First Amendment Law Prof Blog

Supreme Court Delays Critical Campaign Finance Decision

What to make of the delay in Citizens United v. Federal Election Commission? 

Proponents of campaign finance reform aren't optimistic that the Court's decision to schedule additional arguments for September will work to their favor.  The outcome in Citizens United could have been decided on statutory grounds, but the constitutionality of limits on corporate campaigning is now squarely on the table, making the case even more important than it already would have been. 

If history is our guide, there's a strong likelihood that the Court asked for additional arguments because it its looking for a reason to overturn prior cases under which the campaign limits at issue would have been upheld.

-Katheen A. Bergin

Practice Skills in Doctrinal Classrooms

They're talking about the value of practice skills to the law school curriculum over at the Conglomerate.  Here's my take on it:

Though I'm a First Amendment doctrinal prof fond of critical theory, I side with those who think that US law schools must do more to develop and reward those who teach effective writing, process and skills programs.  Let's face it, most of our students won't become Law Profs, or legal philosophers, or theorists of any kind.  They'll become lawyers, and they want to be good ones.

So besides substantive knowledge, what can a doctrinal prof bring to the table? 

Plenty.  My colleague Rocky Rhodes and I just completed a final manuscript for the First Amendment volume of the new Skills & Values series by Lexis (shameless plug acknowledged).  The book includes 14 problems and associated tasks that make students think like actual lawyers.  They're asked to draft pleadings, interrogatories, requests for production, and other litigation documents.  They also navigate tactical dilemmas.  As a prosecutor, when should they bring charges in the course of an on-going factual investigation?  As a defense attorney, is it best to address the charges on the merits or move to dismiss?  Other problems place students in the role of a judicial law clerk, a lawyer in private practice, or an advocate who submits written testimony to a legislative committee.    

We strived to make each problem as realistic as possible given the format.  Lawyers aren't handed a narrative hypothetical in practice, so we don't give them to students.  We give just enough background information to make the problems workable, but otherwise rely on client correspondence, charging documents, subpoenas, and the like - the kinds of things attorneys in the real world build a case out of.

I've experimented with some of these problems in class last semester, and the result was overwhelmingly positive.  Most notable was the collective glaze that swept over the class on the weeks we went back to the socratic method.  It was painful all around. 

I'm hoping projects like these will lead to more integration between doctrine and skills without discounting the need to support existing practice-oriented courses.

-Kathleen Bergin

Cross-post Faculty Lounge.

Mother May Seek Cert in Case Challenging School's Refusal to Allow Reading from the Bible As Part of "All About Me" Presentation

In June, the Third Circuit decided Busch v. Marple Newtown School Dist., 567 F.3d 89 (3d. Cir. 2009), ruling that school officials had not acted unconstitutionally when they refused to allow a kindergartener’s mother to read a selection  from the Bible as part of an “All About Me” activity in which students were invited to have a parent read to the class from a favorite book.  Asserting that allowing the student’s mother to read the passages from the Book of Psalms would have created an Establishment Clause violation, the school principal invited the fundamentalist Christian mother to read from a Halloween book instead .  Writing for the majority, Chief Judge Scirica explained the crux of the ruling as follows:

It may be reasonably argued that a mother’s reading of the Bible to a kindergarten class, especially sublime verses from the Book of Psalms, should be permitted. In this sense and for many, the conduct is benign and the message inspiring. But a reading from the Bible or other religious text is more than a message and unquestionably conveys a strong sense of spiritual and moral authority. In this case, the audience is involuntary and very young. Parents of public school kindergarten students may reasonably expect their children will not become captive audiences to an adult’s reading of religious texts.

In dissent, Judge Hardiman concluded the school’s actions reflected unconstitutional viewpoint discrimination, echoing concerns voiced by then Judge Alito’s dissent from the en banc ruling in C.H. v. Oliva, 226 F.3d 198 (3d Cir.2000), in which a school’s handling of the display of an elementary school student’s religiously themed artwork was challenged. As noted on How Appealing, the Philadelphia Inquirer reports that the mother in the case is considering asking the Supreme Court to review the ruling.  I address some of the constitutional questions raised by students’ religious speech at school in my recent article, Representative Tension: Student Religious Speech and the Public School’s Institutional Mission, 38 J.L. & Educ. 1 (2009).

JFB

First Amendment Scholarship Update

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

1)  Zachary R. Calo (Valparaiso University School of Law), Law, Language and Love: James Boyd White’s Living Speech: Resisting the Empire of Force, J.L. Phil. & Culture (forthcoming 2009). The abstract states:

     A review essay considering James Boyd White's, Living Speech.

2) Berin Michael Szoka & Adam D. Thierer (The Progress & Freedom Foundation), Cyberbullying Legislation: Why Education is Preferable to Regulation, 16 Progress & Freedom Found. Progress on Point Paper, No. 12 (2009). The abstract states:

Cyberbullying is a rising online safety concern. Compared to previous fears about online predation, which have been greatly overblown, concerns about cyberbullying are more well-founded. Evidence suggests that cyberbullying is on the rise and can have profoundly damaging consequences for children.

In the wake of a handful of high-profile cyberbullying incidents that resulted in teen suicides, some state lawmakers began floating legislation to address the issue. More recently, two very different federal approaches have been proposed. One approach is focused on the creation of a new federal felony to punish cyberbullying, which would include fines and jail time for violators. The other legislative approach is education-based and would create an Internet safety education grant program to address the issue in schools and communities.

Criminalizing what is mostly child-on-child behavior will not likely solve the age-old problem of kids mistreating each other, a problem that has traditionally been dealt with through counseling and rehabilitation at the local level. Moreover, criminalization could raise thorny free speech and due process issues related to legal definitions of harassing or intimidating speech. To the extent criminal sanctions are pursued as a solution, it may be preferable to defer to state experimentation with varying models at this time.

By contrast, education and awareness-based approaches have a chance of effectively reducing truly harmful behavior, especially over the long haul. Such approaches would have the added benefit of avoiding constitutional pitfalls and subsequent court challenges. Thus, if lawmakers feel the need to address cyberbullying concerns at this time, it is clear that regulation is, at best, premature and that education is the better approach. If federal criminal law has a role to play, it is in punishing clear cases of harassment of minors by adults in ways that do not chill free speech protected by the First Amendment.

3.  ISLAMIC RADICALISATION: THE CHALLENGE FOR EURO-MEDITERRANEAN RELATIONS, (Michael Emerson et al. eds. 2009) The abstract states:

On June 4th, Obama will deliver his long-anticipated speech in Cairo, which is expected to convey a reconciliatory message to Arabs and Muslims across the world. As both the US and the EU are trying to reset their policies in the Middle East, the challenge of how to deal with the most important emerging actors in the region – Islamists – remains a matter of great controversy. In this book, Arab and European authors ask whether the EU's current policies are contributing to the radicalisation of Islamist movements in the Middle East and North Africa, and argue in favour of an EU policy based on inclusion.

4) Dr. Tamar Gidron (College of Management, Israel), Publication of Private Information: An Examination of the Right to Privacy from a Comparative Perspective (2009). The abstract states:

How much did the chairman of an Israeli political party – with a social-democratic platform – pay for his apartment? Who were the guests of the former prime minister of Israel at his son's Bar Mitzvah and what was the cost of this celebration? Was pumpkin carving the favorite hobby of Barack Obama as a child growing up in Hawaii? What was Hillary Clinton's favorite type of sandwich as a law student? Is it permissible to “out” a person as a homosexual against his wishes? And just how “private” is our privacy when we are walking down the street and some aspect of our appearance catches the eye of a passing photographer?

