the Article finds that constitutional standing has more to do with the meaning of "judicial Power" than with the meaning of "Cases" and "Controversies.")

2)Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School), Indeterminacy and the Establishment Clause, forthcoming in Constitutional Commentary(2009). The abstract states:

Prepared for a symposium on Kent Greenawalt, 2 Religion and the Constitution: Establishment and Fairness (Princeton, 2008), this essay responds to Professor Greenawalt's criticism of my argument in The Rhetoric of Church and State (Duke, 1995), that Establishment Clause doctrine is the incoherent residue of conflicting rhetorical discourses of religious communitarianism and secular individualism. Not only are the Supreme Court's Establishment Clause decisions inconsistent at the margins, but there is no identifiable core meaning that can account for these decisions. The essay concludes that, contra Greenawalt, the thesis of conflicting rhetorical discourses remains the most powerful explanation of the Court's doctrine in this area.

3)Raphael Cohen-Almagor (University of Hull), The Limits of Objective Reporting, 7 Journal of Language and Politics 138 (2008). The abstract states:

The aim of this study is to scrutinize the assumption that objective reporting is good reporting, is ethical reporting. I do this by reflecting on different dimensions that are associated with the concept of objectivity: (1) accuracy; (2) truthfulness; (3) fairness and balance, and (4) moral neutrality. It is asserted that in many cases journalists are not objective in their reporting either because they consciously prefer not to be or because they are being manipulated by their sources. I close by asserting that the values of not harming others and respecting others should play a prominent part in the considerations of journalists. These are basic ethical standards that sometimes require normative reporting. Consequently, morally neutral coverage of hate speech and racism is a bad idea. It is a false and wrong conception. Subjectivity is preferable to objectivity when the media cover illiberal and anti-democratic phenomena

4)Martin R. West (Brown University) and Ludger Woessmann (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. 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.

5)Byambajav(Hokkaido University), Faith Matters in Development Work? A Case Study of Christian Faith Based NGOs in Mongolia. The abstract states:

The aim of this paper is to analyze how faith or religion matters in the development work of faith based NGOs, using Christian faith based NGOs in Mongolia as a case. The issue of the relationship between faith and development promoting organizations is a recent agenda of the disciplines studying development issues. By examining the academic works which were done in the last decade as an analytical source, the paper attempts to explain a case of Christian faith based NGOs operating in Mongolia, a landlocked, mainly Buddhist, and developing county in East Asia. An area of mutual influence of faith and development works is a field where faith based development NGOs with international operations work, particularly, the organizations operating in the countries with different religious traditions. With their transnational networks, faith based obligations towards others, and a close communication with the poor, but depending on the development views, passive, active, and persuasive type of organizations consider the ways of development works differently, and do it so.

JFB

First Amendment Scholarship Update

Here is this week's collection of scholarship on First Amendment topics:

1) Beverley Baines (Queen's University - Faculty of Law), Must Feminists Identify as Secular Citizens? Lessons from Ontario, forthcoming in Linda C McClain and Joanna L. Grossman, eds.,
GENDER EQUALITY: DIMENSIONS OF WOMEN'S EQUAL CITIZENSHIP(Cambridge University Press, 2009). The abstract states:

Must feminists identify as secular citizens? Jurgen Habermas would undoubtedly respond affirmatively. Habermas conceptualizes liberal states as post-secular, peopled by citizens who are either religious or secular. When his theory of the post-secular state is applied to the Canadian controversy about religious arbitration of family matters, it provides a framework for identifying feminists as secular citizens. Although this controversy was resolved in favour of feminist secular citizens, it is not over. Religious citizens now threaten to bring a constitutional challenge. The contest would involve a confrontation between two rights guaranteed in the Canadian Charter of Rights and Freedoms: religious freedom and sex equality. However, this contest might be complicated by the emergence of a new group of feminists claiming to value both religious freedom and sex equality. Since they refuse to choose between these values, their claim resembles those of intersectional feminists who refuse to choose between their race and/or sexuality and their feminism. Just as the Charter is unlikely to recognize and protect intersectional claims, so too is Habermas unable to conceptualize the post-secularism of citizens who identify as both religious and feminist. Thus, we will have to wait for law and theory to catch up to life.

2) Jack Lee Sammons (Mercer University School of Law),  A Rhetorician's View of Religious Speech in Civic Argument, 32 Seattle University Law Review  367 (2008). The abstract states:

This paper examines the role of religious speech in democratic civic argument by challenging liberal methods of addressing the issue of religious speech with a more rhetorical view of civic argument. The primary issue, from this perspective, is whether or not rhetoric's own constitutive restraints are adequate to address the risks of religious speech. After a brief analysis of liberal methods, the rhetorical nature of civic argument is described, and both the risks of religious speech and the constitutive restraints are examined.

3) Jay C. Hartzell (University of Texas at Austin - Department of Finance), Christopher A. Parsons (McGill University), and and David Yermack (New York University - Stern School of Business), Is a Higher Calling Enough? Incentive Compensation in the Church . The abstract states:

We study the compensation and productivity of more than 2,000 Methodist ministers in a 43-year panel data set. The church appears to use pay-for-performance incentives for its clergy, as their compensation follows a sharing rule by which pastors receive approximately 3 percent of the incremental revenue from membership increases. The elasticity between ministers' pay and parish size is similar to the firm size elasticity of compensation for public company CEOs. Among a range of possible performance measures, those with the greatest informativeness about pastoral effort are linked most closely to compensation.
We study the compensation and productivity of more than 2,000 Methodist ministers in a 43-year panel data set. The church appears to use pay-for-performance incentives for its clergy, as their compensation follows a sharing rule by which pastors receive approximately 3 percent of the incremental revenue from membership increases. The elasticity between ministers' pay and parish size is similar to the firm size elasticity of compensation for public company CEOs. Among a range of possible performance measures, those with the greatest informativeness about pastoral effort are linked most closely to compensation.

4) Richard W. Garnett (Notre Dame Law School), 'Excluding Religion': A Response, forthcoming in University of Pennsylvania Law Review PENNUMBRA. The abstract states:

In a thorough and thoughtful article, Excluding Religion, Prof. Nelson Tebbe asks "whether the government may select religious entities for exclusion from its support programs?" and concludes that, sometimes, it may. "The government," he contends, "need not remain neutral toward religion in its support programs[.]"

