First Amendment Law Prof Blog

Philadelphia Tour Guide Licensing System Challenged

This week the Institute for Justice, an active opponent of governmental regulatory initiatives, filed a complaint challenging Philadelphia's new system of tour guide licensing, set to go into effect on October, 2008. In the press release announcing the filing of the suit, the Institute for Justice describes the case's background and objectives as follows:

“The government cannot be in the business of deciding who may speak and who may not,” said Robert McNamara, a staff attorney with the Institute for Justice, a national public interest law firm with a history of defending free speech and the rights of entrepreneurs.  “The Constitution protects your right to communicate for a living, whether you are a journalist, a musician or a tour guide.  It makes no more sense to let city officials decide who is allowed to talk about history than it would to let them decide who is allowed to talk about sports.”

The new law makes it illegal to give a tour for compensation of the city’s main tourist area without first submitting a written application, paying a fee, providing proof of insurance and passing a written examination in order to be granted a license to tour.  The program will be administered and the test developed by an administrative agency to be named by the mayor’s office.  No test has been made public.

The law is targeted at speech and applies only to someone who guides or directs people within the city or offers to do so while “provid[ing] information on the City’s geography, history, historic sites, historic structures, historic objects or other places of interest.”  The program also discriminates against small or independent tour operators.  The law gives the administrative agency complete discretion to exempt large operators—who would be better able to cope with the costs of regulation—from the testing requirements, provided the companies have training programs that are “equivalent.”

The irony of forbidding people to talk about Philadelphia’s history—including the history of the Framers’ enshrining fundamental American liberties in the Constitution—is not lost on Mike Tait, Josh Silver and Ann Boulais, three Philadelphians who make their living by telling visitors and natives about the history, culture and architecture of the place they love.  Mike, Josh and Ann are serious about their city’s history—they share a deep commitment to accuracy as well as entertainment in their tours—and they are also serious about the liberties protected by the Constitution, which is why they joined together with the Institute for Justice to strike down the Philadelphia tour guide licensing scheme as a violation of their freedom of speech and right to earn an honest living.

“It is the right of every American to challenge laws that are unfair and wrong,” said Mike Tait.  “As a matter of fact, that was fundamentally what the signing of the Declaration of Independence in Philadelphia—and the birth of our nation—was all about.” 

“This unfortunate law is part of a nationwide explosion of occupational licensing that has occurred in recent decades,” said Institute for Justice President and General Counsel Chip Mellor.  “The city’s decision to force tour guides to obtain government licenses before speaking is just another surprising example of government gone wrong and precisely the type of regulation the Institute was created to combat.”

In contrast, the city sees the licensing provisions as a reasonable effort to ensure that visitors to Philadelphia's many historic sites receive accurate information and appropriate service.

JFB      

 

Rejected Applicant Files Suit Challenging DOJ's Selection of Honors Program Attorneys on Basis of Political Affiliation

Law.com reports that Sean Gerlich, a University of Georgia law grad, has filed suit against the Justice Department, alleging that the use of ideological and/or political criteria as the basis for the selection of attorneys for the Department's Honors Program violated applicants'  First Amendment rights and contradicted the requirements of the Privacy Act, the Federal Records Act, and the Civil Service Reform Act.

JFB   

The History and Future of the State Secrets Privilege

In a review this week, Adam Liptak looks at how Barry Siegel's "Claim of Privilege"  exposes the origins of the now familiar claim of state secrets privilege. While describing the book as "light on analysis", Liptak praises Siegel's presentation of much historical detail regarding United States v. Reynolds, 345 U.S. 1 (1953), the case in which the Supreme Court accepted the legitimacy of the assertion of such a claim by the government. Regrettably, the Court appears to have done so based on misrepresentations by the government about the contents of an Air Force accident report sought in a negligence case filed by the widows of three men killed in a B-52 bomber crash.

In January of this year, Senators Kennedy and Specter introduced the State Secrets Protection Act, S. 2533, which seeks to accommodate the competing demands of government and litigants in a way that avoids needless frustration of meritorious challenges to government misconduct.

JFB

Discussion of Obscenity Enforcement

The LA Times presents a discussion of the definition and criminalization of obscenity. Barry McDonald,an associate professor at Pepperdine University School of Law, and John Stagliano, an adult entertainment director, producer and distributor, exchange views on the legitimacy of obscenity laws.

JFB

First Amendment Scholarship Update - Speech

The following are newly available papers on topics related to speech and expression:   

1) Helen L. Norton  (University of Colorado School of Law), The Measure of Government Speech: Identifying Expression's Source, forthcoming in 88 Boston University Law Review 587 (2008). The abstract states:

Public entities increasingly invoke the government speech defense to First Amendment challenges by private parties who seek to alter or join what the government contends is its own expression. These disputes involve competing claims to the same speech: a private party maintains that a certain means of expression reflects (or should be allowed to reflect) her own views, while a governmental body claims that same speech as its own, along with the ability to control its content.

This Article proposes a framework for resolving these disputes. It starts by examining the theoretical and practical justifications for insulating government speech from First Amendment scrutiny. In particular, it addresses the benefits of government speech in facilitating self-governance so long as such speech remains subject to political accountability checks like petitioning and voting, It also explores the body of social science research that describes how a message's source shapes its effectiveness, with special attention to the government's role as the source - or perceived source - of a particular view. Because misattributing private views to the government can skew public debate and frustrate First Amendment values by misleading onlookers into evaluating ideas differently than they would if those views were accurately assigned to a private party, government has a legitimate interest in shielding its own expression from private speakers' efforts to join, alter, or misappropriate it.