In general, how does a modern society cope with the need to protect the right to privacy when an individual wishes to prevent the public disclosure of personal information, and within what boundaries is the media – motivated by economic, commercial, and social interests – protected when, on the one hand, it feeds society morsels of trivia, but, on the other hand, also provides information of general, social importance? Is there a difference between the protection of privacy and the protection of reputation, particularly when the boundaries of these two rights overlap? How do courts deal with the need to apply the social, moral, and economic theories underlying these fundamental rights and freedoms – on the one hand, the right to privacy and the right to reputation, and, on the other hand, freedom of expression and the right to information – none of which, as we know, is absolute?

The above examples, as well as those discussed below, illustrate the need to strike a balance between two, and sometimes three, competing interests. On the one hand, the right of an individual unwillingly exposed to the public eye – often in disgrace – to maintain his privacy and sometimes also his reputation, and, on the other hand, the complex right – anchored both in the collective, public interest as well as the personal, private interest of each member of society – to the free and unrestrained flow of information

Five random examples taken from recent case law best illustrate the moral and ideological dilemmas raised by the subject of this article: (1) a university professor publicly advises his colleagues that the academic level of a candidate for doctoral studies at the institution where he teaches is sub-standard and that the student should not be accepted for advanced studies;9 (2) a young man wearing an Israel Defense Forces (IDF) uniform is photographed at the center of a gay pride parade marching through the streets of Israel's capital and the photo is published two years later in an article unrelated to the parade, without his consent; (3) the promo for a television program dealing with the phenomenon of obesity, dieting, and the health risks of being overweight (“On the Scale”) makes unauthorized use of the image of an overweight woman filmed in the public domain; (4) a politician's biography reveals the names of HIV carriers; (5) the medical history of a cabinet member holding the health portfolio, containing details of her drinking habits and associated medical problems, is disclosed in the press.

It is this struggle between the desire and need to publish, on the one hand, and the fear of causing injury to a person's emotional state, reputation, and dignity, on the other, that confronts a modern society in its attempt to provide legal protection for the right to privacy and the right to reputation. This is made particularly difficult by the fact that modern society is hungry for knowledge, news, the exposure of “confidential,” even gossipy, details, and the unceasing flow of information – whereas the actual importance of such information is usually disproportionate to the interest that it arouses among the consumer public.

Every legal system chooses to protect privacy, in all of its various aspects and nuances, according to the degree of importance ascribed to this right in comparison to other, sometimes competing, interests. An examination of the similarities and variations between different legal systems with respect to the legal tools and rules regulating protection of the privacy right could teach us much about the nature, content, source, and importance of the right itself. Such an examination can also provide insights about the protection granted by each legal system to the cluster of personality rights, which – alongside the right to privacy – also includes the right to reputation, the right to publicity, and the right to dignity and autonomy. Finally, it can shed light on the relation between the protection granted to the privacy right by constitutional law and that granted by private law.

In the present article, I will examine only one aspect of the right to privacy, which, in contrast to most other fundamental rights, is multi-faceted and may thus be infringed in diverse ways. I have chosen to focus solely on the manner and extent of protection granted to an individual who wishes to prevent the publication of personal information. This article will not deal with invasion of privacy through methods such as wiretapping, surveillance, computer hacking, and so forth, when such acts do not lead to a public disclosure of the information obtained. The aim of this article is to examine prevailing trends in case law that deals with safeguards against the publication of private information and the direction that this case law may take in the future.

The evolution of this body of case law will be examined through an analysis of several important, recent judgments addressing protection of the privacy right, along with a comparative treatment of the right to reputation, when both these rights are confronted by the competing interests of freedom of expression, in general, and freedom of the press, in particular. An examination of the legal systems compared below highlights their differences in terms of the cultural background of each society, the historical development of the right to privacy within the societal context, and the manner in which the prevailing law incorporates, alters, and balances conflicting factors and opposing viewpoints through the use of flexible legal tools. This is usually accomplished with some impressive rhetorical acrobatics, but, unfortunately, it often lacks an adequate explanation for the choice between competing values. This comparison will also serve as a basis for examining the development of each of these legal systems, different from one another in affiliation and origin – common law versus mixed systems – as well as in the manner in which they have adopted human rights within the framework of private law, whether by force of an international convention or a constitution and whether by force of a basic law or specific tort legislation

The current state of English law will be examined mainly through the prism of the judgment in Mosley v. News Group Newspapers Ltd. Apart from the journalistic lessons that may be drawn from the treatment of its professional, editorial aspects, and due to its scandalous circumstances, this case offered the London Queen's Bench a golden opportunity to review the precedential basis for privacy protection in England while combining the common law with the constitutional protection derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Mosley will also be compared here to the noteworthy Jameel defamation case. In the latter case, following a series of judgments reflecting genuine indecision as to the proper balance between the individual's right to reputation and the press's right to publish stories it believes to be in the public interest, the House of Lords was required to reformulate the complicated tests for striking a balance between these competing interests. Jameel indicates the adoption of a different point of balance from that reflected by Mosley, where the cause of action was based on an invasion of privacy tort.

An examination of the legal situation in South Africa could enrich the discussion with an original and novel perspective. This is a truly mixed legal system, reflecting various origins and different elements of tort law, in general, and of the right to privacy, in particular. Therefore, it could serve as an interesting basis for comparison. The prevailing approach of South African case law regarding the protection of privacy will be presented through two of the most important South African judgments of recent years. In these cases, the South African courts were required to decide on the legitimacy of published information that was particularly revealing. In the first case, the plaintiffs were identified – without their consent – as HIV carriers. The second case dealt with the right of the minister of health to prevent the press from publishing reports of her drinking habits, in general, and her hospitalization for liver disease, in particular.

This survey will also entail a comparative treatment of new South African case law regarding the proper balance between application of the law of defamation, on the one hand, and freedom of expression and the press, on the other, particularly because the South African Constitutional Court itself has often been called upon to address this conflict.

The comparative survey will be concluded with a review of recent Israeli case law. Each year, Israeli courts deal with more and more cases involving both defamation and privacy issues. These cases require a value-based cultural and social, as well as a complex economic, resolution. Therefore, the Israeli perspective offers quite an interesting source for the purpose of comparison.

The picture emerging from this comparative study indicates an expanded protection of the privacy right – which are not always consistent with prevailing trends in case law dealing with the protection of reputation – at the expense of the “rights” of the media. This picture is identical in all three legal systems examined here: English law, South African law, and Israeli law. However, despite the identical cultural-legal process of these three societies, which leads to an identical legal outcome, there are still considerable differences between the rhetoric employed by each legal system, the force of the value-based arguments raised, and the legal analysis of the relevant issues.

5. Rob Frieden (Pennsylvania State University - School of Law), Invoking and Avoiding the First Amendment: How Internet Service Providers Leverage Their Status as Both Content Creators and Neutral Conduits,. The abstract states:

Much of the policy debate and scholarly literature on network neutrality has addressed whether the Federal Communications Commission (“FCC”) has statutory authority to require Internet Service Providers (“ISPs”) to operate in a nondiscriminatory manner. Such analysis largely focuses on questions about jurisdiction, the scope of lawful regulation, and the balance of power between stakeholders, generally adverse to government oversight, and government agencies, apparently willing to overcome the same inclination. The public policy debate primarily considers micro-level issues, without much consideration of broader concerns such as First Amendment values.

While professing to support marketplace resource allocation and a regulation-free Internet, the FCC has selectively imposed compulsory duties on ISPs who qualify for classification as largely unregulated information service providers. Such regulation can tilt the competitive playing field, possibly favoring some First Amendment speakers to the detriment of others. Yet the FCC has summarily dismissed any concerns that the Commission’s regulatory regime inhibits First Amendment protected expression.

