First Amendment Law Prof Blog

New Books from Emory Center for Law and Religion Scholars

Scholars at the Emory Center for Law and Religion have produced several new books of potential interest to those teaching and writing about First Amendment issues. The Center's website presents the following summary of the new volumes:

Islam and the Secular State: Negotiating the Future of Shari’a (Harvard University Press) by Abdullahi Ahmed An-Na’im argues that the coercive enforcement of Islamic Law (Shari’a) by the state betrays the Qur’an’s insistence on voluntary acceptance of Islam. Just as the state should be secure from the misuse of religious authority, Shari’a should be freed from the control of the state.  An-Na'im is Charles Howard Candler Professor of Law and a CSLR senior fellow.

The Classical Foundations of the American Constitution: Prevailing Wisdom (Cambridge University Press) by David J. Bederman expores how the framers of the American Constitution were substantially influenced by ancient history and classical political theory and how the framing generation deployed this to develop many of the essential structural aspects of the Constitution. Bederman is professor of law and a CSLR associated faculty member.

Love and Marriage in Early African America (Northeastern University Press) by Frances Smith Foster brings together folk sayings, rhymes, songs, poems, letters, lectures, sermons, short stories, memoirs, and autobiographies spanning from the slave era to the New Negro Movement. The collection contradicts established notions that slavery fractured families, devalued sexual morality, distorted gender roles, and set in motion forces that now produce dismal and dangerous domestic situations. Foster is Charles Howard Candler Professor of English, Chair of Emory's English Department, and a CSLR senior fellow.

God and Government in the Ghetto: The Politics of Church-State Collaboration in Black America (University of Chicago Press) by Michael Leo Owens shows how the government's faith-based initiatives have served as a means for black clergy to reaffirm their political leadership and reposition moral authority in black civil society. Owens is assistant professor of political science and a CSLR associated faculty member.

Public Pulpits: Methodists and Mainline Churches in the Moral Argument of Public Life (University of Chicago Press) by Steven M. Tipton examines the political activities of Methodists and mainline churches in this groundbreaking investigation into a generation of denominational strife among church officials, lobbyists, and activists. Documenting a wide range of reactions to two radically different events—the invasion of Iraq and the creation of the faith-based initiatives program—Tipton charts the new terrain of religious and moral argument under the Bush administration. Tipton is professor of sociology of  religion, director of Emory's Graduate Division of Religion, and a CSLR senior fellow.

The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge University Press) by John Witte, Jr. explores John Calvin's teachings on rights and liberties, church and state, and religion and politics that shaped the law of Protestant lands. Although periodically challenged by major crises, a Calvinist figure always emerged to modernize the teachings and translate them into dramatic new legal and political reforms.  Witte is Jonas Robitscher Professor of Law and CSLR director.

JFB

Citing Constitutional Concerns, LA Police Chief Opposes Proposed Paparazzi Ordinance

In a report filed with the city Police Commission, LA Police Chief William Bratton has advised the City Council to reject a proposed ordinance that would create a "personal safety zone" around celebrities, mandating the enforcement of a buffer zone between paparazzi and celebrities. As recounted in an AP report published on the First Amendment Center website, Chief Bratton's reservations about the ordinance included concern that the enforcement of the ordinance would raise Equal Protection issues and would create uncertainty for police officers as they tried to discern who qualified as a celebrity and as a member of the paparazzi. Speaking for the police department at a police commission meeting on the ordinance, Cmdr. Kirk Albanese underscored that existing laws could be used to address dangerous or abusive behavior by photographers.  Councilman Dennis Zine had introduced the ordinance in February in response to the mayhem and policing costs that ensued from the paparazzi swarm that appeared when singer Britney Spears was transported from her home by ambulance earlier in the year. Zine argued that existing laws did not seem provide an effective response to such events and that safety hazards posed by photographers' obstruction of roads and of hospital entrances called for a different approach.

