First Amendment Law Prof Blog

First Amendment Scholarship Update

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

1) Andrew Koppelman (Northwestern University), Corruption of Religion and the Establishment Clause, 50 Wm. & Mary. L. Rev. 1831 (2009). The abstract states:

Government  neutrality  toward  religion  is  based  on  familiar considerations:  the  importance  of  avoiding  religious  conflict, alienation  of  religious  minorities,  and  the  danger  that  religious
considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This Article explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion.  If  the  religion-protective argument  for disestablishment  is  to be useful  today,  it  cannot  be  adopted  in  the  form  in  which  it  was understood in the seventeenth and eighteenth centuries, because in that form it is loaded with assumptions rooted in a particular variety of Protestant Christianity. Nonetheless, suitably revised, it provides a powerful reason  for government, as a general matter, to keep  its hands off religious doctrine. It offers the best explanation for many otherwise mysterious rules of Establishment Clause law.

2) Eric Segall (Georgia State University - College of Law), Mired in the Marsh: Legislative Prayers, Moments of Silence, and the Establishment Clause, forthcoming in U. Miami L. Rev.(2009). The abstract states:

In numerous communities throughout the United States, the American people are fighting over legislative prayer, and the circuit courts of appeals are struggling over how to handle the problem. Part of the reason there has been so much litigation over the validity of legislative prayer is the incomplete treatment the Supreme Court gave this issue in Marsh v. Chambers, where the Court upheld Nebraska’s long time use of a legislative chaplain to deliver prayers before conducting official business. Applying no doctrinal test, the Supreme Court simply said that the Founding Fathers began their meetings with legislative prayers, there have been such prayers ever since, and therefore the Court would not rule them unconstitutional. This purely historical test was not reflective of Establishment Clause doctrine at the time, and is still not today. The Court in Marsh failed to articulate any nonhistorical legal principle supporting its decision and also failed to lay down specific rules distinguishing constitutional from unconstitutional legislative prayers. Thus, it has been up to the lower federal courts to devise guidelines to govern the constitutionality of legislative prayer. The result has been, in a word, chaos.

Twenty-six years after Marsh, it is now clear that the Supreme Court must revisit this issue. The Circuits are struggling over whether legislative prayers must be sectarian or nonsectarian, and there are many different procedures used by state legislatures and local commissions to choose their clergy, some of which seem constitutionally problematic. Unless the Supreme Court provides clearer guidance, there will continue to be significant, expensive, and divisive litigation on these questions in the lower courts throughout the United States.

Part I of this article reviews the Eleventh Circuit’s recent decision in Pelphrey v. Cobb County, which upheld sectarian legislative prayer. Part II discusses one of the difficult issues left unanswered by Marsh - whether legislative prayer has to be nonsectarian to be constitutional. Part III argues that the Court should overturn Marsh otherwise numerous core Establishment Clause values will be infringed by state and local governments favoring religion over nonreligion and some religion (almost always Christianity) over other religions. In its place, legislatures could constitutionally start their sessions with moments of silence allowing those who wish to pray that opportunity without restriction and without offending those members of the public and governmental bodies who do not wish to appeal to divine guidance before they conduct official government business.

3) Steven Goldberg (Georgetown University Law Center), Does the Wall Still Stand? The Implications of Transhumanism for the Separation of Church and State. The abstract states: 

Suppose a required course in a public high school taught transhumanism. The course covered topics such as how nanotechnology can improve brain functioning, and it took a positive, optimistic perspective on the possibility that we can become posthuman beings. Would such a course constitute an unconstitutional establishment of religion? The Malnak test and other sources suggest that the answer might be yes. From the perspective of a non-transhumanist, it seems that it would be honest and sensible for transhumanists to embrace the idea that they offer an alternative to traditional religions.

4) Steven Goldberg (Georgetown University Law Center ), The Book of Job and the Role of Uncertainty in Religion and Law . The abstract states:

The Book of Job depicts the radical uncertainty that results when people try to comprehend God. Job has had an extraordinary influence on philosophy and literature, and its message on the limits of human knowledge has even been echoed in the words of great scientists. Surprisingly, however, it has had little influence on the rhetoric or approach of lawyers and judges. The legal profession, which confronts uncertain outcomes daily, has reduced uncertainty to a mundane calculation of odds, while ignoring the more fundamental idea of the unknown because that idea would paralyze legal work.

5) Roberta F. Mann (University of Oregon School of Law), Is Sharif's Castle Deductible?: Islam and the Tax Treatment of Mortgage Debt, 17 Wm & Mary Bill Rts J. 1139 (2009). The abstract states:

This article examines the tax treatment of Islamic mortgage alternatives and considers the cultural and constitutional implications of the tax treatment of mortgage debt. Islamic law cannot be separated from the religion of Islam, and one of the primary tenets of Islamic law is the prohibition of riba, which is defined by some Islamic jurists as the payment of interest on any loan. Financing institutions, working with Muslim religious leaders, have developed a number of financing instruments that do not violate the prohibition against riba, thus facilitating home ownership for those Muslims who do not feel comfortable with a traditional mortgage. This article considers whether payments under such instruments should qualify for the home mortgage interest deduction and the potential consequences of either permitting or denying a deduction for such payments. I will discuss the constitutional implications of denying a tax deduction and administrative and regulatory options to accommodate tax deduction of payments under Muslim mortgage alternatives. Finally, I conclude that the issue of religious discrimination in the tax treatment of housing should motivate remodeling the home mortgage interest deduction.

6) Zachary R. Calo (Valparaiso University School of Law), Catholic Social Thought, Political Liberalism, and the Idea of Human Rights. The abstract states:

As the dominant moral vocabulary of modernity, the language of human rights establishes significant points of contact between the religious and the secular. Yet, the human rights movement increasingly finds itself in a contested relationship with religious ideas and communities. Even as the idea of human rights draws on the inherited moral resources of religion, the movement, at least in many of its dominant institutional and intellectual expressions, has established itself as an autonomous moral discourse. In this respect, the human rights movement, as an expression of western liberalism, presents itself as a totalizing moral theory that challenges countervailing theological accounts of human rights. This paper considers the distinctive account of human rights which has emerged out of Catholic social thought’s engagement with political and economic questions. Particular attention is given to the process by which Catholic thinking about human rights has embraced the possibilities of political liberalism while also bounding liberalism within a particularistic theologically-informed account of the human person. The distinctiveness of the Catholic account of human rights raises questions about the role of Catholicism, and religious communities more generally, in shaping the law of human rights. To what extent can secular and religious approaches to human rights law find common cause and overlapping consensus? How does a Catholic account of human rights rooted in theological anthropology relate to a regnant secular tradition which rests on theological categories shorn of religious content (and which has become its own intellectual and moral tradition that is, in important respects, a counter-theology)? While a Christian theological jurisprudence must maintain a concern with the common good, the fractured moral consensus of late modernity equally demands that the goods identified be described with reference to the internal resources of the tradition. Catholicism, in this respect, might both advance and challenge the universalistic impulses of the human rights movement.

7) Zachary R. Calo (Valparaiso University School of Law), Review of The Teachings of Modern Protestantism on Law, Politics, & Human Nature. Edited by John Witte, Jr. And Frank S. Alexander,
forthcoming in Journal of Church and State.

8) Ross B. Emmett (James Madison College), Man and Society in Adam Smith’s Natural Morality: The Impartial Spectator, the Man of System, and the Invisible Hand . The abstract states:

One often hears the argument that Adam Smith’s Theory of Moral Sentiments provides a basis for the construction of a morality independent of a religion based on revelation. Central to this argument is Smith’s impartial spectator, whose study of human motivation through observation of the diversity of our actions shapes our capacity to both judge the motives of our present actions and inform our future ones. To the extent that one’s moral imagination attends to the impartial spectator, one’s judgment of actions will conform to a moral standard founded on human experience rather religious revelation.

One also hears frequently the argument that Smith’s defense of his system of natural liberty in the Wealth of Nations is simultaneously the defense of an Augustinian-like theodicy in which God provides a natural remedy to human sinfulness. Central to this argument is the invisible hand of market forces, which allocate resources in a way conducive to our common interests, even though their placement is directed by the personal interests of the individual economic actors. To the extent that our social interactions are framed by institutions that allow natural liberty, they it be mutually beneficial to participants in a way that could not be approximated by external direction.
My purpose is to connect these two arguments via another figure from TMS, the man of system.

9) Miguel E. Larios (The John Marshall Law School ), E-Publius Unum: Anonymous Speech Rights Online. The abstract states:

The First Amendment to the United States Constitution prohibits Congress from enacting laws abridging the freedom of speech. However, the text of our Constitution and the First Amendment do not expressly address the issue of anonymous speech. Records from the state ratifying conventions and from the First Congress, the drafters of our Bill of Rights, lack any mention of anonymous expression. Still, anonymous speakers and their works played an immensely important role in the founding era and throughout our Nation’s history.

This article explores the interplay of the right to engage in anonymous speech and the freedom of online speech. Part I of this article offers a brief history of anonymous speech from the invention of the printing press until today. Part II discusses two of the most important decisions concerning anonymous speech from the U.S. Supreme Court, as well as state high courts and lower federal courts. Part III argues that the First Amendment protects the right to speak anonymously online. I conclude with a brief discussion of the future of anonymous online speech rights.

