First Amendment Scholarship Update

Here is this week's collection of recently released papers on topics related to the First Amendment:   

1) Paul M. Secunda (Marquette University  Law School), Blogging While (Publicly) Employed: Some First Amendment Implications, 47 University of Louisville L. Rev. --- (2009). The abstract states:

While private-sector employees do not have First Amendment free speech protection for their blogging activities relating to the workplace, public employees may enjoy some measure of protection depending on the nature of their blogging activity. The essential difference between these types of employment stems from the presence of state action in the public employment context. Although a government employee does not have the same protection from governmental speech infringement as citizens do under the First Amendment, a long line of cases under Pickering v. Bd. of Education have established a modicum of protection, especially when the public employee blogging is off-duty and the blog post does not concern work-related matters.

Describing the legal protection for such public employee bloggers is an important project as many employers recently have ratcheted up their efforts to limit or ban employee blogging activities while blogging by employees simultaneously continues to expand. It should therefore not be surprising that the act of being fired for blogging about one's employer has even led to a term being coined: "dooced." So the specific question that this essay addresses is: do dooced employees have any First Amendment protection in the workplace? But the larger issue examined by implication, and the one addressed by this Symposium, is the continuing impact of technology on First Amendment free speech rights at the beginning of the 21st Century.

This contribution to the Symposium proceeds in three parts. It first examines the predicament of private-sector employees who choose to blog about their workplaces. The second section then lays out the potential First Amendment free speech implications for public employees who engage in the same types of activities. Finally, the third section briefly considers a potential future trend in this context from Kentucky involving government employers banning employee access to all blogs while at work.

2) Audrey Rogers (Pace University - School of Law), Protecting Children on the Internet: Mission Impossible?. The abstract states:

Congress's latest effort to protect children from on-line predators banned the pandering or soliciting of child pornography regardless of whether the images were actual or virtual. My paper discusses last term's Supreme Court decision in United States v. Williams that upheld the prohibition and ruled that an offer to engage in illegal activity is unprotected speech. I place Williams within the larger context of the classic impossibility defense that differentiates between factually and legally frustrated attempts, and show how the majority and dissenting opinions fall into these two camps. I propose that the revival of the impossibility debate sparked by Internet cases is misguided and that, in fact, the Internet provides the best reason for rejecting impossibility as a bar to prosecuting predators.

3) Christopher Serkin and Nelson Tebbe (Brooklyn Law School), Condemning Religion: The Political Economy of RLUIPA. The abstract states:

Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply strict scrutiny to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself, but today a new cutting-edge issue is emerging: whether the Act's extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should not give religious assemblies any extraordinary ability to resist condemnation. We offer two principal reasons for this proposal. First, the political economy surrounding condemnation is markedly different from that of zoning, so that broadening the law's protections beyond zoning to cover outright takings would be unnecessary and ineffective. Second, the costs of presumptively exempting congregations from condemnation are likely to be far higher than the costs of applying strict scrutiny to zoning. In conclusion, we identify an important implication of our argument for the law's core zoning provision - namely, our proposal invites local governments to circumvent RLUIPA by simply condemning religious property that they find difficult to zone because of the Act. On the one hand, this gives local governments a needed safety valve while, on the other hand, requiring them to pay just compensation to religious groups. Our proposal therefore suggests a powerful compromise.

4 ) Josh Blackman (George Mason University - School of Law), This Lemon Comes as a Lemon: The Lemon Test, Legislative History, and the Pursuit of a Statute's Secular Purpose. The abstract states:

The Lemon Test, derived from Lemon v. Kurtzman, is a three-pronged test to determine whether a government action violates the Establishment Clause of the First Amendment. This article will focus on the first prong, which queries whether the statute has a "secular purpose." While many other articles have focused on the secular aspect of this prong, few have considered what exactly purpose means.

This article proceeds as follows. In Part I, I introduce the establishment clause, and discuss how the Supreme Court treated this issue prior to Lemon. Next, I introduce Lemon v. Kurtzman, discuss the Lemon test, including some criticisms of this ghoulish standard. I conclude with provide detail on the first prong, the purpose prong.

In Part II, in order to further understand what the first prong of Lemon requires, I begin by discussing what the different types of purpose are. Next I provide a brief background of legislative history, a common resource used to divine legislative intent. After introducing legislative history, I pose, and answer several questions. Can the actual intent ever be known? No. Does a legislature actually have a single intent? Usually not. Whose intentions in the legislature matter? Depends. Can legislative history reliably and objectively reveal intent? Seldom. Is legislative intent a mere cover for judicial intent? Most likely.

Next, I explain why courts relying on legislative history to establish legislative intent creates a self-perpetuating cycle that reduces the reliability of legislative history. As courts rely on legislative history, politicians are motivated to modify the record to reflect their subjective biases. Attorneys and lobbyists have great incentives to use the legislative history to advance their agendas.

In this exploration of the First Amendment, I also advance a novel theory about relying on historical sources in originalist analyses, and by applying a commonly used evidentiary rule, show how use of older atextual sources is more reliable than relying on modern day legislative histories, because these older materials lacked the incentive for fabrication. This theory rationalizes why many originalists, including Justice Scalia, readily cite legislative histories of older vintage, but summarily reject modern legislative history.

In Part III, I build upon Part I and II, and question whether the purpose should actually matter in the Lemon test. I argue no. Further, the purpose prong forces Judges to rely on unreliable extrinsic legislative history. After conducting a brief survey of cases that use the first Lemon prong to strike down statutes, I conclude that the purpose prong is flawed. It yields inconsistent, and in many cases perverse results, and rewards savvy politicians who can hide religious purposes from the legislative record. Much like the mischievous wolf who comes not in sheep's clothing, this lemon comes as a lemon.

I conclude by making two modest proposals to modify the Lemon test. First, the purpose prong of the Lemon test should mean what it says. Rather than trying to construe the intent of the legislature, the Courts should focus on the statute, and its text. By limiting the analysis to the text, this approach cabins a judges discretion, and minimizes the subjectivity inherent in finding the purpose of a statute amidst a sea of conflicting legislative histories. Second, I propose that the Court adopt an original public meaning analysis to ascertain how an objective observer would understand the statute, and eschew reliance on legislative history.

5)Maurice E. Stucke (University of Tennessee College of Law) and Allen P. Grunes (Brownstein Hyatt Farber Schreck, LLP), Toward a Better Competition Policy for the Media: The Challenge of Developing Antitrust Policies that Support the Media Sector's Unique Role in Our Democracy. The abstract states:

It is difficult to formulate meaningful competition policy when there is a fierce debate over the current competitiveness of the media industry. After addressing the importance of the marketplace of ideas in our democracy, our article examines the current state of the media industry, including the response of traditional media to audience declines, the growth of new media, the impact of media consolidation (including its impact on minority and women ownership), and the role of the Internet. In response to recent calls for liberalizing cross-ownership rules to protect traditional media, our article outlines why conventional antitrust policy is difficult to apply in media markets, and how the concerns underlying media mergers differ from other industries. Our article recommends that Congress should take the lead in formulating a national media policy. This new legislation should (1) promote, or at least not diminish, the media's contribution to the marketplace of ideas; (2) have antitrust merger policies complement FCC policy, which together should provide some of the necessary legal framework for a vibrant marketplace of ideas; and (3) understand from a 21st Century perspective, all of the values, including noneconomic values, such as localism and diversity, that are important to preserving a healthy marketplace of ideas.

JFB