First Amendment Law Prof Blog

Compromise Reached on Terms of Proposed Federal Media Shield Law

The Washington Post reports today that the Obama administration and Congress have reached a compromise that may allow proposed federal media shield legislation to become law. The President had been concerned about how the legislation could affect national security cases and criminal prosecutions.  As revised to address national security case concerns, the legislation eliminates the use of a balancing test to determine if the government needs access to journalists’ source information when the government has demonstrated that source “is necessary to prevent or mitigate a terrorist act or identify a perpetrator,” according to the Post account.  When source information is sought as part of a criminal investigation of leaked classified data, the information will be available only if the government demonstrates by a preponderance of the evidence that the material is needed to avert likely significant harm to national security.The revised legislation will also offer shield protection to persons who have the "primary intent . . . to disseminate to the public news" from the "inception of the newsgathering process," a definition that would appear to reach freelance writers, unpaid contributors to local news media, and bloggers. However, the coverage terms exclude “agents of foreign powers,” members of terrorist organizations, and those providing material support to terrorist organizations.

JFB

 

The French Effort to Differentiate Religions from Cults

Slate’s Explainer offers a brief examination of the claimed legal authority recently used by the French government to pursue claims of wrongdoing against the Church of Scientology.  French authorities’ concern about groups considered “cult-like movements” prompted the National Assembly to form the Parliamentary Commission on Cults in 1995. The government has had foreseeable difficulty defining what groups should be the focus of concern and, according to the Explainer, currently describes “cult-like movements” as organizations that make unreasonable financial demands on members, seek to cut members off from their families, and discourage political participation.  The Explainer noted that a 1995 special parliamentary commission listed 173 groups, including Jehovah's Witnesses and Scientologists, as exhibiting cult-like characteristics. One named group, identified as adherents of Anthroposophy, later successfully sued the principal author of the commission’s report for defamation. Germany also exhibits great skepticism about Scientology, refusing to recognize it as a religion and instead categorizing it as a business. 

JFB  

French Branch of Church of Scientology Found Guilty of Committing Fraud and Commerical Harassment

As reported by the LA Times, the New York Times and CNN, a French court has found the Church of Scientology guilty of "organized fraud" and imposed fines of 600,000 euros on the Church's French branch. Several leaders of the group were also given suspended sentences for their roles in pressing complaining members to enroll in high-priced purification rituals and to purchase vitamins, pharmaceuticals, and other materials that were described as necessary for spiritual progress. The three judge Correctional Court panel declined to order that the Church's operations in France be shut down as the prosecuting attorney in the case had urged, but did order the Church to publicize the verdict and the evidence presented to support it so as to warn current and potential members about what had been  uncovered. A spokesperson for the Church decried the verdict as representing "a modern Inquisition" and asserted that the Church would appeal, possibly seeking relief in the European Court of Human Rights.   

JFB 

First Amendment Scholarship Update

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

1) Timothy Zick (William & Mary Law School ),Property As/And Constitutional Settlement, 104 Nw. U. L. Rev. --- (2010). The abstract states:

This Article addresses the extent to which public officials can or should attempt to settle constitutional claims and concerns by privatizing, taking, or otherwise disposing of public properties. This practice, which the Article calls settlement-by-disposition, raises fundamental questions regarding the nature of constitutional liberties and the scope of governmental control over public properties that are critical to their effective exercise. Settlement-by-disposition has gained considerable attention recently, in large part owing to efforts by local and federal officials to settle Establishment Clause controversies by selling, taking, and otherwise disposing of public properties. But settlement-by-disposition is a much broader concern. It has also affected speech and assembly rights, as officials have increasingly privatized or otherwise disposed of public forum properties such as streets, sidewalks, and parks. Although the historical connection has not generally been made by courts or commentators, settlement-by-disposition was actually a central tactic in the campaign of massive resistance to racial integration. During the civil rights era, public officials disposed of public parks, pools, and schools, often in an effort to thwart desegregation. This Article applies the lessons of the civil rights era to settlement-by-disposition in contemporary First Amendment contexts. It develops a framework for assessing the constitutionality and propriety of settlement-by-disposition. The framework is based, appropriately, on a property metaphor. The subject properties are critical constitutional assets held in trust for the benefit of the public. The Article argues that public officials (and, in some cases, their successors in interest) owe duties under the trust of fair dealing, preservation, and compliance with constitutional covenants that attach to and run with the land. Ultimately, they are obligated to enter constitutional rather than nakedly political settlements. In general, the Article contends that settlement-by-disposition ought to be reviewed skeptically by courts and used sparingly by public officials.

2) Matt A. Barreto  and Karam Dana (Univ. of  Washington, Seattle), The Political Incorporation of Muslims in America: The Role of Religiosity in Islam. The abstract states:

Previous scholars have argued that Islam as a religion and a culture is incompatible with liberal, democratic American values. Not only is Islam inconsistent with the West, but it poses a direct conflict according to some scholars. This viewpoint has been popularized in American and European media and by government officials who declare fundamentalist Muslims as enemies of freedom and democracy. However, there is no evidence that the grounds of conflict are based on religious ideology. Are the most devout Muslims really opposed to political incorporation in the U.S., or are other traditional non-religious factors such as socioeconomic status and acculturation more important in understanding political alienation? To date, nearly every study of Islam and Western values has been qualitative, anecdotal or philosophical in nature, leaving most questions unanswered, at least empirically. Using a unique national survey of Muslim Americans, we find that more religiously devout Muslims are significantly more likely to support political participation in America - in contrast to prevailing wisdom. We conclude that there is nothing inconsistent with Islam and American democracy, and in fact, religiosity fosters support for American democratic values.

3) Mary Anne Franks (University of Chicago Law School),  Sexual Harassment 2.0.   The abstract states:

Cyber sexual harassment is a growing phenomenon for which there is no clear legal remedy. This is due to an outdated conception of sexual harassment that recognizes a legal harm only when the action and the effect occur in the same space. This Article proposes a two-space theory that recognizes that the action and the effect of sexual harassment can occur in two different spaces, an increasingly common reality in the Internet age. The approach suggested in this Article entails separating the theoretical question of harm from the practical question of liability: the space of the effect should govern the harm inquiry, and the space of the action should govern the liability inquiry. If the space in which the harassment occurs is not traditionally protected by sexual harassment law, but produces effects in a space that is, it should be legally recognized as sexual harassment. Liability for the harassment should attach to the agent with effective control over the space in which the harassment occurred. In the context of cyber sexual harassment, website owners are the relevant agents of effective control and as such should be held liable. The approach suggested by this Article addresses a serious social harm by providing an incentive for website owners to self-regulate, resolving most cyber sexual harassment without resorting to intrusive litigation or invasive tracking measures.

4) Victor C. Romero (Pennsylvania State University - Dickinson School of Law), Of Hope and Humility: Christian Realism, Immigration Reform and Executive Leadership. The abstract states:

Drawing upon President Barack Obama’s admiration of Reinhold Niebuhr’s work, this Essay outlines a Protestant, Christian realist approach toward immigration policy, with specific focus on the role of the executive in providing providential leadership. Embracing realism in its political, moral, and theological dimensions, Christian realism offers a pragmatic, yet optimistic, alternative to secular liberalism’s faith in reason by striving instead to adhere to God’s guidance on matters, taking into account the fundamentally flawed nature of man. The specific policy prescriptions described here mirror the twin virtues of Christian realism by promoting the hope in pursuit of the peaceable kingdom and the humility to acknowledge the fallibility of man in crafting the less-than-perfect, penultimate answer. Opportunities for exercising effective executive leadership will be discussed, from negotiating the proper role of states and localities to the promotion of comprehensive immigration reform, preferring immigrant integration to stringent law enforcement as the better means to further hospitality to the stranger.

5) Mary Beth Leidman and Bradley Wiggins (Indiana University of Pennsylvania), Developing a Paradigm for Describing Diversity and Multiculturalism in Modern America. The abstract states:

The purpose of this discussion is to redirect contemporary academic discourse regarding multiculturalism. The field needs well-defined paradigms to accurately describe contemporary American cultural experience and reality in the United States. In recent decades there has been an opening up of the society but not to the extent that the pundits might assume. This discussion focuses on the idea that American society has not become multicultural although there is diversity in the public sphere of American society. In reality multiculturalism is a misnomer. The idea of self-contained cultural neighborhoods with all the inherent characteristics remains valid, with few exceptions. A paradigm/model has been designed to graphically display a theoretical construct of these which illustrates and offers further explanation concerning the oft utilized terms of diversity and multiculturalism. The proposed paradigm represents in visual terms that diversity is two-dimensional and multiculturalism is three-dimensional. The dimensions of diversity include a superficial even if sincere sharing of more outward cultural expressions. Multiculturalism represents a deeper sharing of cultural expressions. There must be the existence of a slightly permeable membrane that exists between cultures for the multicultural experience to exist. This membrane allows for interaction among visitors and residents, but does not permit the meaningful sharing of language, customs, food, or cultural traditions outside the perceived confines of the specific insular cultural group. The notion of polycentric multiculturalism, posited to provide a way in which to make multiculturalism more accessible on global terms, serves to differentiate itself from liberal pluralism. It achieves this by embracing a radical reformulation of urban and community structures at the level of neighborhood and nation-state (Stam, 2000; Bodziany, 2008; Aldrige, 2007). Defining Intracultural Traits (DITS) define the cultural neighborhood and include (1) unity of language characteristics (2) similarity in food (3) participation in church, religion or other ideologically based behavior and, (4) comfort level within the customs of a specific group. The paradigm shows a unique perspective pertaining to the relationship of societal diversity to actual multiculturalism. Future study will include an empirical and qualitative assessment of the paradigm’s authenticity.

