First Amendment Law Prof Blog

Texas Flag Pledge Survives Establishment Clause Challenge

A federal judge in Dallas has rejected a challenge to the Texas Pledge of Allegiance, ruling that inclusion of the phrase "under God" does not violate the Establishment Clause.  State law requires that school teachers lead students each  day in a voluntary recitation of the pledge which reads: “Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible.”  According to one source, the pledge was originally drafted in 1933, but the words "under God" were not added until 2007 when lawmakers sought to acknowledge "our Judeo Christian heritage" and "the presence and influence of God" in the United States.

-Kathleen A. Bergin

  

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

Westboro Baptist Threatening to Protest Outside Maryland High School

The Westboro Baptist Church, now notorious for staging virulently anti-homosexual protests at military funerals, has announced the group’s intention to rally outside of Walt Whitman High School in Montgomery County, Maryland in April. As quoted in the WashingtonPost, an email from a church representative stated, “The children that attend that high school are taught Rebellion Against God 101 every day in every way.”  Vowing not to allow any protest to disrupt school operations, Walt Whitman’s principal sent the following statement to parents: 

In his poetry, Whitman celebrates individual spirit, celebrates our nation as the center of democratic values, and celebrates nature, Unfortunately, there is a small group of persons who want to defile his name because Walt Whitman may have been homosexual.

JFB

 

Federal Judge Hears Application for TRO in Pa. Sexting Case

At yesterday’s hearing, federal judge James Munley stated that “serious constitutional issues”  had been presented in the suit filed by three teenagers and their parents who are seeking to enjoin the local DA from prosecuting them for child pornography.  Photos of the girls in various stages of undress were discovered when high school officials examined cellphones confiscated at the school.  According to news accounts, plaintiff MaryJo Miller, high school employee and mother of one of the girls photographed, had seen the waist up photo of her child wearing only a bra when it was taken by one of her daughter’s friends at a sleepover party and had considered it harmless.  Ms. Miller did indicate that she would not have let her daughter post the picture online. How the pictures were actually distributed is not yet clear.  Representing the girls, ACLU attorney Witold Walczak argued that the photos were not pornographic and were protected by the First Amendment.  In addition, Walczak asserted that the threatened prosecution of the girls, who are not alleged to have distributed the photos via “sexting” , is an abuse of power by the prosecutor. Coverage of the hearing appears in the New York Times and Scranton Times Tribune.  Hat tip to How Appealing for link to local coverage.

JFB

 

 

Teen Girls Threatened with Child Pornography Charges Based on "Sexting" Images File Suit Against County Prosecutor

How Appealing notes that the Pennsylvania ACLU has filed suit challenging a county DA’s authority to threaten to file child pornography charges against three high school girls whose semi-nude photos have been circulated among their high school classmates via cellphone messages.  The DA contends that the girls can be considered accomplices in the production of child pornography because they allowed themselves to be photographed wearing only a bra in a photo including only the top portion of the girls’ bodies or with breasts uncovered but with a towel over the lower portion of a girl’s torso.  The ACLU news release explaining the basis for the complaint filed against the DA offers this summary of their allegations:

In February 2009, [DA] Skumanick sent a letter to the parents of approximately twenty Tunkhannock students, including the ACLU's clients, threatening the students with criminal felony charges if they did not agree to be placed on probation and participate in a counseling program he devised. A course outline indicates that the program will help the girls "[g]ain an understanding of how [their] actions were wrong," "gain an understanding of what it means to be a girl in today's society," and "[i]dentify non-traditional societal and job roles."

The letter apparently was sent only to those who were discovered with the photos on their cell phones and the girls shown in the photos - not the students responsible for distributing the photos. The district attorney told a group of parents and students in February that he has the authority to prosecute girls photographed in underwear, like the ACLU's clients, or even in a bikini on the beach, because the photos are "provocative."

The ACLU charges in its lawsuit that Skumanick is misusing his authority by threatening to bring baseless child-pornography charges in order to coerce parents into sending their children to the re-education program and putting them on probation. The lawsuit claims this is a form of unconstitutional retaliation against the parents and children who assert their right not to be bullied into participation. The ACLU is asking the federal court to issue an order prohibiting the district attorney from filing criminal charges against the girls.

JFB

Justice Scalia Increasingly Using the "Language of Sin" to Describe Opponents?

In a column for CBS News Court Watch Andrew Cohen identifies a recurrent use of what he describes as “the language of sin” in Justice Scalia’s recent descriptions of those presenting ideological positions opposed to Scalia’s views.    

