First Amendment Law Prof Blog

Federal Hate Crimes Bill Moves to House

H.R. 1913 was introduced in the Senate, and is expected to be approved by the House on Wednesday over criticism that it violates the Free Speech rights of Christians who preach against homosexuality.  The Local Law Enforcement Hate Crimes Prevention Act includes "sexual orientation" and "gender identity" among the list of bias-motivated offenses. 

President Obama publicized his support in a statement on Tuesday.

-Kathleen A. Bergin

S#%&!: Supreme Court Upholds FCC's 'Fleeting Expletives' Rule

In a 5-4 opinion written by Justice Scalia, the Supreme Court today upheld an FCC policy that prohibits the airing of one-time, unscripted expletives - you know, the kind of stuff we expect celebrities to say at awards shows.  (see my prior post at First Amendment Law Prof blog for background). 

The Court found that the policy was neither 'arbitrary or capricious' within the meaning of the Administrative Procedures Act.  It punted on the First Amendment question though, remanding to the Second Circuit for a determination on that issue.

And who knew Scalia was such a shrinking violet.  Not once in his 30 page majority opinion does he write the word 'fuck' in a case that's, well,  about the word 'fuck.'  But then again, neither do any of the other Justices. 

Cohen be damned!

-Kathleen Bergin    

First Amendment Scholarship Survey

Here is this week’s collection of First Amendment scholarship:  

1)  Gene R. Nichol Jr. ,(University of North Carolina at Chapel Hill - School of Law), Establishing Inequality, 107 Mich. L. Rev. --- (2009). The abstract states:

This essay explores, modestly criticizes, but principally applauds Martha Nussbaum’s strong linkage of establishment and free exercise jurisprudence with the demands of human equality. Her wide-ranging study of the religion clauses touches something at the core of American citizenship. No bosses. No masters. No insiders. No outcasts. More idiosyncratically, I also explore and expand on Nussbaum’s thesis in light of a modestly serious and rather public dispute over religious equality that occurred at the College of William and Mary during my presidency there. A disagreement over the display of religious symbols in a public university, to my surprise, echoed more in traditional claims of equality and privilege than I would have assumed. I am candid in claiming that my own experiences suggest, perhaps unfortunately, that Nussbaum is rather acutely on to something when it comes to the central meaning of the protection of religious liberty in a diverse and democratic culture. A respect for the equal status of dissenters animates the religion clauses and highlights the crucial nature of their implementation.

2) Mark Strasser (Capital University - Law School),  Repudiating Everson: On Buses, Books, and Teaching Articles of Faith, 78 Miss. L. J. 567 (2009). The abstract states: 

This article traces the evolution of Establishment Clause jurisprudence with respect to state funding of primary and secondary religious schools. What was initially a concern that the state not support religious teaching evolved into an analysis of whether non-sectarian benefits were being accorded to religious and non-religious schools alike. Then, the Court modified its approach, focusing on whether what was admittedly state support of the teaching of religion could reasonably be imputed to the state. While the individual changes in the Court's approach themselves were often not dramatic, they collectively have resulted in a jurisprudence that cannot be squared with the letter or spirit of Everson, even when Everson is understood to be much less separationist than is commonly supposed.

3) Andy G. Olree (Faulkner University - Jones School of Law), Identifying Government Speech , 42 Conn. L. Rev. --- (2009). The abstract states:

The U.S. Supreme Court has interpreted the Speech Clause of the First Amendment to mean that when the government distributes money or other resources to private speakers, it generally may not discriminate among speakers based on viewpoint. The government is, however, allowed to express its own viewpoint, even if it enlists the aid of private parties to get the message out, as long as the communication does not violate some separate legal restriction, such as the Establishment Clause. Together, these understandings form the core of what has become known as the government speech doctrine. This doctrine signals that distinguishing between government speech and private speech will become crucial in many cases involving either the Speech Clause or the Establishment Clause. While the Court has announced the distinction in general terms and has decided cases based on it - including a notable case in 2009 involving Ten Commandments monuments - the Court has yet to announce a standard by which judges can reliably identify government speech across a range of cases. After examining several attempts by others to formulate such a standard, this Article suggests that the Court has now identified three basic types of government speech. Accordingly, the Article proposes a three-factor test for identifying government speech, demonstrating how the test could function as a unifying explanation of precedent and a uniform method of resolving future cases.

 4) Mary Anne Franks (Bigelow Fellow, University of Chicago Law School ), Unwilling Avatars: Sexual Harassment in Cyberspace. The abstract states:

This Article analyzes the growing phenomenon of cyberspace harassment, offering an innovative legal response to it not previously advanced by scholarship on the subject. This Article identifies cyber harassment as a form of “forced embodiment” that reinforces already existing social stratifications. In doing so, such harassment undermines the idealistic promise of cyberspace as a realm of self-creation and liberty from physical constraints. The Article focuses on how the online harassment of women in particular forces women to become “unwilling avatars” in a way that exacerbates existing gender inequality.

Much of the current scholarship on cyber harassment focuses on reputation, privacy, and threats. This article offers a different approach, noting that 1) much cyber harassment cannot properly be characterized in these terms, and 2) legal remedies based on those characterizations impose liberty costs on both the targets of the harassment and the general public. Many cyber harassers do not explicitly defame or threaten women; rather, they make hostile, sex-based attacks on them. This harassing behavior thus falls outside of the reach of legal remedies based on defamation and privacy. Moreover, if one of the principal harms of harassment is that it subjects victims to negative public scrutiny, the fact that privacy and defamation litigation often increases that scrutiny (especially with regard to defamation - because truth is a defense to defamation, harassers facing defamation suits are incentivized to gather “proof” of their claims) undermines the value of the remedy. In addition, legal remedies based on reputation and privacy often themselves implicate privacy rights (e.g. by requiring websites to track users’ IP addresses) in a way that potentially undermines liberty interests.

This Article proposes that for all of these reasons, the cyber harassment of women is sometimes best conceptualized as sexual harassment. As such, legal remedies under Title VII and Title IX should be brought to bear on it. In order to do so, we must recognize that the workplace and school purview of Title VII and Title IX is properly conceived as tracking where the harms of harassment take effect, not the physical location of the harassment. If the harassment’s primary effects are experienced in its victims’ professional or educational lives, it should be subject to Title VII and Title IX. This Article accordingly proposes that Title VII and Title IX be revised to meet the challenge of sexual harassment in the networked age by explicitly including liability for website operators. Such a remedy would incentivize website operators to self-regulate so that the majority of harassment cases could be resolved without ever going to court, and does not rely on tracking techniques that implicate significant privacy interests.

5) Randall P. Bezanson (University of Iowa College of Law) and Andrew Finkelman, Trespassory Art, 43  U. Mich. J. L. Reform ---, (2010). The abstracts states:

The history of art is replete with examples of artists who have broken from existing conventions and genres, redefining the meaning of art and its function in society. Our interest is in emerging forms of art that trespass – occupy space, place, and time as part of their aesthetic identity. These new forms of art, which we call trespassory art, are creatures of a movement that seeks to appropriate cultural norms and cultural signals, reinterpreting them to create new meaning. Marcel DuChamp produced such a result when, in the early twentieth century, he took a urinal, signed his name to it, titled it Fountain, and called it art.

Whether they employ 21st century technologies, such as lasers, or painting, sculpture and mosaic, music, theatre, or merely the human body, these new artists share one thing in common. Integral to their art is the physical invasion of space, the trespass, often challenging our conventional ideas of location, time, ownership, and artistic expression. Their art requires not only borrowing the intellectual assets of others, but their physical assets. This is trespassory art - art that redefines and reinterprets space-art that gives new meaning to a park bench, to a billboard, to a wall, to space itself.

Our purpose is to propose a modified regime in the law of trespass to make room for the many new forms of art with which we are concerned - art that is locationally dependent or site specific. We begin by briefly describing and characterizing these often-new artistic forms. This provides a jumping off point for addressing the basic question this article seeks to address-should the law accommodate these new types of art, and if so, to what degree? We first turn to the law of trespass, with particular focus on real property, both public and private, but also with an eye to personal and intellectual property. We conclude that adjusting trespass remedies for artistic trespass through a set of common law privileges would better balance the competing interests of owners and artists than do current trespass rules. We then turn to a set of constitutional issues and conclude that our common law proposal is consistent with, and in some ways perhaps required by, the First Amendment. Finally, we summarize our proposal and then revisit the value of trespassory art as art in our creative culture.

