First Amendment Scholarship Update

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

1) Bernadette A. Meyler (Cornell University School of Law ), Summum and the Establishment Clause,
104 Northwestern University L. Rev. Colloquy 95 (2009). The abstract states:

This Symposium Essay assesses the compatibility of the U.S. Supreme Court's recent Free Speech Clause-based decision in Pleasant Grove v. Summum with extant Establishment Clause jurisprudence. The Essay first examines why, based on prior state and federal decisions, a free speech challenge to Pleasant Grove's policy of retaining a Ten Commandments monument while excluding the alternative display Summum wished to erect may have seemed more likely to succeed than a religious liberty one. It then posits that the Supreme Court's resulting neglect of the Establishment Clause implications of the case may result in future conflicts between the religion clauses -- and, in particular, the emerging emphasis on equality in religion clause adjudication -- and the position on government speech that the Court staked out in Summum.

2) Angus Deaton (Princeton University ), Aging, Religion, and Health , NBER Working Paper No. w15271. The abstract states:

Durkheim’s famous study of suicide is a precursor of a large contemporary literature that investigates the links between religion and health. The topic is particularly germane for the health of women and of the elderly, who are much more likely to be religious. In this paper, I use data from the Gallup World Poll to study the within and between country relationships between religiosity, age, and gender, as well as the effects of religiosity on a range of health measures and health-related behaviors. The main contribution of the current study comes from the coverage and richness of the data, which allow me to use nationally representative samples to study the correlates of religion within and between more than 140 countries using more than 300,000 observations. It is almost universally true that the elderly and women are more religious, and I find evidence in favor of a genuine aging effect, not simply a cohort effect associated with secularization. As in previous studies, it is not clear why women are so much more religious than men. In most countries, religious people report better health; they say they have more energy, that their health is better, and that they experience less pain. Their social lives and personal behaviors are also healthier; they are more likely to be married, to have supportive friends, they are more likely to report being treated with respect, they have greater confidence in the healthcare and medical system and they are less likely to smoke. But these effects do not all hold in all countries, and they tend to be stronger for men than for women.

3) Andrew R. Lewis (American University),  Baptists and Church-State Advocacy: An Analysis of the Relationship between Membership Opinion and Lobbying the Supreme Court . The abstract states:

Interest groups provide an opportunity for citizen interests to be represented before the Supreme Court. In recent decades, numerous religious advocacy organizations have formed, seeking to influence the Court. Among these groups, advocacy organizations connected to religious denominations have structural advantages, as they can easily overcome the collective action problem. They have advantages in resources, membership numbers, and leadership autonomy. However, they are constrained because their members do not join for ideological incentives, as denominational group membership comes as a byproduct of their affiliation with a local church. This may reduce their ability to gain influence. Two denominational groups, the Southern Baptist Convention’s Ethics and Religious Liberty Commission (ERLC) and the Baptist Joint Committee (BJC), serve as a useful case study to analyze how the structure of denomination advocacy groups affects political decisions, particularly lobbying the Supreme Court and taking positions on constitutional issues. Using the Baylor Religion Study, this study compares the activities of the BJC and ERLC on church-state issues, evaluating the congruence between their members’ opinions on church-state issues and the groups’ official church-state positions and amicus brief filings. It finds that the members of both the BJC and the ERLC prefer government support and accommodation of religion. These opinions differ from the actions that the groups take, especially the BJC. The BJC takes positions and actions that are incongruent with the policy opinions of its membership, and the ERLC takes positions more in line with the views of its membership, though it does not support accommodation as much as its members do. I argue that it is the structure of these denominational groups that allows the members to take positions that are incongruent with the positions of the membership. Particularly, denominational leaders have increased autonomy, because the members do not join for the benefits that the group offers, the members cannot easily leave the group, and the group leaders do not depend on membership dues. This study has implications for the tactics that groups targeting the Court may take and citizen representation before the Court. It also describes the opportunities and constraints of religious denominational advocacy groups, which differ from the opportunities and constraints of other citizen religious groups.

