First Amendment Scholarship Update

Here is this week's collection of newly available scholarship:
 
1)  Emily Gold Waldman (Pace University School of Law), Regulating Student Speech: Suppression Versus Punishment , 85 Ind. L.J. ---- (2010). The abstract states:

This Article examines the Supreme Court's student speech framework and argues that, in focusing exclusively on the types of student speech that can be restricted, the framework fails to build in any differentiation as to how such speech can be restricted. This is true even though there are two very distinct types of speech restrictions in schools: suppression of the speech itself; and after-the-fact punishment of the student speaker. As the student speech landscape itself gets more complex - given schools' experimentation with new disciplinary regimes along with the tremendous rise in student cyber-speech - the blurring of that distinction has become increasingly problematic, both doctrinally and theoretically.

In this Article, I assert that the current framework, while appropriate when the speech restriction takes the form of suppression, is insufficient when applied to student punishment. The free speech and due process interests implicated by punishing students for their speech require additional protection. In order for a school to constitutionally punish a student for her speech, it should not be enough to show that the speech could itself be suppressed under the key Supreme Court cases. Schools should also have to show that (1) the student speaker had adequate prior notice that the speech was prohibited and (2) that the actual punishment was reasonable.

2) Lyrissa Barnett Lidsky (University of Florida - Levin College of Law), Nobody's Fools: The Rational Audience as First Amendment Ideal. The abstract states:

Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called "core" speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the "marketplace of ideas" metaphor, which has long been a target of criticism amongst First Amendment scholars. Now, however, cognitive psychology and behavioral economics provide empirical evidence that the assumptions of the rational audience model are demonstrably false in some commonplace settings. This Article nonetheless contends that behavioral economics has not yet made the case for jettisoning the rational audience model in the realm of core speech. As the Supreme Court has recognized, a legal test that looks at the "actual effects" of speech would be cumbersome and expensive to apply, and would therefore chill speech. But there are even more compelling reasons to adhere to a test focused on the "reasonable interpretation" of core speech. Because speech and expression are closely linked to individual autonomy, government constriction of core speech-particularly political speech-undermines the foundation of a self-governing democracy. Moreover, the rational audience model prevents public discourse from being reduced to the level of the least educated or least sophisticated audience member. The model calls on citizens to raise their cognitive capacities to meet the demands of public discourse, and it serves as a check on the government's increasingly powerful ability to drown out other speakers in that discourse. This Article concludes that the rational audience model represents a flawed but worthy ideal.

3) Eric Easton (University of Baltimore - School of Law),  A House Divided: Earl Caldwell, the New York Times, and the Quest for a Testimonial Privilege, forthcoming in Utah Law Review. The abstract states:

In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or news gathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called journalist's privilege, its negative impact has been far broader. Branzburg is one of Supreme Court's earliest news gathering decisions and arguably the most influential.

While the press has been very successful in persuading the courts to find First Amendment protection for its editorial product, it has been far less successful with regard to protection for news gathering. The Branzburg precedent epitomizes the frustration of the press in attempting to secure First Amendment, or even statutory, protection for news gathering, and this article explores one of the primary reasons for that failure: the inability of the diverse elements that comprise the press to agree on the appropriate scope of such protection. In particular, the article tells the little-known story of the dispute between the New York Times and its reporter, Earl Caldwell, whose pursuit of a testimonial privilege ultimately led to the Branzburg decision.

4) Eric Easton (University of Baltimore - School of Law), The Colonel's Finest Campaign: Robert R. McCormick and Near v. Minnesota, 60 Fed. Communications L. J. ---- (2008). The abstract states:

Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so. Litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall. Because of McCormick's intervention, Near's holding that prior restraints are anathema to the Constitution has been a bulwark of our legal system ever since.

Part I of this article briefly outlines the background of the Near case, while Part II discusses the role of incorporation in making a First Amendment challenge feasible. Part III traces McCormick's efforts to draw the institutional press into the Near litigation. Part IV covers the proceedings before the Supreme Court, while Part V describes the landmark opinion itself. Finally, Part VI discusses the aftermath of Near v. Minnesota and the mobilization of the institutional press.

