First Amendment Law Prof Blog

Plea Agreements to Be Available On-line

As reported by Law.com, despite the objections of federal prosecutors apprehensive about the implications of the decision for witness safety, Federal District Judge Federico Moreno of the Southern District of Florida has ordered that plea agreements, like other court documents, will now be posted on-line.  The Department of Justice had fought making the agreements available in this way, citing how websites, such as Whosarat.com, could post information from the agreements and make cooperating witnesses vulnerable to attacks and intimidation.  Pursuant to Judge Moreno's order, the plea agreements will now be available on PACER. However, pursuant to requests in individual cases, specific plea agreements may still be sealed and kept off-line.

JFB               

Qulaified Immunity Ruling's Potential Impact in First Amendment Litigation

In a brief essay on the First Amendment Center's website, David Hudson notes how the Supreme Court's recent ruling in Pearson v. Callahan may  affect First Amendment litigation. In a revision of the Court's prescribed approach to qualified immunity determinations, Pearson now permits courts reviewing constitutional torts to decide as a threshold matter whether the asserted constitutional claim is clearly established and, if it is not, immediately resolve the immunity question.  This sequence potentially allows a court to avoid determining whether the challenged conduct did violate the plaintiff's constitutional rights.  Writing for the Court, Justice Alito advises that first confronting and resolving the underlying allegation of unconstitutional behavior may be beneficial for the development of constitutional principles, but that determination will no longer be required as it had been under Saucier v. Katz.  As Hudson points out, Morse v. Frederick presented this question of whether a court needed to make the constitutional determination rather than deflecting that substantive question when the challenged official acts would not have been previously categorzied as the violation of a clearly established right. In Morse, Justice Breyer, concurring in part and dissenting in part, had recommended resolving the case by simply granting the principal's claim of qualified immunity, given her reasonable uncertainty as to her disciplinary prerogatives. Hudson foresees courts using the new opportunities to avoid the underlying constitutional questions in a number of developing First Amendment controversies, such as cases examining school officials' constitutional authority to impose school disciplinary sanctions for students' off-campus Internet activities.

JFB                      

Eleventh Circuit Denies En Banc Review in Challenge to Florida Pledge Statute

As noted on Law.com, the Eleventh Circuit, over the dissent of Judge Rosemary Barkett, has denied a request for en banc review of the July, 2008 panel ruling in Frazier v. Winn, 535 F.3d 1279 (11th Cir. 2008).  In the portion of the July decision for which en banc review was sought, the panel rejected eleventh grader Cameron Frazier's First Amendment challenge to the Florida statute prescribing that a public school student cannot refuse to say the Pledge of Allegiance unless the student's parent submitted a written request that the child be excused from the Pledge requirement.  In Frazier's own situation, no disagreement about his prerogative to decline to say the Pledge existed between the student and his mother, who filed the case with him as his next friend. Frazier argued that, under Barnette, a student had a First Amendment right to refuse to participate in the Pledge, a right that was not contingent on parental approval of that choice.  The Eleventh Circuit panel unanimously rejected Frazier's challenge, accepting the state's defense of the statute as reflecting recognition of parents' constitutional right to direct the upbringing of their children.

Dissenting from the denial of en banc review, Judge Barkett characterized the panel's conclusion as directly contravening Barnette and deviating from the decisions of other courts reviewing parallel claims. For example, in Circle Schools v. Pappert, 381 F.3d 172 (3d Cir. 2004), the court invalidated a Pennsylvania statute mandating that parents of all schoolchildren in the state, including those in private schools, be notified if their child declined to say the Pledge.  Judge Barkett criticized the panel decision's failure to acknowledge that minors have First Amendment rights in school and argued that the state cannot delegate to parents what it is constitutionally prohibited from doing with regard to the Pledge, compelling the student's participation despite his objection as a matter of freedom of conscience.

In Frazier, the panel opinion seems to resist any serious consideration of the protection properly afforded to a child's freedom of conscience. This cavalier treatment of the student's rights claim is particularly ill-advised when the claim presented in that of a mature minor, here a seventeen year old high school junior, and when the guiding Supreme Court ruling in Barnette addressed its constitutional concern directly to the rights of the students subject to the West Virginia flag salute requirement. Justice Jackson wrote:

It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.

319 U.S. at 633-634.

Thanks to How Appealing for the link to the opinion denying en banc review.

