First Amendment Law Prof Blog

First Amendment Scholarship Update

Here is a collection of newly available scholarship on First Amendment topics:

1) Stephen A. Newman (New York Law School),  From John F. Kennedy's 1960 Campaign Speech to Christian Supremacy: Religion in Modern Presidential Politics , forthcoming in
New York Law School Law Review. The abstract states:

The mixing of religion and politics raises a distinct and thorny issue for a democracy that intends a significant degree of separation between religion and government. In the recent 2008 presidential campaign (including primaries), several candidates chose to stress their commitment to their faith, to disclose personal details about the influence of religion on their lives, and to make promises in religious terms about how they might govern. Campaign appeals to the electorate based upon religious belief raise troubling concerns about adherence to values underlying the separation of church and state. This article discusses the 2008 campaign, and the risks associated with politics aimed at religious voters, especially that faction I denominate Christian supremacists. Although Barack Obama's victory may cause us to relax our vigilance, the Christianist movement's network is in place, politicized, and prepared to fight for school prayer programs, anti-evolution science classes, public funding for Christian projects, and other special privileges. The current Supreme Court is likely to be more receptive to the mixing of public and religious interests. A look back at John F.Kennedy's famous 1960 campaign speech, and the Supreme Court's Establishment Clause cases at the time, provides a helpful perspective on our current religious politics.

2) Gila Stopler (Academic Center of Law and Business), 'A Rank Usurpation of Power' -The Role of Patriarchal Religion and Culture in the Subordination of Women, 15 Duke Journal of Gender Law & Policy --- ( 2008). The abstract states:

This article is concerned with the way in which the power of religion and culture is used to perpetuate the hegemony of patriarchy and the subordination of women. First, I will use a historical perspective to describe the advent and the perpetuation of patriarchy and the historical interrelationship between patriarchy and patriarchal religion. I will then present and analyze the insightful critiques of early American feminists of the patriarchal nature of both church and state. Next, I will argue that despite the constitutional separation between church and state patriarchal religion continues to directly and indirectly influence the law and constitutes a significant force perpetuating the hegemony of patriarchy. I will further argue that the current legal protection afforded patriarchal aspects of religion and culture seriously undermines women's ability to achieve equality. While freedom of religion and association and the right to culture are as important to women as they are to men, I will show that the way in which these rights are understood and applied serves to perpetuate gender hierarchy and to deprive women of equality and freedom rather than to ensure their freedom of religion and culture or to guarantee them equal respect. Finally, I will suggest that incorporating an analysis of power into our liberal theory of rights will transform our understanding of religious freedom, toleration, and freedom of culture and association in a manner that will make them more compatible with women's rights.

3) Daniel R. Suhr , On the Freedom of a Congregation: Legal Considerations When Lutherans Look to Change Denominational Affiliation, 13 Texas Review of Law & Politics --- ( 2009). The abstract states:

The mainline Protestant churches are currently undergoing significant internal division over the role of homosexual persons in the Church. The Episcopal Church, in particular, has seen scores of local churches leave the national denomination in the four years since it ordained its first openly gay bishop. The Evangelical Lutheran Church in America will confront these issues at its 2009 Churchwide Assembly, and decisions made there may prompt a similar exodus.

When these churches leave, litigation ensues. The Supreme Court's First Amendment case law requires the courts to place each denomination in one of several categories based on principles of internal church organization. There are published articles specifically addressing the appropriate legal categorization for Episcopalian, Methodist, Presbyterian, Baptist, and United Church of Christ congregations. The enclosed article will fill a major void in this literature by providing legal analysis specific to Lutherans.

The article evaluates legal precedent and theology to categorize the polity of the ELCA as either hierarchical or congregational. While there are arguments both ways, the article concludes that congregational polity is a better fit, especially as to church property.

