First Amendment Law Prof Blog

Liptak on Upcoming Re-Argument in Citizens United

In the New York Times Adam Liptak previews the issues before the Court in the much anticipated re-argument in Citizens United and examines the competing perspectives on the necessity of using campaign finance laws to address the influence of corporations on electoral politics. Among those perspectives is that of noted First Amendment lawyer Floyd Abrams, who represents campaign finance law opponent Senator Mitch McConnell in the case. Reacting to the application of such rules to the film at the center of the litigation,  Abrams asserts that “[c]riminalizing a movie about Hillary Clinton is a constitutional desecration.” 

JFB

Judge Grants Lori Drew's Motion for Acquittal on Misdemeanor Counts

As noted on Concurring Opinions, Judge George Wu ruled Friday that the Computer Fraud and Abuse Act’s terms prohibiting accessing a computer without authorization or “in excess of” authorization could not be used to prosecute Lori Drew for her posting of false MySpace profile information.  Judge Wu found the statute’s terms void for vagueness, failing to provide constitutionally adequate notice that a violation of a website’s Terms of Service agreement could trigger criminal liability.  The judge concluded that reading the Act to cover any TOS violation would render the Act overbroad and that the statutory terms failed to provide even “minimal guidelines to govern law enforcement.”   

 
JFB

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

Fed Court Strikes Down CT Campaign Finance Law

A federal district court on Thursday ruled that Connecticut's campaign finance law places an unconstitutional burden on the ability of minor-party candidates to run for office.  The Campaign Finance Reform Act received bi-partisan support from Democrats and Republicans when it was passed in 2005, and was billed as a way to even the playing field for competing candidates.  But third party candidates successfully argued that a public financing provision and other elements of the Act artificially enhanced the political strength of major parties, giving them an unfair advantage when running for office. 

• Green Party of Connecticut v. Garfield
• Hartford Courant
• Ct News Junkie

Kathleen Bergin

Global Free Speech Update

 

Global Free Speech Update

 

Argentina:  President Christina Frenandez is pushing a media reform bill that would give state broadcasters and non-profits organizations a better opportunity to compete with private companies for broadcast space.  The bill would also limit the total number of licenses a company can hold, and would preserve space for programming produced in Argentina.  Fernandez claims an interest in promoting broadcast diversity, but critics suspect it is her attempt to squeeze out private broadcasters who have grown increasingly critical of the government. 

Iraq:  Amnesty International has given its Freedom of Expression award to Palace at the End, a play about the Iraq war written by Canadian playwrite Judith Thompson.  A series of monologues offer three different perspectives of the War, including one based on the experiences of American soldier Lynndie England, and another by UN weapons inspector David Kelly.  The NYT Review is here.

Somalia:  As if things could get any worse for those living in Somalia, the government just initiated a state of martial law that could make it even more dangerous for journalists.  Under martial law imposed in 2007, journalists were prohibited from "spreading propaganda," interviewing government opponents, reporting on matters of national security, and holding 'unlawful' demonstrations.  Dozens of journalists were tortured and media houses closed down.  The National Union of Somali Journalists issued a press release last week, asking the government to respect a right to the free flow of information during the three month period of martial law.

Sudan:  Beyond the outrage of sentencing women who wear pants (gasp!) to 40 lashes, several journalists who covered last month's court case of Lubna al-Hussein and her co-defendants were arrested, and columnist Amal Habbani was fined for writing about the case in "Lubna: A Case of Subduing Woman's Body."  An added note on Lubna: she could have invoked immunity as a UN worker and avoided prosecution, but decided insisted instead on continuing the case to call attention to the government's deplorable human rights practices.   

Peru:  Lawmakers are considering a measure that would require a "correction" of any "inaccurate or insulting statement" published in print, broadcast or electronic form.  I'm not sure how one would correct a statement that is insulting but happens also to be true, but it would have to be done within 3 days, as opposed to 10, which appears to be the case under the present system.

-Kathleen Bergin 

Hal Turner's 'Shock-Jock Defense'

The complaint in US v. Turner is available here.  In it, the FBI alleges that Hal Turner, the right-wing shock-jock, internet blogger, and one-time FBI informant, threatened to assault and murder three federal judges because of an anti-gun rights ruling they issued last June.  Turner also faces charges in Connecticut for inciting violence against two state lawmakers and an ethics official following debate on a controversial legislative provision in that state.

The charges stem from entries posted to Turner's blog that his lawyer argues are protected under the First Amendment.  Under Brandenburg v. Ohio, the First Amendment protects the "advocacy of the use of force" unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 

Here's a sample of what led to the charges in Connecticut: 

It is our intent to foment direct action against these individuals personally.  These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die. If any state attorney, police department or court thinks they're going to get uppity with us about this; I suspect we have enough bullets to put them down too. 

And that's the mild stuff. 

He tried to back-peddle a bit later, telling a police officer that "It's certainly my intent to motivate the public to get involved in this, and certainly we hope that nobody's going to go off the deep end and do something terrible, but ... you never can tell."

And here's what Turner's lawyer argued last week to a court in Connecticut: "Mr. Turner's blog tends to have a small following of right-wing followers. . .   The language used by this segment of the population to express its views is sometimes harsh or often peppered with violence. Regardless of how many people may have viewed it, given his public status and shock jock persona, there can be no doubt that Turner's statements were nothing more than politically charged rhetoric of someone unhappy with the judge's opinion in NRA v. Chicago, and are therefore protected."

I take this to mean not only that Turner didn't intend to incite violence, but that whatever his intent, the shock-jock set is so sensitized to violent language that they're the one's least likely to take up a call to arms.  But that can't be right, can it?  Can preaching to the choir really make it less likely, rather than more likely, that someone will put words into action?  And doesn't this theory just give shock-jocks an incentive to ratchet up the extremism - the more radical the speech, the more sensitizing its effect, the more likely the First Amendment provides a defense? 

-Kathleen Bergin

First Amendment Doesn't Prohibit Dress Code That Prohibits The 'First Amendment' . . .

So said a three judge panel of the Fifth Circuit this month in Palmer v. Waxahachie Indep. School District.  The dress code prohibited students from wearing clothing with printed messages, but made an exception for school-sponsored organizations and athletic teams.  It also allowed students to wear printed messages on pins, buttons and wrist bands. 

Palmer first ran into trouble when he changed into a "John Edwards for President" t-shirt after being told that he couldn't wear a "San Diego" t-shirt to class.  The school also said that he couldn't wear a t-shirt bearing the words "First Amendment" on the front, and the text of the Amendment on the back.