JFB

HBO Documentary to Examine Ted Haggard's Life After Scandal

In anticipation of HBO's Thursday airing of Alexandra Pelosi's documentary, "The Trials of Ted Haggard", the Washington Post examines how the former pastor of the New Life Church, an evangelical megachurch in Colorado Springs, has responded to the revelations about his hidden homosexual experiences and drug use, secrets made public as Haggard led a campaign against the legalization of gay marriage.  Required by church officials to undertake secular counseling as a condition of his severance package, Haggard no longer attends church and struggles financially as he sells insurance with his wife and daughter. He no longer sees opposition to gay marriage as an necessary central tenet of evangelical Christianity and sees his experiences as demonstrating the hazards of absolutism in belief. In a poignant passage at the end of the Post piece, Haggard expresses his gratitude for being able to remain with his family as he recalls waking up to hear the sounds of his children in the house and thinking he was "so grateful I wasn't waking up in a little garage apartment by myself."

JFB                     

Recent Supreme Court Rulings in First Amendment Cases

Last week the Court declined to review the Third Circuit’s most recent opinion finding the Child Online Protection Act (COPA) unconstitutional.  The denial of review in  Mukasey v. American Civil Liberties Union, et al. effectively marks the demise of the statute which has made  its way up and down in the federal courts for years.  COPA’s provisions, which criminalized web transmissions that were "harmful to minors" and that were made for commercial purposes , were found unconstitutional  by the Third Circuit in July because they were not narrowly tailored to advance the government's compelling interest, failed to reflect available less speech restrictive mechanisms to protect children from the targeted web content, and were overbroad and vague. The Third Circuit opinion in American Civil Liberties Union v. Mukasey appears at 534 F.3d 181 (3d. Cir. 2008).      

Last week the Court also issued an opinion in Locke v. Karass.  The Court rejected the claim of a group of Maine state employees who were not members of the local union and who asserted that their First Amendment rights were violated when they were required, under the operative collective bargaining agreement, to pay the local a service fee that was applied in part to national litigation expenses, expenses which the non-member employees contended did not directly benefit employees represented by the local. The First Amendment Center provides a summary of the ruling and its relationship to the Court’s prior First Amendment rulings on the uses of fees collected from non-member employees. 

Tuesday the Court denied cert in Schubert v. Pleasant Glade Assembly of God which sought review  of whether the Free Exercise Clause would  bar imposing tort  damages for injuries alleged to have been caused by  an exorcism.  In December the Court had also declined to review Curry v. Hensinger in which the Sixth Circuit had rejected an elementary school student’s claim that hostility to his religious viewpoint prompted the  school principal’s refusal to allow the boy to attach religious message to candy canes ornaments to be sold as part of a “Classroom City” project.

Today the Court announced that it has set oral argument in Citizens United v. Federal Election Commission (08-205) for  March 24. In Citizens United, the makers of Hillary-The Movie present a First  Amendment challenge to the application of McCain-Feingold’s restrictions on campaign advertising to the movie’s broadcast when the makers assert it is a documentary film, albeit one with a clear anti-Clinton message.  The Scotusblog case wiki and the First Amendment Center provide more background on the case.

JFB

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

First Amendment Scholarship Update

Newly available papers on topics related to the First Amendment include: 

1) Richard M. Esenberg (Visiting Assistant Professor of Law, Marquette University Law School), Of Speeches and Sermons: Worship in Limited Purpose Public Forums, forthcoming in Mississippi Law Journal, Forthcoming. The abstract states:

Recent decisions of the United States Supreme Court have held that governments who create limited purpose public forums may not exclude even "quintessentially religious" speech that is otherwise within the purpose of the forum. Nevertheless, governments frequently attempt to exclude religious speech that might be characterized as "worship" from such forums and the Ninth Circuit Court of Appeals, in conflict with the Second and, arguably, Seventh Circuits has upheld such exclusion.

The article addresses whether worship can be regarded as a separate category of speech that may be constitutionally excluded from limited purpose public forums. To assess the idea that worship is "different," it briefly assesses mainstream Christian theology concerning worship and concludes that worship is likely to communicate ideas about life in the world that are within the boundaries of most broadly defined public forums. Exclusion of such speech would be inconsistent with the Court's insistence upon neutrality between religion and irreligion and is unnecessary to avoid the risk or appearance of establishing religion.

