First Amendment Law Prof Blog

Debating Whether the Mojave Memorial Cross Is A Religious Symbol

In anticipation of the October 7 oral argument in Salazar v. Buono, the LATimes “Dust-Up” debate feature asks UC Irvine Law Dean Erwin Chemerinsky and Joseph Infranco, Alliance Defense Fund senior counsel, to address the question, “when is a cross not a Christian symbol?”. The  Washington Post provides additional coverage of the case, including a profile of the couple who serve as caretakers for the Mojave Memorial.

JFB  

  

Senate Debate Over Content of Health Care Reform Bill Includes Religious Liberty and Church-State Questions

Last week the Religion Clause Blog provided an inventory of provisions in both the Senate health care reform bill, the America's Healthy Future Act of 2009, and proposed amendments that would be particularly significant to those concerned about religious liberty and church-state issues. Such provisions address abortion services, conscience exemptions for health care providers, spiritually based health care, grants to faith-based groups, and funding for abstinence education. Today's Washington Post reports that the Senate Finance Committee voted 13-10 to reject one such amendment, a proposal by Senator Orrin Hatch that would have required women electing to join a new insurance exchange buy a separate policy to cover abortion services. The vote was largely on party lines with one Democrat, Kent Conrad of North Dakota, supporting the Hatch amendment and one Republican, Maine's Olympia J. Snowe, voting against the proposal.

JFB   

 

Civil Liberties Groups Offer School Officials Guidance on Religion in Public Schools

Americans United for the Separation of Church and State has announced the release of  Religion in the Public Schools: A Road Map for Avoiding Lawsuits and Respecting Parents’ Legal Rights by Professor Anne Marie Lofaso of West Virginia University Law School. As described by Americans United, the downloadable volume "examines what the courts have said about many religion-in-school controversies and provides clear, concise answers to common questions." The ACLU of Tennessee has also recently issued "Know Your Rights: Religion in the Public Schools  - A Guide for Adminstrators and Teachers". 

JFB

Call for Submissions from New Harvard Journal of Sports and Entertainment Law

The editorial board of the recently created Harvard Journal of Sports and Entertainment Law has asked us to post the following call for submissions:

On behalf of the editorial board, it is my distinct pleasure to announce the formation of the Harvard Journal of Sports and Entertainment Law (JSEL).  JSEL will provide the academic community, the sports and entertainment industries, and the broader legal profession with scholarly analysis and research related to the legal aspects of the sports and entertainment communities.  JSEL, published under the auspices of Harvard Law School, is accepting articles, essays, book reviews, notes, and comments regarding legal and/or public policy issues from academics and legal practitioners for its upcoming inaugural issue in Spring 2010.  JSEL is one of the few journals in the United States that focuses exclusively on legal topics related to sports and entertainment.

 As you are probably aware, legal topics that affect sports and entertainment include antitrust law, civil procedure, constitutional law, contract law, corporate law, copyright law, labor law, and real estate law.  In addition, there are many other legal topics that have an impact on the sports and entertainment industries, or otherwise have an application to sports and entertainment. 

 Submissions are being accepted on a rolling basis.  To be considered for our first issue, due to be published in Spring 2010, please send completed submissions no later than November 15, 2009.  An indication of your interest before that date would also be greatly appreciated.

 All submissions must be sent to Josh Podoll, Submissions Editor, as an attached Microsoft Word document via email to jselsubmissions@gmail.com.  Please visit our website for further details regarding the submissions process at www.HarvardJSEL.com.  Also, please feel free to contact Josh regarding any questions you may have concerning citation format, topic, or other issues involving the submissions process.  If you know of other scholars, practitioners, or students whose work seems appropriate for our journal, please encourage them to submit their work to JSEL.

 We look forward to receiving your submissions!

Sincerely,

Ashwin Krishnan Josh Podoll
Editor in Chief  Submissions Editor

Banned Books Week: Sept 26-Oct. 3

It's Banned Books Week, and the American Library Association has set up an interactive google map that let's you track more than 120 book challenges that have occurred across the country in the past two years.  This is just a small sample though; experts estimate that only 15-30% of the total number of book challenges receive media attention or are reported to monitoring agencies.

The ALA's 2008-09 report is here.  Many of the usuals make the list: Catcher in the Rye, The Color Purple, Huckleberry Finn.  Other notable entries include:

• Blackhawk Down: removed from a high school in Louisiana because if violated a school policy against cursing.
• Howard Zinn's, A People's History of the United States: challenged in a VA advanced placement course because it is "un-American, leftist, propaganda."
• The Bookseller of Kabul: removed from a high school in Michigan because of mature content.
• Uncle Bobby's Wedding: challenged at a public library because the story of two gay guinea pigs "may be inappropriate for young children."
• The Supernaturalist: temporarily removed from a middle school library because it deals with "the occult."

-Kathleen A. Bergin 

First Amendment Scholarship Update

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

1) Jeffrey M. Lipshaw (Suffolk University Law School), Can There Be a Religion of Reason? A Response to Leiter's Circular Conception of Religious Belief. The abstract states: 

This is a comment on a definition of religion recently proffered by Brian Leiter in support of different conclusions we ought to draw with respect to religion. His analysis is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that he employs an appeal to common sense to distinguish religion and science. Nevertheless, the very belief in common sense is the same as the religion Leiter attacks: it is categorical and insulated from further reasons. My argument in response has three major themes. (1) The argument based on receptiveness to reasons and evidence itself arbitrarily picks and chooses reasons and evidence. (2) It is possible to posit a religion whose categorical demands on action and requirements of foundational bedrock are minimal. (3) Religion uses reason (in the sense of concepts apart from evidence) to grapple with the source of our bedrock beliefs. It differs from other such grappling only in degree and not kind of thought; once we accept the role of concept (or reason) in such work, religious or secular, we necessarily must accord bedrock status (or categoricity) to at least one concept. Finally, I suggest that adoption of Leiter's definition has a troubling implication as to our respect for personhood.

2) Eric G. Andersen (University of Iowa - College of Law ), Religion and Social Welfare in the United States: The Case of Charitable Choice , 7 Review of Faith & International Affairs ----(Fall 2009). The abstract states:

This paper was presented at “Religion and the Rule of Law in Southeast Asia: Continuing the Conversation,” an international conference held in Hanoi, Vietnam on November 3-4, 2007. It briefly describes the faith based initiatives or “Charitable Choice” experiment currently underway in the United States that is testing and shaping the relationship between religious organizations and the state. The experiment’s goal is to invite overtly religious groups to partner with the government in the delivery of social services under conditions that allow the groups to retain, and act in, their religious character, while preventing the imposition of religious belief or practice on the recipients of those services. Charitable Choice is controversial. In many respects, the debate surrounding it is peculiar to the circumstances of the United States. But it may also illuminate analogous issues in very different cultures.

3) Niclas Berggren(The Ratio Institute) and Christian Bjørnskov (University of Aarhus - Department of Economics),  Does Religiosity Promote or Discourage Social Trust? Evidence from Cross-Country and Cross-State Comparisons. The abstract states:

We look at the effect of religiosity on social trust, defined as the share of a population that thinks that people in general can be trusted. This is important since social trust is related to many desired outcomes, such as growth, education, democratic stability and subjective well-being. The effect of religiosity is theoretically unclear: while all major religions call for behaving well to others, religious groups may primarily trust people in their own groups and distrust others, as well as cause division in the broader population. We make use of new data from the Gallup World Poll for 105 countries and the U.S. states, measuring religiosity by the share of the population that answers yes to the question “Is religion an important part of your daily life?”. Our empirical results, making use of regression analysis whereby we control for other possible determinants of social trust and, by using instrumental variables, for the risk of reverse causality, indicate a robust, negative effect of religiosity, both internationally and within the US.

4) Mirjam Künkler (Princeton University) and Julia Leininger, The Multi-faceted Role of Religious Actors in Democratization Processes: Empirical Evidence from Five Young Democracies, to be published in  Democratization: The Journal (December 2009). The abstract states:

The paper comparatively investigates the role of religious actors in the democratization processes of five young democracies from the Catholic, Protestant, Christian-Orthodox and Muslim world, specifically in West Germany after World War II (1945-1969), in Georgia and Ukraine post-1987/9, as well as in Mali post-1987 and Indonesia after 1998. The analysis provides an overview of the roles religious actors played in the erosion of authoritarian rule, the transition to democracy and subsequent democratic consolidation, as well as de-democratization processes. Our three paired comparisons show that the role of religious actors in all three phases of democratic transitions was most influenced by the legal position they enjoyed vis-à-vis the political regime as well as the organizational form these actors took. Their aims, means, and the political significance of their theology were highly dependent on their legal status within the state.

5) Randall P. Bezanson(University of Iowa College of Law), Art and Freedom of Speech, published by
University of Illinois Press (2009). The abstract states:

This book analyzes the broad range of Supreme Court cases that concern the protection of art and free speech under the First Amendment. Finding that debates about free expression (whether in speech or art) swirl around sex and cultural blasphemy, Randall P. Bezanson tracks and interprets the Court's decisions on film, nude dancing, music, painting, and other visual expressions.

