First Amendment Law Prof Blog

University of Missouri Center on Religion and the Professions

The University of Missouri Center on Religion and the Professions identifies its mission as working "to improve the religious literacy of professionals, to help them serve a diverse public."  On its website, the Center lists the following initiatives:

Current projects:
• A project to improve the religious literacy of reporters by strengthening journalistic coverage of religion in the United States;
• A project to improve the religious literacy of health researchers and professionals by exploring the relationship between religion, spirituality, and a variety of health-related fields, including adolescent health behaviors, neuroscience, physical health, mental health, chronic cognitive and physical disability and medical disorders;
• A project to improve the religious literacy of the professions by fostering discussion and scholarship on the relationship of ethics as applied to professionals;
• A project to improve the religious literacy of the public by sponsoring lectures and forums on issues related to religion and public life.

Past projects:
• Studies of how religion helps or hurts brain-damaged people cope
• Curriculum development for training journalists in religion
• Studies of professionals' attitudes of religion
• Public forums on religion
• Small group discussions on ethics and the professions
• Creation of an online journal
• Sponsorship of fellows
• Scholarly presentations and publications

Future projects
The Center is developing a series of short courses for medical, nursing and health professionals to help them understand how clients' religious beliefs and practices may come in conflict with traditional medical practices and ways to approach these situations. It also is planning significant research about how the public views religion news coverage.

JFB   

NYC Sensor Licensing Proposal Could Raise First Amendment Questions

In an op-ed piece in this week's New York Times, three Columbia University scientists raised questions about the consequences of a proposed New York City bill seeking to require all persons who have or use a biological, chemical or radiological detectors to obtain a permit for the equipment. The scientists noted that, as originally drafted, the bill's language could be read to impose the permitting requirements on a wide range of sensors used by students, scientists, unions, and environmental activists, and the permitting process could become an obstacle to the collection of useful, even vital, environmental data. The scientists cited how data collected by a private citizen first revealed PCB contamination in the Hudson River and how scientists with air quality devices had arrived to quickly assess whether asbestos had been released into the air by a midtown steampipe explosion last year.   

The bill was drafted in response to suggestion from the federal Department of Homeland Security and was ostensibly aimed at avoiding needless public anxiety and false alarms of terrorist attacks that would divert city emergency service personnel from their work.  A previous Village Voice article noted that there have in fact been no such false alarms arising out of the use of sensors in the city.

On the Volokh Conspiracy, Eugene Volokh responds to Mark Kleiman's question on The Reality-Based Community as to whether the New York City proposal would violate the First Amendment as a deliberate interference with information gathering, saying:

I think the answer has to be: Nobody knows. The Supreme Court has said surprisingly little about restrictions on information gathering (as opposed to restrictions on information dissemination, which is what most of the Court's Free Speech/Press Clause caselaw is about).

We do know that generally speaking there's no First-Amendment-based information gathering defense to generally applicable laws, such as bans on travel to Cuba and the like. We also know that there's generally no First Amendment right of access to information that's in the government hands (except for a historically sanctioned presumptive right of access to criminal trials, which lower courts have reasonably extended to civil trials and to most court filings in civil and criminal cases).

But here the government is proposing the licensing of certain products precisely because of a fear that the products will be used to gather information, and then to disseminate the information in ways that the government claims might be misleading. That sure sounds bad, because the government's rationale is frankly concerned with the communicative impact of the speech that will eventually flow from use of the devices.

Moreover, the fear isn't just that the devices and the speech they facilitate will infringe privacy (a rationale for banning certain forms of information gathering, such as unauthorized recording of conversations, and potentially even the distribution of certain kinds of eavesdropping restrictions). Rather, it's that it will lead to speech that will mislead and frighten the citizenry into doing foolish things — a classically disfavored rationale in First Amendment law.

So I think there's a perfectly credible First Amendment argument against any such ban — as well as lots of first-rate policy arguments (for some plausible-seeming examples, see this American Industrial Hygiene Association letter). But there's no Supreme Court caselaw squarely confronting this subject, so predictions are hard to make (though if anyone can point me to some useful lower court caselaw on the subject, I'd love to read it.

One wry comment on Volokh Conspiracy added a new concern, warning:

Let us hope that in his infinite wisdom, the commissioner will exercise his discretion to permit the possession of noses and related olafactory organs. Under the definition in [the bill], they are biological and chemical detectors.

When noses are outlawed, only outlaws will have noses! 

