First Amendment Law Prof Blog

First Amendment Scholarship Update

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

1. Charlton C. Copeland (Tulane University Law School), God-Talk in the Age of Obama: Theology and Religious Political Engagement, 86 Denv. U. L. Rev. 663-691 (2009). The abstract states:

   Discussions of the role of religion in political life usually take one of two forms. In popular depictions, the focus is on the role that religious affiliation plays in determining how individual support of or opposition to a number of hotly contested issues, including the Presidency, ballot initiatives on same-sex marriage, the use of federal funds in stem-cell research, restrictions on the availability of abortion, or the role that religious evangelicals play in American political life. In academic treatments, the focus is usually on the extent to which religious adherents should be required to ground their public, political positions on reasons that can be accepted by all rational participants. Despite the fact that religion played a sensational role in the historic 2008 Presidential campaign, the 2008 election did not give rise to a discussion over the role of religion in public life, as it had in past elections.

   Although the 2008 Presidential campaign did not produce a signal moment that sparked an evaluation of the place of religious discourse in American political life, it delivered a candidate onto the national stage who has thought seriously about the role of faith in politics—Barack Obama. Perhaps betraying his roots as a law professor, Obama has been remarkably open about what he takes to be the appropriate role of faith in politics. Perhaps more significantly, however, he has been even more open about his path to religious faith. Obama is arguably the most theologically serious politician in modern American political history. Through his descriptions of his religious experience Obama displays a sophisticated engagement with the central ideas of Christian theology—the meaning of the life and work of Jesus, the nature of sin, the role of the Christian community—that provide a conception of the relationship between religious faith and the social order. Obama's openness raises the hopes of those who see in Obama the possibility of forging a relationship between religion and liberal democracy that might transcend the distrust of the other that exists on each side.

2. Robin Fretwell Wilson (W&L University School of Law), Same-Sex Marriage and Religious Liberty: Life After Prop 8, 14 NEXUS 101-111 (2008-2009). The abstract states:

   The recent, contentious campaign surrounding California's Proposition 8 was dominated by wild claims and doomsday predictions from supporters and opponents alike. Supporters claimed that if Proposition 8 “doesn't pass then our churches cannot teach our children . . . what we really believe,” and “[p]eople's ability to believe in marriage as a divine institution of God and to preach that . . . is very much at risk.” Opponents responded with ads depicting Mormon missionaries forcibly entering the home of a lesbian couple to “take away [their] rights.” Despite the hype, the actual text of Proposition 8--approved by 52% of California voters in November --simply states that California will recognize only those marriages between a man and a woman. Now that the din has died down, we have an opportunity to step back and critically evaluate the conflicts that are likely to arise between same-sex marriage (and other relationships) and religious liberty. This Essay argues that the moral clashes over same-sex relationships certainly exist but are not resolved by Prop 8--far from it. Tensions over same-sex relationships have erupted across the world and the United States as more and more governments have recognized not just same-sex marriage but civil unions and same-sex adoptions. Regardless of how the California Supreme Court rules on the challenges to Prop 8 now before it, California still allows civil unions and same-sex adoption and bans discrimination on the basis of sexual orientation in places of public accommodation. As Part I shows, whatever happens with Proposition 8, Californians will have to navigate a rising tide of moral clashes over same-sex relationships. These moral clashes range from lawsuits over refusals to serve same-sex couples to cancelled social services contracts to firings and resignations. Part II suggests that an equally deep moral divide emerged in our recent past over abortion and that our collective experience with navigating that divide can point the way to live-and-let-live solutions to the collisions over same-sex relationships.

3. Elizabeth Burleson (USD School of Law), From Nondiscrimination to Civil Marriage, available online at http://ssrn.com/abstract=1436757. The abstract states:

   As William Faulkner explained, we must be free not because we claim freedom, but because we practice it. This article analyzes the continuing constitutional struggle for civil rights on the basis of sexual orientation, concentrating on the constitution state's critique of its constitution. Connecticut is currently at the forefront of recognizing civil rights. Connecticut has ruled that discrimination against gay and lesbian persons is subject to intermediate scrutiny, which has historically been used to review laws that employ quasi-suspect classifications such as gender. Civil marriage for same sex couples is legal in Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont. New York recognizes marriages by same sex couples legally entered into in another jurisdiction. California’s Proposition 8 renders the Californian Constitution in conflict with itself. This analysis addresses the federal Defense of Marriage Act's impact on same sex couples that marry in Connecticut. It also considers comparative constitutionalism and the evolution of nondiscrimination measures.

4. Ian C. Bartrum (Yale Law School), Pleasant Grove v. Summum: Losing the Battle to Win the War, 95 Va. L. Rev. (forthcoming 2009). The abstract states:

   This short essay explores the potential doctrinal implications of the Supreme Court's recent decision.

5. Stephanie Farrior (Vermont Law School), Human Rights Advocacy on Gender Issues: Challenges and Opportunities, 1 J. Hum. Rts. Prac. 83 (2009). The abstract states:

   This article reviews recent developments in human rights law on gender issues, and identifies upcoming challenges and opportunities for advocates on these issues.

   Recent years have seen notable progress on issues of gender and human rights in standard-setting. Progress can also been seen to some extent in the application of these standards through international and domestic legislation, jurisprudence, and institutional programming and development. Some international and regional human rights bodies now go beyond just including 'women' in a list of 'vulnerable' groups, and have begun to incorporate women's experiences and perspectives into recommendations for structural changes needed to bring about full enjoyment of human rights by women and girls. In addition, the human rights of lesbian, gay, bisexual, transgender, and intersex people are being taken up beyond the first human rights bodies that addressed them.

   Despite this progress, many challenges remain. Violence against women continues at a staggering rate. Gender-based discrimination persists in the workplace, housing, education, disaster relief, health care, and countless other areas. Access to justice continues to be hindered by a range of obstacles. Religion, tradition, and culture continue to be used as a shield for violating women's rights. Same-sex conduct is still criminalized in scores of countries, and it carries the death penalty in seven states. The traditional human rights law paradigm, with its focus on the state, may be obsolete in dealing with human rights abuses by such diverse non-state actors as powerful militias and global corporations. This article reviews both recent developments and upcoming challenges in advocacy on gender issues.