Emphasizing that government speech is most valuable and least dangerous when its governmental source is apparent, the Article then proposes that a public entity seeking to claim the government speech defense must establish that the contested expression is governmental in origin both formally (i.e., that the government expressly claimed the speech as its own when it authorized the communication) and functionally (i.e., that onlookers understand the speech to be the government's at the time of its delivery). This dual requirement maximizes prospects for meaningful credibility assessment and political accountability by identifying two junctures at which government must expose its expressive choices to the public: when it decides to express a certain idea and when it actually communicates that idea.

The Article then draws from relevant experience in other areas to examine a variety of characteristics - or "source cues" - that may signal a message's genesis as governmental or private. These include not only express indications of a message's origin, but also less direct signals like a message's physical location or onlookers' expectations based on past practice. The Article goes on to apply this framework to several recurring challenges, exploring specific features in a range of contexts that may obscure or reveal a message's governmental source. It concludes by urging that this inquiry remain focused on whether we have enough information about a message's source to identify it as the government's in a way that enables meaningful credibility and accountability checks.

2) Emily Gold Waldman (Pace University School of Law), A Post-Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise), 37 Journal of Law & Education ---(2008). The abstract states:

After the Supreme Court granted certiorari in Morse v. Frederick in December of 2006, it received an unusual mix of amicus briefs in support of ACLU-represented high school senior Joseph Frederick. Frederick, who had sued his principal after being suspended for waving a banner stating Bong Hits 4 Jesus at an Olympic torch rally that he attended with classmates during school hours, had on his side not only the usual suspects, such as the Student Press Law Center and the National Coalition Against Censorship. Also supporting him were six conservatively-oriented religious advocacy groups: the American Center for Law and Justice; the Christian Legal Society; the Alliance Defense Fund; the Liberty Legal Institute; Liberty Counsel, and the Rutherford Institute.

As these religious groups made clear in their briefs, they felt no particular affinity with Frederick's banner, which he himself described as containing mere nonsense words designed to attract television cameras. But they were concerned that in the course of resolving the case, the Supreme Court would recognize on broadly-worded grounds the school's right to censor his speech, thus setting a precedent that implicitly limited other students' rights to express their religious views at school. Their concern is not surprising: in recent years, there have indeed been an increasing number of cases involving clashes between students seeking to express their religiously-motivated views at school and schools that have restricted such messages out of concern that they will be hurtful to other students. These conflicts have generally arisen in the context of anti-gay and pro-life speech.

In Morse itself, the Supreme Court ultimately ruled for the school district on a narrow, drug-focused rationale that did not resolve the developing split over how to approach such cases. But while Morse's holding was explicitly narrow, aspects of the majority opinion and Justice Alito's concurrence do have some interesting implications for how to approach situations where students' religiously-motivated speech may be hurtful to other students.

In this Article, I weave together strands from Tinker, Fraser, and Morse, as well as from lower court decisions taking varying approaches to this issue, to propose a new standard for student speech that is potentially hurtful to other students. This approach encompasses, without being limited to, speech that is religiously-motivated in nature. I argue that student speech that is hurtful to other students (whether religiously-motivated or not) should first be divided into two categories: (1) speech that identifies particular students for attack; and (2) speech, such as the message on Harper's T-shirt, that expresses a general opinion without being directed at particular named (or otherwise identified) students. Schools should receive great latitude to restrict the first category of speech, which essentially amounts to verbal bullying. By contrast, potentially hurtful speech that does not single out specific students and simply expresses a general viewpoint should be restricted only if it is likely to materially disrupt at least one other student's education (which I define as tangibly interfering with his ability to learn and succeed at school).

3) John Fee  (Brigham Young University - J. Reuben Clark Law School )The Pornographic Secondary Effects Doctrine, forthcoming in Alabama Law Review. The abstract states:

The secondary effects doctrine has made a muddle of First Amendment law. The doctrine formally holds that a speech regulation will be treated as content-neutral if its purpose is to control the secondary effects of speech, even if it facially discriminates according to speech content. It pretends to be a general First Amendment doctrine, but in practice it is all about regulating pornographic expression. This article aims to re-evaluate the secondary effects doctrine in a way that is more transparent. Appreciating the functional basis of the secondary effects doctrine is useful for understanding the doctrine's limitations, as well as for analyzing new types of regulation that may arguably fall within its scope. It also provides important lessons for general First Amendment theory, including how cost-benefit analysis affects the constitutional rules regarding content discrimination, and how the purpose of a regulation affects the level of scrutiny that courts apply.

4) Alina Vamanu (Rutgers University, Department of Political Science) Roma Rights and the Production of Scandalous Ethnicity in the Romanian Written Media. The abstract states:

This paper analyzes the discourses around ethnicity, nationalism, and Roma rights that circulated in the Romanian media after the 1989 collapse of authoritarianism. It illuminates an interesting dynamic played out at the intra-national and inter-national levels, in a case where the notion of minority rights has been at least partly unsuccessful in contributing to a decrease in the amount of Roma-oriented media hostility. It contends that one cannot grasp the reasons for the partial failure of minority rights debates to transform oppressive majoritarian discourses and make room for appropriate ethnic representations unless one looks beyond the nation state to the global network of power relations within which countries are embedded. Specifically, minority rights are rendered partly inefficient in a state whose majority population is constructed in pejorative terms and often conflated with the Roma, an already stigmatized ethnic minority, by narratives produced within EU sites of power. Much of the Romanian media responds by constructing a clear-cut boundary between the Roma and the ethnic Romanians: it seeks to reveal what the Roma are really like, by describing them in disparaging, scandalous ways (the suggestion being that ethnic Romanians are everything that the Roma are not: honest, peaceful, hard-working citizens). The power relations between the two ethnic groups are thus being inverted: the Roma have always been disadvantaged by the Romanian majority; however, Romanian newspapers suggest that it is they (the Roma) who are aggressing us, the respectable Romanian folk. This (heavily gendered) reversal undermines the notion of minority rights.

