First Amendment Scholarship Update

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

1) Stephen Matthew Feldman (University of Wyoming - College of Law ),Divided We Fall: Religion, Politics, and the Lemon Entanglements Prong, 7 First Amendment Law Review --- (2009). The abstract states:

The 2008 campaign for the presidency should remind Americans that mixing religion and politics can be dangerous. Polls show that more than half of American voters would hesitate to support a Mormon candidate. In terms of Establishment Clause doctrine, the entanglements prong of the Lemon test provides a mechanism for protecting political equality by ensuring against religiously-inspired political divisiveness. Yet, in recent years, numerous scholars and Supreme Court Justices have attacked the entanglements prong. Indeed, the Court has poked so many holes in the entanglements inquiry that it may no longer exist. This Article defends the political-divisiveness component of the entanglements prong. The political theory of pluralist democracy, the social science research documenting the power of religious identity, and the history of religious discrimination in the United States demonstrate that the importation of religious divisions into the political realm can thwart the pluralist democratic process. Pluralist democracy demands that each and every citizen be afforded a full and fair opportunity to participate, to assert his or her interests and values in the democratic arena. Citizens, then, must be willing to negotiate and compromise with other citizens, who are equally entitled to assert their interests and values. But religiously-inspired political positions sometimes cannot be compromised; they are absolutes. Moreover, when political stances form around religious orientations, religious outsiders inevitably lose merely because they are minorities. Throughout American history, dominant religious groups have translated their values into political goals and imposed them on minorities. Given this, the Court should promote political equality and protect religious minorities from the ravages wrought by religiously-inspired political divisiveness. To do so, the Court should interpret the Establishment Clause to proscribe governmental programs funding religious activities and institutions and governmental displays of religious symbols.

2) Raphael Cohen-Almagor (University of Hull), Israel and International Human Rights , published in
ENCYCLOPEDIA OF HUMAN RIGHTS, Vol. 3, pp. 247-257,Frederick P. Forsythe, ed.( Oxford University Press, 2009). The abstract states:

Israel was established as a Jewish democracy. The relationship between state and religion, therefore, is critical when one analyzes the protection of human rights in the country. It is argued that human rights cannot be effectively secured without a clear separation between state and religion is enacted. It is further argued that the safeguard of equal rights and liberties for all citizens nothwithstanding nationality, religion, race or colour is a critical issue, in particular when it comes to the rights of the Israeli-Palestinians.

This Entry consists of five sections: (1) The Jewish Democracy and (2) Human Rights legislation which lay the foundations for understanding human rights in Israel. Sections (3) about the Israeli-Palestinians (many Arabs in Israel prefer to be called Palestinians; in referring to this minority I use the terms “Palestinian” and “Arab” interchangeably), and (4) State and Religion probe the two major human rights concerns in Israel. Then section (5) will shed light on important human rights precedents aimed to secure fundamental rights and liberties of all Israeli citizens.

3) Raphael Cohen-Almagor (University of Hull), Holocaust Denial is a Form of Hate Speech, published in Amsterdam Law Forum, 2009 The abstract states:

Recently Facebook confirmed that it has disabled a group called "I Hate Muslims in Oz." Barry Schnitt explained: "We disabled the ‘I Hate Muslims in Oz’ group… because it contained an explicit statement of hate. Where Holocaust-denial groups have done this and been reported, we’ve taken the same action".

Facebook distinguishes between "explicit statement of hate" and Holocaust denial. Its directors believe that Holocaust denial is not hateful per se and does not therefore contravene the company’s terms of service. The terms of service say: "You will not post content that is hateful, threatening, pornographic, or that contains nudity or graphic or gratuitous violence". Schnitt said: "We're always discussing and evaluating our policies on reported content, but have no plans to change this policy at this time. In addition to discussing it internally, we continue to engage with third-party experts on the issue".