The appeals court declined to enter a preliminary injunction, finding that the dress code was a content-neutral measure that did not suppress unpopular views.  That school officials chose to accommodate team uniforms and personal accessories did not, in the court's view, create a content-based restriction.  Those exceptions instead gave students more clothing options than they would have under a complete ban.  The court noted the irony that in focusing on the effect of the exceptions allowed under the policy, Palmer was actually arguing that school officials would be on safer First Amendment grounds if they banned all means of expression as opposed to just some.  

-Kathleen Bergin

Judge Orders Westlaw/Lexis To Remove Opinions In Klein v. Amtrak. So Access Them Here.

Amtrak agreed to a confidential settlement with two PA teens who suffered massive burns in 2002 after they climbed aboard a parked railcar and stepped too close to a live wire.  Part of the settlement calls for the trial judge to vacate prior rulings in the case, and have them erased from Lexis and Westlaw.

The August 10 order to vacate, issued by US District Judge Lawrence Stengel, stated that "by separate written communication . . . the Court shall direct LexisNexis and Westlaw to remove the Decisions and Orders listed below from their respective legal research services/databases." 

How could such an order be enforced against an entity that wasn't party to the suit, not to mention the First Amendment defenses that would save them in a contempt proceeding?

A Westlaw rep told The Legal Intelligencer that the company automatically clears vacated opinions from the database - but that can't be right since I've got a pile of vacated Westlaw cases sitting on my desk.  Nevertheless, the Klein docs have been removed, so it appears they took the easy road in deciding to comply with the judge's . . . order, request, direction . . . or whatever you call it.

As of yesterday, the opinions were still available on the Internet.  Volokh links to some of them at this post, saying they should be preserved for future litigators and scholars.  I'm not so altruistic.  I just think the order, if anything more than a non-binding suggestion, is an absurd breach of the First Amendment.  So I'll link to them below, via the hard-drive PDFs I created yesterday, at the off chance they start disappearing from the web.

Download Klein v Amtrak Mar 31 2008

Download Klein v Amtrak Oct 12 2006

Download Klein v Amtrak Oct 11 2006

Download Klein v Amtrak Aug 16 2006

Download Klein v Amtrak Jul 13 2006

Download Klein v Amtrak Mar 31 2006

Download Klein v Amtrak Feb 09 2006

-Kathleen Bergin

First Amendment Issues in the 111th Congress

What's happening in Congress?  Access The First Amendment Center for links to dozens of bills with First Amendment implications presently being considered.  Grouped by category with helpful summaries. 

KAB

Fraud, Fortune Telling and the First Amendment

The ACLU of Maryland says that a Bethesda law against fortune telling violates the First Amendment.  Their client, who says he learned the craft from his father, was denied a permit to open a fortune telling shop because the practice is considered an act of fraud.  According to this article, similar laws in Louisiana and Wyoming have been overturned in recent years. 

I don't get it.  As one who was raised Catholic and had a grandmother who read cards, it's hard to see the difference between her vision that I would "journey far away" and the priest who said I'd make it to heaven so long as I put $10 in the basket and promised not to covet my neighbor's wife. 

Fr. Bob had the Establishment Clause on his side, but why presume that my Memere was the bigger fraud?     

-Kathleen A. Bergin

First Amendment Scholarship Update

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

1. Barbara P. Billauer (Foundation for Law and Science Centers, Inc.), First Things, First - In the Creation of the Universe: A Conciliatory Translation of Genesis (2009). Available at SSRN: http://ssrn.com/abstract=1443996. The abstract states:

   A proposed translation of the inception of The Genesis, compatible with modern knowledge and current scientific understanding is submitted, along with the methodology used to compose the rendition. The exercise is not an attempt to prove - or disprove - the existence of God, but is meant to present a literal translation of the Bible that is not anachronistic, nor one forced to rely on allegory or analogy to reconcile it with modern thought.

2. Andrew F. March (Yale University), Islamic Legal Theory, Secularism and Religious Pluralism: Is Modern Religious Freedom Sufficient for the Shari'a 'Purpose [Maqsid]' of 'Preserving Religion [Hifz Al-Din]?' (2009). Available online at http://ssrn.com/abstract=1452895. The abstract states:

   Perhaps the most popular trend in contemporary Islamic legal and political thought is to view shari'a as embodied not primarily in specific rules nor in terms of a painstaking, thorough extraction of those rules from the revelatory texts according to the methods of classical legal theory (usul al-fiqh), but rather as defined in terms of the overall 'purposes' (maqasid) for which God revealed the law. The theory of the 'purposes of divine law' (maqasid al-shari‘a), which I refer to as a form of 'Complex Purposivism' in legal interpretation and argumentation, is often viewed as a panacea for modern reformers and pragmatists who want to establish Islamic legitimacy for new substantive moral, legal and political commitments in new socio-political conditions, because it allows Muslims to ask not whether a given norm has been expressly endorsed within the texts, but whether it is compatible with the deeper goods and interests which God wants to protect through the law. All maqasid theories posit that there are five universal necessary interests the protection of which the law prioritizes: life, religion, lineage, property and religion. For all of these interests, protection can involve both positive and negative liberties, as well as various forms of restrictions on other less fundamental acts. The purpose of this paper is to examine some treatments of the meaning and extension of the Islamic legal purpose (maqsid) of protecting religion (hifz al-din), with an eye towards Islamic legal theorists’ explicit or implicit encounter with modern liberal and secularist understandings of what it means to 'protect religion.'

3. Steven Douglas Smith (University of San Diego School of Law), The Establishment Clause and the 'Problem of the Church' (2009). Available online at http://ssrn.com/abstract=1444606. The abstract states:

   This essay, presented at a conference on Law and Religion at Princeton in April 2009, argues that Thomas Jefferson was right - the establishment clause was intended to erect a 'wall of separation between church and state' - but that those today (such as Justice Souter) who are wont to invoke Jefferson routinely misconceive this purpose. The establishment clause is best understood as a response to the age-old problem of delineating the separate jurisdictions of church and state, and it effectively disavowed the Erastian power of the state to control the church. For modern interpreters, however, the classical, jurisdictional problem has largely disappeared from view, and they have accordingly seen the clause as a response to a different problem - namely, the problem of secularization. They have accordingly construed the clause as a mandate for the secular state. But this construction not only mistakes the clause’s original purpose; it puts the (misconceived and redirected) clause in tension with much in the American political tradition and culture. Hence the notoriously unsatisfactory state of establishment clause jurisprudence today. The essay urges a recovery of the clause’s original and real purpose.

