First Amendment Law Prof Blog

Canadian Supreme Court Modifies Libel Defense Standard

The Supreme Court of Canada recently recognized a "responsible journalism" defense to libel actions filed against media defendants who write on matters of public concern.  It appears from a quick reading of the case that journalists accused of publishing a defamatory fact can escape liability by proving that they checked and verified sources, instead of proving, as was required under the prior law, that the statement itself was "substantially true."

From a comparative perspective, the case is significant in a couple of respects.  First, the Canadian SCT considered but ultimately declined to import the "actual malice" standard announced in NY Times v. Sullivan.  Second, foreign law was an important source of authority for interpreting the Canadian Charter of Rights and Freedoms.  Chief Justice Beverley McLachlin took account of "the jurisprudence of other common law democracies," noting a trend towards greater protection in countries with "common law traditions comparable to those of Canada." A unanimous court agreed with the substantive outcome, and no Justice criticized the decision to consider how libel law is treated in the US, the UK, Australia, New Zealand and South Africa.

Convincing a unanimous US Supreme Court to consider the status of foreign law when deciding a major constitutional case simply wouldn't happen.  Not now anyway.  While foreign law has influenced the decisions of a number of Justices in recent years (Ginsburg, Souter and O'Connor come to mind), "originalists" like Scalia insist that the only relevant foreign law is that which comes from eighteenth century England.  As a source of constitutional interpretation, foreign law (as well as international law) are off the table.   

-Kathleen Bergin

Right of Access Extended to NY Transit Hearings

The public has a right to access hearings conducted by New York's Transit Adjudication Bureau.  So held the Southern District of New York last week when it temporarily enjoined a TAB policy that required the defendant's consent to open the proceedings. 

The court found that TAB hearings "walk, talk, and squawk" like a trial, so the logic that favors open access in the criminal context applies with equal force here.  Moreover, though the US Supreme Court has yet to squarely address whether access rights apply outside of the criminal context, the law in the Second Circuit extends access to certain civil proceedings.

The case might not seem like such a big deal; I mean, how excited can we get when someone's charged with jumping a turnstile or gambling on the subway.  But petty infractions like these provide a ripe opportunity for police harassment and misconduct, especially when watchdogs (like the NY Civil Liberties Union which brought the case) are barred from subsequent enforcement proceedings.  Moreover, the deck is stacked in favor of the police absent a right of access since the decision of whether to press charges in an open criminal proceeding or presumptively closed administrative hearing is left to their unbridled discretion.

More from Roy Edroso, The Village Voice.

photo credit: subwayblogger.com

-Kathleen Bergin

Pew Forum Releases Ranking of States by Indicators of Religiosity

Last week the Pew Forum on Religion & Public Life released its findings on the levels of reported religiosity in the states. The analysis considered four measures derived from polling data: the stated importance of religion in people's lives, the frequency of attendance at religious worship, the frequency of prayer, and respondents’ indication of their certainty of belief in God.  Listed in descending order, the ten states ranking highest according to these factors were: Mississippi, Alabama, Arkansas, Louisiana, Tennessee, South Carolina, Oklahoma, North Carolina, Georgia, and Kentucky.  Data from Mississippi showed 82 %  of the representative respondent sample characterized religion as very important in their lives,  77% prayed at least once a day, 60% attended a religious service once a week, and 91% expressed absolute certainty in their belief in God.

JFB

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

District Judge Dismisses Constitutional Challenge to Federal Obscenity Law

As reported by Blog of the Legal Times, yesterday Judge Richard Leon of the U.S. District Court for the District of Columbia denied pornography producer John Stagliano’s motion to dismiss the federal indictment charging him and his company, Evil Angel Productions, with selling and transporting obscene material across state lines.  The producer’s constitutional challenge had three principal elements: that "contemporary community standards" provided too vague a standard by which to judge whether Internet speech was obscene, that Lawrence v. Texas established a right to sexual privacy that would protect the ownership and sale of sexually explicit films, and that using D.C. as a venue for an obscenity prosecution would chill of pornography companies from pursuing copyrights and establish D.C. juries as the effective "final arbiters" of obscenity standards. Despite rejecting the motion, Judge Leon did state that he would consider allowing Stagliano to pursue an immediate appeal to the D.C. Circuit. 

JFB

Ninth Circuit OKs Cameras in District Court

An experimental program to allow cameras into the 15 district courts of the Ninth Circuit has been approved by the Ninth Circuit Judicial Council.  For the time being, video recordings will be allowed in non-jury civil matters only, and when the case is approved by the Chief Judge of the district and the Chief circuit judge.  A 1996 policy barred photographs as well as television and radio broadcasts of district court proceedings, though oral arguments at the Ninth Circuit have been recorded since 1991.

-Kathleen Bergin

House Considers First Federal Anti-SLAPP Legislation

HR 4364 was introduced last week by Tenn Rep. Steve Cohen, and referred to the House Judiciary Committee for consideration.  The Citizen Participation Act would be the first anti-SLAPP law that applies to federal cases, though 28 states have similar statutes.  The act would provide immunity for defendants who engage in protected First Amendment activity, and includes a fee-shifting mechanism to discourage frivolous lawsuits.   

-Kathleen Bergin

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

Texas SCT Responds to First Amendment Concerns in Attorney Disciplinary Rules

The Texas Rules of Disciplinary Procedure bar anyone who files a complaint against an attorney from disclosing pretty much anything having to do with the allegations, whether those disclosures are made publicly or in private.  Rule 2.16 states that disciplinary proceedings are "strictly confidential and not subject to disclosure" even by the complaining party, except by court order, when the respondent consents, or when the lawyer has been convicted for a serious crime. 

On January 1, 2010, however, Supreme Court Order 09-9191 takes effect.  The revision lifts the gag rule on complaining parties, though a confidentiality requirement still applies to disciplinary officers in most circumstances until any appeals are exhausted.   

I'm not sure how common these confidentiality provisions are, but a similar rule in Louisiana was ruled unconstitutional last April by that state's supreme court.  Texas did the right thing here by aligning it's own rules with the First Amendment, and in doing so fending off a likely legal battle.

-Kathleen Bergin

Restrictions on Religious Practice Around the World Examined in New Pew Study

Pew Forum on Religion & Public Life has issued a new report entitled “Global Restrictions on Religion.” As reported in its Executive Summary, the Pew study includes the following findings:

64 nations – about one-third of the countries in the world – have high or very high restrictions on religion. But because some of the most restrictive countries are very populous, nearly 70 percent of the world’s 6.8 billion people live in countries with high restrictions on religion, the brunt of which often falls on religious minorities.

Some restrictions result from government actions, policies and laws. Others result from hostile acts by private individuals, organizations and social groups. The highest overall levels of restrictions are found in countries such as Saudi Arabia, Pakistan and Iran, where both the government and society at large impose numerous limits on religious beliefs and practices. But government policies and social hostilities do not always move in tandem. Vietnam and China, for instance, have high government restrictions on religion but are in the moderate or low range when it comes to social hostilities. Nigeria and Bangladesh follow the opposite pattern: high in social hostilities but moderate in terms of government actions.

Among all regions, the Middle East-North Africa has the highest government and social restrictions on religion, while the Americas are the least restrictive region on both measures. Among the world’s 25 most populous countries, Iran, Egypt, Indonesia, Pakistan and India stand out as having the most restrictions when both measures are taken into account, while Brazil, Japan, the United States, Italy, South Africa and the United Kingdom have the least.

JFB

Relationships Between American Islamic Organizations and FBI Grow Increasingly Strained

n article in today’s New York Times recounts the deterioration of relationships between the FBI and a number of local and national Islamic organizations that had once been seen as valuable resources as investigators conducted counter-terrorism inquiries. Groups such as the Islamic Society of North America,  the  Arab Muslim American Federation, and the Council on American-Islamic Relations attribute mounting fear and resentment in Muslim communities to concerns about the infiltration of mosques, agency tactics that are perceived as efforts of entrap Muslim youth, the use of racial and ethnic profiling, and the shutting down of Islamic charitable organizations based on allegations that they funnel funds to Hamas and other terrorist organizations.   

