First Amendment Law Prof Blog

Controversy Persists About Religion's Role in Presidential Candidates' Campaigns

On Findlaw, Professor Marci Hamilton has posted an essay in which she presents "The Questions That Each Presidential Candidate Should Be Asked Regarding His or Her Views on the Constitutional Line Between Church and State".  As the former Arkansas governor and ordained Baptist minister wraps up his campaign in South Carolina where evangelical Christians have been an important and heavily courted Republican constituency,today's New York Times includes an article entitled "Between Pulpit and Podium, Huckabee Straddles Fine Line."

The Christian Science Monitor has recently concluded its series of articles on all of the presidential candidates' faith and values. An article about the candidacy of former Senator John Edwards noted that his discussions of the central concerns of his campaign, such as the need to address the problem of poverty in the country, are not accompanied by references to his religious faith. The article continued:

"It's a very dangerous business – that intersection" of religion and politics, Edwards said in an interview with the Monitor. "I don't like to talk about my faith openly. I do in answer to questions, but I don't usually bring it up myself."

His reticence owes as much to a Baptist upbringing that cast faith as a private relationship with God as the belief that a politician too closely identified with one religion cannot be inclusive in a diverse America.

"My belief in Christ plays an enormous role in the way I view the world," Edwards, a former North Carolina senator, said at a presidential forum on faith in June. "But I think I also understand the distinction between [my faith and] my job as president of the United States, my responsibility to be respectful of and to embrace all faith beliefs in this country.

"One of the problems that we've gotten into," he added, in an apparent allusion to President Bush, "is some identification of the president of the United States with a particular faith belief as opposed to showing great respect for all faith beliefs."  ...

His reluctance to mix religion and politics is also a product of political considerations. Edwards has said that if Democrats stung by electoral losses suddenly start talking religion on the stump, they risk charges of opportunism and insincerity.

"People are naturally skeptical of any politician who talks at length and openly about their faith, because they assume, just like with a lot of things, that they do it for political gain," Edwards told the Monitor.

During the past week, Senator Barack Obama responded swiftly and unequivocally to a Washington Post column by Richard Cohen. Cohen had called on the senator to explain his reaction to the fact that a magazine started by the Obamas' pastor at Trinity United Church of Christ, Rev. Jeremiah A. Wright Jr., had selected Louis Farrakhan to receive the annual Dr. Jeremiah A. Wright Jr. Trumpeter Award, saying Farrakan "truly epitomized greatness."  As reported in The Boston Globe, Senator Obama, immediately issued a statement saying:

I decry racism and anti-Semitism in every form and strongly condemn the anti-Semitic statements made by Minister Farrakhan. .... I assume that Trumpet Magazine made its own decision to honor Farrakhan based on his efforts to rehabilitate ex-offenders, but it is not a decision with which I agree.

JFB

Censorship in Advance of War: The World War I Experience

As noted on Mary Dudziak's Legal History Blog, Nolen Gertz of the New School for Social Research has posted a paper entitled "Censorship, Propaganda, and the Production of Shell Shock in World War I" on SSRN. Its abstract states:

In discussing warfare we tend to maintain a theoretical cleavage between the home front and the battle front that is supposed to parallel the physical distance that separates them. Nowhere is this more apparent than in the academic literature that surrounds World War I, with each discipline for decades having studied its correspondent aspect of the war. While this has provided us with incredibly detailed research into the minutiae of battles and the changing attitudes of the masses, it has done little to help us combine these details into a full-scale picture of what was actually experienced by civilians and soldiers alike. Therefore this paper will instead attempt an interdisciplinary approach to understanding this war by looking at the alarmism that helped lead to the war and the censorship and propaganda campaigns that helped shape it. Thus it will be shown that only by returning to the concerted efforts of politicians and journalists years before the war can we see how the war to end all war eventually led to the creation of shell shock and the loss of a generation.