6. Francis Joseph Mootz III (William S. Boyd School of Law, UNLV), Faith and Politics in the Post-Secular Age: The Promise of President Obama, available at SSRN: http://ssrn.com/abstract=1433545. The abstract states:

   If the modern era is properly characterized as the 'age of secularism' - a time when constitutional democracies finally have shed the last vestiges of church authority from the political realm and embrace a rationalist and humanist perspective - then the United States appears to be outside the Western mainstream. In this paper I explore how the relationship between politics and religious faith in the United States might be seen as part of the narrative of secularism that defines most other Western countries, even as the differences in the American experience might suggest an evolution of this narrative. My thesis is that President Obama might embody a means for faith and politics to co-exist in the post-secular age. I explore this paradoxical thesis in three parts. First, I analyze the concept of 'secularism' and recover an understanding of our 'secular' age that does not entail rejecting religious belief as a source of public values. Second, I discuss how Barack Obama is a secular politician in this sense, and argue that he may help to define a break from the traditional religious approach to politics exhibited by fundamentalist movements. Finally, I discuss the central question for a post-secular constitutional democracy: the role of religion in the public sphere. I conclude that the United States has the potential to be a secular state grounded in both religious belief and toleration, but this presents a continuing challenge for our polity rather than an accomplishment to be celebrated.

7. Diane Leenheer Zimmerman (New York University - School of Law), Money as a Thumb on the Constitutional Scale: Weighing Speech against Publicity Rights, B.C. L. Rev. (forthcoming 2009). The abstract states:

   Although they have differed in their approaches, courts deciding right of publicity cases have almost uniformly assumed that the appropriate way to test the constitutionality of the claim is to weigh the plaintiff's publicity interest against the defendant's free speech claim. The question left unanswered is what could possible give sufficient weight, in particular to a nonadvertising publicity claim, to allow it plausibly to outweigh the first amendment. The paper argues that no plausible jurisprudential predicate for this practice exists unless one is willing to accept the argument that interests expressed in economic terms are inherently weightier than traditional liberty interests. If this argument is unattractive, then the premise behind applying a balancing test for publicity claims is also flawed, leaving the tort The paper suggests that, at least outside the area of advertising uses, traditional first amendment analysis leave only the smallest of spaces for publicity rights.

8. Josh Goodman, Divine Judgment: Judicial Review of Religious Legal Systems in India and Israel , 32 Hastings Int'l & Comp. L. Rev. 477-528 (2009).

   No online abstract available

JFB

Pa. Supreme Court Upholds Ban on Pornography in Prison

On Monday the Pennsylvania Supreme Court ruled that the state prison system's ban on pornography did not violate prisoners' rights under the First Amendment or the state constitution. Citing the need to "assist with rehabilitation and treatment objectives, reduce sexual harassment and prevent a hostile work environment, the corrections department had adopted a rule defining pornography as (1) materials in which the purpose is sexual arousal or gratification; or (2) the material containing nudity of the genitals, pubic area, buttocks or female breasts. The prison rules did allow material with "significant literary or educational value" to be approved on a case by case basis, "taking into consideration educational programs the inmate is involved in, and the type of his/her offense (i.e., sexual offender).” In a foreseeable result based on the U.S. Supreme Court's rulings in Turner v. Safely, 482 U.S. 78 (1987) and Beard v. Banks, 548 U.S. 521 (2006), the Pennsylvania Supreme Court found no legal basis for the challenge to the ban filed by Shannon Brittain, a convicted rapist.   

Hat tip to How Appealing.   

JFB

In Pilot Program, Some Russian Schools to Offer Classes on Selected Religions or Secular Ethics

Last week the New York Times and AP reported that Russian President Medvedev had announced that an experimental program will offer preteen students the opportunity to take courses on Russian Orthodox Christianity, which is the country’s dominant faith, Islam, Buddhism, or Judaism, a course offering an overview of all four faiths, or a class on secular ethics. The pilot effort in approximately twenty per cent of Russian schools may be expanded nationwide in 2012. Announcing the project, Mededev stated that  "[a]ny coercion, pressure will be absolutely unacceptable and counterproductive" as students and their parents consider the available offerings.  Several Russian regions had previously mandated that students take classes in Orthodox culture, and concern has grown within the country about close alliances that had been forged in recent years between leaders of the Russian Orthodox Church and a number of government officials, including Vladimir Putin. As described in the New York Times last year, the relationship between Putin and Orthodox Church leaders has prompted great apprehension about the possible repression of non-believers or adherents of other faiths.

JFB

 

US AID Inspector General's Audit Raises Questions About Funding of Religious Activities Abroad

According to the Washington Post, an audit performed by the inspector general of the U.S. Agency for International Development has found the agency supplied funds to rebuild Iraqi mosques and to provide biblical lessons promoting sexual abstinence in Africa.  The agency is barred from using taxpayer dollars to support "inherently religious activities," but an agency statement defended the expenditures as advancing secular foreign policy goals. 

    The degree to which the Establishment Clause constrains U.S. agency activities abroad remains uncertain under existing precedent. In Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991), the panel did grant taxpayers' standing to challenge the use of USAID funds to construct, maintain, and operate religious schools overseas as part of the American Schools and Hospitals Abroad initiative. However, in U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court had ruled that the Fourth Amendment did not apply to U.S. agents’ search and seizure of property owned by a nonresident alien and located in a foreign country, calling into questions the possible extraterritorial reach of the other constitutional provisions. The extraterritorial application of constitutional protections, including the Establishment Clause,has received some renewed attention after Boumediene v. Bush, 553 U.S. ----, 128 S.Ct. 2229 (2008).

    Jessica Powley Hayden has specifically examined US AID related questions in two Notes: THE TIES THAT BIND: THE CONSTITUTION, STRUCTURAL RESTRAINTS, AND GOVERNMENT ACTION OVERSEAS, 96 Geo. L.J. 237 (2007) and MULLAHS ON A BUS: THE ESTABLISHMENT CLAUSE AND U.S. FOREIGN AID, 95 Geo. L.J. 171 (2006).  

JFB

ACORN Files Suit to Enjoin Enforcement of Pa. Solicitation of Voter Registration Statute

    As reported in today’s New York Times, in May Allegheny County D.A. Stephen Zappala charged five former Association of Community Organizations for Reform Now (ACORN) employees with multiple counts of voter registration fraud, including violations of  Pennsylvania’a Solicitation of Registration statute, 25 Pa. Cons. Stat. §1713.  The statute provides: "A person may not give, solicit or accept payment or financial incentive to obtain a voter registration if the payment or incentive is based upon the number of registrations or applications obtained." Classified as a misdemeanor, a violation of the statute carries a potential  penalty of $500 to $2,500 and/or imprisonment for one month to one year. Fearing that the DA will soon initiate a prosecution of ACORN as an organization, the group filed a complaint yesterday seeking to invalidate the solicitiation of registration provisions as unconstitutional. 