4. Jeffrey Shulman (Georgetown University), Making Sense of the Establishment Clause, 10 Engage 4 (2009). The abstract states:

   While the jurisprudence of the Establishment Clause may not make much sense (common or otherwise) as a substantive legal matter, it does make sense as a series of jurisprudential maneuvers by which the Court has sought to make more room for religion in civic life. In fact, there is a method to the “massive jumble... of doctrines and rules” that forms the law of church-state relations. It is the method of a somewhat disorderly retreat from the Constitution’s foundational principle of disestablishment. The accommodations made by the Court to religious belief and conduct have allowed for discrimination against non-religion, edging the Court ever closer toward a non-preferentialist perspective.

5. Patrick McKinley Brennan, Carl H. Esbeck, Nicholas Wolterstorff, Ira C. Lupu, Robert W. Tuttle, Thomas C. Berg, Michael P. Moreland, John H. Mansfield & Douglas Laycock, The Things that are Not Caesar's: Religious Organizations as a Check on the Authoritarian Pretentions of the State, 7 Georgetown J.L. Pub. Pol'y 29-278 (2009). The abstract states:

   Proceedings from the Federalist Society's Church Autonomy Conference.

6. Xin He (City University of Hong Kong), Street as Courtroom: State Accommodation of Labor Protest in South China (2009). Available online at http://ssrn.com/abstract=1447131. The abstract states:

   Drawing on data collected from district-level government, this paper studies how the Chinese state responds to labor protests in South China. It examines both the internal logic and operational patterns of the state response involving the local court and an assortment of government agencies. Internal documents and interviews reveal an emerging mode of state reaction. In the context of protest, the court and related government agencies engage the protesters on the street, which often grants a favorable resolution. This - street as courtroom is a result of the weak capacity of the legal system coupled with a government-wide campaign to build a - harmonious society. These findings compel us to reconsider the institutional boundaries of the prototypical court, the outcome of social protest, and the appropriate role of the courts in China.

7. Daniel J. Solove (George Washington University Law School) & Neil M. Richards (Washington University School of Law in St. Louis), Rethinking Free Speech and Civil Liability, 109 Columbia L. Rev. (2009). The abstract states:

   One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech.

   Both of these rules are widely-accepted. However, there is a major problem - in a large range of situations, the rules collide. Tort, contract, and property law overlap significantly, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability. Surprisingly, few scholars and jurists have recognized or grappled with this problem.

   The conflict between the two rules is vividly illustrated by the law of confidentiality. People routinely assume express or implied duties not to disclose another's personal information. Does the First Amendment apply to these duties of confidentiality? Should it? More generally, in cases where speech results in civil liability, which rule should apply, and when? The law currently fails to provide a coherent test and rationale for when the Sullivan or Cohen rule should govern. In this article, Professors Daniel J. Solove and Neil M. Richards contend that the existing doctrine and theories are inadequate to resolve this conflict. They propose a new theory, one that focuses on the nature of the government power involved.

8. Cheryl B. Preston (Brigham Young University), All Knowledge is Not Equal: Facilitating Children's Access to Knowledge by Making the Internet Safer, 13 Int'l J. Comm. L. & Pol'y 115-132 (2009). The abstract states:

   Global access to Internet knowledge is a worthy goal, especially for the children who will populate the information society; however, access must be considered in the context of imposing Western pornography on every culture and family. This Article briefly reviews the risks facing children online. It then focuses on the implications of cultural imperialism in Internet expansion. Nations, communities, and parents must be given the opportunity to access the Internet without drowning in sexually explicit content. In addition to children, what are the consequences on women of flooding various cultures with an intense diet of Western sexual images? Any discussion of expanding Internet access must address, in addition to child exploitation and feminist goals, fundamental questions of self-determination and the right of countries, cultures, religions, families and individuals to honor their own conceptions of morality and human dignity.

   This article then describes an Internet port zoning approach that will offer content choice by segregating Internet content. The Ports Concept accommodates those who want to speak and hear adult speech, while recognizing the equally legitimate interests of those who do not want pornography in their homes and businesses, eroding their cultural values. Such a zoning scheme can work with an Internet governance structure relying on a specialized central global authority, or with governance seated in individual national authorities. The Article then suggests various options for trans-national implementation and enforcement if the Ports Concept is applied in a national, rather than centralized, governance approach. The Article also addresses the limitations and risks of this approach. Finally, this Article links the possibilities of Internet port zoning and principles of cultural self-determination.

9. Joanna Kulesza (University of Lodz), Which Legal Standards Should Apply To Web-logs? The Present Legal Position of Internet Journals in the European Jurisprudence in the Light of the European Parliament Committee’s on Culture and Education Report and Polish Supreme Court Decision, 13 Lex Electronica 1 (2009). The abstract states:

   The article discusses the legal status of weblogs and examines whether legal standards applicable to traditional press and media should be applied to that specific forum. The analysis is based on two key documents: the Draft Report on the concentration and pluralism in the media in European Union (2007/2253(INI)) of the European Parliament Committee on Culture and Education presented in March 2008 and a landmark decision of the Polish Supreme Court from July 26, 2007 (IV KK 174/07) in the light of present judicial tendency in other European countries. The article aims to examine the status of Internet logs as press and seeks the compromise between the concerns expressed by European authorities and the freedom of thought and speech exercised on the Internet. It proposes an amendment of the existing legal definitions of press to include such an activity and surrendering the web-log journalism to press standards on either obligatory or voluntary basis.

JFB

San Fran Ban on Tobacco Sales: Ninth Circuit Hears Oral Arguments

The Ninth Circuit heard oral arguments yesterday in Philip Morris v. San Francisco, in which the tobacco giant maintained that a local ordinance that went into effect last October interfered with the First Amendment rights of cigarette companies to market their product.  By one account, the court appeared inclined to reject that position, in part because the ordinance bans drug stores from selling tobacco products but does not ban tobacco companies from advertising.  

While it's true that product bans can have an incidental effect on speech (CVS isn't likely to accept a display poster for a product it can't sell), the First Amendment has never been held to confer a right to the most effective means of communication.  What's more, the benefit of the doubt favors the city in cases like this where the purpose of the ordinance is to promote the public health, not to stifle speech per se.  My prediction: 3-0 San Francisco. 

-Kathleen Bergin

When 'any' really means 'some' . . . or legal arguments only a lawyer could love

At issue in DOD v. ACLU is whether the government is required to disclose 21 additional torture photos under the Freedom of Information Act (link to prior post here).  FOIA requires the government to disclose certain information to the public, but contains a number of important exceptions.  Section 7F exempts from disclosure information compiled for law enforcement purposes if the information could "reasonably be expected to endanger the life or physical safety of any individual."

The fuss revolves around the phrase "any individual."  The government argues that those words should be given their plain meaning, and since no-one disputes that disclosure of the photos could lead to retaliation against US troops, coalition forces, and sympathetic civilians (each of whom is obviously an 'individual'), the photos are protected from disclosure under 7F.  It's a basic national security argument most of us can appreciate.