10) Robert Sprague (University of Wyoming College of Business) and Mary Ellen Wells, Regulating Online Commercial Speech: Oh, What a Tangled Web. The abstract states:

New forms of marketing, in which companies attempt to minimize or hide their involvement, coupled with new forms of communications media, create an environment in which commercial and noncommercial speech are intermingled, blurring their distinction. While it is clear that commercial speech is afforded only limited constitutional protection, the U.S. Supreme Court has never adequately defined what constitutes commercial speech. And courts appear to be expanding the scope of the commercial speech doctrine. Contemporaneously, the Federal Trade Commission is attempting to revise its regulations to incorporate the use of new technologies by marketers, potentially holding them liable for deceptive practices resulting from the buzz they create on the Internet. Yet, at the same time, existing federal law may provide marketers immunity for online content. After a discussion and analysis of these issues, this paper concludes that: new communications media are developing which blend commercial and noncommercial speech; Internet communications media present a new and complex platform for communications which current laws and regulations are having difficulty managing, and which may even be contradictory; and, most importantly, with an expansive view of what constitutes commercial speech, some noncommercial speech contained in these developing communications media will be unnecessarily restricted because of the lack of a precise judicial definition of commercial speech.

11) Kenneth W. Starr (Dean, Pepperdine UniversitySchool of Law), From Fraser to Frederick: Bong Hits and the Decline of Civic Culture, 42 UC Davis L. Rev. 661 (2009). The abstract states:

Student speech in public schools has again been thrust into the limelight with the Supreme Court's recent Morse v. Frederick decision. In this Article, former Solicitor General and Circuit Judge Kenneth W. Starr raises important questions about the broad cultural impact of the student speech cases. First, the Article highlights American educational thought's historically communitarian roots. Next, the Article traces the Court's student-speech jurisprudence through the Tinker, Fraser, and Fredrick decisions. Finally, the Article underscores the conquest of libertarian educational ideals over normative communitarian ones at the Court.

12) Edward Balleisen(Duke University), Private Cops on the Fraud Beat: The Limits of American Business Self-Regulation, 1895–1932, 83 Business History Review 113 (Spring 2009). The abstract states:

From the late 1890s through the 1920s, a new set of nonprofit, business-funded organizations spearheaded an American campaign against commercial duplicity. These new organizations shaped the legal terrain of fraud, built massive public-education campaigns, and created a private law-enforcement capacity to rival that of the federal government. Largely born out of a desire among business elites to fend off proposals for extensive regulatory oversight of commercial speech, the antifraud crusade grew into a social movement that was influenced by prevailing ideas about social hygiene and emerging techniques of private governance. This initiative highlighted some enduring strengths of business self-regulation, such as agility in responding to regulatory problems; it also revealed a weakness, which was the tendency to overlook deceptive marketing when practiced by firms that were members of the business establishment.

13) Alfred C. Yen (Boston College Law School), AFirst Amendment Perspective on the Construction of Third Party Copyright Liability, forthcoming in B.C. L. Rev. (2009) The abstract states:

This Essay offers preliminary thoughts about the application of the First Amendment to third party copyright liability. For some time, commentators have warned that third party copyright liability chills speech, but relatively few inquiries have ventured beyond the surface of this observation. This is perhaps explained by the judiciary’s general reluctance to apply the First Amendment to copyright in any meaningful way. Court after court has stated that copyright raises few, if any, First Amendment problems because copyright encourages the production of speech. To the extent that copyright occasionally runs the risk of suppressing speech in a constitutionally problematic way, doctrines such as the idea/expression dichotomy and fair use make sure that copyright does not expand to the point that where First Amendment objections become real.

The standard explanation of copyright’s relationship to the First Amendment suggests that there is no need to give particular attention to third party issues. After all, those facing third party copyright liability will often respond by preventing others from infringing. If the scope of copyright’s suppression of speech is compatible with the First Amendment, then presumably the speech prevented by potential third party defendants is similarly compatible.

Closer inspection reveals, however, that third party copyright liability increases copyright’s chill by separating the benefits of speaking from the burdens of liability. This changes the incentives faced by key actors. Consider, for example, a newspaper accused of infringement posting on its website a book review that contains a long quote. A newspaper in this position must decide whether to remove the review from its website. In doing so, it will weigh the risk of liability and the cost of defending itself against the value gained from continuing to speak. For purposes of contrast, consider next the internet service provider accused of third party copyright infringement because it hosts the servers where the newspaper posted the book review. In deciding whether to remove the book review from the Internet, the service provider will consider the likelihood of liability and the cost of defense, but no countervailing value related to the service provider’s own speech will offset these potential costs, for that value is enjoyed by the user, not the service provider. Accordingly, the service provider will be more willing to remove the accused book review from the Internet than the newspaper would be, and indeed most third party defendants will be quicker to suppress speech than primary speakers.

The relatively high risk of chill associated with third party copyright liability suggests that the First Amendment is particularly relevant to the proper construction of this area of law. Indeed, First Amendment principles have a great deal to say about the use of vicarious liability, contributory liability, and inducement, as well as the appropriateness of presumed damages in third party copyright liability. This requires two steps. First, the Essay will describe the present contours of third party copyright liability and the open questions that might be influenced by First Amendment concerns. Second, the Essay will connect the construction of third party copyright liability to the chilling of speech. In doing so, the Essay will use insights borrowed from New York Times v. Sullivan and Gertz v. Robert Welch to answer some of the open questions concerning the construction of third party copyright liability. Among other things, the Essay argues that the First Amendment requires a narrow application of vicarious liability and that presumed damages cannot be granted in many cases of contributory liability.

14) Wendy E. Parmet (Northeastern University - School of Law), Introduction to “Populations, Public Health and the Law” (Georgetown University Press, 2009). The abstract states:

Law plays a crucial role in protecting the health of populations. Whether the public health threat is bioterrorism, pandemic influenza, obesity, or lung cancer, law is an essential tool for addressing the problem. Yet for many decades, courts and lawyers have frequently overlooked law’s critical importance to public health. Populations, Public Health, and the Law demonstrates why public health protection is a vital objective for the law and presents a new population-based approach to legal analysis that can help law achieve its public health mission while remaining true to its own core values. The Introduction presents the challenges that public health presents for legal analysis as well as why it is critical that that legal analysis keep population health in mind. The subsequent chapters expand that discussion and apply population-based legal analysis to federalism, due process, commercial speech, tort law, health law and international human rights law, while at public health issues that include food safety, pandemic preparedness, tuberculosis, and death and dying.

15) RonNell Andersen Jones (Brigham Young University J. Reuben Clark Law School) , Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, forthcoming in Wash. L. Rev. The abstract states:

Forty years ago, at a time when the media was experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical data is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change — albeit on a different trajectory — as readership and public reputation plummet. As the dialogue on this complicated topic once again reaches full volume, intensified by a series of hotly contested federal reporter’s privilege bills, the question of the appropriate legal rule again is inextricably intertwined with the question of the real-world impact of subpoenas on the operations of the media. This 'law-in-action' article aims to offer the legislators and policymakers of today what Blasi offered them four decades ago. It reports the results of a large-scale empirical study, presenting both quantitative and qualitative assessments of the effects that subpoenas have on daily newspapers and local television news operations, and re-explores the questions of changing legal climate and media awareness of legal protection. The article concludes that media subpoenas have a substantial impact on newsgathering, warranting federal legislative attention. But it also concludes that the traditional press is ill-informed of the contours of its own legal protection, which may compound the difficulties the media experiences in this area.

JFB

Global Free Speech Update

Venezuela: Regulators continue to investigate Globovision for inciting a "panic and anxiety" in reports that criticized the government's emergency response record.  Two years ago, regulators pulled the license of a Radio Caracas Television, leaving Globovision the only remaining anti-Chavez station on the public airwaves.

Netherlands: With elections to the European Parliament coming up next week, Dutch politician Geert Wilders' Freedom Party is gaining in the polls.  In 2008, the release of Wilders' radically anti-Islamic film Fitna set off an international controversy, and has since led to charges of incitement being filed in Amsterdam and Jordan.  In February, the UK banned him from entering the country. 

Africa: All Africa.com posts a  summary of Amnesty International's regional report on human rights in Africa.  Read it and weep. 

 

Belarus: Amnesty cites continued concern over detentions and the use of force against demonstrators, the harassment of journalists, and restrictions on a free media.

 

United States: The ACLU is calling for an end to "ideological exclusions" that bar foreign scholars from entering or remaining in the US without adequate cause.  Lawyers for the organization appeared in court this week in the case of South African scholar Adam Habib whose visa application was denied on account of unspecified national security concerns.  The Habib case is part of a larger pattern of ideological exclusions undertaken against outspoken critic of US foreign policy and the war in Iraq.  A coalition of free speech advocates expressed concern in a letter delivered to the government in March.

Europe:  A study by the Center for Intellectual Property and Information Law found that copyright laws adversely affect access to digital material by beneficiaries (libraries, educators and the like) normally excepted from copyright restrictions.  The report calls for a revision of Article 6(4) of the Information Society Directive.

Sotomayor: More First Amendment Summaries

More resourses that include Judge Sotomayor's First Amendment decisions:

• First Amendment Center
• Reporters Committee For Freedom of the Press
• Religion Clause
• Washington Post
• Chronicles of Dissent

California Appeals Violent Video Game Ruling

The State of California has asked the US Supreme Court to review a case that struck down a 2005 violent video game law.

The law prohibits the sale or rental of violent video games to persons under 18, and requires retailers to check a consumer's id at the point of sale or risk a $1000 fine.  The Ninth Circuit in February upheld a federal district court decision that found the law unconstitutional.

The petition for cert asks: (1) whether the First Amendment bars the state from restricting violent video game sales to minors, and (2) whether the state must demonstrate a direct causal link between violent video games and resulting harm to minors before prohibiting their sale.

-Kathleen A. Bergin

Sotomayor's Balanced Record

Check out Scotusblog for a quick and handy overview of Judge Sotomayor's opinions.  Loads of good reading here, and more of a balanced record than her opponents are likely to acknowledge.