5) Brian C. Murchison (Washington and Lee University - School of Law), The Fact-Conjecture Framework in U.S. Libel Law: Four Problems, 13 Media and Arts Law Review ---(2008). The abstract states:

A requirement of U.S. defamation law is that an actionable statement be factual in nature, but courts since Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), have had considerable difficulty in distinguishing factual from non-factual statements and in articulating the value of non-factual public discourse in all its diversity. This Article reviews four topics - intent, context, conjecture, and hyperbole - that have been particularly troublesome to courts. It argues for a fresh appraisal of Justice Brennan's dissenting opinion in Milkovich and brings into the conversation the works of several current political theorists on the contributions of passionate political rhetoric. Noting a tendency by some courts to make unfounded assumptions about the good or bad faith of speakers, the Article advocates Justice Brennan's formulation: that courts emphasize the reasonable reader's understanding of the meaning intended by the speaker. The Article next argues that such an approach may have clarified the treatment of social context in Moldea v. New York Times Co. and provided a framework for analyzing conjecture in the recent Hatfill litigation. Finally, the Article stresses the need for courts not to downplay but to affirm the value of hyperbolic speech as a component of democratic discourse on public issues of vital concern.

6) Laura A. Heymann (College of William and Mary - Marshall-Wythe School of Law), Everything Is Transformative: Fair Use and Reader Response, 31 Columbia Journal of Law & the Arts --- (2008). The abstract states:

This essay, written for a symposium on fair use sponsored by the Columbia Journal of Law and the Arts, offers an alternative theory of the concept of "transformativeness" in the fair use analysis in copyright law. Drawing on literary reader-response theory, the essay suggests that courts might determine whether a claimed fair use is transformative by considering not whether the defendant has engaged in certain activities with respect to the copyrighted work but, rather, whether the defendant's work engages with a different discursive community from the plaintiff's work.

Previous analyses have, not surprisingly, focused on section 107's directive to consider the "purpose and character of the use" as a suggestion to evaluate not how the work is perceived or interpreted but what the defendant creator intended or hoped to achieve. But virtually all work building on or incorporating another work is transformative to some extent because all creative expression is, to some degree, representational. Thus, if the goal of the transformativeness inquiry is to determine whether the second work has contributed a "new expression, meaning, or message," then it might be more fruitful to ask the transformativeness question from the reader's perspective. By considering the degree of transformativeness to align with the amount of interpretive distance that the defendant's use of the plaintiff's work creates, courts may reach different, and more appropriate, results with respect to categories of expressive work that have occasionally been deemed not transformative enough: appropriation art, in which a work is incorporated wholesale or nearly so, and satire, in which the target of the defendant's work is typically something other than the plaintiff's work.

By suggesting that virtually everything is transformative, I do not mean to suggest that nothing is infringing. But shifting the focus from author to reader may serve to remind us both of the limits of transformativeness as a key to fair use and of the fact that facilitating dissemination of multiple meanings of the same work can achieve the goal of copyright law just as well as the dissemination of multiple works. Thus, if we are to retain transformativeness as a relevant answer, let us at least ask the right question - as Foucault suggests, not "Who is speaking?" but "Who is listening?"

7) James Boyd White (University of Michigan Law School), Establishing Relations between Law and Other Forms Of Thought and Language, 1 Erasmus Law Review --- (2008). The abstract states:

The law does not, and could not, exist in an intellectual or linguistic vacuum. No one believes that the law is or should be impervious to other languages, other bodies of knowledge. In this sense the argument about the 'autonomy' of law is an empty one: law cannot be, should not be, perfectly autonomous, unconnected with any other system of thought and expression; yet it plainly has it own identity as a discourse, it own intellectual and linguistic habits, which it is our task as lawyers to understand and develop. It follows that an essential topic of legal thought is the proper relation between law and other forms of thought and expression - a topic that is important, difficult and full of interest.

8) Gary E Barnett (Student -Georgetown University Law Center), Note -The Reasonable Regulation of the Right to Keep and Bear Arms, 6 Georgetown Journal of Law & Public Policy ---( 2008). The abstract states:

The Supreme Court has recently held in District of Columbia v. Heller that the Second Amendment protects an individual right to keep and bear arms. That decision, however, is only the beginning of the inquiry. Individual rights, via the police power, are subject to reasonable regulation. The difficult question remaining is whether a particular regulation is unreasonable, unduly infringing on an individual's right to keep and bear arms, and is therefore unconstitutional. This note proposes a workable analytic approach to addressing this question. Guided by the Common Law Constructive Method, this note takes First Amendment time, place, and manner doctrine and transposes it onto the Second Amendment.