4) Winnifred Fallers Sullivan (Buffalo Law School), Requiem for the Establishment Clause, 25 Const.  Comment. 309 (2009). The abstract states:

This article argues that the free church model celebrated in Professor Greenawalt’s new volume on the establishment clause is losing ground as a basis for constitutional management of religious life in the U.S., giving way to a new form of establishment based in a religious universalism that supports governmental endorsement of religious understandings of human persons. Separation of church and state is no longer workable now because of an increase in religious diversity, the expansion of government, and a shift in religious authority from the institution to the individual.

5) Linda F. Smith (University of Utah - S.J. Quinney College of Law ), Kidnapped from that Land II: A Comparison of Two Raids to Save the Children from the Polygamists . The abstract states:

In the spring on 2008 America watched as over 400 children were removed from their polygamist parents on the Yearning for Zion Ranch in rural west Texas. That raid was eerily reminiscent of the Short Creek Raid of 1953, meant to rescue the children from the same polygamist group in Arizona and Utah. This article compares and contrasts the two raids in light of changes to child protection law in the intervening years. Despite advances in our understanding of child development and in our respect for constitutional rights, the Texas raid repeated and compounded the mistakes of the Short Creek raid. Ultimately the article explores why child protection laws are inappropriately used to attempt the rescue of children from authoritarian religions.

6)Mark S. Hamm , Prison Islam in the Age of Sacred Terror, 49 British J. of Criminology 667 (2009). The abstract states:

Research indicates that Islam is the fastest growing religion among prisoners in Western nations. In the United States, roughly 240,000 inmates have converted to the faith since the 9/11 attacks. According to federal law enforcement, Saudi-backed Wahhabi clerics have targeted these prisoners for terrorist recruitment. The present research examines this claim from several different perspectives. First, it reviews the literature on prisoner conversions to Islam and concludes that there are opposing viewpoints on the matter. One side of the debate takes an alarmist stance, arguing that prisons have become incubators for Islamic terrorism; the other side asserts that Islam plays a vital role in prisoner rehabilitation. Second, results of a two-year study of prisoner radicalization and terrorist recruitment in US prisons are reported. The motives for prisoner conversions to Islam are discussed along with the effects of conversion on inmate behaviour; the role played by gangs and charismatic leaders in radicalizing prisoners; and the social processes by which inmates move from radicalization to operational terrorism. Third, two case studies are presented. One involves a terrorist plot waged by a gang of Sunni prisoners at California's New Folsom Prison; the other looks at the inmate-led Islamic Studies Program at Old Folsom Prison, which has adopted a de-radicalization agenda. It is argued that inmate self-help programmes may do more than the state to prevent radicalization and terrorist recruitment behind bars.

7) Scott Gaylord (Elon University School of Law), Licensing Facially Religious Government Speech: Summum’s Impact on the Free Speech and Establishment Clauses . The abstract states:

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment — that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause — the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision on the Free Speech and Establishment Clauses. This paper analyzes the interaction between Summum’s “recently minted” government speech doctrine and the Establishment Clause. In particular, with respect to the Free Speech Clause, I argue that Summum resolves an ongoing Circuit split regarding a common medium of expression — specialty license plates. Recently, six Circuits have reached at least three different conclusions with respect to the status of specialty license plates, and two other Circuits have addressed the First Amendment issue in passing. In addition, a petition for writ of certiorari has been submitted seeking Supreme Court review of a 2008 Seventh Circuit case dealing with this very issue. I maintain that Summum’s new test for government speech is inconsistent with the test that the majority of Circuits has applied to specialty plates. Whereas the majority considers whether a reasonable observer would identify the government as the speaker, Summum focuses on the level of control that the government has over the specialty plate program. Under Summum’s “control” test, many (and possibly all) specialty plate programs — as well as many other forms of speech that are subject to government control — are government speech and, therefore, are exempt from First Amendment scrutiny. Moreover, I contend that Summum’s control test necessarily alters the Court’s analysis of facially religious government speech under the Establishment Clause. Although the Establishment Clause still applies to government speech, the endorsement test does not. To understand why, the paper explores the effect of the government speech doctrine on an issue of first impression — a specialty license plate containing the phrase “I Believe” and a picture of a cross superimposed on a stained glass window. Although the lower court concluded that the plate violated the endorsement test, Summum changes the analysis. Under Summum, the government has the right to say what it wants even though the government’s intended message may differ significantly from the message that observers ascribe to the government. As a result, when dealing with government speech, Justice O’Connor’s “reasonable observer” test focuses on the wrong party — the reasonable observer instead of the government speaker. That is, when determining whether facially religious government speech violates the Establishment Clause post-Summum, the Court must determine whether the government actually has an improper religious motive, not whether a reasonable person interprets the message as impermissibly religious. I conclude that a majority of the current Court is apt to apply the control test and hold that the “I Believe” specialty plate is constitutional.

