First Amendment Law Prof Blog

Turkey Moves Forward on Article 301 Amendment

In global free speech matters, Turkey is inching closer to amending Article 301, the provision in its criminal code that prohibits "insults to Turkishness."  The Turkish Press reports that the Justice Commission is scheduled to debate a proposed revision on Friday that would change the language to prohibit insults to the "Turkish nation."  Permission from the President would also be required before prosecutors move forward with charges, and reductions in jail sentences are also being considered.  Article 301, which has been used to prosecute numerous journalists and writers, including Orhan Pamuk, is considered a road block to Turkey's efforts to join the EU. 

It is unclear how the new language would be interpreted by prosecutors, courts, or the President, and whether it would satisfy EU human rights standards.  Human Rights watch has said the amendment "merely tinkers with the wording of the law, while maintaining its most problematic features."  Cengiz Aktar, an EU expert at Bahcesehir University in Istanbul, adds that any amendment to Article 301 would have a minimal impact on Turkey's EU bid given remaining free speech restrictions in the penal code.

-Kathleen A. Bergin

NYC Restaurants to Post Calorie Info Over 1A Objection

New York City restaurants will soon have to disclose nutritional information to customers, the New York Sun reports.  On Wednesday, Judge Richard Howell dismissed a challenge brought by restaurateurs who claimed that the new regulation violated the First Amendment by forcing them to speak.  The regulation applies to chain restaurants with more than 15 locations nationwide and goes into effect on Tuesday.  City officials have said they will wait until June 4 to begin enforcing the law.  The Second Circuit Civil Rights Blog has more. 

If you can't wait until Tuesday to see how your favorite fast food measures up, the Washington Post offers this on-line guide.   Read it and weep.

-Kathleen A. Bergin

Newseum Opening Ceremony Features Remarks By Chief Justice Roberts

The Newseum held its official opening ceremony on Friday, attracting more than 10,000 visitors to what is the nation's only interactive museum dedicated to the Freedom of the Press and news history.  The $450 million facility took more than seven years to build, and includes among its 14 galleries exhibits featuring a history of the First Amendment, Pulitzer Prize winning photography and a journalists memorial.  It also houses 15 theaters and two broadcasting studios.  House Speaker Nancy Peolsi and Representative John Lewis were among the featured presenters, as was Chief Justice Roberts who provided the keynote address.  A transcript of the Chief Justice's remarks is available from the Federal News Service.  Full coverage of the hour long ceremony is available from C-Span,   

-Kathleen A. Bergin

"Morphed" Child Pornography: Lost Between Ferber and Ashcroft

    Last week a court in Baldwin County, Alabama convicted 55 year old Ronald Jay McFadden of possessing and producing child pornography.  According to this article, the defendant created some sort of visual collage by pasting together photos of nude adults with separate pictures of children. The defense attorney plans to appeal, offering up the First Amendment as a basis for reversal. If the facts asserted in the article are true, none of the children themselves were engaged in sexual acts, there was no sexual assault, and no camera admitted into evidence. The pictures of the children, taken alone, were "innocent" to use her words, and cut from magazines and medical books before being arranged on a piece of cardboard interspersed with images of adult porn.

The case appears to fall somewhere between New York v. Ferber and Ashcroft v. Free Speech Coalition. Ferber allows a state to prosecute "mere possession" of child pornography because its production involves physical and emotional abuse of children, and because the psychological trauma is reinforced in the distribution of images that record the event. What states can’t prohibit is "virtual child pornography," that is, computer generated sexualized images that do not involve real children. No actual children, no actual harm, said the Ashcroft Court. The statute in that case also prohibited "computer morphing" described as altering innocent pictures of real children so they "appear to be engaged in sexual activity." But that wasn’t an issue in the case, and the Court said nothing about it other than to acknowledge the possible relevance of Ferber in an actual challenge.

So where would this leave Mr. McFadden? Ashcroft doesn’t quite fit because the children depicted in his collage were real children. No pixels. No computer code. But Ferber doesn’t quite fit either. None of the children were photographed in a sexualized manner so none could have been harmed in the original production.

But is it accurate to say there was no real injury? Or at least risk of injury?  No psychological harm if those real kids happen upon the images later in life? Does it matter how old they are when photographed? When the images are discovered? How crude or unbelievable the images appear?