The problem is that it doesn't necessarily reflect Congress's intent with respect to FOIA or its exemptions.  Prior to 1986, section 7F was concerned only with the potential for revealing the identity of a confidential source or disclosures that would endanger the life or safety of law enforcement personnel.  Information that fell into this category did not have to be revealed. 

But even the ACLU agreed that the risk of disclosure reached beyond informants and the police.  What about witnesses, members of their family, and other individuals who cooperated with a criminal investigation?  Congress eventually addressed this concern by adopting the broad language quoted above.

The new section 7F, however, doesn't necessarily refer to 'any' person, at 'any' time, under 'any circumstance.'  To quote the Court of Appeals:

Congress has always envisioned exemption 7F as a shield against specific threats to particular individuals arising out of law enforcement investigations, never as a means of suppressing worldwide violence.

Moreover, no-one's identity is really at risk.  The ACLU has already agreed that the government could redact the photos to conceal the faces or other information that could identify soldiers involved in the abuse.

Still, no-one disputes the potential harm in a more general sense that could follow disclosure of more torture photos.  So what's the government supposed to do?

Stay tuned for the upcoming post.

Gov't Appeals Detainee Abuse Photos Case

 

The controversy over detainee abuse photos moved to a new phase last Friday when the Solicitor General filed a cert petition in DOD v. ACLU.  The Administration is asking the SCT to review an order issued by Second Circuit in 2008 that the photos be disclosed to the ACLU in response to the organization's FOIA request. 

The Obama Administration originally agreed that the photos should be part of the public record, and did not assert an objection to the Second Circuit's order until May of this year.  After consulting with top military officials and national security advisors, Obama came to conclude that the photos should not be released because of the risk that they would "inflame anti-American opinion" abroad.  In June, the appeals court agreed to recall its order pending the SCTs response to the cert petition.

(cartoon credit: Mikhaela B. Reid, whose great blog is here)

-Kathleen Bergin

First Amendment Scholarship Update

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

1. Frederick Mark Gedicks (Brigham Young University), American Civil Religion: An Idea Whose Time Is Past, Available at SSRN: http://ssrn.com/abstract=1440351. The abstract states:

   From the founding of the United States, Americans have understood loyalty to their country as a religious and not just a civic commitment. The idea of a 'civil religion' that defines the collective identity of a nation originates with Rousseau, and was adapted to the United States Robert Bellah, who suggested that a peculiarly American civil religion has underwritten government and civil society in the United States.

   Leaving aside the question whether civil religion has ever truly unified all or virtually all Americans, I argue that it excludes too many Americans to function as such a unifying force in the present. I discuss the general content of American civil religion, and then briefly examine how it has been deployed to sacralize four historical 'moments' in American history, the Founding, the Civil War, the Cold War, and the contemporary Culture Wars. I argue that religious pluralism and sectarian activism in the United States make a unifying civil religion improbable from a practical standpoint, and that the tendency of civil religion to devolve into idolatry, i.e., the sanctification of the government and its goals, makes it normatively unattractive, particularly for religious minorities. I close by suggesting that American civil religion can genuinely include and unify all Americans only if it drops its religious component, and that American society has sufficient cultural resources to inform a 'secular' civil religion.

   This paper was delivered at a symposium entitled 'Civil Religion in the United States and Europe: Four Comparative Perspectives,' held at Brigham Young University Law School on March 12-14, 2009.

2. Ayelet Blecher-Prigat & Benjamin Shmueli, The Interplay Between Tort Law and Religious Family Law: The Israeli Case, 26 Ariz. J. Int'l & Comp. L. 279 (2009). The abstract states:

   This article concerns the application of tort law doctrines by Israeli courts to ameliorate suffering caused by the governance of religious law over family matters, in general, and the suffering of Jewish women seeking divorce in particular. Part II describes the role of religious law in Israeli family law and the methods used by Israeli civil court judges to evade the implications of applying patriarchal and often archaic religious laws, and then describes the particular problems encountered by Jewish women attempting to obtain a divorce under Jewish religious law as well as the difficulties encountered by a civil system coping with this problem and working to formulate a useful solution. Part III surveys the development of a novel tortious cause of action in Israeli family (civil) courts for refusal to give a get, a Jewish contract of divorce, which can only be given with the consent of both parties. In Part IV, we consider the various dilemmas such a tort claim raises, with a focus on difficulties that arise from examining the issue in light of traditional tort law principles, mainly the rule of negligence.

3. Ken Matheny, Catholic Social Teaching on Labor and Capital: Some Implications for Labor Law, 24 St. John's J. Legal Comment. 1 (2009). The abstract states:

   In 2007, 15.7 million Americans, 12.1 percent of employed wage and salary workers, belonged to labor unions. This reflects a sharp decline from 1983, when unionized workers comprised 20.1 percent of the workforce. In the private sector, only 7.5 percent of workers belonged to a union. The tiny percentage of unionized private sector workers is remarkable in light of empirical data indicating that approximately forty-four percent of private sector employees would like to be represented by a union. Moreover, a majority of American workers would like to be represented by an organization that has independent authority from management. [FN4] The frustrated desires of millions of American workers compel the conclusion that American labor law has failed, and failed badly. Millions of American workers are denied the right to union representation because of a legal regime that is weak and ineffective. A recent investigation of workers' freedom of association in the United States by Human Rights Watch concluded that:

   [M]illions of workers are excluded from coverage by laws to protect rights of organizing, bargaining, and striking. For workers who are covered by such laws, recourse for labor rights violations is often delayed to a point where it ceases to provide redress. When they are applied, remedies are weak and often ineffective. In a system replete with all the appearance of legality and due process, workers' exercise of rights to organize, to bargain, and to strike in the United States have been frustrated by many employers who realize that they have little to fear from labor law enforcement through a ponderous, delay-ridden legal system with meager remedial powers. [FN5]

   The failure of labor law to protect the rights of American workers is disturbing not only because “[f]ew human rights are more important than the right of freedom of association,” but also because the exercise of that right is essential to democracy. The policies of the National Labor Relations Act (NLRA or the Act) the heart of American labor law, embody the fundamental democratic ideals of our society. As Professor Ellen Dannin has written:

   NLRA policies . . . say that work and the way workers are treated are central to the sort of country this is. The NLRA's values are emphatically pro-democracy. Its policies set out steps to give us workplaces consistent with a democracy and to empower workers by giving them the skills needed to be citizens of a democracy.