JFB 

Religion Newswriters List Top Religion News Stories of 2009

Religion Newswriters Association has published the results of its annual poll of its members, reporters covering s  religion in general circulation media. The results are as follows:

1. President Obama pledges a new beginning in Muslim-U.S. relations and reaches out to the world's Muslims during a major speech at Cairo University.

2. Health-care reform, the No. 1 topic in Congress for most of the year, involves faith-based groups appealing strongly for action to help "the least of these,” and others, such as the Roman Catholic bishops, for restrictions on abortion funding.

3. Because Maj. Nidal Hasan, the accused gunman in the Fort Hood massacre, was considered a devout Muslim, the role of that faith in terrorism again comes under review; some fear a backlash.

4. Dr. Carl Tiller, regarded as the country’s leading abortion doctor, is gunned down while ushering in his Wichita Lutheran church. Scott Roeder, charged with his murder, is described as a man suffering from delusions and professing radical religious beliefs.

5. Mormons in California come under attack from some supporters of gay rights because of their lobbying efforts in the November 2008 election on behalf of Prop. 8, which outlawed gay marriage. Later in the year, Iowa, Vermont and New Hampshire approve gay marriage, but it is overturned by voters in Maine.

6. President Obama receives an honorary degree and gives the commencement speech at Notre Dame after fierce debates at the Roman Catholic university over Obama's views on abortion.

7. The Evangelical Lutheran Church in America votes to ordain gay and lesbian clergy who are in a committed monogamous relationship, leading a number of conservative churches —known as the Coalition for Renewal—to move toward forming a new denomination.

8. The recession forces cutbacks at a great variety of faith-related organizations—houses of worship, relief agencies, colleges and seminaries, publishing houses.

9. The Episcopal Church Triennial Convention votes to end a moratorium on installing gay bishops, ignoring a request from the archbishop of Canterbury. At year’s end Los Angeles chooses a lesbian, Mary Glasspool, as assistant bishop. Earlier, an elected bishop in Upper Michigan, Kevin Thew Forrester, is rejected because of his extreme liberal views.

10. President Obama’s inauguration includes a controversial invocation by Rick Warren and a controversial benediction by Joseph Lowery, as well as a pre-ceremony prayer by gay Bishop Gene Robinson.

11. The European Parliament votes to widen anti-discrimination laws to require churches, schools and social services to open their membership to those who do not share their beliefs. The required approval from all member states is not considered likely. Meanwhile, some countries crack down on immigrant religions; the Swiss vote restrictions on the building of minarets.

12. The Anglican Church in North America elects Robert Duncan, deposed Episcopal bishop of Pittsburgh, as archbishop, signifying that the breakaway group is not going to go away.

13. Obama’s executive order allowing federal funds to be used for embryonic stem-cell research worries some anti-abortion supporters, is played down by others. The importance of ultrasound technology in preventing abortions is debated.

14. Religious animosity in Iraq among Muslims continues to plague efforts to build a lasting peace. And it continues as one of the barriers to a settlement in the Middle East.

15. Pope Benedict XVI issues Caritas in Veritate encyclical, applying Catholic social-justice emphasis to economic life; shortly afterward he meets with Obama.

16. Obama creates a board-based commission to deal with faith-based matters in his administration but many conservatives remain suspicious of what it will accomplish. His overseas statement that America is not a Christian nation draws criticism from the religious right, but his supporters argue it was taken out of context.

17. The 200th anniversaries of the births of Charles Darwin and Abraham Lincoln are both marked on Feb. 12; many seminars and discussions consider Darwin’s effect on religion and religion’s effect on Lincoln.

18. The Supreme Court again considers legality of placement of crosses on public land; a decision in the Mojave National Preserve case will come in 2010. Related cases make their way through federal courts.

19. Declines in membership lead Southern Baptists to decide on a new evangelism strategy, Great Commission Resurgence, but some SBC leaders believe the emphasis is misplaced.

20. Changes in leadership leads to tension at some of America’s best known churches—the Crystal Cathedral in California, Coral Ridge Presbyterian and the Church Without Walls in Florida, Riverside in New York City.

21. An immigration raid on a Kosher slaughterhouse leads to fears of shortages in Kosher meat and higher prices.

22. The Catholic bishop of Rhode Island, Thomas Tobin, asks U.S. Rep. Patrick Kennedy to refrain from taking communion because of some of his positions, notably on abortion.

23. Immigration reform is placed on the back-burner in the new Congress, but it continues to be a topic of disagreement between religious liberals and conservatives, especially in states with many illegal immigrants. The National Association of Evangelicals comes out for comprehensive, compassionate reform.

The poll was conducted in an online ballot among active members on Friday, Dec. 11 through Monday, Dec. 14. RNA members are . The poll had a 36 percent response rate.

JFB

DHS Improper Surveillance of Nation of Islam Revealed

As the Washington Post reports today, documents produced in response to a FOIA request filed by the Electronic Frontier Foundation reveal that the Department of Homeland Security’s monitoring of the activities of the Nation of Islam in 2007 violated applicable rules on domestic intelligence gathering. DHS analysts exceeded the 180 day timeline to determine whether the group posed a terrorist threat and then disseminated their findings too broadly. The agency's 2007 report on the Nation of Islam has now been withdrawn. A written statement from the agency offered assurances that "a strong and rigorous system of safeguards and oversight to ensure similar products are neither created nor distributed" now exists and emphasized that DHS "is fully committed to securing the nation from terrorist attacks and other threats, and we take very seriously our responsibility to protect the civil rights and liberties of the American people." The Post quoted a March 2008 memo from former DHS undersecretary for intelligence and analysis Charles E. Allen in which he states: "The [Nation of Islam] organization -- despite its highly volatile and extreme rhetoric -- has neither advocated violence nor engaged in violence…Moreover, we have no indications that it will change its goals and priorities, even if there is a near-term change in the organization's leadership."

On a related note, Professors Vikram Amar and Alan Brownstein offer a thoughtful Findlaw Writ essay on the constitutional concerns raised by government monitoring of Islamic religious services without particularized suspicion.

JFB

UVa Law’s Center for the Study of Race and Law to Host Conference on Sit-Ins, Social Movements. and Law Reform

On January 28 through 30, 2010, the Center for the Study of Race and Law  at the University of Virginia Law School will hold a conference entitled, "Fifty Years after the Sit-Ins: Reflecting on the Role of Protest in Social Movements and Law Reform."  Julian Bond, University of Virginia Professor of History and NAACP Chair, and the Rev. Charles Sherrod, Albany State University Professor of Political Science and former SNCC Field Secretary, will make keynote presentations. Descriptions of scheduled panels follow:

The Sit-Ins

This panel will focus on the student sit-ins that were initiated on February 1, 1960, in Greensboro, North Carolina, and spread across the south and nation. The panel will include law professors, historians and civil rights activists who were either personally involved in the sit-in movement or who have studied them. Questions may include what led to the sit-ins, what were their objectives and strategies, and what was their most direct impact.

Tomiko Brown-Nagin, University of Virginia School of Law
J. Gordon Hylton, Marquette University Law School
Brenda Saunders Hampden, Seton Hall University School of Law
Theodore C. Delaney, Washington & Lee University, History Dept.

Social and Legal Developments in the Domestic Sphere

This panel will examine social and legal reform movements in the United States during the last third of the twentieth century. Topics may include movements by ethnic groups other than African-Americans, as well as the women’s rights, gay rights, labor and anti-war movements. Panelists may also address legislative and doctrinal developments influenced by the sit-ins including state and federal civil rights laws, and constitutional law developments concerning, for example, police discretion, state action, substantive due process, equal protection, and free expression.