For their part, ISPs have evidenced inconsistency in how seriously they value and exercise their First Amendment speaker rights. Such reticence stems, in part, from the fact that ISPs combine the provision of conduits, using telecommunications transmission capacity, with content. While not operating as regulated common carriers, the traditional classification of conduit-only providers, ISPs can avoid tort and copyright liability when they refrain from operating as speakers and editors of content. In other instances, the same enterprise becomes an aggressive advocate for First Amendment speaker rights when selecting content, packaging it into a easily accessible and user friendly “walled garden,” and employing increasingly sophisticated information processing techniques to filter, prioritize and inspect digital packets.

Technological and marketplace convergence creates the ability and incentive for ISPs to operate as publishers, editors, content aggregators, and non-neutral conduit providers. No single First Amendment media model (print, broadcast, cable television and telephone), or legislative definition of service (telecommunications, telecommunications service and information service) cover every ISP activity. Despite the lack of single applicable model and the fact that ISPs provide different services, the FCC continues to apply a single, least regulated classification. The inclination to classify everything that an ISPs does into one category promotes administrative convenience, but ignores the complex nature of ISP services and the potential for to harm individuals, groups and First Amendment values absent government oversight. For example, the information service classification enables ISPs to engage in price and quality of service discrimination that network neutrality advocates worry will distort a free marketplace of ideas.

This paper will examine the different First Amendment rights and responsibilities borne by ISPs when they claim to operate solely as conduits and when they combine conduit and content. The paper will show that ISPs face conflicting motivations with light FCC regulation favoring diversification into content management services, like that provided by editors and cable television operators, but with legislatively conferred exemptions from liability available when ISPs avoid managing content. The paper concludes that current media models provide inconsistent and incomplete direction on how to consider ISPs’ joint provision of conduit and content. The paper provides insights on how a hybrid model can address media convergence, and promote First Amendment values while imposing reasonable nondiscrimination responsibilities on ISPs.

6. Winnifred F. Sullivan (University of Buffalo Law School, PRISON RELIGION: FAITH-BASED REFORM AND THE CONSTITUTION, (Princeton Univ. Press, 2009). The abstract states:

More than the citizens of most countries, Americans are either religious or in jail--or both. But what does it mean when imprisonment and evangelization actually go hand in hand, or at least appear to? What do "faith-based" prison programs mean for the constitutional separation of church and state, particularly when prisoners who participate get special privileges? In Prison Religion, law and religion scholar Winnifred Fallers Sullivan takes up these and other important questions through a close examination of a recent trial challenging the constitutionality of a faith-based residential rehabilitation program in an Iowa state prison, a trial in which she served as an expert witness for the prisoner-plaintiffs.

Using the trial to illuminate the interrelationship of American law and religion today, Prison Religion argues that the plaintiffs' case unintentionally shows that separation of church and state is no longer possible because religious authority has radically shifted from institutions to individuals, making it difficult to define religion, let alone disentangle it from the state. In the course of advancing this unconventional view, Prison Religion casts new light on church-state law, the debate over government-funded faith-based programs, and the predicament of prisoners who have precious little choice about what kind of rehabilitation they receive, if they are offered any at all.

7. James M. O'Toole, THE FAITHFUL: A HISTORY OF CATHOLICS IN AMERICA, (Belknap Press, Nov. 2009). The abstract states:

Shaken by the ongoing clergy sexual abuse scandal, and challenged from within by social and theological division, Catholics in America are at a crossroads. But is today’s situation unique? And where will Catholicism go from here? With the belief that we understand our present by studying our past, James O’Toole offers a bold and panoramic history of the American Catholic laity.

O’Toole tells the story of this ancient church from the perspective of ordinary Americans, the lay believers who have kept their faith despite persecution from without and clergy abuse from within. It is an epic tale, from the first settlements of Catholics in the colonies to the turmoil of the scandal-ridden present, and through the church’s many American incarnations in between. We see Catholics’ complex relationship to Rome and to their own American nation. O’Toole brings to life both the grand sweep of institutional change and the daily practice that sustained believers. The Faithful pays particular attention to the intricacies of prayer and ritual—the ways men and women have found to express their faith as Catholics over the centuries.

With an intimate knowledge of the dilemmas and hopes of today’s church, O’Toole presents a new vision and offers a glimpse into the possible future of the church and its parishioners. Moving past the pulpit and into the pews, The Faithful is an unmatched look at the American Catholic laity. Today’s Catholics will find much to educate and inspire them in these pages, and non-Catholics will gain a newfound understanding of their religious brethren.

8. Moshik Temkin (Harvard University Kennedy School of Government), THE SACCO-VANZETTI AFFAIR: AMERICA ON TRIAL, (Yale University Press, April 2009). The abstract states:

What began as the obscure local case of two Italian immigrant anarchists accused of robbery and murder flared into an unprecedented political and legal scandal as the perception grew that their conviction was a judicial travesty and their execution a political murder. This book is the first to reveal the full national and international scope of the Sacco-Vanzetti affair, uncovering how and why the two men became the center of a global cause célèbre that shook public opinion and transformed America’s relationship with the world.

Drawing on extensive research on two continents, and written with verve, this book connects the Sacco-Vanzetti affair to the most polarizing political and social concerns of its era. Moshik Temkin contends that the worldwide attention to the case was generated not only by the conviction that innocent men had been condemned for their radical politics and ethnic origins but also as part of a reaction to U.S. global supremacy and isolationism after World War I. The author further argues that the international protest, which helped make Sacco and Vanzetti famous men, ultimately provoked their executions. The book concludes by investigating the affair’s enduring repercussions and what they reveal about global political action, terrorism, jingoism, xenophobia, and the politics of our own time.

9. Shayne Lee & Phillip Luke Sinitiere, HOLY MAVERICKS: EVANGELICAL INNOVATORS AND THE SPIRITUAL MARKETPLACE, (NYU Press, April 2009). The abstract states:

Joel Osteen, Paula White, T. D. Jakes, Rick Warren, and Brian McLaren pastor some the largest churches in the nation, lead vast spiritual networks, write best-selling books, and are among the most influential preachers in American Protestantism today. Spurred by the phenomenal appeal of these religious innovators, sociologist Shayne Lee and historian Phillip Luke Sinitiere investigate how they operate and how their style of religious expression fits into America’s cultural landscape. Drawing from the theory of religious economy, the authors offer new perspectives on evangelical leadership and key insights into why some religious movements thrive while others decline.

Holy Mavericks provides a useful overview of contemporary evangelicalism while emphasizing the importance of "supply-side thinking" in understanding shifts in American religion. It reveals how the Christian world hosts a culture of celebrity very similar to the secular realm, particularly in terms of marketing, branding, and publicity. Holy Mavericks reaffirms that religion is always in conversation with the larger society in which it is embedded, and that it is imperative to understand how those religious suppliers who are able to change with the times will outlast those who are not.

10. Hasia R. Diner, WE REMEMBER WITH REVERENCE AND LOVE: AMERICAN JEWS AND THE MYTH OF SILENCE AFTER THE HOLOCAUST, 1945-1962, (NYU Press, April 2009). The abstract states:

It has become an accepted truth: after World War II, American Jews chose to be silent about the mass murder of millions of their European brothers and sisters at the hands of the Nazis. Whether motivated by fear, shame, or the desire to assimilate, the Jewish community in the United States simply did not memorialize the Holocaust until the Eichmann trial and the 1967 Arab-Israeli War made it socially acceptable for them to do so.

In a compelling work sure to draw fire from academics and pundits alike, Hasia R. Diner shows this assumption of silence to be categorically false. Uncovering a rich and incredibly varied trove of remembrances—in song, literature, liturgy, public display, political activism, and hundreds of other forms—We Remember with Reverence and Love shows that publicly memorializing those who died in the Holocaust arose from a deep and powerful element of Jewish life in postwar America. Not only does she marshal enough evidence to dismantle the idea of American Jewish "forgetfulness," she brings to life the moving and manifold ways that this widely diverse group paid tribute to the tragedy.