JFB

Former NYC Police Officer Sues DMV Over Rejection of GETOSAMA Vanity Plate

The Sunday New York Times presented the story of Arno T. Herwerth's suit challenging the New York DMV's rejection of his application for a vanity license plate saying GETOSAMA.  Herwerth has previously unsuccessfully sought plates saying GUTOSAMA and IH8OSAMA as well, but has been issued an AXALQADA plate for one of his cars. Noting that North Carolina and Florida have issued GETOSAMA license plates, Herwerth sees New York's rejection of his application as a violation of his First Amendment rights.

Gene Policinski, the First Amendment Center vice president and executive director, observes in a recent commentary that this kind of case may be leading states to reconsider the vanity plate enterprise. Policinski cites the announcement by the South Dakota Department of Revenue and Regulation that it plans to seek the legislative repeal of the state vanity plates program due to the problems generated by vulgar or controversial content that motorists submit for presentation on the plates.

JFB   

Supreme Court Takes "Millionaire's Amendment" Case

As noted on ScotusBlog , the Supreme Court has granted cert in Davis v. Federal Election Commission, a challenge to a portion of McCain Feingold Campaign Reform Act. The AP offers this summary of the case:

The Supreme Court agreed today to review a campaign-finance law dubbed the millionaire's amendment, which allows candidates toallows candidates to accept larger contributions when their opponents spend heavily from their personal fortunes.

The measure, part of the 2002 campaign-finance law, is meant to help candidates facing wealthy opponents stay financially competitive. Jack Davis, an unsuccessful congressional candidate who is challenging the law, called it a way to "protect well-financed incumbents who wrote the statute."

Once a self-financed candidate's spending hits certain thresholds, a rival relying on fund raising can collect increasingly higher amounts from donors to catch up.

Davis, a Democrat who narrowly lost a congressional race in New York last year, spent more than $2.2 million of his own money in 2006. He lost to incumbent Republican Rep. Thomas Reynolds, 51% to 49%.

Reynolds did not receive increased contributions after Davis reported exceeding the threshold, $350,000 in House races, Solicitor General Paul Clement said in urging the court to dismiss Davis' case.

Davis said the law violated his First Amendment rights because it treated his personal expenditures as suspect and encouraged significant increases in contributed funds to his opponent.

A three-judge court in Washington upheld the provision, saying Davis failed to show that his speech had been constrained by the millionaire's amendment.  It "does not limit in any way the use of a candidate's personal wealth in his run for office," the court said.

In an analysis of the case posted on the First Amendment Center's website, Tony Mauro notes that Davis sees the case as drawing into question the anti-corruption rationale invoked to justify a variety of campaign finance restrictions. Davis's challenge characterizes the provision as reflective of the "levelling the playing field" approach to campaign regulations that was rejected by the Supreme Court in the seminal Buckley v. Valeo decision. Further coverage of the case is available from The Hill.

In The American Spectator, John Samples, who directs the Cato Institute's Center for Representative Government and who has written The Fallacy of Campaign Finance Reform, criticizes John McCain's efforts to pass campaign finance reform legislation as evidence of McCain's departure from conservative values and of what Samples asserts to be the Senator's dismissive approach to First Amendment principles. Samples describes what he labels a conservative or Madisonian view and contrasts it with McCain's stance:

It gives greater weight to the right of the individual to speak, to write, and to associate than to any collective purpose the government might have in suppressing speech. That right includes inevitably a right to spend money to speak, to write, and to associate. Without the right to spend, the other rights would have no concrete meaning.

In contrast, Progressives see speech as a means to a collective good -- improved public debate -- attained by government restrictions on individual liberty. In this view, free speech and free spending are mere self-interest or selfishness, vices to be overcome by benevolent censors.

For McCain, such self-interest should be sacrificed to the higher cause of "clean government." Hence, McCain's infamous statement on Don Imus's radio show: "I would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt. If I had my choice, I'd rather have the clean government."
      

   JFB

American Women Living in Saudi Arabia

Today's LA Times features an article on the lives of American women married to Saudi men and living in Saudi Arabia. Entitled "Pursuing Happiness Behind the Veil", the article announces, " To be the American wife of a Saudi is to forsake familiar freedoms — or enjoy them secretly — in exchange for a secure, family-centered life".  The story reveals how the women navigate the rules of Saudi life and how they respond to such restrictions after having experienced life in the US. 