9) Cheryl B. Preston (Brigham Young University - J. Reuben Clark Law School), The Internet and Pornography: What If Congress and the Supreme Court Had Been Comprised of Techies in 1995-1997?, 2008 Michigan State Law Review 61( 2008). The abstract states:

The legislative and political choices at the birth of the information technology society caused and will likely continue to cause significant ramifications in the course of digitizing human culture. This article considers both the positive and negative ways that the crash of the Communications Decency Act (the CDA), as well as Congress and the Supreme Court's understandings of the Internet at the time, may influence subsequent technological, legal, and social developments involving the World Wide Web.

This article explores answers to these questions: What we can assume about Congress and the Supreme Court's Internet understanding in 1995-1997? What if the 104th Congress and the Supreme Court that dealt with the CDA had been more tech-savvy? Would Congress have written a better, tighter statute or none at all? What sorts of technological advancements might have been allowed to flourish, and what sorts would have stalled? Would the U.S. government have kept a tighter hold on the ability to enforce violations of law in the Domain Name System? Would the Court have framed its analysis differently, even if it ultimately ruled that the CDA was unconstitutional? How might the lives of members of the Net Generation played out differently?

After considering various arguments that the failure of the CDA was beneficial to the Internet and society, this article suggests that the CDA debacle may have cost us dearly in terms of what we value most. It looks at the importance of the continued unregulated "Wild West" mentality and the incentive of the pornography industry in developing new technology. The Article then suggests that the Wild West was sold out to economic interests anyway and that other kinds of technology were left undeveloped.

The Article surveys what happened in terms of age-inappropriate sexually explicit content online: the increase in the quantity, ease of access by children, and availability of more graphic, more intense, and more dangerous images. In addition, if an appropriate regulation were in place, perhaps the U.S. government and the public would have made different choices in spinning off Internet root control to a private corporation, the International Corporation for Assigned Names and Numbers (ICANN).

Finally, the article compares the Internet to radio and television and argues that a better informed Reno I Court might have dealt differently with the 1978 precedent of FCC v. Pacifica, even in finding the CDA unconstitutional. I conclude that the events of these early years in addressing Internet pornography laws have vastly complicated the work that must now be done.

10) Douglas E. Abrams (University of Missouri School of Law), Bullying's Effects on Equal Educational Opportunity, published in OUR PROMISE: ACHIEVING EDUCATIONAL EQUALITY FOR AMERICA'S CHILDREN, Carolina Academic Press (2008). The abstract states:

This paper outlines a coordinated public response to bullying, including cyber bullying, in the nation's public schools. Pediatric professionals have long recognized bullying as a form of child abuse, perpetrated by other children rather than by adults. With recent national surveys confirming that bullying in school has reached epidemic proportions, the American Medical Association and the National Institutes of Health now identify it as a public health crisis.

An effective response to bullying summons all components of the pediatric safety system, the public network charged with protecting children from physical and emotional harm. The network extends primarily to the schools, the juvenile and criminal courts, the child protective agency and perhaps the mental health agency, and law enforcement.

The new frontier is cyber bullying, which pediatric professionals now identify as a risk factor contributing to childhood and adolescent suicide. News headlines reporting suicides show that a few keystrokes can inflict hurt even more severe than fists or playground confrontations because Internet postings can hound the victim around the clock and off the campus.

After measuring the devastating immediate and lasting damage that school bullying can inflict on its participants (the bullied, the bystanders and the bullies themselves), this paper stresses the need for effective bullying prevention programs in the schools. The paper describes the reported effectiveness of rigorously evaluated programs, and analyzes the shortcomings in state legislation that requires schools to maintain anti-bullying policies.

Finally, the paper explores the central roles that the various members of the pediatric safety system play, consistent with First Amendment constraints, in the effort to prevent bullying and react firmly to incidents that occur. The paper presents public strategies that comply with constitutional guidelines.

JFB

Geoffrey Stone: Next President Needs Civil Liberties Adviser

In an op-ed in today's New York Times, First Amendment scholar Geoffrey Stone asks the next President to consider creating a new executive branch position, civil liberties adviser. Such a person would offer a perspective distinct from that of the Attorney General, the White House counsel and other legal advisers to the President because he or she would be focused exclusively on the advancement and protection of civil liberties and would not be charged with reconciling mixed and, as Stone notes, often conflicting objectives in the formulation of advice to the President.

Professor Stone recounts how members of particular past administrations have vigorously opposed incursions on civil liberties and have sometimes managed to thwart serious harms. He cites the role of Attorney General Francis Biddle in FDR's White House and the work of John Lord O'Brian and Alfred Bettman in the Wilson Justice Department during World War I as examples of heroic but not always successful efforts in defense of the rights of dissenters and outsiders against the weight of fear,frenzy and political expediency.  Stone voices the hope that installing an advocate for civil liberties within the executive branch would ensure that the protection of such rights remains at the forefront of every President's agenda, thereby evincing our commitment to core constitutional values. 

Stone,the Edward H. Levi Distinguished Service Professor at University of Chicago, is the author of  Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism and Top Secret: When Our Government Keeps Us in the Dark.