In this short piece I wish to take issue with the assertion that Holocaust denial is not hateful per se. My aim is to show that it is, and therefore that Facebook should reconsider its position. All Internet providers and web-hosting companies whose terms of service disallow hateful messages on their servers should not host or provide forums for such hate-mongering. This is of urgent need as Holocaust denial is prevalent in Europe, the United States, and across the Arab and Muslim parts of the world. Iran's regime, under the disputed leadership of President Mahmoud Ahmadinejad, has made questioning the Holocaust one of the centerpieces of its radical ideology, brazenly proclaiming falsehoods about one of the most thoroughly documented periods in history. In December 2006, he convened an "International Conference Review of the Holocaust: Global Vision" designed to address the "need" to establish whether the Holocaust actually happened. Ahmadinejad’s Holocaust denial is accompanied by outrageous statements, such as Israel should be "wiped out from the map", and by controversial nuclear policy. Hateful words are part of a calculated strategy to denounce Israel and bring about a "World without Zionism".

4) Russell Powell (Seattle University School of Law), Forgiveness in Islamic Jurisprudence and its Role in Intercommunal Relations. The abstract states:

Some commentators characterize the relationship between Islam and other religions as a clash of cultures. Deep seated senses of harm, whether arising from the Crusades or 9/11, make the process of intercommunal engagement particularly challenging. However, some contemporary Muslim scholars propose a new paradigm for constructive interaction with non-Muslim communities that is authentically rooted in Islamic jurisprudential and textual traditions. The paper explores a number of potential starting points for intercommunal toleration, forgiveness, and reconciliation within Islamic tradition. Islamic jurisprudence contains deep commitments to forgiveness and reconciliation in its textual traditions (the Quran and Sunna), in its classical jurisprudence (particularly in criminal and international law), and in its modern intellectual engagement (e.g., the dialogue work of the Gulen movement).

5) Adam S. Hofri-Winogradow (Hebrew University of Jerusalem, Faculty of Law), The Muslim-Majority Character of Israeli Constitutional Law , 2 Middle East Law and Governance --- (February 2010). The abstract states:

This article offers a novel interpretation of Israel's constitutional discourse. It is well-known that despite its Jewish majority, Israel orders marriage and divorce in a manner similar to that prevalent in most Muslim-majority countries: by granting the traditional religious community courts of the various religious groups which make up its population exclusive jurisdiction over community members' matters of marriage and divorce. What is less well known is that Israel's constitutional discourse, too, fits a pattern common in Muslim-majority jurisdictions, in espousing a double commitment to both a religion - in Israel's case, - Judaism - and human rights. The Israeli Supreme Court has for decades emphasized Israeli constitutional law's commitment to liberalism and human rights while de-emphasizing its commitment to religion. Consistently with this approach, the Court has considered Israel's marriage regime an anachronistic blot on the law, and has constructed an alternative, civil marriage regime to serve the needs of Israel's secular liberals, whose views the Court often echos. I argue that the Court should strive to render its liberal policy choices more palatable for Israel's conservatives, by presenting them as the results of a harmonization of the religious and human rights pillars of Israel's constitutional discourse, investing in a close analysis of religious texts directed at legitimating those choices, where possible, in religious terms. A recent Israeli case hints in this direction. I conclude by suggesting that Israel's Muslim-majority type marriage regime, updated to include a civil marriage alternative, could be seen as a reflection of its complex constitutional order.

6) Justin R. La Mort (Benjamin N. Cardozo School of Law), The Soundtrack to Genocide: Using Incitement to Genocide in the Bikindi Trial to Protect Free Speech and Uphold the Promise of Never Again, forthcoming in 4 Interdisciplinary Journal for Human Rights Law --- (2010).  The abstract states:

The promise to “never again” allow the crime of genocide is often made, although promises alone were not enough to protect the victims in Srebrenica and Kigali. Legal concepts such as universal jurisdiction and the Responsibility to Protect are being used, or at least considered, as ways to uphold this promise, but the Genocide Convention still remains the main means of protection. One of the Convention’s tools of prevention and punishment is the criminalization of “direct and public incitement to commit genocide.” The meaning of these seven controversial words will help decide where the international community draws the line between preventing the crime of crimes and protecting the fundamental right of free speech.

The claims of genocide are increasing, while advocates are pushing for expanding the Convention’s boundaries. No one wants to allow the next genocide. No one wants to allow perpetrators to escape punishment. This does not mean that in striving towards “never again” we sacrifice free speech as a casualty of war. Freedom of speech is “the indispensable condition of nearly every other form of freedom.” A vague or overly expansive interpretation of incitement will be abused and misused by dictators in silencing artists, journalists, and genuine political opposition. A limited, well-defined interpretation will still allow for the intended purpose of prevention and punishment of genocide, yet respect the basic tenets of free expression.

