First Amendment Law Prof Blog

ACLU Seeks to Restore Good Name of Two Islamic Charities Named as Unindicted Co-Conspirators in Trial of Group Accused of Aiding Hamas

In a press release issued last week the ACLU National Security Project and the Texas ACLU announced the filing of a motion in federal district court in Dallas seeking to help two Islamic charities redress the stigmatizing effect of having been identified as "unindicted co-conspirators" in the prosecution of a third group, the Holy Land Foundation, which is charged with providing material support to a terrorist organization, Hamas. The press release states:

The American Civil Liberties Union and the ACLU of Texas filed a legal challenge today to clear the names of two mainstream Muslim organizations labeled by the government as "unindicted co-conspirators" in its criminal case against the Holy Land Foundation (HLF). Government attorneys publicly identified the Islamic Society of North America (ISNA) and the North American Islamic Trust (NAIT) as co-conspirators before the HLF trial, even though neither organization was the subject of a criminal investigation or charged with any crimes.

"By publicly branding these groups as criminals without providing a forum for them to defend themselves or clear their names, the government has acted with blatant disregard for their constitutional rights," said Hina Shamsi, staff attorney with the ACLU National Security Project. "The government's action is especially shameful because the charge it makes is so inflammatory - it has caused each organization's reputation and good name to be dragged through the mud. The government has a constitutional obligation to correct the record and clear the names of ISNA and NAIT."

In today's motion, the ACLU is asking a federal court to declare the government's public naming of ISNA and NAIT as unindicted co-conspirators a violation of the Fifth Amendment; to order the expunging of the organizations' names from any public record that identifies these groups as unindicted co-conspirators; and to block the government from labeling ISNA and NAIT this way in the future without specific permission from the court.

The motion is available from the ACLU website.

JFB

Does Religious Belief Face Hostility From Academics?

A series of posts from Rick Hills on Prawfsblawg, Eugene Volokh, Ilya Somin, and Todd Zywicki on Volokh Conspiracy, and Bill Stuntz on Less Than the Least discuss whether openly religious people, especially evangelical Christians, face hostility and bias among academics or if such perceived reactions actually reflect antagonism to the assumed political views of such believers rather than to their faith affiliations.

JFB 

Turkey: Developments Under Article 301

There's progress and retreat to report this week regarding Turkey's on-going efforts to reform Article 301. 

Human rights organizations applauded the decision reached by a Turkish court on Thursday to acquit one of the owners and an editor of Agos newspapers of "attempting to influence the judiciary."  Charges were brought after Agos published an article in 2007 that criticized the prosecution of Agos editor and human rights activist Hrant Dink under Turkey's notorious Article 301. 

But earlier in the week a court in Istanbul convicted publisher Ragip Zarakolu of "insulting the state."  In 2004, Zarakolu published The Truth Will Set Us Free: Armenians and Turks Reconciled, in which author George Jerjian calls upon Turkey to recognize an Armenian genocide and work towards reconciliation with Armenian nationals.  It appears from reports that Zarakolu was officially charged with violating a statute that was subsequently repealed by Article 301's prohibition on insults to "Turkishness."  Article 301 was amended in April 2008 to prohibit insults to the "Turkish nation" and approval from the justice minister is required before charges can be filed.  The judge apparently ruled that the earlier statutory provision, not Article 301, applied to Zarakolu's case.  His conviction nonetheless raises questions about the prospect of reform in Turkey since it is the first speech-related conviction to come after penal code restrictions were relaxed in April.

-Kathleen A. Bergin

   

California Homeschooling Case To Be Re-Argued on Monday

The School Law Blog reports that the Liberty Counsel has announced that In re Rachel L. v. The Superior Court of Los Angeles, the case examining the circumstances under which parents can homeschool their children, will be re-argued in the California Court of Appeal on Monday.  That court's original ruling, which has been withdrawn pending re-argument, found that parents had to have a teaching credential in order to educate their children at home. Liberty Counsel has filed an amicus brief  in the case on behalf of nineteen member of the U.S, House of Representatives, including Rep. Howard McKeon of California. McKeon had introduced H. Res. 1076, which exhorted courts to "uphold the fundamental and constitutional right of parents to direct the upbringing and education of their children". A prior post briefly described the court's original decision and provided links to relevant commentary and news coverage. Another post examined the reaction of Muslim families in California to the decision given the increasing number of such familes opting to homeschool their children. 