Taunya Banks, University of Maryland School of Law
Risa Goluboff, University of Virginia School of Law
Darren Hutchinson, American University Washington College of Law
Juan F. Perea, University of Florida Levin College of Law

The International Sphere

This panel will examine the relationship between international and domestic legal change. Panelists may explore how social movements and actors abroad influenced American constitutional and legislative developments, and how domestic social movements informed developments in international law and the law of other nations.

Carol Anderson, Emory University, African American Studies Dept.
Penelope Andrews, Valparaiso University School of Law
H. Timothy Lovelace, University of Virginia (Ph.D. candidate, History Dept.; J.D., M.A.)
Henry J. Richardson, III, Temple University Beasley School of Law

JFB

Tributes Mark Death of U Penn First Amendment and Media Law Scholar Ed Baker

Last week the University of Pennsylvania Law School announced the sudden death of Ed Baker, the Nicholas F. Gallicchio Professor of Law and professor of communications. The Penn announcement includes brief excerpts from some of the many tributes to Professor Baker's contributions as a scholar and teacher. To mark Baker's passing, the First Amendment Center.has posted an appreciation by Ronald Collins.

JFB 
   

Federal Judge Orders Ark. Secy of State to Allow Freethinkers to Erect Winter Solstice Display at State Capitol

As reported by the AP in today’s Washington Post, U.S. District Judge Susan Webber Wright has granted a motion by the Arkansas Society of Freethinkers for a preliminary injunction and ordered the Secretary of State to allow the group to construct a plywood structure that would present a history of the celebration of the winter solstice accompanied by  photos of representative "freethinkers," including Einstein, Bill Gates, and Eleanor Roosevelt.  The Freethinkers had not challenged the display of a nativity scene at the Capitol but sought instead to add their secular seasonal offering. The Arkansas Secretary of State, Charlie Daniels, had originally rejected the Freethinkers’ display as inconsistent with the other decorations at the Capitol, but a spokesperson for his office has said he will comply with the court’s order.   

JFB  

First Amendment Challenge to Colorado Ban on Smoking in Theatrical Productions Rejected

Yesterday  in Curious Theatre Company et al v. Colorado Department of Public Health and Environment,  the Colorado Supreme Court rejected a First Amendment challenge to the state’s prohibition of smoking in theatrical productions. Affirming the ruling below, the Court wrote:  

The district court denied [the theater companies’] motion for preliminary injunction on the grounds that smoking, even in the theatrical context, does not amount to expressive conduct of a type that would be subject to either state or federal constitutional protections for speech. The court of appeals concluded that theatrical smoking was expressive conduct but affirmed the district court on the alternative grounds that the ban was nevertheless constitutional. Even assuming that theatrical smoking actually can amount to protected expressive conduct under some circumstances, the statutory ban does not impermissibly infringe on the plaintiffs’ constitutionally protected freedom of expression because it is content neutral and narrowly tailored to serve the state’s substantial interest in protecting the public health and welfare.

Hat tip to How Appealing.

JFB  

First Amendment Scholarship Update

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

1) Martha Albertson Fineman (Emory University - School of Law) , Taking Children’s Interests Seriously,  published in WHAT IS RIGHT FOR CHILDREN: THE COMPETING PARADIGMS OF RELIGION AND HUMAN RIGHTS, M.A. Fineman and K. Worthington, eds.,( Ashgate, 2009). The abstract states:

This is a chapter from What Is Right For Children: The Competing Paradigms of Religion and Human Rights, M.A. Fineman and K. Worthington Eds. (Ashgate 2009). It explores the implications of the fact that schools have become one of the battlegrounds in American culture wars and parental rights are entangled with religious freedom. Children’s independent interest in education and the obligations the state has to children as individuals are overwhelmed in discussions focused on validating parental rights over their children. Religious beliefs are often offered as justification for removing children from secular public schools, allowing parents to place them in private religious academies or home schooling situations. Any policy pertaining to the education of children should require a balancing of interests. As with many other decisions affecting children and families, the rights and responsibilities of parents and the state must be components of any consideration of what is appropriate for children. The problem is that bringing parents and the state into the discussion often diverts attention away from children. This chapter concludes that perhaps the best way to protect a child’s interests regarding education is by mandating universal public education for all children.

2) John M. Kang (St. Thomas University School of Law),  Appeal to Heaven: On the Religious Origins of the Constitutional Right of Revolution, 18 William & Mary Bill of Rights J 281 (2010). The abstract states:

This Article explores the religious origins of the right to alter or abolish government. I show in Part I that the right was widely accepted among the American colonies as expressed through their constitutions and, later, the federal constitution. In Part II, I usher the reader back in time and across the continent to seventeenth century England. There, I introduce two men who would have abhorred everything about American constitutional democracy - King James I and the philosopher Sir Robert Filmer. Both men, prominent in their respective domains of authority, devoted themselves to the governing axiom that kings were bequeathed a right by God to absolute rule. Part III sketches the seventeenth century arguments of two other Englishmen, also prominent--the philosophers John Locke and Algernon Sidney - who challenged James and Filmer. Locke and Sidney argued that God had never sanctioned the divine right of kings and instead had justified the people’s right to overthrow tyrants.

The arguments of Locke and Sidney will, as I show in subsequent sections, influence the American clergy who supported war against Britain and the right of revolution in general. Indeed, the development of this connection will occupy me for the remainder of the Article, but, in Part IV, I take a brief respite to summarize the historical circumstances that severely hampered governmental control over religion in colonial America and thus provided partially autonomous spaces for people to reflect on religion, including in ways that would inform their right to alter or abolish government. I illustrate in Part V how several prominent American clergymen, following Locke and Sidney, rejected as impossible the divine and supposedly infallible status of rulers. God, the clergy insisted, was the only one who could claim such infallibility; the clergy warned that rulers would do well to devote themselves to the people’s well being, not the former’s aggrandizement. In Part VI, I argue that, again echoing Locke and Sidney, a prominent group of American clergymen insisted that, contrary to the anti-democratic jeers of monarchists, God had given people the capacity for reason which enabled them to make meaningful decisions about their political future. I conclude in Part VII by illustrating how the federal and state constitutions following the American Revolution sought to protect conditions for the faithful to contemplate the religious meaning of the right to alter or abolish government.

3) Mark J. Cherry, Religion Without God, Social Justice Without Christian Charity, and Other Dimensions of the Culture Wars, 15 Christian Bioethics 277 (2009). The abstract states:

A truly Christian bioethics challenges the nature, substance, and application of secular morality, dividing Christians from non-Christians, accenting central moral differences, and providing content-full forthrightly Christian guidance for action. Consequently, Christian bioethics must be framed within the metaphysical and theological commitments of Traditional Christianity so as to provide proper orientation toward God. In contrast, secular bioethicists routinely present themselves as providing a universal bioethics acceptable to all reasonable and rational persons. Yet, such secular bioethicists habitually insert their own biases and prejudices into their moral conclusions, ethical consultations, and political aspirations, without any real justification. As this article explores, the ideologically driven anti-Christian commitments, including commitments to human rights and social justice, embodied within contemporary bioethics routinely illustrate the increasing gap between the traditionally Christian and the devoutly secular, further deepening the culture wars.

4) Jeffrey P. Bishop , Biopsychosociospiritual Medicine and Other Political Schemes,15 Christian Bioethics 254 (2009). The abstract states:

In the mid-1970s, the biomedical model of medicine gave way to the biopsychosocial model of medicine; it was billed as a more comprehensive and compassionate model of medicine. After more than a century of disentangling medicine from religion, the medicine and spirituality movement is attempting to bring religion and spirituality back into medicine. It is doing so under a biopsychosociospiritual model. I unpack one model for allowing religion back into medicine called the RCOPE. RCOPE is an instrument designed to categorize religion and spirituality as psychological coping mechanisms. I explore how such instruments are related to the history of statistical measurement and demonstrate the political impetus that governs such enterprises. The biopsychosociospiritual medicine is billed as a more holistic and comprehensive model. This new model of medicine offers total care. However, I demonstrate how this total care becomes totalizing, indeed totalitarian, admitting religion and spirituality back into the fold of medicine under a new secularized medical control.