6) Rita Marie Cain (University of Missouri at Kansas City - Bloch School of Business & Public Administration),  Embedded Advertising on Television: What Would Don Draper Do? . The abstract states:

The Federal Communications Commission (FCC) uses the term “embedded advertising” to describe both product placement and product integration.This paper first discusses the current statutory and regulatory framework applicable to embedded advertising. Then the paper discusses various reform positions that were articulated in comments to the FCC in a recent rulemaking docket. This analysis includes discussion of the first amendment protections for advertising and for the creative works in which the integrated marketing is embedded, since the advertising is difficult to separate from its entertainment platform. The paper concludes with recommendations for next steps by the FCC and industry.

7) Rita Marie Cain(University of Missouri at Kansas City - Bloch School of Business & Public Administration), Embedded Advertising: A New Vehicle for Teaching Classic Legal Environment and Business Law Content.  The abstract states:

This paper analyzes these expanding marketing practices relative to numerous concepts that are taught in business law or legal environment courses. After discussing ways to introduce the embedded advertising concept to students, the paper discusses administrative law and statutory interpretation applicable to embedded advertising, first amendment protection for embedded advertising, employment law concepts and consumer law.

8) Jonathan Griffiths (Queen Mary University of London, School of Law), Is There a Right to an Immoral Trade Mark?, published in , P. Torremans, ed., INTELLECTUAL PROPERTY AND HUMAN RIGHTS (2008). The abstract states:

This chapter considers the influence of the right to freedom of expression under Article 10 of the European Convention on Human Rights upon United Kingdom and European trade mark law. It reviews a series of recent cases concerning the absolute ground for refusal of registration on grounds of immorality or public policy in which decision-makers have made explicit reference to Article 10. It demonstrates that it is now widely accepted that any refusal to register a mark on public policy/morality grounds constitutes an interference with the applicant's right to freedom of expression and therefore calls for justification under Article 10. It argues that Article 10 ought in fact to have a very limited role in such cases.

9)  Li-Ann Thio (National University of Singapore (NUS) - Faculty of Law), Courting Religion: The Judge between Caesar and God in Asian Courts, Singapore Journal of Legal Studies (July 2009). The abstract states:

Religion is almost universally guaranteed as a fundamental liberty and human right, although the scope of religious freedom and understandings of religious identity within secular democracies are informed by the specific model of constitutional secularism practiced. States often evidence an ambivalent attitude towards religion, treating it as Law's Other, that is, a competing normative system which has regulative force on social behaviour and influences conceptions of citizenship and affective loyalties. This article examines the interpretive method of two secular Asian courts, which are meant to be bastions of impartiality, in negotiating questions of religious identity and religious freedom. It analyses the judicial weighting and balancing of relevant competing factors and considers the varied understanding of what secularity requires and whether the concerns of religious minorities are adequately safeguarded within secular polities where religion remains an important social force.

10) Michael A. Zuckerman (Cornell University), Constitutional Clash: When English-Only Meets Voting Rights , 28 Yale L. & Pol’y Rev. --- ( 2010). The abstract states:

This paper examines the constitutional vulnerability of English-only laws as they relate to voting materials. The topic is timely in light of King v. Mauro, a recent Iowa decision that drew national attention by interpreting a state statute to bar non-English voter registration materials. In short, this paper argues that English-only policies as applied to voting are constitutionally suspect. After providing background about the English-only movement and the recent high-profile Iowa decision, the paper considers complex and uncertain areas of constitutional law, outlining how one might argue that English-only laws violate the Fourteenth and Fifteenth Amendments to the U.S. Constitution and the federal Voting Rights Act. In the end, the nation has an important choice to make: encourage participation in the electoral process, or use voting rights as means to disenfranchise language minority citizens. If the nation continues down the latter path, civil rights lawyers must be ready to respond.

JFB

Head of Military Religious Freedom Foundation Files Complaint Alleging Former Military Chaplain Uses Prayer to Incite Violence

The Texas Lawyer (via Law.com) reports that Mikey Weinstein, founder of the Military Religious Freedom Foundation, has filed a petition in Texas state court seeking to enjoin Gordon Klingenschmitt from allegedly urging his followers to injure Weinstein and his family. Citing Klingenschmitt’s use of passages from Psalm 109 such as “let his days be few” and “let his posterity be cut off,” Weinstein charges the minister seeks to incite listeners to harm him. Weinstein asserts that these calls have led to shots being fired at his home and his lawn being set on fire.  Weinstein’s efforts to end Christian proselytizing by military chaplains and the use of sectarian prayer language at military events have put him at odds with Klingenschmitt.  MRFF has also urged that the religious organization to which Klingenschmitt belongs, the Chaplaincy of Full Gospel Churches, no longer be allowed to endorse military chaplains in light of the group's refusal to abandon proselytizing and abide by military guidelines protecting religious liberty.  As University of Michigan First Amendment scholar Douglas Laycock noted in the Texas Lawyer, Weinstein’s claim would seem unlikely to meet the incitement standard set forth in Brandenburg v. Ohio, 395 U.S. 444(1969).

JFB

First Amendment Scholarship Update

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

1) Frederick Schauer (University of Virginia School of Law),  Facts and the First Amendment - The 2009 Melville Nimmer Memorial Lecture, forthcoming in 57 UCLA L.  Rev. --- (2010). The abstract states:

A pervasive problem in public discourse is the seemingly increasing prevalence in public debate of demonstrably false factual propositions, such as the non-American birth of President Obama, the prior knowledge of President Bush of the September 11 attacks, the intentional creation of AIDS by physicians and pharmaceutical companies, the non-existence of the Holocaust, and the predictive accuracy of astrology. Yet although this phenomenon is a serious problem for public discourse, it is one that the First Amendment tradition fails to address. In relying on the implausible epistemic claims of “marketplace of ideas” and “search for truth” rationales for freedom of speech, the First Amendment tradition is embarrassed by the way in which falsity thrives even under conditions of widespread freedom of speech. Moreover, a close look at the landmarks of the free speech literature from Milton’s Areopagitica to the present shows that the problem of factual falsity was simply not the concern of those who created and fostered our free speech tradition. This is not to say that widespread government regulation of non-commercial factual falsity is wise or constitutionally permissible. It is to say, however, that making progress against the problem of public falsity will require recognizing that free speech doctrine and principles are only a small corner of a wise communications policy, and that such a policy will attempt to deal with widespread factual falsity in ways that the free speech tradition cannot.

2) Dayna B. Royal (Cumberland School of Law), Jon & Kate Plus the State: Why Congress Should Protect Children in Reality Programming. The abstract states:

As "reality" programming continues to increase in popularity, so too does the number of children living out their young lives in front of the camera. Yet the current legal regime is inadequate to protect these children, whose parents have betrayed their best interests for fame and fortune. This article argues that Congress should enact a statute providing a regulatory sliding scale based on age that would largely prohibit children from participating in reality programming. A federal statute would bring clarity to this unsettled area of the law while ensuring that parents and programming executives cannot skirt individual state laws and continue to exploit the nation’s children.

To this end, Part II identifies the various harms that reality programming causes and argues that participating in reality programming is detrimental both to the individual children and to society. Part III surveys the current legal landscape by examining the federal law on point--the Fair Labor Standards Act--and numerous state laws, focusing heavily on those states with historic ties to the entertainment industry. Part III concludes that the current legal regime is unable to remedy this emerging problem and argues that state law is not the best vehicle to do so. Part IV posits that a national solution is necessary, canvasses the options, and then argues in favor of a federal statute providing a sliding scale of prohibition for children in reality programming. Finally, Part V maintains that such a statute will not violate the Constitution because it is within Congress’s Commerce Clause authority and violates neither parents’ due process rights nor the First Amendment.

Children deserve to experience the full richness of childhood and not to labor as spectacles for public amusement. A federal statute regulating employment in reality programming would prevent the sale of children’s privacy to the highest bidder.