JFB
 

Sharia Councils Used to Resolve Certain Legal Disputes in Britain

Today's LA Times includes an article on how the British civil legal system incorporates Sharia law in the resolution of particular types of disputes, particularly family and property disputes among some British Muslims.

JFB

Filings in First Amendment Cases On the Supreme Court's Agenda Next Term

As noted on Scotusblog, the last merits brief filed by outgoing Solicitor General Paul Clement was the government's brief in its appeal of the Second Circuit's decision in the "fleeting expletives" case, FCC v. Fox Television Stations, Inc.  The FCC concluded that Fox violated the broadcast indecency prohibition when the network aired Cher and Nicole Richie using the "F-word" during the 2002 and 2003 Billboard Music Award programs.

The government's brief challenges the appellate court majority's conclusion that the FCC's decision to alter its prior policy regarding the use of expletives as a basis for an indecency violation was arbitrary and capricious and was not supported by a reasonable explanation for the change. In 2001 the FCC had announced that it would would apply a contextual analysis which could find that even a relatively isolated or fleeting use of graphic or explicit expletives constituted a violation of the agency's prohibition of indecency.  Prior to the issuance of the 2001 policy statement, the agency had applied the indecency prohibition to expletives only when such language was used in a deliberate and repetitive manner. Below, dissenting Judge Pierre Leval had concluded that the Second Circuit should defer to the FCC's determination that such a policy change was necessary because such a determination was within the realm of the agency's statutorily conveyed discretion and reflected the use of agency expertise. The SG's brief acknowledges that the Second Circuit opinion also identified potential First Amendment problems with the new enforcement policy but urges that the Court need not address such concerns now, given the squarely presented Administrative Procedure Act question.

Lawyers for Pleasant Grove City, Utah filed their petitoner's brief this week in  (See this prior post on the certiorari petition in the case.)The city is represented by the American Center for Law and Justice and Akin Gump Strauss Hauer & Feld. Steven Wu of Akin Gump discusses the filing in a post on Scotusblog. The city's brief (2008 WL 2445506) presents this summary of its position:

[T]he Tenth Circuit made several crucial errors in constitutional analysis. First, the court below fundamentally misapprehended the distinction between government speech and private speech in this case. Second, the court below misidentified the relevant “forum.” Third, the court erroneously held that city parks are traditional public fora for private, unattended, permanent monuments. Fourth, the lower court erred by holding that a city's acceptance of donated monuments creates a designated public forum for private speech through such monuments.

Only through this succession of missteps could the Tenth Circuit reach the decision it did. This Court should reverse.

Disposition of the present case is straightforward: there is no forum for private speech in the government's choice of what monuments permanently to display, and the government is free to adopt the theme or message it desires in selecting such monuments. The government's acceptance and display of one or more donated monuments does not require that a government park be turned into a cluttered junkyard of monuments contributed by all comers.

In short, accepting a Statue of Liberty does not compel a government to accept a Statue of Tyranny.   

Adoption of the city's position would appear to grant any governmental entity potentially excessive latitude in the selection and presentation of monuments or other displays in public spaces. The Supreme Court, likely apprehensive about authorizing a bizarre competition among purveyors of message-bearing installations in the public square, will probably seek a more narrow analytical approach to this controversy, perhaps seeking refuge in a distinction between long ensconced monuments that can be seen as reflective of the historic traditions of a community and the contemporary introduction of counter-monuments or oppositional imagery. A variation on this approach was used by Justice Breyer in his Van Orden concurrence, when he warned about the public reaction to and misinterpretation of the ordered removal of a then familiar and longstanding Ten Commandments monument in an effort to enforce a norm of neutrality. Similarly, in  Freethought Soc. of Greater Philadelphia v. Chester County, 334 F.3d 247 (3rd Cir. 2003), the court incorporated such reasoning as the basis for the rejection of the claim that the Establishment Clause required that an 82 year old plaque of the Ten Commandments had to be removed from the facade of the county courthouse, a structure on the National Registry of Historic Places.