8) John D. Inazu (Duke University School of Law), Making Sense of Schaumburg: Seeking Coherence in First Amendment Charitable Solicitation Law , 92 Marquette L. Rev. 551 (2009). The abstract states:

The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co. (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear understanding of the value of charitable solicitation. It has also left lower courts without a workable test for evaluating regulations affecting this form of speech: the Eighth and Tenth Circuits interpret Schaumburg as an intermediate scrutiny test, the Third and Eleventh Circuits view it as a strict scrutiny test, and the Fourth Circuit has simply noted that the Court has been 'unclear' about the appropriate standard. I propose a new test that incorporates current notions of content analysis and tiered scrutiny and better accounts for the speaker-based interests tied to charitable solicitation. My approach is cognizant of the matters of public concern advanced both directly and indirectly through charitable solicitation. I conclude that a balancing of interests offers a more appropriate review of charitable solicitation regulation than the cumbersome formulations arising out of the Schaumburg trilogy.

9) John Samples (Cato Institute), Broadcast Localism and the Lessons of the Fairness Doctrine.  The abstract states:

The First Amendment to the U.S. Constitution recognizes a laissez-faire policy toward speech and the press. The Framers of the Bill of Rights worried that the self-interest of politicians fostered suppression of speech. In contrast, some constitutional theorists have argued that the Constitution empowers, rather than restricts, the federal government to manage speech in order to attain the values implicit in the First Amendment.

The government managed broadcast speech for some time, in part through the Fairness Doctrine, which was said to promote balanced public debate and "an uninhibited marketplace of ideas." The history of the Fairness Doctrine confirms the validity of the concerns of the Framers of the First Amendment, because federal officials and their agents used and sought to use the Fairness Doctrine to silence critics of three presidencies. Broadcasters adapted to the Fairness Doctrine by avoiding controversial speech, thereby chilling public debate on vital matters.

The Federal Communications Commission is proposing to manage broadcast speech by imposing localism requirements, including content requirements and advisory boards to oversee managing stations. This proposal limits the editorial independence of license holders to serve the public interest. The history of the Fairness Doctrine suggests that federal officials who make and enforce such policies are more concerned with limiting political debate than they are with advancing local concerns or the public interest. Like the Fairness Doctrine, the FCC's localism initiative poses the risk of restricting speech. Our unhappy experience with the Fairness Doctrine suggests that imposing localism mandates on broadcasters is unlikely to serve the public interest in constitutional propriety and uninhibited political debate.

10) Mary Leary (Catholic University of America), Death to "Child Erotica" . The abstract states:

Language matters. Labels matter. Perceptionally, language and labels matter because they can reflect cultural norms and values. Legally, they matter because inaccurate labels and terms can contribute to inaccurate legal results. At times, terms are so inaccurate and misleading, they become damaging. “Child Erotica” is such a term.

The world of child sexual exploitation is a complex one including many crimes. Research has indicated that child pornography often is intertwined with other sexual material demonstrating a sexual interest in children. Such material includes but is not limited to sexualized pictures of nude or semi-nude children; surreptitiously recorded videos or children focusing on their breasts or genitals, writings on the most successful methods of facilitating molesting a child, etc. That child pornography producers and collectors often posses such a range of material is perhaps of no surprise. That criminal courts are referring to such material with an artistic term, suggesting validation, is of concern.

Just as the term “child pornography” has been replaced in research and legal circles with the preferred more accurate term of “child abuse images,” the use of the term “child erotica” should be reclaimed and replaced. The term is troubling for three main reasons. First, linking the words “child” and “erotica” is misleading. Using an artistic label suggests it references a genre of art. Second, it validates the material to which it refers. Such a term contributes to the social phenomenon known as the normalization of the sexual objectification of children, as it suggests there are circumstances when the sexual objectification of children by adults is appropriate and socially valued.