Showing how the Court has dealt with judgments of art, quality, meaning, and how to distinguish types of speech and expression, Bezanson explores issues as diverse as homosexuality in the Boy Scouts, gay and lesbian parade floats, 2 Live Crew's alleged copyright infringement, National Endowment for the Arts grants and diversity, dangerous art, and screenings of the film Carnal Knowledge. In considering the transformative meaning of art, the importance of community judgments, and the definition of speech in Court rulings, Bezanson focuses on the fundamental questions underlying the discussion of art as protected free speech: What are the boundaries of art? What are the limits on the government's role as supporter and "patron" of the arts? And what role, if any, may core social values of decency, respect, and equality play in limiting the production or distribution of art?

Accessibly written and evocatively argued, Art and Freedom of Speech explores these questions and concludes with the argument that, for legal purposes, art should be absolutely free under the First Amendment - in fact, even more free than other forms of speech.

6) Christopher S. Yoo (University of Pennsylvania Law School),  Free Speech and the Myth of the Internet as an Unintermediated Experience, 78 George Washington Law Review ---(2010). The abstract states:

In recent years, a growing number of commentators have raised concerns that the decisions made by Internet intermediaries - including last-mile network providers, search engines, social networking sites, and smartphones - are inhibiting free speech and have called for restrictions on their ability to prioritize or exclude content. Such calls ignore the fact that when mass communications are involved, intermediation helps end users to protect themselves from unwanted content and allows them to sift through the avalanche of desired content that grows ever larger every day. Intermediation also helps solve a number of classic economic problems associated with the Internet. In short, intermediation of mass media content is inevitable and often beneficial. Calls to restrict intermediation have also largely overlooked the longstanding tradition reflected in the Supreme Court’s First Amendment jurisprudence with respect to other forms of electronic communication recognizing how intermediaries’ exercises of editorial discretion promote free speech values. The debate also ignores the inauspicious/dubious history of past efforts to regulate the scope of electronic intermediaries’ editorial discretion, which were characterized by the inability to develop coherent standards, a chilling effect on controversial speech, and manipulation of the rules for political purposes.

7) Alex Kreit (Thomas Jefferson School of Law), Making Sense of Facial and As-Applied Challenges, forthcoming in 18 William & Mary Bill of Rights Journal --- (2009). The abstract states:

This article challenges the conventional understanding of "facial" and "as-applied" challenges. Under the Supreme Court's jurisprudence, constitutional challenges can be sorted into two distinct categories: "facial" and "as-applied." A facial challenge is typically described as "a head-on attack on the legislative judgment, an assertion that the challenged statute violates the Constitution in all, or virtually all, of its applications" and, as a result, is invalid in its entirety. An "as-applied" challenge, by contrast, is one where the litigant "concedes that the statute may be constitutional in many of its applications, but contends that it is not so under the particular circumstances of the case." The two categories are believed to form the foundation for a set of substantive rules that control when a court may strike down a statute in its entirety or only overturn the application of the statute in the case at hand. Under these rules, the law strongly favors as-applied challenges on the grounds that they are more consistent with the goals of resolving concrete disputes and deferring as much as possible to the legislative process.

This account of facial and as-applied challenges is by now a familiar part of the constitutional landscape and is generally accepted in the courts. Yet some of the most basic details about the facial and as-applied categories remain surprisingly unclear. For instance, is the choice between facial and as-applied challenges one that a litigant makes when she brings her claim, or is it one that a court makes when it analyzes her claim? Do the rules regarding facial and as-applied challenges limit the adoption of constitutional tests, such as purpose-based tests, that might lead to the facial invalidation of statutes? Or do they relate to the remedial doctrine of severability, which comes into play only after a court has already applied the relevant constitutional test and found a violation? Is the key to distinguishing between facial and as-applied challenges the extent to which the court relies on the specific facts in the case at hand to reach its decision? If so, when is it appropriate for a court to consider something other than those specific facts? Neither the case law nor the academic literature provides a satisfactory answer to these fundamental problems.

This article contends that these questions remain unanswered because categorizing cases into "facial" and "as-applied" challenges, and relying on these categories to inform case outcomes, is an inherently flawed and fundamentally incoherent undertaking. This is because the fate of a statute in the face of a constitutional challenge depends on distinct considerations that cannot be reduced to a single inquiry or set of rules. The article further argues that the Court, in its attempt to build a universally applicable law of facial and as-applied challenges, has only created unnecessary confusion, by obscuring the real issues that animate results in constitutional cases. The article concludes that we would be better served by abandoning the idea that there is, or can ever be, a "law" of facial and as-applied challenges.

8) Justin G. Holbrook (U.S. Air Force), Communications Privacy in the Military  The abstract states:

In the wake of the 1996 case of United States v. Larson, in which the Court of Appeals for the Armed Forces held that a service member held a right to privacy in her workplace e-mail, the Department of Defense issued a DoD-wide policy requiring DoD employees to consent to e-mail monitoring, interception, and seizure for any purpose - including law enforcement. With military members deployed to Iraq and Afghanistan relying exclusively on government information systems to communicate daily with friends and family, the DoD policy arguably violates core Fourth Amendment privacy protections.

Proceeding from a discussion of first principles in military privacy to the four seminal military cases involving communications privacy expectations, I address the constitutional implications of the DoD policy, exploring whether it unconstitutionally warrants searches for law enforcement purposes. I conclude with a normative appeal for military courts and the DoD to follow the Supreme Court’s reasoning in O’Connor v. Ortega and distinguish work-related from law enforcement searches.

With both civilian and military law in flux over the scope of privacy expectations in workplace electronic communications, my aim is to provide timely, considered guidance to courts, policy makers, and practitioners in determining what service members should expect from a normative perspective as they use government information systems to communicate with family and friends.

9) Matt Nicholson, Note -  Is O Centro Really A Sign of Hope for RFRA Claimants?, 95 Va. L. Rev. 1281 (2009).  No abstract is available.

10) Kelly Elizabeth Phipps, Note - Marriage & Redemption: Mormon Polygamy in the Congressional Imagination, 1862-1887,  95 Va. L. Rev. 435 (2009). The abstract states:

How did nineteenth-century federal legislators imagine Mormon polygamy as they debated and adopted harsh anti-polygamy enforcement laws? Republican anti-polygamists in the Reconstruction era called polygamy and slavery the “twin relics of barbarism,” analogizing polygamous husbands to Southern slaveholders. By the 1880s anti-polygamists in Congress rooted their arguments in Chinese Exclusionism and avoided divisive references to Southern slavery. They compared Mormon polygamy to “despotic” cultural practices popularly associated with Chinese immigrants, like concubinage, prostitution, and “coolieism.” White cultural nationalism mobilized support for the first effective anti-polygamy statutes in 1882 and 1887. These changing representations of polygamy illustrate how the Republican party came to terms with the South's legacy of slavery and rebellion by embracing a unified white cultural identity. Metaphorical comparisons to Southern slavery and “oriental paganism” not only vilified polygamy, they also justified federal intervention into local affairs. The these vivid metaphors arose from the Republican party's shifting ideology, not the lived experience of polygamy's perceived “victims”: the plural wives.

11) Jessica L. Chilson, Note -Unmasking John Doe: Setting a Standard for Discovery in Anonymous Internet Defamation Cases,  95 Va. L. Rev. 389 (2009).  The abstract states:

The First Amendment to the United States Constitution provides for and protects an open marketplace for the competition of ideas. Oliver Wendell Holmes, Jr. said, “the best test of truth is the power of the thought to get itself accepted in the competition of the market[.]” The Internet, where anonymity is easily achieved and speech is cheap, seems to be a broader and more pure manifestation of such a marketplace than previously seen. In the 1990s, the Internet was a new mode of communication and an untested medium for speech. The intersection of First Amendment law and defamation law in cyberspace has since posed a variety of legal questions that continue to develop nearly two decades later. How should the fundamental right to freedom of speech play out over a medium where anyone’s voice can be heard instantaneously by thousands, even millions, of people? Who should be liable for defamatory speech occurring over the Internet? When is it appropriate to compel disclosure of a “John Doe” defendant’s identity in a defamation case?

Unmasking John Doe contends that to answer those questions requires a precarious balancing act. Using a hypothetical John Doe lawsuit, the note develops and rigorously tests an obscure standard provided by a Louisiana court, arguing that it may provide the key to ensuring that Internet speakers know the limits of protection guaranteed to them and that meritorious claims of defamation will not be prematurely dismissed.

JFB 

First Amendment Scholarship Update

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

1) Ciara Torres-Spelliscy (Brennan Center for Justice/NYU),Corporate Political Spending & Shareholders’ Rights: Why the U.S. Should Adopt the British Approach. The abstract states: 

American shareholders lack the ability to consent to political spending by corporations. Indeed, because of gaps between corporate and campaign finance law, U.S. corporations can make political expenditures without giving shareholders any notice of the spending either before or after the fact. This is problematic because the political interests of the managers who spend the corporate money may diverge from the political interests of shareholders who provided the funding.