JFB
   

First Amendment Scholarship Update - Religion

This scholarship update presents the following recent publications on religion and its intersection with a variety of legal and social policy questions:

1)Evelyn L. Lehrer (University of Illinois at Chicago - Department of Economics; Institute for the Study of Labor), The Role of Religion in Economic and Demographic Behavior in the United States: A Review of the Recent Literature , IZA Discussion Paper No. 3541. The abstract states:

This paper presents a critical review and synthesis of recent research on the role of religion in economic and demographic behavior in the United States. Relationships reviewed include the effects of religion on investments in human capital, labor supply and wealth accumulation; union formation and dissolution; and fertility. The paper also comments on the growing literature on the implications of religious dissimilarity between the spouses; on two different, possibly countervailing ways in which religiosity may affect demographic and economic behavior; and on the importance of estimating models that allow for possible non-linearities in the effects of religiosity.

2) Brendan R McNamara (University of Washington - School of Law). Forceful Minimalism, Hein v. Freedom from Religion Foundation, Inc., and the Prudence of 'Not Doing' , Washington Law Review, May 2008. The abstract states:

Proponents of judicial minimalism argue that courts should issue narrow rulings that address only the issues necessary to resolve the case at hand and should avoid needlessly broad rulings that could result in unforeseen consequences. The recent Supreme Court decision in Hein v. Freedom From Religion Foundation, Inc. provides a compelling case study of judicial minimalism. Resisting opposing calls for broader rulings from both the concurring and dissenting justices, a plurality of the Court followed a minimalist approach to resolve a difficult question of taxpayer standing. Generally, federal taxpayers do not have standing to challenge government expenditures of tax funds in federal court. In Flast v. Cohen, the Court carved out a narrow exception for challenges to expenditures that allegedly violate the First Amendment's Establishment Clause. This exception requires a connection between the constitutional violation and Congress's use of its taxing and spending power. Hein involved a challenge to purely executive actions, and the Court faced the issue of whether to expand Flast to cover such actions. While some Justices called for completely overruling Flast in all situations and others called for expanding Flast to cover purely executive actions, the plurality took a narrower approach, denying standing without expanding or contracting the taxpayer standing doctrine. This Note builds on prior scholarship that advocates for judicial minimalism by arguing that Hein's plurality opinion demonstrates judicial minimalism succeeding in practice.

3) John H. Evans and Michael S. Evans (University of California, San Diego), Religion and Science: Beyond the Epistemological Conflict Narrative , 4 Annual Review of Sociology --- (August 2008). The abstract states:

Studies of the relationship between religion and science have traditionally assumed that any conflict that exists is based on epistemology. This assumption is built into the history of Western academic thought, the founding of sociology itself, as well as the common definitions of religion used by social scientists. This assumption has hindered the examination of the relationship between religion and science.We categorize studies of the relationship between science and religion into three groups: the symbolic epistemological conflict studies, the symbolic directional influence studies, and the social-institutional studies.We find that the social-institutional studies, which most closely examine actual public conflicts, do not presume that the conflict is over epistemological claims and offer a more general and fruitful approach to examining the relationship between religion and science.

4) Enyinna S. Nwauche (Rivers State University of Science and Technology (RSUST) - Faculty of Law), The Right to Freedom Religion and the Search for Justice Through the Occult and Paranormal in Nigeria , 16 African Journal of International and Comparative Law  35 (2008). The abstract states:

The widespread belief in the occult and paranormal in Nigeria in the context of the freedom of thought conscience and religion guaranteed by section 38 of the 1999 Constitution of the Federal Republic of Nigeria is the basis of this article which examines the search for justice through the occult and paranormal. By the paranormal which is used interchangeably with supernatural I mean phenomena which cannot be explained by science and reason. To some people "occult" does mean the same thing as paranormal. However for many others "occult" refers to paranormal phenomena which is evil and destructive and includes practices such as witchcraft.

5) David N. Cassuto (Pace University - School of Law), Animal Sacrifice and the First Amendment , included in Taimie Bryant, David N. Cassuto, Rebecca Huss, eds., ANIMAL LAW AND THE COURTS: A READER (Thomson West 2008). The abstract states:

Animal sacrifice and religious ritual have intertwined for thousands of years. The practice remains integral to Santería, an Afro-Cuban religion that has many adherents in the United States, particularly in Florida. In 1987, when the Santería Church of Lukumi Babalu Aye announced plans to open in Hialeah, Florida, the city reacted by passing a set of ordinances banning animal sacrifice. The Church sued and the issue of whether the ritual killing of animals constituted protected religious expression eventually made its way to the Supreme Court. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah asked the Court to resolve two linked constitutional questions: Does the ritual slaughter of animals constitute religious expression protected by the First Amendment of the United States Constitution? And, if so, (or even if not) may the practice be banned or regulated by the State?

These are difficult questions and the Court's attempt to answer them raises more questions still. This chapter examines the Court's reasoning in the Lukumi case to determine whether it clarified or further clouded the relationship between animal sacrifice and the First Amendment. It argues that the plurality opinion's attempt to cast the Hialeah ordinances as underperforming animal protection statutes was both misguided and counterproductive.

Defining the Hialeah ordinances as anti-cruelty rather than as anti-sacrifice enabled the Court to find the laws both overbroad and underinclusive. For those reasons, the Court deemed the ordinances to be intolerably burdensome to religious practices. This reasoning falls prey to the same imprecision the Court imputes to the challenged laws. It demands that the laws be both narrowly drawn to accomplish a specific goal while yet remaining broadly applicable to behavior that lies beyond their stated scope. Such conflicting expectations create an impossible standard. In addition, by classifying the animal sacrifice laws as failed anti-cruelty statutes and then invalidating them on First Amendment grounds, the Court jeopardized future attempts to legislate animal protection laws, even when such laws only incidentally impact religious practices.