Uncovering a wonderfully rich and incredibly varied trove of remembrances—in song, literature, liturgy, public display, and hundreds of other forms—the NYU professor shows that publicly memorializing those who died in the Holocaust was a deep and powerful element of Jewish life in postwar America. Not only does she marshal enough evidence to utterly destroy the idea of American Jewish "forgetfulness," she brings to life the moving and manifold ways that this widely diverse group paid tribute to the tragedy.

Diner also offers a compelling new perspective on the 1960s and its potent legacy, by revealing how our typical understanding of the postwar years emerged from the cauldron of cultural divisions and campus battles a generation later. The student activists and "new Jews" of the 1960s who, in rebelling against the American Jewish world they had grown up in"a world of remarkable affluence and broadening cultural possibilities"created a flawed portrait of what their parents had, or rather, had not, done in the postwar years. This distorted legacy has been transformed by two generations of scholars, writers, rabbis, and Jewish community leaders into a taken-for-granted truth.

Diner has at last recovered these vital years in American Jewish history, and radically alters our understanding not only of postwar America Jewry, but of the ways that the Holocaust and the 1960s alike continue to reverberate in our lives.

11. Alan E. Steinweis, KRISTALLNACHT 1938, (Belknap Press, Nov. 2009). The abstract states:

On November 7, 1938, a Jewish teenager, Herschel Grynspan, fatally shot a German diplomat in Paris. Within three days anti-Jewish violence erupted throughout Germany, initially incited by local Nazi officials, and ultimately sanctioned by the decisions of Hitler and Goebbels at the pinnacle of the Third Reich. As synagogues burned and Jews were beaten in the streets, police stood aside. Men, women, and children—many neighbors of the victims—participated enthusiastically in acts of violence, rituals of humiliation, and looting. Within two days, a nationwide anti-Semitic pogrom had inflicted massive destruction on synagogues, Jewish schools, and Jewish-owned businesses. During and after this spasm of violence and plunder, 30,000 Jewish men were rounded up and sent to concentration camps, where hundreds would perish in the following months.

Kristallnacht revealed to the world the intent and extent of Nazi Judeophobia. However, it was seen essentially as the work of the Nazi leadership. Now, Alan Steinweis counters that view in his vision of Kristallnacht as a veritable pogrom—a popular cathartic convulsion of anti-Semitic violence that was manipulated from above but executed from below by large numbers of ordinary Germans rioting in the streets, heckling and taunting Jews, cheering Stormtroopers’ hostility, and looting Jewish property on a massive scale.

Based on original research in the trials of the pogrom’s perpetrators and the testimonies of its Jewish survivors, Steinweis brings to light the evidence of mob action by all sectors of the civilian population. Kristallnacht 1938 reveals the true depth and nature of popular anti-Semitism in Nazi Germany on the eve of the Holocaust.

12. Rebecca Nedostup, SUPERSTITIOUS REGIMES: RELIGION AND THE POLITICS OF CHINESE MODERNITY, (Harvard East Asian Monographs, Nov. 2009). The abstract states:

We live in a world shaped by secularism—the separation of numinous power from political authority and religion from the political, social, and economic realms of public life. Not only has progress toward modernity often been equated with secularization, but when religion is admitted into modernity, it has been distinguished from superstition. That such ideas are continually contested does not undercut their extraordinary influence.

These divisions underpin this investigation of the role of religion in the construction of modernity and political power during the Nanjing Decade (1927–1937) of Nationalist rule in China. This book explores the modern recategorization of religious practices and people and examines how state power affected the religious lives and physical order of local communities. It also looks at how politicians conceived of their own ritual role in an era when authority was meant to derive from popular sovereignty. The claims of secular nationalism and mobilizational politics prompted the Nationalists to conceive of the world of religious association as a dangerous realm of “superstition” that would destroy the nation. This is the first “superstitious regime” of the book’s title. It also convinced them that national feeling and faith in the party-state would replace those ties—the second “superstitious regime.”

13. Benjamin J. Kaplan, DIVIDED BY FAITH: RELIGIOUS CONFLICT AND THE PRACTICE OF TOLERATION IN EARLY MODERN EUROPE, (Belknap Press, Oct. 2009). The abstract states:

As religious violence flares around the world, we are confronted with an acute dilemma: Can people coexist in peace when their basic beliefs are irreconcilable? Benjamin Kaplan responds by taking us back to early modern Europe, when the issue of religious toleration was no less pressing than it is today.

Divided by Faith begins in the wake of the Protestant Reformation, when the unity of western Christendom was shattered, and takes us on a panoramic tour of Europe's religious landscape--and its deep fault lines--over the next three centuries. Kaplan's grand canvas reveals the patterns of conflict and toleration among Christians, Jews, and Muslims across the continent, from the British Isles to Poland. It lays bare the complex realities of day-to-day interactions and calls into question the received wisdom that toleration underwent an evolutionary rise as Europe grew more "enlightened." We are given vivid examples of the improvised arrangements that made peaceful coexistence possible, and shown how common folk contributed to toleration as significantly as did intellectuals and rulers. Bloodshed was prevented not by the high ideals of tolerance and individual rights upheld today, but by the pragmatism, charity, and social ties that continued to bind people divided by faith.

Divided by Faith is both history from the bottom up and a much-needed challenge to our belief in the triumph of reason over faith. This compelling story reveals that toleration has taken many guises in the past and suggests that it may well do the same in the future.

14. Ali A. Allawi (Senior Visiting Fellow, Princeton University), THE CRISIS OF ISLAMIC CIVILIZATION, (Yale University Press, March 2009). The abstract states:

Islam as a religion is central to the lives of over a billion people, but its outer expression as a distinctive civilization has been undergoing a monumental crisis. Buffeted by powerful adverse currents, Islamic civilization today is a shadow of its former self. The most disturbing and possibly fatal of these currents—the imperial expansion of the West into Muslim lands and the blast of modernity that accompanied it—are now compounded by a third giant wave, globalization.

These forces have increasingly tested Islam and Islamic civilization for validity, adaptability, and the ability to hold on to the loyalty of Muslims, says Ali A. Allawi in his provocative new book. While the faith has proved resilient in the face of these challenges, other aspects of Islamic civilization have atrophied or died, Allawi contends, and Islamic civilization is now undergoing its last crisis.

The book explores how Islamic civilization began to unravel under colonial rule, as its institutions, laws, and economies were often replaced by inadequate modern equivalents. Allawi also examines the backlash expressed through the increasing religiosity of Muslim societies and the spectacular rise of political Islam and its terrorist offshoots. Assessing the status of each of the building blocks of Islamic civilization, the author concludes that Islamic civilization cannot survive without the vital spirituality that underpinned it in the past. He identifies a key set of principles for moving forward, principles that will surprise some and anger others, yet clearly must be considered.

15. THE RELIGIOUS IN RESPONSES TO MASS ATROCITY: INTERDISCIPLINARY PERSPECTIVES, (Thomas Brudholm & Thomas Cushman eds.,Cambridge University Press, Feb. 2009). The abstract states:

A peculiar and fascinating aspect of many responses to mass atrocities is the creative and eclectic use of religious language and frameworks. Some crimes are so extreme that they “cry out to heaven,” drawing people to employ religious vocabulary to make meaning of and to judge what happened, to deal with questions of guilt and responsibility, and to re-establish hope and trust in their lives. Moreover, in recent years, religious actors have become increasingly influential in worldwide contexts of conflict-resolution and transitional justice. This collection offers a critical assessment of the possibilities and problems pertaining to attempts to bring religious – or semi-religious – allegiances and perspectives to bear in responses to the mass atrocities of our time: When and how can religious language or religious beliefs and practices be either necessary or helpful? And what are the problems and reasons for caution or critique? In this book, a group of distinguished scholars explore these questions and offer a range of original explanatory and normative perspectives.