By contrast, British companies must seek permission from shareholders to make political expenditures under the Political Parties, Elections and Referendums Act of 2000 and must report such spending to U.K. shareholders on an annual basis.

Shareholders in U.S. companies have been protected by a century’s worth of election laws which limited the amount of money that could be spent in federal elections by corporations, unions and banks. Corporations are required to pay for federal political expenditures through corporate political action committees (PAC's).

The federal corporate PAC requirement safeguards the interests of shareholders in particular because most investors are unaware of how, when or why corporations make political expenditures. For example, in states that lack federal-style election rules, corporations may give political donations directly from their corporate treasuries (money in the corporate treasury includes funds from the sale of stocks and products). Corporations can spend money on politics without consent from or notice to shareholders. The shareholder may not know who the corporation supports or may even actively disagree with who the corporation supports. By contrast, if a shareholder chooses to give to a corporate PAC, then the shareholder is fully on notice that the money will be used for a political purpose and there is meaningful consent in the transaction.

The laws that require corporations to pay for political expenditures through corporate PAC's are under legal attack in the courts. Most recently, the Supreme Court will hear a rare re-argument in September 2009 in a case called Citizens United. The topics at re-argument are whether to overrule Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission-two cases which require corporations to conduct political spending through corporate PAC's.

As Justice William Brennan wrote in Austin, laws requiring corporations to pay for independent expenditures through corporate PAC's, “protect dissenting shareholders of business corporations.” In response to Justice Scalia’s dissent that offended shareholders could simply sell their shares, Justice Brennan went on to explain the difficulties of the mechanics of keeping perpetual tabs on corporate political spending, stating, “shareholders in a large business corporation may find it prohibitively expensive to monitor the activities of the corporation to determine whether it is making expenditures to which they object.”

Most Court watchers predict that the Supreme Court will use Citizens United as an opportunity to expand corporate speech rights. If the Court overturns Austin and McConnell, this new development in the law would hurt shareholders by allowing corporate managers to use corporate treasury funds to make political expenditures.

A recent study, “Corporate Political Contributions: Investment or Agency?” by Aggarwal, Meschke, and Wang (2009) found that large corporate political expenditures are linked with lower shareholder value and poor corporate management. In other words, managers make political donations because they want to, not because giving will necessarily benefit the corporations they manage. Overruling Austin and/or McConnell will give poor managers even more venues in which to spend shareholders’ investments on political expenses.

By exploring both campaign finance law and corporate law, this paper, “Political Spending & Shareholders’ Rights,” will argue that the U.S. should adopt the British approach to corporate political expenditures. In the first instance, U.S. corporations should disclose their political spending directly to shareholders and they should give shareholders the opportunity to consent to political spending. These reforms will improve corporate governance and minimize corporate risk.

The need for this reform has become heightened with the Supreme Court’s re-argument of Citizens United and the possibility that the ability of managers to spend corporate treasury funds will expanded markedly. In a world where corporations can spend an unlimited amount corporate treasury funds on federal and state elections, shareholders will need new protections to guard against self-interested political spending by corporate managers.

2) Zachary R. Calo (Valparaiso University School of Law ), Law, Language and Love: James Boyd White’S Living Speech: Resisting the Empire of Force, forthcoming in Journal of Law, Philosophy and Culture . The  abstract states:

This essay reviews James Boyd White’s Living Speech: Resisting the Empire of Force. Particular attention is given to exploring White’s claims about the relationship of law, language and love. The essay concludes by addressing questions concerning the sacral, even theological, grounding of law that emerge from text.

3)  Lawrence Rosenthal (Chapman University - School of Law), The Emerging First Amendment Law of Managerial Prerogative. The  abstract states:

In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney's office, were unprotected by the First Amendment because his expressions were made pursuant to his duties.... The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.

This article rejects the scholarly consensus on Garcetti. The critics' claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived, I will argue, because Garcetti is not properly understood as a whistleblower case. Ceballos did not take his case against the district attorney's office to the public; therefore his speech could not have advanced the public's understanding and evaluation of the district attorney's performance. Moreover, although the Court's opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law. Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment's commitment to free speech as a means of achieving political accountability - an understanding with powerful roots in First Amendment jurisprudence. The Court's opinion contains a sketch - concededly partial and somewhat obscure - of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions. This article endeavors to fill out the sketch.

The article begins with an exploration of Garcetti. Part I demonstrates that Garcetti essentially abandons the Court's prior approach to the First Amendment rights of public employees by embracing a new inquiry that focuses on an identification of the scope of legitimate managerial prerogatives. Managerial prerogative, in turn, ensures that political officials have effective control over the functioning of public offices - and therefore are fairly held politically accountable for the operations of those offices. Part I concludes with a consideration of the future of public employee speech litigation in light of the emerging law of managerial prerogative.

Part II considers the implications of this new law of managerial prerogative in another employment-related context - laws forbidding discriminatory harassment. There has been a powerful current of scholarly argument that the First Amendment places substantial limitations on the power of government to forbid sexually or racially harassing speech. At least four Members of the United States Supreme Court have expressed significant support for this view. Part II demonstrates that under the concept of managerial prerogative embraced by Garcetti, governmental power to forbid harassing speech in the workplace is largely unconstrained by the First Amendment.

In Part III, the article places Garcetti within the context of a broader trend in recent First Amendment jurisprudence. Part III sketches the emerging doctrinal framework of this new First Amendment law of managerial prerogative and then, to illustrate the character of emerging doctrine, applies this framework to institutions of higher education and the concept of academic freedom - an issue noted but set aside in Garcetti. Part III argues that the emerging First Amendment law of managerial prerogative permits public universities to regulate academic speech in a manner that is consistent with scholarly norms as a means of achieving legitimate institutional objectives.

4) Abraham Drassinower (University of Toronto - Faculty of Law ),  From Distribution to Dialogue: Remarks . on the Concept of Balance in Copyright Law,  34 J. Corp. L 991 (2009). The  abstract states:

Few propositions are more frequently asserted in contemporary copyright discussion than the proposition that copyright is a balance between authors and users - a balance (as some like to say) between the incentive to create and the imperative to disseminate works of authorship. This paper argues that the concept of balance cannot support the weight it is asked to bear in copyright jurisprudence, and that we should think of copyright less as a “balance” between authors and users than as a “dialogue” between authors and users. “Dialogue” is a metaphor more appropriate than “balance” to structure our interpretation of copyright law and of its purpose. The idea of dialogue presides over an interpretation of (a) copyright subject matter (i.e. the “work”) as a communicative act, (b) certain copyright exceptions as user's rights integral to the copyright system, and (c) the public domain less as a matter of values or weights to be placed on a balance, than as a site of, and condition for, a network of communicative acts in which both authors and users participate. In short, the point is that, at least in one of its fundamental determinations, the public domain is less a scope problem than a subject matter problem. Whereas the metaphor of balance orients contemporary copyright discussion towards a formulation of the public domain as a distributional scope issue, it would be more appropriate to deploy the concept of the work as a communicative act in order to characterize the public domain as a subject matter issue in dialogical terms. It is the commodification of the work, rather than the mere distribution of its commodified value, that is the fundamental obstacle in the way of a conception of the integral role of the public domain.

5) Kevin Outterson (Boston University School of Law), Christopher T. Robertson (Harvard Law School) and  David Orentlicher (Indiana University School of Law-Indianapolis), Physicians’ Brief in the Second Circuit Data Mining Cases (IMS V. Sorrell) on Behalf of Amici Curiae New England Journal of Medicine, Vermont Medical Society, Massachusetts Medical Society, New Hampshire Medical Society, National Physicians Alliance, and American Medical Students Association .  The  abstract states:

This is the “Physicians’ Brief” filed in the Second Circuit data mining cases (IMS v. Sorrell) on behalf of amici curiae New England Journal of Medicine, Vermont Medical Society, Massachusetts Medical Society, New Hampshire Medical Society, National Physicians Alliance, and American Medical Students Association. Data mining of prescriber-identifiable (PI) medical records offends the privacy of the physician, but also permits companies to identify particular patients against their wishes. Data mining assists drug companies in illegal off-label promotion by identifying both high and low prescribers for promotional attention. Data mining has also supported the promotion of dangerous drugs. In addition to the privacy concerns, these practices are dangerous and raise health care costs. The Vermont Prescription Privacy Law is part of a larger statutory framework of state and federal laws protecting medical privacy. Federal law has carved out a special role for state medical privacy laws, protecting them from federal preemption. Furthermore, the First Amendment does not protect speech when the underlying data was obtained illegally. Vermont satisfies the Central Hudson test and the Prescription Privacy Law should be upheld. The First Amendment does not require this Court to overturn the legislative determination by the elected government of Vermont, especially when the State has extensive experience as a health care payor and is well versed in cost control options. Moreover, the Prescription Privacy Law does not ban data mining, but leaves this important decision in the hands of the person best able to decide whether it helps the patient or not – the prescribing physician.