On that last point, the Court’s reference to Ferber on the issue of "computer morphing" in Ashcroft is surely relevant. "Morphing" images of real children via computer would no doubt produce a much more life-like simulation than a glue stick and tape. The process used to sexualize the images of real children might not be relevant in some circumstances but it might matter if the resulting visuals are so artificial that no reasonable person would mistake them for children in fact engaged in sexual activity.

If these considerations don’t work for Mr. McFadden on appeal (and I’m not saying they should), perhaps they’ll at least give lawmakers something to think about when drafting future anti-child pornography legislation.

-Kathleen A. Bergin

cross-post The Faculty Lounge

Arizona Debates Liability for Publishers and Broadcasters

The Arizona State Senate Judiciary Committee was scheduled today to debate House Bill 2660, a measure that seeks to hold publishers and broadcasters responsible for crimes committed by other individuals.  Representative Warde Nichols told one local news organization that the bill meant to target "the worst of the worst of society," purveyors of "dangerous" or "obscene" material, but the bill is broad enough to potentially include bookstores, news organizations, cable companies and other businesses that sell anything from crime novels to hunting magazines.  Christopher Finan, president of the American Bookselles Foundation for Free Expression in New York worries that imposing such liability will discourage the sale of protected material because it is unconstitutionally vague and overbroad. 

He may be right.  If enacted into law, the statute would cover any person who produces, publishes or distributes "dangerous or obscene" material when there is a "significant risk" that the material would "substantially assist, encourage or result" in another person committing an act of terrorism or other felony.  The statute's definition of what is "dangerous" or "obscene" attempts to track current constitutional standards, taking language directly from Brandenburg v. Ohio and Miller v. California, respectively.  How one is to measure the severity or risk or potential assistance or encouragement, however, is not defined, leaving a common person to guess as to just what kind of material falls into the prohibited category.  Moreover, individuals who "knew, should have known, or recklessly disregarded" a significant risk are liable for subsequent injuries.  Yet at least with regard to prosecutions involving "dangerous" material, this provision goes beyond what Brandenburg allows states to prohibit, that is, actual "advocacy" that is "directed" to inciting imminent lawless action. 

-Kathleen A. Bergin

A colleague of mine often quips about teaching reconstruction, the most difficult part of his legal history seminar. "So much promise, so little follow through" is his take on it. I’ve come to feel the same about affirmative action. Not because the end of affirmative action would compare to failed reconstruction, but because its impossible to adequately teach it in the first year Con Law curriculum. We get through the standard of review, and spend a few minutes debating the merits of "skepticism, consistency and congruence," but its impossible to distill three hundred years of relevant history and half a century of precedent into one or two 80 minute class sessions. And so I’m left to bounce the big theory questions off of my colleagues in the blogosphere.

Don’t go yet - I promise not to debate the merits of affirmative action or the wrong turns taken in Croson and Adarand. And I’ll spare you one of my favorite discussions - how the rhetoric of affirmative action cases seeks to rehabilitate whiteness in the face of rampant societal discrimination against people of color. (On the latter point see Cecil J. Hunt, II, The Color of Perspective: Affirmative Action and the Rhetoric of White Innocence, 11 Mich. J. Race & L. 477 (2006)). Instead, I’ll ask just one pointed question about one particular Justice: why is Justice O’Connor so skeptical of legislative motives in affirmative action cases when she is so deferential in other individual rights cases, specifically, those involving the Establishment Clause?

Consider one example.

The purpose behind a challenged statute can be dispositive in both First and Fourteenth Amendment cases.  An Establishment Clause challenge to a "moment of silence" statute could turn on whether the legislature intended to "promote religion over non-religion" in a way that gave rise to a religious "endorsement." Likewise, an Equal Protection challenge to a race-based affirmative action program could turn on whether the legislature’s purpose was "invidious or benign" since only certain benign purposes qualify as constitutionally "compelling" under the appropriate standard of review.

The Court assumes that its ability to discern the true legislative purpose behind a particular statute inheres in its ability to identify hidden factors that might be at play. The investigation follows familiar protocols - relying on the statute’s articulated purpose or statements embedded in the drafting history, looking to whether a statute operates in practice as it was intended, or measuring the burdens imposed on competing interests. In Con Law parlance, the inquiry varies from one of "rationality" to "strict scrutiny" but in the end boils down to how much courts trust lawmakers to disclose their true objectives or, more precisely, how determined judges are to look beyond stated intentions.