JFB   

Comics, Congress and the Corruption of American Youth

In “The Ten-Cent Plague: The Great Comic-Book Scare and How It Changed America”, Columbia journalism professor David Hadju examines how the comic book industry came under congressional scrutiny as a potential cause of juvenile delinquency. In 1954 the  Senate Judiciary Committee, chaired by Republican Senator Robert Hendrickson of New Jersey, held televised hearings on how the images and ideas presented in some of America's comic books were potentially dangerous. In what Hadju analogizes to contemporary debates about the need to regulate violent video games, Congress briefly considered how to regulate the comic book threat out of existence in the Cold War years.  Reviews of this exploration of an interesting chapter in the history of popular culture and Congress's flirtation with regulation of this segment of mass media appear in The New Yorker and the New York Times, and Hadju is interviewed on a recent edition of one of the major influences on modern popular opinion, The Colbert Report. The book's first chapter can be read via the Times' First Chapters section.

JFB             

First Amendment Center To Hold Conference Marking 30th Anniversary of FCC v. Pacifica

On June 26 the First Amendment Center will hold a conference on “Indecency & Violence in the Media: FCC v. Pacifica 30 Years Later.” The event will be held at the Newseum in Washington, D.C., and will begin with remarks by Federal Communications Commissioner Deborah Taylor Tate and former FCC chairman Richard E. Wiley, whose tenure included the filing of the Pacifica complaint. The program agenda is available on the First Amendment Center website.

JFB

New Air Force Chief of Staff, A Jewish General, Will Face Challenge of Proselytization Controversies

As noted on the Religion Clause Blog and detailed in an article in The Jewish Daily Forward last week, Air Force General Norton Schwartz has been named Air Force Chief of Staff by Secretary of Defense Robert Gates. Selected in the wake of resignations of several high ranking Air Force officials after their dangereous mishandling of nuclear material was discovered, Schwartz becomes one of only three Jews among the highest ranking officers in the armed services. Lieutenant General Steve Blum directs the National Guard, and General Robert Magnus serves as the assistant commandant of the Marines. The Forward reported that Schwartz's religious identity was highlighted in Iranian press coverage of his appointment and produced unsubstantiated Iranian press speculation there that it was somehow connected to a change in US policy regarding the use of military force against Iran. Schwartz's predecessor as Chief of Staff had been identified as an opponent of such military action.

Among the controversies to be addressed by General Schwartz will be the ongoing allegations of proselytization by evangelical service members and chaplains, a problem originally identified in a report by the Americans United for the Separation of Church and State in 2005. Although the Pentagon has subsequently taken steps to address the misuse of supervisory power by evangelical officers and to stem harassment of non-evangelical service members and cadets, complaints continue to surface. Mikey Weinstein, the head of the Military Religious Freedom Foundation, has already requested a meeting with Schwartz to discuss the proselytization and harassment issues. Barry Lynn, executive director of Americans United for Separation of Church and State, reacted to news of General Schwartz's selection by saying, “He has the capacity to bring change and change this general feeling that the Air Force Academy likes you more if you’re an evangelical Christian.”

JFB

New Book on the Fundamentalist Experience in America

The Christian Science Monitor provides a review of In the World but Not of It: One Family’s Militant Faith and the History of Fundamentalism in America by Brett Grainger. Grainger, a graduate of Harvard Divinity School, was raised as a fundamentalist Christian but is now an Anglican.  The book offers the author's recollections of his own family's religious life, which was rooted in the “Five Fundamentals of the Christian faith”: Biblical inerrancy, Jesus’ virgin birth, the belief Jesus died for our sins, the resurrection of his body, and a doctrine of his miracles. Grainger also traces the origins of contemporary fundamentalism from Martin Luther’s 16th-century exhoration, “Sola scriptura”, through the American Puritan experience and the Niagra Bible Conference movement of the late nineteenth century, and ending with a visit to the Creation Museum in Petersburg, Kentucky, a site dedicated to teaching the public about “young earth creationism,” which asserts that the world was created according to the six day timeframe offered in a literal reading of the Genesis creation account.  An excerpt from the book and an interview with Grainger are available from NPR's Tell Me More.