2) Matt Halling (Student, UC Hastings College of Law), Did Press Freedom Win a Medal? The Future of Foreign Journalism in China.The abstract states:

This paper addresses the future of foreign journalism in China in the wake of the new liberalizing press regulations created for the 2008 Olympics which were made permanent in October, 2008. Despite hope for a more open foreign press in China, the paper argues that the new regulations as applied have largely institutionalized the existing reality.

Part I discusses human rights instruments relevant to freedom of the press in order to determine whether China's current regulations facially comport with international human rights law. Part II of this paper discusses China's historical treatment of foreign journalists and analyzes the substance of the new regulations. Part III looks at how the Chinese government applied the new regulations to foreign reporters at the Olympics. Part IV evaluates the new regulations and engages briefly with the issue that China's press regulations still do not satisfy the demands of Western journalists.

3) David Abramowicz (Student, Columbia Law School), Note - Calculating the Public Interest in Protecting Journalists' Confidential Sources. The abstract states:

Most federal circuits recognize a qualified journalist’s privilege not to identify a confidential source. In shielding journalists from some subpoenas, those courts recognize, at least implicitly, a public interest in newsgathering sufficient to overcome its interest in obtaining evidence. But courts pay little attention to the nature or scope of the newsgathering interest. They treat it as fixed, an approach that overlooks the reality that certain uses of confidential sources benefit the public more than others. Some judges and commentators have called for a flexible approach toward measuring the newsgathering interest, but their proposals, which rely on an analysis of the value of a confidential source’s information, would yield unpredictable results. These proposals have not gained traction.

This Note identifies, for the first time, a procedural analysis, based on guidelines recently championed by journalists and media organizations, that can be used to calculate the newsgathering interest. The new guidelines govern the process by which journalists obtain and report information from confidential sources. The Note argues that courts should afford more or less weight to the newsgathering interest based on whether a journalist’s use of information from a confidential source adhered to the guidelines. This approach would align the journalist’s privilege with the public interest without requiring a subjective assessment of information’s news value. Furthermore, focusing the relevant inquiry on the process by which information flowed from a confidential source to the public would solve the problem of defining who is a “journalist” entitled to invoke the privilege.

4) James David Nelson (University of Virginia School of Law), Incarceration, Accommodation, and Strict Scrutiny. The abstract states:

The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires the application of strict scrutiny to policies substantially burdening the religious exercise of prisoners. Although RLUIPA was passed without dissent, critics and commentators have tended to accept three skeptical claims about the use of strict scrutiny in this context: (1) changes in the formal level of scrutiny applicable to claims for religious accommodation are irrelevant to case outcomes; (2) even the most sympathetic statutory language will not improve prisoners' chances of success in seeking accommodations; (3) using the language of strict scrutiny in prison cases will diminish its force in other areas of the law. This paper challenges these skeptical conclusions. Since RLUIPA was passed in 2000, federal courts have reviewed hundreds of claims brought by prisoners seeking accommodations. Some federal circuit courts have continued to defer to the judgment of prison administrators when denying exemptions. Other federal courts, however, are employing a more rigorous form of review, taking a "hard look" at prison policies that burden religion, and reviewing carefully the claims of prison administrators. Moreover, rather than diluting strict scrutiny in other areas of the law, these courts are using doctrine from outside of the accommodation context to resolve prisoner claims. The emergence of a searching form of review in the prison context is surprising. After detailing an emerging conflict among the federal courts of appeal, this paper argues that firm constitutional footing, statutory specificity, and the importation of searching review from equal protection and free speech cases all help to explain this unexpected development. This paper concludes with some thoughts about how proponents of religious accommodation should proceed in light of the limited but real success of RLUIPA.

