First Amendment Law Prof Blog

Supreme Court Halts Release of Detainee Abuse Photos

On Monday, the Court vacated and remanded the Second Circuit's decision in ACLU v. DOD (No. 06-3140), which practically speaking means that the government will not have to release photos depicting the abuse of detainees held by US forces in Iraq and Afghanistan.  See prior posts here and here.  The matter had effectively been on hold pending Congressional action on an amendment to the Homeland Security Appropriations Bill that expressly allows the Secretary of Homeland Security to bar release of the photos.

-Kathleen A. Bergin

A $50,000 "F-You"

A Pittsburgh man cited in 2006 for giving the middle-finger to a police officer is about to get paid.  According to reports, the City Council tentatively authorized a $50,000 settlement in the case, though a second vote likely to take place next week is needed for final approval.

Wow.  I wonder how many people in Pittsburgh are thinking of flipping off a police officer with the hopes of getting arrested!?

-Kathleen Bergin 

Grape Growers Lose 1A Challenge to Generic Advertising Assessments

The Ninth Circuit on Friday upheld a California statute that assesses private grape producers part of the costs of a generic advertising and marketing campaign.  A coalition of grape producers argued that the statute violated the First Amendment because it forced them to pay over $600,000 annually for advertisements that discounted meaningful quality differences between different varieties of table grapes.  The three judge panel rejected that claim upon finding that the state of California effectively controlled the activities of the commission that implemented the program.  The advertisements themselves were therefore a form of government speech not susceptible to a free speech challenge. 

-Kathleen Bergin

Upcoming trials test the boundary between 'true threats' and hyperbolic on-line speech

The trial of Hal Turner is scheduled to begin on December 1 in Brooklyn, NY.  He's the man accused of making threats on his website against three Seventh Circuit judges after they issued a decision to uphold Chicago's ban on handguns.  (prior post links to web transcript).  Law.com reports that a federal judge has already ruled as a matter of law that Turner's posts fall into the category of unprotected threats, leaving open the question of whether Turner harbored the requisite intent that is necessary to obtain a conviction.  According to the report, Turner plans to establish a defense based on his work as an FBI informant, which he says taught him how to engage in hyperbolic rhetoric without breaking the law.

Meanwhile, two men from Massachusetts have been charged with making threats against a probation officer and a state trooper in a rap video they posted on You-Tube.  The video, entitled "Watch 4 Me," identifies both the trooper and probation officer by name, shows images of a woman with a gun pointed at her head, and the sound of gun shots in the background.  A hearing is scheduled in that case for November 30. 

-Kathleen Bergin

Second Circuit Rules Against Valerie Plame Wilson in CIA Publishing Dispute

The Second Circuit ruled on Thursday that the CIA did not violate the First Amendment when it refused to allow former agent Valerie Plame Wilson to publish information in her memoir regarding her employment with the agency prior to 2002.  Plame had argued that the information at issue was already in the public domain, which meant that the CIA had no reason to enforce the secrecy agreement she signed as a condition of employment.  For the Court, however, the critical concern was that the information was never officially disclosed by the CIA itself, and in fact remained properly classified.  The agency's decision, therefore, did not violate the First Amendment.

-Kathleen A. Bergin

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

 

MD Regents Refuse to Regulate Sexually Explicit Films

The Board of Regents for the University of Maryland System will not adopt a policy to regulate the screening of sexually explicit films on campus.  (See Josie's prior post here).  The decision comes two months before the deadline set by state lawmakers for schools within the system to submit policy recommendations to the Board.  Chancellor William E. Kirwan said the decision was made to protect students' First Amendment rights, and to avoid the cost of defending any such policy on the understanding that it would almost certainly be challenged in court.

-Kathleen Bergin

Judge Finds Establishment Clause Violation In "I Believe" License Tags

A federal judge in South Carolina has ruled that the state's plan to issue the auto tags pictured on the left violates the Establishment Clause.  Lawmakers authorized the plates in 2008 under a bill then Governor Mark Sanford refused to veto, but did not sign.  The governor stated then that the law was unnecessary because private groups were already allowed to create individualized license plates for any cause. 

As it turns out, while the case before the district court was pending, The Palmetto Family Council registered their organization under the name "I Believe" in order to obtain the plates under that very law.  If they succeed, the state's decision to issue the plates now wouldn't necessarily foreclose the Establishment Clause problem, but refusing to do so would almost certainly give rise to a claim of viewpoint discrimination.   

See also this prior post on similar cases involving "choose life" tags.

-Kathleen Bergin

AAUP Launches Academic Freedom Campaign

The campaign calls attention to the fall out from Garcetti v. Caballos, and urges public colleges and universities to strengthen institutional protections for faculty speech.

Check out the website.  Lots of useful information here on ways to protect faculty independence, including examples of academic freedom policies adopted at a number of institutions. 

-Kathleen Bergin

Media Diversity: Venezuelan Style

In the United States, we're skeptical of media consolidation for fear that it stifles diversity of thought in the marketplace of ideas.  But when do ownership limits that increase access to the airwaves themselves stifle free speech?  That's the question being pressed in Venezuela, where the government is accused of using a new media ownership rule to silence and harass it's critics. 