JFB

Supreme Court Examines Application of Campaign Finance Rules to Advertising for "Hillary - The Movie"

This morning the Supreme Court heard oral argument in Citizens United v. Federal Election Commission. In the suit, the makers of "Hillary - The Movie" ,a film presenting a harshly critical view of the career and policy positions of HIllary Rodham Clinton, challenge the application of the "electioneering communication" restrictions of the McCain Feingold campaign finance statute to the film and related ads as then Senator Clinton was seeking the Democratic presidential nomination.  On SCOTUSblog Lyle Denniston recounts the morning's oral argument and identifies considerable receptivity among the Justices to protecting the film and its ads from the reach of the Act. This protection would come in the development of a coverage exception that would shield some communications from the limitations imposed on the activities of advocacy groups during a political campaign. Denniston's helpful argument preview notes that in its Supreme Court briefs Citizens United widened the scope of its attack to revive a challenge to the constitutional legitimacy of campaign finance restrictions aimed at the speech of corporations, an question Denniston's assessment of the oral argument suggests the Court seems unlikely to address.      

The New York Times and Washington Post provide pre-argument analysis of the issues raised in the case, and election law scholar RIchard Hasen provides his assessment of the case's significance for the future of campaign finance law.  Further details and filings in the case are available from SCOTUSwiki. 

JFB 

 

Ruthann Robson on Robert Tsai's "Eloquence & Reason"

Check out Ruthann Robson's review of Robert Tsai's Eloquence and Reason, over at Law and Politics Book Review.  I've been working on an article that examines racialized metaphors in key First Amendment cases, so I'm looking forward to reading Tsai's take on metaphors such as "the marketplace of ideas," and the "wall separating church and state" which, in his view, help legitimize and even popularize foundational constitutional principles.

One misgiving Robson has about the book, however, is the scant reliance on female theorists (Hannah Arendt is apparently one notable exception).  This is unfortunate, not only because it overlooks the contribution of female scholars, but because it denies readers the benefit of their insight. 

And its not like women aren't producing quality work.  Josie Brown, my co-blogger on this site, posts a scholarship update every week that includes countless contributions made by super-star women, including Joan Howarth (Dean, Michigan State), Ann Bartow (South Carolina), Helen Norton (Colorado), Elizabeth Glazer (Hofstra), Victoria Dodd (Suffolk), Caroline  Mala Corbin (Miami), and Njeri Mathis (South Texas), among many, many others.

-Kathleen A. Bergin

First Amendment Scholarship Update

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

1) Darrell A. H. Miller (University of Cincinnati College of Law), Guns as Smut: Defending the Home-Bound Second Amendment, forthcoming in Colum.L.Rev.(2009). The abstract states:

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. However, the Court offered little guidance to legislatures and lower courts on the scope of that right. Although the Court cautioned that the Second Amendment right is not boundless, precisely whether a person may now carry a gun in a car, sports stadium, or a children's petting zoo was left for "future evaluation."

This Article offers a solution, an admittedly provocative one. Treat the right to own a firearm under the Second Amendment the same way we treat the right to own adult obscenity under the First: a robust right to possess it in the home, subject to restriction by elected government officials everywhere else.

While this Article's proposal is sure to stir controversy, it is grounded in conventional constitutional analysis. The Court in Heller sent signals that the First and Second Amendments are cousins, and may be subject to similar limitations. In construing the Second Amendment, Justice Scalia argued that the right to firearms is not restricted to eighteenth century weapons, any more than the First Amendment is limited to eighteenth century forms of communication. Conversely, the majority cautioned that "the [Second Amendment] right [to keep and bear arms] [is] not unlimited, just as the First Amendment right of free speech [is] not." Just as the First Amendment has excluded from its protection certain categories of speech -- "obscenity, libel, and disclosure of state secrets" -- certain categories of "bearing arms" may be excluded from the Second Amendment as well.

Moreover, this "home-bound" Second Amendment rationalizes the disparate norms that animate the Court's privacy jurisprudence. It also situates the Second Amendment within a tradition that gives constitutional weight to a spatial and conceptual distinction between the home and the public sphere. Finally, this proposal has the benefit of simplicity. The Court has already marked boundaries for an individual right to adult obscenity in the home. Those boundaries are surprisingly applicable to the individual right to bear arms, and far easier to administer.

The Article progresses as follows: Part II tracks Heller's litigation history, beginning with the origin of the District's firearm regulation, the concerted effort by Second Amendment defenders to use Heller as a test case, the disposition in the trial and appellate courts, and the ultimate, albeit partial, resolution of the issues in the United States Supreme Court. Part III offers a frankly prescriptive argument that the Second Amendment right to keep and bear arms should extend no further than the front porch. Any other regulation by federal, state or local government should be presumptively constitutional. This Part explains how this rule closely mirrors the Supreme Court's existing First Amendment doctrine concerning the right to possess adult obscenity in the home. Part IV offers a multifaceted justification for this approach. First, it demonstrates how a home-bound Second Amendment fits neatly within a doctrinal framework that puts a premium on privacy and protection of the home. Second, it explores the textual and historical treatment of bearing arms in public, and concludes that the support is so hopelessly ambiguous and fractured that the only prudent approach is one of judicial deference to the political branches. Third, it demonstrates how this rule is practical, politically feasible and preferable to other approaches that courts could adopt. The article concludes with an acknowledgment of the difficulties with this approach and suggests a direction for future doctrinal development.