JFB

Seventh Circuit Upholds Interview Limits for Federal Death Row Inmates

Via How Appealing:

This week the Seventh Circuit issued an en banc opinion upholding the federal policy prohibiting federal death row inmates from giving face-to-face interviews with the media and from talking with the media about other inmates.

JFB

New Biography of I.F. Stone

The Washington Post and Christian Science Monitor feature reviews of D.D. Guttenplan's book, "American Radical: The Life and Times of I.F. Stone," a biography of the man who paved the way for today's political bloggers. For more information on Stone, see  Myra MacPherson's “All Governments Lie!: The Life and Times of a Rebel Journalist”  and the 2006 Stone anthology, “The Best of I.F. Stone,”

JFB

 

Online Symposium Examines Justice Souter's First Amendment Decisions

Justice Souter's First Amendment legacy is the subject of an online symposium on the First Amendment Center website.

JFB

New Documentary Explores the Boundaries of Free Speech

A new documentary, "Shouting Fire: Stories From the Edge of Free Speech",  examines First Amendment controversies in a post September 11 environment. The film, which will air on HBO on June 29 at 9 p.m., is the work of filmmaker Liz Garbus, whose father, attorney Martin Garbus, has taken on many controversial free speech cases, including the defense of comedian Lenny Bruce when he faced obscenity charges and the representation of Nazi Party members seeking to march in Skokie, Illinois, a site chosen because a number of Holocaust survivors resided there. Among the cases chronicled in the film is Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), in which Supreme Court nominee Judge Sonia Sotomayor filed a dissenting opinion. Judge Sotomayor took issue with the majority’s conclusion that the NYPD had properly disciplined a police officer who had anonymously disseminated racist leaflets while off duty. The officer was part of the department’s Management Systems Information Division, where he worked on tasks that did not involve law enforcement contact.  Applying the Pickering balancing test to assess the government’s authority to discipline an employee for private speech, Judge Sotomayor emphasized that the officer had no supervisory authority or opportunity to interact with the public in the computer unit, and argued that the material would not have created the possibility of attribution to the department but for the commencement of disciplinary proceedings against the officer.

JFB

Burqa Draws Contrasting Responses from Obama and Sarkozy

Today's Christian Scientist Monitor examines the differing perspectives of Presidents Obama and Sarkozy on the nature of appropriate governmental responses to the wearing of the burqa, a contrast that manifests American constitutional commitments to freedom of religious expression.

JFB

        

New Anti-Smoking Law Will Face First Amendment Challenges

On Monday, President Obama signed the Family Smoking Prevention and Tobacco Control Act of 2009.  The statute authorizes the implementation of new marketing limitations for tobacco products and seeks to curtail youth oriented advertising techniques. As noted in  the New York Times and in a New England Journal of Medicine editorial praising the legislation, First Amendment challenges to new regulatory initiatives are expected.  In a letter to members of the Senate earlier this month, the ACLU urged the removal of provisions of the statute related to advertising restrictions and argued that such restrictions would be vulnerable to invalidation under the constitutional framework applied to the regulation of commercial speech in Lorillard v. Reilly, 533 U.S. 525 (2001) and 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996). A recent Congressional Research Service report also forecast constitutional  problems for  the advertising regulations authorized by the statute. However, the New York Times cited University of Maryland law professor Kathleen Dachille, director of the Legal Resource Center for Tobacco Regulation, Litigation and Advocacy, who argued that the defensibility of advertising restrictions has been fortified since Lorillard v.  Reilly.  Dachille noted that the body of  evidence connecting youth smoking to tobacco advertising has grown significantly as seen in reports from the Institute of Medicine as well as the National Cancer Institute, and several peer-reviewed studies.  In its letter to the Senate, the ACLU disputed such arguments, writing:

Nothing in the 2009 record causes us to change our opinion in that regard. Regulating commercial speech for lawful products only because those products are widely disliked – even for cause - sets us on the path of regulating such speech for other products that may only be disfavored by a select few in a position to impose their personal preferences through misuse of the regulatory process. Instead, we suggest a determined application of the laws prohibiting false advertising and a continuation of the vigorous and successful efforts to warn the American public – including its children – of the harms associated with the use of tobacco products. Usually, the antidote to harmful speech can be found in the wisdom wisdom of countervailing speech – not in the outright ban of the speech perceived as harmful.

For more on the intersection of public health regulation and the First Amendment, see Jess Alderman, Words to Live By: Public Health, the First Amendment, Government Speech,  57 Buff. L. Rev. 161 (2009).

JFB

First Amendment Scholar Robert Post Named Yale Dean

Yale Law School announced yesterday that Robert Post will become its next dean. Post's body of insightful and influential First Amendment scholarship includes Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. Ill. L. Rev. 939  (2007) and Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. Rev. 1713 (1987).

JFB

Sarkozy: Burqas Not Welcome in France

In an address to the French Parliament, President Sarkozy asserted that wearing the burqa, the body and face covering garment donned by a small subset of Muslim women, was inconsistent with French values. As reported in today's Washington Post, Sarkozy drew applause when he stated, "In our country, we cannot accept that women be prisoners behind a screen, cut off from all social life, deprived of all identity....The burqa is not a religious sign, it's a sign of subservience, a sign of debasement - I want to say it solemnly. It will not be welcome on the territory of the French Republic." Although some expressed concern that the President's remarks could aggravate the sense of alienation already felt by many of France's five million Muslims, other parts of his address reflected an effort to confront divisions within the country and to acknowledge that French society often unfairly excluded immigrants and members of minority groups, including Muslims, from full participation and equal opportunity. Sarkozy observed, "Who doesn't see that our integration model isn't working any more? Instead of producing equality, it produces inequality. Instead of producing cohesion, it creates resentment."  

JFB

Michigan Supreme Court Issues Proposed Rule on Wearing of Veil in Courtroom

As noted by the ABA Journal and How Appealing, last week the Michigan Supreme Court issued a proposed rule addressing judges' authority to bar the wearing of veils, such as the Islamic hijab or niqab, in the courtroom.  The proposed rule on the appearance of parties and witnesses states:

The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

The staff comment accompanying the proposed rule notes that its development was prompted by a suit brought against a state court judge who dismissed the case of a Muslim plaintiff when she refused to comply with the judge's order to remove her hijab when she testified. The subsequent rejection of the dismissed plaintiff's Section 1983 suit in Muhammad v Paruk, 553 F Supp 2d 893 (E.D. Mich. 2008), is currently on appeal to the Sixth Circuit.

Earlier this year the Oklahoma House passed a bill banning the "use of hats, head scarves, bandanas, eyeglasses (prescription and non-prescription) etc. or anything that covers or partially covers the head or shoulders from being worn when photographed for a drivers license or identification card". The Oklahoma bill drew sharp criticism from groups such as the Sikh American Legal Defense and Education Fund as an attack on religious liberty. Similar legislation was introduced in Minnesota. In 2004 the Council on American Islamic Relations (CAIR) issued a report on how the wearing of head scarves was treated under the drivers license photo policies in all fifty states. 

JFB

French Commission to Consider Possible Regulation of Wearing of Burqa

The Saturday Washington Post carried an AP report on the announcement of the formation of a commission to examine whether and how the French government should address the wearing of burqas by Muslim women.  In the report a government spokesman was quoted as saying the commission could recommend legislation to ban the wearing of the full body covering garment if the burqa was found to be "imposed" on women.  In 2004, France banned the wearing of Islamic headscarves and other conspicuously religious attire in French public schools, a move greeted with considerable criticism both in and outside of the country.