5) Ana Iltis (Saint Louis University - Center for Health Care Ethics), The Failed Search for the Neutral in the Secular: Public Bioethics in the Face of the Culture Wars, 15 Christian Bioethics 220 (2009). The abstract states:

Public bioethics focuses on deliberating about, recommending, or establishing social policies or practices concerning health care and biotechnology. A brace of premises underlies much of the work of public bioethics. First, there is the view that, if one approaches reality and human life as if both were without ultimate significance, one will find that one shares a common public bioethics. That is, if one abstains not only from any religious concerns, but even from philosophical reflections on the circumstance that life might have ultimate meaning, one will be able to articulate a common neutral moral perspective that all persons can share and that can be the basis of a common public bioethics. The second premise is that the controversies in bioethics arise from the presence of religious belief, especially Christian belief, which supports a set of moral commitments that generate controversies that make the framing of public policy difficult. The view is that there is significant disagreement among persons who hold religious positions, particularly Christians, and that in public bioethics we should strive to eliminate these controversies by relying on a neutral moral framework. This paper documents and challenges these premises. It demonstrates that Christian bioethics finds itself already embedded in the field of secular moral controversy before it adds the perspectives it brings.

6) James T. Koebel  (Catholic University of America - Columbus School of Law),  Note - Colorado Christian University v. Weaver: The Tenth Circuit's Improper Redefinition of 'Excessive Entanglement' , 58 Catholic U.  L. Rev. --- ( 2009). The abstract states:

As higher education costs continue to increase, students in private and public universities alike rely on state-funded scholarships to meet tuition needs. The First Amendment's Establishment Clause, however, is an obstacle for many students attending private universities, as it can severely restrict state funding for religious education. The Supreme Court created a three-pronged test, commonly known as the Lemon test, for use in determining whether government action is proper under the Establishment Clause. When interpreting the Clause, some states use a blanket-rule approach based on the institution's degree of religiosity to either permit or deny funding, while other states weigh certain criteria to make a determination. To remedy this discrepancy, states need a uniform standard to gauge each institution's level of involvement in advancing or inhibiting religion in order to avoid an Establishment Clause violation.
The United States Court of Appeals for the Tenth Circuit's recent decision in Colorado Christian University v. Weaver held that these inquiries constitute an impermissible degree of involvement with religion. This Note focuses on the inquiry the state of Colorado used in evaluating whether an institution of higher education was "pervasively sectarian" and the Tenth Circuit's determination that such inquiry was excessive government entanglement with religion. Addressing the Lemon test's "excessive entanglement" prong in the context of the Tenth Circuit's declaration that the "pervasively sectarian" test, as applied in Colorado Christian University v. Weaver, is unconstitutional, this Note argues that, despite a great need, this approach lacks a standard and leaves states with no way to gauge their compliance with the Establishment Clause.

7) Nathan B. Oman (William & Mary Law School), 'The Living Oracles': Legal Interpretation and Mormon Thought , 42 Dialogue: A Journal of Mormon Thought ---  (2009). The abstract states:

Legal scholars have recently turned their attention to “religious legal theory,” asking what various religious traditions have to say about law and legal practices. While some traditions - such as Islam or Judaism - have well-developed legal traditions, understanding what less juristic faiths have to say about law is more difficult. This article seeks to contribute to this discussion by asking how Mormonism might be used to think about legal questions. Lacking a formal theological or juristic tradition, the article argues that one may nevertheless turn to Mormon practices for insights. Using the adjudication of civil disputes in nineteenth-century church courts as an example, this article develops Mormon theories of property and contract.

8) Nicholas Hatzis (City Law School, City University London), Neutrality, Proselytism and Religious Minorities at the European Court of Human Rights and the U.S. Supreme Court, 49 Harv.  Intl L. J. Online 120 ( 2009). The abstract states:

The paper examines the way the US Supreme Court and the European Court of Human Rights have dealt with the discriminatory treatment of religious minorities in relation to proselytism, and the role played by the principle of neutrality in arguments supporting the invalidation of statutes which restrict religious canvassing.

9)Denise Meyerson (Macquarie University - Macquarie Law School), The Protection of Religious Rights Under Australian Law, forthcoming in BYU Law Review. The abstract states:

In 1998, Australia’s Human Rights and Equal Opportunity Commission (‘HREOC’) issued a report in which it stated that the level of protection afforded to the right to freedom of religion and belief in Australia was relatively weak compared to a number of comparable countries. Although there have been a few changes in the intervening ten years, this article demonstrates that HREOC’s statement remains accurate. The article analyses and evaluates the Australian legal framework governing the right to religious freedom, the right not to be discriminated against on the ground of religion, and the right not to be subjected to religious vilification.

10) Amy Gajda (University of Illinois College of Law),  Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press, forthcoming  in California Law Review. The abstract states:

Courts, John Marshall famously declared, must "say what the law is." Increasingly, it seems, they are also called upon to say what the news is. When subjects of unwanted publicity sue for invasion of privacy or other torts, journalists commonly defend on the ground that the challenged disclosures were privileged as newsworthy. Traditionally, courts minimized constitutional concerns by deferring heavily to journalists' own sense of what qualified as news; that a story made the newspapers or the evening news was itself nearly conclusive evidence that the topic was of legitimate public interest and therefore beyond the control of tort law. Recently, however, courts have grown decidedly less tolerant. Driven by mounting anxiety over the loss of personal privacy generally and by declining respect for the press specifically, courts are increasingly willing to impose their own judgments about the proper boundaries of news coverage. Ironically, an emerging tool used by courts to police news outlets is journalists' own codes of professional ethics. By measuring editorial decisions against gauzy internal ethics standards, courts give the appearance of deference to the profession while, in fact, aggressively scrutinizing editorial judgments.

This Article demonstrates the growing threat to press freedom posed by these emerging trends. Part I places the conflict in historical context, showing how evolving legal understandings of privacy and press freedom set the two on course for a modern collision over "newsworthiness," which was resolved initially by deferring to journalists' editorial judgment. Part II explains how recent developments - including growing resort to journalists' codes of professional ethics - have undermined judicial deference to journalism in defining the news. Part III examines the implications of the nascent resurgence of tort regulation of journalism, and Part IV concludes by suggesting ways in which courts and journalists individually might end this narrowing of news.

11) The Boston Law Review has published its symposium issue on PUBLICITY, PRIVACY, AND INTELLECTUAL PROPERTY MEET THE FIRST AMENDMENT , which includes the following :

FOREWORD: WHERE INTELLECTUAL PROPERTY AND FREE SPEECH COLLIDE
Mary-Rose Papandrea
SYMPOSIUM ARTICLES
PRIVACY, FREE SPEECH, AND "BLURRY-EDGED" SOCIAL NETWORKS
 Lauren Gelman
A PERSPECTIVE ON HUMAN DIGNITY, THE FIRST AMENDMENT, AND THE RIGHT OF PUBLICITY
Roberta Rosenthal Kwall
ANONYMITY IN CYBERSPACE: WHAT CAN WE LEARN FROM JOHN DOE?
Lyrissa Barnett Lidsky
FIRST AMENDMENT INTERESTS AND COPYRIGHT ACCOMMODATIONS
David S. Olson
 TRADE SECRET LITIGATION AND FREE SPEECH: IS IT TIME TO RESTRAIN THE PLAINTIFFS?
Elizabeth A. Rowe
FIGHTING FREESTYLE: THE FIRST AMENDMENT, FAIRNESS, AND CORPORATE REPUTATION
Rebecca Tushnet
A FIRST AMENDMENT PERSPECTIVE ON THE CONSTRUCTION OF THIRD-PARTY COPYRIGHT LIABILITY
Alfred C. Yen
MONEY AS A THUMB ON THE CONSTITUTIONAL SCALE: WEIGHING SPEECH AGAINST PUBLICITY RIGHTS
Diane Leenheer Zimmerman