Here are a few notable First Amendment cases:

• Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir., 2002) (rejecting First Amendment challenge to 'Mexico City Policy' denying funds to foreign organizations that support abortion);

• Kraham v. Lippman, 478 F.3d 502 (2d Cir. 2007) (rule prohibiting political party officials from receiving a court appointment does not violate freedom of association);

• Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002) (dissenting from award of summary judgment to NYPD following termination of desk officer who engaged in racially inflammatory speech);

• Ford v.  McGinnis, 352 F.3d 382 (2d Cir. 2003) (finding First Amendment violation in prison's decision to deny holiday meal to inmate);

• Duamutef v. Hollins, 297 F.3d 108 (2d Cir. 2002) (First Amendment not violated by 30 day "mail watch" of inmate previously involved in prison disturbance).

-Kathleen A. Bergin

Israel to Consider Restrictions On Arab Protest Celebration

An Israeli Cabinet committee approved a bill that would make the observance of Nakba punishable by up to 3 years in prison.  'Nakba,' or 'day of the catastrophe,' marks the founding of the state of Israel in 1948 and is recognized on May 15 by Arabs around the world.  A separate bill would require anyone applying for a national identity card to profess loyalty to Isreal as a "Jewish, Zionist and democratic state."   

• Los Angeles Times

• BBC

-Kathleen A. Bergin

Torture Photo Controversy: Another Opportunity to Consider the Constitutional Rules for Access to the Images of War

In last Sunday’s New York Times Adam Liptak examined President Obama’s recent decision not to authorize the release of any more torture photos from Abu Ghraib and other sites overseas.  This decision reflected the President’s reconsideration of his prior position on the release of the material in response to a FOIA request from the ACLU, a request upheld by the Second Circuit.  After consulting with his military advisers, the President concluded that the release of additional torture photos posed too great a risk of exacerbating hostility toward members of the military in Iraq and Afghanistan. In his article, Liptak notes the echoes of the Pentagon Papers case debate in the current controversy and recounts an exchange between Alexander Bickel, counsel for the New York Times, and Justice Potter Stewart in oral argument in New York Times v. U.S., 403 U.S. 713 (1971):

What if, Justice Potter Stewart asked a lawyer for The New York Times in the Pentagon Papers case in 1971, a disclosure of sensitive information in wartime “would result in the sentencing to death of 100 young men whose only offense had been that they were 19 years old and had low draft numbers?”

The Times’s lawyer, Alexander M. Bickel, tried to duck the question, but the justice pressed him:
“You would say that the Constitution requires that it be published and that these men die?”

Mr. Bickel yielded, to the consternation of allies in the case. “I’m afraid,” he said, “that my inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment.”

This Sunday’s Times included an op-ed by Philip Gourevitch, the author with Erroll Morris, of “The Ballad of Abu Ghraib”.  Gourevitch expresses his conclusion that  President Obama had made the right decision in declining to authorize the release of additional photographs, writing:

Releasing additional photographs would not be telling us anything that we don’t already know. We don’t need to see a picture to know that American interrogators used waterboarding — a crime our military has prosecuted as torture for more than a century — when we can see former Vice President Dick Cheney taking credit for having people waterboarded.

He then adds: 

Crime-scene photographs, for all their power to reveal, can also serve as a distraction, even a deterrent, from precise understanding of the events they depict. Photographs cannot show us a chain of command, or Washington decision making. Photographs cannot tell stories. They can only provide evidence of stories, and evidence is mute; it demands investigation and interpretation.

The torture photo controversy raises a difficult issue evaded by the Court this term, whether the content of some visual images may have such visceral power that their presentation could provoke constitutionally significant problematic reactions in the audience to whom they are revealed. This term the Court rejected the cert petitions in Kelly v. California and Zamudio v. California, challenges to the use of video victim impact statements in capital sentencing proceedings.  This cert denial put off consideration of the legal significance of the power of such visual material, but, if the torture photo case heads to the Supreme Court, the emotional response generated by visual information may again become part of the debate about what the Constitution directs in terms of possible restrictions on the use of photographic documentation of the aftermath of violence.

Disputes over access to images of the consequences of U.S. military involvement in Iraq and Afghanistan have been a recurrent part of the controversy surrounding the conduct of the war effort.  Prior disputes have involved press access to the Dover AFB ceremony for the return of the bodies of fallen soldiers.  (See prior post on change in Pentagon policy).  Under the new access rules, this Memorial Day weekend CNN has been running a series of reports documenting the solemn rituals associated with the arrival of soldiers’ bodies at Dover. In another chapter of this saga (see prior post), some DoD officials initially tried to block the inclusion of photos of war triage care in an important manual on emergency treatment techniques developed in Iraq and Afghanistan but that have enormous potential utility in domestic trauma centers. There has also been an effort by Arlington Cemetery officials to restrict press access to military funerals as described in a prior post. On this Memorial Day, when one sees the pictures of the lost soldiers' funeral ceremonies at Arlington, it is painful to look but perhaps cowardly to look away from the reality of what has been lost for each family.  

JFB              

 

Campaign Launched to Counter Constitutional Challenge to Cross in Mojave Preserve

The Blog of the Legal Times reports that, in conjunction with the observance of Memorial Day, the Liberty Legal Institute has created a website aimed at mobilizing support for the preservation of the cross in the veterans’ memorial in the Mojave National Preserve. The initiative anticipates the Supreme Court’s consideration of Salazar v.Buono during the 2009-2010 term and reflects an effort to counteract what the group characterizes as an “assault on veterans memorials”.  These “assaults” take the form of legal challenges to the use of crosses as the dominant or exclusive commemorative symbols in such monuments.  

The Mojave memorial was originally constructed in 1934 by the VFW as a tribute to veterans killed in World War I. In 1999, the ACLU filed a challenge to the use of a cross in a memorial on federal land. The district court found the use of the seven foot cross was an Establishment Clause violation and orderd the removal of the cross. As the district court’s initial ruling was on appeal, Congress enacted a statute authorizing a transfer of the acre of land housing the memorial to a private landowner in exchange for a five acre site elsewhere. In Buono v. Kempthorne, 502 F.3d 1069, reh’g denied, 527 F.3d 758 (9th Cir. 2008), this exchange was also found to represent an Establishment Clause violation that compounded rather than corrected the constitutional problem presented by the use of the cross. The cross remains in place, but, as ordered by the district court, it is currently concealed within a temporary wooden structure.  Advocates for the preservation of the cross, such as the Liberty Legal Institute, assert that the cross has acquired a secular meaning as a symbol of veterans’ sacrifice and does not convey an endorsement of Christianity. 

In its examination of the Ninth Circuit’s decision, the Supreme Court will consider whether Frank Buono, a retired National Park Service ranger, has standing to assert an Establishment Clause challenge to the presence of the eight foot cross within the Preserve’s boundaries.  Given the Court’s restrictive application of Flast v. Cohen in Hein v. Freedom from Religion Foundation, Buono presents another opportunity to continue the revision (or evisceration) of Establishment Clause standing doctrine. In opposing Buono’s claim, the government is arguing that he presents only an “ideological objection” to the selective presentation of the cross in a site that he considers a public forum.  According to the government , such an objection does not present the kind of “spiritual stake” required to present  an injury cognizable under Establishment Clause standing doctrine.  If Buono’s standing to sue is accepted, the Court will go on to confront whether the Congress behaved unconstitutionally in authorizing the land swap between the Park Service and the VFW. The case presents another important opportunity to consider the constitutional rules governing the content of memorials on public property, exploring the intersection of the Court’s government speech jurisprudence, applied this term in Pleasant Grove City v. Summum, and its Establishment Clause precedents.  

    The SCOTUSblog wiki provides more information and relevant documents in the Mojave cross case.

JFB

FirstAmendment Scholarship Update

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

1) Joseph Blocher, Categoricalism and Balancing In First and Second Amendment Analysis, 84 N.Y.U. L. Rev 375 (2009).  The abstract states: 

The least discussed element of District of Columbia v. Heller might ultimately be the most important:  the battle between the majority and dissent over the use of categoricalism and balancing in the construction of constitutional doctrine.  In Heller, Justice Scalia’s categoricalism essentially prevailed over Justice Breyer’s balancing approach.  But as the opinion itself demonstrates, Second Amendment categoricalism raises extremely difficult and still-unanswered questions about how to draw and justify the lines between protected and unprotected “Arms,” people, and arms-bearing purposes.  At least until balancing tests appear in Second Amendment doctrine—as they almost inevitably will—the future of the Amendment will depend almost entirely on the placement and clarity of these categories.  And unless the Court better identifies the core values of the Second Amendment, it will be difficult to give the categories any principled justification.  Heller is not the first time the Court has debated the merits of categorization and balancing, nor are Justices Scalia and Breyer the tests’ most famous champions.  Decades ago, Justices Black and Frankfurter waged a similar battle in the First Amendment context, and the echoes of their struggle continue to reverberate in free speech doctrine.  But whereas the categorical view triumphed in  Heller, Justice Frankfurter and the First Amendment balancers won most of their battles.  As a result, modern First Amendment doctrine is a patchwork of categorical and balancing tests, with a tendency toward the latter.  The First and Second Amendments are often presumed to be close cousins, and courts, litigants, and scholars will almost certainly continue to turn to the First Amendment for guidance in developing a Second Amendment standard of review.  But while free speech doctrine may be instructive, it also tells a cautionary tale:  Above all, it suggests that unless the Court better identifies the core values of the Second Amendment, the Second Amendment’s future will be even murkier than the First Amendment’s past.  This Article draws the Amendments together, using the development of categoricalism and balancing tests in First Amendment doctrine to describe and predict what  Heller’s categoricalism means for the present and future of Second Amendment doctrine.  It argues that the Court’s categorical line drawing in Heller creates intractable difficulties for Second Amendment doctrine and theory and that the majority’s categoricalism neither reflects nor enables a clear view of the Amendment’s core values, whatever they may be.