2) Paul Horwitz (University of Alabama School of Law), Anonymity, Signaling, and Silence as Speech. The abstract states:

This short article responds to a paper delivered by Professor Martin Redish at a symposium on Speech and Silence in American Law at the University of Alabama School of Law; the symposium proceedings will be published by Cambridge University Press. Professor Redish's paper argues for the elimination of First Amendment protection for expressive anonymity in certain cases involving political fraud.

This response offers both clarifications and criticisms of Professor Redish's argument. It argues by way of clarification that the general category of "anonymity" is too broad to support useful analysis. Rather, we must consider the implications for Professor Redish's argument of at least two categories of speech: anonymous and pseudonymous speech. I show that even if we accept Professor Redish's account of the dangers of anonymous politically fraudulent speech, our concerns and prescriptions will vary greatly depending on what sort of "anonymous" speech we are talking about. Drawing on signaling theory, this response also offers a more critical treatment of Professor Redish's argument for the prohibition of some forms of anonymous speech. Signaling theory suggests that anonymous speech is not accurately characterized as part of the right of silence; instead, as an attributional decision that sends important signals about the reliability of the speech and the speaker, the choice of anonymity in fact constitutes a highly expressive form of speech. The signaling function of these attribution choices also suggests that Professor Redish's concerns about the misleading nature of anonymous politically fraudulent speech, and his recommendation that we curtail protection for this form of speech, are overstated.

The signaling-based account of anonymity as speech has two subsidiary implications. First, contrary to Professor Redish's suggestion, it is impossible to disaggregate the rights of expressive and associational anonymity. Second, this account supports the argument of many writers that the Supreme Court ought to strongly reconsider its tangled jurisprudence concerning the permissibility of mandatory disclosure rules in the campaign finance laws, which is in tension with what the Court has written about anonymous speech in other contexts.

3) R. George Wright (Indiana University School of Law – Indianapolis), Doubtful Threats and the Limits of Student Speech Rights. The abstract states:

Public school authorities are charged with occasionally conflicting missions, including the promotion of academic learning, independent thought, personal responsibility, and a measure of orderliness. Conflicts among these values often take the form of what that Article refers to as "doubtful threats," in which the threat is reasonable judged, under the circumstances, to be unlikely to be carried out, and at a minimum to lack the element of imminence. Often, courts adjudicate such cases by finding a "substantial disruption" under Tinker. Among the Article's conclusions is that candor and transparency suggest that the courts should instead shift the focus in such cases from "disruption," as defined in Tinke, to something more akin to "distraction." While a focus on distraction is not endorsed by the language of Tinker, such a focus is both more accurately descriptive of the circumstances in many of the doubtful threat cases and at least equally faithful to a sensible balancing of the public schools' basic civic and educational missions.

4) Victoria J. Dodd (Suffolk University Law School ), The 2007 Roberts Court Education Law Cases: Reaffirmation or Cut-Back of Student Rights?, 42 Suffolk U. L. Rev. 61 (2008). The abstract states:

The Warren Court created a stronghold of student-based rights in such cases as Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), and Brown v. Bd. of Educ., 347 U.S. 483 (1954). In Tinker, the Court held that absent substantial disruption, student expressive rights should be protected; and in Brown, de jure racially segregated public schools were found to be "inherently unequal." This Article describes and analyzes how two 2007 cases of the new Roberts Court dealing with student speech issues and school desegregation concerns may have strayed from Supreme Court precedent and what these new cases might indicate for future developments in these areas of law.

The first case is Morse v. Frederick, 127 S. Ct. 2618 (2008). The Article analyzes that this decision carved out a new exception for student speech rights: public schools may censor student speech promoting illegal drug use. The fragmented opinion of the Court is analyzed, with Justice Alito writing a moderating concurrence. The second case is Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S. Ct. 2738 (2007). In that plurality ruling, the Court struck down the use of racially-based pupil assignments for public schools in Seattle and Louisville. The precise impact of the ruling remains unclear, but certain members of the Court even question the educational and democratic benefits of racially integrated schools, which were goals of the Brown decision, thus also perhaps casting doubt upon the continuing viability of Bakke/Grutter university affirmative action programs.

The Court has granted certiorari on a student search case, Redding v. Safford Unified School District, 531 F.3d 1071 (9th Cir. 2008), which may shed some light on at least the drug speech issues raised in Morse. The case involves the strip search of a female student for allegedly possessing the over-the-counter drug ibuprofen, in violation of school rules. The decision and reasoning in the case will also give the Court an opportunity to discuss its view of student rights in general, as well as the role of public education, which Brown discussed as "perhaps the most important function of state and local governments."