JFB

"Bong Hits" Plaintiff Fights School District's Pursuit of Fees

As noted on the School Press Law Center website, Joseph Frederick, whose claim that the First Amendment protected his display of a "Bong Hits 4 Jesus" banner outside of his high school during a 2002 Olympic event was rejected by the Supreme Court, is fighting against the school district's effort to obtain information about what assets he has.  The district has sent Frederick a list of questions regarding his financial condition as part of its effort to recover "court fees."  Frederick, now teaching English in China, claims that he has no means to pay the district and asserts that the pursuit of the money may have an ulterior motive. Frederick's attorney is quoted as saying,"Since they know that Joe is broke, they know they probably will never collect anything. So the motive is almost certainly something else, likely retaliation, harassment, or perhaps to let them get a hold of the contract Joe has with a Hollywood studio for an option on his story — something that really galls them — so they can try to stop the film". Frederick has continued to litigate claims against the school district under Alaska state law, and that case has not yet been resolved.

JFB            

Americans United Calls for IRS Investigation of Non-Profits' Election Activities

In a January 16 press release, the Americans United for the Separation of Church and State urged the IRS to investigate what the group asserts was a Nevada church pastor's endorsement of Senator Barack Obama from the pulpit.  Yesterday Americans United charged that two tax-exempt organizations, the American Family Association and Wall-builders, had violated applicable restrictions on the election activities of tax-exempt entities by issuing voter guides which Americans United characterized as partisan propaganda for presidential candidate Mike Huckabee.

JFB          

United Church of Christ Leader Calls for Science Religion Dialogue

In a letter published on the church website, the president of the United Church of Christ issued a call for recognition of how religion and science "could enrich and challenge each other". Rev. John J. Thomas described science as "one of God's most provocative voices," rejecting the idea that faith was inevitably anenemy of science.

JFB       

Dutch Government to Impose Ban on Wearing of Burqas in Schools and Government Offices

According to Reuters and JURIST, media reports in the Netherlands indicate that country's government plans to prohibit the wearing of the burqa, the head to toe covering garment worn by some Muslim women, when the women are in schools or government offices. Narrower in scope than an originally contemplated ban on any public wearing of the burqa, the planned restriction was seen as less likely to foment a reaction of alienation from the state among the one million followers of Islam who live in the Netherlands.  The government claims that as few as fifty women wear the burqa or a face covering, the niqab. France bans the wearing of headscarves in school, and, as part of a broader set of anti-terrorism provisions, Italy also prohibits the use of any face covering.

JFB                   

Books Characterized as Misrepresenting Islam Banned in Malaysia

The Times of India reports that the Malaysian Internal Security Ministry has banned eleven books on Islam on the grounds that the books misrepresent the faith by connecting it to both terrorism and the mistreatment of women.  The books include Secrets of the Koran: Insights Into Islam's Holy Book, Woman in Islam, The Two Faces of Islam: Saudi Fundamentalism and Its Role in Terrorism, and Islam Unveiled: Disturbing Questions About the World's Fastest Growing Faith.    

JFB 

First Amendment Center Examines Presidential Candidates' Records

The First Amendment Center website provides brief analyses of the records of the major presidential candidates on First Amendment issues.  The most recently posted entry reviews the record of former Arkansas Governor Mike Huckabee.

JFB

New Documentary Examines Whether An Implicit Religious Test Faces Political Candidates

A recently released documentary film entitled "Article VI" probes how a candidate's religious affiliation (or lack thereof) is used by segments of the voting public in assessing the candidate's qualifications.  Taking its title from Article VI of the Constitution, which states "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States", the film examines the contemporary role of religion in presidential politics and reviews prior troubling intersections of faith and politics, such as the attacks faced by John F. Kennedy as a Roman Catholic presidential candidate.   

JFB

Who Is Covered By Utah's New Rule Protecting Reporters?

In an op-ed piece in today's Salt Lake Tribune, attorney Scott Gant of Boies, Schiller and Flexner noted that the rule recently established by the Utah Supreme Court to offer protection to reporters against the mandated disclosure of sources uses a vaguely worded definition of reporter. The rule, discussed in a prior post here by Kathleen Bergin, defines a reporter to include a "publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public." Citing the comments prepared by those who drafted the rule language, Gant suggests that this formulation was meant to allow the rule to be interpreted to protect new kinds of news gatherers and disseminators such as bloggers. Gant argues that such a broad application would represent the adaptation of the ideal of press freedom to the current transformation of media into new and more varied forms.

JFB    

The Future of Establishment Clause Claims After Hein

A video of a 2007 American Constitution Society National Conference session entitled "The Establishment Clause and Standing: Injury and Enforcement" is available through the ACS website. The assembled experts discuss how the decision in Hein v. Freedom from Religion Foundation, Inc. will shape future Establishment Clause litigation. The panelists include Steven Gey, Professor of Law, Florida State University College of Law, Marci Hamilton, Professor of Law, Benjamin N. Cardozo School of Law,Vivian Hamilton, Professor of Law, William & Mary Marshall-Wythe School of Law, Barry Lynn, Executive Director, Americans United for Separation of Church and State, and Andrew Pincus, Mayers, Brown, Rowe & Maw LLP.