In this short response to Tebbe's paper, I first suggest that the reasons Tebbe offers for such exclusion - including "promoting equal citizenship for members of minority faiths . . . , fostering community concord, [and] respecting taxpayers' freedom of conscience", are not particularly strong. Next, I turn to the various "limits" that Tebbe imposes on his permissible-exclusion claim, and attempt to show that, in fact, these limits fit uneasily with the claim they constrain. The aim of this attempt is not to cheer state efforts to - in Tebbe's words - "shape the content of citizens' beliefs through government speech and other means," but instead to warn that the inevitability of such efforts poses a real threat to religious freedom, one that is not likely to be repelled with assurances that the state must act nonpreferentially, or must act with a secular purpose, or must not make theological judgments. If we believe, as Tebbe and I do, that there should be limits on the power, and on the ambition, of governments when it comes to the content of citizens' commitments and the objects of their loyalty, it is essential that we think hard not only about the location of these limits, but also about the reasons for them and the worth of what it is that they protect.

5) Thomas Berg (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law), Religious Organizational Freedom and Conditions on Government Benefits, forthcoming in Georgetown Journal of Law & Public Policy( 2009). The abstract states:

More and more legal disputes about church and state in the coming years will involve conditions on government benefits - social services grants, educational vouchers, tax exemptions - that conflict with the tenets or practices of religious organizations that would otherwise be eligible for the benefits. The prospects for constitutional challenges to such conditions are uncertain: the Supreme Court has recognized that conditions on benefits can intrude on constitutionally protected decisions, but recently it has more and more upheld conditions on the ground that government is not penalizing an activity but is simply refusing to subsidize it. This Article makes the case that religious organizations ought to be able to challenge, in a number of important situations, conditions that exclude them from generally available benefits because of their religious character or practices important to their religious identity. Such exclusions implicate two important Religion Clause values: they pressure the organization to forego its choices in religious matters, and they undercut the ideal, based in church-state separation, of a religious sector operating without government interference or favoritism. The best understanding of church-state separation, I argue, calls not for excluding religious schools or social services from generally available aid, but for allowing them to receive aid for the services they provide without pressuring them to change their religious character. Conditions on benefits can place presumptively impermissible burdens on organizations' religious choices, and they can intrude on core organizational decisions protected by a proper understanding of church-state separation. I apply these arguments to challenge three actual or proposed conditions on benefits: (1) rules that bar government-funded education or social-service programs from considering religion in hiring staff; (2) restrictions on a tax-exempt organization's intervention in political campaigns to the extent they bar a clergy member from expressing moral-political views in her capacity as religious leaders; and (3) proposals, advanced by some commentators, to deny tax exemptions or funding to organizations that restrict clergy positions based on sex or other disapproved grounds.

6) Robert K. Vischer (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law), The Best Interests of the Child: Modern Lessons from the Christian Traditions, published in  P. Brennan, ed.,
THE VOCATION OF THE CHILD( 2008).  The abstract states:

The trend toward an individualistic conception of children's interests has exacerbated the cultural fault lines between secularists and religious traditionalists, as the latter strongly associate state incursions into the family as direct threats to the maintenance of religious identity across generations. Recognizing a general religious resistance to the emerging legal conception of the child is a useful first step in placing children's rights in a broader socio-political context, but the articulation is unhelpfully vague when it comes to facilitating a more productive conversation on the legal status of the child among a citizenry whose understandings of the child have been shaped in significant part by Christianity. The vagueness emanates from the failure to discern that Christians do not engage the law's treatment of the child from a common starting point. Christians reject modern liberalism's conception of the child's best interests from a variety of theological premises regarding childhood, and these premises have diverse implications for the roles of individual autonomy, parental authority, and community identity in the realization of the child's best interests.

Accordingly, this chapter begins to trace the contours of the three primary conceptions of the child in Christian thought and their relationships to the legal understanding of the child emerging in modern liberalism. Because the liberal conception of the child is framed in terms of the child's secularly accessible best interests, the chapter outlines the relationship by articulating the prevailing Christian understandings of the foundational element of the child's best interests - i.e., the child's salvation - in the sacramental, conversional, and covenantal traditions. And to ensure a manageable scope, the inquiry will focus on the development of baptism doctrine seen in the work of a leading figure within each tradition. The secular side of the inquiry is brought into focus by analyzing the presumptions about children underlying two archetypes of modern liberal thought in this area: first, the United Nations Convention on the Rights of Children; and second, persistent calls by political and legal theorists to impose more stringent state limitations on parental discretion in shaping the education of their children. Taken together, these examples reveal that while Christians' resistance to modern liberalism's conception of the child is broad and deeply rooted, the scope, substance and prophetic quality of the resistance are not uniform within Christianity.

7) Jordan Blair Woods, Don't Tap, Don't Stare, and Keep Your Hands to Yourself! Critiquing the Ethics, Legality and Efficacy of Gay Sting Operations in Public Restrooms, forthcoming in Journal of Gender, Race and Justice(2009). The abstract states:

This Article provides the first comprehensive critique of gay sting operations in public restrooms by focusing on ethical issues pertaining to their execution and design and forming hypotheses about their legality and efficacy. In terms of ethics, I argue that the selective execution of gay sting operations against men who engage in sexual activity with other men can be explained by heterosexist cultural norms that legitimize heterosexual sex acts and debase same-sex sexual activity. In terms of legality, I contend that gay sting operations are currently being executed in ways that violate free speech guarantees of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. I also critique the accessibility and effectiveness of the primary legal defense available to male victims of illegitimate gay sting operations: the entrapment defense. Finally, in terms of efficacy, I argue that gay sting operations are inefficient uses of police resources. I contend that the resources spent on gay sting operations would be better served preventing more dangerous and common acts of public violence. This concern is especially salient in light of recent post-9/11 domestic security demands that have imposed significant budgetary constraints on state and local law enforcement.

8) Lucinda Jesson (Health Law Institute, Hamline University School of Law) and Myron L. Frans (Faegre & Benson LLP),  What Qualifies as a Public Charity? Minnesota Enters the National Debate, William Mitchell Journal of Law and Practice( 2008). The abstract states:

Set against the national backdrop of increased scrutiny of nonprofit governance and community benefit, this article examines two new Minnesota Supreme Court decisions which address a subset of tax exempt nonprofits considered "purely public charities" and the benefits that accrue to the community in lieu of foregone tax revenue to the federal, state, and local governments. Through the examination of Under the Rainbow Child Care Center, Inc. v. County of Goodhue , the authors conclude that the Minnesota Supreme Court changed the landscape for public charities that charge for their services. Today, the fundamental definition of a charity in Minnesota is not the nature of what is provided but whether what is provided is a gift. This shift in the law leaves many questions which explored by the authors, only a few of which are answered in the second case, Afton Historical Society Press v. County of Washington. In Afton, the Court held that incidental commercial undertaking by institutions does not erode their status as a pure public charity; in other words, charities can engage in commercial activities so long as they are incidental to the mission.