6) Renee Newman Knake (Michigan State University College of Law ),  From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Mass Media on Children by Looking to the Example of Violent Video Game Regulations, forthcoming in U. Tol. L. Rev. The  abstract states:

The dominant influence of mass media on children is recognized by experts across many disciplines including child development, communication theory, psychology, sociology and the medical profession. Numerous studies demonstrate potential harm to children from exposure to mass media and marketing sources. The prevalence of childhood obesity and increased violent behavior in adolescents are among the suggested negative effects. Nevertheless, courts have been reluctant to recognize such consequences, primarily on the basis of the First Amendment and free speech concerns. Indeed, in a significant line of cases the courts have invalidated every legislative effort to regulate children’s access to violent video games. This legal reluctance presents a major barrier to the real world application of and benefit from research conclusions regarding the impact of media violence and consumer culture on children. While research of this nature has supported attempts at industry self-regulation or voluntary compliance with ethical guidelines, such efforts have achieved little success.

The disconnect between law and social science has led scholars like Professor Barbara Bennett Woodhouse to propose a reframing of the issues. She calls for a paradigm shift from family law’s traditional approach of the parent-child-state triangle to recognize the influence of what she terms 'mass-media marketing.' She proposes a new 'a child-centered approach to environmental ethics,' or, in her words 'ecogenerism,' and suggests that those who advocate for protection of children from the harms of mass media and marketing have much to learn from the environmental law and ethics movement.

Woodhouse’s proposal offers an appealing perspective for those who support regulation of children’s access to harmful media. The real issue, however, is whether ecogenerism will evolve from academic theory to actual practice. This article tests her theory by revisiting the line of violent video game cases to evaluate whether her ecogenerist perspective can achieve any real change in the courts’ conclusions. Particular attention is devoted to challenges presented by First Amendment free speech protections, with a primary focus the Ninth Circuit’s recent decision in Video Software Dealers v. Schwarzenegger to invalidate a California statute prohibiting the sale or rental of violent video games to minors, a decision that Governor Schwarzenegger has petitioned the United States Supreme Court to review. While some speculate that the Supreme Court is unlikely to grant review given the uniform position of other courts on this issue, this article reveals that a ecogenerist perspective would contend that the Court ought to grant review precisely for that reason. Moreover, without a definitive ruling from the Supreme Court on the issue of whether extreme, graphic violence constitutes protected speech, lower courts likely will continue to strike down legislative restrictions on children’s access to violent video games notwithstanding the negative effects documented by the social science. Should the Court decline to take the case or uphold the Video Software Dealers statute, the article concludes by proposing recommendations for future research and regulatory efforts from an ecogenerist perspective.

7) Anver M. Emon (University of Toronto - Faculty of Law), “Pluralizing Religion: Islamic Law and the Anxiety of Reasoned Deliberation”, in After Pluralism (Courtney Bender and  Pamela Klassen, eds.), forthcoming from Columbia University Press. The abstract states:

For the liberally minded, religion is something that inheres in people, rather than an arena for reasoned deliberation. This essentialization arises in part from how an uncritical embrace of liberal tolerance as value-neutral covers the way in which liberal governance essentializes religion, and thereby marginalizes it from general debate. For Wendy Brown, who writes in a context of a liberal theory of governance, the conception of “the religious” in a discourse of tolerance is reductive, and will often blind others from understanding how members of a faith community understand both their God and their world through a thick, rational vocabulary founded upon religious traditions that either speak directly or are made to speak to issues affecting the public weal. It can and has contributed to a climate in which the religious is deemed to have little or no place in public debate and discourse, on either principled or pragmatic grounds (Brown, 4, 10, 24).

Those with a religious framework may not view their religious system as purely subjective, private and individual. Rather, they may rely upon it as a lens through which to view and understand their world. As such, to problematize liberal discourses of tolerance and religion will require us, in part, to understand how religious traditions such as Islamic law were not rarefied traditions, but instead offered a framework for understanding, characterizing, and ultimately ordering the world.

But accepting Brown’s critique can have anxiety-producing implications for the religiously minded who might not want to contend with the indeterminacy that comes with rendering religion a site of reasoned deliberation. Those with a religious framework may want their framework to be so determinate as to be outside the bounds of reasoned deliberation. Indeed, Roxanne Euben suggests that for Islamic fundamentalists, having a uniform set of guidelines aids in cementing an Islamic identity positioned against a hegemonic liberal West. Thereby, to undermine the rarified image of a religious tradition such as Islamic law may pose a threat to both liberals and Islamists whose agendas of governance and community identity benefit from the rarification of a tradition such as Islamic law.

Nonetheless, the fact remains that Islamic legal history is replete with theoretical inquiries into the nature of knowledge, the scope of moral agency and legal interpretation, and the authority of law. These inquiries are perhaps a product of the anxiety that comes with recognizing a religious tradition as a site of reasoned deliberation. This article provides a brief account of how premodern Muslim jurists theorized about the inevitable interpretivism in the juridical enterprise. The way in which they gave license to jurists to reason to conclusions of law raised fundamental questions of theology, moral agency, and legal authority.

8) Anver M. Emon (University of Toronto - Faculty of Law ), To Most Likely Know the Law: Objectivity, Authority, and Interpretation in Islamic Law , forthcoming in Hebraic Political Studies.  The abstract states:

This study focuses on the implications of interpretation on the objectivity and authority of Islamic law. Premodern Muslim jurists developed a jurisprudence of Shari‘a that acknowledged the inevitability of interpreting in the law. This should not be surprising if we assume legal systems generally require a degree of interpretive agency. The question for premodern Muslim jurists, though, was how to legitimate interpretive agency and offer standards of evaluation. As will be shown, Islamic jurists theorized about the authority of each interpretation in a system whose ultimate authority rests on a theological commitment to God as sovereign. The issues of objectivity and authority in the law are hardly unique to the Islamic legal tradition. Indeed, if there is a distinct contribution that this study offers, in addition to explicating the various Islamic legal theories, it is that however a legal system’s sovereign is understood, similar questions about objectivity and authority will arise in legal systems. Whether the sovereign is God or the state, the issue of interpretation remains of central concern. The ways in which both religious and secular legal scholars problematize objectivity and interpretation, I suggest, is not so different as to render “religious” legal systems different in kind to other systems.

9) Brian Leiter (University of Chicago Law School ), Foundations of Religious Liberty: Toleration or Respect?, The abstract states:

Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or in the moral attitude of tolerance of religion? I begin by explicating the relevant moral attitudes of “respect” and “toleration.” With regard to the former, I start with a well-known treatment of the idea of “respect” in the Anglophone literature by the moral philosopher Stephen Darwall. With respect to the latter concept, toleration, I shall draw on my own earlier discussion, though now emphasizing the features of toleration that set it apart from one kind of respect. In deciding whether “respect” or “toleration” can plausibly serve as the moral foundation for the law of religious liberty we will need to say something about the nature of religion. I shall propose a fairly precise analysis of what makes a belief and a concomitant set of practices “religious” (again drawing on earlier work). That will then bring us to the central question: should our laws reflect “respect” for religion” or only “toleration”? Martha Nussbaum has recently argued for “respect” as the moral foundation of religious liberty, though, as I will suggest, her account is ambiguous between the two senses of respect that emerge from Darwall’s work. In particular, I shall claim that in one “thin” sense of respect, it is compatible with nothing more than toleration of religion; and that in a “thicker” sense (which Nussbaum appears to want to invoke), it could not form the moral basis of a legal regime since religion is not the kind of belief system that could warrant that attitude. To make the latter case, I examine critically a recent attack on the idea of "respect" for religious belief by Simon Blackburn.

10) Daniel Augenstein (University of Edinburgh - School of Law), Religious Pluralism Versus Social Cohesion? Normative Fault Lines of Human Rights Jurisprudence in Europe.  The abstract states:

This essay explores the tension between religious pluralism and social cohesion in European human rights jurisprudence. Comparing the German, French, and British interpretation of the ‘social cohesion limitation’ of freedom of religion I argue that, at the national level, concerns for social cohesion stem from negative and defensive societal attitudes towards religious diversity that are difficult to reconcile with the normative premises of religious pluralism in a democratic society. The essay proceeds by analysing how two trans-national European courts, the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ), address the tension between religious pluralism and social cohesion identified at the national levels. While the ECtHR pursues a strategy of avoidance that fails to effectively scrutinise national social cohesion limitations of freedom of religion in the light of its own appraisal of religious pluralism, the ECJ must pursue a strategy of integration that confronts this tension in an autonomous way on the basis of the supra-national EU legal order. By way of conclusion, I outline such a strategy of integration that re-interprets the relationship between religious pluralism and social cohesion in European human rights jurisprudence through challenging the association of social cohesion with the containment or suppression of religious diversity.

