First Amendment Scholarship Update

Here is this week's collection of newly available scholarship addressing speech and religion:

1) José F. Anderson, University of Baltimore School of Law, Freedom of Association, the Communist Party, and the Hollywood Ten: The Forgotten First Amendment Legacy of Charles Hamilton Houston, forthcoming in the McGeorge Law Review40 (2009). The abstract states:

Charles Hamilton Houston, the most important civil rights lawyer of the first half of the 20th century who developed the legal strategy in Brown v. Board of Education, ended his fabulous legal career representing a group of Hollywood screen writers known as the Hollywood Ten. See Lawson and Trumbo v. United States, 176 F.2d 49 (D.C. App.1949). In that case convictions and jail sentences were upheld for the defendants' failure to answer questions from the House Committee on Un-American Activities (HCUA) about their views on communism and whether or not each was members of the Communist Party. The matters in Congress led to "blacklisting" of certain persons from jobs in the film and entertainment industry who either were named as Communist or refused to provide names of others who might be. This article suggests that Houston's "Theory of Freedom" combining various provisions of the Constitution to develop greater fundamental rights. An examination of the documents filed in the case reveal this "prophetic" approach to constitutional litigation that is the hallmark of what some have called "Houstonian Jurisprudence." Furthermore, a historical examination of Houston's long and interesting relationship with the Communist party in matters of litigation, while at the same time maintaining a steadfast belief in the principles of Democracy create an interesting tapestry of an important historical and legal period in the United States.

2) Ned Snow (University of Arkansas at Fayetteville - School of Law), Proving Fair Use: Burden of Proof as Burden of Speech . The abstract states:

Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair use burden of proof is repugnant to the fair use purpose. Adding to this repugnancy is the fact that the burden is the product of a mistake. For over a century, courts recognized that speakers of fair use expression should not bear this burden. Then modern courts mistakenly interpreted fair use as excusing, rather than defining, infringement, and as a result, they placed the burden on the party seeking to invoke the excuse. The mistaken nature of this interpretation becomes apparent when examining the jurisprudence that gave birth to fair use and the statute that governs its present application: both indicate that the burden should lie with rights-holders rather than fair users. Today, the misplaced burden of proof exacts a high cost of speech: rights-holders are exploiting the burden with internet efficiency against individual fair users. This Article therefore proposes that the burden of proof should once again lie with rights-holders.

3) Jason C. Miller, Limits on Political Statements by Public Bodies State Law Penalizes Government Speech that Rises to the Level of Electioneering, Public Corporation Law Quarterly, Michigan Bar, No. 3, p. 8, Fall 2008. The abstract states:

The Michigan Campaign Finance Act (section 257) limits what local government and school districts may say about election-related matters. This paper examines the regulation of government speech in Michigan as well as the important exceptions.

4)Elizabeth Dale (University of Florida Levin College of Law),  Employee Speech & Management Rights: A Counterintuitive Reading of Garcetti v. Ceballos , 29 Berkeley Journal of Employment and Labor Law 175 (2008). The abstract states:

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights in a way that may ultimately strengthen the hand of public employees

5) Re'em Segev (Hebrew University of Jerusalem - Faculty of Law), Freedom of Expression: Justifications and Restrictions. The abstract states:

"Freedom of expression" is a complex notion that reflects various considerations and raises many questions related to their content and interaction. This paper is an abstract of a book that considers general aspects regarding the justification and the limits of freedom of expression and analyzes exiting law in light of this normative discussion. Particularly, it considers the way to determine the proper scope of freedom of expression; first-order and second-order considerations in favor and against freedom of expression, both in general and regarding central specific kinds of expressions; and possible ways to normatively regulate the field of expressions - in particular to restrict expressions, primarily by law - and specifically the common view that subsequent punishment for an expression is generally preferable to prior restraint of an expression.

6) Sonia R. Bhalotra (University of Bristol), Christine Valente (Affiliation not provided) and Arthur van Soest (RAND Corporation), The Puzzle of Muslim Advantage in Child Survival in India. The abstract states:

The socio-economic status of Indian Muslims is, on average, considerably lower than that of upper caste Hindus. Muslims have higher fertility and shorter birth spacing and are a minority group that, it has been argued, have poorer access to public goods. They nevertheless exhibit substantially higher child survival rates, and have done for decades. This paper documents and analyses this seeming puzzle. The religion gap in survival is much larger than the gender gap but, in contrast to the gender gap, it has not received much political or academic attention. A decomposition of the survival differential reveals that some compositional effects favour Muslims but that, overall, differences in characteristics between the communities and especially the Muslim deficit in parental education predict a Hindu advantage. Alternative outcomes and specifications support our finding of a Muslim fixed effect that favours survival. The results of this study contribute to a recent literature that debates the importance of socioeconomic status (SES) in determining health and survival. They augment a growing literature on the role of religion or culture as encapsulating important unobservable behaviours or endowments that influence health, indeed, enough to reverse the SES gradient that is commonly observed.