    In a press release about the suit, the ACLU-PA, which represents the plaintiff, asserted that the application of the law to ACORN’s use of flexible productivity standards and goals to manage paid canvassers inteferes with the group’s First Amendment rights to undertake political advocacy.  Witold Walczak, the ACLU of Pennsylvania's Legal Director, stated: "This law, which prevents ACORN from using commonplace management tools like performance standards and productivity goals to manage paid employees, does nothing to prevent election problems but does impose a major burden on constitutionally protected political activity. Also representing ACORN in the case, Brian Mellor, a senior attorney with Project Vote, added: “The Allegheny County DA's interpretation of this Pennsylvania statute creates a chilling environment that makes it impossible for anyone to manage a professional paid voter registration drive in Pennsylvania without fear of prosecution. The impact of the restriction will be felt most by low income and minority voters, who rely more heavily on registration drives than do affluent and white voters."  District Attorney Zappala has agreed to defer prosecution of any ACORN officials until the  a ruling has been issued by the federal judge to whom the case is assigned.

JFB 

S&P to Use First Amendment Defense as Part of Its Effort to Fend Off Liability in Financial Meltdown Litigation

An article in the Business Section of the Sunday New York Times describes how prominent First Amendment litigator Floyd Abrams plans to defend Standard and Poor's against an avalanche of legal claims stemming from their issuance of ratings for assorted failed financial instruments by characterizing the ratings as protected speech akin to a newspaper editorial's expression of opinon. The Times notes that a number of experts, including securities scholar John Coffee, see this line of defense as flawed, especially given the financial stake the rating entities had in the investment enterprise they can be seen as advancing through the opinions they issued. In an interesting post on Concurring Opinions, Frank Pasquale presents troubling accounts of irresponsible rating agency behavior, accounts that make them unsavory candidates for a possible First Amendment safe harbor.

 

JFB       

 

 

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

First Amendment Scholarship Update

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

1. Jamin Ben Raskin (Washington College of Law), No Enclaves of Totalitarianism: The Triumph and Unrealized Promise of the Tinker Decision, 58 American U. L. Rev. (forthcoming 2009). The abstract states:

   The Supreme Court’s decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America’s public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school’s interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was a decisive victory for what Robert Post has called 'democracy' values over 'management' and 'community' values within a key institutional setting. For its dramatic infusion of democratic speech values into a classic authoritarian relationship — that between powerful adults and powerless children in an institutional setting — the Tinker decision was remarkable at its inception. But the true First Amendment meaning of the decision travels well beyond the schoolhouse gate and has yet to be recognized, much less realized. The Tinker formula, which protects speech that does not substantially disrupt functional operations or violate the rights of other participants, harmonizes the managerial power of democratic government to accomplish its ends through social institutions with the cross-cutting sovereign freedom of democratic citizens to speak inside these institutions. Tinker is the 'inside' speech correlate to the 'outside' speech principle of Brandenburg v. Ohio, which protects all speech in the street (or elsewhere in society outside of specific institutional contexts), that is not likely (or intended) to 'incit[e] . . . imminent lawless action.' But the striking implications of the Tinker formula remain vastly unrealized. The freedom to speak in most social institutions is not the default standard suspended in rare and extreme cases but rather a weak and secondary value regularly subordinated to the foreground interests of authority, property, hierarchy, punishment and retribution, militarism, social order, political stability, and commercial profit. We can see how the constitutional right of free speech is constantly balanced into oblivion against weighty social interests by the way that the school cases themselves have unfolded since Tinker was decided. Part II of this Article examines the roots and meaning of the powerful libertarian doctrine of Tinker and then canvasses how the doctrine has been eroded (much like the egalitarian vision of Brown) by the sharp undertow of sympathy for authoritarian structure on the Burger, Rehnquist, and Roberts Courts. The conservative Court has carved out major exceptions to Tinker in the interests of social conformity, sexual prudishness, protection of sensitive adults’ feelings, and promotion of ideological unity for drug prohibition. Part III explores how a traveling Tinker principle differs from the illiberal doctrines of speech regulation and suppression that govern other institutional settings, focusing illustratively on the public sector workplace and the military. Part IV concludes by arguing that the current weakness of the Tinker commitment undermines democratic progress both in public schools and in other public institutions. The way to renew the momentum of the decision is to shift rhetorical emphasis from the more manipulable 'material and substantial interference' prong of the Tinker standard to the 'invasion of the rights of others' prong. Although consideration of the former has tended to subsume the latter, my hope is that doctrinal focus on concrete individual rights at stake will liberate courts from a tendency to validate abstract invocations of state interests as justifying censorship.

2. Eugene Volokh (University of California, Los Angeles - School of Law), Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms, Defend Life, and Practice Religion, Stan. L. Rev. (forthcoming 2009). The abstract states:

   Much has been written about the law of lethal self-defense, but comparatively little has been written about nonlethal self-defense. And very little has been written on what is likely the most significant restrictions on nonlethal self-defense - restrictions on possessing and carrying stun guns and irritant sprays, which are indeed almost always nonlethal. Seven states and several cities, for instance, totally ban private possession of stun guns, even in the home. And that’s so even though in all those states gun possession in the home is perfectly legal.

   This article discusses the most common such nonlethal weapon restrictions: (1) general bans on possession or carrying, (2) bans on possession by minors (including older minors), (3) bans on possession by felons (including nonviolent felons), (4) bans on possession or carrying in public universities, public housing, and public transportation systems, and (5) bans on carrying in public parks and in places that sell alcohol. All of these, it argues, are generally bad policy, though the case against them is stronger as to some restrictions than others.

   It also argues that many such restrictions should be seen as unconstitutional under the right to bear arms, whether federal or state (at least 40 state constitutions secure an individual right to bear arms). It argues that they should be seen as unconstitutional under the right to defend life, which is expressly secured by 21 state constitutions and that might be implicitly secured by the federal constitution. And it argues that when a law allows possession of deadly weapons and not nondeadly weapons, then people who have religious beliefs that forbid deadly force (even in self-defense) but allow nondeadly force should get religious exemptions from such rules, in the roughly half the states that have presumptive religious exemption regimes.

3. Sadiq Reza (New York Law School), Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice, Geo. J. Int'l L. (forthcoming 2009). The abstract states:

   Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular — one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' — are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists of premodern and modern times have articulated on the basis of the pertinent texts; (2) discussing the evidence, or the lack thereof, in the historical record that such rules operated in criminal practice in the premodern Arab-Ottoman Muslim world; and (3) comparing the apparent theories and policies of Islam’s pertinent provisions with those of the Fourth Amendment. The Article concludes that authority for Fourth-Amendment-like protections certainly exists in Islamic law, but assertions that such protections do so exist, or have ever been routinely practiced before the modern period, are unsupported by the doctrinal and historical records. There is, in the end, no obstacle to articulating search and seizure protections in Islamic law that meet modern notions of criminal due process; in this is the possibility of common ground between those who seek a greater role for Islamic law in today’s Muslim world and those who seek a lesser one.