11) Rachel M. Birnbach,Love Thy Neighbor: Should Religious Accommodations that Negatively Affect Coworkers’ Shift Preferences Constitute an Undue Hardship on the Employer Under Title VII?, The abstract states:

The Title VII duty to accommodate religious employees absent undue hardship is an important protection for many Americans. The U.S. Supreme Court first interpreted the religious accomomdation obligation in Trans World Airlines v. Hardison, 432 U.S. 63 (1977), where it held that any cost to the employer that was more than "de minimis" amounted to an undue hardship. But the Hardison Court also demonstrated concern about allowing a religious employee to have preferential treatment over his coworkers simply because the coworkers did not adhere to the same religion. Since Hardison, this concern has become an underlying principle for lower courts when determining whether an accommodation's negative impact on coworkers amounts to an undue hardship. But courts are in conflict over the scope of preferential treatment, stemming from their differing interpretations of Hardison and the breadth of its authoritative value. When faced with a religious accommodation that would impact the religious employee's coworkers with respect to scheduling, some courts have considered any negative impact on the other employees to be preferential treatment sufficient to show an undue hardship, regardless of whether the coworkers are contractually-entitled to their schedules. Other courts, however, require a more severe impact on coworkers' rights before they will consider an accommodation's impact on coworkers schedules to be impermissible preferential treatment. This Note argues against those courts that have found that imposing on shift preferences of coworkers, outside the context of a collective bargaining agreement, amounts to preferential treatment. It asserts that protecting the mere shift preferences of other workers effectively reduces the duty to accommodate to a level far below what Congress could have intended when it included the duty to accommodate religious employees under Title VII. The Note concludes that preferential treatment of the religious employee exists only when imposition on the coworkers creates an economic burden on the employer or would require coworkers to take on additional physically dangerous tasks.

12) Philip E. Graves (University of Colorado at Boulder - Department of Economics ), A Scientific Rationale for Belief in God? , 5 J. for Interdisciplinary Research on Religion and Science 193 (2009).  The abstract states:

This paper presents a concise scientific rationale for the existence of God. The works of Ray Kurzweil and the many other artificial intelligence researchers provide a backdrop to the central thesis. An entity (computers or humans, it not mattering which) will eventually approach all-knowing. How much time passes before this occurs is not important. All-knowing is likely to be all-powerful insofar as knowledge leads to power, as has been our experience. One would suspect that this would be inclusive of time travel. The methods by which knowledge grows require “seed” facts to begin working. The seed facts can easily be, and are likely to be, the sum of all human knowledge. This suggests that the entity will also be all-loving of His “ancestors” - God, coming at the end, but traveling to the beginning. Additionally, it is seen that the nature of human self-esteem implies that an all-loving God would be minimally intrusive, non-discoverable in the data of scientists. The typical objections to the existence of God are countered with plausible alternative interpretations within the model.

13) Pippa Norris (Harvard University - John F. Kennedy School of Government ), Why Do Arab States Lag the World in Gender Equality?, The abstract states:

Why do Arab states lag behind the rest of the world in gender equality? Social structural, cultural, and institutional accounts offer alternative perspectives. This study critiques the "petroleum patriarchy" thesis, presented in Michael Ross’s “Oil, Islam and Women” (2008), which claims that the structure of oil-rich economies directly limit the role of women in the paid workforce and thus also (indirectly) restrict women’s representation in parliament. In particular, Part I raises questions about the empirical evidence used by Ross, especially the selection of case-studies, the specification of the econometric models, and the lack of direct evidence for cultural values. Part II develops multilevel models demonstrating that religious traditions have a greater influence on attitudes towards gender equality and sexual liberalization than either labor force participation or oil rents. Part III then shows the impact of these cultural attitudes on the proportion of women in legislative and ministerial office. The conclusion summarizes the main findings and considers their implications.

 

Coalition Calls on Holder to Withdraw OLC Memo on Religious Grantees' Exemption from Non-Discrimination Rules

As reported in the Washington Post, on Thursday a coalition of over fifty religious, education, civil rights, labor, and health organizations submitted a letter to Attorney General Eric H. Holder asking him to withdraw a 2007 Office of Legal Counsel memorandum that presented what the coalition members assert was the deeply flawed conclusion that the Religious Freedom Restoration Act required federal agencies to categorically exempt religious organizations from federal nondiscrimination provisions otherwise applicable to grant program participants.

JFB

DC Circuit Panel Invalidates FEC Regs Restricting Nonprofit Groups’ Campaign Spending and Fundraising

In an opinion issued today in Emily’s List v. FEC, the D.C. Circuit has ruled that FEC regulations restricting how covered non-profit organizations can pay for election-related activities violated the groups’ First Amendment speech rights.  The relevant regs required groups such as Emily’s List, an organization which promotes the election of more women to public office, to use hard-money accounts to pay at least 50% of the costs of their generic get-out-the-vote efforts, voter registration activities, and communications that refer to a party without referring to a candidate. All of the costs of advertisements or other communications that refer to a federal candidate were also required to come from hard money donations, and the challenged regulations mandated that, if a solicitation for contributions indicated that the donated funds would be used to support or oppose the election of a clearly identified federal candidate, such donations will be considered 100% hard money and be subject to a $5000 cap.

Hat tip to How Appealing for link to the opinion. 

JFB

Jay Wexler on Upcoming Argument in Salazar v. Buono

On Huffington Post, Jay Wexler assesses the Establishment Clause issues raised by Salazar v. Buono. In Petitioner's merits brief, the Department of the Interior presents these questions to  the Court:

More than 70 years ago, the Veterans of Foreign
Wars (VFW) erected a cross in a remote area within
what is now a federal preserve as a memorial to fallen
service members. After the district court held that the
presence of the cross on federal land violated the Establishment
Clause and permanently enjoined the government
from permitting its display, Congress enacted legislation
directing the Secretary of the Interior to transfer
an acre of land including the cross to the VFW in
exchange for a parcel of equal value. The district court
then permanently enjoined the government from implementing
that Act of Congress, and the court of appeals
affirmed. The questions presented are:
1. Whether respondent has standing to maintain
this action given that he has no objection to the public
display of a cross, but instead is offended that the public
land on which the cross is located is not also an open
forum on which other persons might display other symbols.
2. Whether, assuming respondent has standing, the
court of appeals erred in refusing to give effect to the
Act of Congress providing for the transfer of the land to
private hands.

The case will be argued on October 7, 2009,

JFB

Turkey slams media conglomerate with $2.5 billion fine

Yikes.

The government says that's what the Dogan Media Group owes in back taxes, but observers both inside and outside of Turkey aren't convinced.

PM Erdogan has been urging citizens to boycott Dogan's holdings (which include CNN-Turk, and the top selling dailies Hurriyet and Miliet) ever since it was reported that government officials might have benefited from illegal action taken against a Germany charity.  Last February the company was hit with a $500 million fine, and according to one report, the 2.5 billion penalty this time around represents the group's entire worth.   

The action against Dogan comes just one month after a court in Istanbul closed two independent papers for publishing supposed PKK propaganda.  A third independent is under investigation for reporting on a plan allegedly involving members of the military to destabilize the government. 

Beyond the obvious free speech implications, the timing here is peculiar to me.  The EU is scheduled to issue its annual report on Turkey's membership bid on October 14, and concerns about government censorship have already proved a stumbling block in the EU's prior dealings with Turkey.  So why would Erdogan invite additional criticism now?

-Kathleen Bergin

Judge Blocks Disclosure of Referendum Signatures

Washington's public records act may violate the First Amendment to the extent it requires the disclosure of referendum petitions.  That was the conclusion Judge Benjamin Settle reached last week when he barred state officials from releasing the identity of voters who signed a petition seeking to repeal a newly enacted domestic partnership law.  Protect Marriage Washington, the group that brought the lawsuit, argued that the signatories could be subject to harassment if their names were released to the public and subsequently posted on websites maintained by gay rights supporters.  The state's attorney general promises to appeal. 

-Kathleen A. Bergin

update: Link to AG's motion seeking expedited review.

First Amendment Scholarship Update

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

1) Sylvie Bacquet (University of Westminster), Manifestation of Belief and Religious Symbols at Schools: Setting Boundaries in English Courts, 4  Religion and Human Rights 121 (2009), The abstract states:

Since the coming into force of the Human Rights Act 1998 on 2 October 2000, state schools as public authorities have been under an obligation to comply with the European Convention on Human Rights and Fundamental Freedoms, including the right to manifest ones’ religion and beliefs as laid out in Article 9 of the convention. When devising their uniform policies, schools are therefore required to accommodate religious and cultural diversity. However, the extent to which they are required to do so has given rise to much litigation and debate. This article considers some of the theoretical implications underpinning the debate on religious symbols and manifestation of belief at school. It looks at the dilemma between the legal obligation for schools to allow the expression of cultural and religious diversity yet maintain cohesion and protect children from factional pressures related to various belief systems. It examines the extent to which human rights law can help to resolve the issue and looks also at the way the Human Rights Act itself has emerged as a conduit for crises of religious and ethnic identity in contemporary society.