JFB     

Maryland Cyber-Bullying Legislation Awaits Signature by Governor

As reported by the Student Press Law Center(SPLC), both houses of the Maryland legislature have passed legislation, HB 1099, to address cyber-bullying.  As summarized by the SPLC, the legislation has the following components:

The bill requires the state board of education to develop a model policy prohibiting bullying in schools, and it requires each county board to adopt its own policy by July 1, 2009 based on the model.

Unlike some other cyber-bullying laws, Maryland's bill says even if the harassment takes place off school grounds, as long as it "substantially disrupts the orderly operation of a school," administrators can report the incident.

The bill defines "bullying, harassment, or intimidation" as anything that is "threatening or seriously intimidating" and creates a hostile educational environment by interfering with a student's education, or their physical or psychological well-being. Unlawful bullying includes harassment "motivated by an actual or a perceived personal characteristic," such as race, sex, religion or disability.

The prohibition against bullying covers "intentional conduct including verbal, physical, or written conduct, or an intentional electronic communication."

The extension of the law's reach to activity that occurs outside of school and uses no school resources represents a potentially controversial and constitutionally questionable feature as does the scope and potential ambiguity of the description of that which could be construed to be unlawful bullying or harassment under the law's terms.

As the SPLC report notes, if the legislation is signed by the governor, Maryland will be join thirteen other states with cyber-bullying laws. Legislation on this subject is also pending in six other states.

JFB

Maryland AG Issues Opinion Finding Gaithersburg Anti-Solicitation Ordinance Unconstitutional

The Maryland Attorney General's Office has issued an opinion finding that an anti-solicitation ordinance enacted in 2007 by the city of Gaithersburg is unconstitutional. The ordinance addresses solicitations by both pedestrians and by persons in vehicles, making it unlawful to solicit or to attempt to solicit employment, donations, alms or subscriptions when one party is on a public or private roadway, sidewalk, driveway, parking area or alley, including drive lanes, medians and curbs and the other is in a vehicle. However, the law excludes "any activity conducted within or in accordance with the procedures of a lawfully approved formal assembly site for day workers, or a lawfully approved employment center use".

The opinion first noted that the ordinance's regulation of roadways would be preempted by the Maryland Vehicle Law. Its remaining provisions, addressing conduct in vehicles, on sidewalks or in parking areas, represented violations of the First Amendment as they were not, under the AG's analysis, sufficiently narrowly tailored. The opinion noted that much of the regulated activity takes place in locations understood to be public fora and that an ordinance attempting to establish reasonable time, place and manner restrictions on such speech must be content-neutral and must be narrowly tailored to serve a significant government interest while leaving open ample alternative channels of communication. The ordinance's content-neutrality had been a subject of dispute with critics charging that it was targeted at solicitations of employment by day laborers perceived to be immigrants and possibly undocumented workers.  However, the AG opinion saw the ordinance as written to aim at the conduct of solicitation, not the content thereof, whatever the underlying motivation for its enactment may have been.  However, although the ordinance did ostensibly pursue an important public objective, avoiding safety hazards to motorists and pedestrians on the city's roads, it reached speech soliciting employment or donations in circumstances and in areas, such as parking zones, where no traffic danger would ensue from conversations between persons in cars and pedestrians.             

The opinion had been requested by the Maryland ACLU. As described in a prior post, a similar Arizona ordinance was recently challenged by the ACLU Immigrants' Rights Project and MALDEF.

JFB

Raid on FDLS Texas Compound Draws Scrutiny

Amidst the release of additional information about the allegations prompting the raid of the Texas Fundamentalist Church of Jesus Christ of Latter Day Saints (FDLS) compound and the removal of hundreds of children living there, some attention has been directed to how the handling of this situation will affect the sect members' future behavior and the attitude they and other members of isolationist groups will have toward the state. One such commentary appears on the Washington Post/Newsweek On Faith blog.