Third, that the misnomer is emerging in legal opinions has compounded the problem. The term has been improperly incorporated by the courts; divorced from its roots in art and literature to one that refers to anything (pictures, text, objects), no matter if sexually exploitive or truly artistic, that fails to meet the legal definition of child pornography. When courts are reviewing evidence, they need precise labels to most effectively make determinations. By grouping all legal material together under one label: “child erotica,” courts can miss the relevance of some of the evidence, thereby risking improper outcomes.

This paper traces the roots of the term as originally intended. It then analyzes this corrupted use of the term in both social science and legal opinions, demonstrating the potential shortfalls of the current misuse. The paper then proposes a descriptive norm replace this categorical norm when referencing material that is sexually exploitive of children, although not child abuse images per se. Such precision in language will eliminate a perception that children can ever be treated as commodities and will assist courts and fact finders in understanding the material presented to them in legal fora. Furthermore, First Amendment concerns are eliminated because such terms acknowledge the current legality of much of the material, but simply calls for a more precise labeling which leads to more accurate legal analysis.

11) Martha Albertson Fineman (Emory University - School of Law), Religious Resistance to Family Law Reform in the US,  forthcoming in Emory Law Public Law Journal, The abstract states:

This article traces the religious roots of American family law and the way that those roots still impact possibilities for and reaction to reform of law and the ways in which they shape contemporary politics in the United States. Traditional or fundamentalist religious conceptions of the family are incompatible with the three significant 'revolutions' in social and cultural attitudes about women and gender equality that occurred in the United States during the latter part of the 20th century: the gender equality revolution; the sexual revolution; and the no-fault divorce revolution. As the changes in attitudes and behavior associated with these social movements were codified into laws governing the family, opposition and backlash have emerged. Today there are two ways in which this resistance is mobilized: the 'Value Voter,' whose influence in politics has greatly increased, particularly in the 2004 elections, and the social and academic movement known as the 'Marriage Movement.' The Marriage Movement is made up of religious conservatives, but also includes secular advocates for bringing back a more stable, less divorce friendly family.

12) Ayelet Shachar and Ran Hirschl (University of Toronto - Faculty of Law), The New Wall of Separation: Permitting Diversity, Restricting Competition, 30 Cardozo L. Rev. 2535 (2009). The abstract states:

In recent years, the specter of litigants turning to religious or customary sources of law as authoritative guides to regulate their behavior, alongside or in lieu of secular norms, has risen to the forefront of politics in many countries worldwide. In this essay, we draw upon citizenship theory and comparative constitutional jurisprudence to identify two different categories of judicial response to religious-based claims for recognition, accommodation, and exemption: 1) 'diversity as inclusion;' and 2) 'non-state law as competition.'

As long as legal claims for accommodation are not seen by courts as challenging the lexical superiority of the constitutional religion itself ('diversity as inclusion'), they stand a fair chance of success. Contrast that with the unyielding reluctance of legislatures and judiciaries to accept as binding or even cognizable any potentially competing legal order that originates in sacred or customary sources of identity and authority. This pattern of clamping down and refusing to accept any alternative sources of regulation becomes particularly visible where the legal challenge at issue is interpreted as raising doubts regarding which set of norms and institutions, or what set of high priests, should have the final word in authoritatively resolving legal disputes within a given society ('non-state law as competition'). This is a challenge that no secular legal order, no matter how tolerant and otherwise open to providing exemptions and accommodations to religious believers, can accept with indifference. For what perceived to be at stake here is the very authority and source of legitimacy of the accepted civil religion.

We demonstrate these claims by focusing on recent jurisprudence from Canada and South Africa, two polities that represent the most difficult cases for our argument; if there is any place we would expect to find recognition by secular countries of religious or customary sources of law and authority, it would be in these diverse societies that have made an explicit constitutional commitment to promote their citizens’ freedom to preserve and enhance their multitude of backgrounds and distinctive cultural, linguistic and religious heritages as part of their 'mosaic' (Canada) or 'rainbow nation' (South Africa) conceptions of citizenship. Although operating in different contexts, the South African Constitutional Court and the Supreme Court of Canada seem to have made every effort to subject traditional legal regimes to general principles of constitutional law. By so doing, they have erected a new wall of separation that places noncompliance with the values of the civil religion beyond the pale of accepted accommodation, offering to those who espouse them the potential to either bring these alternative legal domains under the general rule of constitutional law or encounter the wrath of state fiat.