The upcoming appeal of Rwandan musician Simon Bikindi, who was charged with incitement to genocide in various contexts, including direct calls to action, implicit appeals, music composition, and failure to prevent radio broadcasts of his songs, will allow the International Criminal Tribunal for Rwanda (ICTR) to clarify the elements of incitement to genocide. Based upon a review of the genocide jurisprudence and the lessons learned from the American experience, I propose the following test: whether the speaker directly, seriously, and publicly urges the commission of genocide in the near future and that the message is reasonably likely to produce such action. Explicitly incorporating an imminence standard will permit incitement to genocide to serve its intended purpose of prevention while safeguarding freedom of speech.

This analysis is divided into six parts. Part I reviews the background of Simon Bikindi whose case has the potential to elucidate the incitement to genocide standards. Part II tracks the development of international law in response to the Holocaust and Rwandan genocide, while Part III examines nearly a century of U.S. experience in balancing speech and security. Part IV canvasses the proposed tests leading to Part V, which explains why the proposed imminence test should become the accepted standard. Lastly, Part VI details the test’s application in Bikindi’s appeal.

7) Konstantinos G. Margaritis, The Freedom of Religion and its Limits in Greece and the Netherlands: A Comparative Approach. The abstract states:
 
This paper presents the freedom of religion as it is included in the Constitutions of two EU Member States with a different cultural and historical background. The starting point is the constitutional history of the countries concerning this specific freedom up to nowadays. A brief case-law analysis of the ECHR is also included. After that a comparative approach is attempted, mostly textual, with reference to the major historical and social facts that influenced changes within the freedom of religion constitutional provisions in Greece and the Netherlands.

8) Malla Pollack, Governmental Marks: What Souvenirs Say About Speech and Sovereignty. The abstract states:

"Governmental marks” are words or phrases which involve the identity of a social group that is partly defined in terms of its citizenship in a government-institution. The power to name a social group (especially one from which exit is difficult) confers enormous power over the group’s members. Legally classifying such words as trademarks commodifies them, increasing the namer’s power: both by giving the word monetary value and by providing the mark-holder with the legal right to prevent others from manipulating the word’s meaning.

Destination marketing employing governmental marks has become ubiquitous. The municipal governments of both New York City and Las Vegas used the courts to prevent local businesses from selling unlicensed souvenirs decorated with trademarks referring to their respective cities. The courts treated these disputes as no different from litigation over shoe-brands; even if the courts had classified the disputed marks as governmental, they could have ruled for the plaintiffs by invoking the doctrine of government speech.

This article argues against allowing mark-rights in governmental marks. It weaves together marketing literature, examples of recent marketing campaigns by various public-appearing entities, concepts from trademark law, free speech literature, and critiques of government accountability to illuminate the conceptual slippages demonstrated by these cases and by current marketing practices. First, most governmental marks lack a basic requirement for trademark-status; such marks generally do not signify one unique source. Furthermore, even if commercial practice led a substantial percentage of the public to perceive a unique source, legal recognition of such a source is incompatible with liberal, representative government. Additionally, the current practices in which governmental marks are embedded are counter-productive because they decrease citizen-control of government.

9) Dilan Thampapillai (Victoria University - Faculty of Business and Law), Cronullified: Can the Commonwealth Regulate Low Level Racist Speech? , The abstract states:

Political commentary on race, multiculturalism and national identity can be very controversial because it often appears to demarcate a line between those Australians who are ethnic and cultural insiders and those who are outsiders. This type of speech can venture into the territory of being low level racial vilification speech. That is, speech that contains overtones that are hostile or contemptuous towards a particular racial group but which does not overtly espouse hatred. Low level racial vilification speech serves to exclude others from being truly equal within the community. Yet it does not appear to be effectively regulated under the Racial Discrimination Act. However, this type of speech deserves some form of public censure. In this article I analyse low level racial vilification speech in the context of political speech. I consider whether it is possible to implement a policy scheme where speech with racist overtones, as opposed to hate speech, can be subjected to some form of official censure whilst, in the interests of not unduly restraining political speech, not being prevented from being published or disseminated.

