First Amendment Scholarship Update

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

1. Lilian Edwards (University of Sheffield - Law School), Pornography, Censorship and the Internet, LAW AND THE INTERNET (L. Edwards & C. Waelde, eds. 2009). The abstract states:

   Over a decade since the Internet became an acknowledged mainstream commercial medium, it still retains its less than savoury reputation as a happy hunting ground for pornography and other types of distasteful content.

   Some of the basic issues in this area which this chapter addresses, from a European and comparative perspective, are

   Has the Internet created novel problems in this area which can not be adequately regulated by the existing legal and regulatory framework?
   Can such laws be enforced successfully in the environment of the Internet and if not, what steps should be taken?
   Should control of content be undertaken only by state law enforcement agencies and courts, or by private bodies such as ISPs and search engines?
   Should states and private institutions seek to control access to prohibited or unwelcome Internet content and by technological (“code”) means such as filtering, rather than by legal means? What are the implications for free speech of such online filtering?

   The chapter observes a dangerous international trend towards non transparent and non accountable censorship online, not only in non democratic countries like China but increasingly in Europe and elsewhere. The author proposes a "speech impact assessment" process be put in place before new systems of top-down state-endorsed Intenet filtering are implemented.

2. Laura A. Heymann (William & Mary Law School), The Public's Domain in Trademark Law: A First Amendment Theory of the Consumer, 43 Ga. L. Rev. (forthcoming 2009). The abstract states:

   First Amendment theories of trademark law tend to focus on the need of speakers to employ trademarks in creating new speech — in parodies, comparative advertising, and other ccommunicative endeavors. An alternative use of the First Amendment in trademark law, however, would focus on the interests of consumers in autonomy as they make choices about how to respond to trademark meaning. First Amendment doctrine in other areas of the law involving persuasive communications provides useful material on which to draw in constructing the autonomous consumer. With that consumer more fully realized, modern expansions of trademark law, such as dilution and initial interest confusion, can be more thoroughly reconsidered and questioned.

3. Anita Bernstein (Brooklyn Law School), Pitfalls Ahead: A Manifesto for the Training of Lawyers The abstract states:

   Entrants joining the legal profession are entitled to fair warning about what they are getting into. Accounts of lawyers' heroism, triumph, and reformist energy continue to inspire young people to pursue this profession, and they should. But before they represent a client, newcomers need to be informed about pitfalls, the complement to power: how lawyers lose their licenses, face liability for malpractice and breach of fiduciary duty, see their work performance deemed not competent or not "effective" under the Sixth Amendment, struggle against judges, become disqualified from representing particular clients, and forfeit some freedoms of speech and association. Learning about pitfalls enables lawyers not only to protect themselves should they encounter danger, but also to advance what is good for their clients and the public.

   This Essay examines lawyers' pitfalls with an eye to their vocational and theoretical interest, gives examples of pitfalls-related teaching and learning strategies already present (but not always visible) in the American legal curriculum, and integrates this perspective with other approaches to lawyers' professional responsibility.

4. Casey Luskin (Discovery Institute), Does Challenging Darwin Create Constitutional Jeopardy? A Comprehensive Survey of Case Law Regarding the teaching of Biological Origins, 32 Hamline L. Rev. 1 (2009). The abstract states:

   The teaching of biological origins in public schools remains a contentious scientific, cultural, and legal debate. With the increase of public interest in this topic, it is essential for attorneys, legal scholars, and educational authorities to have an awareness of the full breadth of case law on this issue. Yet at present, a comprehensive collation and summary of the relevant cases is absent from the literature. Moreover, few have bothered to engage in a careful review of the case law to determine if evolution actually is beyond scrutiny in public schools. This article attempts to exhaustively survey the case law relevant to the teaching of biological origins, dividing the cases into three major categories: (1) Cases upholding the right to teach about evolution; (2) Cases rejecting the teaching of alternatives to evolution; and (3) Cases rejecting disclaimers regarding the teaching of evolution. The range of constitutionally permissible policies for teaching evolution can also be understood by studying policies that have not engendered lawsuits. Twenty-one cases will be reviewed, as well as various policies that have not faced legal challenges, revealing that while courts have firmly upheld the rights of educators to teach evolution and have rejected attempts to teach creationism, none of these cases stands for the proposition that a curriculum that teaches scientific critiques of evolution would necessarily place a school board in constitutional jeopardy. Indeed, case law and the public policy history of this issue suggest precisely the opposite: curricular policies in public schools need not unilaterally support evolution. Rather, as the U.S. Supreme Court has stated, “scientific critiques of prevailing scientific theories [may] be taught” provided that such curricula are enacted with the “clear secular intent of enhancing the effectiveness of science instruction.” Educators that choose to improve science education by teaching both the scientific evidence supporting modern Darwinian theory, as well as the scientific evidence that challenges this view, can rest assured that they are on firm legal ground and that Darwin himself may even be smiling approvingly from whichever realm of the afterlife he resides today.