In the affirmative action context, Justice O’Connor (and indeed a majority of the Court) is exceedingly skeptical of lawmakers. She explained in City of Richmond v. Croson that "absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Based on this reasoning, she concluded in Adarand v. Pena that "unless Congress clearly articulates the need and basis for a racial classification, and [appropriately tailors the classification,] the Court should not uphold [an affirmative action] statute." In O’Connor’s view, it is not enough to presume, as Justice Stevens would have done, to know the difference between good intentions and bad, between statutes that "operate as an engine of oppression" and those that "foster equality in society." Only by applying strict scrutiny was she confident that the Court could ferret out invidious classifications that masquerade as benign.

The risk of legislative deception was also apparent in Wallace v. Jaffree, which involved an Establishment Clause challenge to Alabama’s moment of silence statute. O'Connor's concurring opinion acknowledged the possibility that "a legislature will enunciate a sham secular purpose for a statute," but nonetheless called for a "deferential and limited" inquiry into the legislature’s motive. Only if it is "beyond purview" that lawmakers intended to endorse religion, she said, should the statute be struck down.

O'Connor's "we know it when we see it" approach to religious endorsements in Wallace stands in sharp contrast to the skepticism she displayed when faced with legislative efforts to remedy past discrimination. Wallace, Croson and Adarand each acknowledge the difficulty of identifying unconstitutional motives, but only in Wallace was she confident in the Courts ability to "distinguish[] a sham purpose from a sincere one . . ."

I wouldn’t be the first to accuse O’Connor of picking favorites among claimed constitutional rights, or even plausible constitutional plaintiffs. But I can’t help but wonder whether that, at least in part, explains the inconsistency here. While its understandable that the constitutionality of a statute might turn on the weight of the legislative motive, its not clear why the measure of scrutiny a court undertakes to identify that motive should turn on the nature of the right at issue. And yet for O’Connor, it does.

Perhaps this mixes apples with oranges, as I have habit of doing. Or perhaps the focus on these three cases obscures the importance of more recent developments. After all, it was O’Connor who authored Grutter v. Bollinger, saving diversity-based affirmative action programs from an Equal Protection challenge even under strict scrutiny review. And she did vote to strike down a Ten Commandments display in McCreary County v. ACLU. There she joined the majority in demanding more than the government’s "transparent claim to secularity," and considered the historical evolution of the display relevant to the question of legislative purpose under the Establishment Clause. But in the end, maybe there is some value in comparing apples to oranges - establishment claims to equal protection challenges. Perhaps reflecting on Croson and Adarand against the backdrop of Wallace shows that we might gain some additional understanding of O’Connor’s affirmative action cases by actually looking beyond them.

-Kathleen A. Bergin

crosspost: The Faculty Lounge

Speech and the Public Schools After Morse v. Frederick: Papers Presented at Lewis and Clark Law School Symposium Available Online

As noted on Prawfsblawg, the Lewis and Clark Law Review has made the contents of its new symposium edition available online. A list of the symposium pieces (with accompanying summaries) is presented below:

1)Kenneth W. Starr, Our Libertarian Court: Bong Hits and the Enduring Hamiltonian-Jeffersonian Colloquy , 12 Lewis & Clark L. Rev. 1 (2008)
The Supreme Court’s decision in Morse v. Frederick, otherwise known as the “Bong Hits 4 Jesus” case, highlights the non-realization of Chief Justice Roberts’s goal of greater cohesion and unanimity among the nine Justices. Bong Hits is an example of the Chief Justice appearing increasingly among the majority, Justice Stevens speaking vigorously for the minority, and Justice Thomas’s iconoclastic approach to constitutional issues. Importantly, the case also reveals a trend of alliance between Justices Kennedy and Alito and their shared Hamiltonian skepticism of local power, as well as Chief Justice Roberts’ unsuccessful attempts to limit constitutional questions to narrow grounds of decision. This Essay explores the divided factions of the Court through the lens of Bong Hits and offers further insight into the Justices’ constitutional jurisprudence.