4. Mano Singham (Case Western Reserve University), GOD VS. DARWIN: THE WAR BETWEEN EVOLUTION AND CREATIONISM IN THE CLASSROOM (Rowan & Littlefield 2009). The abstract states:

   In God vs. Darwin, Mano Singham dissects the legal battle between evolution and creationism in the classroom beginning with the Scopes Monkey trial in 1925 and ending with an intelligent design trial in Dover, Pennsylvania, in 2005. A publicity stunt, the Scopes Monkey trial had less to do with legal precedence than with generating tourism dollars for a rural Tennessee town. But the trial did successfully spark a debate that has lasted more than 80 years and simply will not be quelled despite a succession of seemingly definitive court decisions. In the greatest demonstration of survival, opposition to the teaching of evolution has itself evolved. Attempts to completely eliminate the teaching of evolution from public schools have given way to the recognition that evolution is here to stay, that explicitly religious ideas will never be allowed in public schools, and that the best that can be hoped for is to chip away at the credibility of the theory of evolution.

5. Sean Oliver-Dee (London School of Theology), THE CALIPHATE QUESTION: THE BRITISH GOVERNMENT AND PAN-ISLAMIC GOVERNANCE (Lexington Books 2009). The abstract states:

   The Caliphate Question combines the disciplines of theology, history, and international relations in order to approach the complex and sensitive issue of how Western governments—in this case the British—have historically engaged with foreign policy issues that have centered around questions of theology or faith. The British government's approach to policy-making in the field of Islamic governance from the First World War through to the early Cold War is the case study for this book, both because of the extensive documentation that exists on the period and because of its relevance to the current geo-political world.

   While the book is not a critique of current British foreign policy, it does seek to furnish policy-makers and commentators with a framework within which such increasingly necessary policy-making can be created.

6. Frederick M. Shepherd (Samford University), CHRISTIANITY AND HUMAN RIGHTS: CHRISTIANS AND THE STRUGGLE FOR GLOBAL JUSTICE (Lexington Books 2009). The abstract states:

   In Christianity and Human Rights: Christians and the Struggle for Global Justice, Frederick M. Shepherd has collected essays by scholars and activists who, in a wide variety of ways, confront the issue of Christianity's role in the burgeoning movement for human rights. The volume's contributors provide diverse perspectives on the theology behind the idea of human rights, the debate over the its meaning, and the evolution of the struggle for human rights. A wide variety of disciplinary perspectives are represented, from economics, political science and law to history, philosophy and theology. The essays also represent a broad political spectrum, including specific accounts from activists participating in the struggle for human rights. Separate chapters focus on cases from Europe, Africa, Latin America and Asia. Christianity and Human Rights begins and ends with attempts to synthesize current theory and practice, acknowledging both Christianity's great success and its failures in defending basic human rights around the globe.

7. Günter Schucher (German Institute of Global and Area Studies (GIGA)), Liberalization in Times of Instability: Margins of Unconventional Participation in Chinese Authoritarianism, available online at http://ssrn.com/abstract=1430809 (2009). The abstract states:

   Unconventional participation is by no means regime-threatening per se, not even in an authoritarian regime like China. On the contrary, the Chinese government has been able to generate legitimacy by tolerating certain forms of unconventional participation and by localizing the responsibility for solving conflicts. The current leadership in Beijing has chosen these strategies to channel protests, co-opt civic society, and avoid blame - complementary to rather repressive forms of governance. An evaluation of protest events shows that the government has succeeded in containing protests quantitatively as well as qualitatively (that is, in terms of scope and the potential threat to the political system) through the extension of opportunities to air grievances.

8. Todd James Bush, Holocaust Denial: Laws and Public Policy, Available online at http://ssrn.com/abstract=1430182 (2009). The abstract states:

   Holocaust denial has been present since the fall of the Third Reich and continues to build an underground following to this day. This paper presents a look at the major players in Holocaust denial and revisionism, the various laws allowing and restricting denial and appropriate suggestions to help prevent this movement from continuing to thrive behind the guise of freedom of speech.

9. Fred C. Zacharias (University of San Diego - School of Law), True Confessions About the Role of Lawyers in a Democracy, 77 Fordham L. Rev. (forthcoming 2009). The abstract states:

   The title of this Symposium, The Lawyer’s Role in a Contemporary Democracy, has several possible interpretations. It could represent a call to discuss the nature of democracy itself. Alternatively, it might employ the term 'contemporary democracy' as shorthand for freedoms commonly associated with liberal democracies, such as free speech and equality, and anticipate that Symposium participants will explore how lawyers can promote those freedoms. Although this essay discusses these approaches, it ultimately takes a different perspective. Fordham Law School’s Louis Stein Center for Professional Ethics, which typically focuses on how lawyers should act in their professional lives, has sponsored this Symposium. Given the Center’s orientation, I perceive its invitation as encouraging the Symposium participants to consider the common notion that attorneys, because of their status, have unique obligations to support law reform enhancing individual rights and open, representative government.

Call for Papers on "The First Amendment Meets Cyber-Stalking Meets Character and Fitness"

The AALS Section on Women in Legal Education has posted a call for papers on "The First Amendment Meets Cyber-Stalking Meets Character and Fitness". The papers selected would be presented as part of a panel discussion at the AALS Annual Meeting in New Orleans in January, 2010.  The announcement states:

Cyber-harassment has made its way to the legal academy, in part by way of the Auto-Admit debacle implicating law students and in part by way of other similar situations. The resulting dialogue has raised legal issues related to ethics, gender equality, freedom of speech, and internet regulation and liability.  Some legal scholars say that on-line attacks by law students, prospective law students, or lawyers, while noxious, constitute protected speech that should not be penalized. Others say that on-line attacks can raise sexual harassment or civil rights concerns given that the conduct often targets women. Still others say that outrageous on-line conduct by law students, prospective law students, or lawyers raises character and fitness concerns, particularly when the conduct is overtly racist or gendered. 
 
Discussion about these issues is complicated by internet anonymity and evolving internet-related case law, and more questions are raised than are answered.  Is it a problem when gender- or race-specific comments are made on the internet by law students, prospective law students, jurists, or lawyers? What, if anything, should be done in response to this conduct by law schools, bar examiners, or state disciplinary counsel? More generally and not specific to law students or lawyers, should cyber-harassment be addressed by legislation, litigation, regulation, or prosecution? How?  

Those interested in participating in the program on this topic should submit a paper proposal or a draft paper by September 10, 2009, to Professor Elizabeth Nowicki, Chair of the AALS Section on Women in Legal Education, at enowicki@tulane.edu.

JFB

"Holy Hullabaloos" Provides Law Professor's Guided Tour of the Sites of Major Religion Clause Controversies

Boston University law professor Jay Wexler has recently published "Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church-State Wars." The book has received appreciative reviews, many of which praise the sense of humor Wexler displays as he chronicles his trips to a Santa Fe, Texas football game, to a congressional session as it is opened by the designated chaplain, and to the Wisconsin Amish community where Wisconsin v. Yoder originated,  A highlight from the book's website is the chance to hear Michael Newdow, inveterate Establishment Clause plaintiff, sing the book's theme song.