5) Christina Bohannan (University of Iowa  College of Law), Copyright Harm and the First Amendment. The abstract states:

Copyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant's speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is purely speculative.

Potential explanations for copyright's anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright's role in encouraging creative expression does not obviate First Amendment concerns. Rather, it provides a way to reconcile copyright law and free speech. Drawing substantially from First Amendment cases holding that speech restrictions must be justified by a governmental interest, this article argues that the First Amendment requires real proof of harm to the copyright holder's incentives in order to impose liability for copyright infringement. It also explores the types of harm that might arise in copyright infringement cases and considers whether the First Amendment permits recognition of these types of harm. The article concludes that although demonstrable market harm is cognizable under First Amendment principles, recognition of harm to the reputation of copyrighted works, the author's right not to speak or associate, or the copyright holder's privacy interests is generally not compatible with the values of free speech.

6) Pablo Salvador-Coderch and Antoni Rubi-Puig (Universitat Pompeu Fabra - Department of Law), Genocide Denial and Freedom of Speech, 4 InDret ---(2008). The abstract states:

The Spanish Criminal Code of 1995 criminalized the dissemination by any means of ideas and doctrines denying or justifying genocide. Recently, the Spanish Constitutional Court, prompted by a referral of the Barcelona Court of Appeals, ruled in Judgment 235/2007, November 17th on the compatibility of this crime with the freedom of speech clause of the Spanish Constitution in the setting of the prosecution of a neo-Nazi activist and owner of a shop in the business of selling and distributing books, tracts and leaflets in many of them the Holocaust was, as a historical fact, denied, trivialized or justified.

This article, on occasion of the Constitutional Court's Judgment, focuses on the grounds that justify analyzing the intersections between genocide denial and freedom of speech and seeks for explanations to the majority's ruling according to which simple denials of genocide fall under the umbrella of freedom of speech and only positive value statements, that is to say, utterances extolling genocide or minimizing or trivializing its consequences might be punished.

7) Candice Spurlin and Patrick M. Garry (University of South Dakota Law School), Does Filtering Stop the Flow of Valuable Information?: A Case Study of the Children's Internet Protection Act (CIPA) in South Dakota , 54 S. D. L. Rev.---(2009). The abstract states:

In response to the public's request to protect children from the ever growing body of pornographic material available on the Internet, the United States Congress has made a number of legislative attempts "to shield children from Internet smut." In 2000, Congress changed from a prohibition mentality to a filtering mentality, and the Children's Internet Protection Act (CIPA) was enacted as part of the Consolidated Appropriations Act.

The filtering requirements of the CIPA present one of the first successful governmental efforts to help parents protect their children from harmful Internet material. However, the lingering issue is whether that filtering effort, as alleged by the CIPA opponents, unduly restricts the free speech rights of adults. A study was designed to determine how often adults were denied access to information at South Dakota public libraries using the federal E-rate program as a filter on library terminals.

8) Harry G. Hutchison (George Mason University - School of Law), Putting the World Back Together? Recovering Faithful Citizenship in a Postmodern Age. The abstract states:

Archbishop Chaput's book, Render Unto Caesar, signifies the continuation of an impressive and persistent debate about what it means to be Catholic and how Catholics should live out the teachings of the Church in political life in our postmodern society. Render Unto Caesar provides evidence that America's identity and future are endangered by trends reifying radical human autonomy and choice. New threats surface in the form of legislation and judicial interpretations permitting choices that were once considered criminal to be accepted. This trend has been accompanied, if not facilitated, by U.S. Supreme Court decisions that have contributed greatly to the privatization of religion. In light of the emergence of such trends, and given the likelihood that some Catholics, guided by an ongoing process of assimilation, have failed to contest adequately these developments, Archbishop Chaput offers a splendid reply to Aristotle and Professors Scaperlanda and Collett's dense interrogation: how ought we to live together. Such questions are complex because the acceleration of trends favoring individual singularity in our own age signals that many humans prefer to distance themselves from a community and a tradition representing shared values. Instead of accepting the real world of human history they see themselves as an abstract instance of the human species, an autonomous being that remains the epicenter of the universe.