6) Emily Gold Waldman (Pace University School of Law). A Post-Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise), 37 Journal of Law & Education ---(2008). The abstract states:

After the Supreme Court granted certiorari in Morse v. Frederick in December of 2006, it received an unusual mix of amicus briefs in support of ACLU-represented high school senior Joseph Frederick. Frederick, who had sued his principal after being suspended for waving a banner stating Bong Hits 4 Jesus at an Olympic torch rally that he attended with classmates during school hours, had on his side not only the usual suspects, such as the Student Press Law Center and the National Coalition Against Censorship. Also supporting him were six conservatively-oriented religious advocacy groups: the American Center for Law and Justice; the Christian Legal Society; the Alliance Defense Fund; the Liberty Legal Institute; Liberty Counsel, and the Rutherford Institute.

As these religious groups made clear in their briefs, they felt no particular affinity with Frederick's banner, which he himself described as containing mere nonsense words designed to attract television cameras. But they were concerned that in the course of resolving the case, the Supreme Court would recognize on broadly-worded grounds the school's right to censor his speech, thus setting a precedent that implicitly limited other students' rights to express their religious views at school. Their concern is not surprising: in recent years, there have indeed been an increasing number of cases involving clashes between students seeking to express their religiously-motivated views at school and schools that have restricted such messages out of concern that they will be hurtful to other students. These conflicts have generally arisen in the context of anti-gay and pro-life speech.

In Morse itself, the Supreme Court ultimately ruled for the school district on a narrow, drug-focused rationale that did not resolve the developing split over how to approach such cases. But while Morse's holding was explicitly narrow, aspects of the majority opinion and Justice Alito's concurrence do have some interesting implications for how to approach situations where students' religiously-motivated speech may be hurtful to other students.

In this Article, I weave together strands from Tinker, Fraser, and Morse, as well as from lower court decisions taking varying approaches to this issue, to propose a new standard for student speech that is potentially hurtful to other students. This approach encompasses, without being limited to, speech that is religiously-motivated in nature. I argue that student speech that is hurtful to other students (whether religiously-motivated or not) should first be divided into two categories: (1) speech that identifies particular students for attack; and (2) speech, such as the message on Harper's T-shirt, that expresses a general opinion without being directed at particular named (or otherwise identified) students. Schools should receive great latitude to restrict the first category of speech, which essentially amounts to verbal bullying. By contrast, potentially hurtful speech that does not single out specific students and simply expresses a general viewpoint should be restricted only if it is likely to materially disrupt at least one other student's education (which I define as tangibly interfering with his ability to learn and succeed at school).

7)Rebecca C. Morgan and D. Dixon Sutherland (Stetson University College of Law and Stetson University - College of Law),  Society's Search for a Legal and Ethical Basis of Physician-Assisted Suicide. The abstract states:

A review of the way physician-assisted suicide (PAS) is being addressed in the United States reveal three models, each functioning out of distinctive concepts of autonomy: (1) litigation, which utilizes philosophical autonomy; (2) legislation, which utilizes political autonomy; and (3) act of conscience by a physician, which utilizes consumer autonomy. Each model raises a correspondingly distinct set of ethical questions and challenges centered around their point of reference - the judicial system, voters, or the doctor-patient relationship. The challenge for religion is to address PAS in solidarity with sufferers, physicians, and the community, rather than retreating into iconoclastic dogmas.

8) D. Dixon Sutherland and Rebecca C. Morgan (Stetson University - College of Law). Dying and Social Policy in the New Millennium. The abstract states:

When it comes to length of life, the most important concern is not quantity but quality. In this essay, we offer our opinions on the causes, the issues, and the failure to implement an effective decisionmaking process outside of the courts, and conclude with a call for societal institutions to take a leadership role in resolution.

9) Lawrence McNamara (University of Reading - School of Law). Review of Neil Addison, Religious Discrimination and Hatred Law (Routledge-Cavendish 2007), 6 Entertainment and Sports Law Journal --- (2008). The abstract states:

The place of religion in society and modernity is among the most contentious political issues in the first decade of the 21st century. Faith has been remarkably resilient and resurgent in the face of the secularisation that has characterised Western liberal democracies since the Enlightenment. This heightened sensitivity to and significance of the relationships between religion and politics make Neil Addison's attention to the way that law regulates religious discrimination and hatred a timely contribution. This review looks at the ways Addison's Religious Discrimination and Hatred Law (2007) addresses these aspects of law and religion in Britain.

10) Vincent Phillip Munoz (Tufts University), Original Meaning of the Free Exercise Clause: The Evidence from the First Congress, 31 Harvard Journal of Law and Public Policy,1083 (2008). The abstract states:

Despite the vast quantity of research devoted to understanding religion and the American Founding, the original meaning of the First Amendment's Free Exercise Clause remains a matter of significant dispute. In academic literature and in Supreme Court opinions, two leading interpretations have emerged. One side understands the Free Exercise Clause to grant religious individuals exemptions from generally applicable laws that incidentally burden religious exercise, absent a "compelling" state interest in the law's enforcement. The other interpretation of the Free Exercise Clause denies that exemptions make up any part of the First Amendment. In an effort to help resolve the scholarly and the Supreme Court debate over the most accurate interpretation of history, this Article gathers and examines all the relevant evidence available from the First Congress regarding the Free Exercise Clause's original meaning. Part I of this Article reviews the originalist arguments articulated by Justices O'Connor and Scalia in their competing opinions in Boerne. Part II begins the Article's review of the records of the First Congress. Through a detailed examination of the drafting of what would become the Free Exercise Clause, Part II shows why almost no conclusions can be drawn about the Clause's original meaning from those records. Part III examines the insufficiently explored drafting of what would become the Second Amendment, documenting Congress's consideration and rejection of a right of conscientious exemption from militia service. That Congress rejected religious exemptions from militia service and that it appears to have considered such an exemption entirely without reference to what would become the First Amendment, strongly suggests that the members of the First Congress did not understand the Free Exercise Clause to grant religious individuals exemptions from generally applicable laws.