4) Douglas Linder (University of Missouri at Kansas City - School of Law), Falwell v. Flynt Trial, 1984. The abstract states: 

Asked about his first sexual experience by an interviewer, Reverend Jerry Falwell said, "I never really expected to make it with Mom, but then after she showed all the other guys in town such a good time, I thought 'What the hell!'" Falwell went on to describe a a Campari-fueled sexual encounter with his mother in an outhouse near Lynchburg, Virginia. Neither the incestuous sex nor the interview ever happened, of course. They sprang from the imagination of a parody writer for Hustler Magazine. When the Campari parody ad appeared in the November 1983 issue of Hustler, the founder of the politically-engaged organization Moral Majority sued, alleging defamation and intentional infliction of emotional distress. The trial and appeals that followed would provide great theater, produce a landmark Supreme Court ruling on the First Amendment, and eventually lead to one of the most unlikely of friendships.

5) Hannes Rösler (Max Planck Institute for Comparative and Private International Law), Caricatures and Satires in Art Law: The German Approach in Comparison with the U.S., England and the Human Rights Convention, European Human Rights Law Review (E.H.R.L.R.), 463-487(2008). The abstract states:

For a long time caricatures and satires have been important and sharp tools to criticise current politics and public affairs. But the issue of how today's democratic legal orders should react to highly defamatory statements in this form is being dealt with quite differently in different jurisdictions. This article analyses the diverging jurisprudence of three national orders (England, U.S. and Germany) and one supranational constitutional regime in order to highlight that caricatures and satires need to be recognised as a distinct and sensitive category in defamation law. In some legal orders caricatures and satires have not yet become a pertinent issue. The argument is made that this needs to change, especially in Europe due to the influence of the European Convention on Human Rights. The paper thus refutes the widely held belief that caricatures and satires are simply non-libellous. The issues addressed are: (1) the subject matter of the caricature; (2) the circumstances and context of the caricature; (3) the significance of the fact-opinion distinction; (4) the status of the person involved; (5) the role of the constitutional courts; and (6) the artist's intent to harm.

6) Cass R. Sunstein (Harvard Law School), 'She Said What?' 'He Did That?' Believing False Rumors. The abstract states: 

Why do false rumors spread? Why do otherwise sensible people believe them? Why are they sometimes impervious to correction? There are several answers. (a) Some false rumors gain traction because of their fit with prior convictions within particular groups and cultures. People are strongly motivated to accept certain beliefs, however groundless; they also have good reasons to accept some of those beliefs. Diverse groups will have diverse thresholds for accepting false rumors. It follows that particular rumors can have a tenacious hold on some groups and cultures while dying a rapid death in others; multiple equilibria are likely. (b) Informational cascades are often responsible for belief in false rumors. Such rumors typically spread as a result of such cascades; people believe them because they lack the information that would lead them to reject the signals given by the apparently shared beliefs of numerous others. The important point here is that with respect to many rumors, private signals are essentially nonexistent. (c) Reputational cascades help propagate false rumors. Sometimes people do not correct such rumors, and even endorse them, so as to curry favor or to avoid public opprobrium. Because of the role of early movers, multiple equilibria are (again) likely, as some groups come to believe rumors that other groups deem preposterous. (d) Group polarization accounts for the intensity with which people accept false rumors. Like-minded people, engaged in deliberation with one another, increase one another's confidence in rumors. Here too we see why false rumors are widely believed within some groups but widely rejected in others. As a result of group polarization, such rumors often become entrenched. (e) Biased assimilation can make false rumors exceedingly hard to correct. Because people with strong antecedent commitments process balanced information in a biased way, such information can strengthen people's commitment to false perceptions. That commitment can also be strengthened by corrections, which therefore turn out to be self-defeating. These points have significant implications for freedom of speech and the marketplace of ideas, especially in the age of the Internet; they demonstrate that the exchange of information may not produce convergence on truth and that damaging false reports will often be widely credited. A chilling effect on false rumors can be highly desirable; the goal should be to produce optimal chill, rather than no chill at all.