JFB      

 

First Amendment Scholarship Update

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

1. Patrick McKinley Brennan (Villanova University School of Law), The Place of 'Higher Law' in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys, 7 Geo. J. L. Pub. Pol'y (forthcoming 2009). The abstract states:

   The question of the place of higher law in the ordinary practice of law is even now dogged by the brooding omnipresence caricature. This Article seeks to introduce and apply a philosophically defensible account of natural law, the one defended by Thomas Aquinas, to various problematics of contemporary law and jurisprudence. The Article argues that such higher law is not so high as to be relevant only to sexy constitutional questions, as is often supposed, but to everything we do in law. The Article argues that liberals and conservatives alike should acknowledge both the place of natural law in the positive law and the contingent/prudential limits on judges' authority to speak the natural law directly from the bench. Much of the Article is framed as a response to Steven Smith's Law's Quandary (Harvard 2004).

2. Bailey H. Kuklin (Brooklyn Law School), The Natures of Universal Moralities, 75 Brook. L. Rev. (forthcoming 2009). The abstract states:

   One of the abiding lessons from postmodernism is that reason does not go all the way down. That is, one cannot deductively derive a universal morality from incontestible moral primitives, or practical reason alone. Instead, even reasoned moral systems must ultimately be grounded on intuition, a sense of justice. The question then arises, whence come moral intuitions? Evolutionary biology offers answers. In this article, I examine the main ones. Since the products of evolutionary principles are contingent on chance and the environment in which the evolution occurs, I speculate on the range of moral intuitions consistent with these principles.

3. John R. Dorocak (California State University, San Bernardino), The Income Tax Exclusion of the Housing Allowance for Ministers of the Gospel per I.R.C. Section 107: First Amendment Establishment of Religion or Free Exercise Thereof--Where Should the Warren Court Have Gone?, 54 S.D. L. Rev. 233 (2009). The abstract states:

   Recent scholarship by liberal constitutional law professors has leaned toward changing the traditional interpretation of the Second Amendment's right to bear arms from a collectivist view to an individual view. A similar trend may emerge concerning the pre-eminence of the Free Exercise Clause over the Establishment Clause in the religion clauses of the First Amendment. As Justice Scalia indicated in his dissent in Texas Monthly, Inc. v. Bullock, the Free Exercise Clause likely comes close to requiring tax exemptions for religious activities and reasonable accommodation of such activities would not violate the Establishment Clause.

   On the other hand, Professor Erwin Chemerinsky attempted to intervene in Warren v. Commissioner, a case involving an Orange County, California minister, to assert that the Establishment Clause would require that the parsonage exclusion be held unconstitutional. It seems the issue has been joined.

4. Stephen P. Halbrook, "Arms in the Hands of the Jews are a Danger to Public Safety": Nazism, Firearm Registration, and the Night of the Broken Glass, 21 St. Thomas L. Rev. 109 (2009). The abstract states:

   In 1938, just weeks before Reichskristallnacht (Night of the Broken Glass), in Nazi Germany, Berlin police arrested Alfred Flatow. His crime: being a Jew in lawful possession of firearms. The police knew he possessed firearms because he dutifully registered them in 1932 under a decree by the liberal Weimar Republic. In anticipation of the pogrom, the Nazi leadership launched a campaign to disarm Jews. Flatow was one of many who were arrested and turned over to the Gestapo. He would eventually be deported and die in a concentration camp.

   The police may not have realized that they had arrested a world-class gymnast who won the gold for Germany at the 1896 Olympics. A check of his name, birth date, and birth place from the arrest report corresponds to one and the same Alfred Flatow, who was among the athletes who competed for Germany in the Athens Games, winning first place in the parallel bar events (individual and team), and second place in the horizontal bar event.

   Flatow's arrest record is in the Landesarchiv Berlin in a file labeled House Searches of Jews 1938-39. The arrest record, made on a standard four page police form entitled Report Concerning Political Incident, tells tales about the use of firearms registration laws to repress Jews in Nazi Germany. Two similar arrest reports were found in the same file.

   An arrest record may speak volumes about the nature of a political system, its legal regime, police power, and character as embodying a free society or a totalitarian dictatorship. This article initially focuses on the arrest records of Alfred Flatow and two other Jewish firearm owners. Flatow duly registered his weapons in good faith during the waning days of Germany's Weimar Republic. Coming to power shortly thereafter, the Nazis only had to consult the registration records and conduct house searches to disarm these and other Jews. Having done so in a quiet and systematic manner in the weeks preceding the Night of the Broken Glass, the Nazi leadership found just the right incident to launch this unprecedented pogrom under the guise that Jews with arms were a danger to the state and must be arrested, even though the arms were legally registered, and that their premises--homes, businesses, and even synagogues--must be searched to confiscate any and all remaining arms. Having rendered Jews defenseless, the Nazi government could proceed to expropriate their property, deprive them of all rights, and eventually to subject them to genocide.

   Controversy has raged in recent decades about whether law-abiding civilians should have a right to possess firearms at all and, if so, whether all firearms should be registered with the government, or whether firearms should be prohibited except to the military and police. In the United States, in a debate over bills to include a national firearms registration system in the Gun Control Act of 1968, opponents raised the specter of the then more recent Nazi experience, while proponents denied that the Nazis made any use of firearm records or registration lists to disarm enemies. Although it focused on Nazi policies in the occupied countries, a Library of Congress study was “unable to locate references to any German use of registration lists to collect firearms.”

5. Andrew S. Mansfield (SAGE Center for the Study of the Mind), Religious Arguments and the United States Supreme Court: A Review of Amicus Curiae Briefs Filed by Religious Organizations, 7 Cardozo Pub. L. Pol'y & Ethics J. 343 (2009). The abstract states:

   Cases before the United States Supreme Court often concern profound religious questions about which religious organizations adopt positions based on religious convictions. Analysis of the amicus curiae briefs filed with the Supreme Court by religious organizations provides at least three crucial insights. First, the legal arguments presented by religious organizations provide insight into how such organizations view the relationship between religion and the law. Religious organizations, for the most part, appear to believe that they should participate in the political process and that they should do so on overtly religious grounds. Second, the coalitions formed by various religious organizations give us perspective on the relationships between various United States denominations and religious groups. The coalitions of denominations and groups change based on the issues in a given case, with the Catholic Church often switching its alignment between liberal and conservative organizations. Finally, by reviewing the rulings of the Court in cases that were briefed by religious organizations, we can gain insight into the Court's understanding of whether, and of how, religious organizations should influence or affect legal decisions.

   This paper analyzes forty-five amicus curiae briefs filed by religious organizations with the Supreme Court, from Brown v. Board of Education, decided in 1954, through the decision in Ayotte v. Planned Parenthood, rendered in 2006. The forty-five amicus curiae briefs were filed in nineteen cases and concern issues that are often identified as “religious.” By the term “religious,” I mean to indicate that the members of the religious organization typically have a belief that an issue at stake in the legal dispute is right or wrong and that the belief is related to religion, scripture, teachings, sentiments, doctrine, or philosophy. Religious issues, as most often understood by religious organizations, are guided or informed by spiritual principles, divine guidance, or natural law. As we will see from a review of the briefs, the issues most often argued by religious organizations between 1954 and 2006 concern racial segregation and racial justice, affirmative action, abortion, euthanasia, the imposition of the death penalty, homosexuality, the public role of religion, the treatment of illegal aliens, and pornography.

   If the Supreme Court were to address religion's substantive role in our legal system, one would expect it to do so in the decisions concerning issues perceived as religious dilemmas worthy of being briefed by the nation's religious organizations. For the most part, this is not the case. Supreme Court justices, when writing opinions in these cases, tend to avoid any discussion of religion or spirituality. In the handful of cases that do address such issues directly, the Supreme Court has defined its role as one of protecting only individual autonomy as a fundamental liberty interest.