13) Anthony E. Varona (American University - Washington College of Law), Toward a Broadband Public Interest Standard , 61 American U. L. Rev. --- ( 2009). The abstract states:

Although they emerged seven decades apart, commercial broadcasting and the Internet were greeted with similar excited declarations of their potential to transform American democracy by hosting an electronic free marketplace of ideas that would inform and enlighten citizens and catalyze discussion on issues of public importance. The federal government played a central role in the initial development and proliferation of both technologies, but then assumed very different regulatory orientations to the two industries once they were commercialized. In broadcasting, the government took on an interventionist posture promoting civic republican First Amendment values by means of a variety of public interest programming requirements, justified by the public ownership and scarcity of broadcast spectrum. Technological, constitutional, regulatory and political constraints, however, conspired to render the broadcast public interest standard largely ineffective at realizing the democratic and expressive potential of the broadcast media.

In contrast to its proactive orientation towards broadcasting, the government shifted to a noninterventionist posture towards the Internet after having played a seminal role in its creation and popularization. While touting the Internet’s importance as a transformative democratic and expressive instrument, the government has preferred to rely on the commercial marketplace to optimize the Internet as a ubiquitous and vibrant platform of diverse and free democratic discussion, cultural expression, and social interaction.

The government’s deference to the commercial marketplace to realize the democratic and expressive potential of the Internet, and especially high-speed broadband, has not served the nation well. The United States continues to fall significantly behind other industrialized nations in the proliferation of broadband service that is universal, fast and inexpensive. Although expression abounds on the Internet, private censorship does too. There is very little public space online where the full complement of First Amendment protection applies, and very few local governments have interactive online presences. Whereas the Internet was hoped to bring citizens together for deliberative democratic exchange, there is much evidence that it atomizes attention, breeds civic disengagement, and fosters factionalism and polarization, while often undermining true deliberation in political discussion.

In light of these concerns, as well as the Internet’s emergence as a medium rivaling broadcasting in centrality and influence, this article argues that the federal government should adopt a much more proactive approach towards the Internet and broadband especially. It proposes that some of the principal goals valorized by the broadcast public interest standard - universal service, democratic engagement in a marketplace of ideas, diversity and localism - should serve as a template for affirmative government interventions designed to promote the Internet’s democratic and expressive potential while helping mitigate its harms. The article discusses a number of proposals to operationalize a broadband public interest standard, including direct subsidies for universal broadband service to underserved communities, support for public fora on local and state government websites as well as noncommercial locally oriented content, and a requirement for network neutrality. It concludes with a discussion of how such proposals would be consistent with the First Amendment, satisfying both the autonomy-rooted and civic republican conceptions of democracy, and avoiding the legislative, regulatory and administrative pitfalls of the broadcast public interest standard.

14)Mark Bartholomew (University at Buffalo Law School (SUNY)), Advertising and Social Identity. The abstract states:

This essay takes a stand in the brewing legal academic debate over the consequences of advertising. On one side are the semiotic democratists, scholars who bemoan the ability of advertisers to take control of the meanings that they create through trademark law and other pro-business legal rules. On the other side are those who are more sanguine about the ability of consumers to rework advertising messages and point to several safety valves for free expression existing in the current advertising regulation regime. My take on this debate is that the participants have failed to address the impact of advertising on personal development. Particularly important to this discussion is the recent trend of using targeted niche marketing to appeal to particular social groups. Using social identity theory - an influential psychological theory positing that identities develop through categorization and comparison of ourselves with the social groups around us - I argue that modern advertising has a tremendous and unrecognized influence on our sense of self. My chief example of the impact of niche marketing on identity formation is the recent targeting of the gay and lesbian market. By constructing the gay market in a particular way, advertisers shrink the identity models available for individuals grappling with whether to self-categorize themselves as gay. Advertisers have forced an essentialist model of gay sexuality on consumers while painting the gay market as white, male, healthy, and affluent. At the same time, advertisers have invaded gay cultural space, co-opting gay political symbols and taking over once relatively ad-free community spaces. Meanwhile, this targeted marketing threatens to split the gay community apart by emphasizing lines of difference that are based on class and taste and socioeconomic station. All of these practices threaten the processes that psychologists using social identity theory deem crucial to developing a healthy sense of self. I suggest that the real focus in the debate over legal regulation of advertising should be not on First Amendment protections for artists and activists, but on training our minds to be more aware of advertising’s growing influence on our psyches.