2)  Hon. Edith Brown Clement (United States Court of Appeals for the Fifth Circuit), Public Displays of Affection...for God: Religious Monuments After McCreary and Van Orden, 32 Harv. J. L. & Pub. Pol'y 231 (2009). The abstract states: 

On March 2, 2005, the United States Supreme Court heard two cases involving the constitutionality of public displays of the Ten Commandments under the Establishment Clause of the First Amendment: McCreary County v. ACLU and Van Orden v. Perry.  McCreary involved a display of nine copies of historically significant documents in identical frames hanging on the walls of two Kentucky courthouses. The documents included the Magna Carta, the Declaration of Independence, and the lyrics to The Star-Spangled Banner. They also included the text of the Ten Commandments, accompanied by a statement explaining the role of the Commandments in influencing American law.  In Van Orden, the challenged display was a granite monument—six feet high and three-and-a-half feet wide—whose primary content was the text of the Ten Commandments but which also included two Stars of David and the Greek letters Chi and Rho, an ancient symbol for Jesus Christ. As one commentator predicted at the time, “[T]hese two cases are likely to be resolved in accordance with I Kings 3:16–28[:]  And [O’Connor] said: ‘Fetch me a sword.’ And they brought a sword before [ O’Connor]. And [O’Connor] said: ‘Divide the living child in two,  and give half to the one, and half to the other.’”

The baby was split, but not by Justice O’Connor. Justice Breyer emerged as the supposed Solomon in both cases, and it was he who wrote the controlling opinion in Van Orden. Perhaps to the surprise of some, the Court held in a fragmented opinion that the large granite monument in Van Orden was indeed constitutional. And instead of upholding the carefully nuanced historical display in McCreary, the Court held that its stormy history, including repeated legal and rhetorical battles concerning both its form and substance, rendered it an unconstitutional establishment of religion.

I respectfully submit that McCreary and Van Orden imprudently shifted religious monument jurisprudence under the Establishment Clause away from a display-focused analysis and toward an actor-focused analysis. A display-focused approach emphasizes the placement and content of the display itself and is expressed in “bright-line” legal rules that are applicable to all  monuments of a particular type. An actor-focused approach, in contrast, uses the historical and physical qualities associated with a display to shed light on the purposes of those who placed it. Under the actor-focused approach, the same monument can be constitutional or unconstitutional depending on the motives of the relevant government actors—ultimately, this is a recipe for further confusion and uncertainty over what some have called our “first freedom.” 

One example of a display-focused Establishment approach is the 1980 case Stone v. Graham.  In Stone, the Supreme Court held that Kentucky could not post the Ten Commandments on the walls of its public school classrooms.  Although Stone also held that the legislature did not have a valid secular, or nonreligious, purpose for posting the Ten Commandments, the short opinion relied principally on the content of the display as prima facie evidence of the lack of such a purpose.  

The strength of a display-focused approach is that it can offer a basis for clear guidelines to public officials because it emphasizes the physical characteristics, placement, and content of the display. The weakness is that adequate guidelines have not been developed to account for the culturally and historically important uses of religious symbols in public spaces, perhaps most notably on the facade of the Supreme Court building itself. The tension in the display-focused approach is one of the factors which led to ten separate opinions and a split decision in the McCreary and Van Orden sequence.

The actor-focused approach has strengths and weaknesses of its own, which are apparent in the first generation of federal appellate decisions issued after Van Orden. On one hand, the actor-focused analysis has given courts greater flexibility to uphold some religious monuments.  The courts of appeals, however, have struggled to answer the crucial questions of who and when: whose motives are relevant and what is the applicable time frame when evaluating the government’s actions? Can a later refurbishment of an originally constitutional monument create an unconstitutional establishment where none existed before? Can the religious motivation of nongovernmental actors taint the government’s secular purpose and create an unconstitutional endorsement of religion? As one might guess, even leaving aside the question of its jurisprudential value, the time and sensitivity required when applying the actor-focused approach have already had a big impact on Establishment Clause cases in the courts of appeals.

3) Zachary Calo (Valparaiso University School of Law), 'The New Internationals': Human Rights and American Evangelicalism, forthcoming in Is The Good Book Good Enough?, (David K. Ryden, ed., 2009). The abstract states:

The birth of the human rights movement was one of the great twentieth century revolutions, but the significant contribution of religious communities and ideas to this movement has been significantly underappreciated and poorly understood. This is especially the case with respect to evangelicals. 

American evangelicals were slow, particularly in comparison to Roman Catholics, mainline Protestants, and Jews, to become vigorously engaged in international human rights issues. Yet as the New York Times recently noted (“Evangelicals Sway White House on Human Rights Issues Abroad,” 10/26/2003), the evangelical community has emerged as one of the most powerful voices within the human rights movement. This shift occurred rapidly over the past two decades. The first part of this chapter traces the emergence of an evangelical human rights movement, focusing on the issues (e.g. Sudan, religious freedom, sex trafficking, right to proselytize) and institutions (e.g. National Association of Evangelicals, Institute for Global Engagement, International Justice Mission) that have spurred this development. This section considers the causes behind this transformation in evangelical thinking about human rights and assesses the relationship between evangelicals and the broader human rights movement. 

The second part of this chapter considers the evangelical human rights movement from a theological perspective. In particular, it examines the manner in which the resources of evangelical theology have been marshaled to defend the concept of human rights. It considers both the strengths evangelical theology possesses for this task, as well as its limitations. Comparative reference to the Catholic tradition of thinking about human rights illumines this discussion, as these two traditions have engaged the liberal language of rights in distinctive ways. While Catholics possess the natural law tradition and the capacity to discourse with modern politics without excessive recourse to theological presuppositions, evangelicals have found it more difficult (or unacceptable) to circumscribe the biblical basis for their support of human rights. Finally, this discussion concludes with an examination of how the human rights revolution in evangelical thought might be situated within the broader tradition of evangelical political theology, including evangelical understandings of political authority, theological anthropology, and the relationship between the church and the secular state.

4) Jill Hamers (Boston University - School of Law), Note - Reeling in the Outlier: Gonzales v. Carhart and the End of Facial Challenges to Abortion Statutes, 89 B.U. L. Rev. 1069 (2009).  The abstract states: 

This Note elaborates on the justifications for demanding as-applied challenges in the abortion context, and responds to critics' arguments that facial overbreadth challenges are both necessary in this context and have been endorsed by the Court in a wide array of contexts outside the First Amendment. Part I of this Note begins with a general background on facial versus as-applied challenges. It then discusses those challenges more specifically in the abortion context and summarizes the Court's history of shifting standards to satisfy a facial challenge to an abortion statute. The Part concludes with an extensive discussion of the Gonzales v. Carhart opinion, which represents a significant turning point in the facial challenge debate. Part II attempts to prove that the Court's holding in Gonzales was justified by the traditional requirement of as-applied adjudication to which the Court has adhered in areas outside abortion and the First Amendment. This Part demonstrates that the justification for allowing facial overbreadth challenges to statutes regulating First Amendment rights does not translate to the abortion context. Finally, Part III responds to critics' arguments that the overbreadth doctrine has been expanded to reach many more areas than just the First Amendment. Supreme Court precedent dictates that the overbreadth doctrine is justified by, and limited to, the First Amendment, and the Court's holding in Gonzales was merely a principled attempt to bring abortion challenges back where they belong - into the mainstream of as-applied adjudication.

5) Kyle W. Brenton, Note - BONGHiTS4JESUS.COM? Scrutinizing Public School Authority over Student Cyberspeech Through the Lens of Personal Jurisdiction, 92 Minn. L. Rev. 1206 (2008).  The abstract states: 

As more and more public school students express themselves via e-mail, instant messages, and online communities such as MySpace and Facebook, more and more school administrators reach beyond the schoolhouse gates to censor and punish that online expression. While First Amendment jurisprudence provides a framework for determining when a school may censor a student’s on-campus speech, authority to regulate off-campus—much less online—speech remains a gray area. This Note contends that courts should evaluate the connection between a particular student’s online expression and the school environment in order to determine whether or not the school has the authority to censor it. This approach is consonant with the Supreme Court’s repeated admonition that the school environment possesses special characteristics that permit more intrusive regulation of student speech. In Part I, this Note sets forth the jurisprudential framework whereby schools may censor student speech and examines lower court cases addressing student cyberspeech. Part II demonstrates that the prevailing approach fails to help courts draw meaningful distinctions between which cyberspeech is student speech and which is not. Finally, Part III argues that courts should apply the principles of personal jurisdiction to student cyberspeech by analogy to ensure that any public school authority over cyberspeech is supported by minimum contacts between the speech and the school environment. The exercise of school power must also not offend notions of fair play and substantial justice.

6) Benjamin F. Heidlage, A Relational Approach to Schools' Regulation of Youth Online Speech, 84 N.Y.U. L. Rev. 572 (2009).  The abstract states: 

This Note examines the current doctrinal difficulties with student Internet speech.  Student speech was traditionally protected from school authority when it was performed off campus—it received full First Amendment protection as opposed to the lower level of protection that on-campus speech received.  However, the emergence of the Internet as a dominant form of communication has complicated this framework by blurring the line between off-campus and on-campus.  As reflected in the Supreme Court jurisprudence, the question of the standard of protection to apply highlights the educational and constitutional issues at stake in student speech.  While some courts seem willing to subject all youth speech to the lower constitutional standard, I propose a more nuanced approach.  My approach, which I dub the “relational approach,” reframes the debate by reference to the role schools play in our society.  The relational approach forces judges to examine the context in which the speech takes place and determine whether society expects such context to be governed by institutional educational authority.  By adopting my approach, a more honest and reasonable jurisprudence can emerge.