5) Jason C. Miller (Student, University of Michigan at Ann Arbor - Law School), Who's Exposing John Doe? Distinguishing Between Public and Private Figure Plaintiffs in Subpoenas to ISPs in Anonymous Online Defamation Suits, 13 J. of Tech. L. & Policy 1 (2008). The abstract states:

The Communications Decency Act prevents victims of online defamation from suing intermediaries like Internet Service Providers and online message board operators. As a result, plaintiffs have resorted to filing John Doe lawsuits and subpoenaing Internet companies to reveal the identity of anonymous online posters as a way to silence defamatory speech. The purpose of these John Doe lawsuits is not to win a monetary judgment but instead to silence the critic through exposure. Currently, First Amendment considerations lead to distinguishing between public and private figure plaintiffs in what must be proven to win a defamation suit on the merits. This article argues that those same considerations should also lead to distinguishing between what public and private figure plaintiffs must prove to issue a subpoena to expose an anonymous online critic.

6) Andrew B. Delaney (Student, Vermont Law School), Playing into the Playas' Hands: Why Private Pressure Groups are Headed in the Wrong Direction. The abstract states:
This short article suggests that pressure groups do more harm than good when they attempt to vilify certain forms of musical expression. By denouncing music, they lend certain credibility to it. By seeking censorship, pressure groups come off as anti-American zealots bent on eroding our right to free speech.

7) Jongmook Choe and Luke Peterson (University of Texas at Austin - Lyndon B. Johnson School of Public Affairs), Social Capital and Crime in the United States. The abstract states:

Starting in the 1920s, scholars began to associate social atomization and distrust with increased crime. Empirical studies and theoretical conjecture over the next several decades added weight to the argument that "social disorganization" increases crime within certain communities. In Bowling Alone, Robert Putnam identifies absence of social capital as the causal link between social disorganization and criminality. Putnam argues that the presence or absence of networks of generalized trust and reciprocity does much to explain differences in crime between communities and states. In our study we subject Putnam's claim to rigorous empirical examination. While many previous studies are based on cross-section analysis, we prepared U.S. state level panel data, which has a clear empirical advantage. Also, we introduced year-dummy variables to account for year effects and dynamics with the lagged dependent variable. Other crime-related control variables are also included. Social capital variables such as voter turnout in the presidential elections and organ donation rate per 100,000 people do not have robust crime-reducing effect. However, we find a significant crime-reducing effect from the number of nonprofit organization per 100,000 people and religion adherence rate in each state.

8) Sanjukta Roy (West Virginia University - College of Business & Economics), Institutions, Terrorism and the Role of a Free Press. The abstract states:

In this paper I investigate the role of a free media in the Institution-terrorism nexus. By considering alternative measures of terrorism, I not only examine the relation between quality of institutions and the incidence of international terrorism in a country but also see how the relation gets affected when endowed with a free press. The results suggest that a free media, in all occasions, dampens the spirit of terrorism. 

9) Robert Brauneis (George Washington University - Law School ),The Transformation of Originality in the Progressive-Era Debate Over Copyright in News. The abstract states:

In the 1991 case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court held unanimously that only those aspects of works which exhibited a "modicum of creativity" could be protected by copyright, and hence that factual matter was not copyrightable. Feist confirmed and expanded on the Court's statements in the 1918 case of International News Service v. Associated Press that news was not copyrightable apart from its literary form. Yet for the first three-quarters of the nineteenth century, the notion that copyright incorporated an originality requirement which excluded factual matter from protection was unknown to Anglo-American law. Courts routinely found infringement of fact-based works, such as maps, charts, road-books, directories, and calendars, on the basis of the copying of their factual content, and concluded that the industry of plaintiffs in gathering and presenting facts should be protected under copyright law. What caused the transformation in the doctrine of originality between the Civil War and World War I?

This article argues that the rise of creativity-based originality in copyright law has strong ties to a previously little-examined episode in copyright history: the debate over legal protection for news in the last decades of the nineteenth century. Until the 1880s, the American news industry remained in a pre-copyright era, and played no part in copyright discourse. Newspaper editors followed a widespread custom of freely copying text from other newspapers. That custom was acknowledged and encouraged by a massive government subsidy in the form of free postage for newspaper copies that were being exchanged between editors. Newspaper owners never registered their papers before publication, and thus forsook copyright protection for them.

In the middle decades of 1800s, however, technological changes, foremost among them the introduction of the telegraph, radically changed the structure of the news industry. The telegraph provided newspapers with an opportunity to invest in more timely news; yet together with improvements in typesetting, printing, and transportation technology, it also created an appropriability problem. It shrank the lead-time advantage that newspapers traditionally had relied upon to realize the value of their investment in news, and also exposed them to competition from which they had previously been geographically isolated. At the same time, the new communications technologies led to the emergence of companies and large associations that dominated markets, often with the aid of anticompetitive practices. Prominent among these were the news industry organizations of the Associated Press and the Western Union.