5) M. D. R. Evans and Jonathan Kelley  (University of Nevada, Reno - Departments of Resource Economics and Sociology and International Survey Center), Traditional Lifestyles Protect Against Parental Divorce: Effects of Religion, Ethnicity, Rurality and Mother's Employment in Australia in the 20th Century, forthcoming in International Journal of Sociology of the Family.The abstract states:

This paper examines the sources of parental divorce in Australia using respondents' retrospective reports of their parents' behavior, which allows us to look back as far as the early years of the 20th century. The data are from a pooled series of representative national samples of Australia conducted between 1984 and 2002 (N=19,601 valid cases for this analysis), which we analyze using probit regression models. Replicating prior research, we find that rural parents and Mediterranean immigrant parents have more stable marriages. Taking into account further traditionalism measures - church attendance and maternal employment - substantially expands our knowledge and changes our understanding of the already established effects. Parents who are faithful church-goers have much more stable marriages, even net of many other influences. By contrast, religious denomination does not have significant effects, nor do education, occupation, or income. Maternal employment increases the risk of divorce. It also reduces the previously established rurality effect to insignificance, suggesting that it merely reflects lower maternal employment in the countryside. By contrast, the protective effect of Mediterranean origins is actually amplified after adjustment for maternal employment. The effect of maternal employment declined strongly over time, with important implications for understanding the causal direction of the relationship. Even after taking our expanded range of influences into account, there are still substantial effects unmeasured variables represented by a time trend toward increasing divorce.

JFB

First Amendment Scholarship Update

Here is this week's collection of new First Amendment scholarship:

1) Jeffrey Shulman (Georgetown Law Center), What Yoder Wrought: Religious Disparagement, Parental Alienation and the Best Interests of the Child, 53 Villanova L. Rev. 173 (2008). The abstract states:

Despite its grounding in a specific and peculiar set of facts, the strict scrutiny mandate of Wisconsin v. Yoder (decided in 1972) has changed the constitutional landscape of custody cases - and it has done so in a way that is unsound both as a matter of law and policy. Following Yoder, most courts require a showing of harm to the child, or a substantial threat of harm to the child, before placing any restrictions on exposure to a parent's religious beliefs and practices. This harm standard leaves children in an untenable position when parents compete for "spiritual custody," for the law can protect them only when the risk of harm is already substantial. Indeed, the bar is set so high that few courts have found circumstances that satisfy the harm standard. In this essay, I argue that a strict scrutiny standard has no place in spiritual custody cases. It is hardly consistent with the basic principle that the custody court's paramount consideration is the best interests of the child. In fact, such a standard actually leaves the child unprotected from the very injuries deemed sufficient to justify judicial intervention in cases not involving religious matters.

Religious parenting rights enjoy immunity from customary family law considerations because such rights are not subject to the rule, stated most clearly and emphatically in Employment Division, Department of Human Resources of Oregon v. Smith, that application of a neutral, generally applicable law to religiously motivated conduct is not barred by the Free Exercise Clause. Spiritual custody cases implicate fundamental rights under both the Free Exercise Clause and the Due Process Clause of the Fourteenth Amendment; that is, they present a "hybrid situation," a kind of case where, peculiarly, the whole is greater than the sum of its constitutional parts, and for which strict scrutiny is somehow warranted. (In other hybrid situations, the free exercise right is joined to a fundamental protection already subject to strict scrutiny. In religious parenting cases, the parenting right is not necessarily a fundamental one.) In Smith, the Court discussed the hybrid rights situation as an exception to general constitutional principles. But in the universe of religious parenting cases, the exception easily swallows the rule. Because such cases are hybrid by definition, strict scrutiny becomes the norm, and the result is the creation of a separate sphere of the law where the government's ability to enforce generally applicable law (in spiritual custody cases, to consider the best interests of the child) is subject to an individual's religious beliefs. In that sphere, the law grants the religiously motivated parent a special constitutional privilege greater than those awarded separately under the Free Exercise Clause or the Due Process Clause, a privilege that generally trumps any countervailing interests of the state or rights of the child.

In Part I, I examine how custody courts employ the hybrid rights doctrine, tracing how the idiosyncratic facts of Yoder encouraged the Supreme Court to abandon well established law governing the right of religious parenting and to formulate a strict scrutiny standard ill-adapted to the existential intricacies of family disputes. In Part II, I argue that the Yoder standard fails to protect the child from harms routinely addressed in cases involving only secular matters. More specifically, I am concerned with the issue of parental alienation, the (sometimes subtle, often not) ways in which one parent may seek to turn a child against the other parent. Sensitive to the need to nurture a child's relationship with both parents, and averse to any behavior that causes alienation, custody courts commonly prohibit each parent from making disparaging remarks about the other, and they do so without subjecting such measures to the heightened scrutiny demanded by a showing of harm. Penalties for subverting this judicially mandated obligation of tolerance can be severe, including modification of custody arrangements. But toleration gives way to individual rights where disparagement is religiously motivated. The harms to the child do not change. Indeed, the kind of disparagement that bears the imprimatur of religious doctrine may be far more terrifying than a parent's personal verbal rampages. What changes is the deference courts show to the parent's claim of constitutional rights. Under the harm standard, most courts treat religious disparagement as though it were mere abstract advocacy, ignoring the coercive nature of religious beliefs (children are caught between competing moral commands) and the coercive familial context in which such speech occurs (children are caught between competing parental commands).