6) James W. Dow (Oakland University), How Evolution Created God: The Search for the Origins of Religion. The abstract states:

The easiest way of understanding religion is through the eyes of a believer. However, a non-believer often cannot accept this vision because it refers to beings and forces that he or she cannot independently verify. Religion is even more of a puzzle to the scientist, who is taught to believe only in a reality that can be observed and tested. Yet, religion exists in the minds and hearts of people. How did it get there if it was not implanted by a divine being? Natural selection is the only process that science knows of that can produce a brain that experiences religion. This process by which natural selection has produced the religious brain is still unclear. One way of discovering it is through mathematical and agent-based simulation. This paper will present an agent-based model for the natural selection of unreal beliefs and discuss further mathematical approaches to the problem.

7) Stephanie Tumbiolo (St. John's University School of Law),  Note -  'Intimately Linked': Examining Religious Protection for Student Expressions of Sexual Abstinence , 48 J. of Catholic Legal Studies --- ( 2009). The abstract states:

Part I of this Note outlines the multiple avenues available for challenging a school chastity ring ban and explains why a Free Speech viewpoint discrimination analysis is the correct framework to apply. Part II analyzes the ring in the context of First Amendment definitions of religion to conclude that wearing a chastity ring expresses a religious belief, and thus, deserves the heightened scrutiny afforded to “viewpoints.” Confirming the ring to be an expression of a religious viewpoint exposes the British school’s policy as viewpoint discrimination. Part III explains that objective tests - such as the British court’s “intimately linked by obligation” test - lead to religious discrimination and are unworkable for school districts and courts to apply. Rather, a more subjective, judicially-appropriate test for determining religious expression can be applied to student expression without denying school officials the ability to protect the interests of the school.

8)  John Finnis (University of Oxford - Faculty of Law),  Why Religious Liberty is a Special, Important and Limited Right. The abstract states:

This address to a conference in Princeton on religious liberty in the contemporary situation engages in a critical review of the main thesis of Christopher Eisgruber and Lawrence Sager, Religious Freedom & the Constitution (Harvard UP, 2007), that religion is not “a … category of human experience that demands special benefits and/or necessitates special restrictions,” or any “special immunity for religiously motivated conduct.” Against this position it is argued that natural religion of the form manifested in the New York Regents’ prayer outlawed by the US Supreme Court in Engel v Vitale (1962) is not to be put on the same constitutional level as (or below) other human passionate interests or even conscience. The paper considers inter alia the Indian and the European Convention provisions on religious liberty.

9) Jason A. Adkins, Lincoln's Constitution Revisited, 36 N. Ky. L. Rev. --- (2009). The abstract states:

This article demonstrates that the animating spirit of Lincoln’s constitutional actions was his civil religion - his belief that God had given America a special role to play in the history of the world, and it was up to America to be faithful to that charge. Crucial to that goal was thwarting the fundamental attack launched against the whole work of the Founders by Calhoun and his disciples. That struggle, which produced the Civil War, forced Lincoln to reinterpret, re-apply, and in some ways complete the principles and work of the Founders. Lincoln rededicated America to the cause of the Founders, particularly the Declaration of Independence, and thus unleashed a “new birth of freedom.” It is through this lens that we should understand “Lincoln’s Constitution.”

The article specifically addresses those partisans in today’s constitutional debate who seek to use Lincoln as a cudgel to advance their own arguments. Partisans should tread lightly; “Lincoln’s Constitution” is bound up heavily in America’s civil religion - a religion that attempts to explain America’s purpose and destiny within the scheme of Providence. Here, the rhetoric and the constitutional parallels between Lincoln’s time and our own are unmistakable. But unless those involved in the debate seek to come to terms with Lincoln’s own view, they should refrain from using him as a standard; unless of course, they believe America (and the world) must continue to have “a new birth of freedom.”

10) Erin Fletcher and Murat Iyigun (University of Colorado at Boulder - Department of Economics ),     Cultures, Clashes and Peace . The abstract states:

Ethnic and religious fractionalization have important effects on economic growth and development, but their role in internal violent conflicts has been found to be negligible and statistically insignificant. These findings have been invoked in refutation of the Huntington hypothesis, according to which differences of ethnic, religious and cultural identities are the ultimate determinants of conflict. However, fractionalization in all its demographic forms is endogenous in the long run. In this paper, we empirically investigate the impact of violent conflicts on ethno-religious fractionalization. The data involve 953 conflicts that took place in 52 countries in Europe, Africa and the Middle East between 1400 CE and 1900 CE. Besides a variety of violent confrontations ranging from riots, revolts and power wars between secular sovereigns, the data cover religiously motivated confrontations. We document that countries in which Muslim on Christian wars unfolded more frequently are significantly more religiously homogenous today. In contrast, those places where Protestant versus Catholic confrontations occurred or Jewish pogroms took place are more fractionalized, both ethnically and religiously. And the longer were the duration of all such conflicts and violence, the less fractionalized countries are today. These results reveal that the demographic structure of countries in Europe, the Middle East and North Africa still bear the traces of a multitude of ecclesiastical and cultural clashes that occurred throughout the course of history. They also suggest that endogeneity could render the relationship between fractionalization and the propensity of internal conflict statistically insignificant. Finally, instrumenting for conflicts with some geographic attributes and accounting for the endogeneity of fractionalization with respect to ecclesiastical conflicts shows that religous fractionalization likely has negative effects on economic growth.

11) Paolo Carozza (Notre Dame Law School) and Daniel Philpott (University of Notre Dame ),  The Catholic Church, Human Rights and Democracy: Convergence and Conflict with the Modern State , to be published in Peter Schraeder, ed., THE CROSS, THE CRESCENT AND THE BALLOT BOX: CATHOLIC AND ISLAMIC DIALOGUE ON THE RULE OF LAW AND INTERNATIONAL DEMOCRACY PROMOTION. The abstract states:

This book chapter traces the history of the Catholic Church's relationship to the modern state, focusing on the idea of sovereignty and the development of human rights and democracy. It argues that the Catholic Church's relationship to human rights and democracy in the modern world can only be understood as reflective of both a historical convergence and a persistent tension and ambivalence. The first part argues for this dual theme in the development of Catholic doctrine, where today, as over the past several centuries, the Church's conception of the common good yields both an embrace of human rights and democracy and a critique of certain aspects of their secular espousal. The second part illustrates how this parallel acceptance and tension is manifested in practice, showing that the Church's efforts to advance its teachings on human rights and democracy sometimes succeed and sometimes encounter resistance, both on account of conceptual differences with modern states and international organizations as well as because of obstructing institutional realities.

12) Stephen E. Gottlieb (Albany Law School ), Law and the Polarization of American Politics,  forthcoming in Rutgers Law.Review. The abstract states:

Changes in American law have played a major role in creating the partisan environment that many denounce. These changes have involved parallel trends in the law of political campaigns and elections and the law of mass communications. The collective impact of these changes has not been appreciated. This article brings these developments together and identifies their collective impact.

The article demonstrates how legal regulation shaped the centrism of the mid-twentieth century and regulatory shifts in media and election law shaped the partisanship of recent decades. Sensible proposals will not and should not bring the naive centrism of earlier decades back. But they might curb the excesses of contemporary politics.