2)Erwin Chemerinsky, How Will Morse v. Frederick Be Applied?, 12 Lewis & Clark L. Rev. 17 (2008)
In 2007, the Supreme Court decided Morse v. Frederick, a 5-4 decision in which Chief Justice Roberts, writing for the majority, decided that a student could be punished for displaying a banner with the words “BONG HiTS 4 JESUS” on a public sidewalk. In this Essay, the author explores the implications of this decision, focusing on the important question of how it will be understood and applied by school officials, school boards, and lower court judges. The author suggests that the opinion was misguided and—from a First Amendment perspective—highly undesirable.
The author argues that the decision cannot be justified under existing First Amendment principles, and cautions that it could be seen as authorizing punishment of students for speech that is deemed distasteful or offensive, even just juvenile. However, the concurring opinion by Justice Alito suggests that the decision is exceedingly narrow and based on a very unusual factual context. The author notes that if Justice Alito’s opinion is seen as defining the scope of the holding, the case establishes only the power of schools to punish speech encouraging illegal drug use rather than giving school officials great discretion to punish student speech.
Despite the fact that Morse v. Frederick is consistent with decisions from the Supreme Court and lower federal courts over the last two decades, the author’s hope is that Chief Justice Roberts’s majority opinion will be read through the prism of Justice Alito’s concurring opinion, thereby having little effect on the already very limited First Amendment rights of students.

3) Sonja R. West,  Sanctionable Conduct: How the Supreme Court Stealthily Opened the Schoolhouse Gate, 12 Lewis & Clark L. Rev. 27 (2008)
The Supreme Court's decision in Morse v. Frederick signaled that public school authority over student expression extends beyond the schoolhouse gate. This authority may extend to any activity in which a student participates that the school has officially sanctioned. The author argues that this decision is unsupported by precedent, and could encourage schools to sanction more events in the future. Because the Court failed to limit or define the power of a school to sanction an activity, the decision could have a chilling effect on even protected student expression. The author commends the Court for taking up this issue after a long silence, but concludes that the messy facts in the case chosen made the case a poor vehicle for the Court to address the underlying school-speech issues.

4) Richard W. Garnett , Can There Really Be “Free Speech” in Public Schools? ,12 Lewis & Clark L. Rev. 45 (2008)
The Supreme Court’s decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students’ speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in Morse is one that the various Justices who wrote in the case never squarely addressed: What is the “basic educational mission” of public schools, and what are the implications of this “mission” for officials’ authority and students’ free-speech rights? Given what we have come to think the Free Speech Clause means, and considering the values it is thought to enshrine and the dangers against which it is thought to protect, is it really possible for the freedom of speech to co-exist with the “mission” of the public schools? We all recall Justice Jackson’s stirring rhetoric in the West Virginia flag-salute case: “If there is any fixed star in our constitutional constellation,” he proclaimed, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion[.]” But, is this really true—could it be true?—in public schools?

5) Stephen Kanter, Bong Hits 4 Jesus as a Cautionary Tale of Two Cities, 12 Lewis & Clark L. Rev. 61 (2008)
In September of 1987, several high school students in Tigard, Oregon wore various T-shirts allegedly promoting the use of alcohol. In January of 2002, a number of students in Juneau, Alaska held up a banner with the words “BONG HITS 4 JESUS” on it while the Olympic torch passed by their school. Both groups of students claimed their First Amendment rights were violated when they were summarily punished for their actions; however, the processes and the end result in each case were quite different. This Article recounts how the Tigard High administration turned the situation into a learning experience. A mock Supreme Court was convened, with high school students acting as attorneys on both sides of the issue. The author then compares the treatment and outcome of the Oregon T-shirt incident with that of the Alaska banner incident, concluding that the administration in the “Bong Hits” case missed a valuable learning opportunity, ultimately resulting in dire consequences for student speech. The Article analyzes the five separate opinions in Morse v. Frederick and criticizes the United States Supreme Court for diluting student rights. The author draws important lessons from different Justices’ views to suggest what the future may portend for the direction of the current United States Supreme Court.