I'm skeptical of the claim, in part because it comes from a trade organization, The Inter American Press Association, whose members I assume (at least some of them) stand to benefit significantly if the ownership caps are lifted.  But the Venezuelan government doesn't have the greatest record when it comes to protecting freedom of speech to begin with ( it ranked 124th on this years Press Freedom Index), so why should we trust it now?

I don't know enough about the politics in Venezuela to venture a guess as to whose side the government is really on, but would appreciate hearing from readers who do . . .

-Kathleen Bergin

First Amendment Scholarship Update

Here is this week’s collection of recently available scholarship addressing topics with a First Amendment dimension:  

1) Robert A. Kahn (University of St. Thomas School of Law –Minnesota), Flemming Rose, the Danish Cartoon Controversy, and the New European Freedom of Speech. The abstract states:

Flemming Rose’s decision to run twelve cartoons of the Prophet Mohammed triggered an international controversy. In defending his decision, Rose relies on two arguments: (1) the cartoons were a necessary response to a growing atmosphere of self-censorship imposed by a totalitarian radical Islam and (2) the cartoons-far from being insulting-were actually a way to include Danish Muslims into a national “tradition of satire.” On examination both arguments are problematic. The fear of totalitarian censorship-if even it applies to Muslims-fits poorly with an American free speech discourse that counsels patience, not action in the face of totalitarian threats. Rose’s reference to a “tradition of satire” is rooted in the Danish practices of social informality (hygge) and teasing, But this argument is undercut by Rose’s own anti-immigrant rhetoric as well as the larger anti-immigrant mood in Denmark and Europe.

2) Edward Larson (Pepperdine University School of Law), Murder Will Out: Rethinking the Right of Publicity Through One Classic Case, 26 Rutgers L. Rev. --- (2009). The abstract states:

In this forthcoming article, the author uses the protracted legal battles over the right of publicity stemming from the lasting celebrity created by the so-called “crime of the century” to propose a legal test for applying the right of publicity generally. These legal battles were fought during the 1960s over the right of celebrity slayer Nathan Leopold to control the use of his name and personality in a novel, movie, and stage play. After conflicting lower court decisions that had a chilling effect on writers and publishers, the case was eventually decided against Leopold. The author agrees with this result but argues that, because there has been a tendency to decide such disputes on a case-by-case basis, similar uncertainty continues to arise in analogous cases. He proposes a clear test, easily understood by both creators and users of celebrity personality, which would balance the interests of the parties and bring added predictability to this area of the law.

3) Lisa P. Ramsey (University of San Diego - School of Law),  Brandjacking on Social Networks: Confusion About the Source of Information or Advertising.  The abstract states:

Trademark infringement law may apply to the unauthorized use of trademarks to impersonate markholders on social network sites and elsewhere. Where “brandjacking” on social networks causes confusion about the source of information, that expression may be infringing even where the imposter is not creating confusion about the source or quality of commercial products for sale. Commercial use of the mark is not explicitly required for infringement under the Lanham Act, and some courts apply the federal infringement statutes in cases involving unauthorized use of marks in noncommercial speech. If a third party uses another’s mark to falsely claim to be the markholder and indicates that the markholder is the author of expression written by that imposter, courts may find infringement if the public is confused about the source of that third party’s “information services” and believes and relies on that false statement of identity. Of course, just because a markholder has a cause of action does not mean it should file suit against an individual who uses its mark in this way.

By prohibiting unauthorized uses of trademarks that cause confusion regarding the source of information or advertising, trademark law can reduce consumer search costs. Moreover, such restrictions on use of another’s mark will not violate the First Amendment if reasonable persons believe the third party’s false statement of identity and authorship. This is not anonymous or pseudonymous speech protected by the First Amendment; it is a false statement of fact. Yet courts will harm free speech values if they apply the affiliation/sponsorship confusion doctrine to unauthorized uses of a mark in expression of information or ideas. Courts should limit the scope of trademark rights by requiring source-confusion in infringement cases.

4) Manav K. Bhatnagar,Comment  - Fantasy Liability: Publicity Law, the First Amendment, and Fantasy Sports , 119 Yale L.J. 131 (2009). The abstract states:

Online fantasy sports1 services have proliferated over the last decade. The success of fantasy sports, particularly for professional football and baseball, has encouraged the industry to expand to nearly a dozen sports ranging from soccer and golf to bowling and fishing. Surveys now estimate that approximately twenty-seven million adult Americans2 participate in the already multi-billion dollar industry. Given the financial stakes, the growth of the industry has predictably given rise to disputes between fantasy leagues, seeking to enter the growing market, and professional leagues and players’ unions, seeking to license the use of player publicity. One growing area of legal conflict is rooted in the conflict between the publicity rights of players and the First Amendment rights of fantasy sites.

The conflict between publicity rights, and state tort law more generally, and the First Amendment has been litigated across a wide range of industries, but its application to fantasy sports is recent.  C.B.C. Distribution & Marketing,Inc. v. Major League Baseball Advanced Media, L.P., decided in the Eighth Circuit, remains the only federal appeals court case to raise the issue of whether the First Amendment’s protection of the use of player names and statistics trumps players’ publicity rights. In response to a players’ union’s efforts to prohibit C.B.C.’s further operation, C.B.C. brought suit to protect its right to the unlicensed use of player information.  The Eighth Circuit applied a balancing test, ruling that while there was a publicity rights violation, the First Amendment interests still “supersede[d] the players’ rights of publicity.”