11) Pablo Branas-Garza , Teresa García-Muñoz and Shoshana Neuman (Universidad de Granada - Departamento de Teoria e Historia Económica). Unravelling Secularization: An International Study, CEPR Discussion Paper No. DP6629. The abstract states:

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

12) Ayelet Shachar (University of Toronto - Faculty of Law). Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law , 9 Theoretical Inquiries in Law 573 (2008). The abstract states:

Demands to accommodate religious diversity in the public sphere have recently intensified. The debates surrounding the Islamic headscarf (hijab) in Europe vividly illustrate this trend. We also find a new challenge on the horizon: namely, the request to "privatize diversity" through alternative dispute resolution processes that permit parties to move their disputes from public courthouses into the domain of religious or customary sources of law and authority. The recent controversies in Canada and England related to the so-called Shari'a tribunals demonstrate the potential force of the storm to come. In this Article, I offer an alternative to the presently popular vision of private diversity. This alternative is based on a deep commitment to women's identity and membership interests as well as their dignity and equality. Women's legal dilemmas often arise (at least in the family arena) from their allegiance to various overlapping systems of identification, authority and belief: in this case, those arising from religious and secular law. I argue that only recognition of women's multiple affiliations, and the subtle interactions among them, can help resolve these dilemmas. The recognition of multiple legal affiliations does not sit well with the traditional view that a clear line can be drawn between public and private, official and unofficial, secular and religious, or positive law and traditional practice. Instead, to recognize multiple affiliations is to require greater access to, and coordination among, these once competing sources of law and identity. Once we conceive of citizenship more richly, it becomes apparent that individuals and families should not be forced to choose between the rights of citizenship and group membership: instead, they should be afforded the opportunity to express their commitment to both. I offer a vision of how such an alternative might be realized.

13) Kathleen Arano and Benjamin F. Blair (Fort Hays State University and Mississippi State University - Department of Finance and Economics). Modeling Religious Behavior and Economic Outcome:Is the Relationship Bicausal? Evidence from a Survey of Mississippi Households, Journal of Socio-Economics (Forthcoming). The abstract states:

This paper examines simultaneity between religious intensity and income. Most of the literature to date has examined either the impact of religion on economic outcomes or the impact of economic outcomes on religious activities. Our estimation offers evidence of a bicausal relationship. We find frequency of attendance to religious services is a normal good; low-income households are less likely to be active in religious activities; and low-religious intensity households are less likely to be in the high-income category.

14)Judith Resnik (Yale Law School). Courts and Democracy: The Production and Reproduction of Constitutional Conflict, included in The Courts and Social Policy in the United States (2008).The abstract states:

In 2007, the United States Supreme Court issued the Carhart decision, the first since the 1973 ruling of Roe v. Wade to uphold the facial validity of a statute that limits access to abortion without express provision of an exception for a woman's health, as contrasted with her life. Carhart offers broad lessons about the role of courts in democracy, the effects of national and transnational movements on the meaning of law, and the autonomy of women, health professionals, Congress, and judges, including those sitting on the Supreme Court.

A brief foray into comparative and transnational law finds the debate about abortion in courts, legislatures, and intergovernmental bodies around the world. By considering the bases of the judgments from these various jurisdictions, one sees that analyses of abortion have moved beyond the framework of privacy, liberty, and equality, which are the frequently proffered premises for supporting women's abortion rights in the United States. Transnationally, the issue of reproduction is framed in relation to health and safety; to the human rights of dignity and autonomy, nondiscrimination on the basis of race, age, and gender; economic opportunity; and to freedom of speech, conscience, and religion.

Instead of presuming that judicial review displaces or silences democratic processes, the interaction of Roe, Carhart, and the transnational exchanges make plain that the practices of democracies depend on dialogic interaction among the many groups within and across social orders. Rather than presume courts are a problem for democracy, this essay explores why courts should be seen as resources. Legal generativity, from all sides of the political spectrum, is an artefact of adjudication in democratic polities.

15)Nilanjan Patra (Centre for Economic Studies and Planning, Jawaharlal Nehru University). "When Will They Ever Learn?': The Great Indian Experience of Universal Immunisation Programme. The abstract states:

The study attempts to analyse the effects of some selected demographic and socioeconomic predictor variables on the likelihood of immunisation of a child for six vaccine-preventable diseases covered under Universal Immunisation Programme (UIP). It focuses on immunisation coverage in all of India with special emphasis on three groups of states, viz., Empowered Action Group, North-Eastern and Other states. The study applies a logistic regression model to the three rounds of National Family Health Survey data. The results are robust across different models. The likelihood of immunisation increases with urban residence, mother's education level, mother's age, mother's exposure to mass media, mother's awareness about immunisation, antenatal care during pregnancy, wealth index, household electrification, mother's empowerment index, and caste/ tribe hierarchy. It is also higher for boys than girls but it decreases for higher birth-order irrespective of the sex of the child. However, SLI and sex of household headship has no effect. Religion and zone of states also have some effects. Emphasis on these demand enhancing factors is necessary to make the immunisation programme universal.