The New York Times, Washington Post and Houston Chronicle all provide extensive reports about what led up to the raid and what authorities found in this community originally headed by Warren Jeffs, now imprisoned in Utah after his conviction for being an accomplice to rape.

JFB

Jefferson Center Announces Muzzle Award Recipients

The Thomas Jefferson Center for the Protection of Free Expression has announced the recipients of its 2008 Muzzle Award. The awards, first conferred in 1992, are described by the Center as "a means to draw national attention to abridgments of free speech and press and, at the same time, foster an appreciation for those tenets of the First Amendment. Citing how the principle that "the importance and value of free expression extend far beyond the First Amendment’s limit on government censorship", the Center includes acts of private censorship in its annual roster of dubious achievements. 

This year's "honorees" include the Federal Communications Commission, selected as only the second recipient of a Lifetime Muzzle Award for its enforcement of indecency restrictions on broadcasters. Announcing the 2008 Muzzles, Jefferson Center director Robert M. O’Neil said,

This year, perhaps more than any other, the incidents on which the Muzzles are based range from the imperious to the ridiculous. On one hand, the display of nooses during a civil rights march and the standing on a U.S. flag during the funeral service of U.S. soldier serve as reminders of the fundamental principle that true freedom of speech extends even to protecting expression that most in our society would find repugnant. On the other, the idea that someone in the United States today could be criminally prosecuting for cursing in their own home at an overflowing toilet, or that a rape victim could be barred from using the term “rape’ at the trial of her accused assailant, strains credibility to such a degree it is difficult to believe it actually happened.

More information about this year's "winners" and those of prior years can be found in the Muzzle Archives on the Center's Website.    

JFB

Virginia Law Restricting Liquor Ads in College Newspapers Invalidated

In a commentary posted on the First Amendment Center's website, Gene Policinski, the Center's vice president and executive director, examines the recent federal magistrate's decision invalidating Virginia's restriction on liquor ads in college newspapers and why such laws are flawed in constitutional and practical terms.  In an opinion written by then Judge Samuel Alito, the Third Circuit had previously invalidated a similar Pennsylvania statute in Pitt News v. Pappert, 379 F.3d 96(3rd Cir. 2004).

JFB

Status Report on Grassley Investigation of Televangelists

Melissa Rogers provides updates on recent developments in Senator Grassley's investigation of the activities of six televangelists' ministries that enjoy tax exempt non-profit status while engaging in lavish expenditures to support the lifestyles of their leaders. Among the issues covered are how Senator Grassley is responding to the refusal of Creflo Dollar and Kenneth Copeland to comply with any requests for information and documents, the position articulated by Copeland's attorney in his response to the Grassley requests, and the responses provided by Eddie Long and Benny Hinn.

JFB          

Dorf Findlaw Commentary On Summum Monument Case

In a new Findlaw commentary entitled "A Small Religion Brings a Big First Amendment Question to the Supreme Court: When Does Private Religious Speech Become Government Speech?", Prof. Michael Dorf addresses the significance of the Summum monument case, discussed here in a prior post. 

JFB

First Amendment Scholarship Update

The following are recently published articles on First Amendment topics:   

1) Dena S. Davis (Cleveland-Marshall College of Law), Religion, Genetics, and Sexual Orientation: A First Cut , Kennedy Institute of Ethics Journal (forthcoming).  The SSRN abstract states:

This essay explores the implications for religions of a genetic etiology of sexual orientation, using Judaism as an example. It begins with a brief overview of the current state of the scientific research into genetic elements of sexual orientation. Then it looks at contemporary attitudes toward homosexuality across the Jewish spectrum, and inquires whether there is any evidence to suggest that a scientific finding of a genetic basis for sexual orientation would have a positive influence on those who currently condemn homosexuality.