7) Jeremy Patrick (Osgoode Hall Law School, York University), Blasphemy in Pre-Criminal Code Canada: Two Sketches (2009).  The abstract states: 

This article briefly explores the history of legal prohibitions on blasphemy in Pre-Criminal Code Canada by researching the documentary record of two specific time-periods: Quebec in the New France era and rural Ontario during the early 1800s. The article suggests that blasphemy prosecutions were relatively rare and that blasphemers were treated relatively leniently in light of the harsh punishments available.

8) John M. Breen (Loyola University Chicago School of Law),  Neutrality in Liberal Legal Theory and Catholic Social Thought, 32 Harv. J. L. & Pub. Pol'y 514 (2009). The abstract states: 

Liberalism is widely regarded as “[t]he dominant strand of American political philosophy,” and neutrality is often identified as one of the defining features and virtues of the liberal state.  Not surprisingly, then, talk of neutrality deeply informs our public discourse concerning not only the nature of law and the structure of legal institutions, but also the content of particular judicial opinions, legislative acts, administrative rulings and executive orders.

Frequently, however, what is meant by “neutrality in the law” is far from clear.  What quality in law does “neutrality” describe?  What does it mean to say that a legal institution or a particular juridical act is “neutral”? Does it refer only to the identity of the decision maker, the nature of the forum, and the procedures employed? Does it refer also to the kinds of argument that will be entertained and advanced in support of the ultimate decision? Finally, does “neutrality in the law” relate to the actual resolution of the dispute, the content of the decision itself?

9) William C. Duncan (Marriage Law Foundation), Speaking Up For Marriage, 32 Harv. J. L. & Pub. Pol'y 915 (2009).  The abstract states: 

In a weekly radio address in 2004, President George W. Bush said: “If courts create their own arbitrary definition of marriage as a mere  legal contract and cut marriage off from  its cultural, religious,  and  natural  roots,  then  the meaning  of marriage  is lost  and  the  institution  is  weakened.”  Although  fewer  and fewer politicians are willing to speak up so forthrightly for the traditional  understanding  of  marriage,  President  Bush  was right  to do so. Ultimately, his steadfast defense of marriage as the union of a man and a woman may be among  the Administration’s most important contributions.

10) Stanley W. Carlson-Thies (International Religious Freedom Alliance), Faith-Based Initiative 2.0: The Bush Faith-Based and Community Initiative,  32 Harv. J. L. & Pub. Pol'y 931 (2009).  The abstract states: 

Critics of President George W. Bush’s faith-based initiative often claimed that it was not a serious public policy effort, but rather a political ploy aimed at pleasing the Republican white evangelical “base” and poaching African-American and Hispanic pastors and voters from the Democratic Party. However, even casual observers should have known better. If the initiative was just about politics, why did some thirty-six states, led by both Democrats and Republicans, create their own initiatives, maintaining them even when state leadership changed from one party to the other?  Why did the Pew Charitable Trusts invest in an eight-year project, the Roundtable on Religion and Social Welfare Policy, to track the initiative’s goals, outcomes, and legal reforms? If the initiative was mere low politics, why did it spark so many books, journal and law review articles, and dissertations? 

Any doubts that the Bush initiative was a serious policy should have been finally dispelled on July 1, 2008, when Democratic presidential candidate Barack Obama proclaimed that he would expand and improve the initiative; or when, during the transition period, he mandated a serious review of the initiative and its administrative apparatus; or when, soon after becoming President, he announced the formation of the White House Office of Faith-Based and Neighborhood Partnerships, his version of the Bush faith-based office, and appointed Joshua DuBois to head the new office.  Expanding and improving, reviewing and evaluating, new leadership and a renamed effort: There must have been a great deal of substance to the Bush faith-based initiative for Obama to take these actions. But what was that substance? What did the Bush initiative aim to achieve and what is its legacy?

11) Stanley Fish (Florida International University), To the Pure All Things Are Pure: Law, Faith, and Interpretation In the Prose and Poetry of John Milton,   21 Law & Literature 78-92 (2009).  The abstract states: 

Returning to Milton, Professor Fish addresses the relation between faith and interpretation, unwritten and written law, in certain key passages.

12) Eli Wald (University of Denver Sturm College of Law), The Rise and the Fall of the WASP and Jewish Law Firms, 60 Stan. L. Rev. 1803 (2008). The abstract states: 

During their “golden era” in the 1950s and 1960s, large American law firms were segregated along religious and cultural lines between WASP and Jewish law firms.  The rise and success of large law firms with distinctive religious and cultural identities is surprising because the large firm was purportedly a-religious and meritocratic.

After introducing the conventional wisdom regarding the explicitly a-religious and meritocratic identity of the large law firm, Part I explores the “hidden” religious and cultural identity of the WASP law firm.  It argues that the dual and seemingly contradictory identities of the large firm were a product of its complex quest for professional elite status. Seeking professional status and recognition, or in Larson’s terminology, participating in the “professional project,” required the large law firm to present itself as a-religious and meritocratic. Seeking to establish itself as the elite within the ranks of the legal profession, however, the large firm cultivated and pursued a parallel de facto WASP identity. It first translated elite Protestant values and white-shoe ethic into elite professional status and later on, with its elite status secured, relied on its religious and cultural identity to enable its rapid growth.

Part II studies an unintended and counterintuitive consequence of the WASP identity of the large firm—the rise and growth of the Jewish firm. Though as late as 1950 there was not  a single large Jewish law firm in New York, by the mid-1960s six of the largest twenty law firms were Jewish, and by 1980 four of the ten largest law firms were Jewish firms. Moreover, the accomplishment of the Jewish firms is especially striking because while the traditional large WASP law firms grew at a fast rate during this period, the Jewish firms grew twice as fast and did so in spite of explicit discrimination. Part II asserts that the WASP identity of the large firm—and the consequences and commitments embedded in it—led to the emergence of firms that were Jewish by discriminatory default and fostered conditions that explain the rapid growth of the Jewish firm. 

Part III investigates the demise of  large religious law firms, WASP and Jewish alike. It tracks the disintegration of the hidden religious identity of WASP firms, the decline of the overt religious identity of Jewish firms, and concludes by exploring the ability of the large law firm to sustain a credible claim for elite professional status in the post-religious twenty-first century.

13) Michael Whine (Community Security Trust), Devising Unified Criteria and Methods of Monitoring Anti-Semitism,  21 Jewish Political Studies Review 1 (Spring 2009).  The abstract states: 

Awareness of the increase in racist and anti-Semitic violence has led the Organization for Security and Cooperation in Europe (OSCE) and the European Union (EU) to settle agreements to monitor and combat the phenomenon. A European working definition of anti-Semitism and another on all forms of hate crimes will assist states to devise unified criteria for inclusion in their monitoring. Some governments, however, are failing to abide by the agreements into which they have entered to monitor such crime, including anti-Semitism. This paper examines these agreements, the reports that are published on combating anti-Semitism, and the reasons why the fifty-six governments concerned (OSCE membership overlaps with that of the EU, but also includes the U.S., Canada, and the former Soviet Union) are falling short in fulfilling their obligations. It notes the valuable work of NGOs, which are increasingly encouraged to provide data and expertise in monitoring, and concludes with an examination of the UK model, which is cited as fulfilling all the requirements, as well as the work of the Community Security Trust (CST). It ends with a call for consistent and objective reporting at the government and Jewish community levels.

14) Berin Michael Szoka (The Progress & Freedom Foundation) and Adam D. Thierer (The Progress & Freedom Foundation), Coppa 2.0: The New Battle Over Privacy, Age Verification, Online Safety & Free Speech, Progress & Freedom Foundation Progress on Point Paper No. 16.11 (2009).  The abstract states: 

Online privacy, child safety, free speech and anonymity are on a collision course. The 1998 Children’s Online Privacy Protection Act (COPPA) already mandates certain online privacy protections for children under 13, but many advocate expanding online privacy protections for both adolescents and adults. Furthermore, efforts continue at both the federal and state levels to institute new regulations, such as age verification mandates, aimed at ensuring the safety of children online. There is an inherent tension between these objectives: Attempts to achieve perfectly “safe” online environments will likely require the surrender of some privacy and speech rights, including the right to speak anonymously. 

These tensions are coming to a head with state-based efforts to expand COPPA, which requires “verifiable parental consent” before certain sites or services may collect, or enable the sharing of, personal information from children under the age of 13. Several proposed state laws would extend COPPA’s parental-consent framework to cover all adolescents under 18. This seemingly small change would require age verification of not only adolescents and their parents, but—for the first time—large numbers of adults, thus raising grave First Amendment concerns. Such broad age verification mandates would, ironically, reduce online privacy by requiring more information to be collected from both adolescents and adults for age verification purposes, while doing little to make adolescents safer. In practical terms, the increased scale of “COPPA 2.0” efforts would present significant implementation and enforcement challenges. Finally, state-level COPPA 2.0 proposals would likely conflict with the Constitution’s Commerce Clause. 

Despite these profound problems, COPPA expansion has great rhetorical appeal and seems likely to be at the heart of future child safety debates—especially efforts to require mandatory age verification. There are, however, many better ways to protect children online than by expanding COPPA beyond its original, limited purpose.