3) Jesse P. Basbaum, Note - Disproportionate Sentencing for Possession of Child Pornography: Witchcraft Trials of the Modern Age?, forthcoming in 61 Hastings L.J. --- (2010). The abstract states

This Note identifies several infirmities of United States Sentencing Guideline section 2G2.2, the sentencing scheme for possession of child pornography. The production and web-based dissemination of child pornography images has increased substantially over the past decade. The Department of Justice has aggressively prosecuted these crimes under the rationale that (1) possession of child pornography leads to contact offenses, (2) demand drives supply, and (3) the mere availability of an image or video constitutes continued and indirect abuse of the child depicted. In light of these and other concerns, Congress has enacted dramatic increases in the potential sentences for possessors of child pornography. In this Note, I will argue that the Sentencing Commission should amend the guidelines for possession of child pornography because, (1) the guidelines are the result of 'morality earmarks' rather than the product of empirical or academic study; (2) the empirical evidence calls into question the asserted link between possession of child pornography and future sexual assaults of children; and (3) by failing to consider the nature of internet downloading, most of the 'enhancements' are actually part of the core offense of possession. Several federal district courts have cited these and other deficiencies in their decisions to sentence defendants below applicable guideline ranges. Though the Supreme Court’s recent decisions in Rita and Kimbrough permit trial courts to disregard sentencing guidelines that lack empirical basis, most courts still rely heavily on the guidelines to impose lengthy sentences. Accordingly, I propose that the Sentencing Commission amend section 2G2.2 in a manner that reflects the tenuous connection between possession and contact offenses, and in light of the realities of Internet use.

4) Robert J. Bloomfield (Cornell University - Samuel Curtis Johnson GraduateSchool of Management), Protecting Children in Virtual Worlds Without Undermining Their Economic, Educational and Social Benefits, 66 Wash. &  Lee L. Rev. --- (2009). The abstract states:

Advances in virtual world technology pose risks for the safety and welfare of children. Those advances also alter the interpretations of key terms in applicable laws. For example, in the Miller test for obscenity, virtual worlds constitute places, rather than "works," and may even constitute local communities from which standards are drawn. Additionally, technological advances promise to make virtual worlds places of such significant social benefit that regulators must take care to protect them, even as they protect children who engage with them.

5) Robert F. Blomquist (Valparaiso University School of Law), Beyond Historical Blushing: A Plea for Constitutional Intelligence, forthcoming in 2009 Cardozo L. Rev. de novo 244. The abstract states:

In this Essay, Professor Blomquist responds to the remarks of Seth Tillman, which critiqued an article by Professor Geoffrey Stone on whether or not the Founders contemplated a “Christian Nation."

We Americans—We the People—relish our national Constitution and delight in the game of constitutional interpretation. The game of American constitutional interpretation recalls the complexity and nuance of other great games like the Glass Bead Game and Chess. In never-ending iterations about the meaning of our Constitution we pontificate and debate about intellectual antecedents, historical background, provisions of the Constitution, ratification, contemporary exigencies, and much more.

Seth Barrett Tillman has provided constitutional law “gamers” with two hard-hitting legal think pieces—one, a full-blown article in Penn State Law Review, the other, an abridged version of that article in Cardozo Law Review De Novo—evaluating and critiquing Professor Geoffrey R. Stone’s Melville B. Nimmer Memorial Lecture and Essay published in the UCLA Law Review. In this modest and concise Essay, I seek to praise Tillman’s intellectual virtues (while empathizing, in part, with Professor Stone). My pivoting gambit and larger purpose, however, is to urge legal scholars, jurists and lawyers to strive for what I call contextual constitutional intelligence in playing the vital game of interpreting our American Constitution.

N.B.  Professor Blomquist is responding to Seth Barrett Tillman, Blushing Our Way Past Historical Fact And Fiction: A Response to Professor Geoffrey R. Stone's Melville B. Nimmer Memorial Lecture and Essay, 114 PENN ST. L. REV. 1 (forthcoming 2009).  Tillman’s article is a response to Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. REV. 1 (2008).

6) Brenna Bhandar (University of Kent, Canterbury), The Ties that Bind: Multiculturalism and Secularism Reconsidered, 36 Journal of Law and Society 301 (2009). The abstract states:

The article examines contemporary controversies over the rights of Muslim women to wear various forms of the veil, in both France and the United Kingdom and argues that despite their apparent differences as political ideologies, both multiculturalism and secularism are deployed as techniques to govern difference. It traces a common philosophical lineage of these two ideologies, and their shared genealogical relationship to the subject of Enlightenment and post-Enlightenment thought. Drawing on Marx and Hegel, it argues that at the core of secularism and multiculturalism there lies the germ of a subject and law formed through a concept of culture that was to a great degree indivisible from religion. While secularism ostensibly decouples culture from religion to produce a common political culture, and multiculturalism purports to accommodate a diverse range of cultural and religious practices, both fail to accommodate difference that stretches the bounds of a citizen-subject defined according to Anglo-European norms of culture, which implicitly includes Christianity.

7) László Blutman (University of Szeged - Faculty of Law),  In Search of a Legal Definition of Religion, published in Americana, Vol. V, No. 1 (Spring 2009). The abstract states:

In recent decades, the problem of defining religion for legal purposes has become more acute with the growth in the number of nontraditional religions, religious sects, and belief systems in American society. The spread of heterogenous but possibly religious phenomena has multiplied the problems flowing from the lack of clear definitional guidance on the conceptual boundaries of religion. On what criteria can a federal court apply legal provisions relating to religious matters if no definition of religion is available‘ Legal theorists have made serious attempts to provide an adequate definition of what religion is for First Amendment purposes, and the Supreme Court’s and other federal courts’ efforts have been manifested in a string of cases in the context of the First Amendment as well as in statutory interpretation. These efforts should not be seen as entirely fruitless, but they have not provided a generally accepted legal definition of religion. The aim of this paper is to identify the causes of this failure. The first two parts of this paper are expository in nature, summarizing the judicial and theoretical efforts to define religion in U.S. constitutional and federal law. This may provide an appropriate basis, in the third part, both for outlining the underlying and dominant contradictions of this definitional problem and for presenting some suggestions to overcome these contradictions.

JFB

Alaska Legislators Express Support for Extending State Child Porn Law to Cover Anime

The Anchorage Daily News reports the legislators in Alaska have expressed receptivity to a state prosecutor’s call to extend the state’s child pornography law to anime or other computer generated cartoons containing sexually explicit depictions of children.  Although the U.S. Supreme Court's ruling in   Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), found that virtual child pornography could not be prohibited, the PROTECT Act of 2003, 18 U.S.C. 1466A, criminalizes the possession, sale, distribution, and receipt of obscene visual depictions of children, including drawings or cartoons.  The statute specifically states: “It is not a required element of any offense under this section that the minor depicted actually exist.”  These provisions of the PROTECT Act were upheld against a First Amendment challenge in U.S. v. Whorley, 550 F.3d 326 (4th Cir. 2008), reh’g and reh’g en banc denied, 569 F.3d 211 (4th Cir. 2009). In Whorley, the Fourth Circuit noted that the statute’s terms restrict its application to obscene material, differentiating it from the provisions invalidated in Free Speech Coalition. There the law had attempted to criminalize the possession of pornographic but non-obscene material that did not involve the depiction of real children. In U.S. v. Handley, 564 F. Supp.2d 996 (S.D. Iowa 2008), the district court did invalidate as overbroad one portion of the PROTECT Act that authorized application to depictions of "what appeared to be a child" and did not limit its application to images that were made using actual minors or that were obscene.  As discussed in the news account, it is unclear if the contemplated Alaska legislation would limit its reach to obscene cartoons or seek to prompt reconsideration of the Free Speech Coalition ruling by prohibiting non-obscene images that involve no actual children.   

 

JFB  

  

 

Scalia Out of Touch on the Meaning of the Cross

I'm not sure what's worse: telling Muslims, Jews and other non-Christians they should like it when someone "honors" their dead with a Christian cross, or telling Christians that the cross doesn't really represents Christ's execution and gift of eternal salvation.

Either message is bad, but there are undercurrents of both in the troubling exchange that took place between Justice Scalia and ACLU attorney Peter Eliasberg last week in Salazar v. Buono.  Here's the excerpt from Adam Liptak's piece in the NY Times:

Mr. Eliasberg said many Jewish war veterans would not wish to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”

Justice Scalia disagreed, saying, “The cross is the most common symbol of the resting place of the dead.”

“What would you have them erect?” Justice Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”

Mr. Eliasberg said he had visited Jewish cemeteries. “There is never a cross on the tombstone of a Jew,” he said, to laughter in the courtroom.

Scalia can't have it both ways.  The cross in this context either represents something sacred to Christians (which opens up the establishment clause problem), or it does not (in which case Christians might wonder whether Scalia has lost his mind).

Of course, his "half-moon" comment didn't buy him much credibility to begin with . . . but I digress.