NOTES
SPAM-A-LOT: THE STATES' CRUSADE AGAINST UNSOLICITED EMAIL IN LIGHT OF THE CAN-SPAM ACT AND THE OVERBREADTH DOCTRINE
Igor Helman
SUPERVISING CYBERSPACE: A SIMPLE THRESHOLD FOR PUBLIC SCHOOL JURISDICTION OVER STUDENTS' ONLINE ACTIVITY
Harriet A. Hoder

12) Nikhel Sus, Note - Yes We Can . . . Fire You For Sending Political E-mails: A Proposal to Update the Hatch Act for the Twenty-First Century, 78 Geo. Wash. L. Rev. 171 (2009). The abstract states:

The Hatch Act is a federal law that restricts the political activities of public employees.  Specifically, it prohibits employees from engaging in political activity while they are on duty or in a government building.  Although it was originally enacted in 1939 to prevent serious abuses of authority within the government workforce, in modern application, it has been strictly enforced against employees who engage in political discussion via e-mail.  This strict enforcement is due in part to the relatively recent advent of the Internet, which has broadened the application of the statute in a way that Congress could not have anticipated when it last amended the Act in 1993.  The problem is further exacerbated by ambiguous language within the statute itself.  Consequently, many employees who have engaged in trivial or isolated instances of on-duty political expression have been prosecuted under the Act.  Thereafter, these employees are either removed pursuant to the default penalty for violating the Act, or suspended without pay for a substantial period of time.

The current enforcement of the Hatch Act is problematic for two primary reasons.  First, it chills the protected First Amendment speech of public employees.  To be sure, the combination of harsh penalties, vague and conflicting standards, and overzealous prosecutorial efforts has undoubtedly deterred government employees from exercising their rights.  Second, it does not meaningfully further, and in some ways is inconsistent with, the policy goals Congress sought to achieve by enacting the law.

The recent transition to the new presidential administration presents an ideal opportunity to implement new policies and legislative initiatives.  Regrettably, the previous Administration’s enforcement of the Hatch Act has proven to be demonstrably inconsistent with both the spirit and the letter of the law.  With these considerations in mind, this Note proposes that the Hatch Act be amended to (1) permit casual political discourse, either verbal or electronic, in the workplace, and (2) reform the default removal penalty provision.

Part I of this Note discusses the pertinent history of the Hatch Act, its current provisions, and the agencies that enforce and adjudicate Hatch Act violations.  Additionally, Part I examines three different approaches taken in response to the widespread use of the Internet and e-mail in the government workplace.  Part II identifies the problems with the current enforcement of the Hatch Act.  First, it explains how the Internet has fundamentally changed the modern workplace.  Second, it discusses the implications of the Act’s current enforcement, such as the chilling of protected speech and the failure to meaningfully further congressional objectives.  Finally, it argues that the realities of the government workplace make an absolute ban on political discussion unworkable.  Part III proposes that Congress amend the Hatch Act by permitting on-duty political discussion and reforming the Act’s penalty provision.  And in order to illustrate the scope of this proposal, Part III applies the proposed amendments to the facts of two cases explored in Part I of the Note.

13) Eric S. Fish (Yale Law School), Is Internet Censorship Compatible with Democracy?: Legal Restrictions of Online Speech in South Korea , forthcoming in Asia-Pacific Journal on Human Rights and the Law. The abstract states:

This paper examines the history and causes of Internet censorship in South Korea, with special focus on the tension between South Korea's democratic political identity and its willingness to tolerate significant censorship of online political speech.

Part I presents the problem of Internet censorship in new democracies, addressing particularly whether the Internet is more free from state interference than the hierarchical 20th century model of mass media. This question takes on particular importance as the Internet is becoming the dominant model of mass communication in many democracies, and as television and print journalism increasingly fuse with the Internet and lose their independent identities.

Part II, the bulk of the paper, explores the background and political dynamics of censorship in South Korea. First it provides a brief overview of South Korean censorship during the country’s three cold war dictatorships. Second, it shows how South Korea’s post-1987 liberalization opened up its media sphere and political debate in crucial yet incomplete ways. In doing so it focuses on four key transformations: the emergence of a politically independent Constitutional Court with the power of judicial review, the establishment of a democratic system of elections that heavily restricts political expression, the incomplete rollback of government controls over print and broadcast media, and the gradual loosening of laws that restrict seditious and subversive speech. Third, it demonstrates how this incomplete liberalization has given the government cover to implement a shockingly restrictive Internet censorship bureaucracy, and how that censorship has continued even under presidents that were opposed to it. It chronicles how the strategies of the censorship bureaucracy have developed, and show that recent developments under the administration of Lee Myung-bak have left free speech on the Internet particularly vulnerable.
Finally, Part III uses the story in Part II to identify the underlying dynamics that have caused the paradox of South Korean Internet censorship. It then identifies several of the problems that face South Korea’s Internet censorship regime, which give some indication that it may not be effective or sustainable into the future. These defects in the long-term viability of South Korea’s Internet censorship regime provide some hope to those concerned with the project of e-democracy worldwide, especially in emerging and illiberal democracies.

This paper then concludes with two strategies that Internet freedom activists can pursue to help undermine Internet censorship in South Korea.

14) Alan Hyde (Rutgers University - School of Law),  Exclusion is Forever: How Keeping Rights to Strike, Picket, and Other Labour Speech, Separate from Constitutional Rights, has Proven a Bad Deal for American Labour Unions and Constitutional Law , forthcoming in Canadian Labour and Employment Law Journal. The abstract states:

For everyone but labor unions, constitutional protection of symbolic speech, speech accompanied by mass physical action like picketing, boycotts, and even potentially threatening speech, has expanded significantly in recent decades. The First Amendment protects flag burning, cross burning, picket lines that block abortion clinics, St. Patrick’s Day parades, and nude dancing. The anomalous treatment of the identical conduct by labor unions (apart from the nude dancing) is increasingly difficult to explain. With hindsight, the American exclusion of labor speech and action from the basic constitutional framework, on the supposed grounds that it is and must be regulated through a comprehensive administrative scheme, has been bad for labor, bad for labor speech, and bad for the Constitution (for these unexplained disparate outcomes are used to delegitimize constitutional law).

15) Annette Kur (Max Planck Institute for Intellectual Property, Competition & Tax Law ), Lionel A.F. Bently (University of Cambridge - Faculty of Law) and Ansgar Ohly (University of Bayreuth ), Sweet Smells and a Sour Taste - The ECJ's L'Oreal Decision . The abstract states:

In this brief comment on the ECJ’s decision L’Oréal v. Bellure (decision of 18 June 2009 case C-487/07 ) the authors argue that by protecting the reputation of a precious mark at the expense of consumer information about the availability of products legitimately offered on the market, the Court has failed to give an adequate response to the underlying conflict between the interests of the trade mark holder and freedom of commercial speech.

16) J. Peter Byrne (Georgetown University  Law Center),  Neo-Orthodoxy in Academic Freedom , 88 Texas L. Rev. 143 (2009). The abstract states:

This review essay analyzes two recent books that advance neo-orthodox theories of academic freedom: Matthew Finkin and Robert Post, For the Common Good: Principles of American Academic Freedom, and Stanley Fish, Save the World on Your Own Time. Both books develop principles articulated in the American Association of University Professors 1915 Declaration, which emphasize the role of faculty in advancing knowledge and the need to insulate professional evaluation of academic work from lay, political interference. This review essay defends the return to protection of the scholarly search for truth as the touchstone of academic freedom, offers critiques of the authors’ specific arguments, and draws implications for the constitutional law of academic freedom.

17) Dawinder S. Sidhu (Georgetown University Law Center),  Madison in Post-9/11 Cyberspace: Applying Federalist No. 10 to the Online Battle for ‘Hearts and Minds’ , forthcoming in Journal of Internet Law. The abstract states:

Though the Framers could never have imagined the technological world in which we currently live, we call upon them nonetheless to help us answer the most vexing social and legal problems that arise in this modern age. Recently, scholars have asked how the Framers’ views can guide our understanding of the Internet – a medium which assuredly they could not have anticipated. This Article continues that conversation by exploring James Madison’s Federalist No. 10, perhaps his most revered contribution to American political theory, and proposing how it may be of relevance to cyberspace in the post-9/11 context.