15) Andreas A. Jobst ,Peter Kunzel, Paul S. Mills, Amadou N. R. Sy (International Monetary Fund - IMF),  Islamic Bond Issuance - What Sovereign Debt Managers Need to Know, 1 International Journal of Islamic and Middle Eastern Finance and Management 330 (2008).  The abstract states: 

Recent years have witnessed a surge in the issuance of Islamic capital market securities (sukuk) by corporates and public sector entities amid growing demand for alternative investments. As the sukuk market continues to develop, new challenges and opportunities for sovereign debt managers and capital market development arise. This paper reviews the key developments in the sukuk market and informs the debate about challenges and opportunities going forward. 

JFB

craigslist Seeks to Enjoin Threatened Prosecution in South Carolina

As reported in The State newspaper, craigslist has filed suit in federal court in South Carolina seeking to enjoin South Carolina Attorney General Henry McMaster’s threatened prosecution of the site for criminal offenses related to solicitation of prostitution and/or dissemination of obscenity.  The craigslist blog provides copies of the complaint and TRO request.  (See prior post re: the federal statutory barrier to such state law prosecutions.)  The pleadings cite the controlling federal statute ,  47 U.S.C. Sec. 230, and  seek an injunction against both McMaster and local South Carolina prosecutors because any prosecution of craigslist would barred by the preemptive effect of federal law and would violate the First Amendment and the Commerce Clause. The AG’s continued statements about proceeding with a criminal investigation and potential prosecution have been characterized as a grandstanding effort by AG McMaster, who plans to run for governor in the next election cycle. 

In his official response to the craigslist filing, AG McMaster stated:

The defensive legal action craigslist has taken against the
solicitors and my office is good news. It shows that craigslist is taking the
matter seriously for the first time.

More importantly, overnight they have removed the erotic services
section from their website, as we asked them to do. And they are now taking
responsibility for the content of their future advertisements. If they keep their
word, this is a victory for law enforcement and for the people of South
Carolina.

Unfortunately, we had to inform them of possible state criminal violations
concerning their past practices to produce a serious response. We trust they
will now adhere to the higher standards they have promised. This office and
the law enforcement agencies of South Carolina will continue to monitor the
site to make certain that our laws are respected.  

As discussed in a recent Washington Post article on craigslist’s pledge to take down the erotic services section on the site and to monitor postings more aggressively,  a number of law enforcement officials around the country, including Connecticut AG Richard Blumenthal and D.C. area police representatives,  have continued to express skepticism about whether the changes in site operation proposed by craigslist CEO Jim Buckmaster would amount to more than cosmetic alterations, changes that  would not effectively foreclose the continued existence of some variation on the erotic services section of the site. That section had amounted to, according to AG Blumenthal’s assessment, “a blatant Internet brothel”.  An article in yesterday’s Washington Post details the grave dangers thaT on-line sex connections often create for the women involved.

JFB

ACLU Sues to End School Districts' Blocking of Access to LGBT Sites

As reported in the Nashville Tennesseean, this week the ACLU filed suit in federal court to end two Tennessee school districts’ use of filtering software that blocks students’ access to the websites of organizations such as the Human Rights Campaign, Parents and Friends of Lesbians and Gays, and the Gay, Lesbian,and Straight Educational Network.  Access to the sites of religious and other groups that advocate “reparative therapy” and present “conversion” accounts of persons identifying as “ex-gays” are not blocked by the school systems. A high school student seeking information about scholarships for LGBT youth discovered the blocking of the sites and contacted the ACLU for help.  A prior post noted that in April the ACLU had demanded that districts discontinue use of the blocking software. The blocking policy has been maintained, precipitating the litigation, 

As described in an accompanying  press release, the complaint asserts that the districts’ blocking policy abridges students’ First Amendment rights to acquire information about important social and political issues, such as anti-gay harassment, marriage equality, employment discrimination, and the military's "don't ask, don't tell" policy, while also hampering the activities of authorized student organizations, such as Gay Straight Alliance groups.  Most significantly, the policy imposes a viewpoint discriminatory filtering regime. As Catherine Crump,staff attorney with the ACLU First Amendment Working Group, stated:

Allowing access to Web sites that present one side of an issue while blocking sites that present the other side is illegal viewpoint discrimination. This discriminatory censorship does nothing to make students safe from material that may actually be harmful, but only hurts them by making it impossible to access important educational material.  

More information about the suit is available in a case profile on the website of the ACLU of Tennessee. 

JFB

South Carolina A.G.’s Threat to Prosecute Craigslist Questioned

In a recent commentary, Ryan Calo of the Stanford Center for the Internet and Society questions the legal basis for the South Carolina Attorney General’s recent threats to initiate a criminal investigation and possible prosecution regarding the sexual content of certain posts to the site.     

JFB

 

Islamic College Planned

The Associated Press reported Sunday that the Zaytuna Institute hopes to move forward on the creation of an Islamic College, a "Muslim Georgetown" in California's Bay Area. The Institute was founded by two American Muslims, Imam Zaid Shakir and Sheik Hamza Yusuf, who have gained great respect as religious scholars. The Institute currently offers distance learning programs, conducts workshops around the U.S., and holds conferences that attract noted scholars.  

JFB   

“People’s Dirt”: Anonymous Teen Gossip Site, Decried as “Toxic” Forum, “Sludge of the Internet”, and “Cyber Cesspool”, Raises Questions About the Boundaries of Free Expression

An article in Sunday’s Washington Post describes the wounding attacks and rumors posted on the People’s Dirt website, which recently gained attention when a post on the site appeared to threaten an attack on a Maryland high school.  On Concurring Opinions, Danielle Citron expresses concerns about the devastating harms such anonymous gossip sited can inflict on teenagers who become the object of hate-filled rants and malicious commentary.    

JFB

Church Sues “Bash Back!” under Free Access to Clinics Act

The Religion Clause Blog notes that the Alliance Defense Fund has filed suit on behalf the Mount Hope Church, seeking injunctive relief and damages in response to a protest staged by the group “Bash Back!” during a church service in November, 2008.  According to the complaint filed in the U.S. District Court for the Western District of Michigan, some protesters blocked the church doors and parking lot entrances. Others had entered the church unobtrusively, springing up to  disrupt the service by shouting, throwing fliers, and having two female protesters kiss in the front of the church. The suit seeks relief pursuant to the Freedom of Access To Clinic Entrances Act, 18 USC Sec. 248, which provides civil remedies against those who “ by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.”  In an ADF press release on the case, ADF senior counsel, Gary McCaleb, states:

The use of violent threats and criminal behavior to make a political point should never be acceptable in America. Bash Back! revealed how dangerous the homosexual agenda is to our First Liberty, religious freedom.  ADF filed this suit to stop Bash Back! and other activist groups from invading churches, disrupting worship, silencing pastors, and terrifying adults and children who attend religious services.

Bash Back! provides a brief response to the suit on the group’s news page. The Bash Back! website offers this description of the organization:  

What is Bash Back?
Bash Back! formed in 2007 with a small group of Radical Transfolk, Queers and Allies organizing against the Republican National Convention. In April of 2008 over 100 radical Trans/Queer/Allied folk met in Chicago to formulate plans against the RNC/DNC and to start a long lasting network. Anyone who agrees with the Points of Unity can start a Bash Back! Chapter.

POINTS OF UNITY
Members of Bash Back! must agree to:
1. Fight for liberation. Nothing more, nothing less. State recognition in the form of oppressive institutions such as marriage and militarism are not steps toward liberation but rather towards heteronormative assimilation.
2. A rejection of Capitalism, Imperialism, and all forms of State power.
3. Actively oppose oppression both in and out of the “movement.” All oppressive behavior is not to be tolerated.
4. Respect a diversity of tactics in the struggle for liberation. Do not solely condemn an action on the grounds that the State deems it to be illegal.

JFB

 

DC Agrees to Allow Church, Deemed Brutalist Landmark, to be Demolished

The Washington Post reports that the DC government has agreed to allow the Third Church of Christ, Scientist, to demolish its current church structure, previously designated a historic landmark as an example of the Brutalist architectural style of the 70’s.  The Church had filed a RLUIPA suit challenging the designation and its attendant restrictions,  asserting that the costs of maintaining the poorly constructed and physically inadequate building would impose exhorbitant costs on the congregation and would inhibit the church community’s activities . ( See prior post for background on controversy.) The District’s decision will resolve the RLUIPA  suit , but the city's settlement documents specify that the Church cannot obtain a demolition permit until it has procured a building permit for a new church in the same location.  Last fall, the New York Times recounted the efforts by a number of NYC churches to avoid landmark designation status due to the adverse economic impact landmarks restrictions can create for a financially constrained congregation.     

JFB

 

 

 

California Senate Passes Libel Tourism Bill

As reported on How  Appealing and in the San Francisco Chronicle, the California Senate last week passed SB 320, a “libel tourism” bill that would bar California courts from enforcing a foreign award of damages for libel unless the defendant has been accorded the same legal protections that would apply if such a claim were tried in the U.S. New York’s passage of a libel tourism statute was the subject of a prior post.     
JFB

First Amendment Scholarship Update

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

1) Alexander Tsesis (Loyola University of Chicago - School of Law), Dignity and Speech: The Regulation of Hate Speech in a Democracy , forthcoming in Wake Forest Law Review. The abstract states:

The American tradition of free individual expression exists side-by-side with its Fourteenth Amendment commitment to equality. In the area of hate speech, the libertarian notion of free expression comes into tension with the aspiration of equal dignity. While it is evident that maintaining equality means that government has no power to treat the speech of similarly situated persons differently, potential interpersonal friction exists where the speech of one person threatens the rights or safety of another. With the expansion of the Internet, new regulatory challenges more frequently arise because of the global reach of hate propaganda transmitted from the United States, where it is legal, and streamed into countries, like France, where such communications are criminal offenses.

