First Amendment Law Prof Blog

Pentagon Agrees to Allow Photographs of Soldiers' Coffins at Dover AFB If Family Members Agree

The New York Times reports that Secretary of Defense Gates announced today that the military will lift the ban on photographing the coffins of soldiers as they arrive at Dover AFB. However, the family members of the returning soldiers will be given an opportunity to object and,if they do so, photographs will not be permitted. An earlier TImes piece offered a sample of military family members' reactions to the possible lifting of the ban.  Details about how Canada and Great Britain have handled the return of their war dead were presented in the Times Sunday Week in Review.   

JFB               

Do Recent Efforts to Police Content of Prayer at Government Events Demonstrate the Divisive Potential of This Ceremonial Practice?

Two recent news items highlight the potential constitutional hazards that emerge when governmental ceremonies put prayer on the agenda.  The Religion Clause Blog picks up a post from Dan Gilgoff's God and Country noting that the Obama administration requests that local clergy who have been invited by the White House to give an invocation at presidential appearances submit the text of the prayer that would be delivered for review by the White House Office of Public Liaison. This pre-clearance protocol presumably seeks to encourage inclusive language and avoid potentially offensive content. Although no submitted prayer is reported to have been rejected thus far, the pre-delivery review process has prompted alterations of at least one clergy member's practice. Although, as the Gilgoff post observes, Native American prayer would have ordinarily been improvised, a representative of the Tohono O'odham Nation selected to deliver the invocation at the President's Phoenix appearance wrote out his prayer in advance in order for it to be reviewed by White House personnel.  Earlier in the month, the Washington Post's On Faith blog reported that a group of Oklahoma legislators had unsuccessfully attempted to have a prayer delivered at the opening of a legislative session removed from the record. The content of the prayer itself, an adaptation of the Prayer of St. Francis, does not appear to have sparked any objection, but it had been preceded by the designated minister's acknowledgment of the presence of his parents and his partner/fiance and this reference communicated the sexual orientation of  the minister, who had been invited to participate by the only openly gay member of the Oklahoma legislature. This revelation seems to have prompted the objection, explained as having been "motivated by faith" when the sponsor of the resolution to strike the prayer from the record was later interviewed.            

JFB            

Unanimous Ruling Upholds Pleasant Grove's Prerogative to Display Donated Ten Commandments Monument while Rejecting Monument Donation from Summum Faith Adherents

In an opinion issued today in Pleasant Grove v. Summum, the Supreme Court accepted the characterization of the original monument display in the city's Pioneer Park as government speech and therefore upheld as constitutionally unobjectionable the decision of the city government to reject the subsequently proffered monument setting forth the Seven Aphorisms of Summum, a small religious sect. Justice Alito wrote the opinion for the Court with concurrences filed by Justices Stevens, Scalia and Breyer. Justice Souter concurred only in the result.A brief summary of  the opinion appears on Scotusblog.

JFB

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

Ohio Principal Enforces Ban on "Dirty Dancing"

A Principal in Ohio reportedly announced plans to enforce a ban on "dirty dancing" at an upcoming winter formal by requiring students to sign a pledge that they will not "grind" on the dance floor.  The prohibition takes aim at students whose style "simulates sex on the dance floor."

Courts have given school officials increasing latitude in recent years to regulate student conduct, but I wonder how this restriction would be enforced, and whether there's a potential vagueness problem here.  Speaking to Fox News, the Principal expressed concern that students are "grinding [and] rubbing," adding that "its just inappropriate, and we're not going to tolerate that."  But whether "grinding" or "rubbing" "simulates sex" I suppose is a question of degree, and how are students to tell the difference between permissible moving and grooving, and an impermissible bump and grind? 

In the end it might not matter that much given that students opposed to the policy are (predictably) planning to boycott the dance.

-Kathleen A. Bergin

 

Judge Throws Out Judicial Conduct Restrictions in Wisconsin

A federal judge in Wisconsin has held that rules barring state judges from joining political parties, soliciting campaign donations and endorsing candidates for public office violate the First Amendment.  Judge Barbara Crabb explained in her lengthy opinion that while such rules violate constitutional guarantees, they did little to eliminate the risk of bias or ensure public confidence in the judiciary, in part because of the influence of big money donors who contribute to judicial elections through campaign committees.  Alternative means of ensuring neutrality were available, however, such as stricter requirements for recusal when a judge's partiality comes into question.   

-Kathleen A. Bergin

Pearson Qualified Immunity Analysis Extended to First Amendment Claim

Commentary on last month's decision in Pearson v. Callahan predicted that the Supreme Court's revised approach to Fourth Amendment qualified immunity cases would extend to other areas of constitutional law, including cases where a First Amendment violation was asserted.  (see prior post here). 