Within this context, the Associated Press, Western Union and others began in the 1880s to press for legal protection of news reports, in both legislative and judicial arenas. Opposition to those efforts led to the first prominent articulations of the notion that facts are not created by authors, and are therefore not copyrightable subject matter. Paradoxically, that notion was then reinforced by proponents of legal protection for news, when they resolved to seek that protection outside of statutory copyright, in common law misappropriation, and made the tactical decision to argue that news was not copyrightable in order to avoid copyright preemption of their common law claims. An earlier, shorter version of this article will appear in a collection of essays published by Edward Elgar Publishing, Inc.

JFB

Global Defamation Map

Looking for a quick overview of defamation laws across the globe, check out Article 19's interactive Defamation Map.  Mouse over the color-coded world map to compare criminal and/or civil defamation penalties in different countries, and open windows that provide updates to new and pending legislation.

Great global resource!

Nursing Student Dismissed for MySpace Posting

Adding to the growing number of lawsuits related to student web-postings, Louisville's Courier-Journal reported on Monday that a nursing student was expelled from the University of Louisville for comments posted to her MySpace page.  The student and University administrators dispute whether the posts that gave rise to her epxulsion are those relating to "patient activities and identification," which violate institutional policy, or those relating to gun posession, and caustic remarks about racial and religious groups, that the plaintiff says are protected by the First Amendment.

    

Hilden on Anonymous Web-posters

Julie Hilden's latest Findlaw column uses a recent Maryland Court of Appeals decision to discuss when a defamation plaintiff should be able to discover the identity of on-line web-posters.  Link here.

Turkey Faces Another EU Probe

The European Commission agreed to consider a motion to investigate a $500 million penalty levied against the Dogan Media Group, the largest media conglomerate in Turkey.  The DMG has been a sharp critic of Prime Minister Recep Tayyip Erdogan, and owns a number of prominent newspapers that have accused the government of political corruption.  Erdogan didn't help the matter when he called for a nationwide boycott of DMG's holding last year.   

LATCRIT XIV: Call For Papers

Plenty of room to work First Amendment Scholarship proposals at this year's LatCrit Conference, Oct 1-4, 2009, at American University, Washington College of Law.  See call for papers below, and link here for more info.

The LatCrit XIV Host Committee invites the submission of proposals for panels and papers related to [an] open-textured theme and encompassing the fullest array of theoretical and doctrinal topics and approaches.  Because we will be in Washington, DC, we encourage the submission of paper and panel proposals propounding prescriptive critiques of discrete areas of law, policy and regulation of specific relevance to outsider communities, including (but by no means limited to) economic justice, international and comparative law, criminal law and the death penalty, civil rights and constitutional law (including gender and LGBT equality, reproductive and disability rights), feminist legal theory, immigration, political and electoral (dis)enfranchisement, communications policy and intellectual property, healthcare, education, employment, tax policy, and the environment.  We also, of course, welcome proposals for more theoretical panels and papers, particularly (but not exclusively) in areas linked to the challenges posed by progressive governance and the ascendance of outsiders to positions of ultimate authority. 

Please submit your panel and paper proposals through the online process at the LatCrit website (www.law.du.edu/latcrit/index.htm) no later than MONDAY, APRIL 27, 2009.  Please note that although paper proposals for work-in-progress sessions may be submitted now, we will continue to accept those proposals through mid-July (please refer to LatCrit website for forthcoming additional details).   

First Amendment Scholarship Update

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

1) Daniel J. Solove(George Washington University Law School) and Neil M. Richards (Washington University School of Law), Rethinking Free Speech and Civil Liability, 109 Colum.L. Rev.---(2009). The abstract states:

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech.

Both of these rules are widely-accepted. However, there is a major problem - in a large range of situations, the rules collide. Tort, contract, and property law overlap significantly, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability. Surprisingly, few scholars and jurists have recognized or grappled with this problem.

The conflict between the two rules is vividly illustrated by the law of confidentiality. People routinely assume express or implied duties not to disclose another's personal information. Does the First Amendment apply to these duties of confidentiality? Should it? More generally, in cases where speech results in civil liability, which rule should apply, and when? The law currently fails to provide a coherent test and rationale for when the Sullivan or Cohen rule should govern. In this article, Professors Daniel J. Solove and Neil M. Richards contend that the existing doctrine and theories are inadequate to resolve this conflict. They propose a new theory, one that focuses on the nature of the government power involved.

2) Helen L. Norton (University of Colorado School of Law), Constraining Public Employee Speech: Government's Control of its Workers' Speech to Protect its Own Expression , 59 Duke L. J. --- (2009). The abstract states:

This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims - a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the governmental employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on - and defer to - government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government to control its employees' expression while at work, characterizing such speech as the government's own for which it has paid with a salary. This trend frustrates a meaningful commitment to republican government by allowing government officials to punish, and thus deter, whistleblowing and other valuable on-the-job speech that would otherwise facilitate the public's ability to hold the government politically accountable for its choices. Courts also increasingly consider government workers to be speaking "as employees" even when away from work, deferring to government's assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views. Implicit in courts' reasoning is the premise that a public entity's employment relationship with an individual who engages in certain expression communicates a substantive message to the public that the government is entitled to control. Courts' unfettered deference to such claims permits government agencies to fire workers for any unpopular or controversial off-duty speech to which the public might object, potentially enforcing an expressive orthodoxy as a condition of public employment.