Judicial non-intervention amounts to little more than a way of not dealing with such cases - or, at least, of not dealing with such cases until it is too late for the child. To honor its fiduciary obligation to the child, the court must be able to consider any practice that could affect the general welfare of the child and to insist upon an appropriate form of civil discourse when religious views diverge. Where exposure to intolerance is not in the best interests of the child, the welfare of the child requires that those responsible for their upbringing observe, or be made to observe, the boundaries of socially appropriate behavior. The duty to respect those with whom one disagrees is a civic obligation for which parents must prepare their children. It is the necessary concomitant of the parenting right. Religious belief should not absolve parents of this obligation, and disparagement born of religious conviction should not get a constitutional pass from judicial scrutiny.

2)Jeffrey Shulman (Georgetown Law Center), The Outrageous God: Emotional Distress, Tort Liability, and the Limits of Religious Advocacy, 113 Penn St. L. Rev. 381 (2008). The abstract states:

When Matthew Snyder died fighting for his country, his memory was celebrated, and his loss mourned. The Westboro Baptist Church conducted a celebration of a different kind by picketing near Matthew's funeral service. The church held signs that read, "You are going to hell," "God hates you," "Thank God for dead soldiers," and "Semper fi fags." In the weeks following the funeral, the church posted on its website, godhatesfags.com, an "epic" entitled "The Burden of Marine Lance Cpl. Matthew Snyder." Matthew's burden, as the church saw it, was that he had been "raised for the devil" and "taught to defy God." Matthew's father, Albert Snyder, brought a civil action against the Westboro Baptist Church in federal district court, asserting a claim for intentional infliction of mental and emotional distress (among other causes of action). He was awarded $10.9 million in compensatory and punitive damages.

That judgment, as such judgments against religious entities are wont to do, occasioned protest from First Amendment advocates concerned that, under the open-ended standard of outrageousness, "[l]iability easily ends up turning on how much juries condemn the speaker's viewpoint." Cautioned by the Supreme Court that "'[o]utrageousness' in the area of political and social discourse has an inherent subjectiveness about it," courts hearing outrage suits are on guard against breaches of objectivity that would disadvantage minority religions. However, to avoid the appearance of religious viewpoint discrimination, judges often resort to fine, almost scholastic, distinctions between what is secular and what is religious; between what is central to a religion's belief and practices and what is theologically insignificant; and, even more tenuously, between what is belief and what is conduct. This is caution to a fault. These distinctions have produced a results-oriented jurisprudence that, paradoxically, involves the courts in precisely the kind of entanglement with religious affairs they seek to avoid, and does so while leaving ill defined the threshold that separates protected religious advocacy from religiously motivated conduct subject to tort liability.

This essay argues that emotional distress claims are well suited to suggest the outer limits of civil tolerance for religious advocacy. Such tort suits serve socially valuable punitive and prophylactic functions, providing vulnerable individuals with a remedy against the most offensive and intrusive forms of religious conduct. That protection need not come at the cost of constitutional privilege for religious entities. Where no intra-church dispute is involved, the only question a court is obligated, and entitled, to consider is whether the religious entity's conduct was of a type that no decent society should tolerate. Tort liability is not premised on the judgment that a religious belief is somehow "fundamentally flawed" or not worthy of constitutional protection. To the contrary, whether religious advocacy was meant to and did inflict severe emotional distress is a question that can be adjudicated by the neutral and generally applicable principles of tort law.

3)  Francis Joseph Mootz III (William S. Boyd School of Law, UNLV), Faithful Hermeneutics, fortthcoming in Michigan State Law Review (2009). The abstract states:

This article was presented at the Annual Meeting of the Association of American Law Schools on January 9, 2009 as part of a panel on "Scriptural and Constitutional Hermeneutics." The panel was co-sponsored by the Law and Religion Section, Section on Jewish Law, and Section on Islamic Law, and the papers will be published by the Michigan State Law Review.