First Amendment Scholarship Update

Newly available First Amendment scholarship includes the following publications:

1) In "Deliberating the Divine: On Extending the Justification from Truth to Religious Expression", 73 Brooklyn L. Rev. --- (2007), Prof. John M. Kang of St. Thomas University School of Law addresses what he identifies as a neglected perspective in the analysis of religious speech within the Supreme Court's wider First Amendment jurisprudence.  He explains his thesis in the article's SSRN abstract:    

The principal argument used by the U.S. Supreme Court to justify the right of free speech derives from the assumption that deliberation over a diversity of perspectives is more likely than their paucity to help the audience discover some provisional truth. I call this the justification from truth and its advocates are plentiful and prominent, including justices Oliver Wendell Holmes, Jr. and Louis Brandeis as well as the philosophers John Stuart Mill and John Milton.

Puzzlingly, the Court has generally avoided applying this justification to religious expression and neither the Court nor any scholar has offered a sufficiently developed account of what an application of the justification from truth to religious expression might look like. I attempt to do so in this article. The justification from truth is one of the most discussed topics for law since the European Enlightenment and the topic of religion has obviously provoked voluminous discussion. I hope to offer in my article a novel and engaging conceptual bridge between these two categories that will be of interest to scholars who study constitutional law as well as to those who study church-state relations and the many readers who find intriguing questions about the search for religious truth. I employ a series of case suites in the latter part of the article manuscript to illustrate how the justification from truth can be applied to religious expression, and it is my hope that such case suites will serve as a useful practical guide to judges.

2) In an essay entitled "God, Gaia, the Taxpayer, and the Lorax: Standing, Justiciability, and Separation of Powers after Massachusetts and Hein", Professor Jonathan Adler of Case Western Reserve Law School assesses the implications of these decisions from the last Supreme Court term. He offers the following conclusion:      

The Supreme Court decided two important standing cases during the October 2006 term: Hein v. Freedom from Religion Foundation and Massachusetts v. EPA. The latter is important for what it did, the former for what it did not do. Whereas Hein hewed closely - perhaps too closely - to prior standing precendents, the Massachusetts decision substantially departed from existing precedent and established a new doctrine of special solicitude to state standing. Both decisions involved generalized grievances about federal government policies that affect citizens as a whole, but point in opposite directions. In many respects the opinions are in significant tension with each other, and embrace competing conceptions of the role of the judiciary in the separation of powers. What neither decision did, however, is etch a conservative imprint on the law of standing.

This essay will be published in a forthcoming edition of the Regent University Law Review.

3) Anver M. Emon, a member of the University of Toronta law faculty, has published "The Limits of Constitutionalism in the Muslim World: History and Identity in Islamic Law." The work will appear in the forthcoming book, Constitutional Design for Divided Societies. Emon presents the following thesis:       

Governance in the context of pluralism - e.g. ethnic, religious and otherwise - raises concerns about the long-term stability of states in the global arena. Political scientists and constitutional theorists offer various models designed to ensure peaceful governance amidst this pluralism, such as proportional representation in the national government, federalism (with varying degrees of provincial autonomy), and consociationalism. I will argue that in the context of Muslim states invoking Islamic law as part of their constitutional framework, debates on governance models that balance between state coercion and group protection prioritize statist discourses without sufficient attention to how contests about identity in the Muslim state can affect the scope of constitutional interpretation and rights distribution in society. In Muslim countries in which Islamic law is embedded in the rule of law system, protecting minorities (in particular religious minorities) involves more than theorizing about forms of state organization and models of integration or accommodation. To protect religious minorities in Muslim states requires attention to the underlying normative frameworks of Islamic law that inform the context in which constitutions are drafted, institutions of law operate, and Shari'a is defined and concretized. To accomplish this task, this essay preliminarily argues for a historicist jurisprudence of Islamic law to understand how the pre-modern Shari'a treatment of non-Muslims arose from an early context of Islamic universalism, but which creates dissonance in meaning - legal and otherwise - when implemented ahistorically in contemporary state legal systems.