This Comment argues that while fantasy leagues may have won the most recent battle in the legal war over the use of player names and statistics by online fantasy sports leagues, the victory is not on solid footing. The approach adopted in the Eighth Circuit, while nominally protective of the First Amendment right of fantasy leagues to use statistics already in the public domain, falls short of offering the strong protection that is both doctrinally correct and pragmatically desirable. This Comment criticizes the balancing test approach for too easily ceding that the use of player names and statistics constitute a violation of publicity rights9: prohibiting the unlicensed use of names and player statistics neither falls within the doctrinal scope of publicity law nor furthers the policy rationale for publicity rights.

5) Stephen O'Hanlon (Temple University), Culture, Religion, and Education: A Multicultural Analysis of Amartya Sen’s Identity and Violence, forthcoming in Journal of Multiculturalism in Education. The abstract states:

This paper discusses two aspects of Amartya Sen’s multicultural thesis that are problematic. First, this paper contends that Sen’s cultural pluralism may not fully account for the importance that particular people attach to culture. This paper does not rehearse multicultural critiques of liberalism. Instead, it argues that liberalism and proper respect for culture should, on the whole, be coincident. Second, this paper assesses Sen’s arguments against religious schooling in the United Kingdom and argues that such schooling is not as problematic as Sen contends.

6) George Letsas (University College London - Faculty of Laws), Is There a Right not to be Offended in One’s Religious Beliefs?. The abstract states:

The paper scrutinizes the normative claim that the legal right to freedom of religion requires respect for the religious convictions of believers when expressing oneself in public; or, put differently, the claim that there is a right not to be offended in one’s religious beliefs by the public expression of the views of others. This claim has been endorsed by the European Court of Human Rights in its judicial reasoning and is popular with many courts in Europe when reviewing criminal legislation that prohibits blasphemy, religious hate speech, or the disparaging of religious doctrines. The claim, if true, justifies the position that a liberal state may sanction or prevent the public expression of views for the reason that they offend, or are likely to cause offense to, religious convictions. On the European conception of rights, the putative right not to be offended conflicts with, and should be balanced against, the right to freedom of expression. Challenging the European conception of rights, the paper argues that, on the proper understanding of the normative role of rights in political morality and of the value of free speech, the claim that there is a right not to be offended in one's religious beliefs is unfounded.

7) Ana Cristina B Martes and Carlos L. Rodriguez, Church Membership, Social Capital, and Entrepreneurship in Brazilian Communities in the U.S.. The abstract states:

The authors investigate the degree to which Protestant and Catholic churches differ in terms of their impact on the creation and development of social capital, as well as the ways in which membership in the churches’ social networks affect ethnic entrepreneurship.First, a review of the literature on the relationship between social capital and ethnic entrepreneurship is presented, and it is suggested that the effects of church membership on ethnic entrepreneurial activity remains an under-researched topic.The data used to examine the central research questions were drawn from surveys and interviews that the authors conducted with ethnic Brazilian communities in the Greater Boston area in 2001 and 2002. Analysis of the data indicates that church membership can indeed be an important source of social capital in ethnic communities and that rates and success of entrepreneurial activities in ethnic communities varies as a function of church membership. Although both Catholic and Protestant churches in the ethnic Brazilian communities were regarded as safe places for the development of social networks, Protestant churches appeared to have created a more favorable environment for ethnic entrepreneurship.Differences in the structure and funding of the churches, in the roles of their respective clergy, and in the content of their discourses may explain why the Brazilian Protestant churches seemed more entrepreneur-friendly than the Catholic churches.(SAA).

8) Vani K. Borooah (University of Ulster at Jordanstown - School of Economics and Politics), Quy Toan Do , (World Bank - Development Economics Research Group (DECRG), Sriya Iyer (University of Cambridge),  and Shareen Joshi (University of Chicago), Missing Women and India's Religious Demography, World Bank Policy Research Working Paper No. 5096. The abstract states:

The authors use recent data from the 2006 National Family Health Survey of India to explore the relationship between religion and demographic behavior. They find that fertility and mortality vary not only between religious groups, but also across caste groups. These groups also differ with respect to socio-economic status. The central finding of this paper is that despite their socio-economic disadvantages, Muslims have higher fertility than their Hindu counterparts and also exhibit lower levels of infant mortality (particularly female infant mortality). This effect is robust to the inclusion of controls for non-religious factors such as socio-economic status and area of residence. This result has important policy implications because it suggests that India's problem of "missing women" may be concentrated in particular groups. The authors conclude that religion and caste play a key role in determining the demographic characteristics of India.

