First Amendment Scholarship Update

Here is this week's collection of newly available schoalrship on First Amendment topics:   

1) Richard L. Hasen (Loyola Law School - Los Angeles),The Transformation of the Campaign Financing Regime for U.S. Presidential Elections.  The abstract states:

Since the mid-1970s, the United States system for the financing of presidential election campaigns has been a mixture of private fundraising by candidates, parties, and outside groups and optional public financing for candidates (and for political party conventions). The 2008 presidential election-with its record-breaking $1.8 billion campaign (including an astounding $745.7 million raised by then-Democratic candidate Barack Obama) (FEC 2009) - demonstrated that the current system is in the midst of a major transformation. This chapter explains how the system is changing, offers possible reasons for the transformation, and evaluates the transformation normatively.

Part I shows how the system is changing in four ways. (1) The voluntary presidential public financing system is no longer viable; candidates who opt in do so out of weakness, not strength. (2) A major share of private campaign contributions to presidential candidates in 2008 have come through campaign finance “bundlers” and from micro-donors giving very small amounts via the Internet. (3) Thanks to a U.S. federal law, Bipartisan Campaign Reform Act of 2002 (BCRA), political parties can no longer accept very large campaign contributions (“soft money”) from wealthy individuals, corporations, and labor unions to pay for political advertising. (4) Wealthy individuals, corporations, and labor unions have shifted some, though not necessarily all, of the money that used to go to political parties and to “issue advocacy” into outside groups (including so-called “527 organizations”).

Part II explains that these four changes have likely arisen from a number of factors including: (1) the failure of the U.S. Congress to update the presidential public financing system, first enacted in 1974; (2) enactment of BCRA and the U.S. Supreme Court’s shifting interpretation of the constitutionality of campaign finance law; (3) the rise of cheap political speech via the Internet; and (4) continued political polarization.

Part III explores normative implications. The potential for quid pro quo corruption of candidates appears to remain low, thanks to a series of laws imposing contribution limits. Sale of access to candidates, however, remains a feature of U.S. presidential elections even post-BCRA. From the standpoint of political equality, the transformation offers a mixed bag with somewhat offsetting effects. Thus, the collapse of the public financing system may have anti-egalitarian effects, but those effects are somewhat militated by the rise of micro-donors. The end of soft money and the rise of outside non-party political organizations in theory could lead to weakened political parties, but continued polarization of the electorate have kept parties thriving even under BCRA and the shifting constitutional ground rules of the U.S. Supreme Court.

2) David Pozen, Deep Secrecy, forthcoming in Stanford Law Review. The abstract states:

This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being denied particular items of information, the result is a shallow secret. Every act of state secrecy can be located on a continuum ranging between these two poles.

Attending to the depth of state secrets, the Article shows, can make a variety of conceptual and practical contributions to the debate on their usage. The deep/shallow distinction provides a vocabulary and an analytic framework with which to describe, assess, and compare secrets, without having to judge what they conceal. It sheds light on how secrecy is employed and experienced, which types are likely to do the most damage, and where to focus reform efforts. And it gives more rigorous content to criticisms of Bush administration practices. Elaborating these claims, the Article also mines new constitutional territory - providing an original account of the role of state secrecy generally, as well as deep secrecy specifically, in our constitutional order.

3) Michele Alexandre (College of William and Mary), When Freedom is Not Free: Investigating the First Amendment's Potential for Providing Protection Against Sexual Profiling in the Public Workplace, 15 William & Mary Journal of Women and the Law ---(2009). The abstract states:

This article explores the ways in which bodily expression can constitute symbolic speech that courts should protect pursuant to the First Amendment of the Constitution. In a previous article, I referred to this type of bodily speech as “body protest.”  Body protest can refer to actions that individuals undertake to assert their autonomy, identity, and freedom from societal restrictions. For women, body protest may be used “to challenge gender restrictions and to activate women-centric legal reforms.”  For example, women may express body protest through dance, dress, or performance arts. These individuals are often sexually profiled because of how they use their bodies. This article analyzes the sexual profiling issues inherent in grooming cases within the context of First Amendment jurisprudence in the public employment sphere and argues that the First Amendment's protection of freedom of expression offers a basis to expand upon personal rights in grooming cases.