Taking that approach, the Tenth Circuit has affirmed a lower court decision against a Utah artist who was arrested for selling his artwork in a public park without first obtaining a license pursuant to a city ordinance.  Exercising its "newfound discretion" under Pearson, the court concluded that the arresting officers were entitled to qualified immunity because the law was not "clearly established" at the time it was enforced, though the city would have to defend the constitutionality of its permit scheme on remand.  More on Christensen v. Park City Municipal Corporation from The First Amendment Center. 

LA City College Student Alleges Teacher Would Not Allow Him to Deliver Speech Opposing Same Sex Marriage

Today’s LA Times reports that a student at LA City College has filed suit challenging what he alleges was the denial of the opportunity to complete a speech as part of his public speaking class because the teacher and several members of the class disagreed with the message of the speech, opposition to same sex marriage. The student is represented by the Alliance Defense Fund (ADF). The complaint alleges that the teacher’s actions constituted religious discrimination and a violation of the student’s  free speech rights. The student’s evaluation sheet for the speech exercise includes hand-written notations listing the topic of the speech as “God”, commenting that “proselytizing is inappropriate in a public school”, and remarking “Ask God what your grade is”.  The ADF website presents more information about the suit.

JFB

First Amendment Scholarship Update

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

1) Julie Seaman (Emory University School of Law), Hate Speech and Identity Politics: A Situationalist Proposal , 36 Fla. St. U. L. Rev. 99 (2008). The abstract states:

The scholarly debate over hate speech regulation has often been characterized as a clash of absolutes, an irreconcilable conflict between the values of free speech and equality. In this Essay, which focuses on the college and university context, I consider whether the findings of social and cognitive psychology research might have the potential to shift the hate speech debate such that some areas of common ground come into view. Relying on insights from the substantial body of research that demonstrates that individual behavior is strongly influenced (often unconsciously) by situational factors, this Essay proposes that universities can - and should - consider ways in which to structure their social and physical environments so as to minimize harmful, antisocial speech and maximize prosocial, productive speech. Such an approach would avoid the heavy-handed censorship most objectionable to strong free speech advocates, while at the same time recognizing the social constructionist insight that belief and behavior are profoundly influenced by cultural practices, language, and images.

2) Shannon Gilreath (Wake Forest University School of Law), 'Tell Your Faggot Friend He Owes Me $500 for My Broken Hand': Thoughts on a Substantive Equality Theory of Free Speech , forthcoming in Wake Forest Law Review. The abstract states:

With two recent decisions in what is being referred to as the T-shirt Wars, Harper v. Poway Unified School District and Nuxoll v. Indian Prairie School District, as operational vehicles, this article explores what I term anti-identity speech and its effects on its targets.

Traditional interpretations of the First Amendment rely upon free speech absolutism and formalistic notions of equality (if equality is considered at all) to render anti-identity speech (more narrowly: hate speech) as an evil that must be tolerated by its targets for the greater good. This article posits an alternative view of the right to free speech, which is grounded in a commitment to substantive equality and which would allow for the reasonable restriction of speech that has as its aim or effect the subordination and second-class status of historically disenfranchised minorities. In such discrete instances, speech is analyzed and regulated on the basis of harm, not viewpoint. The speech is restricted for what it does-eroding equality-not for what it says. To put it another way, equality provides the compelling state interest for restrictions of anti-identity, anti-equality speech. A theory thus articulated requires a conceptualization of the end product of anti-identity speech as actual harm-something more than insult or hurt feelings. It also requires that restrictions are related in constitutionally significant ways to the defense of equality. This approach calls to question a number of popular myths anchoring the absolutist view of free speech, as well as demands their answer through a realistic look at the interrelation of language, history, and context.

Through an extended analogy between contemporary anti-Gay rhetoric in the United States and anti-Semitic saturation propaganda in Nazi Germany, I show why and how anti-identity speech must be subject to reasonable regulation. While focused largely on the public grade school setting, the arguments presented here are relevant to numerous situations in which the conceptual liquidation of the person is effectuated by speech or expression that then finds refuge in the First Amendment. As such, my arguments are relevant to anti-harassment laws, anti-bullying laws, and anti-hate speech laws.

3) Erwin Chemerinsky (University of California, Irvine Law School), Teaching that Speech Matters: A Framework for Analyzing Speech Issues in Schools, forthcoming in  UC Davis Law Review . The abstract states:

The Supreme Court's recent decision in Morse v. Frederick continues a pattern of judicial unwillingness to protect student speech. A key flaw in the Court's approach is in failing to draw a distinction between government control over the curriculum (and even student speech in curricular activities) and student speech outside the school's curriculum. Deference to school officials is appropriate in the former, but not in the latter. Unfortunately, the Court's approach, as reflected in its last few decisions concerning student speech, has been uncritical deference to schools and far too little protection of student speech.