13)  Ray McKoski, Charitable Fund-Raising by Judges: The Give and Take of the 2007 ABA Model Code of Judicial Conduct , 2008 Mich. St L. Rev. 769. The abstract states: 

To promote public confidence in the judicial system, judges are prohibited from engaging in conduct that reflects adversely upon their independence, impartiality, or integrity. Since public trust is damaged by on-bench and off-bench activities, codes of judicial conduct severely restrict a judge's partisan political activities, private speech, business dealings, social life, religious activities, and charitable endeavors. This Article examines the restrictions placed on a judge's fund-raising efforts in support of civic, educational, charitable, fraternal, professional, and religious organizations. The Article begins by tracing the evolution of judicial fund-raising regulations through the ABA Model Codes of Judicial Conduct of 1924, 1972, 1990, and 2007. Next, specific fund-raising prohibitions of the 2007 Model Code are evaluated against the rational supporting the state’s right to limit a judge’s extra-judicial activities. The Article concludes that some of the 2007 Code’s fund-raising restrictions are justified because they prevent measurable damage to confidence in the judiciary. Other rules, however, prohibit conduct that is either harmless to, or actually enhances, the image of the judiciary. Those restrictions are not justified and should be eliminated.

14) John C. Gooch (The University of Texas at Dallas), Imagining the Law and the Constitution of Societal Order in Los Angeles Police Chief William Parker’s 1965 'Crime and the Great Society' Address . The abstract states:

Legal scholar and theorist James Boyd White has challenged both lawyers and rhetoricians to imagine the law as a rhetorical and literary process (“Imagining the Law” from the 1997 anthology, The Rhetoric of Law). White contends that members of the legal profession should see law as an activity of speech and imagination that occurs in a social world (“Imagining the Law,” p. 35). He encourages members of the legal profession to look at law in its social context; in other words, instead of thinking of law as a social machine or technical system of regulations and applying its rules in a mechanical way, lawyers should engage the legal profession as an interaction of authoritative texts and as a process of legal thought and argument (“Imagining the Law,” p. 55). By asking members of the legal professional to see law as rhetoric, White encourages them to recognize the socially constitutive nature of language, which runs contrary to a perspective of law as machine or, rather, the law as only a system of rules and regulations.

My paper will extend White’s notion of imagining law as rhetorical and literary process. White has analyzed specific court cases as instances of lawyers and judges imagining the law in particular ways. In addition, scholars, particularly from communication and rhetoric, have taken inspiration from his ideas and applied them to the rhetoric of the courtroom (e.g., court testimony, judicial opinions, and narrative in legal discourse). However, I intend to take White’s concept of imagining the law and to apply it to a public address concerning constitutionality and the legal system (as opposed to analyzing transcripts from court cases). The specific case for my paper, the “Crime and the Great Society” (1965) speech from former Los Angeles Police Chief William Parker, reflects Parker’s imagining of the law and of constitutional rights – particularly the rights of the accused. (Based on my research, the speech itself represents an artifact no one has seriously studied.) My paper will show how his speech reflects a vision for the City of Los Angeles; Parker, himself, imagines the law by referencing several authoritative texts and literary works to advance his agenda for societal order in Los Angeles. In the end, Parker asks his audience, the city’s leaders and citizens, to share his vision and his imagination, and, moreover, he constitutes a societal order through his use of language. Such imaginings, however, can adversely affect the very society a rhetorician intends to strengthen if the rhetorician’s words result in negative consequences for citizens’ constitutional rights.

15) Zachary Larsen  Law (Clerk to Hon. Calvin Osterhaven), The Egalitarian First Amendment: Its History and a Critique on the Grounds of Text, Rights, Negative Liberty, and Our Republican Constitutional Structure, 31 N.C.Cent. L. J. --- (2009). The abstract states: 

This article articulates the growing tendency of constitutional theorists and U.S. Supreme Court justices to construe the First Amendment in the light of egalitarian principles and argues that to do so is inconsistent with the meaning and purpose of the First Amendment. The article criticizes the egalitarian approach as creating a positive right, contrary to the structure of the Bill of Rights as a “charter of negative liberties,” and as diluting the right to speech by infusing in it a relative determination of speech values. Finally, the article concludes that the egalitarian reading should be rejected as endangering the very liberties the First Amendment creates.

16) Raphael Cohen-Almagor (University of Hull),  John Stuart Mill, published  in Clifford G. Christians and John C. Merrill, eds ,ETHICAL COMMUNICATION: FIVE MORAL STANCES IN HUMAN DIALOGUE(University of Missouri Press, 2009). The abstract states:

John Stuart Mill's concept of ethics was closely related to his firm belief in freedom. He was strictly a believer in each person bringing the greatest degree of happiness or good to the greatest number. This would be an individual act and in no way a forced action. One is free to act without coercion as long as no harm is brought to another person. Consequences must be considered carefully before acting and the act chosen must be the best of possible choices designed to bring about the most good. Mill is definitely a prime example of teleological ethics - an ethics of considering consequences, one which is notably different from Kant's concept of following a priori maxims or principles, regardless of consequences.

JFB

Missouri House Approves State Constitutional Amendment on "Right to Pray"

As noted by the Associated Press, the Missouri House has voted to approve a state constitutional amendment that was drafted, according to co-sponsor state Rep. Mike McGhee, in response to complaints that government officials are squelching private prayer in public places, such as public schools and public meetings.   If approved by the Missouri Senate, the proposed amendment would be presented to voters in 2010.  Questioning the necessity for the amendment, opponents point to the protection already provided by the terms of the state constitution’s Bill of Rights, which provides:

all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no human authority can control or interfere with the rights of conscience; that no person shall, on account of his religious persuasion or belief, be rendered ineligible to any public office or trust or profit in this state, be disqualified from testifying or serving as a juror, or be molested in his person or estate; but this section shall not be construed to excuse acts of licentiousness, nor to justify practices inconsistent with the good order, peace or safety of the state, or with the rights of others.

The proposed amendment would make the following changes to the current provision:

That all men and women have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no human authority can control or interfere with the rights of conscience; that no person shall, on account of his or her religious persuasion or belief, be rendered ineligible to any public office or trust or profit in this state, be disqualified from testifying or serving as a juror, or be molested in his or her person or estate; that to secure a citizen's right to acknowledge Almighty God according to the dictates of his or her own conscience, neither the state nor any of its political subdivisions shall establish any official religion, nor shall a citizen's right to pray or express his or her religious beliefs be infringed; that the state shall not coerce any person to participate in any prayer or other religious activity, but shall ensure that any person shall have the right to pray individually or corporately in a private or public setting so long as such prayer does not result in disturbance of the peace or disruption of a public meeting or assembly; that citizens as well as elected officials and employees of the state of Missouri and its political subdivisions shall have the right to pray on government premises and public property so long as such prayers abide within the same parameters placed upon any other free speech under similar circumstances; that the General Assembly and the governing bodies of political subdivisions may extend to ministers and clergypersons the privilege to offer invocations or other prayers at meetings or sessions of the General Assembly or governing bodies; that the state shall ensure public school students their right to free exercise of religious expression without interference, as long as such prayer or other expression is private and voluntary, whether individually or corporately, and in a manner that is not disruptive and as long as such prayers or expressions abide within the same parameters placed upon any other free speech under similar circumstances; and, to emphasize the right to free exercise of religious expression, that all free public schools receiving state appropriations shall display, in a conspicuous and legible manner, the text of the Bill of Rights of the Constitution of the United States; but this section shall not be construed to excuse acts of licentiousness, nor to justify practices inconsistent with the good order, peace or safety of the state, or with the rights of others.  

The Senate proposed resolution on the constitutional amendment would prescribe the following as the statement of the ballot question to be submitted to voters:

"Shall the Missouri Constitution be amended to ensure:
    *That the right of Missouri citizens to express their religious beliefs
    shall not be infringed;
    *That school children have the right to pray and acknowledge God
     voluntarily in their schools; and
    *That clergypersons may be invited to offer invocations at public
    meetings.".

The House version offers a slightly different formulation  of the ballot question:   

"Shall the Missouri Constitution be amended to ensure:
    *That the right of Missouri citizens to express their religious beliefs
    shall not be infringed;
    *That school children have the right to pray and acknowledge God
     voluntarily in their schools; and
    *That all public schools shall display the Bill of Rights of the United States Constitution."