-Kathleen Bergin

 

   

First Amendment Scholarship Update

Here is this week's collection of new scholarship on First Amendment topics: 

1)Prakash Shah (Queen Mary University of London, School of Law ), Coping with Super-Diversity in Law: Thoughts on the British Scene, in RELIGION AND LAW IN MULTICULTURAL SOCIETIES( Rubya Mehdi, Gordon R. Woodman, Erik Reeberg Sand and Hanne Petersen, eds)(2008). The abstract states:

With a focus on Britain, this paper discusses some theories of legal pluralism in light of Western multicultural societies. It then explores the increasing salience of religion within Britain and how religion has become the subject of recent legislation and court decisions. It is argued that the quest for a space for Muslims within British multiculturalism explains this increasing focus on religion. The paper then goes on to provide a critique of the focus on religion which, it is argued, leads to only a partial recognition of the complexity of legal pluralism.

2) Scott C. Idleman (Marquette University),  A Legal Perspective on Conflicts Involving Religious Communities . The abstract states:

Within any given state or society, numerous factors can influence both relations among religious communities and relations between these communities and other institutions or value systems, including scientific communities, schools of economic or legal thought, and various ideological or political movements. Though some of these factors obviously arise from within the beliefs and structures of the religions themselves, many arise from the history, political culture, and legal framework of the state or society in which a given religious community is situated. This paper discusses the potential role of law and the legal system in influencing these relations and addressing conflicts among these communities and institutions. After explaining in general terms the relevance of a legal perspective to the assessment and resolution of such disagreements, the paper specifically examines characteristics of the constitutional framework and political culture of the United States that appear to prevent or minimize conflicts involving religious communities.

3) Eric Heinze (Queen Mary University of London, School of Law), Cumulative Jurisprudence and Human Rights: The Example of Sexual Minorities and Hate Speech , 12 International Journal of Human Rights --- ( 2009). The abstract states:

Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex or religion, etc. They often omit express reference to sexual minorities. Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association. Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. In this chapter, that approach is challenged. Hate speech bans suffer from inherent flaws. They either promote discrimination by limiting the number of protected categories, or, by including all meritorious categories, would dramatically limit free speech. Sexual minorities within longstanding, stable and prosperous democracies should generally enjoy all human rights, but should not necessarily seek the protections of hate speech bans.

4) Eric Heinze (Queen Mary University of London, School of Law), Wild-West Cowboys Versus Cheese-Eating Surrender Monkeys: Some Problems in Comparative Approaches to Hate Speech,  in
EXTREME SPEECH AND DEMOCRACY, (James Weinstein & Ivan Hare, eds.,)(2009). The abstract states:

All European states prohibit some form of hate speech. US law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.

5) Lawrence Rosenthal (Chapman University - School of Law), First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech . The abstract states:

Scholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers.

This article offers a challenge to the purposivist account. It begins, in Part I, by considering the claims of the purposivists in light of the original meaning of the First Amendment. Although there is something of a scholarly consensus that the intentions of those who framed the First Amendment are impossible to determine, in recent years, originalist thinking about constitutional interpretation has made a dramatic move away from a jurisprudence based on the intentions of the framers or ratifiers and toward the original public meaning of constitutional text as the touchstone for constitutional interpretation. An inquiry into original public meaning offers a bit more clarity about the original meaning of the First Amendment that original-intention originalism was able to generate, and offers some reason to question the purposivist account.

Part II examines the purposivist account of First Amendment jurisprudence as it has evolved since the framing, illustrating the role of governmental purpose in First Amendment doctrine by considering a yet-unresolved issue that has divided the lower courts and commentators – the extent to which the First Amendment constrains the ability of the government to undertake investigations on the basis of the protected speech of the investigation’s target. Terrorism investigations, for example, can be triggered when the government becomes aware of political extremists as a consequence of their statements expressing approval of jihadist violence, or their attendance at events that condone such conduct, even though these activities are constitutionally protected under contemporary doctrine. The purposivist account suggests these “First Amendment investigations” must clear the hurdle of strict scrutiny because, in the absence of sufficient standards to limit the discretion of investigators, they are unacceptably likely to be infected by governmental hostility toward the target’s ideology. Indeed, history suggests that the risk that an impermissible motivation may accompany such investigations is quite real. Yet, subjecting the government’s decision to undertake an investigation to strict scrutiny is inconsistent with fundamental principles of First Amendment doctrine, and encounters powerful pragmatic objections as well. An inquiry into the extent to which the government has inhibited protected speech is an inevitable incident of any attractive and coherent account of the First Amendment; and because investigations do not pose the same threat to free speech as prohibitions, they do not require the same degree of scrutiny. The interaction between the First Amendment and criminal investigations inevitably involves an assessment of the justification for the investigation and the extent to which it inhibits constitutionally protected activity – precisely the kind of pragmatic balancing that the purposivists denounce.

Part III considers the pragmatic structure of First Amendment doctrine. Part III contends that current doctrine reflects the centrality of pragmatic balancing, with the metaphor of a free marketplace of ideas providing the essential metric to govern the balancing inquiry. Regulations likely to distort the marketplace of ideas impose particularly heavy costs to First Amendment values, thereby requiring particularly powerful justifications. To be sure, the purposivists are right that balancing can be dangerously indeterminate, but First Amendment doctrine handles this objection with a highly structured approach to balancing based on a series of categorical judgments about the likelihood that a challenged regulation will distort the marketplace of ideas.

Structured balancing, however, breaks down when it becomes difficult to assess the likelihood that challenged government conduct will suppress disfavored speech or speakers. A prime of example of this problem is presented by First Amendment investigations, which can be performed in a responsible and discrete fashion unlikely to chill the exercise of First Amendment rights, or in an abusive and oppressive fashion. When it comes to First Amendment investigations, ad hoc balancing is the only tenable approach.

6) Kristina M. Campbell ( University of Denver Sturm College of Law), The High Cost of Free Speech: Anti-Solicitation Ordinances, Day Laborers, and the Impact of "Backdoor" Local Immigration Regulations. The abstract states:

This paper examines how local efforts to regulate the activities of immigrants, while not regulation of immigration per se, can have a substantial and detrimental effect on the civil rights of immigrants and Latinos. The paper discuss how day laborers - individuals, mostly Latino men, who seek short-term employment in public fora - are routinely targeted by state and local governments, federal immigration authorities, anti-immigrant activists, and the general public as a symbol of the employment of unauthorized aliens. Even though many day laborers are lawfully present, or have authorization to work in the United States, due to the high-profile nature of their job search - which usually involves waiting on corners in front of big-box stores or in nearby labor centers for a potential employer to offer them work - day laborers are assumed to be “illegal aliens” and, therefore, implicitly deserving of the derision and scrutiny that accompanies such a categorization. As such, day laborers are a visible and vulnerable population, subject to discriminatory treatment on the basis of real or perceived immigration status on a daily basis.

However, despite the abundance of public scorn and contempt directed at day laborers, federal courts have uniformly upheld their right to solicit employment in public fora and have repeatedly struck down anti-solicitation ordinances designed to chill their First Amendment free speech rights. This paper argues that these decisions - while significant and important holdings that reaffirm the fundamental right of all persons, even those with unpopular messages, to speak and be heard - are largely pyrrhic victories for the day laborers themselves, who remain subject to discrimination, wage-theft, and abuse by unscrupulous employers because of the inherent vulnerability of day work. It then discusses the ways in which day laborers have empowered themselves - not only by challenging the anti-solicitation ordinances directed at them, but by organizing to ensure better wages and working conditions - and explores possible ways in which the First Amendment litigation successes day laborers have enjoyed can translate into a more practical, every day benefit for the men and women working “on the corner.”

7) Adrian Vermeule ( Harvard Law School),The Invisible Hand in Legal Theory. The abstract states:

Theorists have offered invisible-hand justifications for a range of legal institutions, including the separation of powers, free speech, the adversary system of litigation, criminal procedure, the common law, and property rights. These arguments are largely localized, with few comparisons across contexts and no general account of how invisible-hand justifications work. This essay has two aims. The first is to identify general conditions under which an invisible-hand justification will succeed. The second is to identify several theoretical dilemmas that arise from the structure of invisible-hand justifications and that cut across local contexts. These are the dilemma of norms, which arises because norms of truth-seeking, ethical action or altruism can both promote and undermine the workings of the invisible hand; the dilemma of second best, which arises because partial compliance with the conditions for an invisible-hand justification can produce the worst of all possible worlds; and the dilemma of verification, which arises where theorists claim that an invisible-hand process functions as a Hayekian discovery procedure - a claim that is empirical but pragmatically unverifiable.

8) Richard L. Aynes  (The University of Akron School of Law ), Enforcing the Bill of Rights Against the States: The History and the Future, 18  Journal of Contemporary Legal Issues --- (2009). The abstract states:

This article traces, in broad strokes, the history of the disputes about whether or not the Bill of Rights can be enforced against the states.