JFB

   

First Circuit Rejects Challenge to Massachusetts Abortion Clinic Buffer Zone Statute

In a unanimous opinion in McCullen v. Coakley, the First Circuit has rejected a facial challenge to a Massachusetts statute that creates a 35-foot fixed buffer zone around reproductive health care facilities. The court found the law to be content neutral and narrowly tailored, noting that testimony from law enforcement officers and clinic workers had established that the prior floating buffer zone regime had not been effective at ensuring clinic access and maintaining a safe and orderly area around the clinic entrances.

Ninth Circuit Finds First Amendment Does Not Bar Enforcement of Washington Rules Requiring Pharmacists to Dispense Plan B Pills

In a ruling issued yesterday in Stroman's v. Selecky, the Ninth Circuit has found that the First Amendment's Free Exercise Clause does not require that pharmacists with a religious objection to the Plan B contraceptive be exempted from the state mandate that all pharmacies stock and dispense the medication.  The objecting pharmacists have also presented other constitutional arguments to invalidate the regulations, and those arguments will proceed to trial. The state has agreed that it will not pursue sanctions against the plaintiffs until the conclusion of that trial. 

JFB     

 

Fifth Circuit Hears Argument in Case of Student Punished for Wearing Campaign T-shirt

The Houston Chronicle reports that the Fifth Circuit heard oral argument yesterday in a Texas student's challenge to his school's application of its dress code so as to bar him from wearing a "John Edwards 08" t-shirt  at school.  The school's disciplinary action had been upheld by the district court, but the student, Pete Palmer, argues that the school's action should have been treated as a First Amendment violation . Palmer asserts that  the school suppressed his political speech and that its action could not be plausibly grounded in the avoidance of a substantial disruption of school activities. Questioning of the school district's lawyer revealed that the school allows the wearing  political buttons and the display of political stickers on bookbags but prohibits any "non-school messages" on clothing. In its brief, the Waxahachie Independent School District exlpained the clothing policy seeks  to "promote school pride and foster a learning environment free of distractions" and does to in a viewpoint neutral and content neutral manner. A recording of the oral argument can be found via the Fifth Circuit's website.

JFB      

Brookings Institution Offers Report on Sotomayor Rulings in Religion Cases

As the Sotomayor confirmation hearings approach, Melissa Rogers, Non-Resident Senior Fellow at the Brookings Institution has published a brief examination of Judge Sotomayor’s rulings in church-state cases.  The report summarizes its findings as follows: 

Judge Sotomayor’s style is methodical and her church-state rulings are decidedly mainstream. Generally speaking, she is sensitive to the rights of religious people and groups to express their faith without unnecessary governmental interference, and she is protective of the prerogative of religious institutions to hire and fire their ministers free from state meddling. Sotomayor has not often had to face issues related to government sponsorship of religious messages, and she apparently has never decided cases involving government subsidies and religious institutions and activities. In part for that reason, Senators should engage Sotomayor in a discussion of the broad principles and values animating the constitutional commands on religious freedom.

The Brookings report goes on to note that Judge Sotomayor would likely vote much as Justice Souter had in free exercise cases but that she may not resort as much Souter did to church-state history in explaining rulings.  Because Judge Sotomayor has decided few Establishment Clause cases her rulings in that domain seem harder to predict, but Melissa Rogers sees possible differences in Sotomayor and Souter’s views on displays of religious symbols in public spaces. 

An retrospective assessment of Justice Souter’s Religion Clause jurisprudence is also available from Brookings.    

JFB  

Baptist Joint Committee for Religious Liberty Finds Sotomayor Church-State Record "Commendable"

The Baptist Joint Committee has issued an assessment of Judge Sotomayor's opinions addressing free exercise and Establishment Clause issues. The report summarizes the BJC's conclusions as follows: 

[Judge Sotomayor] has written opinions suggesting a strong willingness to protect free exercise – even in difficult settings such as prisons and in cases where the religious practices of plaintiffs are unfamiliar. She has participated in fewer Establishment Clause cases, but her opinions in that area generally fit within the mainstream of Supreme Court decisions. Moreover, in a couple of cases where the governing case law was not settled, she accurately predicted the Supreme Court’s eventual resolution.

    Among the specific cases discussed by the BJC is Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003), which, the report indicates, Judge Sotomayor identified as one of the ten most significant cases she has decided in her responses to the Senate Judiciary Committee pre-confirmation hearing questionnaire. In Ford, the Second Circuit considered a Muslim prisoner's claim that his free exercise rights were violated by prison officials' refusal to allow him to observe the Eid ul Fitr feast at the end of Ramadan. The appellate panel overruled the district court's ruling that the prisoner had to failed to state a claim beacuse he had not offered objective evidence of the feast's significance or demonstrated that the denial imposed more than a trivial burden.  Judge Sotomayor's opinion admonished, “District courts have
no aptitude to pass upon the question of whether particular religious beliefs are wrong or right,” and chided the lower court for failing to frame its evaluation of the claim in terms of  whether participation
in the Eid ul Fitr feast was considered important to the claimant’s practice of Islam rather than insisting that such a claim could only be sustained if Muslim clerics considered the observance of the
requested meal a mandate of Islam.

    The BJC also noted that Judge Sotomayor's ruling in  Mehdi v. United States Postal Service, 988 F. Supp. 721 (S.D.N.Y. 1997), rejecting  Muslim plaintiffs's free speech and Establishment Clause challenge to the Postal Service’s refusal to display the Star and Crescent alongside Christmas and Hanukkah symbols or to remove all sectarian symbols from holiday displays reflected reasoning similar to that later adopted by the Supreme Court in Pleasant Grove City, Utah, et. al., v. Summum, 555 U.S. ____ (2009). Judge Sotomayor treated the post office facility as a non-public forum and conluded that the Postal Service's refusal to alter its decorations was a “reasonable restriction designed to further its business.”

Hat tip to Religion Clause Blog for flagging the BJC report.