2) Nicholas James Nelson (Notre Dame Law School), Note - A Textual Approach to Harmonizing Sherbert and Smith on Religious Accommodations, 83 Notre Dame Law Review ---- (2008). The SSRN abstract states:

In Sherbert v. Verner, the Supreme Court interpreted the First Amendment's protection of religious freedom to require strict scrutiny - the highest standard of constitutional review - for laws that burden the exercise of religion. This required the courts to invalidate religion-burdening laws unless they were the least restrictive means of implementing a compelling governmental interest.

But from the perspective of religious freedom, the theoretical results of Sherbert were quite problematic. This Note explains how the adoption of strict scrutiny, by requiring courts to determine whether a specific religious practice was so harmful as to imperil a compelling state interest, also tended to force the federal judiciary to evaluate the merits and demerits of religious practices themselves - precisely the type of government inquiry the First Amendment must prohibit, if it is to mean anything at all.

This reveals the dilemma at the heart of the religious accommodations question: we cannot exempt every religious practice, no matter how abhorrent, from regulation; and yet to permit the government to decide which religious practices are acceptable would be to eviscerate the First Amendment. What is needed is some proxy standard that will clearly and reliably distinguish tolerable from intolerable religious practices without requiring direct government evaluations thereof.
This Note proposes that the text of the First Amendment itself supplies such a standard. The Constitution's requirement that Congress make no law prohibiting free exercise, I suggest, should be interpreted as invalidating a statute only if that statute burdens religious practices that were being conducted in the United States at the time of its adoption.

3) Steven Douglas Smith (University of San Diego School of Law), Constitutional Agnosticism, Religious Pluralism, and the Problem of Community. The SSRN abstract states:

The text of the Constitution nowhere mentions God; the document is, as some scholars put it, "godless." What is the significance of that silence? This brief essay, written for a discussion conference on religion, multiculturalism, and citizenship, considers and criticizes two possible responses, which would hold (a) that the Constitution's silence about God has no constitutional implications and (b) that the Constitution's godless qualities entails a general policy of mandatory public secularism. Instead, the Constitution's silence about God reflects a policy of "constitutional agnosticism" that leaves governments free to make affirmations (religious or otherwise) while assuring citizens that these affirmations are not constitutive of the political community. The essay argues that constitutional agnosticism, though misunderstood and subverted by modern Supreme Court doctrine, is a valuable strategy for addressing the challenge of e pluribus unum.

4) Alexander Benard , The Advantage to Islam of Mosque-State Separation: What the American Founders Can Teach, 8 Policy Review --- (Spring 2008). The SSRN abstract states: 

Mosque-state separation and religious freedom appear to have stalled in the Middle East. Recent public opinion surveys, however, indicate that in a number of key Middle Eastern countries, including Iraq and Algeria, a majority of people favor mosque-state separation. The question, then, is how to help this majority advance its interests vis-a-vis vocal extremists. This article presents an example of a different group of advocates for separation of religion and politics - the Founding Fathers of the United States of America. It argues that their approach serves as a valuable template and shows how the arguments they used to persuade their deeply religious fellow citizens to favor separation of religion and politics can be applied in the Middle East today.

5) Caroline Mala Corbin (Columbia Law School),  Mixed Speech: When Speech Is Both Private and Governmental, Forthcoming in the New York University Law Review. The SSRN abstract states:

Speech is generally considered to be either private or governmental, and this dichotomy is embedded in First Amendment jurisprudence. However, speech is often not purely private or purely governmental, but rather a combination of the two. Nonetheless, the Supreme Court has not yet recognized mixed speech as a distinct category of speech. This Article suggests considerations for identifying mixed speech and exposes the shortcomings of the current approach of classifying all speech as either private or governmental when determining whether viewpoint restrictions pass First Amendment muster. Treating mixed speech as government speech gives short shrift to the free speech interests of speakers and audiences. According it private speech status overlooks compelling state interests, including the need to avoid establishment clause violations. This Article concludes that a better approach to mixed speech is to subject viewpoint restrictions to intermediate scrutiny. This will allow a more nuanced and transparent balancing of interests than the present either-or approach.