JFB

ACLU Blog Examines The Year in First Amendment Rights

The ACLU Blog looks back at 2007 and features posts reviewing "The Year in First Amendment Rights". The topics addressed include national security, media consolidation and its effect on free speech, net neutrality, television censorship,and Internet censorship. The organization also reviews its 2007 victories, which it identities as follows:

we saw federal reporters' shield legislation pass through the House by an overwhelming veto-proof margin, with a very real hope that the legislation will finally become law in 2008.

We blocked efforts to regulate grassroots lobbying that would have restricted the right to petition our elected officials.

More open government became a reality through expanded access to the Freedom of Information Act that passed the Senate by unanimous consent and the House by voice vote. And last, but not least, we succeeded in killing several faith-based measures that violated the separation of church and state.

JFB
 

New First Amendment Scholarship

New scholarship with First Amendment dimensions includes the following articles, papers and essays:

1) Professor Louis Michael Seidman of Georgetown has written "The Dale Problem: Property and Speech Under the Regulatory State", in which he presents this argument:

A contradiction lies at the core of the modern law of speech and property. The contradiction is captured by four propositions, all of which are widely accepted, but all of which cannot be true.

Proposition 1: Freedom of speech is not subject to political revision.

Proposition 2: Within broad limits, property entitlements are subject to political revision.

Proposition 3: The freedom of speech does not include the right to use another person's property in order to convey one's message

Proposition 4: All speech requires the use of some property.

These four propositions cannot be reconciled. If it is true that economic entitlements, including most property rights, are subject to political revision, and if it is true that there is no right to use another's property for speech, and if it is true that speech requires property, then it cannot also be true that speech rights are immune from political revision.

This article explores the ramifications of this simple but puzzling syllogism, using the Supreme Court's decision in Boy Scouts of America v. Dale as a central example. It concludes that contradictions in Supreme Court doctrine at the intersection of property and speech law make both our speech and property regimes less stable than they might at first appear to be.

2) Joseph Blocher, identified as currently clerking for Eleventh Circuit Judge Rosemary Barkett, has recently published two valuable articles on First Amendment issues. In School Naming Rights and the First Amendment's Perfect Storm, 96 Geo. L. J 1 (2007), Blocher examines an interesting set of questions as explained below:   

In the past five years, public schools across the country have begun to explore a new avenue of fundraising: selling naming rights to school facilities. The popularity and monetary value of these sales, however, only highlights the importance of the First Amendment concerns they raise. This Article uses school naming rights as a lens through which to examine the conflicts between government speech, commercial speech, and forum analysis, three categories of First Amendment analysis that are simultaneously and problematically implicated by school naming rights sales. Courts and scholars have long noted the internal ambiguities within these three categories, but have not yet explored the sometimes irreconcilable conflicts among them. As the growth of school naming rights shows, government sponsorship arrangements collapse many of the artificial divisions between the First Amendment's categories, and demonstrated the need for a better understanding of the categories' interactions. This Article identifies — and attempts to resolve — some of the border disputes between these poorly defined and increasingly important areas of First Amendment law.

Blocher has also published "Institutions in the Marketplace of Ideas" in the Duke Law Journal. The abstract offers this description of the article:   

If any area of constitutional law has been defined by a metaphor, the First Amendment is the area, and the “marketplace of ideas” is the metaphor. Ever since Justice Holmes invoked the concept in his Abrams dissent, academic and popular understandings of the First Amendment have embraced the notion that free speech, like the free market, creates a competitive environment in which the best ideas ultimately prevail. But as with the free market for goods and services, there are discontents who point to the market failures that make the marketplace metaphor aspirational at best, and inequitable at worst.