Against this inclination, and venturing to engage a nation that is exemplified by a diversity of incommensurable values and world-views, Charles Chaput stresses the special responsibility of Catholic public officials in sorting out the good and calls upon all Catholics to refrain from self-censorship regarding issues that ought to concern them. But in a postmodern society, the inevitable effect of modern liberalism is that some will view religion as "a private eccentricity" rather than as a central and formative element of the nation. This viewpoint is commonplace because giving religious voices space in the public square as a singularly important aspect of a believer's life locks in both society and individuality to the past from which modern liberalism seeks to deliver us. While Render Unto Caesar provides a laudable foundation that might enable Catholics to properly influence America's ongoing debate about public policy, the common good and the nation's identity, such a foundation must confront the insistent demands of modern liberalism, and the likelihood that Catholics themselves have been incubated in, and have accepted as normative, a process of equivocation and self-censorship. Given this outcome, the likelihood that American Catholics will surrender to Archbishop Chaput's persuasive intuition is remote.

9) Alex C. Geisinger (Drexel University College of Law) and Ivan E. Bodensteiner (Valparaiso University - Law School), An Expressive Jurisprudence of the Establishment Clause, 112 Penn. St. L. Rev. --- (2007). The abstract states:

Scholars recognize that government acts are expressive; that is, they affect the social meaning of behavior. Nowhere are the expressive effects of government acts more significant than when they affect an individual's understanding of her ability to practice her religion. When government allows a creche to be placed on public property or provides educational vouchers that are used primarily at religious schools, its acts send signals to the population about what the community and the government prefer. As Justice O'Connor has observed, a religious symbol displayed on government property carries a message that affects one's understanding of him or herself as an insider or outsider, favored or disfavored by the political community.

Yet while scholars have recognized that Establishment Clause cases are best understood as analyzing government's expressive acts, they have yet to develop a comprehensive theory of just how government acts actually express particular meanings. Without such a theory, efforts to develop a meaningful Establishment Clause jurisprudence remain unsuccessful. The purpose of this article is to provide such an expressive theory. The article turns to both social and cognitive psychology to develop a model of expressive effects based on the way in which government acts affect beliefs about one's relationship to community or government. This belief-change theory suggests that the primary means by which government acts can affect belief is through the process of inference. When the government places a creche on public property, for example, such an act can lead to reasonable inferences about the religious preferences of both government and the community. Such changes in belief can, in turn, affect the utility of acting in accordance with religious beliefs not preferred by the government or community. By understanding the way in which inference works - in particular the effects of pre-existing beliefs and logical consistency on one's inferential processes - a full expressive theory will be developed.

Once the theory is developed, the article applies it to a number of Establishment Clause cases and ultimately, discusses the theory's implications for Establishment Clause jurisprudence. The article will proceed as follows: Section Two will provide a short introduction to existing Establishment Clause jurisprudence to highlight some of the difficulties and shortfalls of the way in which such cases are currently handled. Section Three will provide a detailed model of the expressive theory while Section Four will apply the theory to a number of Establishment Clause cases. Finally, we will discuss the implications of the expressive theory for Establishment Clause jurisprudence in Section Five. It is our hope by the end of the article to have established a different, more comprehensive and intuitively satisfying test of Establishment Clause violations. We hope also to shed some significant light on current problems in existing Establishment Clause jurisprudence along the way.

10) Calvin R. Massey (University of California, Hastings School of Law), Church Schisms, Church Property, and Civil Authority. The abstract states:

When the Supreme Court decided Jones v. Wolf it required courts to use secular criteria to decide church property disputes, yet there remains considerable uncertainty about the permissible latitude of those secular principles. This stems from the Court's attempt to honor three principles that are in tension with one another: 1) autonomous church governance, which the Court sees as an aspect of the free exercise of religion, 2) the need to prevent civil courts from deciding issues of religious doctrine, an aspect of the ban on governmental establishments of religion, and 3) preservation of state autonomy to decide how best to accommodate these twin goals, an aspect of federalism. There are three principal problems with this tripartite objective. First, sometimes they conflict with each other. Second, and worse, this framework fails to take into account adequately the interest of individuals united in local congregations of religious believers freely to exercise their religious beliefs. Finally, embedded in this framework is a generally unrecognized potential violation of the establishment clause: the provision by states of special advantages to hierarchical churches that allow them unilaterally to impose trusts for their benefit upon property held by local congregations.