9) Andrew F. March (Yale University), The Uses of Fitra (Human Nature) in the Legal and Political Theory of ‘Allal Al-Fasi: Natural Law or 'Taking People as They Are'?.  The abstract states:

This paper discusses an important feature of much modern Islamic writing on law, politics and morality. The feature in question is the claim that Islamic law and human nature (fitra) are in perfect harmony, that Islam is the “natural religion” (din al-fitra), and thus that the demands of Islamic law are easy and painless for ordinary human moral capacities. My discussion proceeds through a reading of the Moroccan independence leader and religious scholar ‘Allal al-Fasi (d. 1974), with a brief comparative reference to the Egyptian Muslim Brotherhood theorist Sayyid Qutb (d. 1966). I argue that simply suggesting that this represents a turn toward “natural law” is insufficient. First, on many understandings of the term, Islamic law in all forms has always been a “natural law” theory. Second, advocates of the natural religion doctrine often go to great lengths to avoid heterodoxy and distinguish their views from natural law theories. Third, merely pointing to similarities with natural law does not explain the rhetorical or justificatory function of the natural religion doctrine. I discuss the ambiguities within Fasi’s treatment, and suggest that the natural religion doctrine might be better understood as a concern with realism and feasibility within normative ethics, and the tradition within political theory of constructing “realistic utopian” theories of justice.

10) Franklin Obeng-Odoom (University of Sydney), People’s Power Now! Protest, Demonstration and Agitation in Metropolitan, Municipal and District Assemblies in Ghana. The abstract states:

While Ghana is now widely celebrated as a successful experiment in African democracy, its local governance is fraught with challenges. One key area of discontent is the issue of appointment of mayors. This paper analyses the various forms of protest and agitation against the system and argues that while direct election of mayors may be useful, reform of the system should go beyond election or appointment to empowerment of the demos.

JFB

Creationism Gaining Favor Among Followers of Islam

Recent articles in the New York Times and Washington Post describe the rising appeal of creationism among followers of  Islam around the world.  Unlike many Christian creationists in the U.S., Muslims tend to reject the “young Earth” variant which emphasizes a strict Biblical chronology and asserts that Earth can be no more than a few thousand years old.  In the parts of the Islamic world where creationism has increasing appeal, biological concepts, such as evolution, rather than cosmological or geological ones, are encountering increasing resistance, spurred in part, ironically, by the improvement of science instruction and materials in schools. As more students gain exposure to modern scientific ideas, including human evolution from primates,  increasing numbers view such lessons as contradicting the teachings of the Koran, which includes an account of God creating  Adam out of clay.  In the Times piece, Pakistani physicist Pervez Hoodbhoy recounts how a lecture he gave on cosmological history provoked a “near riot” when he addressed human origins, a reaction he saw as reflecting the audience’s anxiety about such concepts in a society in which “your lineage determines your worth.”   

Today's Post focuses on how creationism has gained a foothold in Turkey as that country experiences the struggle between proponents of the aggressive form of secularism advanced by Ataturk and advocates of greater recognition of religion in national politics and policy. Less than twenty five percent of Turks agree that evolution explains the origins of life, according to a survey published in 2008 in the journal Science.   Opponents of the teaching of evolution in Turkey have been influenced by American opponents of the teaching of evolution and have made appeals invoking rhetoric familiar to Americans, such as assertions that Darwinism propagates fascism and racism.  The principal proponent of the teaching of intelligent design in the U.S, the Seattle  based Discovery Institute has provided considerable assistance to critics of the teaching of evolution in Turkey.

The McGill University Evolution Education Research Center has been conducting studies of the teaching of evolution in Islamic countries.  At a recent conference on creationism in the Muslim world, several participants expressed concern that Islamic countries could be disadvantaged in their development if religious beliefs inhibitthe acquisition of scientific information. However, several scholars have posited that anti-evolutionary feeling may be most fervid among Muslim communities in western countries, emerging as another facet of a larger sense of alienation and discomfort as immigrants try to integrate into western societies.  For example, a McGill study has shown that high school students at Toronto area Islamic schools expressed greater doubt about evolutionary concepts than their counterparts in Pakistan.  According to a McGill survey of 2,527 Pakistani high school students, only  28 percent of the students agreed that “evolution is not a well-accepted scientific fact” while slightly more than 60 percent disagreed. An even larger group, 86 percent, agreed that “millions of fossils show that life has existed for billions of years and changed over time.” In contrast, among students at Toronto area Islamic schools, more than 50 percent rejected the proposition that evolution was supported by “a significant body of data.” 

JFB

Pittsburgh Abortion Clinic Buffer Zone Ordinance Invalidated by Third Circuit

As discussed in the First Amendment Center website, this week the Third Circuit's ruling in Brown v. City of Pittsburgh struck down a Pittsburgh ordinance which, as summarized by the Court, had imposed the following restrictions:

The Ordinance established two different kinds of zones around hospitals, medical offices, and clinics. Within the “buffer zone,” which extends “fifteen feet (15') from any entrance to the hospital and or [sic] health care facility,” “[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate.” The “bubble zone” encompasses “the public way or sidewalk area within a radius of one hundred feet (100') from any entrance door to a hospital and/or medical office/clinic.” Within this one-hundred-foot zone, “[n]o person shall knowingly approach another person within eight feet (8') of such person, unless such other person consents, for the purpose of passing a leaftlet or handbill to, displaying a sign to, or engaging in oral protest, education or counseling with such other person.”

