First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship addressing First Amendment issues:

1) Andrew Koppelman (Northwestern University School of Law), The New American Civil Religion: Lesson for Italy, forthcoming in George Washington International Law Review.  The abstract states:

American civil religion has been changing, responding to increasing religious plurality by becoming more abstract. The problem of increasing plurality is not only an American one. It is also presented in Italy, where civic identity has been centered around a Catholicism that is no longer universal. Perhaps Italy has, in this respect, an American future.

2) Alan Manning (London School of Economics & Political Science (LSE) - Centre for Economic Performance (CEP))  and Sanchari Roy, Culture Clash or Culture Club? National Identity in Britain, 120 The Economic Journal. F72-F100 (February 2009). The abstract states:

This article investigates the extent and determinants of British identity among those living in Britain, a source of considerable contemporary angst. We find no evidence for a culture clash in general, and one connected with Muslims in particular. The vast majority of those born in Britain, of whatever ethnicity or religion, think of themselves as British. Newly arrived immigrants almost never think of themselves as British but the longer they remain in the UK, the more likely it is that they do. This process of assimilation is faster for those from poorer and less democratic countries.

3) Shannon Gilreath (Wake Forest University School of Law and School of Divinity), Not a Moral Issue: Same-Sex Marriage and Religious Liberty, 2010 Illinois L. Rev.  205 (2010). The abstract states:

Same-Sex Marriage and Religious Liberty is a new book of essays edited by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson. The book purports to offer a solution that will give Gays and Lesbians access to the benefits of marriage, while recognizing religious objectors’ rights to oppose gay marriage. This Book Review focuses on the book’s intellectual center, Professor Wilson’s essay, Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context, and Professor Laycock’s Afterword.

In this Book Review, the author shows that Professors Wilson and Laycock’s analysis of the same-sex marriage debate fails to seriously account for equality issues that are at stake. The Fourteenth Amendment does not allow religious objection to justify ant miscegenation laws. Similarly, Equal Protection demands that we examine the religious justifications for anti-Gay marriage arguments more closely. The author demonstrates that, contrary to Professors Wilson and Laycock’s assertions, one cannot easily distinguish between religious objections to interracial marriage, as well as religious justifications for other forms of inequality, and religious objections to Gay marriage. The author proposes we should analyze objections to same-sex marriage in light of group-based equality issues, and not subordinate Gays’ and Lesbians’ collective equality rights to the political power of individual religious objectors.

4) Roseann B. Termini (Widener University - School of Law), Does “Political” Science Exist Anymore? Embryonic Stem Cell Research in this New Political Climate, 5 Journal of Health & Biomedical Law 249 (2009). The abstract states:

Undoubtedly, countless Americans and their families are affected by life threatening diseases such as cancer, Parkinson’s disease, diabetes and heart disease. Cures and or treatments to eliminate these diseases remain complex at best. However, the future holds great potential in medical advances due to a discovery within our own bodies: stem cells. While stem cell research has not yet yielded a cure for any disease, scientists think that this medical advance is unique in its ability to unlock medical mysteries and to shed light on the early development of humans and the diseases that affect us. Over 100 million people currently suffering from diseases may someday be helped or cured by this research.

While science will not and should not replace religion, the issue to ponder is the role of religion in government. Just as the decision to teach evolution over creationism in American classrooms could be regarded as a political agenda mired in religion, science in that instance prevailed. The transition from a faith-based presidency to a fact-based presidency has been abrupt, and perhaps overdue. Our nation is based on a system of checks and balances and those who strongly oppose this new era for scientific based research in an arena so important to our society will be afforded the opportunity of due process. President Obama, through Executive Order 13505 and the resultant NIH Guidelines on Human Stem Cell Research has spearheaded the process for cell stem research to reach heights for the ultimate betterment of our society.