It begins with pre-Fourteenth Amendment claims and recounts the actions of the 39th Congress: The Freedman’s Bureau, the Civil Rights Act of 1866, and the Fourteenth Amendment. Several speeches on the Amendment from the Congressional elections of 1866 are utilized, including those of Section 1 author John Bingham, Congressmen Columbus Delano, Rutherford B. Hayes, James Wilson, James Garfield, and Senator John Sherman, as well as Democrats who participated in what has been termed the most racist national political campaign in U.S. history.

By looking at the political shift begun in 1871 and the “long depression” (Panic of 1873), the article documents the reasons why the public understanding of the amendment can best be found during the period prior to ratification. There is a brief examination of Slaughter-House, Cruikshank, Hurtado, and Twinning. It suggests that one of the key mistakes in current scholarship is the assumption that certain rights could only be enforced by the state or the national government. Borrowing from Madison’s concept of “double security” and Pomeroy’s then contemporary treatise, it suggests that many rights can be protected by both.

Utilizing numerous articles from Harper’s Weekly, free speech is used as an illustration of the common, public understanding of the rights the public believe they had and intended to secure as a result of the war. The article explores common mistakes in confusing claims of substantive rights with non-discrimination and equality, noting that the two approaches often overlapped.

Later sections examine the debates involving Charles Fairman, W. W. Crosskey, Justice Frankfurter, Justice Black, Raoul Berger, Michael Kent Curtis, George Thomas and Bryan Wildenthal. The current perils of trying to rely exclusively upon incomplete and inaccurate newspaper data bases is documented.

New light is thrown upon the role of Senator Jacob Howard and his relationship Senator Fessenden, Chair of the Joint Committee on Reconstruction. Further, responding to another article in the symposium, this work concludes that the only real contemporaneous conflict between enforcing the Bill of Rights against the states and the grand jury was in the single state of Kansas.

Finally, there is a brief examination of the future of scholarship upon these issues.

9) Michael R. Gordon (University of North Carolina School of Law), The Best Intentions: A Constitutional Analysis of North Carolina’s New Anti-Cyberbullying Statute , forthcoming in North Carolina Journal of Law and Technology.  The abstract states:

In its 2009 session, the North Carolina General Assembly tackled the issue of cyberbullying. While the term “cyberbullying” has a great many definitions, it is most commonly thought of as the Internet analog of the bullying that takes place in schools and playgrounds. However, because cyberbullying extends to wherever a child has a computer or cell phone, it has a much wider reach than old-fashioned bullying. Ultimately, the General Assembly passed an act, House Bill 1261 (HB1261) titled “Protect Our Kids/Cyber Bullying Misdemeanor,” which criminalizes certain types of behavior that it classifies as cyberbullying. In the same legislative session, the General Assembly also passed the School Violence Prevention Act to cut down on traditional bullying in the state’s public schools, demonstrating a clear intent to protect children. Unfortunately, HB1261 has a severe danger of chilling free expression for minors and adults alike. If traditional First Amendment jurisprudence is applied to the Internet and to this law, HB1261 is likely to be found an unconstitutional restriction on free speech. Part I of this Recent Development will define the term “cyberbullying.” Part II will explain why the issue is so problematic from a social and political aspect and show the widespread effects and give real-life examples of cyberbullying. Part III will discuss strategies used for combating cyberbullying in the past. Part IV will explain HB1261 as it was passed by the North Carolina General Assembly as well as some of the changes that were made throughout the legislative process. Finally, Part V will attempt to answer the constitutional questions posed by the new law.

10) David Rolph (University of Sydney - Faculty of Law ), Showing Restraint: Interlocutory Injunctions in Defamation Cases, 14 Media and Arts Law Review 255 ( 2009). The abstract states:

The proper test to be applied to the grant of an interlocutory injunction to restrain the publication of defamatory matter is rarely litigated at the highest appellate level. The High Court of Australia's decision in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 provided an opportunity to clarify the applicable principles and potentially to end the division of judicial and academic opinion between what has been characterised as the 'rigid' and the 'flexible' approaches to such relief. This article analyses the reasoning in A.B.C. v O’Neill. It questions whether it can be properly claimed that general equitable principles apply to the grant of injunctions in defamation cases when, in substance, the approach of the majority in A.B.C. v O'Neill appears to treat defamation as a special case. Beyond an engagement with the principles governing injunctive relief in defamation cases, this article argues that A.B.C. v O'Neill raises further, difficult issues of principle, such as the value to be ascribed to freedom of speech; the meaning of ‘trial by media’; the role of reputation in defamation law; and the emerging tension between injunctions to restrain the publication of defamatory matter and invasions of privacy.

11) Diane Alferez Desierto (Yale Law School ), Restriction and Rhetoric: A Critique of the Constitutional Prohibition Against Foreign Ownership in Philippine Mass Media , forthcoming in Journal of Applied Economy. The abstract states:

The total prohibition against foreign ownership of Philippine mass media exemplifies a broader polemic on nationalism - as a legitimate priority for constitutional protection, as opposed to being an appealing mass strategy for political rhetoric. Within this theoretical setting, I propose a differentiated analysis of the issue of foreign ownership prohibition in mass media. I draw three (3) brief lines of critique against the total prohibition of foreign ownership of Philippine mass media. First, I dispute the traditional “public interest” justification for barring any form of foreign ownership in mass media in the Philippines, showing that the fear of “foreign influence” over media content is dependent on an asserted political truth that is in no way self-evident, much less materially relevant from apparently (and already) "internationalized" Philippine media practices. Second, I question the implicit assumption that foreign ownership restrictions improve economic growth through wholly-owned Filipino companies, showing that there is no strict causal nexus between total exclusion of foreign ownership and the improvement of shareholder value of Philippine mass media companies. In fact, as many empirical studies affirm, at least some degree of foreign ownership, even in media sectors, has tended to improve domestic economic growth in developing countries, through the infusion of necessary capital and the dismantling of monopolistic structures.

Third, and most crucially, I argue that the constitutionalization of the complete prohibition against foreign ownership merely creates a convenient ideological cover that locks in specific and entrenched oligarchic interests which have long since dominated Philippine mass media. Instead of being a significant constitutional policy, “nationalism” acquires disutility through its reduction to mere inflammatory political rhetoric, as in the case of the foreign ownership prohibition in mass media. The latter not only stifles open competition in providing the service of access to information, but more problematically, denies genuine contestation in a fully democratic marketplace of ideas envisioned in the 1987 Philippine Constitution. By pre-committing the Philippines to an absolute and total constitutional prohibition against foreign ownership of mass media, the 1986 Constitutional Commissioners inadvertently achieved perverse results antithetical to the goals of national development and social equality. Thus, in order to avoid this disingenuous locking in of special interests in Philippine mass media in the guise of nationalist rhetoric, I advocate a de-constitutionalization of the total prohibition of foreign ownership in Philippine mass media and advertising, in order to turn the issue over to more flexible and open legislative processes of speech and debate, and concomitantly, to cyclically-repeated exercises of public auditing.

Part I juxtaposes the constitutional and legal framework of foreign ownership with the present structure of Philippine mass media ownership, pointing out key political and legal institutions that have traditionally protected specific family or oligarchic interests in Philippine mass media. Part II discusses public interest, economic, and sociological lines of critique against the constitutional prohibition against any foreign ownership in Philippine mass media. Part III then argues the proposal for de-constitutionalization, and concludes that the presence or extent of any foreign ownership restriction in Philippine mass media can be better debated, vetted, and adjusted through the dynamic interaction between legislative controls and the unprecedented expansion of judicial review under the 1987 Philippine Constitution.

12) Lyrissa Barnett Lidsky (University of Florida - Levin College of Law), Anonymity in Cyberspace: What Can We Learn from John Doe? . The abstract states:

This Article examines the evolution of the law governing libel suits against anonymous “John Doe” defendants based on Internet speech. Between 1999 and 2009, courts crafted new First Amendment doctrines to protect Internet speakers from having their anonymity automatically stripped away upon the filing of a libel action. Courts also adapted existing First Amendment protections for hyperbole, satire and other non-factual speech to protect the distinctive discourse of Internet message boards. Despite these positive developments, the current state of the law is unsatisfactory. Because the scope of protection for anonymous Internet speech varies greatly by jurisdiction, resourceful plaintiffs can make strategic use of libel law to silence their critics. Meanwhile, plaintiffs who are truly harmed by cybersmears will find little effective recourse in libel law. Though disheartening, the current state of the law may be a testament to the difficulty of balancing speech and reputation in the Internet age.

13) Sonia Katyal (Fordham University School of Law), Trademark Intersectionality, forthcoming in
UCLA Law Review. The abstract states:

Even though most scholars and judges treat intellectual property law as a predominantly content neutral phenomenon, trademark law contains a statutory provision, Section 2(a) that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous,” a provision that has raised intrinsically powerful constitutional concerns. The constitutional tensions surrounding Section 2(a), invariably, affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a certain product or corporation within the marketplace of goods, it largely underestimates the more complex role that trademarks play within the marketplace of ideas. Conversely, by only taking into account a brand’s expressive implications, the provisions governing scandalous, disparaging and immoral matter fail to substantively address the source-identifying functions that these marks often serve.