JFB  

First Amendment Scholarship Update

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

1. Mohammad Fadel (University of Toronto), Political Liberalism, Islamic Family Law and Family Law Pluralism: Lessons from New York on Family Law Arbitration, MARRIAGE AND DIVORCE IN A MULTICULTURAL CONTEXT: RECONSIDERING THE BOUNDARIES OF CIVIL LAW AND RELIGION (Joel A. Nichols, ed., Forthcoming 2010). The abstract states:

   Recent controversies involving Islamic family law in the context of liberal jurisdictions (as exemplified in the Shari’a arbitration controversy of Ontario, Canada) have raised fundamental questions regarding the nature of family law in a liberal jurisdiction and the place of Islamic religious and legal commitments in such a jurisdiction. In this chapter, which is part of a book dedicated to discussing the question of family law pluralism in liberal states, the author argues that orthodox Muslims would prefer a policy of family law pluralism that is derived from a liberal family law rather than a system of family law pluralism that would give religious bodies greater authority. Working with a Rawlsian conception of the role of the family within political liberalism, the author argues that orthodox Muslims could support this version of family law because it creates a space for private ordering within the family that is sufficient for robust manifestations of Islamic family life that are also consistent with liberalism, and most importantly, does not require Muslims to endorse what would be, from their perspective, metaphysically controversial conceptions of marriage, such as the norm of lifelong marriage. The chapter describes how various Islamic ethical and legal doctrines give rise to and support a system of family law pluralism which, although different from the pluralism of liberalism, creates the possibility for overlap between authentically Islamic doctrines and liberal ones. The author then offers examples of the salient historical differences in Muslim understandings of family law by comparing two distinct Sunni Muslim systems of substantive law: the Hanafî and the Mâlikî. The author also describes the tension that exists between the values of Islamic law as a legal system and traditionalist Islamic religious discourse: the former protects and vindicates the individual rights of the parties to the marriage contract while the latter promotes an ethic of sacrifice, trust, love and female subordination to their husbands. The pluralist conception of marriage in Islam, whether at the legal or moral level, means as a practical matter that not all Islamic conceptions are consistent with a liberal order, and accordingly, any kind of Islamic arbitration system must be subject to the supervision of the liberal legal order to confirm that results of arbitration do not violate mandatory provisions of family law. Finally, the author offers the practical example of New York courts’ experience with enforcing (or not) family law arbitrations conducted pursuant to Jewish law to demonstrate the capacity of the courts in a liberal jurisdiction to give effect to the autonomy of nonliberal citizens while ensuring that the autonomy of the family is not used to deprive any of its members of their fundamental rights as citizens.

2. Yehiel S. Kaplan (University of Haifa), A Father's Consent to the Marriage of His Minor Daughter: Feminism and Multiculturalism in Jewish Law, 18 S. Cal. Rev. L. & Soc. Just. 393-460 (2009). The abstract states:

   The marriage of minor daughters in conservative societies stems from a stereotypic outlook that a woman's place is in her home, and her main roles in life are childbearing and her contribution to the growth and education of her children. ... During the first stage, rules concerning the authority of the father were dominant; the father could betroth his minor daughter without her consent. ... These scholars should consider that another approach might enhance and promote the desirable balance between multiculturalism and feminism. ... Al-Hibri stressed that a feminist perspective favoring reform in Muslim countries or within groups of Muslim immigrants in Western countries should always be balanced by the counter-perspective of respect for the religious and cultural principles of Muslims. ... Maimonides held that the ancient point of view of Rabbi Yehudah, quoting the legal statement of Rav, or according to another tradition, Rabbi Elazar, that it is forbidden for a father to betroth his daughter while she is a minor, and therefore, he should wait until she matures and says she desires to wed a particular person, is binding law of the ancient sages that "commanded" Jews not to betroth their minor daughters. ... The abovementioned rationale of "harsh reality" and financial uncertainty, mentioned in sources written by prominent Jewish scholars of Franco-German Jewry during the eleventh through thirteenth centuries, might not be identical to the abovementioned rationale of the temporary opportunity to betroth the daughter. ... In the seventeenth century, Rabbi Ephraim Cohen, an Ashkenazi Jewish scholar in Buda, Hungary, mentioned an "ancient" enactment of the Jews that fathers should not betroth their daughters before their eleventh year of life. ... Enactments of some Jewish communities prior to the enactment of the Chief Rabbinate of Israel prohibited the betrothal of minor daughters. ... Professor An-Na'im held that the reconciliation between Muslim religious values and Western principles of human rights is possible, and his Jewish religious colleague Professor Louis Henkin also stressed: Religion, and religions, have little to fear from the human rights idea and ideology, or from legal norms and political institutions that promote respect for human rights... .

3. Liaquat Ali Khan (Washburn University), Jurodynamics of Islamic Law, 61 Rutgers L. Rev. 231-293 (2009). The abstract states:

   Jurodynamics recognizes the Shariah as the Basic Code, which empowers Islamic states to construct dynamic bonds with classical jurisprudence (fiqh), positive law (qanun), and international law (siyar). ... Part IV presents the concept of inter-scriptural jurodynamics, explaining the theses of Al-Shafi'i and Al-Ghazali. ... Because of the textual presence of both abrogating and abrogated verses in the Quran, and because of potentially abusive practices of abrogation, some jurists completely reject the concept of abrogation and make every effort to reconcile the conflicting verses. ... Jurists of immense competence must engage in extensive research to prioritize conflicting norms of the Shariah's primary sources, the Quran, and the Prophet's Sunnah. ... A universal consensus exists among Muslims that the Prophet's Sunnah prescribes the stoning punishment for adultery. ... Classical Theses of Abrogation In Islam, inter-scriptural reconciliation is a method of harmonizing incompatible prescriptions found in the primary divine texts - the Quran and the Prophet's Sunnah. ... Western imperialism was not content with the exploitation of trade and commerce in colonized lands; it was aggressively self-righteous in imposing Western laws over Muslim communities. ... The Quran's permissibility that prisoners of war may be released without any ransom or penalty allows Muslim states to universalize such a norm when other states are also willing to do so.

4. Mark Strasser (Capital University Law School), The Coercion Test: On Prayer, Offense, and Doctrinal Inculcation, 53 St. Louis Univ. L.J. 417-483 (2009). The abstract states:

   Certainly, Engel discusses the importance of preventing religious persecution by the state, and it suggests that there is a positive correlation between state endorsement of particular religious views on the one hand and religious persecution on the other. ... Justice Kennedy does not spell out the coercion test sufficiently clearly to know what it permits and what it does not, although Justice O'Connor warned in her Allegheny concurrence that an Establishment Clause standard that prohibits only "coercive" practices or overt efforts at government proselytization ... but fails to take account of the numerous more subtle ways that government can show favoritism to particular beliefs or convey a message of disapproval to others, would not, in my view, adequately protect the religious liberty or respect the religious diversity of the members of our pluralistic political community. ... By implying that public graduation invocations or benedictions should be analyzed as forced speech cases, the Court suggests that there are ways to remove the constitutional taint without omitting the invocation or benediction. ... Further, when interpreting the first prohibition, the court seemed to downplay the need to show that several children were being coerced before a violation would be found, noting that "the heightened review given to school-sponsored prayer does not turn on any particular children-to-adults ratio, above which prayers are prohibited, but below which they are constitutionally permissible." ... Santa Fe might be read to suggest that the Constitution does not permit the state to avoid Establishment Clause guarantees by adopting policies that foreseeably and actually result in students praying before large audiences at either public football games or graduations, even if those prayers are composed by individual students. ... Yet, the Adler II court failed to mention two points: (1) Santa Fe had involved other allegedly secular goals, since the message was to "solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition," and (2) the other goals articulated in Adler were to (a) afford "graduating students an opportunity to direct their own graduation ceremony by selecting a student speaker to express a message," and (b) permit "student freedom of expression, whether the content of the expression takes a secular or religious form."