   Consequently, as Professor Thomas Kohler has observed, “there is more involved and more at stake in labor law reform than we may think.” Kohler writes:

   [A]nyone with serious concerns about the kind of people we are making ourselves to be over the long run, and whether we can sustain the sorts of habits necessary to the well-being of a democracy, must pay close and critical attention to employment and the way that relationship is ordered. Briefly stated, the employment order involves far more than simply wage rates, power relationships, productivity, quality, or workplace voice. It quite literally involves the constitution of human beings.

   Because of the fundamental importance of work to the development of human personality and the goal of a just society, labor law is about much more than economic efficiency or industrial peace: it is about human dignity. The United States' Catholic Bishops observed in their pastoral letter on the United States' economy,

   [A]ll economic institutions must support the bonds of community and solidarity that are essential to the dignity of persons. Wherever our economic arrangements fail to conform to the demands of human dignity lived in community, they must be questioned and transformed.

   The economic and legal issues raised by labor law are also moral and spiritual issues; labor unions are more than mere agents for their members. They are “first of all instruments of solidarity and justice” whose mission is to promote the common good:

   Beyond their function of defending and vindicating, unions have the duty of acting as representatives for “the proper arrangement of economic life” and of educating the social consciences of workers so that they will feel that they have an active role, according to their proper capacities and aptitudes, in the whole task of economic and social development and in the attainment of the universal common good.

   Because the ultimate ends of labor union activity are moral and spiritual, the remaking of labor law in the twenty-first century must not ignore the profound teachings of the Catholic Church on the meaning of work and the dignity of workers. Although in a pluralistic society legislation must ultimately be justified in terms of secular objectives, when the law deals with fundamental questions of values, lawmakers can rely on religious teachings to help them address these issues. In this paper I will consider one of the central tenets on Catholic Social Thought (hereinafter abbreviated as CST)--the priority of labor over capital--and some possible implications for the future of American labor law. Before doing so, however, it is necessary to consider the reasons for the declining influence of labor unions in the United States.

4. Daniel Philpott (University of Notre Dame), Has the Study of Global Politics Found Religion?, 12 Ann. Rev. Pol. Sci. 183 (2009). The abstract states:

   The past generation has witnessed a resurgence of religion in global politics, but political science has been slow to catch up with it. The reason lies in the secularism embedded in the field's major theories, one that reflects actual secularism in world politics, beginning with the events surrounding the Peace of Westphalia in 1648 and growing steadily through the middle twentieth century. Today, a small but growing number of political scientists have begun to explore religion, doing so in ways that depart from secular assumptions and embrace religion's distinctiveness to greater and lesser degrees.

5. Leslie C. Griffin (University of Houston Law Center), Review Essay, 25 J.L. & Rel. (forthcoming 2009). The abstract states:

   This essay reviews 13 recent books about religion and politics and concludes that 2008 and 2009 were bad years for religion, politics and law.

6. Scott M. Noveck (Stanford Law School), The Promise and Problems of Treating Religious Freedom as Freedom of Association, Available at SSRN: http://ssrn.com/abstract=1403795 The abstract states:

   This Article explores the descriptive, normative, and doctrinal connections between religious freedom and the freedom of association. A series of recent Supreme Court decisions have significantly expanded the constitutional protections afforded to private expressive associations, and several scholars have suggested that the Court’s approach to freedom of association might provide an attractive model for religious liberty. This Article argues that special protections for religious freedom and for freedom of association can both be grounded in the idea of normative pluralism: there is an important value in the promotion of a diverse and pluralistic society, as this gives rise to a wide array of collective identities that an individual can draw upon as he looks to construct and partake in a meaningful life. The development of robust constitutional protections for expressive associations reflects a recognition that certain intimate or ideological associations, even when not overtly religious in character, frequently play a role in citizens’ lives that can be quite similar to, and perhaps equally important as, their religious convictions.

   The close parallels between religious affiliation and these expressive associations suggest that the two groups should be entitled to many of the same constitutional protections, yet a careful examination reveals several significant differences between the Court’s treatment of religious groups and its treatment of comparable secular associations. With respect to Free Exercise issues, the Court’s decision in Employment Division v. Smith (1990) famously rejected any constitutional right to religious exemption from otherwise neutral and generally applicable laws, but its recent decision in Boy Scouts of America v. Dale (2000) has given rise to exactly that sort of exemption right for secular expressive associations. On the Establishment side, the First Amendment requirement of viewpoint neutrality often operates as a secular counterpart to the Establishment Clause, but this analogy breaks down when applied to the newly emerging First Amendment category of government speech. These divergences in the protections for religious freedom and freedom of association yield important insights into both doctrines, which I draw upon to suggest several possible responses to restore consistency to the Court’s First Amendment jurisprudence.

7. William A. Wooten, The Coach’s Pre-Game Prayer: Probably Wrong But Feels Right, Available at SSRN: http://ssrn.com/abstract=1443342. The abstract states:

   An analysis of the constitutionality of a public school coach's pre-game prayer under the First Amendment. Though coach's routinely lead pre- and post-game prayers with their teams, this action would appear in direct violation of the First Amendment. The author analyzes the relevant Constitutional tests and case law and includes recent media articles concerning the subject.

8. Thomas Berg (University of St. Thomas School of Law), Lemon v. Kurtzman: The Parochial-School Crisis and the Establishment Clause, LAW AND RELIGION CASES IN CONTEXT, (Leslie Griffin ed. forthcoming 2010). The abstract states:

   This chapter in the Law and Religion volume of Aspen's forthcoming "Cases in Context" series traces the background and implications of Lemon v. Kurtzman (1971), the case that is famous for its 3-part Establishment Clause test and that also inaugurated a series of decisions in the 1970s and early 1980s striking down state efforts to assist parochial schools and the children attending them. In addition to summarizing the arguments, holding, and general implications of Lemon, the chapter draws attention to background and nuances: the parochial-school financial crisis that triggered these laws, the vigorous but unsuccessful attempt of the NAACP and other plaintiffs to challenge the laws for allegedly promoting white flight from urban neighborhoods, and factors (including changes in religious and racial demographics) that contributed first to the rise of Lemon's no-aid approach and then to its decline in recent decisions such as the Cleveland voucher case.