In particular, I argue that Madison’s take on the extended American republic, as described in Federalist No. 10, applies to the expansive Internet. The “factions” that Madison spoke of in Federalist No. 10 exist on the Internet; one of those factions includes the terrorist elements that are using the Internet, quite successfully, to propagate their messages and recruit moderate Muslims. Existing approaches to counterterrorism have addressed the need to thwart the terrorist factions through disabling their access to and use of the Internet. Drawing from Federalist No. 10, I suggest that, to the extent that the terrorist factions cannot be dismantled and thus remain in cyberspace, Americans should robustly compete with and diffuse the appeal of the terrorists online by furnishing descriptive information on the American constitutional structure and principles. In other words, an American faction should enter the online battle of ideas. I offer thoughts on how legal and social norms can support such a substantive American faction which aims to challenge the terrorist faction through online speech.

The current campaign against transnational terrorism is not producing desired results and the goals of the campaign are proving elusive. Minimizing or neutralizing the attraction of terrorist ideology will add an additional tool in the beleaguered war effort, one that will unleash the heretofore ignored “soft power” of the nation.

18) Laurie L. Levenson  (Loyola Law School Los Angeles),  Prosecutorial Soundbites: When Do They Cross the Line? , forthcoming in Ga. L. Rev. The abstract states:

Even good prosecutors can cross the line with media soundbites. Especially in high-profile cases, prosecutors must assess if their pretrial remarks about a case meet their ethical obligations. In Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), the United States Supreme Court held that while lawyers have the First Amendment right to make comments to the press, they do not have the right to make comments that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Although ethical codes have adopted this broad standard, many have failed to identify more specifically when a prosecutor’s remarks pose a substantial likelihood of having such a prejudicial effect. Using 28 C.F.R. § 50.2 as a guide, this article seeks to identify those “hot-button” areas. It identifies topics that are most likely to pose the greatest ethical problems for prosecutors. These topics relate directly to practices and evidentiary problems that have long led to wrongful convictions. In particular, this article focuses on why prosecutors should generally refrain from discussing a defendant’s character and race, confessions and admissions, scientific tests and DNA testing, and eyewitness identifications and witness credibility. It also discusses why prosecutors should depersonalize their involvement in cases and refrain from offering personal opinions regarding a defendant or the case. Finally, the article suggests that prosecutors should look to other professions’ ethical codes, including those of journalists, to set aspirational standards that will help guide prosecutors’ extrajudicial remarks.

19) Leslie Yalof Garfield (Pace University - School of Law),  Intentional Infliction by Internet: The Case for a Criminal Law Theory of Intentional Infliction of Emotional Distress. The abstract states:

Words hurt! Recent news stories about cyber bulling make clear that a word can cause as much pain as a punch. Unfortunately, the law redresses those who suffer injury from harmful speech through a series of seemingly innocuous remedies, including financial remuneration or retribution through minimal criminal penalties. The law stops, however, at imposing the same type of criminal punishment on those who intend to cause emotional harm through words, as it does those who intend to cause physical harm. In other words, legislatures and courts have been unwilling to elevate an actor’s intentional use of harmful words to the same jurisprudential echelon as the intentional use of physical force. Consider the recent case of Lori Drew. Ms. Drew a 49-year-old woman was charged in the first federal cyber bullying case for using a fake “my space” account to torment a 13-year-old girl. The girl committed suicide in response to the hoax. A federal jury found Ms. Drew guilty of three counts of gaining unauthorized access to a web site - misdemeanors that carry minimum punishment. The “slap on the wrist” conviction was the only remedy available under the current law.

Society could best condone the conduct of cyberbullies like Ms. Drew if jurisdictions were to include intentional infliction of emotional distress (IIED) in their bundle of criminalized intentional torts. A criminal statute for IIED would not only allow retributive measures, but would serve to deter others from committing similar crimes. This article will explore the appropriateness of criminalizing IIED. Part I will discuss the history and purposes of assessing civil and criminal remedies for the intentional actions of assault, battery, and false imprisonment as well as evaluating the elements of criminalized intentional torts. Part II will explore the limits of IIED and will evaluate whether those causing IIED impart the same type of harm that society punishes through these other intentional criminalized torts. Part III will evaluate whether it is appropriate to criminalize IIED. The article will ultimately conclude that given recent neuroscientific findings, criminalizing IIED makes sense.

20) Robert Luther III (Knicely & Associates, P.C.), 'Unity Through Division': Religious Liberty and the Virtue of Pluralism in the Context of Legislative Prayer Controversies , 43 Creighton L. Rev. ---(2009). The abstract states: 

In Marsh v. Chambers (1983), the U.S. Supreme Court upheld the constitutionality of the practice of legislative prayer. While the high Court has been silent on the issue of legislative prayer ever since, in 2008, the United States Courts of Appeal for the Eleventh and the Fourth Circuits issued decisions on the hot-button constitutional question of whether the government may censor non “proselytiz[ing] or disparage[ing]” religious speech a prayer-giver wishes to reference during his or her delivery of legislative prayer.

In Turner v. The City Council of Fredericksburg, the Fourth Circuit held that the council did not run afoul of the First Amendment by its imposition of a “nondenominational” prayer policy on prayer-givers. Shortly thereafter, in Pelphrey v. Cobb County, the Eleventh Circuit held that the Court could not pass judgment on the religious content of the prayer-giver’s prayer and that the council could not restrict the prayer-opportunity to prayer-givers of certain faiths – a point that directly conflicts with Simpson v. Chesterfield County (4th Cir. 2005), which held that the council could restrict the prayer-opportunity to members of faiths in the Judeo-Christian tradition.

With these thoughts in mind, this Article will first lay a theoretical foundation for the argument that the government may not censor non “proselytiz[ing] or disparage[ing]” religious speech during the delivery of legislative prayer by issuing an informal response to Professor Christopher C. Lund’s thought-provoking article on legislative prayer, Legislative Prayer and the Secret Costs of Religious Endorsements, forthcoming in 94 Minn. L. Rev. (February 2010). A discussion of reasons the Turner case was wrongly decided follows in Section III. Support for the argument that Pelphrey, as informed by Snyder v. Murray City Corp., (10th Cir. 1998) is the model “second generation” legislative prayer decision is offered in Section IV. This Article concludes in Section V, arguing that when the United States Supreme Court next grants certiorari in a legislative prayer controversy, it should affirm the Eleventh Circuit’s rationale. By doing so, the Court will restore the principles of religious freedom implicit in Marsh..

21) Catherine J.K. Sandoval  (Santa Clara University School of Law),  Disclosure, Deception and Deep-Packet Inspection: The Role of the Federal Trade Commission Act's Deceptive Conduct Prohibitions in the Net Neutrality Debate , 78 Fordham L. Rev. 641 (2009). The abstract states:

This Article examines a largely unexplored frontier in the “Net Neutrality” debate: the Federal Trade Commission (FTC) Act’s proscriptions against deceptive conduct as a legal limit on Internet Service Provider (ISP) discrimination against Internet traffic. ISP discrimination against certain types of Internet traffic has blossomed since 2005 when the Federal Communications Commission (FCC), with the Supreme Court’s blessing in NCTA v. Brand X and FCC, relieved ISPs from common-carrier regulations that prohibited discrimination and reclassified ISPs as “information service providers.” This Article argues that the Internet’s architecture and codes presumed common carriage, indicating that the Internet’s design and industry “self-regulation” cannot alone prevent ISPs who control access to the Internet’s physical layer from becoming its gatekeepers. The FTC and FCC must use their respective authority to police the gulf between ISP promises and practices, protect Internet users and competition, and safeguard the Internet itself as a source for innovation and a wide range of speech.