4) Herman Philipse of Utrecht University has published "Antonin Scalia's Textualism in Philosophy, Theology, and Judicial Interpretation of the Constitution" in 3 Utrecht Law Review 169 (2007), which presents the following critique of Justice Scalia's interpretive stance:    

Textualism or Originalism, as defended by Justice Antonin Scalia of the U.S. Supreme Court, is a normative doctrine of method according to which the judicial interpretation of statutes and of the Constitution should aim at establishing the original meaning of the text. Textualism in the strict sense is unpopular not only among most judges but also among philosophers and theologians. In philosophy, Textualism was denounced as hopelessly naive by authors such as Martin Heidegger, Hans-Georg Gadamer, and their American followers. In theology, Textualism is not a viable option for believers who want both to accept as true the text of their holy book and to endorse the results of modern science and historical scholarship. I argue that Textualism is the only valid methodology of interpretation both in philosophy and in theology. For the judicial interpretation and application of statutes and constitutions, however, Textualism cannot be more than one methodological topos among many. We also have to accept other topoi, such as the topos that the system of statutes and treatises should form a consistent whole, and these other topoi cannot be considered as part and parcel of Textualism in the strict sense. It follows that the difference between a tenable sophisticated version of Textualism as a methodology of judicial interpretation and the so-called doctrine of the Living Constitution is one of degree and emphasis only. Justice Scalia's simple version of Textualism is a political ideology rather than a valid methodology of judicial interpretation.

5) University of Pennsylvania Professor David A. Skeel's new paper "The Paths of Christian Legal Scholarship" is available on SSRN. Its abstract states:   

The history of twentieth century Christian legal scholarship- really, the absence of Christian legal scholarship in America's elite law schools- can be told as a tale of two emblematic clashes: the first an intriguing historical footnote, the second a brief, explosive war of words. In the first, a tort action in Nebraska circa 1890,William Jennings Bryan and Roscoe Pound served as opposing counsel; the second was a war of words in the 1940s between a group of neo-Thomist scholars and defenders of Oliver Wendell Holmes. Using these two incidents to frame as a starting point, this essay briefly chronicles the disappearance of Christian legal scholarship from the elite law reviews for much of the twentieth century. In the past few years, however, there have been signs of a possible renaissance. The second half of the essay focuses on the signs of renewal. To organize the discussion, I address three very basic questions: What?, Who?, and How? - What are the most promising directions for Christian legal scholarship?

6) An essay by NYU law student Glenna Goldis examines "The Catholic Scare: How Anti-Catholic Prejudice Shaped Brown v. Board". The SSRN abstract states:   

This essay examines Supreme Court Justice Hugo L. Black and his times, focusing on the evolving relationship between the Catholic Church and the legal elite. Part II introduces the compulsory public school movement of the 1920s. Part III describes Black's career prior to the Supreme Court, including his membership in the Ku Klux Klan. Contrary to what Black would later claim, politics did not require him to join the Ku Klux Klan. Part IV introduces the Roosevelt Court of the 1940s and the race and religion politics of that era. This section also analyzes Black's majority opinion in Everson, arguing that he voted with the pro-Catholic side in order to bait the dissenters into agreeing with anti-Catholic logic. Part V recounts education debates of the 1950s and shows that progressive elites routinely slurred parochial schooling as segregation. They professed the ideal of one school system for all children:black and white, Protestant and Catholic. A textual analysis of three related school desegregation cases shows that Black tried to use them to advance the reincarnated compulsory public education movement. Part VI concludes that Black had a tremendous impact on law and none on society.

7) In another student work from a forthcoming edition of the 2008 Minnesota Law Review,"Bonghits4jesus.com? Tracing the Boundaries of Public School Authority Over Student Cyberspeech,"  Kyle Wesley Brenton considers how Morse v. Frederick will influence the regulation of student cyberspeech.  Brenton's argument is summarized as follows:

In Part I, this Note sets forth the jurisprudential framework whereby schools may censor student speech and examines lower court cases addressing student cyberspeech. Part II demonstrates that the prevailing approach fails utterly to help courts draw meaningful distinctions between which cyberspeech is "student speech" and which is not. Finally, Part III argues that courts should apply the principles of personal jurisdiction to student cyberspeech by analogy to ensure that any school's censorship is supported by minimum contacts between the online speech and the school environment such that the exercise of school power does not offend notions of fair play and substantial justice.

JFB

 

Media Ownership and Operation: The Effects of FCC Regulatory Policy

Last week, NPR's Justice Talking examined the potential consequences of the  FCC's new rules regarding same market ownership of newspapers and television and radio stations. The program includes discussions with FCC Commissioner Michael Copps as well as John Sturm, President and CEO of the Newspaper Association of America.  The future direction of FCC regulation of low power FM radio, an outlet for grassroots media, and the effect of the FCC's enforcement of its indecency policy on the content of entertainment programming are also considered. The program page provides helpful links to relevant legislation, pending litigation, and commentary.

JFB