9. Carl H. Esbeck (University of Missouri School of Law), Why the Supreme Court has Fashioned Rules of Standing Unique to the Establishment Clause, 10 Engage 115 (2009). The abstract states:

   The U.S. Supreme Court will hear oral argument this fall in Salazar v. Buono, No. 08-472, a matter that involves a Latin cross located in the Mojave National Preserve located in Southeastern California and operated by the National Park Service. First placed there as a memorial to American’s who served in WWI, this Christian symbol is said to violated the Establishment Clause of the First Amendment. Before reaching the merits, however, the Court must first pass on the question of standing to sue. The plaintiff, Frank Buono, is a former employee of the National Park Service and objects to the cross remaining on government land in violation of the government’s duty to separate church and state. He seeks an injunction ordering the cross’ immediate removal. Buono is a former employee of the Park Service and was once assigned to the Mojave Preserve for just under a year. He retired nine years ago and presently resides in Oregon, but he retains an active interest in the Preserve and visits it two to four times a year. Standing to sue entails personalized injury-in-fact, but Buono’s claim falls in a small class of cases of “unwanted exposure” to religious expression attributable to the government. That is, Buono has no individuated injury-in-fact, as is normally required by the Court, for his “injury” is merely the observance of government conduct which he sincerely believes to be unconstitutional. Nevertheless, in two instances - both under the Establishment Clause - the Supreme Court has reduced the normal rigor of its standing doctrine: taxpayer claims and “unwanted exposure” claims. Explaining why the Court has done so is the subject of this extended essay.

10. Laura E. Little (Temple University School of Law), Regulating Funny: Humor and the Law, 94 Cornell L. Rev. 1235 (2009). The abstract states:

    Chuck makes a joke. The joke hurts Gladys, who complains, “That's not funny!” If Gladys presses her view, ascribing blame and demanding redress, a court matches her hurt with rules of law. Carried to its logical conclusion, this legal process regulates Chuck's joke, sending a message about whether society likes his humor. The law can regulate Chuck's joke in wildly varying ways. Depending on context, the law may insulate, tolerate, encourage, condemn, or suppress Chuck's humor. To resolve the controversy between Chuck and Gladys, a court may even need to determine whether it agrees that Chuck's joke is--indeed --not funny.

    The stakes are high here. To begin, where humor is stifled, the First Amendment hangs in the balance. Most potentially humorous utterances are actionable precisely because of their content--a key trigger for First Amendment protection. To a limited extent, scholars have explored this ramification of humor regulation, particularly in the context of sexual harassment litigation. Yet even leaving aside core First Amendment values, regulating humor implicates other important concerns nowhere discussed in case law or legal scholarship. Scholars working in social sciences, natural sciences, and the humanities document many beneficial qualities of humor, benefits as wide ranging as pain relief, social cohesion, and creativity. That's not to say that humor doesn't have its downsides. Prudence suggests, however, that a thoughtful decision to regulate humor should distinguish situations where humor fosters good from those where humor produces negative effects.

    Given humor's significant social consequences, one might expect courts to consider these effects in rendering decisions that implicate humor. Yet courts speak explicitly to the effects of humor only sporadically. In part, then, this Article's goal is to bring greater awareness to law's regulatory effect on humor.

11. Karima Bennoune (University of Michigan), Toward a More "Courageous Politics" At the 60th Anniversary of the UDHR: Talking About Muslim Fundamentalism in the West, 24 Md. J. Int'l L. 125 (2009). The abstract states:

    No abstract is available.

JFB

In Citizens United Rehearing, Justice Sotomayor Will Join Court’s Struggle to Discern First Amendment’s Demands in Campaign Finance Domain

A recent Washington Post column by Ruth Marcus and a post on Balkinization by Yale election law scholar Heather Gerken consider whether a majority of the Justices will use the Citizens United rehearing to reverse the Court's qualified acceptance of major facets of campaign finance regulation.  Marcus sees that such an outcome seems attractive to a majority of the current Justices but suggests that invalidating the restrictions applied to Hillary: The Movie would be a display of judicial activism that would draw harsh and appropriate criticism.  Professor Gerken notes that the Court has ordered the parties to submit supplementary briefs addressing whether Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1989) should be overruled.   The Court has set an expedited schedule for submission of these briefs.  Gerken goes on to raise concerns that the Court may be hurtling toward consideration of the difficult First Amendment questions posed on what will be an inadequate factual record, a move that defies the canon of constitutional avoidance and exhibits an ill-advised flirtation with activism in a case that lies at a particularly thorny point of intersection between the jurisprudence of the First Amendment and election law.

JFB

Iraqi Prime Minister Seeks Censorship Legislation

The New York Times reported yesterday that the Iraqi government is working on censorship legislation that would ban Internet sites identified as “ harmful to the public“ and would require all Internet cafes to register with the government.  Book publishers are also being pressed by government officials to censor or withdraw books the government finds objectionable. To justifying these moves, Prime Minister Maliki has cited the need to prevent material advocating sectarian violence and presenting sexual content from entering the country. The government characterizes these steps as necessary to protect their fragile democracy. Article 38 of the Iraqi Constitution provides: 

The State shall guarantee in a way that does not violate public order and morality:
A. Freedom of expression using all means.
B. Freedom of press, printing, advertisement, media and publication.
C. Freedom of assembly and peaceful demonstration, and this shall be regulated
by law.

Last month a government committee issued recommendations that call for a ban on Internet content that discusses drugs,  terrorism or gambling, that presents negative remarks about Islam, or that is pornographic. The Times report ends with a quote from a young student who voiced support for the government’s efforts, saying, “[W]e want to go back.  I do not like cellphones and the Internet and satellite television. Please tell people I am one of the Iraqis who dream of living in simplicity to avoid falling into sin.”

JFB

Pharmacists Seek Rehearing on Ninth Circuit’s Refusal to Enjoin Enforcement of Washington Plan B Regulations

The Religion Clause Blog reports that a group of pharmacists who assert a religious objection to filling prescriptions for the Plan B contraceptive have filed a petition seeking rehearing of their challenge to the Washington state regulations requiring all pharmacists to stock and dispense this medication. (See prior posting on  the panel ruling.) A Becket Fund press release provides more information on the filing.

JFB

First Amendment Scholarship Update

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

1) Andrew Koppelman (Northwestern University School of Law), Religious Establishment and Autonomy, 25 Constitutional Commentary --- (2009). The abstract states:

Kent Greenawalt claims that one rationale for nonestablishment of religion is personal autonomy. If, however, the law is barred from manipulating people in religious directions (and thus violating their autonomy), while it remains free to manipulate them in nonreligious directions (and thus violate their autonomy in exactly the same way), autonomy as such is not what is being protected. The most promising alternative is to understand religion as a distinctive human good that is being protected from government interference.