Defenders of the free economic market have responded to these criticisms by developing a thicker understanding of how the market actually functions. Their most successful model is the New Institutional Economics (NIE), which incorporates and explains the transaction costs and institutions that populate and effectively regulate that market. The marketplace of ideas model, however, remains faithfully wedded to a neoclassical view of the market that depends on a perfectly costless and efficient exchange of ideas. It is thus vulnerable to the same criticisms economists answered decades ago, and it fails to take into account the rich view of market mechanisms and institutions they have developed since. In recent years, First Amendment scholars led by Frederick Schauer laid the groundwork for a solution by describing an “Institutional First Amendment” that would accord special treatment to certain institutions like schools and the press.

But just as the marketplace of ideas fails to account for institutions, the Institutional First Amendment fails to account for the marketplace of ideas. As it turns out, the two theories are not only reconcilable, but complementary. This Article brings them together, using the New Institutional Economics to describe the “speech institutions” - such as schools and universities - that play the same cost-reducing role in the marketplace of ideas as other institutions do in the market for goods and services. For the same reason and to the same degree as economists defer to the private norms of market-enhancing institutions, so too should courts defer to the speech rules of marketplace-of-ideas-enhancing institutions. The Article then tests the descriptive and normative validity of this “New Institutional First Amendment,” finding that it both explains and justifies much of the Court's recent school speech doctrine, including its recent ruling in Morse v. Frederick, and also justifies the special status of universities as speech institutions. By addressing the “economic” objections to the marketplace metaphor, the Article attempts to better describe, explain, and rehabilitate the marketplace of ideas.   

3) Brett Frischmann, a law professor at Loyola of Chicago and visiting at Fordham, will publish A Note on the Economics of the First Amendment: Sustaining a Spillover Rich Networked Environment in the 2008 University of Chicago Legal Forum. Frischmann presents the essay's thesis in these terms:    

Many know the marketplace of ideas as a metaphor. Yet, economics may help explain speech and the First Amendment in more than a metaphoric way.

This essay, written for the Law in a Networked World conference hosted by the University of Chicago Legal Forum, explores how the First amendment may operate to sustain a spillover rich networked environment. The essay focuses on (i) the economics of speech externalities and (ii) the functional role of the First Amendment in constraining the government's ability to force or enable actors to internalize externalities associated with their speech. When viewed from an economic perspective, the First Amendment functions as a broad (though not absolute) restriction on the government's choice of actions or interventions with respect to the speech market/environment. The essay suggests that the First Amendment promotes spillovers (positive externalities) and functions more broadly as an institution that sustains a spillover-rich cultural-intellectual environment.

4) Damon Cann of UGa's Political Science Department will publish "Religious Identification and Legislative Voting: The Mormon Case" in a forthcoming edition of the Political Research Quarterly. The paper's SSRN summary offers this description of its focus and findings:

While religious affiliation and religiosity have profound effects on political behavior in mass publics, less is known about the effect of religion on political elites. While questions regarding the influence of religious leaders (especially for hierarchically structured sects) looms large in the popular media, a host of other possible religious influences exist. This paper considers the extent to which religious identification influences the roll-call voting behavior of Mormon members of the U.S. House of Representatives. The possibility for influence seems high in the Mormon case as Mormon citizens demonstrate high levels of support for pronounced church positions on ballot initiatives. However, a review of influences on legislative decision making shows that the theoretical rationale for religious influence on legislative roll-call voting is tenuous at best. I present a simple empirical test of the hypothesis that Mormon representatives are more cohesive than randomly selected sets of legislators. Results show that across a range of different issue areas, Mormon representatives are no more unified in their voting behavior than randomly selected sets of legislators.

5) Yale Law School Olin Fellow Ashlie C. Warnick has posted "Employment Discrimination by Religious Schools Participating in Voucher Programs" on SSRN with the accompanying abstract:

The Supreme Court's jurisprudence on church-state issues is unsettled. With respect to the Establishment Clause, the three-pronged test from Lemon v. Kurtzman is often used to hold government benefits to religious organizations unconstitutional. But, in cases where the majority of the Court finds the governmental benefit permissible, Lemon is generally unmentioned. This problem is confounded when the Court considers accommodations for religious organizations. Lemon, without refinement, is ill-suited to application to such accommodations. Does allowing religious organizations an exemption from generally applicable laws benefit a religious organization in violation of the Establishment Clause or does failing to provide the accommodation violate the Free Exercise Clause and unduly punish religious organizations because of their message? This paper addresses these questions and presents a new, more coherent test for accommodations to religious organizations. Specifically, it looks at the employment practices of religious organizations participating in school choice programs to determine (1) is it constitutional for accommodations to be made to religious schools participating in the program, and (2) would it violate the Free Exercise clause to deny the accommodation in some circumstances.