7) Godala V. Mahesh Nath (ICFAI) and Audhi Narayana Vavili (Amicus Books, ICFAI), Contempt of Court and Free Expression - Need for a Delicate Balance. The abstract states: 

Free expression is the fundamental fountain-head of democracy. The right of free expression does not however confer right to denigrate others right of person and reputation as such the right of free expression is subject to reasonable restrictions. Bonafide criticism of any system or institution including the judiciary cannot be objected on any pretext, be it under the conferred constitutional power or the statutory contempt law. The freedom of speech bestowed under the constitution and the independence of the judiciary are the two essential and most important constitutes of democracy in a country. Reconciling these two competing public interest issues and maintaining a balance, presents a challenge to any given democratic set-up. Healthy and constructive criticisms are the necessary feature for the development of the democracy. The Apex court as the guardian of the Constitution must vigilantly protect free speech even against judicial resentment.

8) Stephen I. Vladeck (American University- Washington College of Law), The Espionage Act and National Security Whistleblowing after Garcetti, 57 American University L. Rev. 1531 (2008). The abstract states:

Should government employees ever have a right to disseminate classified national security information to the public? As a general matter, of course, the answer is "no." It is necessarily tautological that the central purpose of classifying information is to keep that information secret. But what if the information pertains to what we might describe as "unlawful secrets," and the individual in question has exhausted all possible non-public remedies - and to no avail? Are there any circumstances in which the law enables the government employee to come forward? Should there be?

As this Essay suggests, because of the broad language of the Espionage Act and the narrow language of certain whistleblower laws, a government employee would enjoy no statutory whistleblower protection whatsoever from either an adverse employment action or a criminal prosecution for disclosing classified national security information. And because of the Supreme Court's pronounced constriction of the First Amendment rights of public employees two years ago in Garcetti v. Ceballos, in which the Court effectively abandoned the idea of "Pickering balancing" for speech performed by a public employee as part of his professional duties, the employee would not be entitled to a constitutional defense, either.

Reasonable minds can certainly disagree about whether there should ever be circumstances where federal law entitles a government employee in possession of classified information about illegal governmental activity to publicly disclose that information, even as a last resort. The purpose of this Essay is not to offer an argument for or against such a right; rather, my goal is to suggest that federal law today includes absolutely zero protection for employees in such a position, and that, perhaps unintentionally, Garcetti is the reason why.

9) Allison Barger, Changing State Laws to Prohibit the Display of Hangman's Nooses: Tightening the Knot Around the First Amendment?, 17 Wm. & Mary Bill Rts. J. 263 (2008). The abstract states:

This is a student Note written in response to the "Jena 6" noose incident that became the subject of national media attention in early fall 2007. The Note traces the historical correlation between hangman's nooses and the oppression of African-Americans, and it argues that the display of nooses in order to threaten or intimidate African Americans represents a "particularly virulent" act that may be properly regulated and punished through state criminal laws. The Note analyzes and interprets existing state hate crime statutes - specifically focusing on cross-burning statutes and Supreme Court rulings addressing these types of laws - in order to craft a model statute banning the display of hangman's nooses that serves to protect minority interests while refraining from impingement on First Amendment rights.

JFB

Denial of Tax Exemption Sought by Televangelist Copeland May Prompt Constitutional Challenge

The Blog from the Capital suggests that a Texas county's recent decision to deny a property tax exemption to televangelist Kenneth Copeland, one of six televangelists under scrutiny from Sen. Charles Grassley, could set the stage for a constitutional challenge. Copeland, who sought a tax exemption for the ministry's private jet, had refused to provided the Tarrant County tax assessor's office with any information on the compensation paid to the ministry's directors, including Copeland. The failure to provide this required financial data led to the denial of the exemption request, prompting Don Byrd of Blog from the Capital to ask whether the denial sets the stage for  a court's examination of some very interesting First Amendment questions:      

Will this finally bring the issue to a legal head? A challenge of this ruling will essentially, it seems to me, ask a judge to determine whether laws requiring financial transparency for the privilege of tax exemption - and policies requiring that salaries be "reasonable" - are constitutional when applied to churches. Will the presumption of tax exemption currently enjoyed by churches be at stake?