Although the Supreme Court's decision in Hill v. Colorado, 530 U.S. 703 (2000) has created considerable latitude for state and local governments to address concerns about violence and harassment of patients and health care personnel when abortion facilities are targeted by protesters, the Third Circuit panel concluded that the combination of restrictions under the city's buffer zone regime imposed excessive limitations on protest activity.  In July, the First Circuit's ruling in  McMullen v. Coakley rejected a challenge to a Massachusetts statute that proscribes protest activities in a 35 foot zone around reproductive health clinics.

JFB

Coverage of "Religious or Spiritual Healthcare" Proposed for Exchange Component of Health Care Reform

As reported in the LA Times,  Sen. Orrin Hatch has proposed that religious and spiritual health care could not be excluded from the coverage parameters of insurance available through the exchange to be set up for consumers under one version of health care reform legislation. The provision would be particularly beneficial to Christian Science practitioners, whose claims for reimbursement are usually denied under managed care regimes.  Similar  language was removed from the consolidated House bill in response to constitutionality concerns.  As quoted in the Times, UC Irvine Law Dean Erwin Chemerinsky argues that “when Congress mandates health companies provide coverage for prayer, it has the effect of advancing religion.” However, former Tenth Circuit Judge Michael McConnell, now at Stanford’s Constitutional Law Center, sees the provision differently: “[A]s long as the patients are the ones who choose, and religious choices are given  no legal preference or advantage, the proposals would appear to be consistent with constitutional standards.”

The IRS has allowed Christian Scientists to include the cost of prayer treatments as an itemized medical expense for deduction purposes.   The military health insurance system  also allows reimbursement for such prayer treatments.  However,  the possible inclusion of prayer treatments within health care reform is seen by some as at odds with efforts to reduce health care spending by eliminating the use of practices that are cannot be classified as evidence based. 

JFB

First Amendment Scholarship Update

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

1) Margaret Tarkington (Brigham Young University - J. Reuben Clark Law School),  A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, forthcoming in Boston College Law Review. The abstract states:

Throughout the United States, state and federal courts discipline and sanction attorneys who make disparaging remarks about the judiciary and thereby impugn judicial integrity. In so doing, courts have almost universally rejected the constitutional standard established in New York Times v. Sullivan for punishing speech regarding government officials. While courts have imposed severe sanctions regardless of the forum where the speech has occurred, many of the cases involve speech made by attorneys in court proceedings. The existing scholarly literature generally supports the denial of First Amendment protection in such cases, indicating that attorney speech when made in court proceedings is entitled to little, if any, constitutional protection.

In A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, Professor Tarkington examines why a free speech right to impugn judicial integrity must be recognized for attorneys - even, and perhaps especially, when acting as officers of the court and making statements in court proceedings. Such a right is necessary to protect the constitutional and other rights of litigants to an unbiased and competent judiciary. Further, the recognition of such a right in the attorney preserves litigants’ access to courts and due process rights. These rights belonging to litigants are all but lost where attorneys are punished for or chilled from asserting them in court proceedings. Previous scholarly arguments - which are based on analogies to other areas of limited First Amendment protection - fail to account for the protection of the underlying rights of litigants, the role of attorneys in our adversary system, and the constitutionally-required role of the judicial branch. Importantly, the judiciary does not need to punish attorney speech impugning judicial integrity in order to protect its legitimate interests in the just adjudication of cases. In fact, by curbing speech in the presentation of claims, the judiciary undermines its own role and responsibility in remedying constitutional violations and providing fair proceedings.

2) Charles G. Geyh (Indiana University School of Law-Bloomington ), Straddling the Fence between Truth and Pretence: The Role of Law and Preference in Judicial Decision-Making and the Future of Judicial Independence, 22 Notre Dame Journal of Law, Ethics and Public Policy --- (2008). The abstract states:

In this essay, I begin by describing two contrasting models of judicial decision-making. The traditional, law-based model posits that judges, if left to their own devices, will do their best to uphold the rule of law, and to that end, judicial independence is necessary to protect the decisions they make from external interference. The emerging, preference-based model, on the other hand, posits that independent judges exploit their independence by implementing their personal attitudes or values with no particular regard for the rule of law. I will then explain how contemporary debates on such issues as judicial selection, the regulation of judicial speech, the optimal rules for judicial disqualification, and the relationship between judicial independence and accountability generally, are animated by these contrasting models of judicial decision-making. I accept a widely-shared, common-sense view that the dichotomy between law-based and preference-based models is a false one, in that law and preferences both play a role in judicial decision-making. I argue, however, that the legal establishment has been reluctant to depart from the script of the law-based model, for fear that doing so will undermine the primary justification for independence (by conceding that independent judges do more than simply follow the law when they decide cases). I argue that there may be other justifications for judicial independence that ought to hold sway in a world where judicial decision-making involves a complex interplay between law and preference-justifications that liberate judges and lawyers to speak more candidly about the role preferences play in judicial decision-making without conceding the need to curtail judicial autonomy in untoward ways. If we can move toward a broader consensus on what judges do when they decide cases, it may enable more meaningful engagement on such issues as judicial selection, speech, disqualification, independence and accountability.

3) Edward J. Eberle (Roger Williams University School of Law), The Architecture of First Amendment Free Speech. The abstract states:

In my article, The Architecture of First Amendment Free Speech, I set out a framework designed to stabilize free speech law, which is often faced with a wide medley of questions that challenge the coherence of free speech jurisprudence. My article is designed to stabilize free speech and stave off the flurries of thunder that sometimes threaten free speech rights.