6) Douglas Laycock, High-Value Speech and the Basic Educational Mission of a Public School: Some Preliminary Thoughts , 12 Lewis & Clark L. Rev. 111 (2008)
This Article assesses the alarming proposition at the core of the school’s argument in Morse v. Frederick: that a school has constitutional power to suppress any speech inconsistent with its self-defined “basic educational mission.” The phrase was taken from an earlier opinion upholding punishment of the “vulgar and lewd” manner in which an idea was expressed. It would be a very different thing to extend this concept to suppression of the idea itself.
This Article explores the extent to which inculcating particular ideas can be part of a school’s mission, and the still narrower set of cases in which suppression of dissent can be an acceptable means of inculcating those ideas. While the Court cannot identify a clear principle that describes all the cases in which student speech can be suppressed, it can identify a clear counter-principle: the right to freely state political and religious ideas is protected. Tinker v. Des Moines Independent Community School District is an essential protection for such high-value speech, and all subsequent cases in the Supreme Court appear to reaffirm this core holding of Tinker.
The Court’s public-forum doctrine is no substitute for Tinker; public-forum doctrine would permit even-handed suppression of broad categories of speech. The school’s “basic educational mission” standard, unless carefully defined and limited in ways the school did not even attempt, would eliminate even the requirement of viewpoint neutrality and substantially repeal the Free Speech Clause in public schools.

JFB

Justice Scalia Comments on Separation of Church and State

How Appealing provides links to press coverage of Justice Scalia's visit last week to the University of Virginia and remarks he made there about what the Constitution prescribes with regard to the separation of church and state. The Justice, a former UVA law professor, offered the comments while on campus to receive the 2008 Thomas Jefferson Foundation Medal in Law.

JFB
 

The Closing of Urban Catholic Schools

Today’s New York Times and yesterday's Washington Post both include articles on how declining enrollments in some urban Catholic schools are prompting school closings as well as initiatives by Catholic schools to shift to operating as charter schools. The efforts of the Catholic Archdiocese in D.C. to continue to operate some schools as charters has been discussed in a prior blog post and received further examination in a Post report on Thursday.

Much of this coverage may be traced to the Thomas B. Fordham Institute's release last week of a new report, "Who Will save America’s Urban Catholic Schools?". The report observes that since 1990 over 300,000 students have been displaced from predominantly inner city Catholic schools when the facilities were closed due to the rising operating costs. The report warns that closings on a similar scale will be repeated in the next twenty years unless a variety of steps are taken by the Church, philanthropists, and government.  Citing the contributions Catholic schools have made by providing an educational lifeline in failing urban school districts, the report seeks to underscore the urgency of stemming the school closing trend.  However, the report does not cast voucher programs as the remedy to save urban Catholic education and acknowledges that enrollments in many Catholic schools in Milwaukee continue to sink despite that city's operation of the largest government-funded voucher program in the United States.

How the state governments of Rhode Island and Pennsylvania responded to the economic hardships and potential closings of parochial schools in those states in the late 1960's led to the Supreme Court's articulation of the now much criticized Lemon v. Kurtzman test for identifying the existence of an Establishment Clause violation in relationships between religious institutions and government entities.  In his final State of the Union address in January President Bush announced plans to hold a White House Summit on Inner City Children and Faith-Based Schools later this year.  Whether that event leads to the formulation of any new strategies to assist Catholic remains to be seen.       

JFB            

"Founding Faith" Reviewed by Richard Brookhiser in Sunday NY Times

Today's New York Times Book Review section includes Richard Brookhiser's favorable review of "Founding Faith - Providence, Politics, and the Birth of Religious Freedom in America" by Stephen Waldman, a journalist who is a co-founder of Belief.net, a website on religion in American life.  Brookhiser praises Waldman for his presenting the Framers' religious views with an appreciation of the complexity and diversity of the perspectives on faith among the Founders, a group that included deists and orthodox Christians as well as men with more unconventional and experimentalist attitudes. Brookhiser also applauds Waldman for deflating the myth that America was founded to be a "Christian nation" and for drawing attention to the role that the persecution of the Baptists in Virginia played in shaping the constitutional ideas of James Madison, who saw in the Baptists' plight a validation of the need for the separation of church and state.  Waldman also brings other neglected figures into the spotlight as significant participants in the founding period's struggles with how to the government and American society should address matters of faith. Such often neglected participants include American Freemasons and  British evangelist George Whitefield. However, Brookhiser asserts Waldman may have given too little consideration to the views of Samuel Adams, described by Brookhiser as "the most pious and most radical of the Founders. 

JFB