JFB 

 

Religious Hiring Rules Off the Agenda for the White House Advisory Panel on Faith Based and Neighborhood Partnerships

The God in Government Blog reports that the recently constituted advisory panel will not be asked to weigh in on the controversial question of whether faith-based organization can use religious criteria in hiring decisions for projects undertaken in partnership with the government. The constitutional questions will be examined by the White House Counsel’s office and the Attorney General's office. 
JFB  

La. Homosexual Couple Asserts First Amendment Challenge to Denial of Marriage License, Alleging that Same Sex Marriage Ban Enforces Religious Definition of Marriage

The First Amendment Center reports on the filing of a challenge to Louisiana’s constitutional ban on same sex marriage.  In 2004 Louisiana voters overwhelmingly passed a constitutional amendment to restrict marriage to a man and a woman. The suit mounts a First Amendment attack on the marriage ban arguing that the same sex prohibition denies access to the right to marry “based upon a religious interpretation of the nature and purpose of marriage itself." The suit goes on to assert that ‘[b]y failing to articulate a legitimate, compelling and secular interest for the restriction on marriage, the state has necessarily established a wholly religious civil institution".

JFB

FBI Ordered to Turn Over Information on Surveillance of Muslims in California

As reported by the AP, on Monday U.S. District Judge Cormac Carney ordered the FBI to provide the court with records relating to FBI investigation and surveillance of Muslims in southern California. The judge will then review the documents requested by the ACLU on behalf of Muslim individuals and organizations, such as the Council on American-Islamic Relations, that believe they have been unfairly targeted for surveillance by the FBI.  The complaints include allegations about the FBI’s planting of an informant in area mosque. ( Recent stories in the Christian  Science Monitor and Washington Post provide more information on FBI  mosque infiltration efforts.)  The Department of Justice will be given an opportunity to present objections to the release of documents based national security or privacy grounds.  In a press release on the judge’s decision, ACLU/SC staff attorney Jennie Pasquarella stated: 

“This ruling sends a clear message to the FBI that it must provide a transparent accounting of this surveillance and must cease religious profiling. We believe these surveillance records will show how the FBI infiltrated Southern California mosques and invasively monitored our clients as if members of the Muslim community were presumed criminals.”

JFB

Lessons from the Cincinnati Bible Wars of 1873

On the Religion Clause Blog, Prof. Friedman has posted a link to a video of Notre Dame historian Linda Przybyszewski ‘s presentation on Board of Education v. Minor, 23 Ohio St. 211 (OH Sup. Ct. 1873)  at the Ohio Supreme Court’s recent forum on the case.  In the Minor decision, the Ohio Sup Ct upheld the Cincinnati school board’s decision to end the practice of required classroom Bible reading in public schools. The board was responding to Catholic families’ complaints about the use of the Protestant Bible as an instructional text.  As Prof. Friedman notes, the Minor ruling presents an understanding of the constitutional necessity of church/state separation that would eventually be reflected in the modern Establishment Clause jurisprudence of the US Supreme Court. 

JFB    

First Amendment Scholarship Survey

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

1) Paul Horwitz (University of Alabama School of Law),  Demographics and Distrust: The Eleventh Circuit on Graduation Prayer in Adler v. Duval County, forthcoming in Univ.of Miami L.Rev.(2009). The abstract states:

This Article, a contribution to a symposium on the constitutional jurisprudence of the United States Court of Appeals for the Eleventh Circuit, focuses on the Eleventh Circuit's opinion in Adler v. Duval County. Adler involved a policy that permitted students to vote on whether to deliver opening and/or closing "messages" at high school graduation ceremonies. The Eleventh Circuit, sitting en banc, upheld the policy against an Establishment Clause challenge. After the Supreme Court remanded the case for reconsideration in light of its decision in Santa Fe Independent School District v. Doe, which outlawed a similar policy in the context of high school football games, the court, insisting that Santa Fe was distinguishable, again upheld Duval County's policy. I argue that the Eleventh Circuit's analysis in Adler was wrong, and indeed can be seen as little more than an act of willful resistance to the Supreme Court's opinion in Santa Fe.

Beyond this simple doctrinal criticism, however, this Article suggests that both Santa Fe and Adler are fruitful subjects of study for what they say about two issues that have drawn relatively little sustained and serious attention: the role of majoritarian elections within the Establishment Clause, and the relationship between the Establishment Clause and the demographics of religion in local communities. I argue that John Hart Ely's representation-reinforcement theory of judicial review, presented in his influential work Democracy and Distrust, can contribute significantly to our understanding of both of these issues.

In the first case, Ely's theory shows why majoritarian election processes that enable or encourage school prayer cannot generally insulate schools from Establishment Clause challenges. In the second, I argue that Ely's theory can help dislodge the usual baseline assumptions about the religious pluralism of the United States, which are accurate at the national level but collapse at the level of the overwhelmingly religiously homogeneous local communities in which many Establishment Clause cases arise. On this understanding, I argue that, contrary to some recent arguments, the Establishment Clause might best be understood as being more properly concerned with state and local establishments of religion than with federal establishments of religion.

2) Seth Barrett Tillman, Blushing Our Way Past Historical Fact And Fiction: A Response to Professor Geoffrey R. Stone’s Melville B. Nimmer Memorial Lecture and Essay. The abstract states:

Legal academics and the public are fascinated by both constitutional text and the processes by which it is interpreted. The precise role for legal academics in the interpretation of such charters is controverted. Doctrine and case law as established by the courts remain the core of academic legal discourse. Case law is, after all, the object about which doctrine is based, built, and extended. But the interpretation of constitutional text through case law comes with costs -- it seems to lack democratic legitimacy, and where unconnected to text and history, it has a tendency to fence out (even the well-educated) the public. On the other hand, when legal academics shift to text and history, their work gains populist credentials, but, at that point, the legal academic risks his privileged position. For the legal academic has no monopoly, or even highly developed expertise, with regard to textual exegesis or the best use of historical materials. In light of those attendant risks, I want to praise Professor Geoffrey R. Stone for taking on the role of exegete and historian. But that said, I find some of his specific textual and historical claims troubling. I respond to his textual and historical claims in detail below. This paper, however, has no grand normative claim of its own; it is merely an effort on my part to correct the record, and thereby to further the object pursued first by Professor Stone: “to know the truth about the Framers, about what they believed, and about what they aspired to when they created this nation.”

What follows is substantive discussion of the Attestation Clause, the Oaths and Affirmations Clause, the Sundays Excepted Clause, the Religious Test Clause, and a crtique of Stone's use of historical materials, particularly his claim in regard to a book burning at Harvard circa 1789.

Professor Stone's article, to which I respond, can be found at: Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1-26 (2008). It is posted on the UCLA Law Review website.

3)Lorenzo Zucca (King's College London School of Law), Law vs Religion, published in Camil Ungureanu and Lorenzo Zucca, eds.,  LAW, STATE AND RELIGION IN THE NEW EUROPE: DEBATES AND DILEMMAS ( CUP 2010). The abstract states:

This paper deals with the conflict between Law and Religion in Europe. It analyzes various types of conflicts that arise between those two normative systems and offers a typology of those conflicts. Illustrations of those conflicts include the role played by courts in adjudicating conflicts of rights to religious freedom and other rights; the role of the newly established Muslim Arbitration Tribunal; issues of conflict of laws dealing with the validity of poligamous marriages; and relation between State and Church. After presenting those conflicts, the paper proposes innovative ways to understand those problems in order to dispel those conflicts rather than adjudicating them.

4)  Manisuli Ssenyonjo (Brunel University - School of Social Sciences and Law), Limits on the Freedom to Manifest One's Religion in Educational Institutions in Uganda and the United Kingdom, 7 Intl J. of Const. L. 275 (2009). The abstract states: 

This article analyzes the treatment of the freedom to manifest one's religion in educational institutions in Uganda and the United Kingdom in light of recent judicial decisions by these two states highest courts, the Supreme Court of Uganda and the House of Lords. It focuses on three questions: First, are schools and universities obliged to respect the right of students to show their religion on campus? If so, can the educational institutions question the sincerity or legitimacy of religious beliefs held by students? Second, what are the limits on the freedom to display one's religion on campus? Third, is the approach adopted by the courts in Uganda and the U.K. consistent with each state's international human rights obligations?