10) Kevin J. Greene (Thomas Jefferson School of Law), Intellectual Property Expansion: The Good, the Bad, and the Right of Publicity, 11 Chapman L. Rev. 521 (2008). The abstract states:

Using an analogy from hip-hop music, where a long-running dispute or "beef" has existed between East and West Coast rappers, in recent years a "beef" has emerged between two camps, the Intellectual Property (IP) Restrictors and the IP Expansionists. The divide typically features "rights holders, their investors and representatives" on the one side and "[liberal] academics ... consumer advocates, and civil libertarians" on the other. In rap "beefs," someone often ends up getting shot. In IP "beefs," no one has been shot to date or, at least, there is no record of violence. But there has been considerable sniping among academics, as anyone attending Association of American Law Schools (AALS) IP section meetings and various IP scholarly forums around the country can attest.

This article focuses on the right of publicity. A lot has been said about the right of publicity, most of it negative. The right of publicity, many analysts say, is out of control. They say it promotes censorship and "redistributes wealth upwards." The right of publicity creates significant tension with, and indeed threatens, core values of free speech. The right of publicity, in short, has a lot of analytical problems and yet, like all other forms of IP, it has expanded in recent years.

This article sketches how the expansion of the right of publicity fits into the rest of IP expansion, with a focus on trademark law and copyright law in the area of artistic creation. The right of publicity shares the closest doctrinal similarity to trademark law. Virtually every celebrity right of publicity case is co-joined with a Lanham Act trademark claim. Right of publicity cases, like trademark claims, make sense and are typically uncontroversial when they occur in a zone of pure commerce, such as advertising use. But both claims become problematic when they move toward artistic-related uses. The article's thesis is that IP expansion should look to enhance artistic creation at the bottom of the entertainment ecosystem, where the real creativity has always originated, rather than at the top.

In keeping with the theme of the author's work of recent years, this article uses African-American cultural production as a starting point of analysis. The reasons for doing so are three-fold: First, black cultural production is at the center of expressive creativity in American culture and has been since the slave songs of the 1800s, to the blues and jazz of the 1900s, up through the rap music of today. Second, black artists can stand in for socially and economically disadvantaged persons of all groups. Blacks have been at the "bottom of the barrel" of American society until very recent times. Third, as blacks have become upwardly mobile within society, their treatment illustrates how economic stratification skews the benefits of IP protection.

11) Kevin J. Greene (Thomas Jefferson School of Law), Trademark Law and Racial Subordination: From Marketing of Stereotypes to Norms of Authorship, 58 Syracuse L.  Rev. 431 (2008). The abstract states:

Trademark protection, as with intellectual property (IP) protection across the board, has expanded in recent years. Some contend that IP expansion has occurred primarily at the behest and for the benefit of large corporate conglomerates. Professor Greene's previous work has contended that trademark expansion has the potential to negatively impact cultural production and free speech, particularly in the expressive context of entertainment products such as music, film and television. Trademark critics have grown vocal in recent years about the misuse of trademark law. Similarly, numerous academic commentators have detailed the deleterious effects of a too-robust trademark law regime.

There is also increasing recognition, among academics at least, that trademark law and IP law generally impact diverse constituencies, including creators, consumers, and corporations. However, outside of the topic of racially offensive trademark registrations, IP scholars have devoted relatively scant analysis to the intersection of race and trademark law. Professor Greene's scholarship, however, has closely examined African-American cultural production and its relationship to intellectual property, particularly copyright law.

In this article, Professor Greene explores trademark law in conjunction with racial dynamics within American culture. The article's thesis consists of three points. First, although trademark law, like copyright, is a formally "race-neutral" legal regime, it has both impacted and been impacted by the racial dynamics underlying American society. In the United States, our public discourse has historically focused on racial classifications and stereotypes.

Second, far from being at the fringes of the process of racial subordination, trademarked imagery has been central to the promotion of derogatory racial stereotypes. Negative racial stereotypes have generally declined as norms of racial equality have taken hold in our society. However, despite progress in race relations, the resonance of stereotypes is still profoundly strong in American culture and is reflected in stereotypical trademark uses.

Third, drawing on the work of scholars with "critical" perspectives of the law, this article contends that the treatment of African-American artists, consumers and producers within the IP context can serve as a barometer for how our society serves (or disserves) the least advantaged in society. A corollary of this point is that where a group's civil rights are weak, so is the degree of protection afforded by the IP system. IP protection or lack thereof is related to racial subordination and can serve as a leading indicator of racial progress.

JFB