The goal of this article is to argue that by placing body protest and other expression that occurs in public employment appropriately within the scope of the First Amendment, society can eradicate widespread gender bias in the workplace. Part I of this article discusses why the First Amendment should be strengthened as a cause of action in gender-based grooming cases. Part II presents evidence of sexual profiling in rape cases, which reflect society's attitudes towards women's grooming choices. Parts III and IV analyze sexual profiling in the workplace, the treatment of gender-based grooming policies and sex stereotyping under Title VII, and the utilization of conduct as gen-der-based expression under the First Amendment. Part V  seeks to reconcile sexual profiling claims brought under the First Amendment with Supreme Court jurisprudence from Pickering v. Board of Education, Connick v. Myers, and Garcetti v. Ceballos. And last, Part VI considers the possibility of learning by analogy from the sexual orientation cases.

4) Rachel Snyder (University of Georgia), Homeland Insecurities: A Critical Policy Analysis of the Animal Enterprise Terrorism Act of 2006, published in  2008-2009 McNair Research Journal, University of Oregon. The abstract states:

The post September 11th climate has produced a spate of legislation aimed at curbing the threat of both international and domestic terrorism. The Animal Enterprise Terrorism Act of 2006 (AETA), an amendment to the Animal Enterprise Protection Act of 1992 (AEPA), extends the Act’s protections to tertiary enterprises that conduct business with animal enterprises. Further, the AETA reclassifies certain crimes committed against animal enterprises as acts of terrorism. Critics of the legislation assert that it creates a “chilling effect” on legitimate protest activities while proponents argue that the AETA is necessary to address the increasing threat of “terrorist activities” against animal enterprises. This paper conducts a critical analysis of the AETA, discusses its implications within the larger American legal framework, and recommends possible modifications.

5) 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.

6) Mark W. Cordes (Northern Illinois University - College of Law), Making Sense of High School Speech after Morse v. Frederick , 17 William & Mary Bill of Rights Journal 657 (2009). The abstract states:

Fraser and Hazelwood created some confusion over how to analyze student speech rights, and in particular which case - Tinker, Fraser, or Hazelwood - should govern the typical high school speech case. Indeed, a close reading of Morse suggests that viewpoint restrictions on core speech will certainly be subject to the Tinker standard, in which schools can prohibit speech only when it poses a very real threat to substantially interfere with school operations or would infringe on the rights of other students. In doing so, the Court stated that student speech rights must be analyzed in the context of the educational needs of schools, and, in particular, the school officials' need to maintain discipline and order. Roberts then concluded that drug abuse is a serious and real problem facing schools, justifying restrictions on student speech advocating illegal drug use, stating: The "special characteristics of the school environment," and the governmental interest in stopping student drug abuse, allow schools to restrict student expression that they reasonably regard as promoting illegal drug use. In the same way, his concurrence in Morse can be read as affirming student speech rights, but Alito saw the banner displayed by Frederick as a narrow exception, both because of the nature of the speech itself and because of the critical school interest in combating drug abuse. Thus, the type of balancing contemplated in Morse is really reserved for speech restrictions that do not involve either a school-created speech forum nor school-sponsored speech. Of the five decisions, Mergens is the only one that directly involved student speech in high schools, and the only one based on statutory, rather than constitutional, free speech rights. Parks, the Fourth Circuit held a policy unconstitutional that said a school could prohibit distribution only if the principal could "forecast substantial disruption of or material interference with school activities." This quote from Tinker suggests two possible justifications to restrict student speech, even speech that concerns core political or religious messages, or commentary on social issues. Thus, the court rejected the broader principle that any derogatory statements aimed at individuals or groups could be prohibited, stating that t-shirts saying, "Young Republicans Suck," or "Young Democrats Suck" would be protected speech, since such messages would not be "sufficiently damaging to the individual or to the educational process" to justify restrictions.