6) R. George Wright (Indiana University Purdue University Indianapolis), An Emotion-Based Approach to Freedom of Speech. The SSRN abstract states: 

Free speech law often protects emotional expression. However, we lack an understanding of the scope and limits of protection for emotional expression. This Essay seeks to make progress toward such an understanding because a better understanding and grasp of the nature of emotion itself is crucial to achieving this goal. If we can arrive at an improved understanding of emotions and how they can be expressed, we will be better able to explain when we do and do not constitutionally protect the expression of emotion.

7) Justin Nemunaitis (Student - Chicago-Kent College of Law), Mayer v. Monroe: The Seventh Circuit Sheds Freedom of Speech at the Classroom Door, 2 Seventh Circuit Review --- (2007). The SSRN abstract states:

During a curriculum-specified class discussion of the war in Iraq, a sixth grader asked her teacher, Ms. Mayer, if she would ever march to protest the war. The school dismissed the teacher for answering the student. In Mayer v. Monroe County Community School Corp., the Seventh Circuit ruled that no teacher has the First Amendment right to express an opinion in the classroom. The case inappropriately applied the U.S. Supreme Court's recent Garcetti v. Ceballos decision in a way that overruled previous precedent. This Note will argue that the Seventh Circuit should have followed its earlier decisions by asking the school to show a legitimate pedagogical reason for its decision.

8)  Patrick M. Garry (University of South Dakota Law School), A New First Amendment Model for Evaluating Content-Based Regulation of Internet Pornography: Revising the Strict Scrutiny Model to Better Reflect the Realities of the Modern Media Age, in Brigham Young University Law Review (2007). The SSRN abstract states:

In the modern media age, the number of media venues, along with the types of information and programming those venues carry, is exploding. Nowhere is that explosion more evident than with the Internet. On the positive side, the Internet offers a wealth of information and communications opportunities. But, on the negative side, it brings a boundless store of harmful material within easy access of children. In recognition of the destructive effects of such material - especially obscenity and pornography - Congress on several occasions has tried to curb the accessibility of this material to children. The Supreme Court, however, has struck down these attempts using a strict scrutiny approach.

Part I of this Article outlines the case against the Court's current use of strict scrutiny. This approach hinges on a single factor: whether or not a regulation of speech hinges on a content distinction. Once such a distinction is found, the law is almost always struck down, regardless of the speech burdens actually imposed by the law, whether the subject speech is in plentiful supply in other media venues, or whether the laws would result in a banishment of certain ideas from the public discourse. This myopic focus on content discrimination is outmoded in today's multimedia world and prohibits regulations of speech even when the burdens imposed by the law are slight and the speech remains available and accessible in the broader marketplace of ideas.

Part II of the Article proposes a new judicial model for evaluating content-based laws regulating media programming that is not political speech. This new model examines the actual burdens placed on the subject speech. It also considers perhaps the most vulnerable freedom in the current media environment - the freedom of the unwilling recipient to avoid unwanted and offensive media speech. Furthermore, the new model - a variation of the intermediate scrutiny approach now used for so-called content-neutral regulations of speech - takes into account and incorporates the realities of the modern media world. It does so by recognizing that there is a vast array of media channels through which any one type of speech can flow, and that a restriction of speech in one venue may not rise to the level of an unconstitutional censorship.