In August 2008 the FCC condemned cable-based ISP Comcast’s actions that interfered with subscriber use of peer-to-peer Internet protocols to legally share files and access Internet content, practices that contradicted Comcast’s offer of unfettered Internet access. While that order is being appealed and the FCC considers formal adoption of net neutrality principles, this Article examines Comcast’s actions in light of the FTC Act’s deceptive practices standards. It also analyzes the market promises and terms of service of other cable, wireline, wireless, and satellite-based ISPs to examine industry practices that limit consumer choice and competition. To protect Internet users and the Internet itself as a platform for competition and new voices, the FCC should determine whether those practices violate the Communications Act. This Article also recommends that the FTC declare that ISP advertisements of unlimited data or Internet access violate the FTC Act’s deceptive conduct provisions when the ISP’s material limits on Internet use are not prominently highlighted in the ISP’s enticements to subscribers.

22) Robert L. McFarland (Faulkner University - Thomas Goode Jones School of Law), Please Do Not Publish this Article in England: A Jurisdictional Response to Libel Tourism , forthcoming in Mississippi Law Journal. The abstract states:

Foreign defamation judgments obtained against American authors by libel tourists give rise to a jurisprudential quandary. On one hand, foreign defamation judgments rest on substantive laws offering much less protection to the American speaker than would be available in U.S. courts pursuant to the First Amendment. On the other hand, well-rooted doctrines of private international law and conflict of laws jurisprudence strongly favor the recognition of foreign judgments even though the receiving court disagrees with the policies and rules of decision underlying the foreign judgment. This quandary is made more complex by recently adopted state statutes prohibiting the recognition and enforcement of the judgments of foreign tribunals and opening the door to preemptive declaratory relief against litigants appearing in foreign courts. How should courts deal with foreign defamation judgments when they are presented for recognition and enforcement. This article argues that U.S. courts should not deny enforcement of foreign defamation judgments solely on the ground that the judgment offends domestic policy. Such an approach will needlessly invite reciprocal collateral attack on U.S. judgments abroad. Instead, U.S. courts should, consistent with well-recognized principles of sovereignty and comity, collaterally examine the jurisdiction of the foreign tribunal. Many recent libel tourism judgments, as demonstrated in this article, are issued by courts lacking sufficient contacts with the dispute. The judgment of a court lacking jurisdiction is void and unenforceable.

23) James B. Lake (Stetson University College of Law), Restraining False Light: Constitutional and Common Law Limits on a 'Troublesome Tort' , 61 Federal Communications L. J. --- ( 2009).The abstract states:

The defamation tort is the common law’s established remedy for false speech that causes reputational and emotional injury. That tort is subject to intricate constitutional, legislative, and common law rules that have evolved over decades. The false light invasion of privacy tort also provides a potential cause of action in response to injurious falsehood. False light, however, has been subject to much less judicial and legislative scrutiny than defamation. As a result, courts often are uncertain about the proper limits on false light and, in some cases, have countenanced false light claims that would have failed if filed as defamation claims. Allowing such claims conflicts with two important legal principles: (1) the common law principle disfavoring novel causes of action that duplicate established torts; and (2) the constitutional rule of Hustler Magazine v. Falwell. These important legal principles require that courts reject false light claims that challenge defamatory speech but fail to meet defamation law’s standards.

24) Frederick Schauer (University of Virginia School of Law), Social Epistemology, Holocaust Denial, and the Post-Millian Calculus, published in REGULATING HATE SPEECH: CONTEXT, CONTENT, AND REMEDIES, Michael Herz & Peter Molnar, eds. ( Cambridge University Press, 2010).The abstract states:

Current proposals, debates, and laws regarding prohibitions on Holocaust denial can be understand as a hate-speech focused instance of the pervasive question of the role of freedom of expression in increasing belief in truth and decreasing belief in falsity. John Stuart Mill’s well-known analysis in On Liberty is the starting point, but it should not be the ending point. Mill assumes a rational population that can identify truth when they see it, but these rationalist assumptions may not survive modern social insights to the contrary. More importantly, a more complete and post-Millian decision-theoretic analysis would consider not only the social harms that ensue from non-identification of truth, but also the countervailing harms that come from belief in falsity. As the example of Holocaust denial illustrates, allowing the propagation of what appears to be a false belief may produce benefits when what appears to be false turns out to be true, but may produce harms when what appears to be false genuinely is false. The varying approaches to Holocaust denial throughout the world expose different beliefs in different regimes about how these tradeoffs should be resolved.

25) Mary Leary (Catholic University of America Columbus School of Law), Mulieris Dignitatem: Pornography and the Dignity of the Soul: An Exploration of Dignity in a Protected Speech Paradigm , 8 Ave Maria L. Rev.---  ( 2010). The abstract states:

This article, part of a symposium celebrating the 20th anniversary of Mulieris Dignitatem, reflects on Mulieris Dignitatem’s teachings, and how they can inform the issue of pornography. Modern day pornography has increased in both its quantity and severity of content. Mulieris Dignitatem offers a pathway out of this reality with its focus on the concept of dignity. The article reviews John Paul II’s emphasis on the dignity of woman and applies it to the modern day issue of pornography. The article suggests a paradigm shift from examining pornography solely through a “speech and expression lens” to examining the issue through a “dignity lens. In so doing, the article explores John Paul II’s discussion of dignity of both men and women, as well as society as a whole. It examines some parallels between this approach and the previous civil rights approach of the feminist movement. Finally, the article invokes John Paul II’s emphasis on vocation and proposes a social movement targeting a paradigm shift to a dignity perspective rather than relying on a legal movement.

26) Julian Ku (Hofstra University - School of Law), The Wrongheaded and Dangerous Campaign to Criminalize Good Faith Legal Advice , forthcoming in Case Western Reserve J. of Intl. Law.The abstract states:

I argue in this brief essay that the increasingly fervent insistence on criminal punishment of the Bush administration lawyers for their legal advice on interrogation policy is both wrong-headed and dangerous. It is wrong-headed because the insistence on criminal prosecution of attorneys based solely upon their good faith interpretation of the law is highly unlikely to succeed as a matter of both U.S. and international law. It is dangerous because, at least with respect to U.S. law, prosecuting good faith legal advice is (and should be) a violation of those attorneys’ constitutional rights under the U.S. Constitution’s First Amendment and broader norms of free expression. Insisting on prosecuting lawyers for their good-faith legal advice, or even threatening prosecution, will chill the ability of future government lawyers to give legal advice on complex and important questions implicating U.S. national security.

27) Margreth Barrett (University of California, San Francisco - Hastings College of the Law),  Reconciling Fair Use and Trademark Use, forthcoming in Cardozo Arts & Entertainment Law Journal. The abstract states:

This article looks to early common law, the legislative history of the Lanham Act, and public policy considerations to evaluate the relationship between the Lanham Act’s trademark use requirement and the trademark fair use defense. Although a number of commentators have suggested the contrary, I conclude that requiring infringement plaintiffs to demonstrate a form of trademark use on the defendant’s part is consistent with the fair use defense, which waives liability if the defendant can demonstrate that its use was “in good faith” and “otherwise than as a trademark.” The trademark use and fair use doctrines work together to strike the balance of competing interests that Congress intended to establish in the Lanham Act. The requirement that the plaintiff demonstrate the defendant’s “trademark use,” as historically developed and codified in the Lanham Act, provides a straightforward, objective standard for determining whether consumers are likely to look to the defendant’s application of a contested word or symbol for information about product or service source. It enables courts to avoid protracted, fact-intensive investigation of actual consumer perceptions, and identify cases in which the societal costs of protracted litigation are likely to outweigh potential consumer confusion costs, and dispose of them early in the litigation process. This should limit the chilling effects that threats of protracted, expensive infringement litigation have on marketplace actors seeking to make socially beneficial uses of words or symbols claimed as marks, and protect First Amendment interests by limiting infringement claims, in most cases, to a defendant’s commercial speech.