2)Douglas NeJaime (Loyola Law School Los Angeles),  Inclusion, Accommodation, and Recognition: Accounting for Differences Based on Religion and Sexual Orientation, 32 Harvard Journal of Law and Gender ---  (2009). The abstract states:

This Article analyzes the rights claims and theoretical frameworks deployed by Christian Right and gay rights cause lawyers in the context of gay-inclusive school programming to show how two movements with conflicting normative positions are using similar representational and rhetorical strategies. Lawyers from both movements cast constituents as vulnerable minorities in a pluralistic society, yet they do so to harness the homogenizing power of curriculum and thereby entrench a particular normative view. Exploring how both sets of lawyers construct distinct and often incompatible models of pluralism as they attempt to influence schools’ state-sponsored messages, this Article exposes the strengths as well as the limitations of both movements’ strategies. Christian Right lawyers’ free speech strategy - articulating religious freedom claims through the secular language of free speech doctrine - operates within an inclusion model of pluralism. This model stresses public participation and engagement with difference. After making significant advances over the past several years, lawyers have begun to employ the inclusion model with some success in the school programming domain, despite significant doctrinal and remedial limitations. At the same time, Christian Right lawyers assert parental rights and free exercise claims in curricular challenges. Such claims rely on an accommodation model of pluralism that permits selective withdrawal based on religious beliefs and thereby resists active engagement with difference. This strategy struggles in the face of a well-accepted view of civic education that values exposure to diversity - a view bound up with the success of the Christian Right’s inclusion model of pluralism. Gay rights lawyers respond to Christian Right claims by drawing on a left multicultural model of pluralism. This model constitutes lesbians and gay men as identity holders (rather than sex actors), and in doing so succeeds in justifying the inclusion of sexual orientation in programming that prioritizes diversity. The left multicultural claim stalls, however, when it demands the state’s affirmative cultivation of respect by asserting students’ rights to gay-inclusive instruction. In the end, both the Christian Right and gay rights movements make important advances yet face significant tensions as they craft doctrinal claims that operate within competing models of pluralism.

3) Gregory Gordon (University of North Dakota School of Law), From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework. The abstract states:

On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators contend that these statements constitute direct and public incitement to commit genocide. This Article analyzes this assertion by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. It pieces together an analytical framework based on principles derived from these cases, including the Canadian Supreme Court's opinion in the Léon Mugesera matter. Using this framework, it demonstrates that while a successful prosecution would entail clearing significant substantive and procedural hurdles, it could include both incitement and crimes against humanity charges in light of the incitement's nexus with Iran's sponsorship of terrorist attacks against Israel. However, to take the case, the International Criminal Court would have to put aside political pressures related to the Middle East's toxic political environment and the absence of causation. The odds of this happening are long. As a result, the Article proposes that incitement law shift its focus from post-atrocity punishment to deterrence. This would permit early intervention and center incitement on its core mission of atrocity prevention. The Article also suggests that euphemisms employed to disguise incitement, such as "predictions" of destruction, when anchored to direct calls for violence, should also be considered acts of direct incitement. Finally, with respect to crimes against humanity, the Article explains that attacks on a civilian population carried out by a proxy at the insistence of the inciter, rather than directly by the actual inciter himself, should be sufficient to establish liability. At the same time, in the interest of protecting free speech, the crime should not be charged absent evidence of calls for protected-group violence, as opposed to mere hatred.

4) Steven Douglas Smith (University of San Diego School of Law), Discourse in the Dusk: the Twilight of Religious Freedom, 122 Harv. L. Rev. 1869 (2009). The abstract states:

This essay argues that the Western tradition of discourse about church-state separation and freedom of conscience, which began a millennium ago, has reached a point of exhaustion. The tradition arose on the Christian assumption that life has a temporal dimension and a spiritual dimension, each governed by an institutional authority: the 'secular' ruler governed the temporal and the church represented the spiritual domain. Thus, the debate was essentially a theological debate about the providential allocation of jurisdiction between different institutional authorities. The commitment to freedom of conscience arose as, in the post-Reformation period, the individual conscience came to assume the role formerly occupied by the church: thus, especially in Protestant regions, the medieval campaign for 'freedom of the church' evolved into a commitment to 'freedom of conscience.' In the modern context, however, the discourse has been transformed: the theological framework has given way to a secular one, and the debate over jurisdictions has been replaced by a debate over justice. In this context, the classical commitments to church-state separation and freedom of conscience lose their rationales; indeed, it becomes difficult to explain why 'religion' (whatever it is) should be a special legal category at all. The much noted incoherence in the modern jurisprudence of religious freedom is a product of this drastically altered situation.

After developing this diagnosis, this essay uses the diagnosis to assess Kent Greenawalt’s recent book, Religion and the Constitution: Establishment and Fairness. The review argues that on one level, Greenawalt’s book is exemplary; it is a model of careful, fair-minded reason. However, the book conspicuously defaults on the basic level of justification, and this review argues that this default is a faithful reflection of the exhausted condition of the tradition in which Greenawalt is working.

5) ) Douglas NeJaime (Loyola Law School Los Angeles), When New Governance Fails, 70 Ohio St. L. J. --- (2009).  The abstract states: 

New Governance scholars have responded to critiques of rights-based, state-centered, top-down strategies by turning toward flexible, collaborative public-private partnerships and by locating lawyers as problem solvers rather than as traditional advocates. Intervening in a variety of substantive fields, these scholars often position New Governance as an ambitious project that seeks to usher in a new paradigm of public problem solving. This Article pulls back on the enthusiastic embrace of New Governance, instead situating it as a contingent model of cause lawyering that complements, rather than replaces, previous advocacy models, including rights-claiming litigation. To do so, this Article draws out professional and representational objections to New Governance. First, New Governance scholars often neglect cause lawyers, treat lawyers like other institutional actors, or priovide insufficiently concrete lawyer roles. Accordingly, lawyers might resist New Governance practice based on their professional identities. Next, the process-oriented focus of New Governance theory poses representational issues for lawyers working on behalf of marginalized constituents. New Governance process might merely reinscribe existing power dynamics and render challenges to outcomes more difficult. As a counterbalance to the overabundance of success stories in the New Governance literature, this Article locates these professional and representational objections in accounts of New Governance failure drawn from the identity-based domains of sexual orientation, gender, and religion. These stories of New Governance failure reveal challenges facing New Governance theory and begin to expose conditions conducive to New Governance practice. At the same time, they suggest the continued relevance of rights-claiming, court-centered strategies

6)Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School ), The Recurring Paradox of Groups in the Liberal State, forthcoming in Utah Law Review. The abstract states:

The question of groups for liberal theory and constitutional doctrine is not new. For at least the last half century, every time some unguarded Supreme Court language has hinted at group rights, academics have responded with law review articles arguing that the Court should confirm such rights in doctrine. But the Court never has.