JFB

New Book on Eugene Debs and the Right to Dissent

As noted on the Legal History Blog, today's LA Times presents a review of "Democracy's Prisoner - Eugene V. Debs, the Great War, and the Right to Dissent" by Ernest Freeberg, an associate professor of history at the University of Tennessee. The book is described on the website of its publisher, Harvard University Press, as follows: 

In 1920, socialist leader Eugene V. Debs ran for president while serving a ten-year jail term for speaking against America’s role in World War I. Though many called Debs a traitor, others praised him as a prisoner of conscience, a martyr to the cause of free speech. Nearly a million Americans agreed, voting for a man whom the government had branded an enemy to his country.

In a beautifully crafted narrative, Ernest Freeberg shows that the campaign to send Debs from an Atlanta jailhouse to the White House was part of a wider national debate over the right to free speech in wartime. Debs was one of thousands of Americans arrested for speaking his mind during the war, while government censors were silencing dozens of newspapers and magazines. When peace was restored, however, a nationwide protest was unleashed against the government’s repression, demanding amnesty for Debs and his fellow political prisoners. Led by a coalition of the country’s most important intellectuals, writers, and labor leaders, this protest not only liberated Debs, but also launched the American Civil Liberties Union and changed the course of free speech in wartime.

The Debs case illuminates our own struggle to define the boundaries of permissible dissent as we continue to balance the right of free speech with the demands of national security. In this memorable story of democracy on trial, Freeberg excavates an extraordinary episode in the history of one of America’s most prized ideals.

An excerpt of the book also appears on the publisher's website as well as the table of contents and index.

JFB 

Banning of Words in Criminal Trials Raises Concerns

An article in today's National Law Journal examines a development in criminal trials across the country, the banning of the use of particular words in front of the jury. Prohibited words have included "rape," "victim," "homicide," "drunk," "victim," "murderer," "killer, "and "crime scene", and their use have been forbidden as a protection of a defendant's right to a fair trial. The National District Attorneys Association characterizes such prohibitions by trial judges as the censoring of witnesses, including victims. The prohibition of the use of the word "rape" by the victim in a Nebraska case is now the subject of an appeal to the U.S. Supreme Court in Bowen v. Honorable Jeffre Cheuvront. The article quotes Akin Gump partner and First Amendment lawyer Rex Heinke, as saying, "It strikes me as a little odd that you can't use that term [rape].... "Does that mean you can't use murder, robbery, breaking and entering? ...It's pretty hard to prosecute a murder case without being able to say the word murder."

JFB

Scholarship Update

Below is a list of newly available scholarship on topics related to First Amendment issues: 

1) Ryan Joseph Vogel (U.S. Department of Defense; Public International Law & Policy Group), Free Speech in the War on Terror: Does the Military Commissions Act Violate the First Amendment?, 15 Human Rights Brief 18 (2008). Its abstract states:

On October 17, 2006, President George W. Bush signed into law the United States Military Commissions Act of 2006, responding to the Supreme Court's holding in Hamdan v. Rumsfeld. Courts will soon consider whether the MCA violates parts of the Constitution, including the First Amendment. The purpose of this article is to examine whether the MCA's material support provisions, allowing the government to try persons suspected of having provided material support to terrorists in military commissions, violate First Amendment free speech rights. This article argues that the government might avoid First Amendment challenges to the MCA by making clear distinctions between support for lawful activities not related to terrorist acts and support for unlawful, terrorist activities in the material support definitions. By narrowing the definitions of material support, the government would allow for the prosecution of dangerous forms of support for terrorists while not violating citizens' and residents' First Amendment rights of association and speech in pursuit of humanitarian activities.