4) Ronald K. L. Collins (First Amendment Center), Prologue: Justice Holmes - Father of the Modern First Amendment , published in The Fundamental Holmes: A Free Speech Chronicle & Reader' - Selections from the Opinions, Books, Articles, Speeches, Letters & Other Writings by & About Justice Oliver Wendell Holmes, Jr. (Cambridge University Press, 2010).

5) Pamela Samuelson (UC Berkeley School of Law) and Krzysztof Bebenek (University of California, Berkeley) , Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases, 5 Journal of Law & Policy for the Information Society --- (2009). The abstract states:

It has become lamentably common for courts to issue preliminary injunctions in copyright cases once rights holders have shown a reasonable likelihood of success on the merits without going on to require them to prove that they will suffer irreparable harm unless the injunction issues. Harm is too often presumed to be irreparable if plaintiffs have made out a prima facie case of infringement. This presumption cannot be squared with traditional principles of equity, as interpreted in numerous Supreme Court decisions, particularly eBay, Inc. v. MercExchange LLC, 547 U.S. 388 (2006).

While a presumption of irreparable harm is inappropriate in all copyright cases, it is particularly troublesome in cases involving transformative uses of existing works, such as parodies and remixes and mashups, because free expression and free speech interests of creative users are at stake and transformative uses cases often raise plausible non-infringement defenses. Indeed, if any presumption about harm is appropriate in transformative use cases, it should probably run in favor of irreparability of harm to the defendants’ free expression and speech interests under First Amendment case law which treats preliminary injunctions as presumptively unconstitutional prior restraints on speech.

6) Norman T. Deutsch (Albany Law School), May Religious Worship Be Excluded from a Limited Public Forum? Commentary on the Ninth Circuit Court of Appeals Decision in Faith Center Church Evangelistic Ministries v. Glover , 31 University of Hawaii Law Review --- (2008). The abstract states:

The Supreme Court has struck down every attempt to exclude religious speakers from limited public forums. Nonetheless, governments keep trying to exclude them. A recent example is Faith Center Church Evangelistic Ministries v. Glover. In that case a majority of a three judge panel of the Ninth Circuit Court of Appeals held that religious worship may be excluded from a limited public forum, and a majority of the judges on the Ninth Circuit denied a rehearing en banc. The article explains why this holding violated the First Amendment rights of the religious speakers. It also resolves some of the remaining issues concerning the exclusions of such speakers from limited public forums. The County created a limited public forum when it made its library meeting rooms generally available for a variety of community activities, but prohibited its use for religious services. The principal issue that divided the parties and the judges was whether the exclusion was viewpoint neutral or viewpoint discriminatory. The article makes the point that not only was the exclusion impermissibly viewpoint discriminatory, but that it was also impermissibly content discriminatory. The majority panel reasoned that the exclusion was a constitutionally permissible content discriminatory “blanket exclusion” of subject matter that defined the scope of the forum. In so doing, the majority defined the forum by both its inclusion (community activities) and its exclusions (religious services). The article, however, establishes that limited public forums are defined by their inclusions, not their exclusions. It also clarifies the important difference between permissible and impermissible content based exclusions. Addditionally, the article explains that religious worship is a community activity that inherently expresses a viewpoint. Consequently, the religious speaker sought to bring a religious perspective to otherwise permissible subjects. The County excluded the speaker from doing so because of disagreement with, and hostility towards, religious worship in the forum. It also impermissibly took it upon itself to decide what religious speech is deserving of expression. Consequently, the exclusion should have been subject to strict scrutiny. The article also makes it clear that the government may exclude religious worship from public property depending on the nature of the forum. Once the forum is defined, however, the government must respect the boundaries it has itself created. Having opened its library meeting rooms for community activities, the County could not exclude religious worship absent some narrowly tailored compelling interest. Finally, the article demonstrates that the First Amendment Establishment Clause does not provide such an interest.

7) Wendy Seltzer (Harvard University - Berkman Center for Internet & Society), The Politics of Internet Control and Delegated Censorship, presented to American Society of International Law. The abstract states:

Against the myth that the Internet breaks traditional political boundaries, we find that the Internet itself looks different depending on our vantage point. The "politics of the Internet" includes that of Internet control, identifying chokepoints and the power that can be exerted upon and through them. For notwithstanding the distributed nature of the Internet, traffic to any given point passes through numerous bottlenecks where communications can be blocked. Moreover, major search engines operate as de facto points of centralization. Pressure at these points can change the local nature or view of the Internet, so one state's "Internet" does not look the same as another's. A state that wishes to suppress speech can do so, even online.

8) Gilbert Geis and Elizabeth F. Loftus  ( University of California, Irvine - Department of Psychology and Social Behavior),  Taus v. Loftus: Determining the Legal Ground Rules for Scholarly Inquiry, 9 Journal of Forensic Psychology Practice 147 (2009). The abstract states:

 A published article by Elizabeth Loftus and Melvin Guyer (2002) examined the claim of a psychiatrist that “Jane Doe,” interviewed at age 5 and then 11 years later, had recovered a repressed memory of sexual abuse by her mother. The Loftus-Guyer article resulted in a lawsuit by the young woman who claimed invasions of privacy, defamation, and other injuries. This article details the history of the lawsuit and attends in particular to the tension between free speech as a scholarly right and the role of the courts and of Institutional Review Boards, both of which played a prominent role in regard to the research enterprise.