In conclusion, the authors outline considerations for Boards of Directors of public charities to review the provision of benefits offered by their organizations in context of the standards set by the Minnesota Supreme Court. These include assessing the level of goods or services provided free or at discounted rates; making the charity policy of the organization public; tracking bad debt levels and collection policies that meet guidelines; cataloging donations and tabulating the value of volunteer work; and accounting for negative returns and commercial income.

JFB

The Internet: Anonymity and Privacy

The University of Chicago faculty blog offers a podcast of a recent lecture by Dean Saul Levmore on the Internet ,anonymity and the application of First Amendment principles.  A summary of Levmore's remarks is also provided. 

The Harvard Law Record provides an interesting summary of a recent talk by GWU law professor Orin Kerr on the application of the Fourth Amendment principles, particularly the third party doctrine, to online communications data. Kerr will have an article on this subject in a forthcoming edition of the Michigan Law Review.

JFB

As MySpace Suicide Trial Begins, Drew Prosecution Continues to Draw Criticism

As the Lori Drew trial gets underway begins in LA, Wired provides coverage of voir dire process and the announced witness list.  On Concurring Opinions, Daniel Solove offers critical commentary on the prosecution’s use of the Computer Fraud and Abuse Act.

JFB 

Colorado Governor's Day of Prayer Proclamations Challenged

The Religion Clause Blog reports that the Freedom from Religion Foundation has filed suit against Colorado Governor Jim Ritter, Jr., seeking to end the Governor's issuance of Day of Prayer proclamations. The complaint alleges that the proclamations violate the Religious Freedom Clause of Colorado Constitution. On a related note in a post on the Washington Post/Newsweek On Faith blog, J. Brent Walker, Executive Director of the Baptist Joint Commitee, urges an end to the practice of U.S. Presidents issuing declarations of National Days of Prayer and Thanksgiving.

JFB

Michigan Firefighters Awarded Punitive Damages for Violation of First Amendment Rights

As reported by the Detroit Free Press, a federal jury in that city awarded four Macomb County firefighters more than $500,000 in punitive damages after concluding that department supervisors had violated the firefighters’ First Amendment rights. The supervisors were found to have falsely accused the firefighters of misconduct in retaliation for their circulation of a flyer critical of department management’s failure to address concerns about response times, training and staffing levels.

JFB

First Amendment Scholarship Update

Here is this week's collection of recently released scholarship on First Amendment issues: 

1)Perry Dane (Rutgers School of Law – Camden) A Holy Secular Institution, forthcoming in Emory Law Journal.The abstract states:

Religious arguments have figured on both sides of the debate over same-sex marriage. Some supporters have insisted, however, that, as long as the question at hand is limited to civil marriage, consideration of the religious dimension of marriage is just irrelevant. Thus, the Massachusetts high court, in its Goodridge opinion, wrote: "In Massachusetts, civil marriage is ... precisely what its name implies: a wholly secular institution."

American civil marriage is, to be sure, a secular institution. But the claim that it is a "wholly secular institution" suggests that religious arguments about civil marriage are just confused, guilty of a category mistake.

This article examines the notion that civil marriage is a "wholly secular institution." It concludes that the "secular" and "religious" meanings and institutions of marriage are so intermeshed in our history, legal and religious imagination, and doctrine that trying to wall off "civil marriage" from religious considerations is neither possible nor desirable. The idea of "marriage" is a piece of intellectual and cultural "capital" common to both church and state, and changes in the meaning of that idea would have both secular and religious implications. Moreover, the institutions of "civil" and "religious" marriage are not as easily divisible as many believe. Religious believers are legitimate stakeholders in any debate over the meaning of civil marriage.

All this is not to suggest that religious objectors should have a veto on the recognition of same-sex marriage in civil law. Indeed, this article does not reach any bottom-line conclusion on the marriage controversy. The intermeshing of the secular and religious dimensions of marriage does have practical consequences, which the article discusses. But those consequences cut both ways, in the manner of interlocking opposites. This article's overriding goal is to illuminate the playing field, not to score points for one side or the other.

2) Deepak K. Malhotra (Harvard Business School), (When) are Religious People Nicer? Religious Salience and the 'Sunday Effect' on Pro-Social Behavior. The abstract states:

Prior research has found mixed evidence for the long-theorized link between religiosity and pro-social behavior. To help overcome this divergence, we hypothesize that pro-social behavior is linked not to religiosity per se, but rather to the salience of religion and religious norms. We report on a field experiment that examines when auction participants will respond to an appeal to continue bidding for secular charitable causes. The results reveal that religious individuals are more likely than non-religious individuals to respond to an appeal for charity only on days that they visit their place of worship; on other days of the week, religiosity has no effect. Notably, the result persists after controlling for a host of factors that may influence bidding, but disappears when the appeal for charity is replaced by an appeal to bid for other reasons. Implications for the link between religion and pro-social behavior are discussed.

3) Russell Sandberg and Norman Doe , The Strange Death of Blasphemy, 71 Modern Law Review 971(2008). The abstract states:

Recent years have witnessed a considerable growth in legislation and litigation concerning religion. This article examines the implications of the latest change, namely the abolition of the offences of blasphemy and blasphemous libel by section 79 of the Criminal Justice and Immigration Act 2008. First, the article provides the context by examining what has been lost, analysing the ambit of the offence, focussing on litigation in the twentieth century both in domestic courts and at the European Court of Human Rights. Second, the article seeks to explore why blasphemy has been abolished now, scrutinizing five developments that led to the abolition. The article concludes by examining the extent to which the criminal law continues to protect religious beliefs and believers, contending that while the body of the blasphemy laws is dead, its soul lives on in a plethora of other criminal laws and, more problematically, in non-legal means of control.

4) Giorgio Resta (Università degli Studi di Bari, Law Faculty), Trying Cases in the Media: A Comparative Overview ,forthcoming in Law and Contemporary Problems. The abstract states:

Foreigners to the United States are usually struck by the harshness of its conflicts between justice and the mass media. If it is undeniable that the tension between a sensa-tionalist, commercially motivated press and fair-trial rights in the United States has reached a degree un-matched in the rest of the world, it would be na¿ve to look at this matter and the problems involved as only American legal curiosities. A simple glance at the most recent books and international symposia on this topic shows that similar questions are discussed in almost every jurisdiction and cannot be automatically linked to the peculiar framework of the American legal process.

This article will offer some insights on the issue of court-related speech restraints from the point of view of comparative law. Part I will introduce the subject. Part II will provide a general analytical frame-work, isolating and discussing three basic models of regulation. I will argue that the leading conceptual di-chotomy of "free press versus fair trial," as a product of thinking in terms of the English and U.S. models, is culturally biased and reflects the typical common-law perception of the interests at stake in the relationship between justice and the media. Part III will focus on some selected Continental European experiences, usually disregarded by the mainstream literature on the subject. The principle techniques employed for restricting media freedom to cover judicial proceedings will be analyzed to show that protecting an impartial administration of jus-tice should not be the only rationale for interferences with freedom of expression.