JFB

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship:

1)Marc O. DeGirolami (Visiting Assistant Professor and Scholar in Residence, Catholic University of America, Columbus School of Law), The Problem of Religious Learning, 49 B.C. L. Rev. 1213 (2008). The abstract states:

The problem of religious learning is that religion—including the teaching about religion—must be separated from liberal public education, but that the two cannot be entirely separated if the aims of liberal public education are to be realized. It is a problem that has gone largely unexamined by courts, constitutional scholars, and other legal theorists. Though the U.S. Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence, and scholars frequently urge policies for or against such controversial subjects as Intelligent Design or graduation prayers, insufficient attention has been paid to the nature and depth of the problem it-self. As a result, discussion about religion's place in public schools often exhibits a haphazard and under-theorized quality. But in an area so fraught with constitutional complexity and high emotion, no edifying policy solutions are likely without a deeper understanding of the relationship between religious learning and liberal public education. This Article aims to fill that gap by giving the problem of religious learning its due. It offers a detailed theoretical account of the relationship between religious learning and the cultivation of the civic and moral ideals of liberal democracies. It then draws on that account to develop a unique model of religious learning within liberal learning which takes its cue from the historic purpose of the public school. Since even today it is widely supposed and insisted that public schools still serve a vital role in developing civic and moral ideals in young people, this Article's comprehensive examination of the problem of religious learning is both timely and necessary if the seemingly intractable skirmishes over religion, education policy, and constitutional law are capable of even a modest reconciliation.

2) A. Michael Froomkin (University of Miami - School of Law),  Anonymity and the Law in the United States, forthcoming in LESSONS FROM THE IDENTITY TRAIL: ANONYMITY, PRIVACY AND IDENTITY IN A NETWORKED SOCIETY( Oxford University Press 2009). The abstract states :

This book chapter for "Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society" (New York: Oxford University Press, 2009) - a forthcoming comparative examination of approaches to the regulation of anonymity edited by Ian Kerr - surveys the patchwork of U.S. laws regulating anonymity and concludes the overall U.S. policy towards anonymity remains primarily situational, largely reactive, and slowly evolving.

Anonymous speech, particularly on political or religious matters, enjoys a privileged position under the U.S. Constitution. Regulation of anonymous speech requires a particularly strong justification to survive judicial review but no form of speech is completely immune from regulation. Anonymity is presumptively disfavored for witnesses, defendants, and jurors during criminal trials; the regulation of anonymity in civil cases is more complex. Plaintiffs demonstrating sufficiently good cause may proceed anonymously; conversely, defendants with legitimate reasons may be able to shield their identities from discovery.

Despite growing public concern about privacy issues, the United States federal government has developed a number of post 9/11 initiatives designed to limit the scope of anonymous behavior and communication. Even so, the background norm that the government should not be able to compel individuals to reveal their identity without real cause retains force. On the other hand, legislatures and regulators seem reluctant to intervene to protect privacy, much less anonymity, from what are seen as market forces. Although the law imposes few if any legal obstacles to the domestic use of privacy-enhancing technology such as encryption it also requires little more than truth in advertising for most privacy destroying technologies.

3) Brian D. Eyink, Note - Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions with First Amendment Rights, 58 Duke L. J. 473 (2008).  The abstract states:

First created in the 1980s, national security letters and their
nondisclosure provisions evaded judicial review until 2004. These secretive investigative tools allow federal agencies such as the FBI to compel disclosure of information about hundreds of thousands of people while also allowing the same agencies to unilaterally issue gag orders that can silence the people who receive these letters. This Note examines the nondisclosure provisions in the national security letter statutes. It argues that the nondisclosure provisions are unconstitutional prior restraints on speech and content-based speech restrictions. This Note then proposes a three-part solution that constitutionally balances the government’s need to protect national security with its citizens’ rights to freedom of speech.