9) Liav Orgad (Interdisciplinary Center Herzliyah) and Ted Ruthizer (Columbia Law School), Race, Religion and Nationality in Immigration Selection: 120 Years after the Chinese Exclusion Case, forthcoming in Constitutional Commentary. The abstract states:

In May 1889, in the Chinese Exclusion Case, the U.S. Supreme Court decided that Congress has the power to exclude people of Chinese descent from U.S. territory. 120 years have since passed: is this case a relic from another era or still good law? In this article, the authors discuss the question whether race, religion and nationality still matter in the process of immigration selection. They demonstrate how official and central racial classifications remain in current immigration policy. The authors then consider a normative question: is the use of race, religion and nationality in immigration selection legally permitted? They analyze this question under the lens of three normative disciplines: constitutional law, international law and moral philosophy. They show that under each of these disciplines, some forms of race-based criteria are generally permitted in the process of immigrant selection. Focusing on protecting national security as a case study, the authors nevertheless challenge the use of racial immigration criteria based on utilitarian grounds. They show how the use of race in immigrant selection often lacks statistical correlation, is not cost-effective, and is likely to be over-inclusive and far in excess of its potential contribution due to cognitive biases and heuristic judgment. They conclude by suggesting four alternative methods for selecting immigrants: universal selection, positive selection, random selection and racial selection with just compensation.

10) Frances Stewart (University of Oxford - Department of Economics), Religion Versus Ethnicity as a Source of Mobilisation: Are There Differences?, The abstract states:

The root causes of most violent conflicts lie in economic and political factors, often horizontal inequalities of various types. Yet people are organised, united and mobilised by identities, in particular ethnic or religious ones. Most conflict analyses treat religion as a subset of ethnicity. This paper explores differences between these two identities, both by reviewing literature and by analysis of some recent surveys of perceptions in a number of conflict-affected countries. It finds many similarities in mobilisation, with both identities used instrumentally by leaders, but both ‘essentialised’ and ‘believed in’ by those who are mobilised. Yet in both cases, leaders have to cultivate the identity of those mobilised, and that of the ‘other’, to induce violence on any scale. Religious organisation and external support are often stronger than in the case of ethnicity, but there is no evidence that religious conflicts are more deadly than ethnic ones. Preliminary evidence suggests that in the many cases where both identities are present and overlapping, the identity along which mobilisation occurs is determined by demographics and according to the identity which is perceived as being used politically in the allocation of government jobs and contracts. The need for both religious and ethnic leaders to work at mobilisation for some time preceding a conflict gives rise to possibilities of monitoring and intervention to prevent conflict occurring.

11) Lael Daniel Weinberger, Religion Undefined: Competing Frameworks for Understanding 'Religion' in the Establishment Clause, 86 University of Detroit Mercy Law Review --- (2009). The abstract states:

In the midst of all the case law and scholarship on church and state issues, the term "religion" in the Establishment Clause of the U.S. Constitution remains undefined. This article will not start with individual cases and attempt to distill definitions from them. Rather, it will turn to another arena for perspective: the intellectual history of American Christianity. Within the last century, two different frameworks for using the terms “religion” and “religious” have emerged in American Christianity. Understanding these two frameworks gives a fresh perspective on possible meanings for the word “religion” generally, and also points towards some surprising conclusions as to how the modern era of Establishment Clause jurisprudence has been operating on a philosophically inconsistent understanding of religion.

The two frameworks are presented in the first part of this article. The one I refer to as a “dualist” approach, and the other, a “worldview” approach. Part II examines the question of which of these views is more compatible with the Establishment Clause. I suggest that if the issue is reduced to semantics, it will be possible to have the best of both worlds: an Establishment Clause that makes sense while still leaving room for the important philosophical and theological insights of the alternative framework. Part III turns from the theoretical to the practical, and examines how modern Establishment Clause jurisprudence has fit into our conceptual schemes.

12) Richard Stith (Valparaiso University School of Law), Excluding Religion Excludes More than Religion .  The abstract states:

This Article contends that excluding apparently religious perspectives from public debate may inadvertently exclude non-religious perspectives as well, consequently impoverishing public discussion. This contention is demonstrated through an examination of the current debate over embryonic stem cell research, in which the pro-life position is often declared unacceptably religious. The truth is that those who envision the unborn as under construction in the womb do not find a human being present when gestation has just begun, while those who understand the unborn to be developing see an identity of being from conception. But neither view is based on religion. To disqualify the pro-life view as religious would exclude from public debate an important secular perspective.