4) Erwin Chemerinsky (University of California, Irvine Law School), Unpleasant Speech on Campus, Even Hate Speech, is a First Amendment Issue, forthcoming in William & Mary Bill of Rights. The abstract states:

Public universities must allow unpleasant speech, even anti-semitic speech, on campus. Professor Marcus sharply criticizes universities for allowing such speech. But his position cannot be reconciled with the most basic principles of freedom of speech under the First Amendment.

5) Eric Segall (Georgia State University - College of Law), In the Name of the Children: Government Regulation of Indecency on the Radio, Television and the Internet -- Let's Stop the Madness, forthcoming in University of Louisville Law Review, 2009. The abstract states:

For a long time the Supreme Court of the United States has assumed that the government has a compelling interest in protecting children from non-obscene, sexually explicit speech. In addition, the Court has also held that radio and television broadcasting receive less First Amendment protection than other forms of media such as cable and satellite television and the internet. These holdings have led the Federal Communications Commission to try and censor non-obscene indecency and invectives from the airwaves and also generated numerous attempts by Congress to censor the internet to protect our children. This article argues that there is no substantial evidence demonstrating that children are seriously harmed by non-obscene sexually explicit speech, and therefore the government does not have a compelling interest in keeping children away from such speech. In addition, the original rationale for the Court's decision that broadcasting receives less First Amendment protection than other media, i.e., that broadcasting is uniquely pervasive inside the home, is no longer true and the Court should therefore find that television and radio broadcasters should receive the same First Amendment protections as other media. This article concludes that, in light of the fundamental principle of First Amendment law that the government is not allowed, absent a compelling interest, to censor speech because of the message and/or potential harm it conveys, unless and until there is substantial evidence that non-obscene constitutionally protected speech harms our children, the decision about how our children should be raised and what speech they can hear should be made by parents and teachers not by the state.

6) Ali Khan (Washburn University - School of Law), Speech Diversity under Islamic Law. The abstract states:

The Islamic law of speech diversity recognizes two distinct divine rights, one applying to speech communities and the other to individuals. The divine right to language allows each speech community to preserve and celebrate its native language free of coercion and disrespect from other speech communities. Native languages are the assets of speech communities. The Islamic law prohibits coercive degradation of native languages but at the same time it interposes no barriers in learning other languages. Closely related to the right to language is the divine right to individual self-expression or self-determination. Each human being is unique because God, the Master-Artist, shapes each human being with special attention. Social, economic, and legal barriers that refuse to recognize special talents or refuse to accommodate disabilities are incompatible with the divine plan. When individuals are given the maximum liberty allowed under Islam to pursue sciences, arts, knowledge, sports, and spirituality, Muslim communities will prosper. The study recommends that Muslim states recognize linguistic diversity and the right to personal self-determination in their positive law, including national constitutions.

7) Enyinna S. Nwauche (Rivers State University of Science and Technology - Faculty of Law), Law, Religion and Human Rights in Nigeria , 2 African Human Rights Law Journal ---(2008). The abstract states:

This paper explores the relationship between law religion and human rights in Nigeria. The level and intensity of religious strife in Nigeria justify this inquiry, whose aim should be the design of a framework that enables individuals to enjoy the freedom of religion and ensures that religious conflicts are managed in Nigeria's multiethnic and multi religious context. Almost a decade to the introduction of Islamic criminal law in the twelve northern states of Nigeria, there is no longer any doubt that religion is fundamental to the survival of Nigeria. The basic thesis of this paper is that the key to understanding the relationship between law religion and human rights in Nigeria lies in the unacknowledged dominance of Islam and Christianity, which I characterize as de facto state religions, and the resulting neglect of other religions. It is this reality, its denial and misunderstanding of attendant constitutional obligations that define the relationship between the Nigerian state and religion.

8) Russell L. Weaver (University of Louisville - Louis D. Brandeis School of Law), Holocaust Denial and Govermentally Declare "Truth": French and American Perspectives. The abstract states:

This paper involves a comparative examination of free speech principles as applied in the context of Holocaust denial. It also involves a comparative examination of constitutional values, and how those values play out in the Holocaust denial context.

9) Russell L. Weaver (University of Louisville - Louis D. Brandeis School of Law), Gatekeepers, the Internet, Democracy & Free Speech. The abstract states:

This paper examines how "gatekeepers" have limited the scope of free speech, and how the Internet has the potential to revolutionize speech communication.

10) Miguel E. Larios (John Marshall Law School, Chicago), We Got No Class: Retiring the Tinker Standard.The abstract states:

The law favors clarity. While lawyers may benefit from their ability to analyze issues involving conflicting rules and exceptions, the public interest is better served by general principles of law . . . Students, parents, teachers, and school officials clearly need to know the rules, as they all have a stake in their enforcement, and yet these individuals must navigate through a sea of confusing exceptions . . . [T]he litigation that inevitably arises from Tinker and its progeny eventually begs a potentially uncomfortable question: do public school students need free speech rights at all? . . . In this paper, I argue that the Tinker standard should be overruled. Specifically, I argue that elementary, middle, and high school students do not require free speech rights in public schools. I base this conclusion primarily on two arguments. First, Tinker and its progeny have produced excessive litigation, which burden our needy public school systems and distract schools from their goal of educating our Nation's youth. Second, after cases such as Morse, Fraser, and Hazelwood, Tinker has so many exceptions that its continued use by courts may well be discretionary.