To be sure, government speech is as valuable as it is inevitable. But taken together, these trends lead to the rejection of government workers' First Amendment claims in a growing number of cases that undermine workers' free speech rights as well as the public's interest in transparent government. More careful attention to what it is that government seeks to communicate - and whether that message is actually impaired by employee speech -- can help us capture and accommodate government's expressive interests while providing greater protection for workers. This Article thus proposes a less deferential approach to assessing government's expressive claims, exploring both categorical and contextual frameworks for identifying with greater precision that comparatively small universe of worker speech that actually threatens government's legitimate speech.

3) Tamara R. Piety (University of Tulsa College of Law ), Onslaught: Commercial Speech and Gender Inequality. The abstract states:

In this work I continue my exploration of commercial speech issues and use Dove's infamous "Onslaught" viral ad to discuss the ways in which commercial speech constructs images of women and constitutes a significant part of the obstacle to full equality for women. Advertising and marketing contribute to creating a reality in which it is taken for granted that women must spend a great deal of time on their appearance and that appearance is of critical importance to their life success and self-esteem. It does this while, as typical for much advertising, stimulating anxiety. Anxiety contributes to low self esteem, lowered ambitions and stereotype threat reactions, as well as to biased perceptions of others. These harms are often justified on the basis of the right of the speaker to participate. The Dove ad itself however illustrates what a problematic "speaker" Dove is and raises the question whether the interests of a non-human speaker should outweigh the interests of human beings in being free from the harms such speech may cause.

4) Shireen Barday, Comment- FEC v. Wisconsin Right to . . . Petition?: A Comment on FEC v. Wisconsin Right to Life, 61 Stan. L. Rev. 443 ( 2008). The abstract states:

FEC v. Wisconsin Right to Life, Inc. (WRTL)1 is the Supreme Court's latest attempt to extricate grassroots advocacy by nonprofit corporations from the morass of political broadcast restrictions under the Bipartisan Campaign Finance Reform Act (BCRA). As with the many cases preceding it, the standard pronounced by the Court in WRTL is deceptively straightforward: a political broadcast is an "electioneering communication" that may be proscribed "only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The Court held this axiom true notwithstanding the identity of the advertisement's sponsor because "the corporate identity of a speaker does not strip corporations of all free speech rights [under the First Amendment]." The question the Court should have addressed is whether the nonprofit corporate identity of a speaker entitles such corporations to speech rights under the Petition Clause rather than the Free Speech Clause of the First Amendment.

The Framers thought that nonprofit corporations were entitled to exemptions based upon their status as nonprofits. During the First Congress, a nonprofit Quaker corporation seeking to abolish slavery led Congress to consider whether the First Amendment of the United States Constitution permitted the group to rely upon mass media and public opinion to effect grassroots advocacy through electoral pressure. Although Congress was deeply divided on the slavery question, Congress's failure to proscribe the Quakers' grassroots lobbying efforts suggests that they believed that the Petition Clause of the First Amendment protected the Quakers' actions because providing for nonprofit corporate political speech necessarily favored the general welfare of the United States.

The next time the Court is faced with the issue of restrictions on nonprofit corporate political speech, the Court should consider adopting an originalist perspective by adjudicating these corporate political speech claims under the Petition Clause. To date, all for-profit corporate political speech claims are considered antitrust questions subject to Petition Clause restraints, while nonprofit corporate political speech questions are considered campaign finance questions subject to Free Speech Clause restraints. Coupling both types of corporate political speech under the Petition Clause would reunite the Court's for-profit and nonprofit corporate political speech doctrines. An originalist perspective also has the virtue of being a principled basis for decision making, which could help stabilize jurisprudence in this area of election law.

5) Luke M. Milligan (University of Louisville School of Law), Rethinking Press Rights of Equal Access , 65 Washington and Lee L. Rev.---(2008). The abstract states:

The prevailing approach to First Amendment equal-access litigation, turning on the "general inclusivity" of government access, is deeply flawed. The standard has proved to be, in the end, exceedingly permissive, hopelessly vague, and, perhaps most importantly, theoretically incompatible with the Supreme Court's emerging view that access is a form of government subsidy. This essay calls on the courts to abandon their reliance on inclusiveness, and, in its place, tailor the definition of "access" to include only those government acts conducted "pursuant to official duties." The resulting doctrine would be one worthy of the federal courts -- durable, coherent, and duly respectful of the traditional relations between public officials and the press.

6) David A. Reidy, J.D., Ph.D. (University of Tennessee - Department of Philosophy), Rawls's Religion. The abstract states:

In this essay I discuss John Rawls's religious commitments as they developed over the course of his life and how attending to those commitments can inform and deepen our understanding of, and ability critically to evaluate, his political philosophy.