The global reach of supremacist ideology creates a challenge to world democracies. Societies committed to pluralism are obligated to safeguard individual expression while promoting egalitarian principles against harming others' safety and dignity. Consequently, as much as American society extols freedom of speech, there are many instances in which competing interests, such as retaining a good reputation in one's community, place restraints on public communications. Where one person wishes to express false statements about another, defamation law sides not with the desire for inaccurate catharsis but with the protection of reputation. The preference for an "individual's right to the protection of his own good name 'reflects no more than our basic concept of the essential dignity and worth of every human being.'" Public policy favors the interest of libeled individuals over that of anyone wishing to intentionally or negligently spread fallacy. So too where words are likely to result in the immediate breach of the peace. The Supreme Court has found that the government has a countervailing social interest in order and morality that justifies some limitations on speech.

This Article opens with an analysis of hate speech in a democratic society. The first topic to investigate is the role of speech in our constitutional democracy. The current Supreme Court cases that affect the status of hate speech are then reviewed and critiqued. Finally, the Article contrasts the American approach to destructive messages with the European and Canadian models.

2) Franz Werro (Georgetown University - Law Center), The Right to Inform v. The Right to be Forgotten: A Transatlantic Clash , in LIABILITY IN THE THIRD MILLENNIUM (Aurelia Colombi Ciacchi, Christine Godt, Peter Rott, Leslie Jane Smith, eds., 2009) The abstract states:

In recent time, privacy advocates in Europe have argued that internet users should have the right to control and possible erase the information they leave behind themselves on the web, calling for "a right to be forgotten". Under Swiss law, which for obvious reasons I will choose as an example of laws in other European countries, courts may not be confronted with this issue in the near future; however, in disputes involving the press and other media, they have repeatedly extended the right to be forgotten to persons who have been sentenced for criminal offenses. After a certain time has passed, these persons may have the right to preclude anyone from identifying them in relation to their criminal past. This right is part of what the Swiss refer to as the "rights of the personality," and could arguably include the right of internet users to keep their activity trails private. Dignity, honor and the right to the respect of one's private life and to keep certain things secret, as well as the right to the respect of one's family life and other aspects of privacy, are all part of these fundamental rights of the person.

My aim in this tribute is to present the right to be forgotten as it is recognized in Switzerland and give, by the same token, as example of the European approach to this question. I also want to describe the law as it is in the United States. My concluding remarks will hopefully offer an insight of what may in part explain the transatlantic clash on this question.

3) Raphael Cohen-Almagor (University of Hull) and Marco Zambotti (Johns Hopkins University - Paul H. Nitze School of Advanced International Studies),Liberalism, Tolerance and Multiculturalism: The Bounds of Liberal Intervention in Affairs of Minority Cultures , in ETHICAL LIBERALISM IN CONTEMPORARY SOCIETIES, Krzysztof Wojciechowski, Jan C. Joerden, eds. 2009). The abstract states:

One of the most pressing issues facing liberal democracies today is the politicization of ethno-cultural diversity. Minority cultures are demanding greater public recognition of their distinctive identities, and greater freedom and opportunity to retain and develop their distinctive cultural practices. In response to these demands, new and creative mechanisms are being adopted in many countries for accommodating difference. This paper discusses some of the issues raised by these demands, focusing in particular on the difficulties that arise when the minority seeking accommodation is illiberal.

It is increasingly accepted that common citizenship rights are not sufficient to accommodate all forms of ethno-cultural diversity. In some cases, certain “collective” or “group-differentiated” rights are also required. And indeed there is a clear trend within liberal democracies towards the greater recognition of such group-differentiated rights. Among the pertinent questions are: How are these group rights related to individual rights?; What should we do if group rights come into conflict with individual rights?; Can a liberal democracy allow minority groups to restrict the individual rights of their members, or should it insist that all groups uphold liberal principles?; Can a liberal democracy allow minority groups to restrict individual rights of members of other groups? To address these questions, controversial cultural norms will be considered, as well as the relationships between state and religion in Israel. Helpful distinctions will be made between self- and other-regarding conduct, and between inter-group and intra-group relationship. Furthermore, we probe the relations between various Western liberal democracies and minority cultures, most notably analyzing the headscarf controversy in France and Europe at large.

4) Gregory N. Johnson (Vermont Law School), We’ve Heard this Before: The Legacy of Interracial Marriage Bans and the Implications for Today’s Marriage Equality Debates, forthcoming in Vt. L. Rev. (2009). The abstract states:

This article examines the many cases upholding bans on interracial marriage prior to 1948, the year the California Supreme Court became the first high court to strike down such a ban. The arguments courts made in defense of the ban on interracial marriage are strikingly similar to arguments made today against same-sex marriage. These include arguments based on religion and natural law, procreation, concern for the children, deference to the legislature, and the slippery-slope argument. The thesis of this article is that, given the commonality in arguments, the earlier struggle for marriage equality by interracial couples is relevant to today's debate on same-sex marriage. The ultimate rejection of the arguments against interracial marriage speaks to the long-term viability of the same arguments in the same-sex marriage debate.

5) Tom S. Clark  (Emory University - Department of Political Science) and Benjamin Lauderdale, Locating Supreme Court Opinions in 'Doctrine Space' . The abstract states:

A significant limitation in the empirical analysis of judicial politics has been the difficulty of measuring judicial policy. Theories of bargaining and opinion writing make predictions about where an opinion will fall in policy space, but empirical tests of those theories have not benefited from direct measures of opinion location. This paper develops a scaling model to estimate opinion locations and justice ideal points along a common, continuous dimension using the citations between opinions as data. We assume that each opinion has a fixed location in this unidimensional doctrine space and that the probability of a citation that affirms rather than disputes the doctrine of the precedent decreases as the doctrinal distance between them increases. This proximity citation model is applied to original datasets of citations in search and seizure and freedom of religion opinions written by the Warren, Burger and Rehnquist Courts. We use the resulting estimates of opinion content to evaluate median and non-median voter theories of Supreme Court bargaining and opinion writing. We find striking empirical support for theoretical models that predict the majority opinion will fall at the ideal point of the median member of the majority coalition as opposed to the court's median or the opinion author's ideal point. Given the centrality of theories of judicial policymaking to various substantive problems in political science, the method of scaling opinions developed in this paper can facilitate a variety of future research.

6) Andrew W. Torrance (University of Kansas - School of Law), Neurobiology and Patenting Thought,
Gruter Institute Squaw Valley Conference 2009: Law, Behavior & the Brain (2009).  The abstract states:

During the middle of the 20th Century the courts and the United States Patent and Trademark Office developed a legal doctrine governing the patentability of claims involving “mental steps.” This “Mental Steps Doctrine” rendered unpatentable any patent claim to a process made up of human thought. In a famous statement of this rule, the court in In re Abrams, 188 F.2d 165 (C.C.P.A. 1951), declared that “[i]t is self-evident that thought is not patentable.” Though the Mental Steps Doctrine lost much of its vitality over subsequent years, it now appears to be reemerging in the jurisprudence of both the Court of Appeals for the Federal Circuit (“CAFC”) and the United States Supreme Court. Though the appeal in LabCorp v. Metabolite (U.S. 2006) was ultimately dismissed as improvidently granted, the vigorous dissent to this dismissal argued that the claims at issue (that is, methods of correlating the concentration of a chemical to a human patient’s health) should have been found invalid as unstatutory subject matter for involving human thought. In the wake of LabCorp v. Metabolite, the CAFC’s decisions in In re Cominsky (CAFC 2009) and In re Bilski have revived the Mental Steps Doctrine by reaffirming the unpatentability of claims involving human thought. Many rationales have been offered to justify why thoughts should be unpatentable subject matter, some focusing on possible abstract violations of the First Amendment and others suggesting that “higher” forms of thought, such as mathematical reasoning, should be less patentable than more reflexive forms of thought. Neurobiology offers a powerful lens through which to view such rationales, and may suggest a different approach to the patentability of thought. Recent insights from neurobiology suggest that there exist at least two rather different categories of “thought”. Cerebral cortex-like thoughts may tend to possess a significant volitional character, and may therefore be avoided with conscious effort, whereas cerebellum-like thoughts may tend to be significantly non-volitional in nature. Although some might privilege cerebral cortex-like thoughts over cerebellum-like thoughts because the former often involve “higher” intellectual content than do the former, neurobiology might suggest the opposite result. Since cerebellum-like thoughts are less likely to be under volitional control, infringement of patent claims involving such thoughts may tend to be involuntary; even specific knowledge of a patent claim would tend to be insufficient to discourage infringement, because infringement would tend to be non-volitional. Involuntary patent infringement would seem tantamount to a sort of “patent servitude”. By contrast, it is much more likely that cerebral cortex-like thoughts could be avoided with care and effort, thus allowing the possibility that specific knowledge of a patent claim could discourage, and allow avoidance of, infringement, because infringement would tend to be volitional. Neurobiology can provide useful insight into how patent law might inform a modern, and more rational, Mental Steps Doctrine.

7) Note, Church, Choice, and Charters: A New Wrinkle for Public Education?, 122 Harv. L. Rev. 1750 (2009). The abstract states:

In late August  2007, the Ben Gamla Charter School opened its doors to approximately 400 students in Hollywood, Florida.  Funded by public dollars and named for a first-century Jewish high priest who sought to introduce universal education, the school aimed to provide  “a first-class academic program”  featuring “a unique bilingual, biliterate, and bi-cultural curriculum, which prepares students to have  an edge in global competition through the study of Hebrew as a second  language.”  Ben Gamla’s director,
Rabbi Adam Siegel, was unequivocal in explaining that the school was by no means religious.  Despite  some raised eyebrows and a brief suspension of Hebrew classes by the  Broward County school district, the charter school appears to be  thriving, and its founder plans to open additional Hebrew- language  charter schools in the coming years.