9) Orly Lobel (University of San Diego School of Law), Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations, forthcoming in the 2008 California Law Review. The SSRN abstract states:

Ranging from strict disclosure prohibitions to generous monetary incentives for informants, the legal approaches to conflicts between organizational loyalty and legal compliance reveal a deep ambivalence about the role of individual dissent in group settings. In fact, recent constitutional and private law cases have had the undesirable effect of denying protections to those most likely to identify and report corporate misconduct. This article argues that, particularly in light of broad shifts from command-and-control regulation to new governance processes, the corollary to skepticism about government's ability to remedy organizational illegalities is the ability of individuals to internally confront violations. The article develops a way to reconcile the pervasive tensions of conflicting obligations by connecting organizational citizenship to both institutional learning and broader civic obligation and by developing a systemic linkage between the substance of dissent and its form. It calls for the adoption of sequenced protections creating a reporting pyramid that prioritizes internal problem-solving when feasible. The analysis of mediating the conflicting demands of citizenship and organizational citizenship extends more broadly to legal debates on family immunities in criminal procedure, civic disobedience and military hierarchies, and professional roles in legal ethics, bringing analytical clarity to dilemmas about following rules while maintaining independent judgment.

10) Sunny Woan (Santa Clara University), The Blogosphere: Past, Present, and Future; Preserving the Unfettered Development of Alternative Journalism, 44 California Western Law Review --- (2008). The SSRN abstract states:

This article emphasizes the importance of preserving the unfettered development of alternative journalism. In its analysis, the article takes on a global perspective of blogosphere regulation, examining the European Union's approach alongside China and the United States. Unlike the national borders of the physical world, people create borders in the cyber world based on communities. These online communities tend to be more segregated by homogenous interests than the natural diversity of world nations. This article contends that first, due to the unique conditions of the blogosphere, traditional regulation is infeasible, and second, the most effective means of standard setting on the blogosphere is by self-regulation. The article then explains this concept of self-regulation and proposes a hands-off approach by the government to the blogosphere.

11) Josh Blackman (George Mason University School of Law), Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual's Image Over the Internet. The SSRN abstract states:

Internet giant Google recently began photographing American streets with a new technology they entitled Google Street View. These high-resolution cameras capture people, both outside, and inside of their homes, engaged in private matters. Although the present iteration of this technology only displays previously recorded images, current privacy laws do not prevent Google, or other technology companies, or wealthy individuals, from implementing a system that broadcasts live video feeds of street corner throughout America. Such pervasive human monitoring is the essence of the phenomenon this Article has termed omniveillance. This threat is all the more realistic in light of projected trends in technology, and the path of future Internet developments. This Article proposes the right to your digital identity, a tort to balance privacy rights with free speech, and provide a remedy for victims of omniveillance.

This tort emerged from existing privacy torts, borrowing from criminal law, criminal procedure, and paparazzi and voyeurism statutes, and develops a workable framework to remedy victims of omniveillance. The tort has four factors that are balanced to create a workable equilibrium between privacy and free speech. The first element modifies the tort of intrusion upon seclusion and adopts a reasonable expectation of privacy standard. The second element serves as a reflection on society's changing perceptions of offensiveness, lowering the standard from "highly offensive" to "offensive," mirroring contemporary sensibilities. The third element of the tort focuses on the new, more pervasive methods of electronic data dissemination over social networks and viral Internet distributions, and accords greater liability to larger and more indiscriminate distribution. The fourth element weighs the newsworthiness exception from the tort of public disclosure of private facts against the level of intrusion into an individual's privacy, attempting to strike a fair balance so that privacy has a chance to outweigh free speech when applied in our courts. Enforced as a common law tort, where each state can define the contours of the tort to meet their citizen's specific needs, the right to your digital identity is a viable remedy for victims of omniveillance.

12) Edward Lee (Ohio State University Moritz College of Law), Warming Up to User-Generated Content, 2008 University of Illinois Law Review ---- . The SSRN abstract states:

The most significant copyright development of the twenty first century has not arisen through any law enacted by Congress or opinion rendered by the Supreme Court. Instead, it has come from the unorganized, informal practices of various, unrelated users of copyrighted works, many of whom probably know next to nothing about copyright law. In order to comprehend this paradox, one must look at what is popularly known as "Web 2.0," and the growth of user-generated content in blogs, wikis, podcasts, "mashup" videos, and social networking sites like Facebook and MySpace. Although users often create new works of their own, sometimes the works are "remixed" with copyrighted content of others.