5) Angela Campbell (McGill University - Faculty of Law ), Bountiful Voices. The abstract states:

Common portrayals of Canada’s only openly polygamous community cast it as a space frozen in time, both socially and intellectually. “Bountiful”, British Columbia is a 65-year old community comprised of followers of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). Residents espouse plural marriage as a central tenet of their faith, believing that the practice leads not only to a good terrestrial life, but also, to facilitated entry into the “Celestial Kingdom”.

Visual and written accounts of Bountiful routinely present the women of this community as submissive, silenced, and isolated. Their full-length, full-sleeved pioneer dresses, long braided hair, and the number of children often captured following or clinging to them suggest conservatism, and possibly also social regression and exploitation. Stories of abuse and coerced marriage further portray Bountiful’s wives and mothers as in need of protection, salvation and enlightenment. This imagery goes long way in bolstering current legal and policy approaches to plural marriage in Canada. In particular, the notion that gender inequality and oppression are inherent to polygamy serves to justify law’s refusal to recognize this as a valid marital form, as well as law’s criminal prohibition of plural marriage.

A look inside Bountiful reveals a picture of its female constituents that contrasts with this popular image of the FLDS wife. This paper presents results from field interviews with the women of Bountiful conducted in June 2008. In discussing their everyday lives, women demonstrated how they have shaped and applied the norms of their community – so ostensibly harmful from an outsider’s point of view – so as to serve their own needs, goals and interests. The paper thus explores the agency of Bountiful’s women exercised over matters associated with marriage and reproduction, as well as work, education and domestic management. It also exposes their depth of insight regarding Canada’s legal approach toward plural marriage. The critical perspectives and agency exhibited by Bountiful’s women calls into question the popular mythology about them, and should prompt a rethinking of some key assumptions underpinning the criminalization of plural marriage in Canada.

6) Alakh Niranjan Singh and Prabhakar Singh (University of Barcelona),  What Can International Law Learn from Indian Mythology, Hinduism and History?, 2 J. of E. Asia and Intl L. --- (2009). The abstract states: 

Modern India has been rather silent on its role in international law. This reticence remains unexplained in the comparative literature on international law. India’s history with International Relations theories dates back to ancient times. Various Hindu texts from some eight millennia ago passed over to generations by the method of “shruti” and manuscripted later, contain one of the most complete sets of international laws and relations. “Dharma” remains the central aspect to this discourse. The ICJ’s NuclearWeapon Case’s opinions, particularly those delivered by Third World judges, cited these Hindu scriptures as sources of international law. The modern international law (MIL), the paper theorises, needs a cross fertilisation from Hinduism/ Buddhism to become a universal construct. The role of India in the centre-periphery analysis of international law begs a collective answer from the Vedas, the Bhagavad Gītā, the Manu Samhita and the Arthaśāstra. In the post WWII period, India came quite close to resurrecting Hindu/Buddhist international law of peaceful co-existence. In an imitative reversal of European discourse in Panchsheel Agreement with China, India succeeded in establishing new principles of international law. This paper offers an account of the ancient Hindu international laws (HIL) of India and discusses the possibility of Indian contribution to international law.

7) Pieter Dronkers, The Place of the Sacred in the Metropolis: Political Philosophy on the Public Quest for Meaning in Life. The abstract states:

Urban space has its impact on lived religion, but, at the same time, the public domain is affected by religious practices. Since the public is shared space and therefore a common good, many political philosophers have addressed the question of the proper public place of the sacred. Over the past decades, this issue has gained new interest in the light of the changing social role of religion. In scholarly literature on this topic, many spatial metaphors, like public spheres and domains, are applied. However, discussions often remain theoretical and abstract. This contribution assesses the everyday spatial consequences of different political theories for the place of the sacred in the metropolis.

8) Nathaniel Jurist Gleicher, Note - John Doe Subpoenas: Toward a Consistent Legal Standard, 118 Yale L. J. ---(2008).  The abstract states:

This Note considers the rising trend of anonymous online harassment and the use of John Doe subpoenas to unmask anonymous speakers. Although anonymity often serves as an important shield for valuable speech, it also protects online harassment that can chill or completely silence the speech of its targets. This Note argues that the public figure doctrine should be adapted to John Doe subpoenas to distinguish between online harassment and more valued anonymous speech. It then divides John Doe subpoena standards into six constituent factors, evaluates each one, and proposes a final standard that consistently balances the needs of plaintiffs and defendants and helps judges to distinguish online harassment from other forms of anonymous speech.

9) T. J. McIntyre and Colin Scott (University College Dublin (UCD) - School of Law),  Internet Filtering: Rhetoric, Legitimacy, Accountability and Responsibility, published in Brownsword, R. and Yeung, K, eds., REGULATING TECHNOLOGIES ( Hart Publishing, 2008). The abstract states:

This paper argues that the automatic and opaque nature of internet filtering, together with the fact that it is generally implemented by intermediaries, raises new problems for the law and in particular may tend to undermine aspects of freedom of expression.

The paper starts by challenging the rhetoric underlying the use of the term “filtering” and suggests that the use of other terms such as "blocking" or "censorware" may be more appropriate.

It then considers where filtering fits into the modalities of governance and the resulting issues of legitimacy and accountability. As regards legitimacy it argues that the use of technology to exert control over internet speech frequently undermines aspects of the rule of law concerning both the process for and content of norms governing behaviour. In relation to accountability, the paper argues that where it is not clear what is being blocked, why, or by whom, the operation of mechanisms of accountability - whether by way of judicial review, media scrutiny, or otherwise - is greatly reduced.

Finally the paper suggests that, as compared with control through legal instruments, filtering may rob users of moral agency or responsibility in their use of the internet, with the implication that they may freely do whatever it is technically possible to do, with no necessity of moral engagement in their activities.

10) Mark I. Harrison and Keith Swisher (Osborn Maledon, PA), When Judges Should Be Seen, Not Heard: Extrajudicial Comments Concerning Pending Cases and the Controversial Self-Defense Exception in the New Code of Judicial Conduct, 64 NYU Annual Survey of American Law --- (2009). The abstract states: 

This work explores the ethical boundaries of judges speaking to the media and others concerning their impending or pending cases. We ultimately take a rather dim view of the practice, with particular scrutiny applied to instances in which judges defend or explain their rulings in the press in response to criticism.

The primary problem is that by commenting on the merits of pending cases over which the judge is presiding, she is elevating her personal interests (most commonly, either self-aggrandizement or self-defense) over the interests of the parties or even the more abstract interests of justice. Another problem with these extrajudicial comments in practice is that they result from, or at least are influenced by, ex parte contacts with the media-contacts that are unknown to (or at least practically uncorrectable by) the parties. Furthermore, a regime of extrajudicial speech fails properly to incentivize judges to explain their official actions where it counts, namely, in their rulings and opinions, not to the media or other external outlets. Finally, and perhaps most importantly, because the likelihood of disqualification is so high when a judge extrajudicially comments on anything close to the merits, the outspoken judge regrettably buys herself a one-way ticket off of the case. Therefore, unless the commenting judge has some (better) proof that the comment will benefit (or mitigate a detriment to) some legitimate cause other than herself, she generally should leave the extrajudicial commenting to third parties. A part-map follows.

Part I lists the pertinent ethical rules with which we will be dealing, and Part II describes their evolution through former iterations of the judicial codes. Part III then documents the drafting history of the new rules; the discernible legislative and drafting history is documented exhaustively not only to illuminate the intended meaning and spirit of the current rules, but also to provide a resource for future research on the subject. Part IV begins the substantive analysis by flagging several perplexities inherent in the text of the (old and) new rules, including potential conflicts within the text of the new rules themselves and conflicts vis-¿-vis other rules and themes of the Model Code. Part V discusses the merits of the rules and concludes that several forceful arguments counsel against extrajudicial comments on the merits of pending cases. It then discusses and critiques many of the counterarguments-none of which justifies significant extrajudicial comments. Finally, Part VI offers several general approaches and simple solutions to the problems of extrajudicial comments, including the new self-defense exception.