5) Alexis Snyder (Pennsylvania State University), Comment - Damned If You Don't . . . Damned If You Do? Creating Effective, Constitutionally-Permissible University Sexual Harassment Policies , forthcoming in Penn. St. L. Rev. (2009). The abstract states:

The Third Circuit Court of Appeals recently issued its opinion in the case of DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008). The Court held that Temple University's Student Code of Conduct and Policy on Sexual Harassment were facially unconstitutional because they were overly broad and prohibited speech which is protected by the First Amendment.

In response to the DeJohn decision, colleges and universities within the Third Circuit will be required to modify, and perhaps severely limit, their own student harassment policies. This comment will attempt to determine, based on the language in the DeJohn opinion and in several other applicable opinions, how narrow those policies must be to withstand Constitutional scrutiny.

This Comment will begin by summarizing the important case law regarding limitations on student speech in educational settings. The Comment will next analyze the language of the DeJohn opinion with the goal of understanding what proscriptions are now permissible and impermissible in campus harassment policies. The Comment will then note several questions which the DeJohn court did not resolve. Finally, the Comment will propose a sample Sexual Harassment Policy which is likely, based on the DeJohn opinion, to withstand First Amendment scrutiny. The Comment will predict that although many university harassment policies will have to be more narrowly tailored than they were before DeJohn, they will still be able to meet the institutions' need to maintain non-hostile learning environments.

6) Anne Twomey (University of Sydney - Faculty of Law ),The Reform of Political Donations, Expenditure and Funding. The abstract states:

This paper considers the constitutional and practical constraints upon reforming electoral campaign funding in Australia. It addresses the banning or capping of political donations, the limiting of campaign expenditure and the expansion of public funding of political parties. In doing so, it draws on the experience of the United States, Canada, the United Kingdom, New Zealand and Germany. It examines the constraints imposed by the freedom of political communication implied from the Australian Constitution and the application of any constitutional principle of equality as well as the difficulty for a State in reforming campaign financing in a manner that does not unconstitutionally affect other jurisdictions within the federation. It also addresses the practical problems involved in defining political donations and expenditure, preventing avoidance and establishing a system that is effective and administratively workable.

7) Samuel Issacharoff (New York University School of Law), The Constitutional Logic of Campaign Finance Regulation, 36 Pepperdine L. Rev. --- ( 2008). The abstract states:

This essay explores the potential implications of the creation of a distinct "election period" through the BCRA reforms to campaign finance law. The idea of a separate set of rights of expression during the immediate pre-election period is a relative newcomer to American law, but is a central feature of campaign finance law in other countries. The creation of a defined election period is the underpinning of strong restrictions on political speech in countries such as Britain, and is currently the source of tension under European law. Recent decisions of the European Court of Human Rights, most notably in Bowman v. United Kingdom, highlight the fundamental divide between animating conceptions of liberty and equality in the funding of the political process. By mildly introducing the idea of a separate regulatory sphere for a temporally-defined election period, BCRA intriguingly invites a reexamination of the core constitutional logic of American campaign finance law.

8) Paul Horwitz (University of Alabama School of Law), The Philosopher's Brief, forthcoming in Constitutional Commentary. The abstract states:

This is a short commentary on Kent Greenawalt's recent major contribution to law and religion, the two-volume work Religion and the Constitution, stemming from a roundtable discussion of his work at Notre Dame Law School.

This commentary makes two arguments about Religion and the Constitution. First, it questions whether the "bottom-up" approach that Greenawalt advocates for law and religion questions can succeed absent an explicit theory of the Religion Clauses. Greenawalt proceeds in the careful fashion of a legal philosopher, setting out a range of values that underlie the Religion Clauses and offering a sensitive case-by-case examination of various Religion Clause issues. It is a philosopher's brief for the Religion Clauses, as it were. But it lacks a clear philosophy: it does not ultimately tell us how to rank and reconcile competing Religion Clauses values. Such a philosophy may, in fact, ultimately be unattainable. But without it, we are left without clear standards for evaluating the "reasonableness" of Greenawalt's conclusions in particular cases.

Second, it argues that Greenawalt's work may be insufficiently attentive to the institutional nature of religious institutions and their role in the social and constitutional constellation. An alternative "bottom-up" method, rather than attempting to reconcile abstract Religion Clause values, might instead proceed by considering the role, practices, and capacity for self-regulation of various religious entities at an institutional level, and considering the legal implications of such an approach.

9) Sylvie Bacquet (University of Westminister school of Law), School Uniforms, Religious Symbols and The Human Rights Act 1998: The 'Purity Ring' Case , Education Law Journal(2008). The abstract states:

This article comments on the decision of the High Court in R (on the application of Playfoot) v Governing Body of Millais School (The 'purity ring' case) where the Court was asked to rule on whether the schools' governing body decision not to allow Lydia Playfoot to wear a silver ring as a symbol of her commitment to celibacy until marriage constituted a violation of articles 9 (freedom of thought, conscience and religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR). The case raises important issues in relation to religious freedom, schools and their duties under the Human Rights Act (HRA). This article seeks to highlight the extent to which the new legislation has led schools to become increasingly involved in religious matters and discusses some of the problems that may be associated with this approach.

10) Timo Boppart (University of Zurich - Chair of Public Finance and Macroeconomics) et al , Qualifying Religion: The Role of Plural Identities for Educational Production The abstract states:

This paper examines the role of religious denomination for human capital formation. We employ a unique data set which covers, inter alia, information on numerous measures of school inputs in 169 Swiss districts for the years 1871/72, 1881/82 and 1894/95, marks from pedagogical examinations of conscripts (1875-1903), and results from political referenda to capture conservative or progressive values in addition to the cultural characteristics language and religion. Catholic districts show on average significantly lower educational performance than Protestant districts. However, accounting for other sociocultural characteristics qualifies the role of religion for educational production. The evidence suggests that Catholicism is harmful only in a conservative milieu. We also exploit information on absenteeism of pupils from school to separate provision of schooling from use of schooling.

11) Pablo Branas-Garza (University of Granada - Departamento de Teoria e Historia Económica) et al, Unravelling Secularization: An International Study . The abstract states:

The current study examines individuals who were raised in a certain religion and at some stage of their life left it. Currently, they define their religious affiliation as  no religion . A battery of explanatory variables (country-specific ones, personal attributes and marriage variables) was employed to test for the determinants of this decision. It was found that the tendency of individuals to leave their religion is strongly correlated with the degree of strictness of their country and with their spouse's religious characteristics. Moreover, personal socio-demographic features seem to be less relevant.