This Article starts from the premise that the best way to balance the tension between these two perspectives is to focus on the foundational role of the government in regulating the dual norms of both commerce and communication in trademark law. Borrowing from insights from critical race theory and anti-discrimination law, I argue, in this Article, that we need to grapple with the creation of a new kind of intersectionality among cultural symbols - an intersectionality that stems from the interaction of a trademark’s economic, commercial, and cultural identities. This project requires us to reexamine the very nature of the trademark itself. While most scholars classify trademarks as private goods, I argue that they operate much more like other public goods, a point that the laws of trademark often overlook, and which sets the foundation for the constitutional difficulties that pervade trademark analysis. By studying how intersectionality might help to resolve the multifaceted role that trademarks inhabit, we also, in turn, refashion the notion of intersectionality itself so that it takes a fuller account of the role of commodification in affecting the governance of identity within the commercial and political marketplaces of speech.

14) Sarah Ludington (Duke University School of Law ),  The Dogs that Did Not Bark: Academic Freedom, Tenure, and the Silence of the Legal Academy During World War II . The abstract states:

During World War II, the legal academy was virtually uncritical of the government’s conduct of the war, despite some obvious domestic abuses of civil rights, such as the internment of Japanese-Americans. This silence has largely been ignored in the literature about the history of legal education. This Article argues that there are many strands of causation for this silence. On an obvious level, World War II was a popular war fought against a fascist threat, and left-leaning academics generally supported the war. On a less obvious level, law school enrollment plummeted during the war, and the numbers of full-time law professors dropped by half. Of those professors “laid off” during the war, many took employment in government agencies and thus effectively silenced themselves. Finally, the American Association of Law Schools had only adopted a strong position on academic freedom and tenure in 1940. The commitment to academic freedom and tenure was insecure in many institutions and was only weakened by the severe economic strain of the war. To illustrate the effect of these larger forces, this Article tells the stories of five professors who criticized domestic policy during the war and the institutional consequences of their dissent. Of those professors, only one - a tenured professor at New York University - was fired during the war. While the basic building blocks of legal academies are the same today as they were in World War II, other factors such as strong institutional commitments to academic freedom and tenure, a robust First Amendment, and economic prosperity have significantly changed the roles that law professors are empowered to play in society, most significantly as the watchdogs of government.

15) Charles W. Collier (University of Florida), Meaning in Law: A Theory of Speech. The book description states:

Despite widespread admiration for the First Amendment's protection of speech, this iconic feature of American legal thought has never been adequately theorized. Existing theories of speech proceed on the basis of legal doctrine and judicial decisionmaking, social and political philosophy, or legal and intellectual history. But these are not the disciplines one would most naturally turn to in analyzing speech. Meaning in Law: A Theory of Speech takes a new and different approach. This book develops a general legal theory of speech on the basis of linguistic theory and the philosophy of language.

The opening chapters retrace the main conceptual stages in the expression of meaning: from natural meaning, through symbolism, to signification. Later chapters analyze symbolic speech (communication by nonlinguistic means) as the key to developing an intention-based theory of speech. The essential elements of the theory are (1) nonnatural meaning, (2) the signaling of intent, (3) the recognition of intent, and (4) establishing a convention.

A final chapter applies these insights to the case law of symbolic speech and resolves some basic confusions in the legal literature. This analysis proceeds by way of an original distinction between actual conduct (in the real world) and the "ideal conduct" described in a statute. The former may be described both as communicative and noncommunicative, while the latter has already been conceptualized as either communicative or noncommunicative. This distinction clears up a major legal quandary: how conduct that counts as communication may nevertheless be regulated or prohibited, without running afoul of the First Amendment's protection of speech.

JFB

 

Pew Forum Report Provides Global Muslim Population Data

The Pew Forum has issued a new report, Mapping the Global Muslim Population, which, as described in the Executive Summary, presents a  “comprehensive demographic study of more than 200 countries” and  "finds that there are 1.57 billion Muslims of all ages living in the world today, representing 23% of an estimated 2009 world population of 6.8 billion.”  The report include an interactive map that allows the user to examine demographic data on Muslim populations across the world. The report’s major findings include the following data:

[M]ore than 60% of the global Muslim population is in Asia and about 20% is in the Middle East and North Africa.

More than 300 million Muslims, or one-fifth of the world's Muslim population, live in countries where Islam is not the majority religion. These minority Muslim populations are often quite large. India, for example, has the third-largest population of Muslims worldwide. China has more Muslims than Syria, while Russia is home to more Muslims than Jordan and Libya combined.

Of the total Muslim population, 10-13% are Shia Muslims and 87-90% are Sunni Muslims. Most Shias (between 68% and 80%) live in just four countries: Iran, Pakistan, India and Iraq.

JFB

Challenge to N.H. Pledge Statute Rejected

In Freedom from Religion Foundation v. Hanover Sch. Dist., a federal district court has rejected a challenge to New Hamphire’s statute requiring that the Pledge of Allegiance be said in the state’s schools but providing an individual opt-out from participation.  The court identified the legislature’s motive for enacting the requirement to be the promotion of partriotism, not the advancement of religion, and noted that no student was coerced into saying the Pledge. The court echoed the views of the Fourth and Seventh Circuits which have classified the terms “under God” as language conveying only constitutionally acceptable “ceremonial deism” rather than the promotion of religious belief.  The district court noted that when Congress added “under God” to the official text of the Pledge in 1954 members were likely motivated more by the idea of “currying favor with the electorate than with an Almighty.”  The court also concluded that exposing the agnostic or atheist plaintiffs’ children to the daily recitation of the Pledge did not impede the parents’ ability to impart their beliefs to the children.

In a related development last week, the Supreme Court declined to grant certiorari in Frazier v. Winn, in which the Eleventh Circuit had refused to invalidate Florida’s requirement that children seeking to be excused from saying the Pledge in school obtain parental consent before opting out.  (See prior post on Frazier.)

JFB  

Application of Sex Offender Restrictions to Bar Church Attendance Challenged

As reported by the AP, a North Carolina man, previously convicted of taking indecent liberties with a teenage girl and attempted second-degree rape, was arrested in March after he attended services at a church which had a child care center for parishioners attending the church functions. State law prohibits sex offenders from coming within 300 feet of any place intended primarily for the use, care or supervision of minors. The man has now filed suit challenging the sex offender restrictions as violating his right to practice his religion.

JFB

Maryland University System to Issue Policy on Campus Showings of Pornographic Films

The Washington Post reports that the University of Maryland has announced plans to adopt rules regarding the circumstances under which pornographic films can be shown on state campuses. The action comes in response to state legislators' demand for action after "Pirates II: Stagnetti's Revenge", an adult fim, was aired at the university last spring.  P.J. Hogan, vice chancellor for governmental relations, suggested that the policy might require the presentation of material "with an educational component" in conjunction with any pornographic films. 

JFB

Justices Appear Unlikely to Render Broad First Amendment Pronouncement in Salazar v. Buono

Yesterday’s oral argument in Salazar v. Buono seemed to generate a consensus among commentators that the Justices seemed inclined to avoid issuing a broad First Amendment pronouncement on the constitutionality of the use of religious symbols in public monuments and instead appeared focused on the precise nature of the land transfer arrangement used by Congress to end the Establishment Clause challenge to the cross at Mojave National Preserve.  How Appealing provides a compilation of post-argument commentary and coverage.

In an opinion piece in the Washington Post, Dana Milbank suggests that the case primarily represents  a fundraising vehicle for the advocacy groups arrayed on both sides of the litigation. In the LA Times, Israel Drazin, a retired Army brigadier general, offers his reflections on how use of a Latin cross as a veterans memorial communicates a message of disrespect and exclusion to non-Christian servicemembers. Drazin writes:

It's clear to me and many other former military officers that the proposal does not live up to the government's obligation not to favor any particular religion. The cross is unquestionably a sectarian religious symbol that, as a congressionally designated national memorial to veterans, would convey the message that the military values the sacrifices of Christian war dead over those of service members belonging to other faiths. This would be true even if the property were to be transferred to private owners.

Furthermore, such a memorial -- one of only 49 national memorials in the country -- would be harmful to the military as an institution. It would strike at the heart of what makes the military function, promoting social divisiveness while undermining unit cohesion and esprit de corps.

The U.S. military is a religiously diverse institution -- 11% of current active members of the military say they belong to a non-Christian faith, while 21% are atheists or report no religion. Buddhists, Hindus, Jews and Muslims serve in Afghanistan, Iraq and other theaters, and Jews and Muslims have fought in the U.S. military in every war, including the Revolutionary War.