   The methodology for the collection of these amicus curiae briefs was to identify major Supreme Court decisions that concerned issues that might be classified as “religious” by religious organizations. This paper develops a list of such potential issues. Further, research was conducted within materials published or made available by various religious organizations to identify cases in which such groups filed amicus curiae briefs. The docket of each such identified Supreme Court case provided further information on those parties that filed amicus curiae briefs. Other religious organizations were identified through the dockets and further research was conducted into the other briefs filed by these newly identified religious organizations. Such briefs were collected from various public sources and from the websites of the religious organizations. The collection is meant to be representative, but is, naturally, not exhaustive. Several relevant amicus briefs could not be obtained. In one case, two of five particular briefs in a case could not be obtained. In addition, several decisions of the Supreme Court that were briefed by religious organizations were excluded because they concerned internal church matters, such as disputes about church hierarchy or church property. Nevertheless, the forty-five briefs examined provide a robust overview of the participation of American religious organizations in Supreme Court decision-making.

   While the briefs demonstrate that religious organizations are participating in arguing issues before the Supreme Court, a reader of the Supreme Court decisions might have no idea such a debate is occurring. Little, if any, explicit mention is made of the concerns of amici or their participation in the process in the Supreme Court's decisions. The lack of explicit reference does not, of course, mean that the concerns or positions of these organizations are going unheeded or do not subtly influence the Court.

6. Eugene R. Milhizer (Ave Maria School of Law), So Help Me Allah: An Historical and Prudential Analysis of Oaths as Applied to the Current Controversy of the Bible and Quran in Oath Practices in America, 70 Ohio St. L.J. 1 (2009). The abstract states:

   The administration of justice in American courts depends upon truth. Witnesses must provide truthful testimony, and those holding certain offices must perform their official functions with a view toward upholding the truth: jurors must decide the facts and render verdicts, and judges must apply the law to particular circumstances, guided by what is true. Throughout American history, courts have attempted to safeguard truth, and thereby achieve justice, by requiring judges and jurors to take an oath or affirmation prior to assuming their duties and witnesses before testifying. Following English and early American customs, the form of oaths in the United States has traditionally included an explicit reference to God while placing one's hand on a Bible. In light of the growing religious pluralism present in modern American society, however, the question arises whether to revisit these customs. In the recent case ACLU of North Carolina v. North Carolina, a Muslim woman contested a judge's refusal to allow her to swear a witness oath using the Quran. This Article considers whether religious artifacts, such as the Bible and the Quran, should be permitted when taking an oath in an American court. It concludes that although allowing Christians to swear on the Bible and Muslims to swear on the Quran is consistent with the purposes and rationales for oaths generally, such an accommodation is unnecessary and, on balance, unwise given the competing policy considerations.

   An analysis of religious artifacts and oaths in contemporary America is especially relevant in light of cases such as ACLU of North Carolina and the circumstances involving Keith Ellison, America's first Muslim congressman. Congressman Ellison used the Quran during his swearing-in ceremony while taking his oath of office prior to assuming duties in the House of Representatives. Although discussions about the Quran and other religious artifacts often revolve around the First Amendment, a fuller consideration of the relevant issues extends far beyond questions of constitutional interpretation. Such an analysis begins by considering the forms, significance, and meaning of oaths over time and throughout the world-particularly in American history and in the context of Islam-in order to better appreciate the roles and purposes of oaths in modern American society. This Article will concentrate on these fundamental predicate matters as they relate to witness oaths, leaving constitutional issues and an analysis of other types of oaths beyond its scope.

   Part II of this Article surveys oaths and oath practices throughout history, with a particular focus on their development in Western culture. The Part begins by considering the origin, rationale, and utility of oaths generally as they evolved over time, as well as describing various oath forms from around the world. It concludes by comparing the oath practices in Western and non-Western traditions in order to demonstrate their basic universality.

   Part III narrows this historical overview by concentrating on the development and use of witness oaths in America. It begins as any comprehensive discussion of American law must-in England-by examining the influence of the common law tradition and Christianity during colonial times. It then traces the evolution of American oaths from the nation's founding to the present day, considering the impact of the unique American experience, federalism, and federal evidentiary rules on American oath practices. The Part also reviews contemporary statutes and rules pertaining to oaths. It concludes by describing the alternative of affirmation, as it originated in England and was later incorporated into American law.

   Part IV continues the historical overview but focuses on Islam and the sources of moral and legal authority for Muslims. In particular, it explicates the unique role of the Quran in Islam and its significance to Muslims generally. It also describes the importance to Muslims of telling the truth and giving true witness, as well as swearing oaths in light of Islamic law, particularly in a courtroom setting. Further, it explains that although it is not essential for Muslims to use the Quran when taking oaths, this practice has become widely accepted in Islamic culture. The Part concludes by providing examples of oath taking by Muslims in various political and legal contexts.

   Part V applies this historical understanding to present-day America. The Part affirms the continuing significance, purpose, and relevance of oaths, and it offers a new definition for oaths based on a modern appreciation of their essence and purposes. It also addresses the acceptability of permitting Christians to use the Bible and Muslims to use the Quran while taking a witness oath in an American court. Part V concludes that such an accommodation is unnecessary, however, and that the many disadvantages associated with such a permissive rule would outweigh its limited benefits. Accordingly, it proposes that the better approach is to allow a non-specific invocation of God, without the use of any religious artifacts, while offering witnesses the alternative of an affirmation.

7. A David Pardo (Foley Hoag LLP), Judicial Discretion in Talmudic Times and the Modern Era, 7 Cardozo Pub. L. Pol'y & Ethics J. 429-454 (2009). The abstract states:

   The notion of discretion in the exercise of governmental powers is one that vexes scholars and the public alike. Is the mere existence of discretion the first stop on the road to judicial tyranny? Or is it an indispensable element in the pursuit of justice? Some consider discretion to be “the law of tyrants: It is always unknown: It is different in different men: It is casual, and depends upon constitution, temper, passion. In the best it is oftentimes caprice: In the worst it is every vice, folly, and passion, to which human nature is liable.” This view is codified in an oft-cited provision of the Massachusetts Constitution. It is also reflected in an engraving on the side of the United States Department of Justice building, in Washington, D.C., summarized by five words: “Where law ends tyranny begins.” Yet, in our system of government, where law ends tyranny need not begin. Where law ends, discretion begins, and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness . . . . No government has ever been a government of all laws and not of men . . . . Every government has always been a government of law and of men.

   The study of discretion in the judicial process has generated countless treatises and jurisprudential theories. These studies, naturally, analyze this concept from a contemporary perspective that is rooted in modern Anglo-American law. Judicial discretion, however, is not a new concept or one that is unique to democratic societies. Indeed, it is an issue that has divided post-biblical societies in Ancient Israel. Furthermore, the methods developed by rabbis in the Talmudic era are as relevant now as they were then, in understanding and accepting judicial discretion in our democratic society.

   In this Article, I explore judicial discretion under Halakhic law, Anglo-American law, and Israeli law. In Part I, I compare the differences in treatment of judicial discretion between the Palestinian Talmud and the Babylonian Talmud. In Part II, I explore judicial discretion in the modern era. In Part III, I argue that the Babylonian Talmudic conception of judicial discretion is forthright about the existence and need for discretion, thus avoiding the doctrinal problems that inhere in the Palestinian Talmud. Moreover, I argue that the Bavli should serve as a model approach for coming to terms with the discretion that inheres in our Anglo-American judicial system, which is indispensable for the administration of justice.

8. Steven D. Smith (University of San Diego), Discourse in the Dusk: The Twilight of Religious Freedom?, 122 Harv. L. Rev. 1869 (2009). The abstract states:

   Reviewing Kent Greenawalt, Religion and the Constitution--Volume 2: Establishment and Fairness.