The fair use defense was developed to accommodate the special concerns that arise when businesses claim exclusive rights in surnames and descriptive words and symbols. A competitive marketplace requires that all marketplace actors be able to use surnames, descriptive and geographically descriptive words and symbols truthfully to communicate relevant information about their goods and services to consumers. Historical analysis of early common law, Lanham Act legislative history, and post-Lanham Act fair use decisions, as well as a line of recent Supreme Court decisions, support the conclusion that the fair use defense focuses on the defendant’s purpose in applying a surname or descriptive word or symbol, not on the likely impact of the use on consumers. The defendant’s purpose is determined through examination of circumstantial evidence.

Thus, even though an infringement plaintiff demonstrates that the defendant made a “trademark use” of its surname, descriptive or geographically descriptive word or symbol (that is, shows that the defendant closely, directly associated the contested word or symbol with products or services that it was advertising or offering for sale, in a manner that was perceptible to consumers and that makes a separate commercial impression), and even though the plaintiff demonstrates that this trademark use is likely to confuse consumers, the defendant can avoid liability by demonstrating that it applied the word or symbol, in good faith, merely for the purpose of describing its own goods or services.

28) Carl F. Stychin, Faith in the Future: Sexuality, Religion and the Public Sphere, 29 Oxford Journal of Legal Studies 729 (2009). The abstract states:

The clash between religious freedom and equality for lesbians and gay men has become a controversial legal issue in the United Kingdom. Increasingly, claims are made that compliance with anti-discrimination norms impacts upon conscientious, faith-based objectors to same-sex sexual acts. This article explores this issue and draws insights from North American case law, where this question has been considered in the context of competing constitutional rights. It raises far-reaching issues concerning the distinction between belief and practice, as well as the role of identity in the public sphere. The author advocates that courts and tribunals should adopt a fact-specific approach which is sensitive to the rights in a particular context, and which focuses upon the values of accommodation, tolerance and mutual respect.

29) Man Yee Karen Lee (Hong Kong Shue Yan University),  Religion, Human Rights, and the Role of Culture , forthcoming in International Journal of Human Rights. The abstract states:

The Universal Declaration of Human Rights is widely taken as the only universal framework of human rights today. With the diversity that existed at its drafting, it aimed to speak to the world to the tune of a vague and abstract universalism. When aspirations turn into practice, this universalism appears to be in conflict with the particularism inherent in religion. The solution does not lie in excluding religion in the discussion of common good. For religion was part of the human rights history. The challenge lies, instead, in making religion part of the civil society and nurturing a culture of intellectual solidarity.

30) Cornelia Koch (University of Adelaide - Law School), Classroom Crucifixes, Teacher Headscarves, Faith Healers and More - The German Experience of Religious Freedom Under a Bill of Rights. The abstract states:

As part of the current debate in Australia on the adoption of a bill or charter of rights, the experience of other countries is informative. The German Constitution contains a comprehensive catalogue of rights and freedoms. This includes principles protecting religious freedom, most importantly article 4, which declares ‘inviolable’ the ‘freedom of faith, of conscience, and freedom to profess a religion or a particular philosophy’. It also guarantees the ‘undisturbed practice of religion’. Should Australia opt to adopt a charter of rights in any form, it is highly likely that this instrument will contain some protection of cultural and religious freedom. While initially an Australian charter would not be constitutionally entrenched, a comparison with Germany is still helpful because it can be expected that issues encountered under a constitutional charter also arise under a legislative one. The German experience provides examples of the type of social controversies which the courts are called on to decide in relation to the protection of religious freedom.

Issues encountered in Germany seem to belong to two broad categories: first, which kind of behaviour falls within the ambit of freedom of religion and, secondly, to what degree can religious freedom be limited. In relation to the first category, it appears uncontroversial that practices such as praying, conducting Sunday service or ringing of church bells constitute religious behaviour. But what about announcing a charitable drive to collect second hand goods from the pulpit; selling food or drink at religious meetings or refusing to bury an urn in a cemetery? In relation to the second category, even if a type of behaviour is found to be within the definition of freedom of belief, there must be limitations to this freedom. But where should the line be drawn? In the last few decades, the German Constitutional Court was called upon to rule on controversies where one party’s freedom to exercise his or her religion infringed another party’s freedom not to be exposed to religion or religious practices. Many of these occurred within the educational system. Famous examples are the School Prayer Case, where a student’s parents objected to their child’s exposure to school prayer outside of religious education; the Classroom Crucifix Case, where non-Christian parents objected to their child being exposed to crucifixes in classrooms of a public, non-religious school; and the Teacher Headscarf Case where the Court was asked to decide whether an Islamic teacher is entitled to wear a headscarf while teaching in a public school, thus exposing students to a manifestation of her faith. All of these cases saw the Constitutional Court become involved in morally highly controversial disputes, which received a lot of attention from the public and where public opinion was clearly divided. This paper will explain the course which the Court took in resolving these disputes. It will argue that a clause protecting freedom of belief in a charter of rights inevitably involves the courts in disputes which are morally difficult, highly controversial and the subject of much public debate. However, in my view, this is a small price to pay for providing protection of the public’s religious beliefs in a charter of rights.

31) Martin Paldam (University of Aarhus - Department of Economics) and Erich Gundlach (Kiel Institute for the World Economy),  The Religious Transition - A Long-Run Perspective . The abstract states:

We use factor analysis to derive a robust measure of religiosity from items reported in five waves of the World Value Survey. Our measure of religiosity is negatively correlated with per capita income. Development apparently causes religiosity to fall to about half its pre-modern level. Most components of the demand for religion are reduced by development. The supply of religion declines once churches lose control over the institutions providing collective goods like education, health, and social security. These goods used to be supplied by churches jointly with religious services but tend to be supplied by the state with rising levels of development. Aspects of supply and demand are integrated in a CES production function framework that can explain the direction of causality in the observed negative correlation between income and religiosity.

JFB

Turkey: Constitutional Court Bans Pro-Kurdish Political Party

Those following events in Turkey, especially the country's on-going bid to join the EU, will be interested to know that the Constitutional Court today outlawed Turkey's main pro-Kurdish party, the Democratic Society Party, or DTP.   Prosecutors charged the party with inciting violence and maintaining ties to the PKK, the separatist Kurdish organization that both Turkey and the US label a terrorist group.  According to Voice of America, the DTP holds 21 positions in Parliament.  The ruling means that two of the top leaders will be expelled, while others are expected to resign rather than change their party status to independents. 

Besides provoking additional ethnic violence, the decision gives the EU one more reason to stall on Turkey's membership bid, or as one committee member threatened, to suspend talks all together. 

I do think Turkey will have to answer for the court's decision, but at the same time suspect that the threats coming from the EU are more bark than they are bite.  Turkey's got a lengthy record of banning political parties (24 since the Constitutional Court was created in 1964), which the EU knew about long before the admission process started.  Indeed, in 2003, the European Court of Human Rights upheld a decision by the Constitutional Court to ban the Welfare Party.  That was the party of Turkey's current Prime Minister, Recep Tayyip Erdogan, until he and other Welfare Party leaders re-grouped to form the Justice and Development Party (AKP). 

-Kathleen A. Bergin

Cert Granted in CLS v. Martinez

The Supreme Court has granted cert in Christian Legal Society v. Martinez, to decide whether a state run law school must officially recognize a student religious group that discriminates on the basis of sexual orientation. 

The CLS refuses to admit as members individuals who engage in "unrepentant homosexual conduct," and as a result, did not qualify for recognition as an official student group under a non-discrimination policy at Hastings Law School.  The CLS lost a summary judgment motion claiming that the law school's policy violated their members' right to free speech and association, and in March the Ninth Circuit affirmed. 

The CLS has pressed similar lawsuits across the country.  In 2007, it won a temporary injunction from the 7th Circuit which ordered The University of Illinois to restore the group's official status.  There was evidence in that case, however, that the University had selectively enforced its non-discrimination policy against CLS, whereas there is no such evidence in Martinez.

-Kathleen A. Bergin