It's essential for the military to reach out to members of minority faiths and to recruit and retain them. Such individuals often possess language and other skills that are vital to the military's mission. But a war memorial that is made up of a large cross, standing by itself, would undermine these efforts.

JFB
  

Justices Hostile to Animal Anti-Cruelty Law

If there was a loser in Court today when the Justices heard arguments in US v. Stevens, it was the government.  Deputy Solicitor General Neal Katyal was hammered with questions from the moment he approached the bench, and at one point Justice Scalia suggested to Stevens's attorney that the case against the animal anti-cruelty statute was stronger than even she contended.

By most accounts the government lost hands-down.  But I'm not 100% sure that's the way it will end up.  In questions put to Stevens's attorney, CJ Roberts suggested the Court should uphold the statute on its face and leave room for as-applied challenges in appropriate cases.  Justice Alito seemed inclined to go along with that.  Brokering an agreement from at least three others would be difficult for Roberts, but maybe not impossible. The Court has shown a tendency over the past few years to issue those types of rulings, in voting and abortion rights cases, for example, so maybe the outcome here isn't necessarily a foregone conclusion.

More coverage:

• SCOTUS Blog
• News Media Update
• NPR

-Kathleen Bergin

Journalism and the New Media Ecology Conference at Yale Law School

And I'm told that registration is only $25, and includes Friday lunch, and Saturday breakfast and lunch.

The Knight Law and Media Program of the Yale Information Society Project
cordially invites you to our upcoming conference "Journalism and the New
Media Ecology: who Will Pay the Messengers?" scheduled for November
13-14 at Yale Law School.  This conference will explore the changing
ecology of news media and examine new business models including
non-profit and foundation-funded models, government subsidies, and new
online pay models. The conference begins at 10 a.m. Friday with
welcoming remarks by Yale Law School Dean Robert Post '77 and Professor
Jack Balkin, the Knight Professor of Constitutional Law and the First
Amendment at Yale Law School.

Please register at your earliest convenience at
https://ems.resrunner.com/lawandmedia. Breakfast and lunch are included
as part of registration. For more information, please see
http://www.law.yale.edu/intellectuallife/10132.htm.

-Kathleen Bergin

First Amendment Scholarship Update

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

1) Thomas F. Cotter  (University of Minnesota Law School )and Irina Y. Dmitrieva, Integrating the Right of Publicity with First Amendment and Copyright Preemption Analysis  forthcoming in 32 Colum. J. L. & the Arts --- (2010). The abstract states:

Many states confer upon natural persons a “right of publicity” that renders unlawful the unauthorized use of a person’s name or other indicia of identity for purposes of trade. Efforts to reconcile publicity rights with the First Amendment and with principles of copyright preemption, however, have differed radically from one state or circuit to another, as well as within the scholarly community. In this Article, we present a comprehensive framework for integrating both First Amendment and copyright preemption principles into standard publicity analysis. Our framework eliminates much of the incoherence found in contemporary right of publicity case law by adopting a narrow reading of Zacchini v. Scripps-Howard Broadcasting Co. (to date, the only Supreme Court decision addressing the right of publicity), and by looking to principles of conflict preemption to cut through the indeterminacy of conventional preemption analysis under § 301 of the Copyright Act.

More precisely, we argue that First Amendment and copyright preemption analysis tend to converge on two relatively simple principles: first, that publicity claims arising in the context of commercial speech usually should withstand both First Amendment and copyright preemption challenges; and second, that publicity claims arising in the context of noncommercial speech may proceed only when, among other things, the exercise of publicity rights plausibly can be justified as advancing a state interest in protecting personal privacy or individual autonomy, or (possibly) in preventing consumers from erroneously perceiving that the plaintiff endorses a product that she does not, in fact, endorse. Viable publicity claims involving noncommercial speech should be small in number, however; and should the Supreme Court someday opt to eliminate the distinction between commercial and noncommercial speech regulation, or to overrule Zacchini in favor of a more speech-protective standard, the number of viable claims within both classes should shrink further still.

2) Susana Mancini (University of Bologna), The Power of Symbols and Symbols as Power: Secularism and Religion as Guarantors of Cultural Convergence, 30 Cardozo L. Rev. 2629 (2009). The abstract states:

This paper focuses on the conflicts that arise in relation to the “the place” of religious symbols in the public sphere, and, specifically, in State schools. Religious symbols in the public schools typically raise two sets of conflicts. The first set of conflicts arises over the extent to which the right to wear religious symbols and clothes can be limited in the name of other rights and principles of equal constitutional value. In principle, this type of conflict may arise both in relation to the denomination of the majority as well to those of religious minorities. The French Law of March 17, 2004, which prohibits “the wearing of symbols or clothing by which students conspicuously manifest a religious appearance” in all State schools, is neutrally worded and therefore applicable to all symbols, including Christian ones. In practice, however, controversies have arisen exclusively in relation to the right of pupils belonging to religious minorities to wear their symbols and have almost exclusively concerned Islamic schoolgirls.The second type of conflict arises when a religious symbol, such as the crucifix, or the crèche, is used as a “public language” of identity by State authorities. In this case, unlike in the first type of conflict, the contested symbol represents the dominant religion and not that of minority groups.
In this paper, I propose to jointly address the two different sets of conflicts, as they both have to do with the relationship between religion and constitutional identity as well as with the different understandings, uses and driving principles of secularism as a constitutive element of constitutionalism. Moreover, conflicts over majority and minority symbols reveal an increasing blurring of the line between secularism and religion. On the one hand, religions have become “deprivatized,” and seek a wider role in the public sphere as well as in the political arena. On the other hand, the neutral character of secularism and its ability to solve religious conflicts in pluralistic societies is increasingly contested.

Conflicts over religious symbols arise as a consequence of the de facto pluralistic character of European societies. However, a comparative analysis of the reactions of courts and legislators confronted with such conflicts shows a tendency to counter or minimize pluralism, rather than to seek a reasonable accomodation for the different religious components of the polity. In both conflicts over majority as well as over minority symbols, courts and legislators tend to secularize the meaning of religious symbols and interpret it according to the sensitiveness, the prejudices and the claims of the majority. On the one hand, the religious significance of majority (Christian) symbols is watered-down and interpreted in "cultural" terms, not as the symbols of a given religion, but rather as inditia of the historical and cultural dimensions of national identity. On the other hand, minority, and, particularly, Islamic symbols are interpreted as expressions of cultural and political values and practices which are ad odds with liberal and democratic ones. The wearing of traditional female Islamic clothing, for example, is. often prohibited or limited because it supposedly clashes with gender equality. The practical results of this attitude is that crucifixes may be displayed in the public schools because secularized Christianity represents a structural element of the western constitutional identity, while the wearing of Islamic symbols is either banned or restricted, because they represent values and practices which are cast as illiberal and undemocratic.

I will analyze cases decided and laws adopted in various jurisdictions, with sharply different models for managing the relationship between the state and religion: Italy, Germany, France and the United Kingdom. I will also consider the case-law of the European Court of Human Rights, which is invested with the task of striking a balance between unity and diversity in 47 states with deeply divergent constitutional traditions. Despite the differences among all of these systems, all cases rely, more or less explicitly, on a dichotomous construction of the relationship between Christianity and Islam, according to which the first, to be sure in a secularized form, is projected a central component of Western civilization, while the latter is cast a threatening "other." Both the imposition of Christian symbols in the public schools as cultural mainstays, as well as the as the restrictions on the right to wear Islamic symbols in the name of secularism correspond to this logic. Secularized religion and secularism are used in order to exclude the other and protect the culturally homogeneous character of European societies that is perceived - and even explicitly described - as threatened by pluralism and globalization.

3)) Joshua Fairfield (Washington and Lee University School of Law), Virtual Parentalism. The abstract states: 

Parents, not laws, ultimately protect children both online and offline. If legislation places adults at legal risk because of the presence of children in virtual worlds, adults will exit those worlds, and children will be isolated into separate spaces. This will not improve safety for children. Instead, this Article suggests that Congress enact measures that encourage filtering technology and parental tools that will both protect children in virtual worlds, and protect free speech online.

4) Dawinder S. Sidhu (Georgetown University Law Center), First Korematsu and Now Ashcroft v. Iqbal: The Latest Chapter in the Wartime Supreme Court’s Disregard for Claims of Discrimination. The abstract states: 

Upon his arrest in New York in the aftermath of the September 11, 2001, attacks for charges related to identity theft, Javaid Iqbal, a Muslim male, was classified as a person of “high interest” and thereafter segregated into a federal prison facility housing “September 11 detainees.” Iqbal, claiming that this classification was premised on his race, religion, and national origin, and not based on any evidence tying him to terrorism, filed suit against John Ashcroft, Robert Mueller, and others. Ashcroft and Mueller moved to dismiss the complaint on the grounds that Iqbal’s allegations were insufficient to overcome their entitlement to qualified immunity. The district court and U.S. Court of Appeals for the Second Circuit disagreed, denying the motion.