4) Jason C. Miller, Regulating Robocalls: Are Automated Calls the Sound of, or a Threat to, Democracy?. The abstract states:

Automated telephone calls, also known as robocalls, have become one of the most used, most controversial, and least expensive tools of political campaigns. Robocalls have been used for legitimate campaigning and public opinion polling, but have also been used for vote suppression, false endorsements, and negative campaigning that borders on fraud. Robocalls also annoy voters. Unsurprisingly, Congress and many states are considering banning or regulating them. The federal regulatory regime currently excludes political robocalls from most telemarketing regulations. Patchwork state regulation of robocalls has created confusion and made compliance difficult. As a result, presidential campaigns and national interest groups have accidently violated state laws in trying to communicate with voters by using robocalls.

This paper examines the use of robocalls by political campaigns, how robocalls are currently regulated at the federal and state level, legislative proposals for new regulation, and the First Amendment issues raised by regulating robocalls. Finally, this paper advocates a solution that allows political robocalls, subject to transparency requirements to prevent the worst abuses, and recognizes the need for a national solution to protect political speech by preventing patchwork state regulation.

5) Elias Papaioannou (Dartmouth College - Department of Economics) and Gregorios Siourounis (University of Peloponnese), Economic and Social Factors Driving the Third Wave of Democratization. The abstract states:

We identify permanent democratic transitions during the Third Wave of Democratization and the nineties, when many former socialist countries moved towards representative rule. Using political freedom indicators, electoral archives, and historical resources in 174 countries in the period 1960-2005, we identify 63 democratic transitions, 3 reverse transitions from relatively stable democracy to autocracy and 6 episodes of small improvements in representative institutions. We also classify non-reforming countries to stable autocracies and always democratic. We then use the dataset to test theories on the prerequisites for democracy in these countries that enter the Third Wave as non-democracies. Examining initially autocratic countries enables us to address issues of sample selection (in the beginning of the sample most developed countries were already democratic) and reverse causality (democracy can be both a cause and a consequence of wealth, for example). Our estimates reveal that democratization is more likely to emerge in affluent and especially educated societies. Economic development and education are also key factors determining the intensity of democratic reforms and how quickly democratic transitions will occur. These results appear robust to controls like the social environment (religion and fractionalization), natural resources, trade openness and proxies of early institutions.

6) Francesca Bignami (George Washington University Law School), The Case for Tolerant Constitutional Patriotism: The Right to Privacy Before the European Courts, 41 Cornell International Law Journal ----( 2008). The abstract states:

The theory of constitutional patriotism has been advanced as a solution to the European Union's legitimacy woes. Europeans, according to this theory, should recognize themselves as members of a single human community and thus acknowledge the legitimacy of Europe-wide governance based on their shared belief in a common set of liberal democratic values. Yet in its search for unity, constitutional patriotism, like nationalism and other founding myths, carries the potential for the exclusion of others. This article explores the illiberal tendencies of one element of the liberal canon-the right to privacy-in the case law of Europe's constitutional courts. It argues that, in confronting the tension between privacy and freedom of expression, the European Court of Justice has been more successful than the European Court of Human Rights at accommodating diverse national orderings and thus resisting the illiberal dangers of constitutional patriotism.

JFB

New Book on the History of the Attorney General's List of Subversive Organizations

The Legal History Blog notes the publication of Robert Justin Goldstein's new book, American Blacklist: The Attorney General's List of Subversive Organizations. The publisher, University of Kansas Press, provides this description of the book's contents:

Resonating with disturbing implications for the present, American Blacklist is the only full-length study of the so-called Attorney General’s List of Subversive Organizations (AGLOSO) and its critical role in the post–World War II Red Scare.