5) Maira Covre Sussai Soares (Catholic University Leuven ), Andre C. B. Aquino (University of Sao Paulo - FEARP-USP) and Koenraad Matthijs ( Katholieke Universiteit Leuven), Marriage Dissolution: Property Rights or Social Ties?. The abstract states:

The division of property rights affects the probability of marriage dissolution. However, this effect depends on the institutional environment. Throughout a comparative institutional analysis, we use data from the 2000 censuses of Brazil and the United States. The results indicate that the probability of divorce, both in Brazil and the United States, is negatively related to the amount of property and income and to the costs of leaving the relationship. Additionally, we found that this relation is moderated by the institutional enforcement and coercion degrees presents in each country, including divorce laws and religious coercion. Specifically for religious coercion, we found that religious orientation is relevant for marital dissolution in both countries. Nonetheless, the guarantees of property rights by divorce laws, reduce the probability of divorce in Brazilian jurisdiction, but do not affect the divorce occurrence among the USA couples, even when controlled to mitigate the differences between state legislation. We suggested that this difference on law’ impact is related with a greater unpredictability on North American common law, if compared with the written Brazilian civil code.

6) Michael Hatfield (Texas Tech University School of Law), The Anabaptist Conscience and Religious Exemption to Jury Service , 65 New York University Annual Survey of American Law 269 (2009).  The abstract states:

This Article develops a proposed framework for a religious exemption to jury service. Part I provides the background regarding why and how juries are impaneled. Part II describes the Anabaptist [Amish, Mennonite, Brethren, and Hutterite] world view in which jury service is inherently inconsistent with religious principles. Part III argues for a constitutional guarantee of a religious exemption from jury service. Part IV provides a proposal for categorical exclusion of conscientious objectors to jury service.

7) Joshua P. Davis and Joshua D. Rosenberg (University of San Francisco - School of Law),  The Inherent Structure of Free Speech Law. The abstract states:

To date no one has discovered a set of organizing principles for free speech doctrine, an area of the law that has been criticized as complex, ad hoc, and even incoherent. We provide a framework that distills free speech law down to three judgments: the first about the role of government; the second about the target of government regulation; and the third a constrained cost-benefit analysis. The framework can be summarized by three propositions: first, the Constitution constrains government if it regulates private speech, but not if government speaks, sponsors speech, or restricts expression in managing an internal governmental function; second, government regulation is subject to the Free Speech Clause only if it targets communication; and, third, government regulation targeting communication is constitutional if it survives a constrained cost-benefit analysis. We first set forth our general theory and provide examples of its explanatory power. We then argue that our framework finds confirmation in the works of three renowned scholars: Dean Robert Post of Yale Law School on role of government, Professor Jed Rubenfeld of Yale Law School on the target of government regulation and the constraints on balancing, and Judge Richard Posner on cost-benefit analysis. The work of these scholars supports our position in two ways: first, each agrees with part of our framework; and, second, the writings of each are unpersuasive to the extent they are at odds with our rational reconstruction of free speech law.

8) Aaron H. Caplan (Loyola Law School Los Angeles ), Freedom of Speech in School and Prison, forthcoming in  Washington Law Review.  The abstract states: 

Students often compare their schools unfavorably to prisons, most often in a tone of rueful irony. By contrast, judicial opinions about freedom of speech within government-run institutions compare schools and prisons without irony or even hesitation. This Article considers whether the analogy between school and prison in free speech cases is evidence that the two institutions share a joint mission. At a macro-level, there is an undeniable structural similarity between the constitutional speech rules for schools and prisons. At a micro-level, however, there are subtle but significant differences between the two. The differences arise primarily from the judiciary’s belief that differences exist between the purposes of schools and prisons - although, somewhat ominously, the differences appear even more subtle when comparing schools to jails. Just as judicial beliefs about social reality affect constitutional outcomes, the constitutional rules in turn affect social reality. Courts should be wary of language that equates schools with penal institutions, lest the analogy become a self-fulfilling prophecy.

9) Stephen R. Klein, A Cold Breeze in California: ProtectMarriage Reveals the Chilling Effect of Campaign Finance Disclosure on Ballot Measure Issue Advocacy,  in Engage: The Journal of the Federalist Society Practice Groups, Vol. 10, No. 3, 2009. The abstract states: 

Although a state government may have an interest in disseminating donor information behind some campaigns for or against ballot measures, the Ninth Circuit’s interpretation of the “informational interest” from Buckley v. Valeo was not a concern in Proposition 8, which implicated a purely social issue. Thus, in light of the use of donor information to abridge free speech, this articulation of the informational interest does not survive strict scrutiny: as applied, California’s disclosure law indirectly infringes upon First Amendment rights by facilitating the suppression of political speech.