11) Russell S. Sobel (West Virginia University), Nabamita Dutta and Sanjukta Roy (West Virginia University - College of Business & Economics), Beyond Borders: Is Media Freedom Contagious? . The abstract states:

Previous literature stresses the importance of free media for economic development. By its nature TV, radio, and newspapers cross borders allowing citizens to easily sample media from neighboring countries. This creates pressure for domestic reform and spreads media freedom between countries. Using spatial econometric techniques, and a sample of 102 countries, we test for the presence of geographic spillovers in media freedom. We find that a country's level of media freedom significantly depends on its neighbors. Countries 'catch' approximately 25 percent of their media freedom from neighboring countries. Our results are robust to alternative specifications and measures of press freedom.

Defense Dept. Re-examining Policy Barring Media from Photographing Coffins of Troops Returning Home

The New York Times reports that Secretary of Defense Gates has ordered the DoD to conduct a review of the current policy prohibiting the photographing of troops' coffins as they leave Iraq and Afghanistan or as they arrive in the US. The policy dates back to 1991 and the first Gulf War. In recent years the photography ban, defended by the Department as an effort to protect the privacy of soldiers' families, has drawn criticism as a mechanism to conceal the human costs of the Iraq war. The TImes article notes that John Ellsworth, president of Military Families United and father of Justin Ellsworth, a soldier killed in Iraq in 2004, indicated that military families are divided on whether the ban should be lifted. North Carolina Congressman Walter Jones has pledged to re-introduce his bill authorizing media access to arrival ceremonies for soldiers' coffins, part of the congressman's effort to draw attention to the lives lost in the Iraq war. The Times reports that Jones has expressed regret about his initial suppport for the use of force in Iraq and has since written thousands of letters to those who have lost a family member or loved one in the war.

JFB

Lincoln and Freedom of Expression During the Civil War

In an essay on the FIrst Amendment Center website, Ronald Collins examines President Lincoln's treatment of freedom of speech and of the press during the Civil War.

JFB

Virginia Senate Committee Rejects Bill to Authorize Police Chaplains to Offer Sectarian Prayers at Governmental Event

As noted on Blog from the Capital, the Richmond Times-Dispatch reports that Monday the Virginia Senate Courts of Justice Committee rejected Senate Bill 1072, which sought to authorize state police chaplains to use sectarian prayers at public meetings and other governmental events.  The Virginia House of Delegates had passed a parallel measure last week, but Gov. Kaine had indicated he would veto the bill, and the Senate Courts Committee counsel had advised the members that the bill would be unconstitutional. See prior post on the resignation of several Virginia State Police chaplains after they were advised to deliver only nondenominational prayers at official events.

JFB    

Vatican Darwin Conference to Include Discussion of Intelligent Design as Cultural Phenomenon

According to an AP report in the Washington Post, an upcoming Vatican conference commemorating the 150th anniversary of the publication of "On the Origins of Species" will include a session on intelligent design but will address the topic "as a phenomenon of a ideological and cultural nature" rather than as a scientific or theological critique of evolution. Roman Catholic Church teaching has historically accepted that belief in evolution and religious faith are not irreconcilable.

JFB      

NYC Mayor and Brooklyn Diocese Agree to Convert Four Catholic Schools Into Charter Schools

Today's New York Times reports that, in the wake of an announcement last month that the Brooklyn Diocese could not longer afford to keep operating  fourteen of their schools, Mayor Bloomberg and the diocese's bishop have agreed on a proposal to convert four of the schools targeted for closure into public charter schools. The full details of the conversion plan remain to be worked out, but the facilities would be leased to the city, and religious symbols would be covered or removed.  The Times article notes that the city already leases some buildings from the Catholic Church and has faced Church objections to the teaching of the city's sex education curriculum in the church-owned sites, leading the city to have to make arrangements to conduct such classes at other locations. Whether such objections would arise under the contemplated conversion plan is not yet clear. The conversion plan announcement pointed to the community benefits of preserving enrolled students' access to quality education as well as the overcrowding problems a mass influx of diocesan school students could cause for area public schools.  Several Washington, D.C. Catholic schools were converted into public charter schools last year.

JFB   

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Prosecutors Pursue New Legal Theory in Grand Jury Probe of LA Diocese Handling of Sexual Abuse Allegations

As reported on NPR, the US Attorney for Los Angeles,Thomas O'Brien, is exploring whether a rarely used statute previously invoked in the public corruption context could provide a mechanism for addressing archdiocesan officials' concealment of priests' sexual abuse of children.  The statute enforces a "right to honest services" and could be used to advance the claim that archdiocesan officials failed to warn the public of a known danger presented by priests discovered to be child molesters.  Cardinal Roger Mahony has stated that he would cooperate if called before the federal grand jury.