15) Robert Kirby Goidel , Craig Malcolm Freeman , Steven Procopio and Charles F. Zewe II , Who Participates in the “Public Square” and Does it Matter? , 72 Public Opinion Quarterly 792 (2008). The abstract states:

Survey research has been frequently criticized for reflecting hastily drawn and poorly formed responses as opposed to more deeply held attitudes or opinions. James Fishkin (), for example, has argued that public opinion surveys miss the normatively and substantively important deliberative component of public opinion formation. In this paper, we consider two questions relative to deliberative public opinion. First, who shows up for deliberative opinion forums? And second, what difference does their participation make in terms of their general attitudes toward the political process? To answer these questions, we make use of a unique set of data collected as part of a series of monthly television programs, Louisiana Public Square, which aired on Louisiana Public Broadcasting from June 2004 to March 2005. These programs covered a range of issues (e.g., public education, roads and transportation, health care, religion, and public life) and included participants selected using random digit dialing. Each month, participants learned about the issues, discussed the issues with a trained moderator, and directed questions to relevant state policy makers. Data were collected on relevant attitudes both before and after the program, allowing us to (1) compare attitudinal and demographic differences among participants (preshow and postshow) and nonparticipants (preshow only), and (2) analyze attitude change among participants particularly with respect to levels of trust in government and perceptions of the responsiveness of the political process to public concerns. According to our results, the socioeconomic biases that predict other forms of participation are equally present when considering participation in a deliberative forum. Unlike other forms of participation, however, the deliberative forums considered in the present analysis attracted more ideologically moderate participants who valued the role of discussion in democratic governance.

16)James Grimmelmann,( New York Law School), Saving Facebook, 94 Iowa L. Rev 1139 (2009). The abstract states:

This Article provides the first comprehensive analysis of the law and policy of privacy on social network sites, using Facebook as its principal example. It explains how Facebook users socialize on the site, why they misunderstand the risks involved, and how their privacy suffers as a result. Facebook offers a socially compelling platform that also facilitates peer-to-peer privacy violations: users harming each others’ privacy interests. These two facts are inextricably linked; people use Facebook with the goal of sharing information about themselves. Policymakers cannot make Facebook completely safe, but they can help people use it safely.
The Article makes this case by presenting a rich, factually grounded description of the social dynamics of privacy on Facebook. It then uses that description to evaluate a dozen possible policy interventions. Unhelpful interventions—such as mandatory data portability and bans on underage use—fail because they also fail to engage with key aspects of how and why people use social network sites. On the other hand, the potentially helpful interventions—such as a strengthened public-disclosure tort and a right to opt out completely—succeed because they do engage with these social dynamics. 

17) Adam D. Thierer and Berin Michael Szoka (The Progress & Freedom Foundation),  What Unites Advocates of Speech Controls & Privacy Regulation? , Progress & Freedom Foundation Progress on Point Paper, Vol. 16, No. 19, August 2009. The abstract states:

Efforts to regulate both free speech and online privacy are united by an elitist vision and common regulatory mechanisms. The better alternative to political elitism enforced by regulation, they argue, is an empowerment agenda based on fostering an environment in which users have the tools and information they need to make decisions for themselves and their families.

The imposition of two elitist beliefs held by some leaders, activists, or intellectuals through coercive, top-down mandates in particular are at the root of almost all privacy and speech regulatory efforts: (1) the belief that people are too ignorant (or simply too busy) to be trusted to make wise decisions for themselves (or their children); (2) the belief that all or most people share essentially the same values or concerns and, therefore, 'community standards' should trump household (or individual) standards.

Enforcing these elitist beliefs by law threatens individual liberty and free speech as well as the future of free and open Internet. Other parallels between the two regulatory movements include internal philosophical inconsistencies on both the Left and Right, common mechanisms, political tactics, and motivations. An agenda of self-empowerment that lets users and families, instead of political elites, determine what is in their own best interest is superior to top-down regulation.