The growth of user-generated content challenges the conventional understandings of copyright law under which copyrights are understood largely as static and fixed from the top down. Under this view, copyright holders are at the center of the copyright universe and exercise considerable control over their exclusive rights. Obtaining prior authorization from the copyright holder is typically assumed to be necessary for others legally to re-use the copyrighted work, apart from a fair or other permitted use (which often is not easy to determine in advance).

This Article challenges the conventional account of copyright law, particularly as applied to Web 2.0. The formalist understanding of copyright law ignores reality. The Copyright Act is riddled with gray areas and gaps, many of which persist over time because so few copyright cases are ever filed and the majority of those filed are not resolved through a judgment. My core thesis is that informal copyright practices - i.e., practices that are not authorized by formal copyright licenses, but whose legality falls within a gray area of copyright law - effectively serve as important gap-fillers in our copyright system.

The informal practices related to user-generated content provide a compelling example of this phenomenon. These practices make manifest three significant features of our copyright system that have escaped the attention of legal scholars: (i) our copyright system could not function without informal copyright practices; (ii) collectively, users wield far more power in influencing the shape of copyright law than is commonly perceived; and (iii) uncertainty in formal copyright law can lead to the phenomenon of "warming," in which - unlike chilling - users are emboldened to make unauthorized uses of copyrighted works based on seeing what appears to be an increasingly accepted practice. In the Web 2.0 world, warming may serve as a powerful counterforce to the chilling of speech.

JFB

Judge Kozinski Addresses Pepperdine Symposium on the Increasing Obsolescence of Current First Amendment Doctrine

On Opinio Juris Roger Alford provides a brief summary of Judge Kozinski's remarks at Pepperdine School of Law's recent symposium, "Free Speech & Press in the Modern Age -Can 20th Century Theory Bear the Weight of 21st Century Demands?".  Alford writes:

Ninth Circuit Chief Judge Alex Kozinski declared in a speech today that the First Amendment is dead. In a keynote speech entitled “The Late, Great First Amendment” given at a Pepperdine Law Review symposium, Kozinski offered a detailed analysis of the consequences of the Internet age for First Amendment jurisprudence. I’m sure that Eugene Volokh, Jack Balkin and other bloggers at the First Amendment conference will have their own take on his speech. But from my perspective, the essence of his speech was that, in a day when Internet speech is not capable of suppression, the ability of the First Amendment to have a moderating effect is now gone. What use does a constitutional limitation have on government restrictions on speech when the government no longer has the ability to control speech?

Kozinski argued that today we live in an age when whistleblowers are unknowable, documents are leaked without consequence, blogger journalists are anonymous and judgment proof, and the mainstream media is in financial peril. Any attempts to restrict speech results in that speech replicated a thousand times over. As such, the First Amendment jurisprudence that we cherish so dearly is now obsolete.

Alford then proceeds through Judge Kozinski's treatment of a variety of specific precedents that he perceives to have limited utility in the Internet age.  The full text of Judge Kozinski's speech will be included in an upcoming Pepperdine Law Review symposium edition.

JFB

   

Garcetti Again Applied To Bar Protection of School Employee Speech

From the Adjunct Law Profs blog:

11th Holds That Disgrunted Employee's Comments Are Not Protected Under The First Amendment.

Myles v. Richmond County Board of Education, __F.3d __(11th Cir. March 18, 2008), is a case which illustrates how narrow the protection is for public employee speech. The court held that a school district employee's complaint was not on a matter of public concern, and thus not protected by First Amendment. Although a school district employee's complaints that unqualified persons were being appointed to positions in the school district touched on an important matter of public interest, her speech, which centered predominantly around, and were driven by, her displeasure with having been denied promotions, was not on a matter of public concern, and thus not protected by First Amendment. The employee did not address her complaints to the public and voiced her concerns as a disgruntled employee rather than as a citizen concerned about corruption.

JFB