In a Findlaw essay, Professor Marci Hamilton vigorously defends the US Attorney's continued efforts.  Countering assertions that the federal government has no interest in such matters, Hamilton notes that the Church often sent alleged abusers across state and even national borders for treatment or to avoid further allegations in the parish where the complaints first arose. In addition, priest-perpetrators took their child victims across state lines as part of camping trips and other activities during which incidents of molestation occurred. In a recent commentary, William Lobdell, a former LA Times religion reporter, also applauds the US Attorney's initiative and notes how resistant Church officials have been prior efforts in the criminal and civil justice systems to uncover the truth about the child mistreatment by priests.

JFB                   

Books Examine The Origins of Darwin's Scientific Explorations and the Persistent Antipathy Toward Evolution

As the 200th anniversary of Charles Darwin's birth approaches on February 12, the man and the controversy that continues to surround the teaching of evolution are examined in a number of new books. Recently reviewed in the New York Times and the Christian Science Monitor, Darwin's Sacred Cause by Adrian Desmond and James Moore connects Darwin's efforts to trace a common point of human ancestry to his passionate commitment to abolitionism, a feeling strengthened by his exposure to the realities of the slave trade as he traveled on board the Beagle. The Times offers the first chapter of Darwin's Sacred Cause on their website.   

The Times previously presented a collection of books on the seemingly endless efforts to oppose the teaching of evolution in American classrooms. These volumes include biologist Kenneth MIller's Only A Theory: Evolution and the Battle for America's Soul, Jerry A. Coyne's Why Evolution Is True, Peter Bowler's Monkey Trials and Gorilla Sermons: Evolution and Christianity From Darwin to Intelligent Design, and Lauri Lebo's Devil in Dover: An Insider's Story of Dogma and Darwin in Small-Town America. Miller, a professor at Brown and the author of one of the leading high school textbooks on evolution, testified as an expert witness in the Dover, Pennsylvania case challenging the school board's efforts to discredit evolution and promote intelligent design. Ms. Lebo, the education reporter for Dover's local newspaper, chronicles the lawsuit as well as her own arguments about evolution with her father,the owner of a fundamentalist Christian radio station.    

The Pew Forum provides a variety of resource on evolution and religion in America. Among the most interesting items presented there is a comparison of how Americans of different faith view evolution.  Among survey participants, acceptance of evolution was highest among American Buddhists with 81% indicating they believed in evolution and lowest among Jehovah's Witnesses with only 8% of that denomination reporting that they accepted evolution as valid.

JFB 

         

Opposition to VA Prayer Bill . . . The Devil In The Details

Lionel Spruill, the Virginia state delegate who famously attempted to ban "saggy pants" a while back made national news again, this time over a bill to make it illegal to hang "rubber testicles" from a vehicle hitch. 

Gross.

What's getting less coverage is Spruill's attempt at defeating a measure that would allow state police chaplains to offer denomination-specific prayers at official events.  Supporters of the measure say the move is necessary to protect "freedom of religion" which is apparently being suppressed by an administrative order that currently permits clergy to offer only non-denominational government-sponsored prayer.  The new law would allow a Christian priest, upon the state's invitation, to surrender the class of  new recruits to the watchful eye of Jesus Christ, or a Jewish Rabbi to thank Yahweh for keeping them safe, or a Muslim Imam to bless their work in the name of Allah.

And there's the rub. 

Spurill's vote against the bill wasn't rooted in a concern about the crumbling wall that's supposed to separate church from state, or protecting the state from the inevitable ACLU suit that would follow passage of the bill, but the mere prospect of including an Imam at an official police event.

According to a local news report out this morning, Spruill told his fellow Delegates that when it comes to prayers in the House's own chamber, he generally has no problem, except that "from time to time we have certain people who come here, certain people who pray here and depending on who it is, I'll walk out that door, especially those in the Muslim faith I don't care too much about." 

I don't understand why this part of the story hasn't gotten more coverage (ok, so I do), but could we ever imagine an elected state official making such remarks about any other religion, and having it go virtually unnoticed in the national press?

-Kathleen A. Bergin

cartoon credit: Slap Upside the Head

ECHR Upholds Claim Brought by Women on Waves Under European Human Rights Convention

The European Court of Human Rights has held that Portugal violated Article 10 of the European Convention on Human Rights when it prohibited "Women on Waves" from entering its waters in 2004.

The Dutch non-profit organization provides reproductive services in international waters on board a ship equipped with a medical clinic which allows it to avoid being charged with violating anti-abortion criminal laws within the territorial jurisdiction of a particular country. 