2) Pascal Pascal Boyer(Affiliation Unknown) and Brian Bergstrom (Washington University, St. Louis – Department of Psychology), Evolutionary Perspectives on Religion, 37 Annual Review of Anthropology --- (October 2008). Its abstract states:

Recent work in biology, cognitive psychology, and archaeology has renewed evolutionary perspectives on the role of natural selection in the emergence and recurrent forms of religious thought and behavior, i.e., mental representations of supernatural agents, as well as artifacts, ritual practices, moral systems, ethnic markers, and specific experiences associated with these representations. One perspective, inspired from behavioral ecology, attempts to measure the fitness effects of religious practices. Another set of models, representative of evolutionary psychology, explain religious thought and behavior as the output of cognitive systems (e.g., animacy detection, social cognition, precautionary reasoning) that are not exclusive to the religious domain. In both perpectives, the question remains open, whether religious thought and behavior constitute an adaptation or a by-product of adaptive cognitive function.

3) Michael Patrick Allen (Stetson University- College of Law), The Underappreciated First Amendment Importance of Lawrence V. Texas, 65 Washington and Lee L. Rev. --- (2008). Its abstract states:

In Lawrence v. Texas, the Supreme Court declared that Texas's statute criminalizing deviant sexual intercourse between individuals of the same sex was unconstitutional. The Court opined that Texas's asserted interest in expressing moral disapproval of homosexual conduct was illegitimate. This paper discusses the First Amendment implications of the Court's morality-based rationale. Taken seriously, Lawrence has a significant effect in this area, undermining certain First Amendment doctrines while strengthening others.

The Article first addresses what the Court said about morality and lawmaking and also what it must have meant. It concludes that the Court held that morality can still play a role in lawmaking but it cannot be the sole or dominant rationale for a law. The Article next turns to Lawrence's implications for First Amendment doctrine focusing in particular on obscenity and its hate speech.

While not universally accepted, it is conventional wisdom that the Court's decisions allowing the regulation of obscene material are largely based on moral disapproval of that type of expression. If that is the case, a faithful application of Lawrence would at a minimum require a reexamination of current doctrine. Thus, considering the Court's obscenity jurisprudence illustrates Lawrence's potential to undermine certain aspects of First Amendment doctrine.

4) Richard W. Garnett (Notre Dame), Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses, Villanova Law Review (forthcoming 2008). The abstract states:

In recent years, several prominent scholars have called attention to the importance and role of "First Amendment institutions" and there is a growing body of work informed by an appreciation for what Professor Balkin calls the "infrastructure of free expression." The freedom of expression, he suggests, requires "more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]." The intuition animating this scholarship, then, is that the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of, certain institutions, newspapers, political parties, interest groups, libraries, expressive associations, universities and so on. These "First Amendment institutions" are free-speech actors, but they also play a structural or, again, an "infrastructural" role in clearing out and protecting the civil-society space within which the freedom of speech can be well exercised. These institutions are not only conduits for expression, they are also "the scaffolding around which civil society is constructed, in which personal freedoms are exercised, in which loyalties are formed and transmitted, and in which individuals flourish.

Similar "infrastructural" claims can and should be proposed with respect to the freedom of religion. Like the freedom of speech, religious freedom has and requires an infrastructure. Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience. The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them. Accordingly, the theories and doctrines we use to understand, apply and enforce the First Amendment's religious-freedom provisions should reflect and respect this fact. If we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Professors Lupu and Tuttle have put it, whether "religious entities occupy a distinctive place in our constitutional order[.]"

5) Ann Bartow (University of South Carolina School of Law), Pornography, Coercion, and Copyright Law 2.0, 10 Vanderbilt Journal of Entertainment and Technology Law --- (2008). The abstract states:

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their corporate counterparts, these user-generators may increasingly rely on copyright law to protect their creations in the future.