5. Suzie Chiodo (University of Western Ontario Faculty of Law), Big M, Little Freedom: Accommodating Religion in a Secular Society, Available online at http://ssrn.com/abstract=1367837. The abstract states:

   By seeing religion as an aspect of life instead of a framework of existence, Canadian courts have committed some fundamental errors in balancing religious freedom with other rights. Such pitfalls must be avoided if the protections for religious freedom (section 2(a)) and equality regardless of religion (section 15) in the Canadian Charter of Rights and Freedoms are to retain any kind of meaning. These pitfalls include:

   • The limitation of religion to the private sphere;
   • Ranking freedom of religion below other equality rights such as sexual orientation;
   • Using section 2(a) to impose freedom from religion, rather than freedom of religion;
   • Assuming that ‘secular’ means non-religious or religiously neutral.

   Landmark cases such as R. v. Big M Drug Mart Ltd. and Syndicat Northcrest v. Amselem have established several tests to guide courts in their consideration of religious freedom. When taken in conjunction with the preamble to the Charter, and the protections in sections 2(a) and 15, courts and human rights tribunals can avoid the above errors and ensure the preservation of freedom of religion together with other fundamental Canadian values.

6. Lorenzo Zucca (King's College London School of Law), The Crisis of the Secular State-A Reply to Professor Sajó, 7 Int'l J. Const. L. 494-514 (2009). The abstract states:

   The failure of the European Constitution ignited two apparently independent debates, on the future of European states and on the place of Christian values in the European public sphere. In recent years, the latter question has become more and more burning; so much so that the future of European secular states is considered to depend to a great extent on its ability to cope with the alleged threat of religion. Responding to an essay by András Sajó, Preliminaries to a Concept of Constitutional Secularism, which appeared in I•CON in October of 2008, this paper distinguishes two competing theories of the place of religion in Europe and suggests that the best understanding of secularism does not exclude religious minorities from the public sphere. European states should develop a common secular position that articulates and promotes conditions of coexistence and communication.

7. András Sajó The Crisis that Was Not There: Notes on a Reply, 7 Int'l J. Const. L. 515-528 (2009). The abstract states:

   In this response to Lorenzo Zucca's critique (A reply to Professor Sajó) of his 2008 article, Preliminaries to a Concept of Constitutional Secularism, Professor Sajó pronounces himself grateful for the opportunity to examine specific examples of the rationales being advanced in order to “create a space for special practices that do not conform to constitutional values.” At the end of the day, he remains persuaded of the dangers of including religious phraseology and concepts in law that would give “too much aid and comfort” to already privileged religious organizations, in the name of free exercise of religion.

8. Elizabeth A. Rowe (University of Florida - Fredric G. Levin College of Law), Trade Secret Litigation and Free Speech: Is it Time to Restrain the Plaintiffs?, Boston Coll. L. Rev. (forthcoming 2009). The abstract states:

   Trade secret misappropriation litigation is often criticized for its negative effects on competition and speech. In particular, some accuse plaintiff trade-secret owners of filing complaints for the purpose of running a competitor out of business, or restraining individuals from discussing matters which are unfavorable to the company. This paper enters the discussion to critically assess whether there is reason to consider restricting these suits or changing the law.

   The Article concludes that trade secret litigation on the whole does not inappropriately impinge on free speech rights. The fundamental nature of trade secret rights, in particular the underlying proprietary and corporate privacy interests, has implications for how courts and plaintiff trade-secret holders view, interpret, and approach these cases, and ultimately help illustrate why the free speech issues do not pose an overriding concern sufficient to justify restrictions on trade secret litigation. Even if certain cases sometimes come closer to offending defendants' free speech rights, these occasions and concerns are not unique to trade secret law. Instead, they stem from the broader issue of litigation misuse in civil cases, and the other areas of intellectual property litigation suffer from similar problems. Accordingly, any necessary modifications are best addressed in the context of general litigation reform, rather than singling out trade secret cases. Indeed, there are particular reasons not to be overly concerned about trade secret actions because existing litigation safeguards, when properly applied, should minimize the risk of free speech incursions.

9. Amos N. Guiora (University of Utah - S.J. Quinney College of Law), Religious Extremism: A Fundamental Danger, 50 S. Tex. L. Rev. (forthcoming 2009) The abstract states:

   Terrorism constitutes one of the gravest threats against democratic societies in the 21st century; in particular, religiously motivated terrorism. Why is this the case? There are many reasons. Religion is a powerful motivator for both positive social change and mass violence. It is a force in society that is difficult for many in a secular society to truly understand. It is an institution that is protected in civil society, whether by a state's own Constitution or international agreements.

   Given that religious violence constitutes such a grave threat to democracies, governments must begin to examine this institution more critically than they have in the past. Governments are charged not only with protecting civil liberties, like freedom of or from religion, but with protecting their citizens from internal and external threats. This Article discusses the framework modern democratic governments must begin to institute if they are to protect freedom of religion and effectively respond to a unique threat to safety. Five countries - the United States, the United Kingdom, Turkey, Israel and the Netherlands - will be examined. My primary thesis is that civil societies cannot afford to continue to treat religion as an "untouchable" subject - we must begin to understand what religion is in order to know when and how it may be appropriately limited for the benefit of society.

10. Steven G. Gey (Florida State University - College of Law), The Brandenburg Paradigm and Other First Amendments, Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429152. The abstract states:

    This article addresses the fracturing of modern First Amendment law into multiple different sets of rules and rationales for the protection of speech, depending on what kind of speech is an issue. It is no longer accurate to say that there is one universal First Amendment jurisprudence; indeed, it is no longer accurate to say that there is one First Amendment. Today there are many different - often very different - First Amendments for different types of speech. On a practical level, this fracturing of First Amendment law creates difficulties only in that it requires litigators and judges addressing First Amendment issues to identify the category or categories into which a particular example of speech fits. But on a theoretical level, the fracturing of First Amendment jurisprudence is much more problematic. These theoretical problems arise because First Amendment jurisprudence is not just a collection of narrow rules and doctrines. These rules and doctrines are based on series of presuppositions about the nature of individuals, the proper relationship between the government and its citizens, the extent to which society should accept risks posed by dangerous or antisocial ideas, and the liability of speakers for the consequences of their speech. The problem is that the courts make one set of assumptions when dealing with one area of expression and very different (and often contradictory) assumptions when dealing with other areas of expression.