7) Michael D. Makowsky (Department of Economics, Towson University), Religion, Clubs, and Emergent Social Divides. The abstract states:

Arguments for and against the existence of an American cultural divide are frequently placed in a religious context. This paper seeks to establish that, all politics aside, the American religious divide is real, that modern religious polarization is not a uniquely American phenomenon, and that religious divides can be understood as naturally emergent within the club theory of religion. Analysis of the 2005 Baylor Religion reveals a bimodal distribution of religious commitment in the US. International survey data reveals bimodal distributions in twenty-eight of thirty surveyed countries. The club theory of religion, when applied in a multi-agent model, generates bimodal distributions of religious commitment whose emergence correlates to substitutability of club goods for standard goods and the mean population wage rate. Ramifications of religious bimodality include potential instability of majority rule electoral outcomes. Median estimators, such as majority rule democracy, are non-robust with bimodal distributions. When religion is politically salient and polarized, small errors can disproportionately shift the election result from the preferences of the median voter.

8) Bruce Headey (University of Melbourne - Melbourne Institute of Applied Economic and Social Research), Jürgen Schupp (German Institute for Economic Research), Ingrid Tucci (German Institute for Economic Research - German Socio Economic Panel ), and Gert G. Wagner (German Socio Economic Panel Study), Authentic Happiness Theory Supported by Impact of Religion on Life Satisfaction - A Longitudinal Analysis with Data for Germany . The abstract states:

Using data from the German Socio-Economic Panel Survey (SOEP), this paper assesses the relationship between life satisfaction and religious practice. The main new result here is longitudinal. It is shown that individuals who become more religious over time record long term gains in life satisfaction, while those who become less religious record long term losses. This result holds net of the effects of personality traits, and also in fixed effects panel models. The paper has significant implications for the dominant, paradigm theory in SWB research, namely set-point theory. This theory holds that the long term SWB of adult individuals is stable, because SWB depends on personality traits and other stable genetic factors. It is already clear from the German panel data that about 20% of the population have recorded large long term changes in SWB. New evidence in this paper and elsewhere about the effects of consciously chosen life goals, including religious ones, on SWB is hard to reconcile with set-point theory. It is more in line with authentic happiness theory.

9) Kevin J. O'Brien (University of California, Berkeley - Charles and Louise Travers Department of Political Science), Rural Protest Since Tiananmen . The abstract states:

There has been more protest in the Chinese countryside than might have been expected in the repressive months following June 4, 1989. This unrest has been triggered in part by that staple of contentious politics research: opportunity. Leadership has also played a role. How they are perceived by their followers and interested onlookers is critical for protest organizers. Social recognition can steel an activist's resolve and lead to more protest. Violence has also been on the rise of late, as have unplanned, accidental protests that rapidly take on a life of their own. But is rural China likely to explode? Not likely. Organization remains low and cross-class cooperation is still rare. Claims tend to be circumscribed and popular action is usually small-scale and local. That national leaders tolerate so much contention is actually an indicator of their confidence. Should the Center begin to treat farmers' grievances like those of Tibetans and Falun Gong supporters, then we will know that the leadership is shaken and the regime is weakening.

10) Michael Reynolds, Note - Depictions of the Pig Roast: Restricting Violent Speech Without Burning the House , 82 S. Cal. L. Rev. 341 (2009). The abstract states:

Pornography dominates the discussion about free speech on the Internet. Congress has twice enacted legislation aimed at preventing minors from getting access to online pornography. Federal and local law enforcement agencies have dramatically increased efforts to combat the spread of child pornography. The Department of Justice has renewed attempts to crack down on obscene material after years of lax enforcement. Yet the debate about online pornography has overshadowed another disturbing Internet phenomenon. The Internet has facilitated growth in the availability of extremely violent images and videos. A little online searching reveals depictions of torture, of both humans and animals; videos depicting murders and executions, including beheadings by Islamic militants; videos of brutal amateur street fights, some consensual, but many not; videos of minors engaged in schoolyard fights and beatings, some posted to humiliate the victims; and videos of cockfighting. Online retailers have sold videos of dog fights and extremely violent video games, including one in which the player is tasked with making graphic snuff videos and another which allows the player to play fetch with dogs using human heads.

JFB