Although earlier versions of AGLOSO date back as far as 1903 and were wielded by the federal government during both the post–World War I Red Scare and World War II, they were not widely publicized. But beginning in December 1947, as part of the Truman administration’s loyalty program, the federal government engaged in a massive effort to publicize the AGLOSO lists. In the process, it threatened, damaged, or destroyed nearly 300 organizations, all of which were listed without any notice, evidence, or hearings.

Drawing heavily on previously classified FBI, Justice Department, and other documents, Robert Goldstein demonstrates how the listed organizations and their members (including a large number of federal employees) came under suspicion, were investigated, and suffered numerous public and private penalties. These included the loss of federal tax-exempt status, the denial of passports, deportations and immigration exclusions, ejection from federally subsidized housing, and private employment bans. AGLOSO, which was dominated by J. Edgar Hoover’s FBI, also placed a huge damper on political dissent throughout the nation.

After 1954, AGLOSO and the Red Scare both came under increasing attack as serious violations of American civil liberties. Indeed, AGLOSO’s declining significance after 1954 reflected a more general decline in the postwar Red Scare campaign itself. Both gradually diminished in impact and importance, but they left a long-lasting legacy.

As Goldstein reveals, AGLOSO’s final demise in 1974 resulted from congressional opposition to President Richard Nixon’s attempt to revive it via a 1971 executive order, which was severely attacked as an abuse of executive authority and an attack on civil liberties—issues that have continued relevance in the current war on terror.

JFB

The Constitutionality of Noose Display Bans

The Southern Poverty Law Center has posted an interesting brief essay on the constitutionality of bans on the display of nooses. Since the Jena Six controversy in Louisiana drew national attention in 2007, a number of states and localities have enacted bans on noose displays, and questions have arisen about whether such bans could withstand a First Amendment challenge.  Drawing on the Supreme Court's opinion in Virginia v. Black, which considered a First Amendment challenge to Virginia's statute criminalizing cross-burning, First Amendment scholar David Hudson, Jr. notes the likely parallel issues raised by the assertion that a burning cross and a noose display are entitled to First Amendment protection in certain contexts. In Black, the Court differentiated the burning of a cross as part of an effort to communicate a true threat, a message unprotected by the First Amendment and therefore properly subject to criminal sanction, and the burning of a cross in an effort to convey an ideological message or to reflect solidarity among gathered Klan members, expressive conduct that would be covered by the First Amendment's protections. Although Justice Thomas's dissent emphatically dismissed the assertion that a burning cross could, in light of the Klan's history in America, convey any message other than the delivery of a terroristic threat, the majority  of the Justices found that the constitutionality of criminalizing cross-burning would depend on contextual variables which any statute or ordinance would have to acknowledge.  Hudson suggests noose display bans would have to be drafted and applied to incorporate the distinctions drawn by the Supreme Court.

JFB

      

Reconsidering the Pledge

In a post on the Post/Newsweek ON FAITH blog, David Waters notes the recent passing of Rev. George Docherty, the minister whose 1954 sermon at D.C.'s New York Avenue Presbyterian Church is said to have spurred President Eisenhower to back a campaign to add the words "under God" to the text of the Pledge of Allegiance.  As a Washington Post article on Rev. Docherty's death explains, the minister drew the phrase from a passage in Lincoln's Gettysburg address and exhorted his congregation, which included President Eisenhower, to support a revision of the Pledge that would emphasize a contrast between the "godless Communism" of our Cold War enemy, the Soviet Union, and what Rev. Docherty saw as "the definitive factor in the American way of life", religious belief.  Blogger Waters suggests that the Pledge again needs updating, now to reflect the nature of America's core commitments in a time of new threats. He writes:

In his 1954 sermon, Docherty argued that Judeo-Christian America was engaged in "mortal combat against modern, secularized, godless humanity." Today, pluralistic America is engaged in mortal combat against anti-modern, fundamentalist, religionized humanity.

It isn't our belief in God that makes us different. It's our belief in the liberties (religious and other) enshrined in the Constitution. The American creed is faith in liberty for all, not the religion of most.

JFB