11) Marjorie Cohn (Thomas Jefferson School of Law) and Kathleen Gilberd,  Rules of Disengagement: The Politics and Honor of Military Dissent ( PoliPointPress, 2009). The abstract states:

The continuing occupation of Iraq and the growing war in Afghanistan are leaving permanent physical and emotional scars on a whole generation of soldiers. Not since Vietnam have so many GI's objected to a war, and never have military families spoken out so strongly for withdrawal. Marjorie Cohn's and Kathleen Gilberd's new book, "Rules of Disengagement," published by PoliPointPress, comes to the aid of distressed military personnel and their families. It examines the reasons men and women in the military have disobeyed orders and resisted the wars in Iraq and Afghanistan.

The book, which has a practical as well as theoretical focus, discusses what resisters have done, and what readers can do, to help end illegal orders and wars. It also examines race and sex discrimination in the military, including the epidemics of rape, sexual assault, and suicide in the military, as well as inadequate health care for servicemembers. It examines the dehumanization of soldiers and civilians, and the ways in which military training promotes racial and sexual violence.

The book places modern issues regarding the Iraq and Afghan wars in the historical context of earlier military dissent movements, notably during the Vietnam War. The authors analyze numerous issues of constitutional, international, and military law, including conscientious objector status, rules regarding military discharge, the right and duty to disobey illegal orders, the international laws of war and human rights, and the constitutional rights of free speech, association, assembly, dissent, and protest.
This posting contains the Introduction of the book.

12) Adam D. Thierer  (The Progress & Freedom Foundation ),  Regarding Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, FCC Filing Mb. Docket No. 09-26). The abstract states: 

The Federal Communications Commission should tread carefully in its new study of parental control tools and technologies. The agency has no authority over most of the media platforms and technologies described in the Commission's recent Notice of Inquiry. Moreover, any related mandates or regulatory actions could diminish future innovation in this field and would violate First Amendment rights.

Provided are the following conclusions:

* There exists an unprecedented abundance of parental control tools to help parents decide what constitutes acceptable media content in their homes and in the lives of their children.
* There is a trade-off between complexity and convenience for both tools and ratings, and no parental control tool is completely foolproof.
* Most homes have no need for parental control technologies because parents rely on other methods or there are no children in the home.
* The role of household media rules and methods is underappreciated and those rules have an important bearing on this debate.
* Parental control technologies work best in combination with educational efforts and parental involvement.
* The search for technological silver-bullets and "universal" solutions represent a quixotic, Holy Grail-like quest and it will destroy innovation in this marketplace.
* Enforcement of "household standards" made possible through use of parental controls and other methods negates the need for "community standards"-based content regulation.

One might argue that merely studying the marketplace poses no harm, but what raises flags here are the Commission's regulatory powers, which often run afoul of the First Amendment's prohibition against content-meddling - even indirectly - with free speech and artistic expression. In order to avoid constitutional concerns, the FCC's role should be limited to educational efforts and examination of tools available.

13) Nic Suzor (QUT School of Law), Where the Bloody Hell Does Parody Fit in Australian Copyright Law?, 13 Media & Arts Law Review 218 (2008). The abstract states:

This article examines the role of the recently introduced fair dealing exception for the purposes of parody and satire in Australian copyright law. Parody and satire, while central to Australian expression, pose a substantial challenge for copyright policy. The law is asked to strike a delicate balance between an author’s right to exploit their work, the interests of the public in stimulating free speech and critical discussion, the rights of artists who rely on existing material in creating their own expression, and the rights of all artists in their reputation and the integrity of their works. This article highlights the difficulty parodists and satirists have historically faced in Australia and examines the potential of the new fair dealing exceptions to relieve this difficulty. This article concludes that the new exceptions have the potential, if read broadly, not only to bridge the gap between humorous and non-humorous criticism, but also to allow for the use of copyright material to critique figures other than the copyright owner or author, extending to society generally. This article will argue that the new exceptions should be read broadly to further this important policy goal while also being limited in their application so as to prevent mere substitutable uses of copyright material. To achieve these twin goals, I suggest that the primary indication of fairness of an unlicensed parody should be whether or not it adds significant new expression so as not to be substitutable for the original work.

14) Nic Suzor (QUT School of Law), On the (Partially-)Inalienable Rights of Participants in Virtual Communities , 130 Media International Australia 90. The abstract states:

As virtual communities become more central to the everyday activities of connected individuals, we face increasingly pressing questions about the proper allocation of power, rights, and responsibilities. This paper argues that our current legal discourse is ill-equipped to provide answers that will safeguard the legitimate interests of participants and simultaneously refrain from limiting the future innovative development of these spaces. From social networking sites like Facebook to virtual worlds like World of Warcraft and Second Life, participants who are banned from these communities stand to lose their virtual property, their connections to their friends and family, and their personal expression.

Because our legal system views the proprietor's interests as absolute private property rights, however, participants who are arbitrarily, capriciously, or maliciously ejected have little recourse under law. This paper argues that rather than assuming that a private property and freedom of contract model will provide the most desirable outcomes, a more critical approach is warranted. By rejecting the false dichotomy between 'public' and 'private' spaces and recognising some of the absolutist and necessitarian trends in the current property debate, we may be able to craft legal rules that respect the social bonds between participants whilst simultaneously protecting the interests of developers.

15) Karen McCullagh (Salford Law School), Blogging: Self Presentation and Privacy, 17 Information & Communications Technology Law 3 (2008). The abstract states:

Blogs are permeating most niches of social life, and addressing a wide range of topics from scholarly and political issues1 to family and children’s daily lives. By their very nature, blogs raise a number of privacy issues as they are easy to produce and disseminate, resulting in large amounts of sometimes personal information being broadcast across the Internet in a persistent and cumulative manner. This article reports the preliminary findings of an online survey of bloggers from around the world. The survey explored bloggers’ subjective sense of privacy by examining their blogging practices and their expectations of privacy when publishing online. The findings suggest that blogging offers individuals a unique opportunity to work on their self-identity via the degree of self-expression and social interaction that is available in this medium. This finding helps to explain why bloggers consciously bring the ‘private’ to the public realm, despite the inherent privacy risks they face in doing so.

JFB

ACLU Threatens Suit Against TN Schools' Ban on LGBT Websites

A number of school districts in Tennessee are under fire from the ACLU for blocking student access to LGBT related websites.  According to reports here and here, the filtering software installed on school computers blocks access to sites like the Human Rights Campaign, the Gay, Straight Education Network, The Lesbian Alliance Against Defamation and other civil rights groups, but allows access to websites like Exodus, Americans for Truth Against Homosexuality and other groups that promote "conversion therapy" and initiatives against gay marriage and equality.  So far the school districts are passing the buck, claiming that the software company, Education Associates of America, decides which websites to filter.  The company says otherwise.

-Kathleen A. Bergin

Third Circuit Addresses "Choose Life" Tags

The issue of "choose life" license plates came before the Third Circuit yesterday when the court heard oral arguments in Children First Foundation v. Legreide.  The case involves a question of whether New Jersey violated the First Amendment when it declined to authorize the slogan which it deemed "too controversial."   

The Fourth, Sixth and Seventh circuits are among the many courts to have already addressed the issue, and the S.Ct. denied cert in a recent Ninth Circuit case.  Law.com provides a helpful overview of the emerging circuit split.

-Kathleen A. Bergin

Judith Krug, Founder of Banned Books Week Passes

The Chicago Tribune reports the passing of Judith Krug this past weekend in Evaston, Illinois.  Krug is probably best remembered as the founder of Banned Books Week, the American Library Association's annual event that began in 1982 as a call to end censorship in libraries and public schools.  She directed the Association's Office of Intellectual Freedom since its founding in 1967, and had also establish a foundation to help litigants pay the cost of bringing free speech cases.

A sad and notable passing.