While legal scholars have addressed the copyright law's role in incentivizing the creation and consumption of creative content in general, its effect on the creation and consumption of pornography has largely been ignored. Since pornography performers are at risk of abuse by the creators of pornography, particularly those that are filmed or photographed unknowingly or those who have sexual images of themselves distributed against their wishes, it is important consider what approaches there may be to reduce that risk, including the possibility of altering the copyright framework with respect to pornography.

Copyright laws do not provide ownership interests or control mechanisms to the subjects of pornographic material, and instead permits the creators to benefit at the expense of the subjects when their participation has not been consensual. Providing this type of control - namely by requiring the creator to show that the subjects' participation was voluntary as a condition of providing copyright protection - would help reduce the risks faced by pornography performers. Promulgating a moral approach to structuring copyright protections is already one goal that is animating calls for reform of the current system. Copyright law should link the ability to register and enforce copyrights on pornographic works to the creators' compliance with a regulatory scheme designed to promote the safety and well-being of pornographic performers by confirming their consent.

6)Marvin Ammori (University of Nebraska at Lincoln - College of Law), Content Neutrality and Content Promotion, 61 Federal Communications Law Journal --- (2008). The abstract states:

Scholars and judges generally assume that the cornerstone of free speech doctrine is the distinction between content-based and content-neutral laws. Despite the distinctions wide acceptance, the distinction lacks any precedential or normative basis unless it also accounts for an equally important distinction. The scholars conventional view of content-analysis overlooks the difference between government banning a book or recommending it. Content-based laws that suppress specific content, like banning a television show, should be problematic, but content-based laws that promote specific content, such as promoting educational and political shows, should not be.

Precedent and the First Amendments' underlying normative concerns both require this distinction and support content-based laws promoting democratic content. The precedent in almost every area of First Amendment doctrine applies minimal scrutiny to content-based promotion. To reach these results, courts usually claim to apply one of several 'exceptions' to content-analysis, but these many exceptions actually add up to a rule: content-based promotion of speech does not receive heightened scrutiny. This rule serves the normative goals of the First Amendment. Exceptions to this rule - the most notable of which applies to emerging electronic media - are a judicial mistake that should be corrected.

7) Eric S. Nguyen (Student - Harvard Law School), Weight Loss Testimonials: A Critique of Potential FTC Regulations on Diet Advertising, 63 Food & Drug Law Journal --- (2008). The abstract states:

Each year, millions of consumers purchase diet products ranging from herbal supplements to meal replacement drinks. Companies like Weight Watchersand Jenny Craig devote tens of millions of dollars of their annual budget toadvertising. At the center of much of the industry's marketing efforts are television advertisements featuring consumers who have experienced great success with such products. Concerned that these testimonials consistently mislead consumers, the Federal Trade Commission has suggested that it may promulgate more restrictive advertising guidelines. Industry watchers have suggested concrete revisions.The most aggressive proposal would restrict advertisers to featuring only those consumers who have experienced typical weight-loss results. Other proposals call for companies to include in their advertisements a table of detailed statistics on typical weight loss. This article argues that these leading proposals for change are overly broad and likely to be found unconstitutional under the First Amendment. It suggests that Congress and the Commission should instead devote greater resources to the post-market enforcement of the existing guidelines, which already require that testimonials be both representative of what consumers will generally achieveand confirmed by adequate substantiation.

8) Elisa F. Kantor (Student, George Washington University Law School), Note - New Threats, Old Problems: Adhering to Brandenburg's Imminence Requirement in Terrorism Prosecutions. The abstract states:

Of late, several Muslim citizens in the Virginia and DC area were convicted of conspiring to commit terrorist acts against the United States. In these and other similar cases, the government appears to have changed its approach to prosecuting terrorism from one of crime solving (by finding and convicting after the fact) to one of prevention (by finding and convicting before the alleged act occurs). Most recently, Ali Al-Timimi was sentenced to life in prison because he told a group of Muslim men to go to Afghanistan and fight with terrorist forces following the attacks of September 11. Federal prosecutors alleged that Al-Timimi had incited his listeners to engage in unlawful acts against the United States, and that because he had encouraged the men to train with terrorist forces, he was responsible for their crimes.
In order to prosecute Al-Timimi's speech, the government must satisfy the Supreme Court's Brandenburg v. Ohio test by proving that the expression was directed to inciting or producing imminent lawless action and was likely to incite or produce such action. In Al-Timimi's case, however, the important requirement of imminence was not met. The men to whom Al-Timimi spoke did not arrive at terrorist training camps until weeks later, demonstrating that Al-Timimi's speech was not immediate enough to pass the Brandenburg standard. Al-Timimi's case is therefore troubling as precedent, because it indicates that the government may circumvent the imminence requirement of Brandenburg in the context of domestic terrorism prosecutions.

This Note argues that it is essential to adhere to Brandenburg's imminence requirement. This Note demonstrates that Al-Timimi's speech was not imminent under the Supreme Court's jurisprudence, and discusses the reasons why a Muslim imam's speech must not be prosecuted unless it passes the Brandenburg test. The Note also discusses the larger implications for failing to adhere to the imminence requirement in the war on terror. A strict defense of Brandenburg's temporal element is essential because will protect the American public from speech that escalates the threat of domestic terrorist activity while guarding speech that deserves to compete in the marketplace of ideas.

9) Warren W. Hannon (Affiliation Unknown), Possible Growth for Newspapers. The abstract states:

The noble premise of the First Amendment and the critical relationship between a free press and a free society needs a new business model. Slow growth, let alone no growth, and declining circulation numbers can dampen investor confidence and trigger lay-offs and other cost-reducing measures.

A possible way for growth within the newspaper industry is by adopting a new business model in franchising sub-station outlets (of around 10,000 subscribers) into profit centers. They could let these centers operate under certain conditions that would allow the franchise to add local advertisments from businesses within their areas to the newspaper before delivery. They could also serve as a test market for national firms who wish to test their product in a controlled region.

Newspapers circulation is declining because the traditional printed product is losing its appeal in the competition with other new media and the cost to produce such a product daily increases as new methods and technologies appear. No matter how the industry improves the pre-press operation or speeds up both the press and production operations, the current final preparation of completes for delivery - and the delivery step itself - is going to force management to yell Uncle!

10) Adrien K. Wing (University of Iowa - College of Law) and Ozan O. Varol (United States Court of Appeals for the Ninth Circuit - Law Clerk), Is Secularism Possible in a Majority-Muslim Country?: The Turkish Example, 42 Texas International Law Journal --- (2007). The abstract states:

This article is the second in which Dean Wing explores the notion of secularism in different societies. The first was Critical Race Feminism Lifts the Veil?: Muslim Women, France and the Headscarf Ban, 39 U.C. Davis Law Review 745 (2006) (with Monica Nigh Smith). The article abstracted here examines the past, present, and future of secularism in the Republic of Turkey. The co-author Ozan Varol is a Turkish national, who was able to access Turkish sources. Part II provides an overview of the principle of secularism generally, and in Turkey specifically, and describes how Turkish secularism differs from the Western notion of secularism. Part III discusses the role of religion in the Ottoman Empire, the predecessor to the modern day Turkey, in order to provide a background for the legal developments that occurred after the Empire's collapse. Part IV outlines the reforms that Turkish founding president Atatýrk and his supporters implemented following the downfall of the Ottoman Empire and demonstrates how a fundamentalist empire became a strictly secular government in less than twenty years. Part V provides a thorough examination of the various provisions of the Turkish Constitution that relate to secularism. Part VI demonstrates the application of the principle of secularism in Turkey by discussing the legal history of the ban against the wearing of the Islamic headscarf in Turkish educational institutions. This Part also analyzes the November 10, 2005 decision of the Grand Chamber of the European Court of Human Rights in Leyla Sahin v. Turkey, which upheld the Turkish government's ban and di not find it violated the European Convention on Human Rights. Finally, Part VII speculates on the future of secularism in Turkey and discusses whether it is possible to implement any fundamental changes in the regime.

JFB