2) Neil R. Meredith and David B. Mustard (University of Georgia - C. Herman and Mary Virginia Terry College of Business - Department of Economics), A Postsecondary Revival.  The abstract states:

Using institutional and state-level data from the National Center for Education Statistics, we explore the degree to which enrollment grows from 1991 to 2005 in religiously affiliated post-secondary institutions relative to their counterparts. After controlling for institutional characteristics, we find that enrollment in religiously affiliated colleges and universities grows 25, 21, and 10 percent more for whites, blacks, and Hispanics, respectively, than institutions that have no religious affiliation. Because simply having a religious affiliation can have little or no bearing on an institution's policies and mission, we evaluate whether the intensity of an institution's attachment also affects enrollment gains. Enrollment gains in institutions in the Council for Christian Colleges and Universities (CCCU), for whom Protestant faith is a direct determinant of institutional mission, are significant. For example, after controlling for other factors total enrollment grows 14.5 percent, white enrollment grows 12.1 percent, black enrollment grows 35.5 percent and Hispanic enrollment grows by 22.8 percent relative to their Protestant peers.

3)  Douglas Laycock (University of Michigan Law School ),Why the Supreme Court Changed its Mind About Government Aid to Religious Institutions: It’s a Lot More than Just Republican Appointments, forthcoming in  B.Y.U. L. Rev. The abstract states:

Government aid to religious schools can be governed by either of two principles: no aid to religion, or no discrimination among schools. No aid dominated in the 1970s because of lingering anti-Catholicism, the perception that school aid was just a Catholic issue, and fear of undermining desegregation of public schools. No discrimination came to dominate after 1985 because both anti-Catholicism and the desegregation effort faded away; evangelicals and black parents switched sides; and free marketers joined in to make a broad coalition for aid to private schools. These changes reframed the issue as one of individual choice for many Americans, bringing the no-discrimination principle to the fore and pushing the no-aid principle to the background. This article briefly reviews the social changes that set up the doctrinal change.

4) Claus Hofhansel (Rhode Island College - Department of Political Science), Preferential Treatment of Religious Organizations and Discrimination Against Minority Religions in Europe. The abstract states:

Many European countries maintain a multi-tiered system of recognizing religions where some religious organizations enjoy a different legal status than others. Recently, such distinctions have come under pressure. This paper focuses on Austria, Germany and Switzerland. All three countries distinguish between religious communities with the status of corporations under public law and religious groups organized as private law associations. These three countries are generally grouped together as having quite similar religion-state institutions, yet they vary substantially in the number of religious communities with public law corporation status. In Switzerland four religious communities have this status, in Austria there are fourteen and in Germany 27. The paper seeks to explain this difference. Following Gill (2008) I argue that policy makers support religious freedom when it serves their interests. Furthermore, systems where the process of recognizing minority religions is highly politicized in the sense of requiring legislative votes or constitutional amendments are more closed than systems where the process has a legal administrative character in which administrators make decisions subject to court review.

5) Nelson Tebbe (Brooklyn Law School ). Privatizing and Publicizing Speech, 104 Nw. U. L. Rev.  Collogquy 70 (2009). The abstract states:

When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum, which the Supreme Court decided earlier this year, and Buono, which it will hear in the fall. In both cases, the government manipulated formal property rules in order to fend off constitutional challenges. In Summum, the government took ownership of a religious symbol in the face of a free speech challenge, while in Buono it shed ownership of land containing another sectarian symbol in an effort to moot an Establishment Clause problem. Although obvious differences separate the cases, they both raise the deeper question of whether and how governments ought to be able to structure private-law transactions with constitutional rules in mind. That issue, which cuts across a variety of legal fields, deserves more systematic attention.

6) Sonja West (University of Georgia School of Law), The Story of Us: Resolving the Face-Off between Autobiographical Speech and Information Privacy . The abstract states:

Increasingly more “ordinary” Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it.

In a prior article, I established that autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law. This article builds on my earlier work by addressing the emerging conflict between autobiographical speech and information privacy. Both interests foster personal autonomy and encourage participation in public debate, and both interests seek to give individuals the power to control if, when and how their personal information is shared with the world. The conflict between speech and privacy has proven to be a pervasive and especially difficult problem, and prior attempts to balance the two interests - through the lens of property or contract law - have failed.

In this article, I propose a new, workable framework to resolve the conflict by reexamining the tort of public disclosure of private facts. This analysis reveals that the current over-emphasis on whether the information disclosed was “newsworthy” is misplaced and likely unconstitutional. The tort’s protection of individual privacy, however, can be reconciled with the First Amendment by interpreting the “offensiveness” element to include an examination of the purpose of the disclosure. A number of courts have implicitly adopted this view and, in doing so, are reflecting community norms that disclosures made for sufficient justifications - such as sharing newsworthy information or, I submit, engaging in autobiographical speech - are not highly offensive. Disclosures made for purely voyeuristic reasons, however, are highly offensive.

This “justified disclosure” approach encompasses community norms and expectations in a way that is more predictable and fair than other proposed frameworks. It further promises to be applicable not just to the conflict between autobiographical speech and information privacy but to broader disputes involving privacy and speech.

7) John A. Humbach (Pace University School of Law), 'Sexting,' the First Amendment and Prosecuting Teens. The abstract states:

'Sexting' and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as many as 50%, having illegally received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions, and the statutory penalties are severe. Given the reality of changing social practices, mores and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur when governmental policies and initiatives built on past truths and values collide with new and unanticipated social phenomena.

The focus of anti-pornography enforcement in recent years has been the child pornography laws. The landmark cases of New York v. Ferber and Osborne v. Ohio have established and defined a categorical exclusion that denies First Amendment protection to sexually explicit visual depictions of minors. Even though Ferber and Osborne may not strictly speaking require a conclusion that sexting and other autopornography are unprotected speech, at least some lower courts and prosecutors appear to regard them that way.

By contrast, the language and reasoning of the more recent case of Ashcroft v. Free Speech Coalition gives strong reason to believe that the scope of the categorical exclusion for child pornography should be closely aligned with the governmental objectives that Ferber and Osborne relied on - which would mean constitutional protection for teen sexting and autopornography that occur on the teens’ own initiative. Ashcroft strongly implies, though does not quite say, that the categor¬ical exclusion should be limited to materials that are produced by means of criminal child abuse and exploitation. Also, current standards of strict scrutiny for content-based regulations, if applied, would probably prevent (on the present state of the studies and research) self-produced teen materials from being subsumed into the Ferber categorical exclusion. How this issue will be decided, however, remains to be seen.

8) Miguel E. Larios (The John Marshall Law School), We Got No Class: Retiring Tinker v. Des Moines Independent Community School District . The abstract states:

The First Amendment to the U.S. Constitution prohibits Congress from enacting laws abridging the freedom of speech, yet since educational opportunities during the colonial era were largely limited to private schools and tutors, the Framers could have hardly imagined how a free speech guarantee would apply to the Nation’s schoolchildren. Despite a long history of granting deference to public school officials, the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District held that public school students had a First Amendment right to wear black armbands in protest of the Vietnam War. Over the years, the Tinker decision has proved problematic, as evidenced by subsequent Supreme Court decisions that have largely limited Tinker’s core holding. Moreover, the cases relied upon by the Tinker majority do not support its broad proposition. For these two reasons, this article argues that the Tinker decision should be overruled.

Part I of this Article provides a brief history of student speech rights and the prelude to Tinker. Part II examines the Tinker decision and subsequent decisions concerning student speech rights. Part III argues that Tinker should be overruled and replaced with a more deferential standard for determining student speech rights. I conclude with a brief discussion of a post-Tinker world.

9) Ira S. Nathenson (St. Thomas University School of Law), Looking for Fair Use in the DMCA's Safety Dance, 3 Akron Intellectual Property J. 119 (2009). The abstract states:

Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ('DMCA') provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the 'third wheel,' the users of internet services. Even Senator John McCain - who in 1998 voted for the DMCA - wrote in exasperation to YouTube after some of his presidential campaign videos were removed due to take-downs. McCain asked YouTube to review take-downs targeting campaign videos before removing them. Unsurprisingly, YouTube declined in fear of losing its safe harbor.

This Article does not adopt McCain's suggestion that service providers engage in individualized review of campaign take-downs. But this Article takes extremely seriously an assumption underlying McCain's request, namely, that fair use might be better protected by the DMCA as it is currently written. This Article puts forth a 'fair-use friendly' way of reading the DMCA to better protect users of online services. As a starting point, as noted by the court in Lenz v. Universal Music, copyright owners must consider fair and other non-infringing uses before sending take-down notices. Expanding upon Lenz, this Article examines the structure of the Copyright Act and broader principles of procedural fairness, concluding that permitting copyright owners to obtain removal of fairly used materials would accomplish de facto ex parte seizures of speech. Accordingly, copyright owners must "stop and think" before sending take-downs.