When the organization requested permission to dock in a Portuguese port in order to conduct an education campaign about the risks of illegal abortion (abortion there was illegal at the time), the Minister of Defense denied their request and deployed two war ships to monitor WOW's position while it remained at sea.

Ruling in favor of WOW, the Court said in its decision that "the right to freedom of expression included the choice of the form in which ideas were conveyed, without unreasonable interference by the authorities," and that Portugal's decision to ban the ship was "disproportionate to the aims pursued."

Access ECHR's Press Release here, decision available only in French.

-Kathleen A. Bergin

   

    

Connecticut Bill Would Protect Student On-Line Speech

Connecticut lawmakers will consider a bill to prohibit school officials from punishing students for on-line speech so long as it is produced off campus and is not threatening.  The sponsor of the bill, Senator Gary D. LeBeau, said the measure was necessary to protect the First Amendment rights of students in light of cases like Doninger v. Niehoff, where a high school senior was prohibited from running for class secretary after school officials learned that she referred to them as "central office douche bags" on her blog, and called upon classmates and parents to inundate the superintendent with e-mails and phone calls after problems arose in scheduling an annual music festival.   

According to reports, LeBeau's proposal would "prohibit school authorities from punishing students for the content of electronic correspondence transmitted outside of school facilities or with school equipment, provided that such content is not a threat to students, personnel, or the school."  LeBeau himself taught high school in East Hartford before running for public office.

-Kathleen A. Bergin

 

First Amendment Scholarship Update

Here is this week's collection of newly available scholarship:

1) Christopher C. Lund (Mississippi College Law School), Legislative Prayer and the Secret Costs of Religious Endorsements. The abstract states:

For over fifty years, the Establishment Clause has generally required the government to be neutral on religious questions. That principle, however, has become more controversial with time. Many quite moderate judges and commentators have come, in varying degrees, to reject it. They have come to see many endorsements of religion as insignificant. Where exactly, they ask, is the real harm in the government speaking religiously? Who exactly is hurt when the government pushes a religious message, as in the Ten Commandments or the Pledge of Allegiance? Given that religious endorsements do so little apparent harm, maybe they are not worth striking down - particularly given the hostile societal reaction that generates. Yet there are obvious difficulties evaluating this argument. For as long as the government cannot speak religiously, we cannot really see the harms that would flow from such speech. And unable to evaluate the severity of those harms, we cannot really judge the wisdom of the neutrality principle.

But there is a world where the government does speak religiously - the world of legislative prayer. Upheld by the Supreme Court twenty-five years ago in Marsh v. Chambers, legislative prayer remains the only official exception to the neutrality rule - the only realm where the government can constitutionally (and routinely does) develop things like prayer policies. Through the window that Marsh created, we can glimpse an alternative constitutional universe - one where neutrality goes unobserved and where religious endorsements freely proliferate.

The thesis of this Article is that what can be seen through this window does not look good. Over the past twenty-five years, legislative prayer has become nightmarish in ways that the Marsh court had no reason to foresee. Legislative prayer has caused tremendous political division in city councils, county commissions, and state legislatures throughout this country; it has caused more constitutional litigation in the past decade than any other Establishment Clause issue. This piece has two purposes. First, it articulates and attempts to justify answers to the second-order constitutional questions inspired by legislative prayer - under what circumstances might legislative prayer, constitutional in theory, nevertheless turn unconstitutional in practice? Second, it uses legislative prayer as a case study - as a way of reflecting on the general perils that religious endorsements can create. Twenty-five years worth of history make clear that religious endorsements come with enormous social costs - costs that may be initially difficult to foresee and that will be borne both by believers and nonbelievers and by people of all political persuasions. In future years, the Supreme Court will have to decide whether to retain the neutrality principle or, if not, how far to depart from it. These costs should be kept in mind.

2) Geraldine Szott Moohr (University of Houston Law Center) and Roger Sherman (University of Houston), Book Review: Religion in Criminal Justice by Monica K. Miller , 24 J. of Law and Religion--- (2009). The abstract states:

Do appeals to religious values during closing arguments of capital cases influence juror's decisions to impose the death penalty? Based on experiments with mock jurors, Monica K. Miller is willing to conclude that religious appeals do not interfere with jurors' sentencing decisions. But the religious appeals she presents to mock jurors are based on weak written summaries of cases rather than, say, dramatic presentations, so their failure will not support a general conclusion about the effect of religious appeals. More accurately, her studies show that religious appeals - as represented in written summaries - do not interfere with juror's sentencing decisions in death penalty cases. Miller's work provides preliminary results, and the main question about effects of appeals to religious values remains unanswered.