13) Yuk-Lin Renita Wong and Jana Vinsky, Speaking from the Margins: A Critical Reflection on the ‘Spiritual-But-Not-Religious’ Discourse in Social Work , 39 British Journal of Social Work 1343 (2009). The abstract states:

This paper attempts to make visible the invisible Euro-Christian ethnocentrism and individualism in the ‘spiritual-but-not-religious’ discourse in social work. A critical analysis of the current literature on spirituality and social work, intertwined with the authors' personal narratives of spirituality and religion, calls into question the subject positions of social work authors who argue for differentiating spirituality from religion. We ask: From whose vantage point is the ‘spiritual-but-not-religious’ discourse produced? What gets legitimized and who gets excluded from this particular construction of spirituality? This paper deconstructs the power relations of race, ethnicity, and sexuality in the discourse of spirituality in social work. It destabilizes the assumption of spirituality as non-sectarian and inclusive. Contrary to many social work authors and educators' best intention of inclusivity, we contend that the ‘spiritual-but-not-religious’ discourse in social work may have inadvertently reproduced the process of colonial othering and further marginalization of racialized ethnic groups who are more often represented as ‘religious’.

15) Jonathan H. Adler (Case Western Reserve University - School of Law), Standing Still in the Roberts Court, 59 Case Western Reserve Law Review --- (2009). The abstract states:

This Article, prepared for the Case Western Reserve Law Review symposium on “Access to the Courts in the Roberts Era,” offers a preliminary look at the standing jurisprudence of the Roberts Court. Contrary to claims made by some Court commentators, the Roberts Court has not tightened the requirements for Article III standing. To the contrary, insofar as the Roberts Court has altered the law of standing, it has made it easier for at least some litigants to pursue their claims in federal court. The Court’s decisions denying standing have largely reaffirmed prior holdings. By comparison, some of the Court’s decisions on standing, most notably Massachusetts v. EPA and, to a lesser extent, Sprint Communications Co. v. APCC Services Inc., have lowered the standing bar, perhaps quite significantly. Whatever else has transpired with regard to citizen “access to federal courts” in the first four years of the Roberts Court, standing for citizens to invoke the jurisdiction of federal courts remains in place.

16) Eduard J. Bomhoff (University of Nottingham Malaysia Campus), Islam and Democracy: Malaysia after 50 Years. The abstract states:

This paper reflects on the first 50 years of independent Malaysia. Using data from the World Values Survey, it documents that the Chinese in Islamic Malaysia declare themselves to be happier than the Chinese in Chinese-dominated Singapore. With its 50-50 split between Muslims and non-Muslims, Malaysia was at a high risk of civil war, but preference policies for the Muslim Malays, severe restrictions on free speech and, especially, rapid economic growth have contributed to social peace. Attitudes of Malaysians on social issues are somewhat more tolerant than in the Arab world, but much less tolerant than in today’s Western nations. The paper discusses the tensions between democracy, religion and tolerance and concludes that Rawls’ idea of “public reason” gives a good perspective on the experiences of both Christian and Islamic societies.

17) Eduard J. Bomhoff and Mary Gu (University of Nottingham Malaysia Campus), A Cross-National Study of Religion and Political Orientations: Evidence from the World Values Survey.  The abstract states:

This paper presents a cross-country empirical analysis of the relationship between religion and political attitudes among the Catholic and Muslim publics, using the most recent data from the World Values Survey (WVS). We find that public support for democracy is stronger among the better educated in both the Catholic and Muslim countries. Contrary to the conventional belief that pious believers are less receptive to democracy, religiosity, measured by belief in God, is found to have a significant positive impact on desire for democracy in both types of society. Our findings further indicate that at the societal level, overt support for democracy is consistently positively correlated to the attachment of a set of more implicit tolerant civil values in the Catholic countries, while exactly the opposite is observed in the Islamic countries.

18) Ruth Dixon-Mueller (Consultant , International Women's Health Coalition), Adrienne Germain , Kate Bourne and Beth E. Fredrick, Towards a Sexual Ethics of Rights and Responsibilities, 17 Reproductive Health Matters 111( 2009). The abstract states:

Sexual rights as human rights encompass individual freedoms and social entitlements. Both depend for their realisation on equally important social responsibilities on the part of individuals, couples, families, other social institutions, and the State. The principle that all persons must understand their own sexual rights and responsibilities and respect the equal rights of others − particularly those of their sexual partners − informs our interpretation of the ethical basis of sexual behaviours. We propose a conceptual framework for defining a sexual ethics of equal rights and responsibilities pertaining to five dimensions of sexual behaviour: 1) sexual relationships and the right to choose one’s partner; 2) sexual expression and the right to seek pleasure; 3) sexual consequences and the right to cooperation from one’s partner; 4) sexual harm and the right to protection; and 5) sexual health and the right to information, education and health services. We suggest that the ethical principles presented here pertaining to sexual partnerships should be incorporated into sexuality education, sexual and reproductive health services, and social policies aimed at promoting the health and rights of all persons regardless of gender, marital status, sexual orientation, religion, ethnicity and other personal or group identities.

19) Julia Shear Kushner, Comment - The Right to Control One's Name, 57 UCLA L. Rev. 313 (2009). The abstract states:

Is there a constitutionally protected right to choose one’s name? This Comment seeks to answer this question and to evaluate current government control over the name choices of adults. It first discusses the conflicting interests in names as identification and communication tools, as an expressive medium, and as a com- ponent of identity. It then summarizes the current law of name changes. Next, the Comment explores potential First Amendment free speech challenges and potential Fourteenth Amendment substantive due process challenges to existing name law. Finally, it discusses several policy reasons for altering the existing statutory schemes and ways that states might do so.

JFB