JFB

Issues and Implications: The Summum Oral Argument

We are pleased to offer the following commentary on this week's oral argument in Pleasant Grove City v. Summum from guest blogger Professor Mary Jean Dolan of John Marshall Law School, author of the forthcoming article in Catholic University Law Review, Why Donated Monuments are Government Speech: The Hard Case of Pleasant Grove City v. Summum.

*****

Wednesday, the Supreme Court heard oral arguments in Pleasant Grove City v. Summum (see Helen Norton’s guest blog post (10/31/08)).  The Tenth Circuit held that, once a city displays any privately-donated monuments in a public park, public forum “strict scrutiny” analysis applies, so that most all future monument decisions must be content-neutral.  The City, asserting a government speech defense, appealed from an injunction requiring it to erect in Pioneer Park the non-resident Summum’s proffered monument to its religion’s “Seven Aphorisms.”  What makes this a headline case is not law professors’ anticipation of the Supreme Court’s next statement on the government speech doctrine (its first involving local government and first not involving a government spending program), but that the Park contains, along with many historical artifacts, one of the Eagle’s lightning-rod Ten Commandments monuments.  I wrote an amicus brief for the International Municipal Attorneys’ Association, surveying its membership and documenting the typical legislative control of donated monument decisions and how citizens hold government accountable.  Watching the very lively, frequently entertaining argument inspired me to offer a few comments here.

Governments at all levels are concerned, not about defending display of the Ten Commandments, but about what this decision will do to their parks (which are full of donated monuments) and their ability to use monuments to memorialize and to showcase local identity.  (While it did not come out at argument, the notorious Fred Phelps already has asked several cities in the Tenth Circuit to display his hate speech monument condemning gay student Matthew Shepherd.)  Much of the argument, though, focused on the Ten Commandments, from the very first question.  Chief Justice Roberts:  “Mr. Sekulow, you’re really just picking your poison, aren’t you?  I mean, the more you say that the monument is government speech to get out of the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause. . . .” (Tr. p. 4).  Petitioner’s Counsel’s first line of defense was that the Establishment Clause was not part of this case, and the facts mirror those in Van Orden.

Initially, Justices Stevens, Kennedy and Souter expressed concern that a government could reject a monument based on disagreement with its message, relying on the fact of ownership.  “At the point they make the decision, they don’t own anything.”  (J. Souter, Tr. p. 20).  Counsel for the United States, Daryl Joseffer, responding to Justice Stevens’ hypothetical (Tr. p.23), stated that under the government speech doctrine, the U.S. not only could reject a Viet Cong monument, but also could leave off the Vietnam War Memorial the names of homosexual soldiers, noting briefly that the Fifth/Fourteenth Amendments might apply (Tr. p.24).  Justice Breyer disagreed with the “absolute” application of “subcategories”; “Why can’t we. . .ask the question. . .is the restriction proportionate to a legitimate objective?”  (Tr. p.24)

Almost every justice seemed to reject the public forum analogy here.  Justice Kennedy called the case an example of “the tyranny of labels.”  Just because a park is a public forum for parades and protests, he reasoned, to then say, “well, it’s a public forum for something that will last for 30 years for which there is only limited space.  It just doesn’t make common sense.”  (Tr. p.38)  Justice Alito called the application of forum analysis to “something like the Washington Monument. . . ridiculous.” (Tr. p.27) 

Summum’s counsel, Pamela Harris, was stuck with the unappealing argument that the Tenth Circuit leaves cities with three alternatives – two unappealing and one deemed trivial:  (1) closing down the forum to privately-donated monuments (which seemed to highlight that monuments are not really a “public forum” (Tr. p.38), and also likely requires removing existing monuments en masse); (2) placing a content-neutral limit on the number of monuments allowed (Tr. p.41)(to which Justice Scalia responded, “so that’s all right… the first 95 monuments?  It’s a monument to chocolate chip cookies or whatever else, is that it? The first 95?”)(Tr. p. 43); or (3) clearly adopting the monument’s message as its own.

The Court spent quite a bit of time questioning the proposed “adopting the message” requirement.  Justice Alito: “Isn’t merely allowing the monument to be built on public property sufficient acceptance?” (Tr. p.48) Justice Souter noted,  no one would doubt that a homeowner who agreed to display a McCain sign on his lawn supported McCain; (Tr. p. 49) and he later said: the only difference between the two parties was Summum’s insistence that the city “adopt” the Ten Commandments as its own message:  “that would satisfy you, and it would also be the poison pill in the Establishment Clause. . . that would be okay with me. . . I was a Van Orden dissenter.”  (Tr. p.63)

Jay Sekulow appeared to finesse that bind successfully, for the moment, consistently arguing for application of the “speech selection” cases, which he contrasted with “government speech” (meaning, cases where government is promoting its own policy message)(his last example:  a Holocaust memorial – that it showed illustrative Nazi-era propaganda would not mean that the city adopted those words). (Tr. p. 65) He was assisted throughout by Justice Scalia, who argued that just as displaying a statue of George Washington does not mean the city agrees with everything he said, but rather, shows admiration, so too, display of the Ten Commandments can convey that admiration, rather than a city’s agreement with its every phrase. (Tr. p.54)

After this non-stop questioning, my prediction is 9-0, Pleasant Grove, based on:  the bizarre practical impact of applying public forum analysis to permanent monuments; the absence any tradition in support; and the apparent agreement that the public likely perceives donated monuments as approved by the government (despite Ms. Harris’ argument that citizens would see this Ten Commandments Monument as the Eagles’ speech, in part because they maintain it).  Whether this will provide new guidance on government speech, especially for the spate of specialty license plate cases, or instead a narrow “monument” decision, is less clear.  Given Jay Sekulow’s emphasis on the secular meanings of Ten Commandments’ displays, one wonders whether this will come full circle:  if the Establishment Clause viability of the Ten Commandment’s display in Pioneer Park depends on what the City meant to convey, perhaps a disclaimer sign will be required, though only in such “hard cases.”  Any endorsement problem created by the symbolism of labeling a religious icon as “government speech” awaits another day.

MJD

Seventh Circuit Rejects First Amend Challenge To Prohibition on "Choose Life" Auto Tags

The Seventh Circuit has reversed a district court ruling issued last year that required the state of Illinois to issue "Choose Life" license plates favored by anti-abortion supporters. 

The opinion by Judge Sykes in Choose Life Illinois v. White holds that specialty license plates constitute a type of non-public forum that can be subject to reasonable view-point neutral restrictions.   Because the state of Illinois had excluded the "entire subject of abortion from its specialty-plate program," allowing neither pro-choice nor anti-choice slogans, it did not discriminate against one particular abortion viewpoint to the benefit of another.  The restriction was also reasonable because it enabled the state of Illinois to maintain a position of impartiality on the issue.