    The article starts by describing the baseline for all free speech jurisprudence - the jurisprudence that applies to political advocacy. It then distills from the Court's major political speech cases a set of principles that will be called "the Brandenburg paradigm." The remainder of the article discusses whether the theoretical assumptions made in the Brandenburg paradigm should also be applied to areas of speech other than political advocacy. Several areas of expression are addressed specifically, including threats, obscenity, "teaching speech," and student speech in public schools. An assessment of these different speech categories indicates that there is no good reason to ignore the Brandenburg paradigm outside the political advocacy category. Indeed, there is one very good reason to apply the Brandenburg paradigm to the entire range of First Amendment issues: The assumptions that underlie Brandenburg - for example, that citizens control the government rather than vice versa, that citizens should develop their own value systems free of government coercion, and that the government should suppress ideas it dislikes only in the face of serious, concrete harms stemming from that expression - should not be regarded solely as artifacts of the First Amendment, but rather as indispensable elements of constitutional democracy itself.

11. Ryan Benjamin Witte (Columbia University - Law School), It's My News Too! Online Journalism and Discriminatory Access to the Congressional Press Gallery, Available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1426190. The abstract states:

    Since March 2007, dozens of newspapers have gone out of business entirely, and still others, like the Seattle Post-Intelligencer, the Capital Times, and the Christian Science Monitor have moved to the internet to stay afloat. Since 1990, a quarter of all American newspaper jobs have disappeared. Despite its three hundred year existence, the American newspaper is being devastated in the span of a decade. Meanwhile, the internet is becoming the go-to source for news, information, weather, movie reviews, and classified advertisements. Congress and the courts can no longer afford to relegate internet journalism to a second-class news medium. In Consumers Union v. Periodical Correspondence Association, the question arose as to the constitutionality of certain rules governing the issuance of press credentials to the congressional press galleries. In that case, based on separation of powers concerns, the court avoided the issue with the political question doctrine. Since then, many courts have taken a similar path when faced with the exclusion of a journalist from an established press facility. Given the switch from traditional print media to websites and Kindles, the question of who has access to the news becomes extremely important. This article will address several issues relating to the freedom of access to the Periodical Press Gallery. The first part of the article will briefly describe the history of the press and the history of congressional reporting leading up to the passage of the Periodical Press Gallery Rules. Part two of the article will describe the rules that govern admission to the Periodical Press Gallery as they exist today. Part three will describe the nature of the right afforded to journalists to access government buildings which have already been opened up to the press. Cases within this section challenge the denial of access to the White House, the Periodical Press Galley, and the Guantanamo Bay detention facility. Discussion in this section will reveal how the D.C. Circuit Court has used the political question doctrine to avoid deciding these press gallery cases on their merits, while taking a deferential approach to denials from other established press pools. Because I believe that Consumers Union was wrongly decided, the final section will address how the courts should decide cases which stem from a denial of admission to the galleries. If the courts still refuse to decide these cases on nonjusticiability grounds, I will argue why Congress should unilaterally refine its rules to cabin the discretion of the Executive Committee and permit more online journalists to enter the Periodical Press Gallery. This section will describe how the current Press Gallery Rules act as an unconstitutional obstacle to the First Amendment rights of online journalists, as well as a Fifth Amendment violation of Due Process. Lastly, I will detail a few substantive amendments to the existing Rules which would provide for a fairer review of an online-journalist’s application.

 

Global Free Speech Update

Ethiopia:  Deputy Secretary of State Jacob Lew expressed concern to Prime Minister Meles during a trip to Ethiopia about a proposed anti-terrorism law that reportedly would define criticism of the government as a "terrorist act."  Good Lord, what kind of government does that?

France:  What to do about illegal downloads?  A proposal that would have punished illegal file-sharers by blocking their access to the internet was rejected recently by the Constitutional Council.  From reports on the decision, it appears that the problem with the law was not the interference with internet access itself, but the authority conferred upon administrative agents, as opposed to a judge, to suspend service.  

Italy:  Careful what you write about.  If a new media law is passed, journalists in Italy could serve 3 years in prison and face hefty fines for writing about an on-going police investigation, publishing a related document or disclosing the contents of a leaked wire-tap.  Could be worse, though.  Publish this stuff in the Czec Republic and you could get 5 years under a law passed last February.  

Kazakhstan:  Activists are criticizing a move to categorize blogs, chat rooms and social networking sites as forms of "mass media" under a new law that would place them under arbitrary government control.  The country already lacks a free and open internet, and bloggers have been prosecuted for anti-government criticism.  President Nursultan Nazarbayev faces pressure from the OSCE to nullify the measure and align the country's laws on freedom of the press with regional standards.  Kazakhstan becomes the organization's chair in six months.

Turkey:  Laws against insulting religion, the military, and the Turkish state continue to be used as a basis for politically motivated prosecutions despite reforms to the penal code undertaken last year. By one estimate more than 70 such cases are pending.  Though imprisonment and convictions are rare, the threat of prosecution itself has a profound chilling effect on speech.  Most recently, author Nedim Gursel was charged with insulting religion in his book, The Daughters of Allah.  Charges were dismissed last week after lawyers uncovered evidence that the complainant probably never read the book.      

-Kathleen Bergin

Westboro Baptist Case Denied SCT Review

The Supreme Court denied cert in Nixon v. Phelps-Roper, leaving in place a Eight Circuit decision that enjoined Missouri's ban on funeral picketing. 

The suit was brought by Shirley Phelps-Roper, grand-daughter of Westboro Baptist Church founder Fred Phelps.  The group you'll recall is best known for disrupting the funerals of gay soldiers while protesting America's supposed toleration of homosexuality.  Here's Shirley's reaction to Monday's decision:

All things are falling apart. Your people are rotten to the core. Your leaders are self-centered, greedy thieves," she said. "You have absolutely no hope for recovery. The final event for this country is your final and complete destruction. And you think we care whether someone says we're hate mongers? Let me sum this up. We don't care. 

But I digress . . .      

In 2006, Missouri passed a law that was meant to provide a buffer between Phelps and the funerals he and his crew wanted to protest.  The Spc. Edward Lee Myers' Law makes it unlawful to picket in front of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral.

One problem for the Eighth Circuit was the langauge "in front of or about," which it said made it difficult for those protesting a moving funeral procession to know with any certainty where they could or could not gather.

"Floating buffer zones" have been upheld before, however, and I'm not sure why Missouri's statute wasn't more narrowly tailored.  Hill v. Colorado upheld a law that made it unlawful for anyone within 100 feet of an abortion clinic to come within 8 feet of another person to hand out literature and the like without their consent. 

For sure there are differences between an abortion clinic with a fixed point of reference and a moving funeral procession, and its true that an 8 foot buffer zone probably wouldn't suffice to balance the privacy interests of grieving families.  But MIssouri would have done better to mark out the size of its buffer and argue that a foot here or there shouldn't raise a constitutional concern, rather than try to enforce a buffer with no defined limits whatsoever.

-Kathleen A. Bergin