16)Marcia Inhorn (University of Michigan at Ann Arbor) and Daphna Bierenbaum-Carmeli (University of Haifa). Assisted Reproductive Technologies and Culture Change, 37 Annual Review of Anthropology ---(October 2008). The abstract states:

In 1978, the world's first "test-tube" baby was born via in vitro fertilization (IVF). The last thirty years have seen the rapid evolution of many other assisted reproductive technologies (ARTs), some simple variants of IVF, while others bridge the fields of assisted reproduction and human genomics. As ARTs have evolved over time, so have social, cultural, legal, and ethical responses to them. The major theme of this essay is the extent to which the ARTs are leading to culture change. ARTs ramify in many areas of social life, including the traditional anthropological domains of kinship, marriage and the family, gender, religion, and biomedicine. This review highlights the prolific scholarship of more than fifty anthropologists studying ARTs around the globe. Their research bespeaks both the destabilizing and generative impacts of ARTs at the interface between science and society.

17)Asha S. (MEASS College- India), Narrative Discourses on Purdah in the Subcontinent , Icfai University Journal of English Studies, Vol. III, No. 2, pp. 41-51, June 2008. The abstract states:

Purdah, the system of female seclusion, is a salient feature of Islam as a religion. It has visual, spatial and ethical dimensions. It is both a garment, concealing the Muslim woman from sight, as well as an ideology which demarcates the boundaries of the Muslim woman's space and defines her sexual morality. Originally instituted for the protection of the Muslim woman, the purdah has gradually degraded to an instrument of control and female subjugation and a system of total exclusion of the woman from public life. The institution of purdah has attracted the attention of sociologists as well as creative writers right from the period of colonial rule down to the present day. This paper proposes to examine the treatment of purdah in select subcontinental narratives either written in English or appearing in translation. The multiple facets of the purdah are analyzed in the light of the works written by Attia Hosain, Ismat Chughtai and Nadeem Aslam. The overt manifestations of the purdah and its metaphorical and symbolic ramifications are analyzed in the texts of these writers. This paper concludes that the writers dwell more on the restrictive and repressive aspects of purdah than on its protective aspects.

18) Amelie Constant , Liliya Gataullina and Klaus F. Zimmermann (Institute for the Study of Labor). Naturalization Proclivities, Ethnicity and Integration, CEPR Discussion Paper No. DP6656. The abstract states:

This paper studies the determinants of naturalization among Turkish and ex-Yugoslav immigrants in Germany differentiating between actual and planned citizenship. Using the German Socio-Economic Panel, we measure the impact that integration and ethnicity indicators exert on the probability to naturalize beyond the standard individual and human capital characteristics. A robust finding is that German citizenship is very valuable to female immigrants and the generally better educated, but not to those educated in Germany. We find that the degree of integration in German society has a differential effect on citizenship acquisition. While a longer residence in Germany has a negative influence on actual or future naturalization, arriving at a younger age and having close German friends are strong indicators of a positive proclivity to citizenship acquisition. Likewise, ethnic origins and religion also influence these decisions. Muslim immigrants in Germany are more willing to become German citizens than non-Muslim immigrants, but there are also fewer German citizens among Muslims than among non-Muslims.

19) Josiah Ober (Stanford University - Department of Classics). What the Ancient Greeks Can Tell Us About Democracy , 11 Annual Review of Political Science --- (June 2008).  The abstract states:

The question of what the ancient Greeks can tell us about democracy can be answered by reference to three fields that have traditionally been pursued with little reference to one another: ancient history, classical political theory, and political science. These fields have been coming into more fruitful contact over the past 20 years, as evidenced by a spate of interdisciplinary work. Historians, political theorists, and political scientists interested in classical Greek democracy are increasingly capable of leveraging results across disciplinary lines. As a result, the classical Greek experience has more to tell us about the origins and definition of democracy, and about the relationships between participatory democracy and formal institutions, rhetoric, civic identity, political values, political criticism, war, economy, culture, and religion.

20) Augustin Landier , David Thesmar and Mathias Thoenig (New York University - Department of Finance , HEC Paris (Groupe HEC) and Ecole Nationale des Ponts et Chaussées (ENPC) - Centre d'Enseignement).  Investigating Capitalism Aversion , 23 Economic Policy 465 (2008). The abstract states:

There are two non-mutually exclusive theories of individual variations in pro-capitalism opinions. The first theory views pro-capitalism opinions as self-serving: Individuals are opposed to market forces when they threaten their economic rents. The second theory views differences in such opinions as reflecting genuine disagreement on the efficiency of various economic systems. Using individual data, we investigate the validity of both theories, focusing on attitudes toward private ownership, private profit and competition. We find evidence that the first theory explains some of the variations in attitudes. However, consistent with the second theory, we also find evidence of individual learning about the comparative virtues of economic systems. The learning is slow, home-biased and path-dependent. Long-run cultural and historical determinants of pro-market attitudes, such as religion and legal origins, explain more than 40% of the cross-country variations in capitalism aversion. Last, we provide tentative evidence that at the country level, pro-market opinions affect the nature of economic institutions. Our results suggest that the feasibility of economic reform does not depend solely on its impact on the distribution of rents; ideological a-prioris are likely to be important as well.

JFB