18) Adam D. Thierer and Berin Michael Szoka (The Progress & Freedom Foundation),  Online Child Safety, Privacy and Free Speech: An Overview of Challenges in Congress & the States,
Progress & Freedom Foundation Progress on Point Paper, Vol. 16, No. 20, August 2009. The abstract states:This paper is an edited transcript of PFF Congressional Seminar that took place on July 27, 2009 in Washington, DC.

Online child safety, privacy, and free speech remain hotly debated issues at both the federal and state levels. How serious are these concerns? Is legislation or regulation needed to address them? What free speech issues are at stake? Should Congress take the lead or leave it to the States to experiment with different models? These and other issues were discussed at a Congressional seminar hosted by The Progress & Freedom Foundation.

PFF Senior Fellow Adam Thierer began the discussion by describing current online safety issues and outlined regulatory, privacy and free speech issues surrounding government responses and proposed solutions to the problem.Parry Aftab, Executive Director of WiredSafety.org, discussed federal legislation that has been proposed to address cyberbullying, including making such behavior a felony. odd Haiken, Senior Manager of Policy at Common Sense Media, outlined what he viewed as the biggest change in proposed solutions to online safety concerns: the shift away from a focus on crime and risk prevention to an education and empowerment model. Jim Halpert, Partner at DLA Piper, questioned the effectiveness of proposed regulation. Berin Szoka, Senior Fellow at The Progress & Freedom Foundation, voiced concern over the costs to websites if mandatory screening or filtering of users was implemented. He explained that 'if every website, every blog around the world that integrates social networking has to take on responsibility for doing that kind of screening or filtering or segregation of users, the effect on the media landscape and Internet culture would be enormous.'

19) Carol Pauli (Loyola University New Orleans - School of Law),  Killing the Microphone: When Broadcast Freedom Should Yield to Genocide Prevention, forthcoming in  Alabama Law Review.The abstract states:

When powerful radio broadcasts exhort listeners to kill their neighbors, may outside nations or international organizations legally interrupt the signals to prevent genocide? International law has no legal framework for assessing and responding to such broadcasts. This Article attempts to create one. The Article draws on empirical research in the field of communication to identify conditions in which media messages become so powerful that they can mobilize audience members. Using this research, it constructs a framework for determining when speech constitutes incitement to genocide such that it loses any protection under international law and perhaps even triggers an affirmative duty on the part of other states to intervene. The proposed framework is unique. Unlike current definitions of incitement to genocide, it is not concerned with convicting the criminal, but aims entirely at preventing the crime. It is also unique in bringing this interdisciplinary approach to this compelling goal.

20)  Ned Snow (University of Arkansas at Fayetteville - School of Law), Fair Use, Summary Judgment, and the Constitution. The abstract states:

Summary judgment has become commonplace to decide issues of fair use in copyright cases. But it was not always so. For well over a century, juries routinely decided issues of fair use. Courts recognized that the subjective nature of inferences in the fair use analysis made those inferences factual, precluding a summary disposition. They understood that the Seventh Amendment right to a jury and the First Amendment right of free speech demanded juries in fair use cases. Today, however, all this has been forgotten. Courts of today characterize the inferences in the fair use analysis as entirely legal so that summary judgment is appropriate. This Article examines the question of whether these inferences constitute matters of fact or matters of law. It further examines the reasons for which courts changed their characterization of these inferences, along with the constitutional tensions that have arisen as a result of this changed characterization.

21) David Stephan Powers (Cornell University - Department of Near Eastern Studies ),  Book Abstract: Muhammad is Not the Father of Any of Your Men: The Making of the Last Prophet,
Islamic Law and Law of the Muslim World Paper No. 09-73. The abstract states:

The Islamic claim to supersede Judaism and Christianity is embodied in the theological assertion that prophecy ended with Muhammad. The Qur’an identifies Muhammad as the Seal of Prophets, a figure of speech that came to be understood as signifying that he was the Last Prophet. The success of this claim was an achievement that required work. The Qur’an suggests that the office of prophecy is hereditary. Thus, if Muhammad had a son, he might not be the Last Prophet; and if he was the Last Prophet, he could not have a son. As is well-known, Muhammad had no natural sons who reached the age of maturity. Before receiving his first revelation, however, Muhammad is said to have adopted a man named Zayd as his son: Zayd’s name was changed to Zayd b. Muhammad and mutual rights of inheritance were created between the two men. This seemingly marginal figure, known as the Beloved of the Messenger of God, was the first adult male to become a Muslim and the only Muslim apart from Muhammad whose name is mentioned in the Qur’an. Eventually, Zayd would be repudiated by his father and sent to certain death on a battlefield in southern Jordan. By focusing attention on Muhammad’s relationship with Zayd, I seek to recover a neglected phase in early Islamic history. To secure the integrity of the claim that Muhammad was the Last Prophet, the first Muslims were compelled to substitute sonlessness for biological generativity. I argue that Muhammad’s repudiation of the Beloved of the Messenger of God and Zayd’s martyrdom at the Battle of Mu’ta were driven by theological imperatives designed to facilitate the doctrine of the finality of prophecy. To this end, the historical record was adjusted, legal institutions were abolished or reformed, and the consonantal skeleton of the Qur’an was modified.

22) Burt L. Monroe , Michael P. Colaresi (University of Oxford - Department of Politics and International Relations) and Kevin M. Quinn (UC Berkeley School of Law),  Fightin' Words: Lexical Feature Selection and Evaluation for Identifying the Content of Political Conflict, 16 Political Analysis. 372 (2008).  The abstract states:

Entries in the burgeoning “text-as-data” movement are often accompanied by lists or visualizations of how word (or other lexical feature) usage differs across some pair or set of documents. These are intended either to establish some target semantic concept (like the content of partisan frames) to estimate word-specific measures that feed forward into another analysis (like locating parties in ideological space) or both. We discuss a variety of techniques for selecting words that capture partisan, or other, differences in political speech and for evaluating the relative importance of those words. We introduce and emphasize several new approaches based on Bayesian shrinkage and regularization. We illustrate the relative utility of these approaches with analyses of partisan, gender, and distributive speech in the U.S. Senate.

23)  Jennifer Hochschild (Harvard University),  If Democratic Theory Calls for Informed Voters, Why is it Democratic to Expand the Franchise? , The abstract states:

Three uncontroversial points add up to a paradox: 1) Almost every democratic theorist or democratic political actor sees an informed electorate as essential to good democratic practice. Citizens must know who or what they are choosing and why – hence the need for publicly funded education, and the rights to free speech, assembly, press, and movement. 2) In most if not all democratic polities, the proportion of the population granted the suffrage has consistently expanded, and seldom contracted, over the past two centuries. Most observers agree that expanding the franchise makes a state more democratic. 3) Each expansion of the suffrage brings in, on average, people who are less politically informed or less broadly educated than those already eligible to vote.

Putting these three uncontroversial points together leads to the conclusion that as democracies become more democratic, their decision-making processes become of lower quality. That conclusion presumably is controversial, and few have addressed it since the early nineteenth century. This paper explicates the historical trajectory of democratization in the United States (although the basic argument is not specific to that country). It then offers several plausible explanations for the paradox: voters are not really that ignorant; the United States is not really a democracy; institutions substitute for voters’ knowledge; and democracy does not, or does not primarily, need cognitively sophisticated citizens. I offer a few reflections on these explanations, but cannot genuinely dissolve the paradox.

24) John C. Crees, Note - The Right and Wrong Ways to Sell a Public Forum, 94 Iowa L. Rev. 1421 (2009). The abstract states:

Certain government-owned properties are quintessentially public for free-speech purposes. Municipalities across the country, however, are selling streets, sidewalks, and parks to private actors without consulting the citizens who benefit from the property. Selling a public forum provides a municipality with more money for projects that benefit citizens. On the other hand, privatizing small sections of streets, sidewalks, and parks could lead to a confusing patchwork of public and private property that would leave citizens unsure of their free-speech rights. This Note highlights some issues that prevent a municipality from privatizing a forum. Additionally, this Note theorizes that the sale of public forums would have greater legitimacy if citizens were to decide the issue directly through referendums. If, in hindsight, a sale was a poor decision, eminent-domain powers would provide an avenue to regain the property. Municipalities, private entities, and citizens could all benefit from a properly executed sale of a public forum.

25) John Micklethwait and Adrian Wooldridge, God Is Back: How the Global Revival of Faith Is Changing the World, (Penguin, April 2009), reviewed in Foreign Affairs. 
JFB