7) Aileen McColgan (King's College London - School of Law), Class Wars? Religion and (In)Equality in the Workplace, 3 Industrial L. J. 1 (2009). The abstract states:

In this paper, I seek to demonstrate the potential for conflict inherent in the prohibition of discrimination on grounds of religion or belief with the regulation of discrimination on other grounds. I suggest that such conflict is inevitable and that it is a mistake to protect religion and/or belief in like manner to grounds such as sex, race, sexual orientation and disability. While such protection is, at present, required by EC law, I suggest that legislation along present lines is not required by the European Convention on Human Rights and that it is not justified by any special quality of religion. On the contrary, I argue that requiring the accommodation of practices or beliefs categorised as religious tends to perpetuate practices and beliefs which are problematic on equality and other grounds.

8) Mark Strasser (Capital University - Law School), Religion in the Schools: On Prayer, Neutrality and Sectarian Perspectives, 42 Akron L. Rev.185 (2009). The abstract states:

This Article traces the development of modern Establishment Clause jurisprudence with respect to religion in the public schools, noting how the Court's analyses and justifications have changed over time, protestations to the contrary notwithstanding. The Article examines how the logic of the Court's current approach would permit practices long thought to violate Establishment Clause guarantees, concluding that the current approach is radically misconceived as a matter of both constitutional law and good public policy.

9) C. S. Herrman, When is Faith a Religion? Part I: The Four Criteria. The abstract states: 

Wiccans can be forgiven for wishing to view their faith as a religion rather than a cult. This presentation asks whether analytical philosophy can find warrant for the premise. Were we to suppose that 1) the American Heritage Dictionary had not, in its 1992 edition, acknowledged Wicca as a 'pagan nature religion'; and 2) that we could lend credence to past opinion holding that witches do not practice religion, this paper would nonetheless ask that we return to 'square one', whereby to reassess how and why Wiccans, or followers of any faith, might reasonably appropriate the respectable and venerable epithet 'religion'. What philosophically justifies this claim?

The present paper discusses definitional and methodological constraints, followed by the introduction and justification of four criteria that I believe necessary to any normative definition of religion: 1) exposure theory as grounding perception and cognition of religiously relevant data; 2) myth as an emblematic conveyance of authority and sacrality necessary to religion; 3) faith as a philosophical aptitude necessary to ground sacrality and mystery, and 4) cosmology, as designating the intelligent unity grounding the authority and power presupposed by religion.

10) Marinilka Barros Kimbro (University of Washington, Tacoma - Milgard School of Business),  Corruption: The Role of Culture, Religion, Wealth and Governance.The abstract states:

Drawing on macro and micro-economic theory, this paper expands the literature by examining the role of culture, values, religion, wealth, rule of law, governance and accounting on corruption. Using a panel of 75 countries, I find evidence that countries with Civil German law have better control of corruption and better governance, than countries with Civil French and Common Law legal traditions. I also find that the relationship of individualism and corruption is mediated by the positive effect of GNI suggesting that economically and institutionally mature countries with high levels of individualism tend to have higher corruption than countries with intermediate levels of individualism, indicating a non-monotonic, non-linear relationship between individualism, wealth and corruption. Even though there is evidence that Protestant countries are less corrupt than Catholic and Muslim countries, I find that this association is mediated by the level of institutional and regulatory development. Specifically, an efficient rule of law, moderate growth rates, as well as better governance & accounting is directly associated with countries that have controlled corruption, suggesting a causal relationship.

11) Patrick McKinley Brennan (Villanova University School of Law), Delivering the Goods: Herein of Mead, Delegations, and Authority, forthcoming in Mich. St. L. Rev.(2009). The abstract states:

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, the achievement and exercise of authoritativeness. Authoritativeness is the gateway by which goods enter, including through human law. The article develops these points by showing their place in United States v. Mead (2001). The article was prepared for the January 2009 meeting of the AALS Section on Law and Religion, co-sponsored by the Section on Jewish Law and the Section on Islamic Law.

JFB

Catholics Rally in Protest at Connecticut Statehouse

As reported by the AP, approximately 3,500 people, including the Archbishop of Hartford, gathered Thursday at the Connecticut statehouse to  protest what they perceive as anti-Catholic bias within the legislature and state government. The protesters were reacting to the now withdrawn church governance bill (see prior post) as well as other recent legal developments in the state, such as the legalization of same sex civil unions, the state Supreme Court’s ruling recognizing homosexuals’ right to marry, stem cell research funding, a proposed ban on discrimination against transgendered persons, and a 2002 effort to mandate that priests report sexual abuse disclosed in confession if a child faced imminent danger. The bishop of Norwich was quoted as saying, "No other church or religion in this state is being subjected to this maltreatment….Today it is the Roman Catholic Church. Who will be next?" Another protester, identified as Kathleen Welch of New London, offered the following explanation for the protesters’ outrage: “The bills are oriented to kind of subvert the will of the people and sometimes attack the church, particularly the Catholic Church…I think (the religious corporations bill) was the final straw and people are just tired of being barraged with anti-family legislation."