10) Anne Tucker Nees (Georgia State University College of Law),  Politicizing Corporations: A Corporate Law Analysis of Corporate Personhood and First Amendment Rights after Citizens United.  The abstract states: 

From derivative suits to the derivative speech rights recognized in Citizens United, the watershed 2010 Supreme Court opinion overturning regulations on corporate political speech in the form of independent expenditures, our law takes inconsistent stances on how corporations speak, on whose behalf, and for whose benefit. The question of corporate personhood is central to the determination of corporations’ claim to First Amendment rights. The evolution of corporate personhood culminating in the Citizens United opinion holding that the First Amendment recognizes no distinctions between individual and corporate speakers can be juxtaposed to the development of corporate law in areas such as derivative suits, the proxy process, and SEC regulations which recognize the complexity of corporate speech due to its various stakeholders. Additionally, an analysis of corporate law leads to the conclusion that when corporations speak, it is speech of an economic, not a political nature due to corporations’ singular fidelity to profit maximization. Citizens United leaves unexamined questions such as how economic speech should be treated in the marketplace of political speech. From a corporate law perspective, Citizens United leaves shareholders, particularly those of mutual funds, without meaningful control over how their investments are utilized in the political arena, placing such investors in the unhappy position of potentially choosing between political integrity and economic gain. Further blurring the lines between economic and political interests for corporations and shareholders undermines both the First Amendment principals supposedly advanced in Citizens United and tenants of corporate law that, like our political system, seek to appropriately balance the competing and distinct interests of the corporation as an entity, its management (directors and officers), and its shareholders.

11) Thomas F. Cotter (University of Minnesota Law School), Burkean Perspective on Patent Eligibility, Part II: Reflections on the (Counter)Revolution in Patent Law, forthcoming in Minnesota Journal of Law, Science & Technology. The abstract states: 

In 2007, I published an essay in the Berkeley Technology Law Journal, titled A Burkean Perspective on Patent Eligibility, in which I discussed how the United States Court of Appeals for the Federal Circuit and the United States Patent and Trademark Office had discarded various doctrines relating to patent eligibility - among them, rules that all patentable inventions must pertain to the technological arts, that they may not read on mental steps, and that patentable processes must effect a physical transformation - in favor of an approach that asked only whether an invention had practical utility and was predictable in its effects. Taking a cue from the (admittedly non-patent related) writings of the Anglo-Irish statesmen and political theorist Edmund Burke, I argued that some aspects of the older approach to patentable subject matter may have embodied an underappreciated wisdom, to the extent these older doctrines prevented patent law from intruding upon both laws of nature and human liberty interests, including freedom of speech and personal autonomy. At the same time, I recognized that, as times change, the law too must change, and I contended that it would be inadvisable to exclude computer and business-related art from the scope of patentable subject matter altogether. I nevertheless argued that, properly reformed and refined, the older doctrines could still play a useful role in preventing patent law from unduly extending its reach into every nook and cranny of human endeavor.

Three years later, as we await the United States Supreme Court’s decision in Bilski v. Kappos, the legal landscape appears to have changed substantially. From a time just prior to the publication of my Burkean paper and continuing to the present day, the Court has actively scaled back some of the Federal Circuit’s more expansive readings of patent doctrine in cases such as eBay Inc., MedImmune, KSR, Microsoft, and Quanta. Both the Federal Circuit and the Patent Office have applied more restrictive standards for patent eligibility as well, and the Supreme Court may go farther yet. Perhaps the greater risk now is that courts and other policymakers will settle on a formalistic approach that blindly adheres to the form of traditional doctrines while ignoring those doctrines’ underlying rationales. I will argue that a workable standard for patent eligibility should reflect the wisdom embodied in tradition, while being flexible enough to accommodate advances in relatively new useful arts such as information technology and biotechnology. In particular, I will argue that three screens derived from traditional patent doctrine - a “technological arts” screen, a “minimal physicality” screen, and a “noninvasiveness” screen, as I will define them - should suffice to ensure that patent law continues to encourage technological progress, without precluding access to the public domain building blocks from which such progress arises.