3) Joel  A. Nichols (Univ. of St. Thomas School of Law-Minnesota), Evangelicals and Human Rights: The Continuing Ambivalence of Evangelical Christians' Support for Human Rights , 7 J. of Law and Religion ---(2009). The abstract states:

The language and ideas of "international human rights" have become seemingly ubiquitous in modern times. Indeed, within the United States, many prominent evangelical Christian churches and leaders have begun to use the language of human rights despite earlier misgivings. While there have been academic discussions about the foundational role of Christian theology in the development of the modern human rights regime, there remains relatively little investigation into the relationship between human rights norms, language, and culture within evangelical Christian theology.

This Article explores the relationship between evangelical theology and human rights - and concludes that the relationship is one of continuing ambivalence. On the one hand, there is clear evidence of increased recent involvement by evangelicals in human rights issues (especially regarding religious rights). But on the other hand, there has not at all been a wholesale adoption of human rights language among evangelicals, there has not been a clear shift toward support for legal human rights accountability regimes, nor have there been theological shifts among the larger evangelical population that seem necessary for a robust support of broader human rights goals.

In the final analysis, it ultimately appears doubtful whether modern evangelical theology is amenable to a whole-hearted and deep understanding of human rights and whether it is even desirable for evangelical theology to move that direction. Nonetheless, the recent rise in the number of evangelical non-governmental organizations and the attendant rise in awareness of human rights within evangelical discourse (especially among younger evangelicals) may serve as signposts that the uncomfortable dance between evangelicals and the human rights movement may become slightly less awkward over the coming years.

4) John M. Kang (St. Thomas University School of Law), Taking Safety Seriously: Using Liberalism to Fight Pornography, 15 Mich. J. of Gender & Law --- (2008). The abstract states:

In the law review literature on pornography, there is sometimes the depressing story that either liberalism is limply unhelpful to combat pornography or, in its role as philosophical handmaiden, liberalism happily does pornography's bidding. Liberalism as referred to here is not meant as shorthand for the political ideals of the Democratic Party. Rather, it is meant to serve as an emblem for a loose collection of commitments to free speech, legal equality, toleration, and limited government. But the description of liberalism that pervades the law review literature on pornography seems exaggerated and far from inevitable.  Liberalism, as a jurisprudential principle, need not be pornography's indifferent observer or spineless sycophant; liberalism can be used to fight pornography. In this Article, I propose to illuminate what appears to me the most essential aspect of liberalism in its inviolable dedication to peace and safety. By drawing upon the work of the early liberals, I argue that liberalism's most basic ethos is conceptually incompatible with pornography, as the latter celebrates an unjustified form of violence as its own end.

5) Nelson Tebbe (Brooklyn Law School), Eclecticism, forthcoming in Constitutional Commentary (2009). The abstract states:

This short piece comments on Kent Greenawalt's new book, Religion and the Constitution: Establishment and Fairness. It argues that although Greenawalt's eclectic approach carries certain obvious costs, his theory cannot be evaluated without comparing its advantages and disadvantages to those of its competitors. It concludes by giving some sense of what that comparative calculus might look like.

6) Gregory C. Sisk (University of St. Thomas School of Law -Minnesota), Returning to the Pruneyard: The Unconstitutionality of State-Sanctioned Trespass in the Name of Speech, 32 Harv. J. of Law and Public Policy ---(2009). The abstract states:

In PruneYard Shopping Center v. Robins, the United States Supreme Court held that the owner of a private shopping center who was required by a state court to grant political solicitation and speaking rights to strangers had thereby suffered neither a constitutional taking of private property without compensation under the Fifth Amendment nor a deprivation of the owner's own free speech rights under the First Amendment. Revisiting this subject more than a quarter-century later, this Essay argues that the PruneYard decision never should have been read as an open invitation to the states to impose constitutional obligations upon private landowners regardless of the offensiveness of the speech being expressed over the owner's objection or the permanence and breadth of the government-commandeered access to the property. Moreover, the Supreme Court's decisions over the past quarter-century confirm that imposing a permanent and continuous free-speech easement on private property is a taking for which compensation is due. A judicially created right of trespass in the name of free speech cannot be squared with federal constitutional protections of expressive autonomy and private property.

7) Jon Garon (Hamline University School of Law), Playing in the Virtual Arena: Avatars, Publicity and Identity Reconceptualized through Virtual Worlds and Computer Games , 11 Chapman L. Rev. --- (2008). The abstract states:

In many respects, the commercial and social interactions within virtual worlds are essentially the same as those interactions conducted face-to-face or over less engrossing technologies, however, the immersive nature of the virtual world redefines the nature of the experience. Because virtual worlds mimic their bricks-and-mortar counterparts, they exhibit commercial attributes unlike those of plays, television shows, or motion pictures. To the extent that there is commerce conducted within the medium, the historic separation between commercial conduct and expressive speech must be reconceptualized. In the first instance, such legal line drawing will necessarily be done with crude tools, so this article suggests that just as the theater and motion picture industries turned to collective bargaining agreements to provide a more refined set of rules for professional content development, the entertainment content created in virtual worlds will benefit from similar collective bargaining solutions to legally difficult conundrums.