7) Mark W. Cordes (Northern Illinois University - College of Law),  Religion as Speech: The Growing Role of Free Speech Jurisprudence in Protecting Religious Liberty , 38 Southwestern L. Rev. 235 (2008), The abstract states:

In the same way that neutrality guaranteed religion full access to America's public life and societal debates, an access strongly supported by the underlying values of free speech, so too did neutrality require that as a co-participant religion not be constitutionally released from the obligations and burdens that being a co-participant in America's public life brings. ... On the other hand, to treat a religious group neutrally, giving it the same access as other student groups to a speech forum, mitigated any Establishment Clause concerns that might exist when religious speech occurs on public property. ... The Rehnquist Court, Neutrality, and Religious Speech The previous section showed that by the 1981 decisions in Heffron and Widmar, content-neutrality had become a central focus in analyzing free speech rights, including religious speech, and played a significant, though not dispositive role in Establishment Clause analysis. ... Even under this narrow understanding of the school exclusion policy, the Court said the church's speech rights had been violated, since denying access to the church constituted not just subject-matter discrimination, but also viewpoint discrimination, fatal to restrictions in a limited public forum and generally considered the most egregious type of speech restriction. ... What This Might Mean Let me conclude by briefly commenting on possible implications of the Court's increasing reliance on free speech to protect religious liberty, examining the issue from two perspectives: (1) what these cases say about how the Court views the role of religion in American life; and (2) how the Court's increasing focus on free speech, rather than free exercise, fits with the challenges that both America as a nation and religion face in the twenty-first century. ... How the Court Views Religion The Rehnquist Court's emphasis on neutrality, which emerges in its free speech, free exercise, and Establishment Clause jurisprudence, has resulted in an increased focus on free speech principles to protect religious liberty.

8) Richard M. Esenberg (Marquette University - Law School), Must God Be Dead or Irrelevant: Drawing a Circle that Lets Me In , 18 William & Mary Bill of Rights J. --- (2009). The abstract states:

Some scholars claim that current Establishment Clause doctrine can increasingly be explained in terms of substantive neutrality-that is, the idea that government ought to treat religion and irreligion (or comparable secular activities) in the same way. Whether a product of the Court’s commitment to the idea or an artifact of the positions of the “swing” Justices, this proposition has considerable explanatory power. The Supreme Court has, in recent years, permitted the government to make financial support equally available for religious uses, as long as it is done on a neutral basis and through the private choice of the recipients. It has required the government, in its superintendence of general and limited purpose public forums, to treat comparable religious and secular speakers identically.

But the Court has continued to insist upon a substantial degree of secularity with respect to government speech. Some have argued that this is consistent with substantive neutrality as well. Government has but one voice and, while money and facilities can be made available in a way that respects individual choice, prayers and messages concerning religion cannot. Substantive neutrality, the argument continues, requires government silence on religious matters.

The problem is that modern government is not-and probably cannot be-silent on such matters. In addition, current doctrine is ambitious. It seeks to prevent even very subtle injury to dissidents. As a consequence, it cannot protect religious objectors to secular speech with religious implication in the same way it seeks to protect even secular objectors from even the most bland of religious speech.

I argue that this asymmetry is not substantively neutral. Drawing, in part, on the insights of post-liberal theology, I suggest that it permits the precise expressive harm that Establishment Clause doctrine claims to seek to prevent-that is, permits religious dissidents to feel they are disfavored members of the political community and allows the state to influence religious formation. Drawing on theories regarding the value of mediating institutions, including the Catholic notion of subsidiarity and the Calvinist idea of sphere sovereignty, I maintain that this asymmetry is undesirable.

9) Marci A. Hamilton (Cardozo Law School ), Book Review: An Imperfect Vocabulary of Religious Liberty, reviewing Martha Nussbaum's "Liberty of Conscience: In Defense of America's Tradition of Religious Equality," 25 Journal of Law & Religion 101 (2009).

JFB