-Kathleen A. Bergin 

First Amendment Scholarship Survey

Here is this week’s collection of newly available scholarship addressing First Amendment issues:

1) Jill I. Goldenziel (Climenko Fellow, Harvard Law School ),Sanctioning Faith: Religion, Politics, and U.S.-Cuban Relations, 25 Journal of Law and Politics --- (2009). The abstract states:

Fidel Castro's government actively suppressed religious life in Cuba for decades. Yet in recent years Cuba has experienced a dramatic flourishing of religious life. Since the fall of the Soviet Union, the Cuban government has increased religious liberty by opening political space for religious belief and practice. In 1991, the Cuban Communist Party removed atheism as a prerequisite for party membership. One year later, Cuba amended its constitution to deem itself a secular state rather than an atheist state. Since that time, religious life in Cuba has grown exponentially. All religious denominations, from the Catholic Church to Afro-Cuban religious societies and the Jewish and Muslim communities, report increased participation in religious rites. Religious social service organizations like Caritas have opened in Cuba, providing vital social services to Cubans of all religious faiths. These religious institutions are assisted by groups from the United States traveling legally to Cuba on religious visas and carrying vital medicine, aid, and religious paraphernalia.

What explains the Cuban government's sudden accommodation of religion? Drawing on original field research in Havana, I argue that the Cuban government has strategically increased religious liberty for political gain. Loopholes in U.S. sanctions policies have allowed aid to flow into Cuba from the United States via religious groups, allowing the Cuban government to open a controlled religious marketplace. The Cuban government has learned from the experience of similar religious awakenings in post-Communist states in Eastern Europe and has shrewdly managed the workings of religious organizations while permitting individual spiritual revival. By softening its anti-religious stance, the Cuban government has opened the door to religious pluralism on the island while closely monitoring religious groups to prevent political opposition. As the Obama Administration has already begun to ease U.S. Sanctions on Cuba, the U.S. Government must gain a broader understanding the relationship between Cuban religion, civil society, and democratic freedoms.

2) Andrew P. Morriss (University of Illinois College of Law) and and Benjamin D. Cramer (Case Western Reserve University School of Law, Center for Business Law and Regulation), Disestablishing Environmentalism. The abstract states:

The debate over environmental policy is increasingly conducted in language with strong religious overtones. Both proponents and opponents of various environmental policies appeal to religious doctrine to support their positions: Those who question human-caused global warming are labeled "heretics," while appeals for environmental "stewardship" echo Biblical texts. Religious groups play an important role in defining environmental policy issues, and both supporters and critics of specific environmental policy views have labeled particular sets of beliefs about the environment a "religion."

In this Article we engage in a thought experiment, arguing that there are valuable lessons to be learned from treating Environmentalism as if it were a religion and therefore subject to the First Amendment's prohibition on laws "respecting an establishment of religion." In particular, the consideration of the economics of the Establishment Clause - perhaps better termed the economics of disestablishment - offers important insights into how to structure environmental policies in a way that can improve environmental quality.

3) Samuel J. Levine (Pepperdine University School of Law ),The Supreme Court's Hands-Off Approach to Religious Doctrine: An Introduction, 84 Notre Dame L. Rev.--- (2009). The abstract states:

Although the current state of the United States Supreme Court's Religion Clause jurisprudence is an area of considerable complexity, the Court's approach is largely premised upon a number of basic underlying principles and doctrines. This Symposium issue explores an underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate the Court's approach. The program description invited a variety of modes of analysis, ranging from descriptive considerations of the extent to which the Court's doctrine can, indeed, be characterized as hands-off, to normative justifications for - and critiques of - the Court's approach, to more practical and consequentialist arguments supporting or opposing the Court's position. Taken together, the essays in this Symposium demonstrate wide areas of disagreement among scholars as to both the conceptual underpinnings and the normative and policy justifications for the Supreme Court's hands-off approach to questions of religious practice and belief. In addition, there appears to be a correlation between scholars' views toward the hands-off approach and their broader attitudes toward the function of religion and the Religion Clauses in the context of American society. To the extent that the Court likewise premises its hands-off approach upon a more general Religion Clause jurisprudence, it remains to be seen whether, along with changes in other areas of Religion Clause doctrine, the Supreme Court might rethink both the conceptual and substantive components of the hands-off approach.

4) Steven Semeraro (Thomas Jefferson School of Law), Distinguishing the Right of Publicity: Property Rights, Free Speech Privilege, and Competition Policy . The abstract states:

The right of publicity is an enigmatic property right. Its many critics argue that it should not be a property right at all, because (1) it is unnecessary to stimulate the pursuit of fame; (2) unneeded to manage the value of publicity; and (3) undeserved in any recognized moral sense. Yet, this ostensibly persuasive critique has had little practical impact. The right of publicity today is stronger than ever.

This article contends that the prevailing critique of the right of publicity has failed to influence the courts in large part because each quiver in its arsenal would be just as fatal were it aimed at any form of property right. To justify denying property-right status to the right of publicity, one needs to distinguish that right from other types of property. Because the existing critique applies across the board, it cannot justify singling out the right of publicity.

In rejecting the broad critique and accepting the right of publicity as a valid property right, many courts have been nonetheless uncomfortable with the right's broad reach. The prevailing view has been that it restricts too much speech, and must be limited to conform to the First Amendment. This approach has been criticized for being insufficiently sensitive to speech interests, because courts are incompetent to judge the social value of particular forms of speech. This article contends that attempting to shape a property right with reference to free speech interests is doomed to fail, because individuals generally have no right to use the property of another to speak. If publicity is property, then it will restrain speech interests just as other forms of property do. After all, you cannot lawfully set up a soap box in my front yard.

If one accepts the right of publicity as a valid property right, competition policy is the most fruitful ground on which to restrict publicity rights. Unlike free speech interests, competition policy does limit the scope of property rights, and courts are fully competent to judge the competitive effects of recognizing publicity rights in different contexts. To the extent that recognizing a right of publicity would restrain competition and create market power in a celebrity, a court would be fully justified in limiting the celebrity's publicity rights, just as antitrust law generally limits a monopolist's other property rights. Where a celebrity has no market power, by contrast, publicity rights would be fully enforceable. Applying this approach would (1) validate the results in a number of controversial right-of-publicity cases; (2) compel a different result in a few cases; and (3) more effectively justify court decisions in areas such as advertising, news reporting, and biography, that have been relatively uncontroversial.

5) Nat Stern (Florida State University College of Law), Commercial Speech, 'Irrational' Clients, and the Persistence of Bans on Subjective Lawyer Advertising, forthcoming in Brigham Young University Law Review. The abstract states:

Notwithstanding a string of defeats in the United States Supreme Court, the organized legal profession has hardly relented in its efforts to limit lawyer advertising. Among the most dubious restrictions to which many states have clung is the prohibition on "self-laudatory" claims or other subjective representations by attorneys. This Article argues that a categorical ban on such claims rests on premises at odds with the Court's commercial speech jurisprudence. In particular, the prohibition clashes with the Court's disapproval of sweeping restrictions rooted in paternalistic assumptions about the public's capacity to assess commercial advertising. Admittedly, the Court has indicated some latitude for states to curb representations about legal services that are not susceptible to objective verification. Given the broader foundations of commercial speech doctrine, however, these pronouncements cannot be taken to support wholesale suppression of attorney advertising that exceeds the narrow presentation of data. On the contrary, ambiguities in the application of commercial speech principles to such provisions should be resolved in favor of the doctrine's fundamental impulse in favor of expression. Part I provides an overview of the Court's commercial speech doctrine, including discrete treatment of cases involving lawyer advertising and solicitation. Part II sets forth central tenets underpinning the Court's approach to commercial speech. Part III examines the tension between these principles and categorically forbidding self-laudatory and other subjective attorney advertising.

6) Audrey Guinchard,  Hate Crime in Cyberspace: The Challenges of Substantive Criminal Law , forthcoming in Information and Communication Technology Law. The abstract states:

Hate crime evokes hate speech, but to assimilate one with the other would not do justice to the diversity of behaviors encompassed by the expression "hate crime". A first overview of the notion is necessary in order to highlight the key features of offenses involving hatred. A particular emphasis will be given to the specificity of cyberspace hate crimes both in the UK and in France. This comparison will enable us to tackle the main issue cyber-hate raises: that of the legitimacy and practicality of criminalizing behaviors related to hatred on the internet. The debates may not be specific to hate crimes but they are acute for at an international level, crime notably limits a freedom of expression which does not have the same meaning both legally and culturally. The Convention on cyber crime will also be looked at, especially that its critics argue that it did not go far enough into protecting victims of hate crimes at an international level.