Last term, the Supreme Court, in a 5-4 ruling, reversed, holding that Iqbal’s allegations of discrimination were implausible under the pleading standards announced in Bell Atlantic v. Twombly, and finding unremarkable the accepted fact that the government targeted Muslims in the wake of 9/11.

The purpose of this Article is to challenge both the procedural and substantive rulings in Iqbal. In particular: Part I will provide an overview of the factual background and procedural history of the case, Part II will examine the arguments put before the Court by the parties and amici, Part III will summarize the Court’s decision and the dissenting opinions, while Part IV will argue that the Court not only drastically altered the traditional pleading standards that apply to civil cases, but erroneously concluded that Iqbal’s allegations of constitutional violations were insufficient at the motion to dismiss stage. The conclusion offers an alternative framework as to how motions to dismiss for failure to state a claim and claims of discrimination in the wartime context should be assessed by courts when and if Iqbal is revisited.

Though Iqbal has largely escaped serious scholarly attention, hundreds of federal court orders are now relying upon it for its explication of the pleading requirements under Rule 8(a)(2) and even for its approval of racial profiling. This Article sheds light Iqbal and charges that, because it dissolved notice pleading and sanctioned blanket profiling of Muslims for national security reasons, it is one of the worst decisions of our generation.

It is, in other words, 9/11’s Korematsu.

5) Fiona McCarthy , The Free Exercise Rights of Religious Institutions: Church Property and the Constitutionality of Virginia Code § 57-9,  95 Va. L. Rev .--- (2009).  The abstract states:

This paper argues that § 57-9 of the Code of Virginia interferes with the free exercise of religion in violation of the Federal Constitution. Section 57-9 is at the forefront of a national dispute over church property resulting from the departure of conservative congregations from the Episcopal Church of the United States. The statute purports to determine property rights in the event of a church division, but in doing so challenges the constitutional boundaries of a religious institution’s free exercise rights. Although Virginia’s statute is unique, its implications with respect to the ability of the government to regulate religious polity and the role of courts in resolving church property disputes are broadly applicable and recent litigation involving the statute is being watched closely across the county.

Section 57-9 highlights historic uncertainty regarding the scope of free exercise rights for religious institutions, particularly in the context of church property. In the face of this uncertainty, three possible applications of the statute are addressed. One considers the statute most narrowly within the context of the “neutral principles of law” approach for resolving church property disputes. A second discusses § 57-9 as a neutral and generally applicable law. Finally, a third considers the statute broadly, as a special statute that regulates property holdings of religious institutions. Despite the various ways to characterize the statute, under each view § 57-9 violates the free exercise rights of the religious institutions it regulates.

6)  James Nelson , Note - Incarceration, Accommodation, and Strict Scrutiny, 95 Va. L. Rev. ___ (2009) . The abstract states:

The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires the application of strict scrutiny to policies substantially burdening the religious exercise of prisoners. Although RLUIPA was passed without dissent, critics and commentators have tended to accept three skeptical claims about the use of strict scrutiny in this context: (1) changes in the formal level of scrutiny applicable to claims for religious accommodation are irrelevant to case outcomes; (2) even the most sympathetic statutory language will not improve prisoners' chances of success in seeking accommodations; (3) using the language of strict scrutiny in prison cases will diminish its force in other areas of the law.

This Note challenges these skeptical conclusions. Since RLUIPA was passed in 2000, federal courts have reviewed hundreds of claims brought by prisoners seeking accommodations. Some federal circuit courts have continued to defer to the judgment of prison administrators when denying exemptions. Other federal courts, however, are employing a more rigorous form of review, taking a "hard look" at prison policies that burden religion, and reviewing carefully the claims of prison administrators. Moreover, rather than diluting strict scrutiny in other areas of the law, these courts are using doctrine from outside of the accommodation context to resolve prisoner claims. The emergence of a searching form of review in the prison context is surprising. After detailing an emerging conflict among the federal courts of appeal, this Note argues that firm constitutional footing, statutory specificity, and the importation of searching review from equal protection and free speech cases all help to explain this unexpected development. This Note concludes with some thoughts about how proponents of religious accommodation should proceed in light of the limited but real success of RLUIPA.

7) Emily J. Brown, Note - When Insiders Become Outsiders: Parental Objections To Public School Sex Education Programs,  59 Duke L.J. 109 (2009). The abstract states:

This Note argues that parents’ fundamental right to direct their children’s moral and educational upbringing includes the right to exempt their children from objectionable sex education programs in public schools. Schools usurp parents’ fundamental rights when they unilaterally introduce children to topics of human sexuality without
parental notice or permission. Alleged violations of these rights merit strict scrutiny review from courts. When parents’ objections are confined to discrete, tangible events, parents are constitutionally entitled to exempt their children from objectionable activities. The efficacy of this constitutional relief is more limited, however, when
parental objections are pervasive and unassociated with a particular aspect of the school’s program or curriculum.

8) Emily K. Kerkhof , Note - MySpace, YourSpace, OurSpace: Student Cyberspeech, Bullying, and Their Impact on School Discipline,  2009 U. Illinois L. Rev. 1623 . The abstract states:

When a student engages in bullying, tensions tend to arise betweenthat student’s freedom of speech—guaranteed in the FirstAmendment—and the school’s duty to provide its students with an environment that is safe and conducive to learning. Bullying on the Internet is no exception. Although several Supreme Court decisions address students’ free speech rights, none have dealt with student speech on the Internet. Thus, lower courts have struggled to apply the Supreme Court’s standards to cases involving student online speech. When called upon to determine the extent of school administrators’ authority to discipline students for inappropriate online speech, lower courts do not reach consistent results. The author recognizes the interests in conflict—the interest in speaking freely, without government interference, as well as the interest in educating and protecting students— and recommends that courts apply the “material and substantial disruption” standard to best balance these interests. The author argues that it would not be suitable for courts to look to other factors— including the location of the speech and whether the studentspeaker intended to bring the speech onto campus—in the context of student speech on the Internet.

JFB

Human Rights Council Approves Resolution on Freedom of Expression

The UN Human Rights Council approved a resolution on Friday that recognizes freedom of expression as one of the "essential foundations of democracy," but expresses concern over a rise of religious and racial intolerance, attacks on journalists, and media consolidation.

The resolution was adopted by unanimous vote, and ends an impasse over controversial provisions that were omitted from the current version, including a provision that condemned "defamation of religion," and language that some feared could interfere with freedom of the press.   

• Text of 30 Sept 2009 Draft Resolution, introduced by US and Egypt

Upcoming UMKC Symposium Examines The Future of Section 1983 and the Enforcement of Constitutional Rights

On October 22, 2009 UMKC Law School will present a lecture by Stanford Law Professor Pamela Karlan  on “Enforcing Constitutional Rights in the Twenty-First Century”. On October 23, the Law School will host a symposium on ”Section 1983 - Thirty Years After Owen v. Independence”. The symposium topics and panelists are listed below: 

Changing the Remedial Framework for
Fourth Amendment Violations
Samuel Estreicher, New York University School of Law

Reconceptualizing Private Entity
Defendants in § 1983 Actions
Richard Frankel, Earle Mack School of Law at Drexel University

Iqbal, Callahan, and the Evolution of § 1983
Pamela S. Karlan, Stanford University School of Law

Iqbal and Empathy
Darrell Miller, University of Cincinnati Law School

Procedural Barriers to Civil Rights Litigation and
the Illusory Promise of Equity
Alexander Reinert, Benjamin N. Cardozo School of Law

The Burger Court and § 1983:
The Revolution That Almost Was
Lynda G. Dodd, American University Washington

Petition to Decision: An Archive of
the Justices’ Papers in § 1983 Cases
David Achtenberg, UMKC School of Law

Rosy Pictures and Renegade Officials:
The Slow Death of Monroe v. Pape
Alan Chen, Dean, University of Denver Sturm College of Law
 
More detailed information about these events is available on the symposium’s webpage.

JFB 

SCT to review "material support" provisions of Patriot Act

The Supreme Court announced on Wednesday that it will review the Ninth Circuit's decision in Humanitarian Law Project v. Holder to determine whether the "material support" provisions of the Patriot Act violate the First Amendment. 

At issue are three provisions that make it a crime to provide "training," "expert advice and assistance" and "service" to any group the State Department designates as a terrorist organization.  Those provisions are constitutionally vague, the appeals court said, and potentially cover a broad range of activity protected under the First Amendment.  As applied in this case, humanitarian groups feared they would run afoul of the law if they provided human rights training or peacekeeping information to groups like the PKK in eastern Turkey, and the LTTE in Sri Lanka, both designated terrorist groups.  The Solicitor General maintains that Congress in fact intended for the material support provision to reach that far, but that it should be upheld as a vital part of the nation's anti-terrorism objectives. 

• The Christian Science Monitor
• AP Report
• Reuters