The media attention it garnered notwithstanding, the Ben Gamla experiment is far from unique.  Since the advent of the charter school movement in the early 1990s, a number of start-up schools  have adopted similar, culture-oriented models.  These controversial schools straddle longstanding disputes over religion, pedagogy, and the public fisc that date to the earliest incarnations of the public school system.  From bitter conflict over the anti-Catholic character of the first common schools to modern controversies over school prayer and vouchers, public education has historically been a flashpoint of the hoary church-state debate. 

Against this backdrop, the potential for religiously themed charter schools — charters that carry the Ben Gamla model several steps further — offers a new wrinkle for consideration. Steeped in notions of  educational choice, charter schools are publicly funded independent schools whose capacity for flexibility and entrepreneurship affords the possibility of “more innovative, effective, and accountable” leadership than that offered by traditional school districts. Less than two decades old, the movement has garnered its fair share of skepticism, while quickly establishing itself among the latest fixtures of public education reform.

To date, charter schools that have tested the church-state line remain in the extreme minority.  However, Ben Gamla and others of its ilk may represent the bleeding edge of a brewing constitutional controversy. Indeed, the apparent consonance between the role of choice in the charter school model and in the Supreme Court’s evolving interpretation of the Establishment Clause suggests that it is only a matter of time before the looming legal question is vigorously pressed.

This Note explores the constitutional feasibility of religious charter schools. Part I tracks the evolution of the charter school movement, relating the steady advance of the charter idea and noting the development of culture-specific charter schools. Part II turns to emerging Supreme Court doctrine on this issue, paying particular attention to the increasing centrality of private choice in the Court’s Establishment Clause jurisprudence.  Part III evaluates these trends in concert, offering an assessment of the constitutional
concerns surrounding explicitly religious charter schools and observing that recent voucher decisions may have opened the door to religious charters. Part IV briefly concludes.

Although neutrality may well be “at times a graver sin than belligerence,” it is worth stating at the outset that this Note deliberately eschews normative questions as to the desirability of religiously themed public education.  This is not to understate the significance of  an issue that will surely continue to be discussed and debated in the  media outlets, courtrooms, and town squares that serve as the cathedrals of American civic religion.  It is only to limit this Note’s focus to a question that can be introduced in the space available: might religious charter schools pass constitutional muster?

8) Pew Forum on Religion & Public Life, Shifting Boundaries: The Establishment Clause and Government Funding of Religious Schools and Other Faith-Based Organizations (2009). The abstract states:

The debate over government funding of religious groups and institutions raises some of the thorniest issues in the ongoing discussion about the appropriate relationship between church and state.  Most legal scholars agree that the Establishment Clause in the First Amendment to the U.S. Constitution limits at least some government funding of religion, but they disagree sharply on exactly what is permissible.

Participants in the debate fall roughly into two camps:  On the one side are “separationists, ” who broadly interpret the Establishment Clause – which prohibits all laws “respecting an establishment of religion” – to require that government refrain from aiding or promoting religion or religious institutions. Strict separationists therefore claim that most, or even all, government funding of religion is unconstitutional.  On the other side are those who interpret the Establishment Clause much more narrowly, contending that government funding of religion is constitutional as long as the funding is neutral, meaning it does not favor religion over non-religion or favor a particular faith over other faiths.

Although the U.S. Supreme Court has embraced each of these viewpoints at different times in its history, many of the court’s decisions in this area do not wholly adopt either approach. Instead, much of the constitutional law on the subject has rested on the broad principle that government funding of religion is permissible as long as the funding does not make the government responsible for advancing a particular set of religious beliefs.

Before the landmark 1947 decision Everson v. Board of Education, only two Establishment Clause disputes about government funding of religion reached the Supreme Court. In both of these earlier cases, the court refrained from law on government funding of religion has shifted away from separationism in recent years, courts have consistently maintained that the government may not support religious instruction.

9) Michael H. Shapiro (University of Southern California),Argument Selection in Constitutional Law: Choosing and Reconstructing Conceptual Systems, 18 S. Cal. Rev. of Law and Social Justice 209 (2009).  The abstract states:

In some cases, it is clear that more than one constitutional argument will fairly lead to the same adjudicatory outcome. For the most part, courts choose exactly one of them, although in some cases they cumulate the converging arguments. When courts select just one, or at least fewer than all, on what basis do they, and should they, choose? Put tersely, what are the criteria for choosing among arguments that meet at the same outcome?

The virtue of formulating this question by imposing the same-outcome constraint is that it requires us to look closely at exactly what distinguishes one argument from another. In particular, we have to determine their comparative suitability for being chosen as the operational argument that drives or explains the adjudicatory outcome. What are the criteria of such quality in arguments - for a given court or court level, for a given jurisdiction, for a given kind of problem - and so on? How to select legal arguments generally is a fairly standard jurisprudential issue, but the approach here is to adjust our focus for greater clarity by removing an often dazzling difference among arguments their results. The reason for focusing on arguments in the first place is that, as I argue, the expression and operational meaning of a constitutional value is the argument that implements it - loosely, the argument is the value is the argument . . . .

Because this Article’s chief vehicle for analysis is constitutional adjudication, most of the discussion is tied to U.S. Supreme Court cases. After explaining what is meant by certain key concepts, such as “the same adjudicatory outcome” and “fairly/plausibly reaching” the same adjudicatory outcome, I suggest a set of criteria, set at a midlevel theoretical plane, for selecting among converging arguments in constitutional adjudication. These criteria include the presentation, ratification, reinforcement, and implementation of constitutional values in ways that match the hierarchic value system embedded in the Constitution; the anticipation of “revenge effects” of adopting a given argument structure that is transplanted to a neighboring constitutional region; and the rational obstruction of dangerous insights by masking certain conflicts among basic values.

Of course, the failure to select an argument structure in a given case, or even over a range of cases, is not necessarily a “rejection” of the values and frameworks embedded in the nonselected argument. The decisions not to adopt or even “list” the converging arguments rest on complex factors (including those affecting collegial courts), but here I address what I see as primary jurisprudential considerations - considerations that take account of our understandings (such as they are) of various aspects of human decision making.

This Article deals with several objections to pursuing its topic, and then presents a series of examples: Police Department of Chicago v. Mosley, where I ask why the Equal Protection Clause was needed to vindicate the equality values ruled to be embedded within the First Amendment “on its own,” compare First Amendment with equal protection approaches, and thus press the more general examination of the entanglement of equality and liberty; Rochin v. California, where Justice Frankfurter’s version of due process competed with Justice Black’s and Justice Douglas’s approach favoring use of the constitutional protection against self-incrimination; the case of the Francophobic Assassin, in which a political assassination is defended by the assassin as First Amendment expression; a collection of equal protection problems involving searches for suspects, race wars in prison, school segregation, medical measures, and race and affirmative action in education and labor; the Civil Rights Act of 1964 and its rival Commerce Clause and Fourteenth Amendment, § 5 rationales; and City of Renton v. Playtime Theatres, Inc., concerning the location of sex-oriented movie theatres.

In keeping with the idea that constitutional values are implemented in part by the presentation of arguments, I ask to what extent courts should be explicit in addressing how they choose among converging arguments, and contrast this question with asking whether the convergence of “higher theories” on a given argument similarly requires extended attention. For the former, I suggest that explicitness is what is presumptively required by the very existence of constitutional values that are meant to be implemented. For the latter, I suggest that ordinarily there is no need for devolving to higher theory or “foundations.”

10) Meiring De Villiers (University of New South Wales - Faculty of Law), Substantial Truth in Defamation Law, 32 Am. J. Trial Advoc. 91 (2008).  The abstract states:

Truth is a complete defense to a defamation charge, but a defendant does not have to prove the literal truth of a defamatory statement to prevail. An effective defense can rely on the substantial truth doctrine. Under the substantial truth doctrine, a defamatory statement is First Amendment-protected if it is factually similar to the pleaded truth, and does not differ from the truth by more than immaterial details. This article presents and analyzes the theory, application, and constitutional foundations of the substantial truth doctrine. It concludes that the doctrine promotes the values of the First Amendment by reducing the risk of self-censorship, yet preserves defamation law's reputational protection and compensatory function.

JFB

Global Free Speech Update

Lawmakers in the Philippines are debating a 'right of reply' bill, though one of the bill's original sponsors recently withdrew his support.  Deputy Majority Leader Juan Edgardo Angara said that media groups already extend a right of reply as a practical matter, and opined that editorial functions should remain a "privately exercised" prerogative.

Activists in Botswana are calling for a "free and independent press," and urging lawmakers to loosen restrictions on reporting activities.  One major point of criticism is the country's Media Practitioner's Act which includes a 'right of reply' provision and a registration requirement for journalists.   

In Yemen, the High Judicial Council announced plans to establish a special court to try cases related to media and publishing offenses.  Yemeni journalist Abdel Karim al-Khaiwani, called the court a "huge step backward" and "flagrant violation of the Constitution and international law."

The European Union declared internet access a "fundamental right" on par with freedom of expression and passed a measure requiring member states to obtain a court order before terminating a user's access.  But the Senate in France passed a rule of its own promising to cut internet access for up to a year the third time someone is accused of illegally sharing copyrighted material.  Accused is the key word here, as guilt is apparently not required to trigger a suspension.  And there's no procedure for appeal.     

-Kathleen A. Bergin

Senate Bill Proposes Tax Exempt Newspapers

Senators Ben Cardin and Barbara Mikulski have introduced a bill that would give newspapers tax-exempt status under the IRS code.  The move is clearly an attempt to rescue the failing newspaper industry, but critics fear it is a dangerous first step that could lead to more intrusive government regulation of newspapers in the future.  Link to S673.

-Kathleen Bergin