9. Frederick Mark Gedicks (Brigham Young University), Atmospheric Harms in Constitutional Law, Md. L. Rev. (Forthcoming 2009). The abstract states:

   Prepared for the University of Maryland Constitutional Law Workshop, this essay uses Proposition 8 to frame how nontangible or "atmospheric" harms are treated differently by Establishment Clause doctrine than by other areas of constitutional law. The essay concludes that the greater tendency of Establishment Clause doctrine to credit actions based on atmospheric harms suggests that despite the doctrinal normalization of much Religion Clause jurisprudence, religion remains distinct from other constitutionally protected activities.

10. Zhong Zewei (National University of Singapore), Racial and Religious Hate Speech in Singapore: Reclaiming the Victim's Perspective, Sing. L. Rev. (Forthcoming 2009). The abstract states:

    In this essay, I argue that the rationales offered by the Singapore Government for restricting racial and religious hate speech are not only constitutionally unsound, but also not without serious moral and social costs. I start off identifying two main rationales offered for the existing restrictions, namely (1) the maintenance of public order, and (2) the promotion of an ethic of intercultural tolerance. These twin rationales are buttressed by a literalist (and flawed) judicial interpretation of the right of free speech under Article 14 of the Singapore Constitution. Drawing on hate speech decisions from the U.S., Canada and Europe, I advance a more faithful reading of Article 14 which affords greater constitutional protection for hate speech as 'political speech'. I next trace how the Singapore Government's regulation of hate speech is rooted in its avowedly Asian-style 'communitarianism'. The 'public order' and 'tolerance' rationales, however, fail to recognize that race and religion are constitutive aspects of our individual flourishing and self-respect, which hate speech attacks. The present legislative regime is therefore guilty of self-contradiction. Lastly, I sketch a different, victim-centred justification for Singapore's hate speech laws which is responsive to the profound injury inflicted upon individuals targeted by racial and religious vilification. This victim-centred perspective, it is suggested, finds a comfortable textual home in Article 152(1) of the Singapore Constitution, which requires the Government to care for the interests of racial and religious minorities in Singapore.

11. Raphael Cohen-Almagor (University of Hull), Regulating Hate and Racial Speech in Israel, 17 Cardozo J. Int'l & Comp. L. 101 (2009). The abstract states:

    Israel is a Jewish democracy. It is founded on Halacha (Jewish law) and on liberal principles. While some segments of Jewish orthodoxy believe there is no room for freedom because all is dictated by the Almighty, liberal ideology is based on the tenets of freedom. While some segments of Jewish orthodoxy believe that all Jews are in the same boat, and must sink or swim together, liberalism believes in tolerance and in a “live and let live” attitude. The tension between the two basic foundations of Israel is noticeable and significant. In this paper, I discuss the question whether the liberal State should prosecute people for preaching hate. After presenting both sides of argument, I argue that the State ought to weigh the costs of allowing hate speech as well as the risks involved, and balance these against the costs and risks to democracy and free speech censorship. Considering Israel’s special circumstances, its legal framework, and recent trends following Israel’s evacuation of the Gaza Strip I argue that in a perfect world we would respond to hate with education, not criminal laws. But our world is not perfect and history shows that hate speech might lead to horrible crimes. Therefore, legal intervention may be warranted to fight down racism and bigotry. At the same time we should insist on satisfying some stringent requirements before we pursue the legal avenue. The law may be appropriate but only in significant rare circumstances.

JFB

 

Global Free Speech Update

Turkey:  Nadim Sener, author of "The Dink Murder and Intelligence Lies," faced anti-terrorism charges this week in an Istanbul court.  Sener's book accuses law enforcement officials of negligence and a cover-up in failing to thwart the 2007 murder of Hrant Dink, the man my friends in Istanbul describe as "Turkey's Martin Luther King."  Dink was editor in chief of the Turkish-Armenian paper Agos, and faced years of persecution for advocating on behalf of Turkish-Armenian reconciliation.  Ironically, if Sener is convicted, he could spend 28 years in prison - 8 years longer than Dink's assassin. 

United States: Peter Lance, author of "Triple Cross, How Bin Laden's Master Spy Penetrated the CIA, the Green Berets, and the FBI," is being threatened with a libel action by Illinois prosecutor Patrick Fitzgerald who says the book falsely accuses him of "discrediting" evidence against al Qaeda's involvement in the 1998 embassy bombings and attacks on 9/11.  Fitzgerald also threatened to sue Harper Collins if it publishes a new edition of the book.   

The Maldives:  President Mohamed Nasheed submitted a series of bills to Parliament as a first step towards much needed reform.  One of the bills would amend the penal code to qualify defamation as a civil rather than criminal offense.  The Maldives constitution does not protect freedom of expression or of the press, and the island nation ranks "not free" on the annual Freedom House report.  

Sudan: Couple of highlights of a new press law passed by the National Assembly:  (1) the National Press Council can shut down newspapers for 3 days without a court order, which is actually better than the proposed bill that allowed for indefinite closure.  The Council's neutrality is doubtful, however.  Eight of its 21 member are appointed by the President whose office is vested with sole oversight.  (2)  the Press Council no longer has authority to penalize journalists.  That authority now rests in courts of law.  However, there's no limit on the penalties that can be imposed, contrary to a prior cap of $21,000 on fines instituted by the Council.  Additional details of the new law have yet to be reported, but the bill under consideration also gave the National Council discretionary licensing aauthority, allowed it to remove equipment from newspaper offices, and to examine journalists for their suitability in the profession (whatever that means). 

-Kathleen A. Bergin 

Tehran: twitter me @freespeechprof

Twitter's now one of the few ways that protesters inside Iran can funnel news to the outside.  And though there's a real danger facing those who do, you can make it harder for authorities to find them.  From Reunify Gally:

Do you twitter? Change your twitter setting to GMT +3:30 (Tehran time) and your location to any city in Iran. If all of us are Iranians then it is a little harder for government censors to track down Iranian tweeters. (See list of Iranian cities at

http://is.gd/13UCt.)

 

Reunify Gally also has instructions on how to set up a proxy server to override blocked websites and allow Iranians to blog more safely.

-Kathleen A. Bergin

AG Holder Announces Fed Support for Federal Shield Law

AG Eric Holder told the Senate Judiciary Committee today that the Obama Administration would support a journalist shield law so long as it does not interfere with national security or investigations into leaks of classified info.  Precisely what the Administration expects the final bill to look like is somewhat unclear, but its support for a shield statute generally is a positive step forward, particularly in light of the opposition expressed by the previous administration. 

Follow the Free Flow of Information Act at Govtrack.us.

Holder also reiterated the Administration's position that photos showing the abuse of detainees in US custody should not be released.  The Administration has until July 9 to appeal the Second Circuit ruling that authorized their disclosure. 

-Kathleen Bergin

Great Post-Garcetti Update From The First Amendment Center

Webpage here:

The 2006 Supreme Court case Garcetti v. Ceballos sparked fears that the Court’s new employer-friendly rule would work against outspoken public employees in free-speech cases — and thereby work against the public’s interest in good government. Such fears became reality for at least some public-employee plaintiffs. In the First Amendment Center Online's “Garcetti & its aftermath,” an ongoing collection of lower court cases that cite Garcetti, readers can monitor the effects of the Supreme Court's decision on free speech by public employees.

-Kathleen Bergin

Providence Registration Requirements Raise Free Speech Concerns

Protesters looking to gather at the US Conference of Mayors are being asked to register with the city as individuals under a new requirement instituted by Providence Mayor David Cicilline. 

The registration form goes beyond the typical practice of asking organized groups to register a planned protest so that city officials can respond with adequate planning and security.  Asking that an individual disclose their identity and other personal information raises a legitimate First Amendment concern given its chilling effect on the right to engage in peaceful protests. 

The Rhode Island ACLU responds here.

-Kathleen Bergin