This article seeks to expose these problems and present an approach that better protects the interest in religious freedom of local congregants while still preserving autonomy of church governance and limiting civil courts to adjudication of secular issues. When hierarchical churches divide into factions the principles of religious freedom embedded in the religion clauses compel civil courts to recognize the religious beliefs of a majority of the local congregation in deciding which faction of the divided church is entitled to the use of the local congregational property, absent some clear and wholly secular indication that the local congregation has given control of its property to the general church. The cost of this approach is a slight reduction in the discretion of states to specify decision rules for church property disputes, and a somewhat more controversial reduction in the degree of deference that civil courts should pay to internal church governance rules when churches divide into factions as a result of religious schism.

When the Supreme Court decided Watson v. Jones in the late nineteenth century and adopted deference to internal church governance as a standard for resolution of church property disputes, the religion clauses did not apply to the states. While the Court couched its reliance upon internal governance as an implication flowing from the ideals of religious freedom, it did not have to examine that premise critically. When in Jones v. Wolf the Court perpetuated this principle as an option for resolution of church property disputes it may have thought that deference to internal governance rules of hierarchical churches promotes religious freedom. Sometimes it does, but not always. Civil judicial interference with a hierarchical church's control of its clergy is the paradigmatic case of impermissible interference with the free exercise of religion. By contrast, permitting a hierarchical church unilaterally to impose trusts in its favor upon property held for the benefit of local congregations either creates an establishment clause violation (if secular charitable entities are denied this state-created benefit or if there is no plausible secular purpose for this benefit) or cuts deeply into the practical reality of how individual believers gathered in local communities manifest their religious conduct. This problem is exacerbated when a hierarchical church divides amid doctrinal disagreement. At that point, courts should apply a rule of local option, permitting each congregation to decide for itself which branch of the divided church will have its fealty and its property. Only by applying such a rule can a proper balance be struck between the splintered autonomy interest of a hierarchical church and the interest in religious associational freedom of local congregations and their individual members. The reflexive reliance of courts upon internal governance rules to decide property issues amid schism has obscured the interests in religious freedom that are at stake.

Adoption of the local congregational option principle leaves hierarchical churches with many avenues to secure congregational property for the benefit of the general church. First, they can avoid rupture by finding sufficient common ground in their religious doctrine to accommodate their body of believers. Second, they can insist that local congregations explicitly place their property in trust for the benefit of the general church as the price of continued affiliation with the general church. What they cannot do is create such trusts by the ipse dixit of the hierarchical church.

11) Divya Balasubramaniam,Santanu Chatterjee and David B. Mustard (University of Georgia - Department of Economics),  Got Water? Social Divisions and Access to Public Goods in Rural India.
The abstract states:

We examine whether different aspects of social divisions help explain the wide variation in access to tap water across rural India. Using data for 436 rural districts from the 2001 Census of India, we find that communities that are heterogeneous in terms of caste (within the majority Hindu religion) are likely to have lower access to tap water than correspondingly homogeneous communities. By contrast, communities that are fragmented across religions are likely to have higher access to tap water than correspondingly homogeneous communities. Therefore, though both heterogeneity within and across religions matter for access to public goods, they may work in opposite directions. The source of tap water is also important in understanding the role of social factors: while caste-based fragmentation matters for tap water access within the residence, it is the concentration of individual caste groups that matter for tap water outside the residence. These results indicate that studies that use aggregate measures of social fragmentation may not convey useful information regarding the design of public policy.

12) Wondwosen Teshome-Bahiru (University of Vienna), Media and Multi-Party Elections in Africa: The Case of Ethiopia , 6 Intl. J. of Human Sciences 84 (2009). The abstract states:

In any democratic country the media serves as a watch dog of events and decisions and assists citizens to be informed about what is going on in the country. Free media also plays a very important role to conduct democratic elections. The aim of this paper is to analyse the role of the media in the African democratization process particularly in the multi-party elections that widely emerged in the continent in the 1990s. The paper investigates the contributions of the media in the emerging African democracies by using the performance of the media in the 2005 multi-party parliamentary election in Ethiopia as a case study. The paper also attempts to assess the Ethiopian press laws of 1992 and 2008, which are the only press laws in the history of the country.