5. Kent Greenawalt (Columbia University), The Rule of Law and the Exemption Strategy, 30 Cardozo L. Rev. 1513-1534 (2009). The abstract states:

   Do exemptions from ordinary legal requirements for religious individuals and groups contravene the rule of law? If they do only sometimes, rather than always or never, under what circumstances do they do so? This Article explores these intriguing questions, raised powerfully by Marci Hamilton's important and challenging book God vs. the Gavel.

   I offer some general observations about the concept of the rule of law, sketch problems posed by religious exemptions, survey various accepted features of our legal order that may seem similarly in tension with the rule of law, and consider in detail the significance of certain kinds of religious exemptions and whether it matters if they are created by legislators or judges.

   These inquiries lead me to less stark conclusions than Professor Hamilton suggests and indeed to urge a reformulation of the basic question. That is better understood as: To what degree do various kinds of religious exemptions sacrifice particular standards and values that the complex idea of the rule of law embraces? Although I draw from Professor Hamilton, my aim is not to determine exactly what she thinks, but to use her ideas as a starting point for an independent account.

6. Marci A. Hamilton (Cardozo School of Law), A Response to Professor Greenawalt, 30 Cardozo Law Review 1535-1543 (2009). The abstract states:

   Professor Greenawalt raises important and interesting questions about my thesis in God vs. the Gavel: Religion and the Rule of Law that legislators are in a better position to grant religious accommodation than are courts. His analysis rests largely at a theoretical level, which, I think, leads him to fail to take into account the crucial empirical claims that serve as the foundation to God vs. the Gavel. My position is that as a society Americans have ignored the likely harms that can result from religious accommodation. To that end, I document at some length the many instances in which religious entities either receive or demand permission to avoid the laws that govern everyone else. The point is to force the discourse of religious liberty onto a factual base. Harm arising from religious entities was unacknowledged, and even taboo, before the publication of God vs. the Gavel. There was a moral imperative in the culture that forbade negative talk about religion. If an accommodation was for religion, it was presumed to be good for society as a whole.

7. David M. Smolin (Cumberland School of Law), The Civil War As a War of Religion: A Cautionary Tale of Enslavement and Emancipation, 39 Cumb. L. Rev. 187-237 (2009). The abstract states:

   This article recounts the nineteenth century religious conflict over slavery in the United States, particularly as occurred among Evangelical Protestant Christians. This historical drama raises several significant questions.

   First, what is the significance of the nineteenth century slavery debate for contemporary activism concerning modern-day slavery, trafficking, and slavery-like practices? Evangelical Christians within the United States have invoked the strong evangelical Christian role in British abolitionism, particularly referencing William Wilberforce as inspiration for their significant anti-trafficking efforts. It is not clear, however, that they have absorbed the significance of the evangelical divisions over slavery within eighteenth century America. The historical evangelical Christian division over slavery reminds us that it is much easier to identify egregious injustices in historical retrospect, where a consensus has emerged condemning past practices, than to correctly identify those contemporary practices constituting such great wrongs. Even when one has correctly identified a large-scale injustice, implementing a successful strategy against that injustice is extraordinarily difficult. How, then, do religious, and non-religious, individuals and communities correctly identify the great injustices and wrongs of their day and act effectively against them?

   Second, this examination of the religious conflict over slavery is another avenue to explore the mindset of the time and individuals who gave us Section One of the Fourteenth Amendment. The body of the paper will focus particularly on the religious influences on John Bingham, the primary author of Section One of the Fourteenth Amendment.

   Given this article's focus on John Bingham, the constitutional issues raised by the paper will be raised throughout, beginning with the next section. The other issues raised by this introduction will be addressed at the end of the paper, after the historical drama of the religious divisions over slavery has been presented.

8. Fouad A. Riad (Cairo University) et al., Religion in the Workplace, 30 Comp. Lab. L. & Pol'y J. 465-653 (2009). The abstract states:

   Proceedings from a Conference co-hosted by the University of Illinois' Program in Comparative Labor and Employment Law & Policy and the University of Nantes' Institute for Advanced Studies

9. Don Ellinghausen, Jr., "In Standing Is the Preservation of His World": Justice Scalia and the Varieties of Natural-Religious Experience, 16 Mo. Envtl. L. & Pol'y Rev. 474-520 (2009).

   No abstract is currently available online.

JFB