The Ninth Circuit reached the opposite conclusion earlier this year in Arizona Life Coalition v. Stanton, ruling that the state of Arizona violated the constitutional rights of motorists by denying their request for special "Choose Life" tags. 

-Kathleen A. Bergin

FCC v. Fox and The Mysterious Origins of Four Letter Words

On the heels of oral arguments in FCC v. Fox, Time.com provides a quick and entertaining overview of court decisions that reveal our collective obsession with four letter words, along with this nugget of linguistic trivia:

The history of the ancient and awesomely powerful "F-Bomb" continues to mystify lexiconographers. While it remains one of the most scandalous sounds in modern vocabulary, it cannot rightly be considered slang. First printed in a Scottish poem in 1503, the term pre-dates the printing press and has been traced to a number of etymological origins: Middle Dutch (fokken), Germanic (ficken), English (firk), Scottish (fukkit); even the Latin words futuerre ("to copulate") and pungo ("to prick") bear a striking resemblance to the modern-day phrase. Rumors persist that legal acronyms are to blame: "Fornication Under Consent of the King" or the Irish police blotter inscription "booked For Unlawfiul Carnal Knowledge."

The Justices' discussion of Bono and Cher's favorite fleeting expletive (Scalia said it had "zing," and Stevens acknowledged that it could be "hilarious" in context) signals that the Court will actually reach the First Amendment issue rather than decide the case solely on the basis of the Administrative Procedures Act.

-Kathleen A. Bergin

Under Settlement Agreement, County Will Accommodate Muslim Women's Wearing of Headscarves While in Jail

Blog from the Capital flags an Associated Press report on the settlement of a RLUIPA suit against San Bernadino County, California brought by Jameelah Medina, a Muslim woman arrested in 2005 for riding a commuter train without a valid ticket. Ms. Medina, who wears a hijab as a matter of religious practice, alleged that her rights of religious freedom were violated while she was under arrest. While in jail before the charges against her were dropped, Ms. Medina was required by the county to remove her headscarf and was not allowed to put it on again until her release, thus requiring her to appear uncovered in front of men at the detention center. Under the settlement terms, which also give Ms. Medina $45,000, San Bernardino County will now offer any Muslim women who are arrested a private area where they can remove their head coverings and the county will offer the women county-issued headscarves for use when men are present.

JFB

Compilation of Obama Statements on Church-State Issues

The Religion Clause Blog has compiled a useful set of links to President-elect Obama's major statements about church-state relations and religion more broadly.

JFB

D.C. Circuit Rejects First Amendment Challenge to Cuba Travel Restrictions

Yesterday the D.C. Circuit issued an opinion in Emergency Coalition to Defend Educational Travel v. United States Department of the Treasury, rejecting a First Amendment challenge to 2004 Treasury Department regulations that, according to the plaintiff group of academic professionals, made it significantly more difficult to obtain permission to travel to Cuba as part of a structured educational program. The panel found that the rules were justified by weighty foreign policy concerns related to limiting the Cuban government's access to American currency and did not seek to restrict applicants'  planned activities based on their content.  In a concurring opinion, Judge Edwards pointed out that the case as argued had not required the court to explore the hazily defined parameters of the concept of academic freedom and, citing Judith Areen's recent article on academic freedom, expressed relief that the resolution of the many ambiguities about the content of the concept could be left for another day and another court.    

JFB      

Ysura Argument Reveals Justices' Frustration with Staple Elements of First Amendment Analysis

As noted on law.com, during Monday's oral argument in Ysura v. Pocatello Education Association, several Justices stepped into what Chief Justice Roberts' wryly described as "a confessional mode" and revealed their befuddlement (and dissatisfaction) with several facets of First Amendment doctrine. Justice Breyer probed for a clarification of how to reliably describe a content-based speech restriction, and the Chief Justice sought some illumination on the often variable application of forum analysis principles. The case involves a labor union's  constitutional challenge of an Idaho statute that bars local governments from making payroll deductions for political activities. Further details about Ysura can be found on the SCOTUSblog wiki .               

JFB

Rodney Smolla on Voter Apparel Rules and the First Amendment

Rodney Smolla, dean of Washington and Lee Law School and First Amendment scholar, has an op-ed in yesterday's RIchmond Times-Dispatch criticizing the numerous restrictions on voter apparel that have garnered much attention as Election Day approaches.  Smolla finds the restrictions inconsistent with core First Amendment values, values that would seek to encourage voters' expressions of their political convictions rather than to suppress such communication. Smolla observes that the invocation of the Supreme Court's 1992 decision in Burson v. Freeman to defend the restrictive apparel rules may be unsound as that precedent could be subject to reconsideration if the current members of the Court had the opportunity to re-examine it in a context like a voter garb case.              

JFB    

On the Eve of California's Proposition 8 Vote: Addressing Arguments About The Implications of Gay Marriage Rights for Churches

On Concurring Opinions, Kaimipono Wenger addresses the exaggerated claims being made in California referendum campaign advertising with regard to how enforcement of a constitutional right to marry for homosexual couples could effect the rights of churches that would not agree to perform such marriages. 

JFB   

 

First Amendment Scholarship Update

Here is this week's collection of recently released papers with a FIrst Amendment dimension:

1 .Thomas Berg (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law), Religious Choice and Exclusions of Religion, forthcoming in PENNumbra (2008). The abstract states:

Among the most important recent questions under the Religion Clauses has been whether and when government programs that support private activities, such as education or social services, may exclude religious institutions or activities that include religious content. Nelson Tebbe's article, Excluding Religion, argues that government should have "considerable latitude" to make such exclusions, even though he concedes they will discourage citizens from choosing religious options. In this response, published in PENNumbra (the University of Pennsylvania Law Review's online companion), I argue that Tebbe's justifications for excluding religion fail if the protection of citizens' religious choices against government influence is a central purpose of the Religion Clauses. I then turn to the key question whether preserving religious choice is indeed central, and I argue that it is, based on precedent, on traditions and concepts associated with the Religion Clauses, and on the fact that they are counter-majoritarian while Tebbe's position gives majorities great discretion over religious matters.