JFB

Bus Signs Present Battle of Atheists and Believers

According to an AP report in the Chicago Tribune, the Freedom from Religion Foundation (FFRF) has purchased ad space on the sides of the Madison, Wisconsin’s buses to display messages such as the statement, attributed to actress Butterfly McQueen, “As my ancestors were freed from slavery, I am free from the slavery of religion.” An area congregation has responded by purchasing its own bus ads, which feature a passage from Psalm 14: “The fool hath in his heart, there is no God.” 

The FRFF initiative takes a page from a campaign being waged on the sides of 800 buses in London.  In January, the New York Times London Journal described the London bus signs and the sometimes bemused, sometimes affronted reactions they have elicited. The ads say, “There’s probably no God. Now stop worrying and enjoy life.” The inclusion of the word probably was required by the terms of the British advertising code. As explained by a representative of CBS Outdoor, the unequivocal statement that there is no God would have been considered misleading, and the ad text therefore had to acknowledge a degree of uncertainty.  The London ads are funded by the British Humanist Association (BHA) as well as by contributions from individual donors, including internationally prominent scientist and atheist Richard Dawkins, author of The God Delusion.  The Methodist Church has responded to the ad campaign by welcoming what it describes as an opportunity for London’s people to talk about God.

The Times piece notes that Britain’s political leaders, unlike those in the U.S., tend to downplay their religious beliefs while in office, sometimes even disavowing religious belief without resulting political doom as the recent statement by  Nick Clegg, leader of the Parliament’s Liberal Democrats, that he was an agnostic, could be seen as demonstrating.  However, Richard Dawkins contends that since 9/11 religious groups have become more prominent as participants in political dialogue with a number of Christian and non-Christian believers asserting what Dawkins disdainfully characterizes as what the believers see as “a God-given right to propagandize.”  In a report from BBC News, Hanne Stimson, head of the BHA, explains the bus sign campaign in these terms: “We see so many posters advertising salvation through Jesus or threatening us with eternal damnation, that I feel sure a bus advert like this will be welcomed as a breath of fresh air.”                  

JFB

ABA Publishes Guide to Representing Religious Organizations

The ABA has recently published Guide to Representing Religious Organizations. The ABA bookstore website describes the volume's contents as follows:

[It] addresses critical issues and risk factors of concern for religious organizations ranging from formation and governance, to taxes, fundraising and employment issues, and property rights. It outlines the general requirements of applicable law and highlights areas in which religious organizations receive special consideration under the law. The Guide's topical discussions are well organized for ease of reference. This book will assist attorneys who are asked to represent religious organizations as well as provide general information for religious leaders faced with a legal challenge.

JFB

Fairey’s Street Art Draws Graffiti Vandalism Charges in Boston

Today’s New York Times recounts artist Shepard Fairey’s latest brush with the law.  Arrested in early February as he arrived at the opening of his retrospective exhibit at Boston’s Institute for Contemporary Art and then imprisoned overnight, Fairey entered a not guilty plea yesterday in municipal court as he faced multiple charges  based on allegations that he posted images and mounted posters on a railroad trestle, Massachusetts Turnpike Authority property, and traffic signs in the affluent Back Bay neighborhood. A Boston police officer’s affidavit details the basis for some of the allegations against Fairey.  The Boston Globe notes that the police have acknowledged that they did not have eyewitnesses or surveillance films of Fairey mounting any of the materials.  Fairey contends that the images used are available for downloading on the Internet and could have been posted by anyone.   According to the Times article, the artist issued a statement Wednesday in which he asserted that  his prosecution represented an effort to punish him for advocating that public spaces “should be filled with more than just commercial advertising.”

JFB   

Conn. Bill Seeking to Regulate Catholic Church Governance Practices Withdrawn in Apparent Recognition of Unconstitutionality

Blog from the Capital reports that a bill aimed at regulating the internal governance practices of the Roman Catholic Church was recently introduced in Connecticut. The bill sought to impose a protocol under which a lay board of directors would oversee and have to approve a Catholic  congregation’s financial and administrative initiatives   As a group of Religion Clause scholars headed  by Professor Douglas Laycock of Michigan Law School pointed out in a letter to the co-chairs of the Connecticut legislature’s Joint Committee on the Judiciary, the legislation would have been a clear violation of the First Amendment as interpreted in a number of controlling Supreme Court precedents.  The bill was targeted at a specific denomination. It would have represented a serious interference with the internal operations of the Church and would have effectively taken sides in a theological dispute that is a critical point of divergence between Protestantism and Catholicism.  On the Religionlaw listserv, Professor Marci Hamilton agreed with the Laycock letter’s analysis of the bill’s multiple constitutional flaws but noted that the bill was the byproduct of an effort by a group of Catholic parishioners to obtain some form of lay oversight of church operations after a local priest had fled with approximately one million dollars in parish funds.

JFB