13) Weihua Huang (University of Maastricht, Faculty of Economics & Business Administration), The Role of Financial Media in Corporate Financing. The abstract states:

Financial media are the most common information sources for retail investors. This paper investigates the reputation effect of financial journalists on capital markets. As the current financial crisis gets worse, the financial press has benefited from the economic plunge since both old and potential investors are eager to know whether they can recover from their losses and when is the right time to start buying. Nevertheless, recent surveys reveal that the news media's credibility has plunged broadly and steadily.

The surge in readers and viewers for online, printout and broadcasting financial news indicate that the public believes that financial journalists have access to companies' private information. In the meantime, it is well acknowledged that financial media may spin the news to cater to the preferences of the readers or to pursue its own interests. Consistent to that fact, research shows that investors digest the media-released information with caution and investors' decisions are influenced by the media even though they are aware of the existence of media manipulation. It leaves us the following questions that have not been paid much attention by economists so far: How rational investors de-bias the information provided by the media based on their belief about the media's credibility? How such belief is incorporated into share prices? Would the media's reputation have impact on its reporting strategy and on the decision-making of other market players, such as equity issuers?

The model considers an issuing firm that may bribe a journalist in exchange for favorable commentaries. Investors price the new shares based on their belief on a journalist's honesty. The results show that the higher the journalist's reputation, the higher will be the issuing price. There is also an positive relation between a journalist's reputation and the amount of the bribe. Competition in the media market can improve the investment efficiency only if an honest journalist exists. If investors have doubt on the integrity of the journalist, publishing favorable reports damages his reputation even if the reports are accurate. To retain his credibility in the long run, an opportunistic journalist does not mimic the honest type, but rather randomizes his strategies between colluding and writing excessively critical articles. The results have implications for the regulation of financial media.

14) Garrett Epps (University of Baltimore School of Law),  Bring me the Head of Peter Pan: A Commentary of Lange and Powell's NO LAW INTELLECTUAL PROPERTY IN THE SHADOW OF AN ABSOLUTE FIRST AMENDMENT. The abstract states:

This commentary was delivered on March 21, 2009, at a conference sponsored by the Duke Law School Center for the Study of the Public Domain in honor of the publication of NO LAW: INTELLECTUAL PROPERTY IN THE SHADOW OF AN ABSOLUTE FIRST AMENDMENT by David L. Lange and H. Jefferson Powell. The commentary considers the converse problem of artistic creation in the shadow of an increasingly absolutist law of copyright, and notes that artists beginning with the poet we today know as Homer have achieved greatness by freely appropriating the words, images, sounds, and ideas of others. The increasingly imperial claims of copyright advanced by the United States in the global marketplace of words, images, and sounds, the essay suggests, are a direct result of the post-imperial desperation of a nation that seeks to dominate the world with only two tools--military force and communications. It notes a comment by Professors Lange and Powell that "Believing in intellectual property is like believing in Tinker Bell: we clap our hands, and it is so." The allusion to Peter Pan is apt, the essay notes, because J.M. Barrie's story of a boy who lives on a magical island where he will never grow old is a fable of the Western adventure with colonialism and cultural domination--a domination we are now attempting to preserve in its fading years by resort to legal coercion and extravagant doctrines of intellectual ownership. But in fact the key to national survival in a multipolar world lies not in imaginary property rights to American ideas but in their syncretic vitality, for which wide freedom of appropriation is essential. The recent wave of litigation surrounding the artist Shepard Fairey serves as a metaphor for the metastasis of intellectual property concepts. Fairey is involved with a lawsuit against the Associated Press over his appropriation of an image by AP photographer Mannie Garcia of then-candidate Barack Obama. Fairey himself, however, has recently claimed ownership of the word OBEY. The current intellectual property regime, the essay concludes, resembles nothing so much as a load of politically tainted tea awaiting deposit into Boston Harbor.

JFB