6) Associate Dean Patricia Salkin and Amy Lavine of Albany Law School have posted The Genesis of RLUIPA and Federalism: Evaluating the Creation of a Federal Statutory Right and its Impact on Local Government on SSRN. The authors offer this description of the project, done under the auspices of the Albany Government Law Center:

In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate Solomon-like balance can be developed under the Act to clearly recognize compelling governmental interests in protecting the public health, safety and welfare through land use planning and various land use and local environmental controls remains elusive at this point in time and may depend upon the wisdom of the individual federal courts.

Section II of this article explores the uncomfortable relationship of government with religion, and the manner in which this relationship has affected the genesis of the constitutional interpretations of the Free Exercise Clause of the First Amendment. What constitutes the establishment of religion and whether RLUIPA aids government in the establishment of religion is beyond the scope of this article and will not be discussed in detail. Section II also examines the precursor to RLUIPA, the Religious Freedom Restoration Act (FRFA), enacted by Congress in 1993 and ruled unconstitutional in 1997. Understanding Congressional motivation for the enactment of RFRA, as well as its constitutional deficiencies, sets the backdrop for the last part of the section, which discusses the Congressional development and enactment of RLUIPA, including why Congress chose land use as a primary focus of religious freedom.

Section III briefly reviews the arguments surrounding the constitutionality of RLUIPA, and while not attempting to fully analyze this issue, the discussion is provided since some believe that the statute's constitutionality as it relates to the land use provisions may be vulnerable to further constitutional attack.

Section IV discusses the operative provisions of RLUIPA, including both the substantial burden rule and the Act's nondiscrimination provisions. It explores how the courts have interpreted RLUIPA and its ambiguous terms, and discusses how various cases have been decided. Attorney's fees are also touched on.

Section V argues why RLUIPA, as drafted, may not necessarily bode well for local governments and their historical use of the police powers to guide community planning and community development. The article concludes with some final comments concerning the propriety of and need for RLUIPA.

7) UC San Diego economist Eli Berman and Stanford political scientist David Laitin have posted a new National Bureau of Economic Research Working Paper, "Religion, Terrorism and Public Goods: Testing the Club Model" on SSRN. Its abstract states: 

Can rational choice modeling explain why Hamas, Taliban, Hezbollah and other radical religious rebels are so lethal? The literature rejects theological explanations. We propose a club framework, which emphasizes the function of voluntary religious organizations as efficient providers of local public goods in the absence of government provision. The sacrifices religious clubs require are economically efficient (Iannaccone (1992)), making them well suited for solving the extreme principal-agent problems faced by terrorist and insurgent organizations. Thus religious clubs can be potent terrorists. That explanation is supported by data on terrorist lethality in the Middle East. The same approach explains why religious clubs often choose suicide attacks. Using three data sources spanning a half century, and comparing suicide attackers to civil war insurgents, we show that suicide attacks are chosen when targets are "hard," i.e., difficult to destroy. Data from Israel/Palestine confirm that prediction. To explain why radical religious clubs specialize in suicide attacks we model the choice of tactics by rebels attacking hard targets, considering the human costs and tactical benefits of suicide attacks. We ask what a suicide attacker would have to believe to be rational. We then embed that attacker and other operatives in a club model. The model has testable implications for tactic choice and damage achieved by clubs and other rebels, which are supported by data on terrorist attacks in the Middle East: Radical religious clubs are more lethal and choose suicide terrorism more often, when they provide benign local public goods. Our results suggest benign tactics to counter terrorism by religious radicals.

JFB