The article provides an overview of virtual worlds and the legal framework for the regulation of content ownership; addresses the tension between the speech and property rights associated with the participants in this new art form, identifying what the law suggests and how it should evolve through case law and legislation; and suggests the steps that can be taken through private ordering collective bargaining arrangements to further clarify the protections for professionals associated with this developing new medium.

8) Jack M. Balkin (Yale Law School ), The Future of Free Expression in a Digital Age, 36 Pepperdine L. Rev. --- (2008). The abstract states:

In the twenty-first century, at the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the judge-made doctrines of the First Amendment seem increasingly irrelevant to the key free speech battles of the future. The most important decisions affecting the future of freedom of speech will not occur in constitutional law; they will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. Moreover, the values of freedom of expression will become subsumed withing a larger set of concerns that I call knowledge and information policy. The essay uses debates over network neutrality and intermediary liability as examples of these trends.

Freedom of speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression. Properly designed, it gives people opportunities to create and build technologies and institutions that other people can use for communication and association. Hence policies that promote innovation and protect the freedom to create new technologies and applications are increasingly central to free speech values.

The great tension in twentieth century free speech theory was the increasing protection of the formal freedom to speak against the background of mass broadcast technologies that reserved practical freedom to a relative few. The tension in twenty-first century free speech theory is somewhat different: New technologies offer ordinary citizens a vast range of new opportunities to speak, create and publish; they decentralize control over culture, over information production and over access to mass audiences. But these same technologies also make information and culture increasingly valuable commodities that can be bought and sold and exported to markets around the world. These two conflicting effects- toward greater participation and propertization - are produced by the same set of technological advances. Technologies that create new possibilities for democratic cultural participation often threaten business models that seek to commodify knowledge and control its access and distribution. Intellectual property and telecommunications law may be the terrain on which this struggle occurs, but what is at stake is the practical structure of freedom of speech in the new century.

9) Louis Michael Seidman (Georgetown Law School), The Dale Problem: Property and Speech under the Regulatory State, 75 U. Chicago L. Rev. 1541(2008).

10) Tracy J. Chin, Note- An Unfree Trade in Ideas: How OFAC's Regulations Restrain First Amendment Rights, 83 N.Y.U. L. Rev. 1883 (2008).  The abstract states:

The Office of Foreign Assets Control (OFAC) is charged with administering the United States’ trade sanctions programs. These programs conflict with the First Amendment when they prevent publishers and editors from working with authors from sanctioned countries. This Note highlights the shortcomings of OFAC’s publishing regulations. It focuses on the agency’s exclusion of foreign government officials (“the government exception”) from the First Amendment protections given to those who engage in publishing-related activities. The Note argues that the government exception amounts to an improper prior restraint under the First Amendment and creates the potential for censorship. The Note then challenges and critiques national security– and economic-based justifications for the government exception. Lastly, it proposes regulatory and policy-based reforms to ensure that sanctions programs can function without sacrificing the rights and protections to which publishers, authors, and editors are entitled under the First Amendment.

11) Ryan T. Holte (United States Court of Federal Claims), Restricting Fair Use to Save the News: A Proposed Change in Copyright Law to Bring More Profit to News Reporting , 13 J. of Technology Law and Policy --- (2008). The abstract states:

If a newspaper today uncovered a monumental story and published it on their front page, readership would not change. The story would be on every major news website in minutes. All the twenty-four hour news stations would be reporting on the story within the hour. Despite secondary authors giving the original author credit for the story, the advertising revenue would not change hands. No consequential profit would fall upon the first reporter for the facts uncovered.

The news industry's future is bleak as well. Media corporation investors are calling for only three national newspapers, and the diverse flow of ideas myriad reporters provide will soon be gone. However, the forecast does not have to be so grim.

With just a slight change to the current fair use doctrine, newspapers could recover their loyal readership and could once again reap revenue for top-caliber news reporting. For twenty-four hours, national news websites could state a primary author's headline with a link to the story's homepage distributing the information to readers. The same day a story breaks, evening news channels could pay to license the facts, which would allow the initial reporter, or his newspaper, to recover more profit. Each newspaper in the country could reap revenue from its reporters while newly self-employed freelance journalists could find financial success in doing what they do best - researching and writing stories.

This article proposes a change to current copyright law to bring more profit in news reporting. The alteration centers around allowing journalists, and the companies they work for, to own 98% of the investigated and researched facts they uncover for twenty-four hours after the story is first published. Part I examines the current state of the media and the effect of the Internet on the news business. Part II summarizes the economic and public policies behind protecting information. Part III analyzes the current copyright law's protection of information while Part IV does the same with misappropriation law. Part V describes the proposed amendment to current copyright law, points out a few legal and practical obstacles to be resolved, and ultimately concludes that the benefits far outweigh the potential problems.

JFB