Although a 'stop and think' rule will help to deter frivolous take-downs, some will still be sent. Helpfully, the DMCA gives users the right to get materials put back via counter-notice, but unfortunately, the scope of that right is frustratingly unclear. The statute indicates that a user must state 'under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.' Does that embrace only mistakes of fact, or also mistakes of law? Interestingly, the few authorities to address the question have done so only in passing, and even then, split on whether a mistaken view of fair or other non-infringing use qualifies as a basis for put-back. This Article seeks to answer that question. Looking to legislative history as well as the structure of the DMCA, this Article concludes that a copyright owner’s mistake of law - i.e., regarding whether the materials were fairly used or are otherwise non-infringing - must be a proper basis for put-back. Moreover, this Article rejects the suggestion that permitting fair use as a basis for put-back will lead to a tidal wave of meritless counter-notices. Any such concerns are more than adequately addressed by DMCA, which requires users who send counter-notices to expressly identify themselves, submit to jurisdiction, and possibly become targets for expensive copyright litigation.

10) John D. Inazu (Duke University School of Law ), The Strange Origins of the Constitutional Right of Association, forthcoming in Tenn. L. Rev..The abstract states:

Although much has been written about the freedom of association and its ongoing importance to the American experiment, much recent scholarship mistakenly relies on a truncated history that begins Roberts v. United States Jaycees, 468 U.S. 609 (1984), the case that divided constitutional association into intimate and expressive components and introduced the paradigm that continues today. Roberts’s doctrinal framework has been rightly criticized. But neither the right of association nor all of its doctrinal problems start with Roberts. The Court’s foray into the constitutional right of association began a generation earlier, in its 1958 decision, NAACP v. Alabama. This Article offers a new look at the Court’s initial approach to the right of association. I highlight three factors that influenced the shaping of association: (1) the conflation of rampant anti-communist sentiment with the rise of the civil rights movement (a political factor); (2) infighting on the Court over the proper way to ground the right of association in the Constitution and the relationship between association and assembly (a jurisprudential factor); and (3) the pluralist political theory of mid-twentieth century liberalism that emphasized the importance of consensus, balance, and stability (a theoretical factor). I suggest how these factors shaped a right of association with an ambiguous constitutional anchor and an ill-defined doctrinal framework. Despite its shortcomings, the right of association quickly took hold in legal and political discourse and handed the Court a resource that has arguably become more responsive to political pressure than constitutional principle. Part of that whimsicality stems from the Court’s reformulation of the right of association in Roberts. But Roberts cannot bear all of the blame. If today’s freedom of association is less than we might like it to be, the roots of its problems may lie in the political, jurisprudential, and theoretical factors present at its inception.

11) James Cleith Phillips (University of California, Berkeley - School of Law) and Edward Carter (Brigham Young University), Oral Argument in the Roberts Court: A Qualitative and Quantitative Analysis of Individual Justice Behavior. The abstract states:

This is the second in a series of articles by the authors examining U.S. Supreme Court oral argument from both qualitative and quantitative perspectives. The first article examined how information seeking and the quantity of verbal activity has changed from the 1960s to the present, and that research sought to determine causes of Justices‘ behavior during oral argument.1 This article builds on that research by zeroing in on just the Justices of the Roberts Court to determine if their levels of information seeking and word counts are predictive final vote on the merits. Whereas the first article only looked at First Amendment-related cases in order to ensure ideological salience, this study uses random sampling to increase the ability to generalize the results. Content analyzing 57 cases and over 13,000 sentences from 2004-2009, this study found that for three of the Justices the difference of level of information seeking between two sides in a case predicts their eventual vote, and for five of the Justices the disparity between word counts for the petitioner and respondent foreshadow voting on the merits. Additionally, the authors looked at the tone and style of each current Justice on the Roberts Court in order to create a typology describing each, with quotes from oral argument transcripts providing relevant examples. This is the first known study to look at individual Justice behavior during oral argument and seek to predict each Justices‘ voting based on that behavior.

12) Wibren van der Burg and Frans W.A. Brom (Erasmus University Rotterdam- School of Law) , In Defense of State Neutrality. The abstract states:

Most discussions of neutrality focus on the liberal tradition as it has developed in the USA. In this article we defend an approach that finds its inspiration in the Dutch tradition. In one respect, our theory of neutrality is more restricted than the American liberal positions. Three categories of the good may be distinguished: goods, the good life, and the good society. In a liberal political theory the state cannot be neutral regarding conceptions of goods or regarding conceptions of the good society, but it should be neutral regarding conceptions of the good life. This form of neutrality is, however, only a derivative prima facie norm. In a second respect, our theory of neutrality is broader than the usual liberal positions. Neutrality may be seen as a standard not only for the input of the procedure, but for all aspects of the political process. We illustrate our approach with an analysis of the German discussion on crucifixes in classrooms.

13) Kristen M. Formanek , Note - There’s “No Such Thing as Too Much Speech”: How Advertising Deregulation and the Marketplace of Ideas Can Protect Democracy in America, 94 Iowa L. Rev. 1744 (2009). The introduction states: 

During election time, American television viewers face an onslaught of campaign advertising from both ends of the political spectrum. Some advertisements carry a candidate’s specific endorsement, others attack opposing candidates, and still others focus strictly on issues. Recent legislation has targeted this last type—issue advertising—due to its possible undue influence on democratic elections. Issue advertising includes ads that focus on a particular issue, rather than naming a political candidate, and these ads often urge voters to contact their senator or local congressman to recommend a specific political action. Issue ads are controversial because they might subconsciously sway voting behavior. As a result of this alleged corruptive potential, the Bipartisan Campaign Reform Act (“BCRA”) prohibits corporations and labor unions from sponsoring issue advertisements thirty days before a primary election and sixty days before a general election. Political-equality theorists and First Amendment activists have criticized section 203, and in 2007, this section provided a focal point for the U.S. Supreme Court in FEC v. Wisconsin Right to Life (“WRTL II”). In June 2007, a divided Court issued an opinion in WRTL II, and the First Amendment emerged as victor.  In a plurality opinion that signals a shift toward a less-regulated campaign-finance scheme, the Court found section 203 unconstitutional as applied to the ads in question.  According to the Court, section 203 infringed on WRTL’s free speech rights as protected under the First Amendment.

This Note advocates deregulating political advertising and trusting American voters. In WRTL II, the Court emphasized the First Amendment’s important place in politics, yet section 203 still exists untouched. Since the Court only found section 203 unconstitutional as applied to WRTL’s specific advertisements, it remains unclear how much speech really is too much speech. Congress or the Supreme Court must take action to fix this problem. In doing so, both have much to learn from prior decisions of the Federal Communications Commission (“FCC” or “the Commission”) and the Supreme Court itself, as these decisions show a historic pattern of deregulation and a growing faith in the marketplace of ideas. Part II provides background on the political tension surrounding section 203 of the Bipartisan Campaign Reform Act and the Court’s difficulty defining “express advocacy.” This Part also describes the factual and procedural context of WRTL I and II. Part III discusses the importance of issue framing in the political-advertisement context; this Part illuminates the perceived, but not actual, collision of two core democratic values—political equality and freedom of speech—and attempts to reframe democratic integrity within the First Amendment. Part IV works to further reconcile these two viewpoints in the context of FCC regulations and Supreme Court jurisprudence and concludes that section 203 and similar political-advertising restrictions greatly infringe on political speech. The government must remain true to its core First Amendment principles and trust America’s voters and the already-functioning information marketplace. Part IV also analyzes the administrative and judicial evolutions of thought pertaining to the First Amendment, including the rejection of a strict political-equality rationale and the acceptance of the marketplace-of-ideas concept. The FCC discussion begins with the advent of radio and ends with the repeal of the Fairness Doctrine. The Supreme Court analysis begins with selected cases dating back to 1957 and finishes with the Court’s decision in WRTL II. Finally, in Part V, this Note reemphasizes the Supreme Court’s failure to articulate a clear standard in the realm of issue advertising. Since voters ultimately determine the outcome of elections—regardless of money and advertising—the government should abandon regulations that restrict freedom of speech and instead, defer to the marketplace of ideas.

JFB

ACLU Seeks to Halt Mississippi’s Funding of Religious Presentations at Teen Abstinence Education Summit

On Wednesday last week, the ACLU of Mississippi and the ACLU Reproductive Freedom Project filed a complaint seeking an injunction to halt the use of state funds to support abstinence-only education initiatives in which overt religious teaching takes place. The complaint cites the failure of the state of Mississippi to respond to an ACLU letter detailing how speakers at the May, 2009 state-funded abstinence-only teen education summit had interjected  religious content and what were identified as Christian themes into the event’s presentations. The press release describing the predicate for the filing of the complaint states: 

The 2009 summit featured religious themes and overtly Christian messages, including a lengthy presentation about the Ten Commandments by Judge John N. Hudson of the Adams County Court in Natchez, MS. Judge Hudson told the audience, “Abstain, God says, from promiscuous sex – thou shall not commit adultery. But why? Is not God being a killjoy? Did He not create this great gift which is so good and wonderful? Why would He tell us not to do it? He’s not. He’s telling us that He created this great and wonderful gift for a special and unique committed relationship that is to last forever.” The program also included several prayers and a performance to gospel songs by the Pilgrim Rest Mime Ministry.