12) Chris Witteman, Constitutionalizing Communications: The German Constitutional Court's Jurisprudence of Communications Freedom. The abstract states:

In the United States, the debate over communications problems ranging from network neutrality to public broadcasting, and solutions that might involve some affirmative act of government, seems to be carried out in a constitutional vacuum.

This is not surprising, as the First Amendment is framed as a negative – government shall make “no law” infringing the freedom of speech. This paper explores a different model, one that results from a constitution that is phrased in the affirmative, guaranteeing freedom of the press and broadcasting.

The German post-war constitution was built on the ashes of a fascist dictatorship that had misused mass communications; the new constitution was structured to prevent such a catastrophe in the future. Broadcasting in particular was claimed for the project of democracy.

As in the United States, the German Court has been vigilant in detecting and forbidding government actions that might chill this process. Unlike the United States, however, the German Court has also seen potential dangers emanating from the private sector. In a dozen or so seminal cases from 1961 to the present, the German Constitutional Court has linked the electronic media to “opinion-building” in both the political and personal spheres. The Court has required that German legislators take affirmative steps to protect the free flow of information and opinion from both government and private censorship. Among other things, the result is a fully-funded public broadcasting system. The German Court’s jurisprudence provides a theoretical framework rich in implications for a world where – increasingly, and in different ways – information is power.

13) Tabatha Abu El-Haj (The Earle Mack School of Law at Drexel University), The Neglected Right of Assembly, 56 UCLA L. Rev. 543 (2009).   The abstract states: 

This Article considers changes in both our understanding of the constitutional right of peaceable assembly and our regulatory practices with respect to public assemblies. It shows that through the late nineteenth century the state could only interfere with gatherings that actually disturbed the public peace, whereas today the state typically regulates all public assemblies, including those that are both peaceful and not inconvenient, before they occur, through permit requirements. Through this regulatory shift, and judicial approval of it, the substance of the right of peaceable assembly was narrowed. The history recounted in this Article is significant because it provides insight into the democratic and social practices the right was intended to protect - insight that cautions against collapsing the collective right of assembly into the individual right of free expression.

14) Alex Reinert (Benjamin N. Cardozo School of Law -- Yeshiva University), Public Interest(s) and Fourth Amendment Enforcement , forthcoming in University of Illinois Law Review.  The abstract states:

Fourth Amendment events – the recent arrest of Harvard professor Henry Louis Gates, Jr. is one of many examples – generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the Amendment creates only tension between privately-held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered with references to the “costs” to society of enforcing the Fourth Amendment in favor of individual claimants. Taking the “public interest” seriously in this framework predictably favors government intrusions.

This Article challenges this dichotomous approach to Fourth Amendment interpretation by identifying a new dimension of the public’s interest: important collective values that are in harmony rather than in tension with individual liberties. The multidimensional approach advanced here recognizes that there are many kinds of public interests, some of which are advanced and some of which are impeded by Fourth Amendment intrusions. Drawing on First Amendment and Due Process Clause jurisprudence, empirical data, and historical materials, this Article uses as examples two categories of collective interests – participatory pluralism and efficient and accurate administration of the criminal justice system – that are implicated by Fourth Amendment questions, but are ignored by the Court’s current jurisprudence. If the Court is to take the public’s interest seriously, it needs a Fourth Amendment jurisprudence that takes account of these interests, among others, and acknowledges the reality that the “public interest” is multifaceted.

15) Richard Delgado (Seattle University School of Law), Liberal McCarthyism and the Origins of Critical Race Theory, 94 Iowa L. Rev. 1505 (2009 ). The abstract states:

I wrote this piece exploring some of the intellectual origins of critical race theory for a 20-year anniversary of the movement held at the University of Iowa in April, 2009. In it, I look at the role of certain prominent university officers in purging their ranks of white radicals to prepare the way, in the late sixties and early seventies, for the first large group of post-Brown minority students who were starting to arrive around that time. I show how four promising white professors, two of law, one of history, and one of criminology lost their jobs and what they did afterward. I show that they continued to teach and write about left-wing thought in the hinterlands in ways that contributed to the rise of critical race theory. As they say, it is hard to kill an idea.

JFB