My article compares legal and religious hermeneutics by exploring the dual nature of what I term "faithful hermeneutics." The ambiguity evoked by this phrase is intentional. On one hand, it suggests an investigation of the relationship between legal and religious interpretation by comparing hermeneutical activities undertaken by faithful adherents to these two different textual traditions. In this first sense, it is to compare how these practices are the hermeneutics of the faithful. On the other hand, the phrase suggests an analysis of how interpreters in these two traditions remain faithful to the nature of their practice. In this second sense, it is to compare how hermeneutics can be faithfully accomplished. My thesis is that these two senses of "faithful hermeneutics" are connected. The fact that it is faithful adherents who engage in the interpretive practice in large part defines how they can, and should, remain faithful to the interpretive enterprise.

I anchor my argument in Hans-Georg Gadamer's critique of historicism, in which he references the practices of legal and religious hermeneutics. Gadamer's philosophical hermeneutics explains how faith is a prerequisite of understanding, even as understanding revitalizes and reshapes the faith one brings to a textual tradition. I then unfold the critical dimensions of faithful hermeneutics by comparing the work of Cardinal Joseph Ratzinger (later Pope Benedict XVI) and Gianni Vattimo on the Catholic tradition. I argue that these two thinkers display both the broad range and the non-methodological character of the critical insights of faithful hermeneutics.

I conclude by suggesting that the parallels between religious and legal hermeneutics are instructive, but that we remember that it would be a mistake to conflate these two instances of faithful hermeneutics in our secular age.

4) Sylvie Bacquet (University of Westminster), Manifestation of Belief and Religious Symbols at Schools: Setting Boundaries in English Courts. The abstract states:

Since the coming into force of the Human Rights Act 1998 on 2 October 2000, state schools as public authorities have been under an obligation to comply with the European Convention on Human Rights and Fundamental Freedoms, including the right to manifest ones' religion and beliefs as laid out in Article 9 of the convention. When devising their uniform policies, schools are therefore required to accommodate religious and cultural diversity. However, the extent to which they are required to do so has given rise to much litigation and debate. This paper considers some of the theoretical implications underpinning the debate on religious symbols and manifestation of belief at school. It looks at the dilemma between the legal obligation for schools to allow the expression of cultural and religious diversity yet maintain cohesion and protect children from factional pressures related to various belief systems. It examines the extent to which human rights law can help to resolve the issue and looks also at the way the HRA itself has emerged as a conduit for crises of religious and ethnic identity in contemporary society.

5) Reid Krell (Student, University of Alabama School of Law), The Ivory Tower Under Siege: The First Amendment's Ability to Protect Academic Freedom. The abstract states:

In Garcetti v. Ceballos, the Supreme Court held that public employees who speak within the scope of their jobs are not protected by the Pickering balancing test. The Court reserved the issue of whether academics, who may make controversial speech within the course of their academic work and suffer retaliation, are subject to the Garcetti rule. This paper outlines the current thinking of how the various academic freedom claims within the First Amendment play out, and then offers a new way to resolve such a case. The First Amendment defines the contours of the professor's claim, but it is the Contract Clause that animates the claim. Essentially, what the university is asking for is authority to breach the employment agreement because the professor was in compliance with the employment agreement. Judicial sanction of such an action eviscerates contract unconstitutionally.

JFB

Nat Hentoff, Champion of Civil Liberties, Laid Off by Village Voice

As 2008 ended, the Village Voice announced that it was laying off columnist Nat Hentoff, whose articles about civil liberties issues had gained much praise during his long career. In 1980, Hentoff had been honored with the Silver Gavel Award by the ABA for his work examining rights abuses in New York correctional and mental health facilities and for his examiniation of secrecy provisions of the Atomic Energy Act. Hentoff's book, "Free Speech for Me -- But Not for Thee: How the American Left and Right Relentlessly Censor Each Other", also reflected his concern about First Amendment issues. As the New York Times noted in its article on Hentoff's departure from the Voice, he will still publish a weekly column for the United Media syndicate and serve as a contributor to The Wall Street Journal.   

HT to Legal Blog Watch for this item.

JFB