7) Robert J. Bloomfield (Cornell University - Samuel Curtis Johnson Graduate School of Management) and and Benjamin Duranske(Pillsbury Winthrop LLP), Protecting Children and Virtual Worlds . The abstract states:

Advances in virtual world technology pose risks for the safety and welfare of children. Those advances also alter the interpretations of key terms in applicable laws. For example, in the Miller test for obscenity, virtual worlds constitute places, rather than "works," and may even constitute local communities from which standards are drawn. Additionally, technological advances promise to make virtual worlds places of such significant social benefit that regulators must take care to protect them, even as they protect children who engage with them.

8) Andrea Maggipinto and Ezio Visconti (University of Bologna - Research Center of History of Law, Philosophy and Sociology of Law, and Computer Science and Law), A Normative Approach to Democracy in the Electronic Government Framework in IFIP INTERNATIONAL FEDERATION FOR INFORMATION PROCESSING, Springer, Boston, Vol. 280, 2008. The abstract states:

The process of modernization in the public administrations is considered to be the result of the implementation of computer science applications and digital technologies in the Public Administration (PA) for achieving institutional functions. The so called "electronic government" is one of the key objectives laid out in DG Information Society's i2010 Action plan, in which Europe aims to bring administrations closer to citizens, for example by providing on line public services. In this scenario of changing of means and goals, the electronic dialogue between agents - i.e. Public Administrations, citizens and enterprises - represents the key element for the development of the public sector. But e-government is neither a simple tool to provide better services in a better way by PA. to citizens nor a simple question of downsizing the administration (the back office) and up-sizing services (the front-office) - i.e. a rebalancing from administration to services on a planned and sensible basis. Modern democracies are facing new challenges through the communication and information technology. The expression "electronic democracy" is characterized by the modality of citizens direct participation in the political life. In truth, this expression evokes wider and universal values.

9) Daphna Birenbaum-Carmeli (University of Haifa), Your Faith or Mine: A Pregnancy Spacing Intervention in an Ultra-Orthodox Jewish Community in Israel , 16 Reproductive Health Matters185 (November 2008). The abstract states:

Ultra-orthodox (haredi) Jews in Israel have an exceptionally high fertility rate of 7.7. As most fathers spend their days studying the Bible, the women struggle to support their large families under severe economic pressures. Some women experience maternal exhaustion coping with this life situation. Contraception for pregnancy spacing raises myriad dilemmas in the haredi community, however, many of which apply to promoting family planning in religious settings more generally. In a health promotion course for 23 haredi registered nurses at the University of Haifa in 2006-2007, pregnancy spacing was selected as the subject of the class project, the main aim of which was to convey an influential health message in a culturally acceptable manner. As the issue was debated, it was agreed the project should also address a range of women's health problems as well as pregnancy spacing. Thus, maternal nutrition, pelvic floor tone, dental health, maternal exhaustion and competition over number of children were added. A brochure was prepared and widely distributed in the haredi community, where it was well received. This paper describes the classroom dynamics during the planning and application of the project. It illustrates the importance of cultural awareness when addressing sensitive issues and communities with particular cultural dispositions.

JFB

Texas Lawmakers Closer to Passing A Statutory Shield Law

Lawmakers in Texas have proposed their own version of the Free Flow of Information Act, seeking to establish standards that govern when a journalist would have to disclose confidential information in response to a subpoena.  Texas is one of the few states where journalists are not protected by a statutory shield law.  That could change if SB 915 comes up for a vote.  Though a previous bill stalled on a technicality, committees in both the House and the Senate have already approved the new version. 

Link here for a comprehensive 'mouse-over' map of shield statutes nationwide.

-Kathleen A. Bergin

  

Recently Invalidated FDA Decision to Restrict Access to Plan B Emergency Contraceptive Highlights How Political Influence of Some Religious and Ideological Constituencies Displaced Scientific Analysis at Agency

In an essay on Findlaw, Prof. Marci Hamilton examines the recent ruling by Federal District Judge Edward Korman in Tummino v. Torti, which found that the FDA’s decision to restrict OTC sales of the Plan B emergency contraceptive was the product of an arbitrary and capricious administrative process in which non-medical considerations were allowed to outweigh relevant health and safety information.  In particular, the court noted how the Bush White House and the then FDA Commissioner interfered in the review process in order to mollify members of ideological constituencies hostile to Plan B.
JFB
 

U-Md President Announces Decision to Retain Tradition of Commencement Prayer

On Thursday University of Maryland President C.D. Mote Jr. issued a statement that he would not discontinue the practice of including a prayer in the school’s commencement ceremony.  A majority of the university’s Faculty Senate had voted to recommend that a religious invocation no longer be a part of graduation exercises in order to avoid marginalizing those in attendance whose beliefs did not correspond to those represented by the content of the presented prayer. The Baltimore Sun and Washington Post provide coverage of the President Mote’s decision. 

Thanks to Rachel Levinson, Senior Counsel for the American Association of University Professors, for providing update information on the U Md. President’s decision.

JFB

 

Dover AFB Allows Media to Witness Return of Coffin of Soldier Killed in Afghanistan

As noted by the First Amendment Center website, members of the press were allowed to view the ceremony conducted at Dover Air Force Base this week when the body of Air Force Staff Sgt. Phillip Myers, 30, arrived this week.  Staff Sgt. Myers died after being hit by an IED in Afghanistan.  Under a new Department of Defense policy, media members will be allowed to witness and photograph the solemn return protocol if the deceased soldier’s family agrees. The New York Times and Washington Post provide additional coverage of the Dover event, the first time since 1991 such media access was permitted.

JFB

 

Maryland Faculty Senate Votes to Discontinue Invocations at University Graduations

The Washington Post reports that this week the University of Maryland Faculty Senate voted 42  to 14 to discontinue the traditional practice of beginning the commencement ceremony with a religious invocation. The University President will have to approve the change in order for it to become effective.  Faculty Senate Chair Kenneth Holum explained the vote as reflecting a desire to be more sensitive to the diversity of the university community, including non-believers. He observed that the prayers offered at commencements have tended to be Christian “in form and motivation”, sending an exclusionary message to others present. A Faculty Senate subcommittee on human relations had been examining the ceremonial prayer question for several years, looking at the practices of what Maryland considered peer institutions, such as Berkeley, Michigan, and Illinois, which do not have prayer at their commencements.  The Post article quotes Maryland University System Chancellor William Kirwan as saying that he believed public universities were increasinglyopting not to offer prayers at such events.

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Nevada District Settles Case Alleging School Officials Failed to Respond to Muslim Student’s Complaints of Harassment

The AP and Fox News report that the Washoe County School District has agreed to pay $350,000 to Jana Elhifny, an Egyptian student who had enrolled in a local high school in 2003 and who alleged that other students spat on her, threw food at her, and threatened to kill her on September 11, 2003. Elhifny, who returned to Egypt in 2004, charged that she had been targeted because she wore a hijab and that school officials responded to her harassment complaints by telling her that she had to expect such reactions and suggesting that she stop wearing her headscarf to prevent future expressions of hostility.  Explaining the decision to settle the case as necessary to curtail potential litigation costs, school district officials continue to deny that they refused to help Elhifny and contend that it was her inability to provide information about those who had harassed her that limited the school’s capacity to respond.  A non-Muslim friend who charged that she was also harassed after she tried to help and defend Ms. Elhifny will also be paid $50,000. As another part of the settlement, the district agreed to examine and revise its harassment and discrimination policies to prevent future incidents of this kind. 

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Internationalism A Threat to American Free Speech Protections?

On The Volokh Conspiracy, Eugene Volokh asks readers to consider how a move toward internationalism could alter the content of American free speech protections in circumstances where international norms would subject expression such as Internet hate speech to more restriction than US constitutional law would permit.  Volokh’s post was prompted by his examination of Yale Dean Harold  Koh’s article, On American Exceptionalism, 55 Stan. L. Rev. 1479 (2003), in which Koh considered how what he identifies as a "transnationalist approach" would address divides between American law and international norms. Dean Koh was recently nominated to serve as Legal Adviser to the State Department.

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