A link to video of 2009 summit sessions is available via the Mississippi ACLU website.  To compound the Establishment Clause concerns presented by the teen summit, the ACLU press release highlights that the effectiveness of abstinence only education has been questioned by recent research, noting:

A 2007 congressionally mandated study found that teenagers who had taken abstinence-only courses were just as likely to have sex at the same mean age as other teens. Alternatively, studies show that curricula that stress waiting to have sex while providing information about effective contraceptive use can significantly delay the initiation of sex, reduce the frequency of sex and the number of sexual partners and increase condom or contraceptive use among sexually active teens.

JFB

Pew Survey Examines Americans' Perceptions about Islam and Discrimination Against Muslims In U.S.

This week the Pew Forum on Religion and Public Life and the Pew Research Center for People and the Press released the results of a survey they had conducted this August in which they asked 4013 adults to address their views about Islam and their perceptions about discrimination against Muslims in America.The survey found that 58%of respondents believed Muslims faced a lot of discrimination, identifying gays and lesbians as the only other minority group subject to greater discrimination. Younger people, those ages 18-29, saw the most severe problem with discrimination with 73% of those in that group answering “yes” to the question, “Is there a lot of discrimination against Muslims?’. (On a  related note, today’s Washington Post reports on how the September 11 anniversary revives American Muslims’ apprehensions about a possible backlash against them.)

Two thirds of non-Muslim respondents to the Pew survey reported that they perceived Islam as very different or somewhat different from their own faith.  Similar perceptions about the degree of divergence between the faith of respondents and other faiths were identified as to Buddhism (60%), Mormonism (59%), and Hinduism (57%).  Persons who saw other faiths as similar to their own were correspondingly more likely to report positive views of those other faiths. The survey also found that 25% of persons who reported attending religious services at least once a week felt that they were part of a religious minority. Twenty nine per cent of white evangelical Protestants who were regular churchgoers described themselves as part of a religious minority.

In response to questions about perceptions of Islam as a violent faith, 45% of those surveyed saw Islam as no more likely to encourage violence,  but 37% did express such a view.  Forty five per cent of those question indicated that they personally knew a Muslim, a factor that decreased the likelihood of identifying Islam as a violent faith. Among respondents, blacks  were more like to know a Muslim (57%) than were whites (44%) or Hispanics (39%).  The number of responses reflecting a view of Islam as encouraging violence was actually higher in the 2009 results than had been the case in a 2002 Pew survey. When asked to identify the Muslim term for God, 53% could answer “Allah”, and 52% could correctly identify the Koran as the Islamic holy text. However, only 41% of respondents could offer correct responses to both basic questions.

JFB

Willamette College of Law to Host Symposium on the Future of the First Amendment

The Symposium announcement states:  

The Future of the First Amendment symposium will explore various developments in First Amendment law and jurisprudence that have occurred over the past 10 years and what those changes bode for the future interpretation and application of the rights contained in that amendment. Nationally recognized scholars and experts will explore topics that include government secrecy; access to government information; the regulation of private expression in government workplaces, schools and forums; the regulation of the internet; the government's use of religious discourse and displays; and the faith-based initiative.

Erwin Chemerinsky, founding dean of the University of California-Irvine School of Law, will present the keynote address.Judge Marsha S. Berzon of the U.S. Court of Appeals for the Ninth Circuit will present the luncheon address.

The event is co-sponsored by the Willamette Center for Religion, Law and Democracy and the Willamette Law Review.

Friday, October 16, 2009
8 a.m. to 4:45 p.m., reception to follow
Paulus Lecture Hall, Willamette University College of Law

For more information or to register for the event, contact Reyna Meyers at rmeyers@willamette.edu.

 

San Francisco Ordinance Restricting Sale of Tobacco Products Upheld Against First Amendment Challenge

As reported on How Appealing, Wednesday the Ninth Circuit rebuffed a tobacco industry First Amendment challenge to San Francisco’s ban on  the sale of tobacco products in city drugstores.  In a non –precedential memorandum opinion, the Court found  no basis for invalidating the law as imposing an unconstitutional burden on tobacco companies’ expressive rights, writing:

San Francisco Ordinance 194–08 limits where cigarettes may be sold; it doesn’t prevent plaintiff from advertising. Even assuming it incidentally restricts plaintiff’s advertising in a way that wouldn’t be permissible as a direct regulation of advertising, that’s not enough. “[E]very civil and criminal [regulation] imposes some conceivable burden on First Amendment protected activities.” Arcara, 478 U.S. at 706.

Neither does the ordinance have “the inevitable effect of singling out those engaged in expressive activity.” Id. at 704, 707. Of the three groups “singled out” by the ordinance—pharmacies, smokers and cigarette companies—only the cigarette companies are even arguably engaged in expressive activity.

And even if the ordinance did have the inevitable effect of singling out expressive activity, “a differential burden . . . is insufficient by itself to raise First Amendment concerns.” Leathers v. Medlock, 499 U.S. 439, 452 (1991). The burden must be “directed at, or present[] the danger of suppressing, particular ideas.” Id. at 453. No such danger is present here. The censorial motive plaintiff  attributes to defendants is always present when the government restricts sales of a product. That can’t be sufficient. Cf. 44 Liquormart, 517 U.S. at 508–12; Lorillard, 533 U.S. at 550.

The San Francisco Chronicle notes Walgreens has challenged  the ban  in state court, arguing that  the ordinance’s sales limitations discriminate against free-standing drugstores when  supermarkets and  retailers with pharmacies are allowed to sell tobacco products.

JFB

 

Questioning at CItizens United Argument Seen as Telegraphing Grim Prognosis for Challenged Limitations on Corporate Election Spending

Reports from today’s Citizens United re-argument from the New York Times and Scotusblog see the bulk of the questions as forecasting that Congressional authority to limit corporate spending on candidate elections may be unlikely to survive. On Election Law Blog Rick Hasen does suggest that at least a few of the Justices could be receptive to a ruling that simply finds video-on-demand beyond the reach of the McCain Feingold limitations.  In a valuable recent article, Hasen uses NAMUDNO and Citizens United to analyze the circumstances in which the Roberts Court can be expected to be receptive to a constitutional avoidance argument when confronted with a challenge to congressional authority.   

JFB 

 

Students in Breckinridge County Spared Socialist Indoctrination; Offered Salvation Instead

"Local control" is a big deal to school officials in Breckinridge County, Kentucky, which is why instead of allowing parents to opt their children out of the Obama speech earlier today, they required them to opt-in by providing written notice that their children had permission to watch.

What they apparently don't require is parental consent to take the kids to a Christian revival and have them baptized into the church.

Last month the football coach arranged for a school bus to transport about 20 players to his church were 8 or 9 of them participated in the sacrament.  At least one parent didn't know anything about it, and was under the impression that the kids were going to have a steak dinner and listen to a "motivational speaker." 

But hey, no harm no foul, right.  The trip was completely voluntary, so it's not like the kids felt any pressure to conform . . . on a field trip, with the team, led by the coach . . . and the district superintendent.   

-Kathleen Bergin

Selective Sensitivity in Outcry about Potential Indoctrination in President’s Speech to Schoolchildren?

Amidst the coverage of negative reaction to President Obama’s broadcast speech to American public school students, NPR reported yesterday that Barbara Cargill of the Texas State Board of Education had expressed concern about the broadcast putting objecting parents in a difficult position:   "If they opt their children out, they're going to feel ostracized. They're going to have to leave the comfort of their classroom to be dismissed to a gym." One wonders if Ms, Cargill’s concern about the ostracizing effect of having to opt-out would arise when other school rituals, such as the Pledge of Allegiance, create dilemmas for children and parents that may not want to participate in the Pledge on religious or ideological grounds.
Ms. Cargill has expressed apprehensions about school indoctrination before during her service as Board member, previously focusing on how, in her view, teaching of evolution without identifying what she asserts are “weaknesses” in Darwinian evolutionary theory could inhibit critical thinking by students. On her website, she writes:

The debate about whether to teach evolution’s scientific strengths and weaknesses presents an incredible opportunity for good science instruction that will develop great thinkers. Having taught biology for many years, I assure you that high school students are smart, savvy, and curious. A sound teaching strategy is to allow them to discuss multiple aspects of controversial subjects. For example, when evidence for universal common ancestry in the fossil record is taught (i.e. scientific strength), then the contradictory evidence showing the huge gaps of missing transitional fossils in the record must also be presented (i.e. scientific weakness). We must educate our students -- not indoctrinate them by letting them hear only one side of an issue.

Ms. Cargill has not identified potential indoctrination concerns in the teaching of classes on the Bible in Texas schools pursuant to a statute that has created many implementation questions for school districts around the state.  Ms. Cargill has endorsed the use of a Bible literacy curriculum prepared the National Council on Bible Curriculum in Public Schools.  This curriculum, however, has drawn repeated criticism for its promotion of Christianity, and its use has been suspended in one Texas school district after its constitutional infirmities were brought to light in litigation.   

JFB