2. Ben Saul (University of Sydney - Faculty of Law). Wearing Thin: Restrictions on Islamic Headscarves and Other Religious Symbolsm, published in  J. McAdam(ed.), FORCED MIGRATION, HUMAN RIGHTS AND SECURITY (2008).The abstract states:

This paper critically examines three key recent cases of superior courts concerning restrictions on religious symbols: a prohibition on wearing headscarves in Turkish universities, upheld by the Grand Chamber of the European Court of Human Rights (Sahin v Turkey)(2005); a restriction on a particular kind of Islamic dress in an English school, upheld by the British House of Lords (R (on the Application of Begum) v Headteacher and Governors of Denbigh High School)[2006]; and an absolute ban on wearing a Sikh kirpan (a symbolic dagger) in a Quebecois school, struck down by the Canadian Supreme Court (Multani v Commission scolaire Marguerite-Bourgeoys)[2006]. Each case focused on similar arguments about freedom to manifest one's religion, and dealt with subsidiary arguments about the impact of the respective restrictions on the right to education. While each case proceeded from different factual circumstances, there are considerable differences in their approaches to what were essentially the same human rights law questions. The decision of the European Court of Human Rights is the least satisfactory in both its reasoning and its result; the House of Lords arguably reached the correct result but its reasoning was abbreviated; and the Canadian Supreme Court properly reasoned its way to a correct result.

3. Richard J. Ross (University of Illinois College of Law ), Puritan Godly Discipline in Comparative Perspective: Legal Pluralism and the Sources of 'Intensity', 113 Am. Hist. Rev. 975 ( 2008). The abstract states:

Early Massachusetts (c1630-1660) is famous for the intensity of its drive for moral righteousness and a more fully Christianized society. This essay explores the reasons for this intensity by situating the colony in two frameworks seldom brought together: first, the comparative exploration of post-Reformation campaigns for godly discipline and confession building; and second, the comparative investigation of legal pluralism among New World settlements. A study of early Massachusetts allows consideration in a colonial context of the suggestion, raised by European historians, that there was an inverse relationship between the effectiveness of godly discipline and a polity's degree of social complexity and legal pluralism. Contemporary presbyterian critics of Massachusetts discipline provide a way into the problem. They viewed the New England Way as deficient in the sorts of mechanisms for coordinating among congregations and between the civil and ecclesiastical realms available in Reformed polities such as Calvin's Geneva and early seventeenth-century lowland Scotland, places of special significance in debates between presbyterians and congregationalists. These critics predicted that schism, oscillations between enthusiasm and lethargy, and inconsistent standards of judgment and administration among clashing churches and civil authorities would together undermine Massachusetts discipline. Part of the reason why they were wrong was that Massachusetts displayed low levels of social complexity (relative to European Reformed polities) and a modest degree of legal pluralism (by the standards of other New World settlements). Treating early Massachusetts as a case study within the context of scholarship on post-Reformation godly discipline and New World legal pluralism suggests alterations to these two flourishing literatures and offers ways to connect them. The colony's experiences challenge the trajectory of change assumed by scholars of New World legal pluralism. The historiography on European confession building provides new ways of perceiving family resemblances among settlements in different empires that were pursuing parallel programs of intense godly discipline and Christian education. Evidence from the New World could contribute to debates among scholars of the post-Reformation European confessional age by demonstrating, in a number of colonial settings, how civil and clerical leaders committed to the pursuit of godly discipline benefited from modest levels of legal pluralism.

4. John Witte Jr. (Emory University School of Law )and and Joel A. Nichols (Univ. of St. Thomas School of Law), More than a Mere Contract: Marriage as Contract and Covenant in Law and Theology, 5 University of St. Thomas Law Journal 595 (2008) The abstract states:

In 1841, the American jurist Joseph Story noted that marriage is something more than a mere contract. Justice Story's writings embody an American common law refrain, namely that marriage is at once a contract and something more. This Article details the historical roots of that common law tradition. The history stems mostly from the Christian tradition, but also has antecedents and analogues in Jewish and Islamic teachings. All of these traditions have long taught that marriage is at once a contract (ketubah, pactum, and kitab) and more than a mere contract. Marriage is an institution that is both private and public, individual and social, civil and religious, temporal and transcendent. Its origin, nature, and purpose lie beyond and beneath the terms of the marriage contract itself. The idea of covenant is emerging in Western law, theology, and ethics as a common inter-religious and interdisciplinary term to capture some of the higher dimensions of marriage.

Historically, the Jewish, Christian, and Islamic traditions found ways to reconcile the contractual and covenantal dimensions of marriage, but American law today juxtaposes them and has moved much more toward a straight contractual model. In all but three states, parties who wish to marry must choose the state's contract marriage option. In Louisiana, Arkansas, and Arizona, though, parties may choose contract marriage or covenant marriage, which has tighter marital formation and dissolution rules. But even in those three states, there is not yet a robust legal appreciation and reification of some religious covenantal notions of marriage (and current conflict of laws rules do not favor the enforcement of covenant marriage laws in inter-state disputes). Ultimately, a fuller legal response may well be necessary to recapture the multi-layered dimensions of marriage. America's religious communities may need to draw upon and reformulate their own norms and resources, and American states, in turn, may need to think more seriously about granting greater deference to the marital laws and customs of legitimate religious and cultural groups that cannot accept a marriage law of the common denominator.

5. Robert L. Tsai (American University - Washington College of Law). Eloquence and Reason: Creating a First Amendment Culture (Yale Univ. Press, 2008). The abstract states:

This book presents a general theory to explain how the words in the Constitution become culturally salient ideas, inscribed in the habits and outlooks of ordinary Americans. "Eloquence and Reason" employs the First Amendment as a case study to illustrate that liberty is not an end state but a state of mind achieved through the formation of a common language and a set of organizing beliefs. The book proceeds to explicate the structure of First Amendment language as a distinctive discourse and illustrates how activists, lawyers, and even presidents help to sustain our First Amendment belief system. When significant changes to constitutional law occur, they are better understood as the results of broader linguistic transformations. The book concludes by positing a model of judicial review in which jurists are responsible for the management of prevailing political discourses, quite apart from any obligations they may have to substantive conceptions of the good. The Table of Contents and and Preface are available for download.

6. Harry G. Hutchison (George Mason University - School of Law), Liberty, Liberalism and Neutrality: Labor Preemption and First Amendment Values, forthcoming in  Seton Hall Law Review. The abstract states:

In Chamber of Commerce et al v. Edmund G. Brown, the Supreme Court offers one theory of judicial invalidation that protects employers' freedom of speech claims and reinvigorates federal preemption doctrine within the meaning of the National Labor Relations Act (NLRA). Prescinding from an architectonic conception of freedom of speech that is supported forcefully and explicitly by the First Amendment, the Court relies on preemption doctrine to invalidate two provisions of a California statute because the enactment constitutes regulation, which intrudes into a zone that is protected and reserved for market freedom. The Court properly upholds its previous stance permitting employers to speak directly to their employees about unionization, but supporters of this decision might do well to withhold their applause. This is so because the Supreme Court, consistent with precedent, has been reluctant to substantiate such rights energetically. The Chamber of Commerce Court breathes life into this pattern.