The Court's lack of enthusiasm for group rights is undoubtedly related to their paradoxical quality of simultaneously protecting and threatening individual liberty. This paradox requires analytic touchstones to guide the decision when the liberal state should intervene in the internal affairs of groups, such as groups’ lack of foundational status in constitutional doctrine, whether group membership is consensual, and the extent to which group rights impose external costs on nonmembers. It also suggests the need for a more nuanced approach to group rights than is suggested by the binary choice between recognition or nonrecognition. Constitutional doctrine might make greater use of intermediate measures, such as revocation of tax exempt status or other state privileges, for groups whose beliefs and practices threaten the rights and interests of nonmembers. This enables the state to preserve the pluralist contributions that groups make to liberal democracy without subsidizing anti-liberal values and practices.

This Essay is part of a symposium on non-state action held at the University of Utah College of Law on February 6, 2009.

7) Pnina Lahav (Boston University - School of Law), Seeking Recognition: Women's Struggle for Full Citizenship in the Community of Religious Worship, in GENDERING RELIGION AND POLITICS: UNTANGLING MODERNITIES, ,Hanna Herzog and Ann Braude, eds. (2009). The abstract states:

In March, 2005, a feminist Muslim scholar, Dr. Amina Wadud, led a group of men and women in public prayer in New York City. Dr. Wadud has enthusiastic followers, but many Muslim scholars reacted to her move with hostility, describing religious prayers led by a woman as lawless and heretical. Since 1988, a group of orthodox Jewish women have been holding 'Tefillah Groups,' claiming that women too may be active participants in the formal ritual of Jewish public prayer. Their act has also triggered considerable hostility and controversy in the Jewish world.

This paper explores the similarities and differences between the Muslim and Jewish frameworks, in an effort to understand better the reasons motivating educated feminists to push the legal frontiers of religious worship and the reasons motivating state apparatuses to resist such moves. It then argues that in the United States, constitutional culture and scholarship has influenced religious women in their quest to better understand their religious law and open it to principles of gender equality.

The paper further explores the affinity between the right to petition the government for redress of grievances and the right to assemble (first amendment to the United States Constitution) as secular rights, and the right of women under Islam and Jewish Law to petition (pray) in assembly in their religious communities. It argues that the concept of full and active citizenship in the community connects the three legal systems, the mature US commitment in the first amendment and the fledgling, exploratory commitment in Islam and Jewish Law.

8) Ferry Koster (Leiden University), Shame and Punishment: An International Comparative Study on the Effects of Religious Affiliation and Religiosity on Attitudes to Offending , forthcoming in European Journal of Criminology. The abstract states:

This study investigates the effects of having a religious affiliation and of an individual’s level of religiosity on social norms about victimless crimes. Two mechanisms are hypothesized to influence these norms: having a religious affiliation, via external sanctioning by others and religiosity via internal sanctioning. In addition, it was predicted that the effects of internal sanctioning would be stronger than the effects of external sanctioning. To test these hypotheses, we used the data from the World Values Survey (WVS) 1981-2004. The final dataset contains information on 128,243 respondents residing in 70 countries. The results of the multivariate analyses show that having a religious affiliation, as well as a higher level of religiosity result in a stronger condemnation of victimless crimes and that the effects of religiosity are stronger than the effects of belonging to a religious group.

9)Katie R. Eyer (University of Pennsylvania, Alice Paul Center for Research on Women, Gender and Sexuality),  Protecting Lesbian Gay Bisexual and Transgender (LGBT) Workers: Strategies for Bringing Employment Claims on Behalf of Members of the LGBT Community in the Absence of Clear Statutory Protections, ACS White Paper. The abstract states:

In the absence of an explicit federal statute and in the many states that do not yet have statutes that protect against discrimination on the basis of sexual orientation and gender identity, lesbian, gay, bisexual and transgender people can be at risk for unfair treatment on the job. In 'Protecting Lesbian Gay Bisexual and Transgender (LGBT) Workers: Strategies for Bringing Employment Claims on Behalf of Members of the LGBT Community in the Absence of Clear Statutory Protections,' Katie Eyer outlines several strategies - such as citing anti-discrimination protections for sex, religion or disability discrimination, relying on local ordinances and bringing common law claims - that may be used to remedy discrimination in states where explicit protections for sexual and/or gender minorities do not yet exist.

10) Michael L. Perlin (New York Law School ) and Valerie Rae McClain ,'Where Souls are Forgotten': Cultural Competencies, Forensic Evaluations and International Human Rights, 15 Psychology, Public Policy and Law, --- (2009). The abstract states:

Cultural competency is critical in criminal forensic evaluations. Cultural competency eschews reliance on stereotype, precluding the mistake of assuming that cultural dictates apply with equal force to all who share a cultural background, thus allowing the forensic examiner to provide a comprehensive picture of the defendant to the factfinder. While raised frequently in death penalty cases, it is equally important to the entire criminal process. Cultural sensitivity in test selection and interview techniques that enhance validity of results are addressed. In a parallel fashion, ratification of the UN Convention on the Rights of Persons with Disabilities has drawn importance to cultural competency. Although international human rights and cultural sensitivity have been considered with regard to race, gender and religion, applications to criminal matters are still in their infancy. This paper considers strategies to enhance the effectiveness of testimony and mitigation efforts.

11)Nomi Stolzenberg (USC Gould School of Law), Board of Education of Kiryas Joel Village School District v. Grumet: A Religious Group's Quest for its Own Public School in LAW AND RELIGION; CASES IN CONTEXT, Gregory Alexander & Eduardo Penalver, eds.(2010). The abstract states:

The case of Kiryas Joel School District v. Grumet, handed down by the Supreme Court in 1994, involving the quest of a religious group to establish its own public school, attracted national attention. Seemingly, the Supreme Court vindicated the civil libertarian position that creating a public school district in the religiously homogeneous village of Kiryas Joel, established and populated exclusively by members of the Satmar sect of ultra-Orthodox Hasidic Jews, constituted a violation of the principle of separation between church and state embodied in the establishment clause. In fact, the Court's decision did no such thing. Instead, it offered a jumble of opinions, invalidating the New York statute that authorized the establishment of a school district in Kiryas Joel on narrow (and confused) grounds, which permitted the state to renew its authorization of the Kiryas Joel Public School District with the passage of a new statute designed not to single out the Satmar community for special benefit. This essay, part of a book series on landmark law and religion cases intended for students, explores the background to the case as well as its convoluted reasoning. It argues that the contradictions and ambiguities exhibited in the judicial opinions issued in this case reflect unresolved tensions within the Court's jurisprudence concerning Establishment Clause ideals, in particular, a tension between one line of reasoning which frowns upon state support for religious group separatism and another line of reasoning, currently more dominant, which permits, even encourages, group separatism so long as every group as an equal opportunity to engage in separatist practices. The essay situates this tension in the Court's reasoning in the larger split emerging in the culture at large in the 1980s and the 1990s between newly fashionable multiculturalist/communitarian, and older civil libertarian integrationist ideals.

JFB