First Amendment Scholarship Update

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

1) Orin S. Kerr (George Washington University Law School), Vagueness Challenges to the Computer Fraud and Abuse Act, forthcoming in Minnesota Law Review, 2010. The abstract states:

This Article argues that the void for vagueness doctrine requires courts to adopt narrow interpretations of the Computer Fraud and Abuse Act. On its face, the CFAA has become extraordinarily broad. Recent amendments indicate that Congress has largely abandoned the job of identifying what conduct involving computers should or should not be a federal crime. Congress has broadened the statute so far that the courts must now narrowly construe the statute to save its constitutionality.

This Article demonstrates how courts should narrowly construe the statute under the void for vagueness doctrine by focusing on two recent criminal prosecutions: United States v. Drew, which considered whether Terms of Service violations trigger CFAA liability, and United States v. Nosal, which asked whether it violates the CFAA for employees to access their employers’ computers in ways contrary to their employers’ interests. These two prosecutions show the critical role of vagueness doctrine in interpreting the CFAA, pointing to a future of judicial narrowing of the statute.

2)  Daniel Simard (York University - Osgoode Hall Law School) and Omar Ha-Redeye (University of Western Ontario),  War-Time Propaganda: From Nazi Germany to Minorities in Canada Post 9/11.  The abstract states:

Although propaganda has been present throughout the ages, the greatest propaganda battle in history was witnessed during WWII. Coercion replaced the consultation process, and all parties involved sought to justify their legitimacy and role in the war through mass media. Even though the Germans are notoriously famous for the degradation of their national minorities, similar acts occurred in North America. Linkages between negative characterizations of ethnic groups in the media and discrimination, violence, and justification of war crimes can be seen on both sides of the Atlantic. Canadian society was not merely an innocent bystander, as such, it was not immune from such participation, and violation of minority rights through one-sided messages occurred here as well. This pattern of minority degradation continues to the present day, albeit in a less grandiose and explicit manner, and its insidious effects are readily
observable.

3) Neil James Foster (Newcastle Law School),  Freedom of Religion and Discrimination - Two Important UK Cases . The abstract states:

Two recent UK cases deal with the question of how the freedom of religion right interacts with laws prohibiting discrimination on the grounds of race or sexual orientation. [ The  two cases are R (on the application of E) v. Governing Body of JFS and the Admissions Appeal Panel of JFS [2009] UKSC 15 (16 Dec 2009) and Ladele v London Borough of Islington [2009] EWCA (Civ) 1357 (15 December 2009) ].

4) Ernst Willheim (Australian National University - ANU College of Law), Australian Legal Procedures and the Protection of Secret Aboriginal Spiritual Beliefs: A Fundamental Conflict, published in LAW AND RELIGION IN THEORETICAL AND HISTORICAL CONTEXT, Cane, Evan Robinson, eds. (2008). The abstract states:

The essays in this book explore the intersections between law and religion. When Australian law intersects with Aboriginal religion the outcome is a massive collision. This essay explores that collision, a collision between core legal values of the dominant legal system and core religious values of a small minority group, Aboriginal Australians. That collision, or conflict, arises because Aboriginal religions are fundamentally different from mainstream religions. That difference is legally significant. But the dominant legal system has failed to accommodate the difference. In this essay I contend that Australian law has failed to resolve a fundamental conflict between, on the one hand, basic common law values including openness and transparency in public administration, open administration of justice, a legal culture that gives special weight to the protection of private property interests and, on the other hand, Aboriginal religious values, in particular, the secret nature of much Aboriginal religious belief. I further contend that, because Australian law has failed adequately to recognize and to adapt to the secret nature of much Aboriginal religious belief, because common law values particularly principles directed at protection of private property interests prevail, laws enacted for the purpose of protecting Aboriginal religious beliefs have failed to achieve their purpose. The final part of the essay offers suggestions for reform, including mechanisms for protecting the confidentiality of secret spiritual beliefs.

JFB