In addition to examining labor law preemption principles, I inspect the often-contestable conception of neutrality in light of the existence of scholarship advocating an expansion in state labor law innovation aimed at reducing employer rights. The penultimate purpose of such innovation seems clear enough: to increase the level of unionization in the United States and to restore collective action to its previously ascendant status. It is doubtful that this objective can be seen as a "neutral" one. Instead, this goal is delineated by the declining importance of labor unions in the United States and the mounting appeal of paternalistic intrusions into the market. In light of this goal, employers, when confronted with either legislative or judicial assertions of neutrality, should be forgiven for suffering from a prevenient sense of doom. This impression is often made tangible via partisan enactments and adjudication.

With the advent of postmodern discourse and the possibility that courts have become captive to progressive rhetoric that is not found within the Constitution, I argue that the Supreme Court should reconsider its reliance on the NLRA and preemption doctrine as the primary vehicle to vindicate employers' rights and should instead return to the Constitution itself as a basis for its defense of what has become increasingly difficult to defend: the free speech rights of employers and employees within a labor-management context. This approach is exemplified by recapturing the Supreme Court's understanding of Virginia Electric as an independent ground for relief. This case, decided before the Wagner Act was amended adding explicit protection of employers' speech, stands for the proposition that employer and labor union "attempts to persuade to action with respect to joining or not joining unions are within the First Amendment's guaranty."

Ultimately however, I argue that even a return to First Amendment principles will not be enough to protect employers' freedom of expression rights. Indeed, it is unlikely that a liberal democratic state can sustain its ostensibly neutral stance on anything, including union organizing unless it recaptures what is arguably missing in American society: a shared understanding of essentials, such as truth. It is not possible to live in a democratic society that papers over deeply antagonistic world-views, except temporarily. This quandary implies that endless elucidation may be the looming destination of all debates including the employer free speech wrangle.

7. Marc Jonathan Blitz (Oklahoma City University), The Freedom of 3D Thought: The First Amendment in Virtual Reality , 30 Cardozo Law Review – (2009). The abstract  states:

Unlike the virtual worlds of the present, which appear to us on two-dimensional computer screens, the virtual worlds of the near future will likely be 3D worlds that swallow our perceptual universe. In such an electronic environment, we don't merely move an "Avatar" on a virtual street; we have the experience of walking upon it ourselves. The street life we see consists not of computer animations confined to a rectangular interface, but pedestrians, street vendors, and cars that appear to move all around us.

Such virtual reality (or VR) technology has long had a prominent place in science fiction - from the first episode of the Twilight Zone almost fifty years ago, to the cyberpunk of writers like William Gibson and Neal Stephenson, to Star Trek: The Next Generation's Holodeck, to the film, The Matrix. Thanks to Robert Nozick's "Experience Machine," it has also has a place in philosophy. According to a recent news report, an "immersive cocoon" - set to be available in 2014 - may soon give it a place in people's living rooms.

This article seeks to understand its place in First Amendment law. My question, in short, is whether the actions we take in our personal Holodeck would count as "speech" or other First Amendment-protected activity. The First Amendment right to freedom of speech generally protects expression, not non-expressive conduct, such as driving a car, flying an airplane, or having sex. So where in this familiar First Amendment dichotomy does one place the convincing replica of non-expressive conduct that becomes possible inside a fully immersive VR world? Are we engaging in First Amendment "speech" when we drive a phantom car, pilot an illusory plane, or have virtual sex, and if so, why do activities such as these-which generally count as "non-expressive" conduct, unprotected by the First Amendment, in the physical world-suddenly become "expressive" in a 3D virtual world? In short, courts confronting such questions will have to decide whether VR's convincing illusions are First Amendment "speech," like the movies or video games of which they are arguably three-dimensional analogues, or "conduct" like the actions they mimic.

Perhaps the most natural way to address this challenge is to ask, using the Supreme Court's test in Spence v. Washington, whether the virtual conduct is an activity that conveys a "particularized message" under circumstances in which an audience will be likely to understand that message ("the Spence test"), or, alternatively (under the exception to the Spence test established in Hurley v. Irish-American, Gay, Lesbian & Bisexual Group of Boston) is analogous to a medium already recognized as expression, such as a parade, a painting, or a musical composition. Under such a framework, a virtual reality car ride or sexual encounter will not count as speech when people seek it for the same (non-expressive and non-artistic) reasons they seek out the real-life equivalent.

This article, however, argues that such an approach is a flawed one when it applies to a private and solitary VR experience, like the one an individual would have in an adventure inside a real-life Experience Machine. When VR is used privately, I argue, it is best conceived as a technologically-sophisticated representation of individuals' fantasy life and, as such, should receive the same First Amendment protection that individuals receive when they draw sequences from a daydream or write thoughts in a journal. In fact, I argue, recognizing this helps us better mark out both the scope of First Amendment freedom of speech as well as the distinct protection that the First Amendment offers for our freedom of thought (as recognized in cases such as Stanley v. Georgia and Wooley v. Maynard). While the Spence test may help draw the boundaries of what counts as "speech" in communication or other dialogue, it should not guide us in determining what counts as "speech" or "thought" in unshared representations of our imagined worlds or actions. I argue here that private VR experience can help mark out these boundaries by clarifying (1) why such experience should count as solitary and protected speech of the kind we engage in when we draw a picture or write a poem for our own benefit and (2) why such experience should also come under the coverage of the First Amendment freedom of thought set out in Stanley v. Georgia. The same protections, I further argue, should also bar the government from thwarting our use of "telepresence" to create the illusion of being transported to another place in the real world, even though such VR experiences link us to the outside world in ways not true of films or books we watch or read in our own homes.

Apart from providing us with an initial framework for applying the First Amendment to the revolutionary changes promised by VR, this analysis of VR's status under the First Amendment can also help us to think more carefully and systematically about how First Amendment freedom of thought might apply to other activity in the external world that is closely intertwined with thought (such as use of psychotropic medication or drugs to generate certain mental states, or observations that we make of the natural world or surrounding environment to gather certain kinds of information from sources other than speech).

8. Meiring De Villiers (University of New South Wales - Faculty of Law), Substantial Truth in Defamation Law. The abstract states:

Truth is a complete defense to a defamation charge, but a defendant does not have to prove the literal truth of a defamatory statement to prevail. An effective defense can rely on the substantial truth doctrine. Under the substantial truth doctrine, a defamatory statement is First Amendment-protected if it is factually similar to the pleaded truth, and does not differ from the truth by more than immaterial details. This article presents and analyzes the theory, application, and constitutional foundations of the substantial truth doctrine. It concludes that the doctrine promotes the values of the First Amendment by reducing the risk of self-censorship, yet preserves defamation law's reputational protection and compensatory function.

JFB