First Amendment Law Prof Blog

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

 

 

 

Global Free Speech Update

Iran:  Iran this week broadcast the execution of two men convicted of "counterrevolutionary" acts and defying god.  Bad enough that Iranian authorities say the charges were justified on account of the men's involvement in protests surrounding June's disputed election results, but it's likely that's not even true.  Instead, those protests are being used as a pretext for allowing authorities to pretty much execute who they want, when they want, for whatever they want, and there doesn't seem to be much the international community can do about it. 

France:  A parliamentary panel recommended in a 200 page report that women be prohibited from wearing a niqab in public office buldings, schools, and hospitals, and while traveling on mass transit.  The niqab, a full face veil that leaves only a slit for the eyes, is worn by approximately 2000 Muslim women currently living in France.  Authorities say the move is necessary to liberate women from "the black tide of fundamentalism," but opponents fear it will provoke a backlash and put some women in danger if their families discover them unveiled in public.  A ban against head scarves in public schools is already in place.

US:  Lee Bolinger chats with Law.com about Chinese censorship, Russian media threats, and the financial fragility of the American press.  Oh, and he's also got a new book: Uninhibited, Robust, and Wide-Open: A Free Press for a New Century.

Netherlands:  Geert Wilder went on trial this week (prior post here).  It's worth checking out the Youtube clip of his opening statement, where Wilder's quotes Thomas Jefferson (good), but then asks for expert testimony to demonstrate the "truth" of his comments that Islam equates to Nazism, and the Quran to Mein Kampf (bad).

-Kathleen Bergin 

First Amendment Limits Remedies Against Publisher In Labor Dispute

A Santa Barbara based newspaper found to have engaged in numerous unfair labor practices cannot be compelled to reinstate reporters who were fired for unionizing after they raised concerns about the publisher's journalistic integrity.  A panel of the Ninth Circuit concluded that such an order could potentially interfere with the publisher's First Amendment right to exercise "editorial control" over the content of future publications.    

The case is McDermott v. Ampersand Publishing.

-Katlheen Bergin

U.S. v. Phipps: Fifth Circuit Upholds Conviction for Tax Evasion Advice

In US v. Phipps, 2010 WL 254983, the defendant was convicted of a variety of crimes on account of running an illegal pyramid scheme that included advice to participants on how to avoid paying an income tax.  On appeal, the defendant claimed that the income tax advice he provided was protected under the First Amendment because it did not qualify as "incitement" as that term was define in Brandenburg v. Ohio.  The Fifth Circuit rejected that claim, in an opinion that reads in relevant part: 

Telling his adherents that he did not report his LWD income to the IRS and encouraging them to do the same places Phipps' speech within the sphere of proscribed speech likely to incite or produce "imminent lawless action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); see also United States v. Kelley, 864 F.2d 569, 577 (7th Cir.1989) (rejecting First Amendment protection of "more than mere advocacy" where defendant told clients to keep tax shelter information secret from the IRS and received commissions from sales); United States v. Buttorff, 572 F.2d 619, 624 (8th Cir.1978) (rejecting First Amendment protection of activity that went "beyond mere advocacy of tax reform" in explaining to others how to avoid income tax liability). Phipps has not shown that his behavior advising and advocating tax evasion to LWD participants should be entitled to First Amendment protection.

This seems strange to me.  Without having read the cited cases, it's hard to tell why the court thought this particular type of advocacy was likely to promote "imminent" illegal action in the form of failing to declare income on a tax return.

  

Turkey: OSCE Urges Reform of Internet Law

The OSCE has urged members of parliament to either "reform or abolish" Law 5651, officially entitled Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of Such Publication.  The law was passed in 2007 after a video mocking the late Mustafa Kemal Ataturk appeared on YouTube, and another showed someone disparaging the Turkish flag.  Since then, the OSCE report notes, more than 3700 websites have been blocked, including YouTube, Google, and Geocities.  Turkish news sites have also been targeted, as have two of the country's largest GLBT sites.

-Kathleen A. Bergin

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on First Amendment topics:
 
1) Steven Goldberg (Georgetown University Law Center, Neuroscience and the Free Exercise of Religion, published in LAW AND NEUROSCIENCE: CURRENT LEGAL ISSUES, M. Freeman, ed., (Oxford University Press, 2010). The abstract states:

Recent developments in neuroscience that purport to reduce religious experience to specific parts of the brain will not diminish the fundamental cultural or legal standing of religion. William James debunked this possibility in The Varieties of Religious Experience (1902) when he noted that “the organic causation of a religious state of mind” no more refutes religion than the argument that scientific theories are so caused refutes science. But there will be incremental legal change in areas like civil commitment where judges must sometimes distinguish between mental disorder and religious belief. The paradox is that the ecstatic religious experience of unorthodox individuals will fare less well in the courts than the beliefs of conventional groups, which is precisely the opposite of James’ view of authentic religious life.

2)  Robert C. Blitt (University of Tennessee College of Law), Should New Bills of Rights Address Emerging International Human Rights Norms? The Challenge of 'Defamation of Religion' . The abstract states: 

The emerging international human rights norm of “defamation of religion”, an ongoing flashpoint in debates at the United Nations (UN) and elsewhere, merits the attention of all parties playing a role in the drafting of new bills of rights. This article uses the case study of defamation of religion as an emerging norm and the current debate over a possible Australian bill of rights to argue that a well-rounded drafting process should contemplate the relevancy and impact of emerging norms as a means of enhancing the process, deepening domestic understanding of rights, and ensuring an outcome instrument that is designed to address future rights-based challenges.

Part I of this article offers a brief comparative history of the offense of blasphemy to help contextualize the intended meaning of defamation of religion. Part II discusses how defamation of religion became the focus of dozens of UN resolutions, assesses the challenges associated with grafting the legal concept of defamation onto the mercurial notion of religion and its potential implications for existing international law, and takes stock of the ongoing debate as it stands today. Part III draws some preliminary conclusions concerning the possible impact of enforcing a norm against defamation of religion and lastly considers to what -- if at all — Australia should incorporate a response to this emerging norm in any future bill of rights.

3) Marco Francesconi (University of Essex) and Christian Ghiglino (University of London, Queen Mary - Department of Economics ), On the Origin of the Family. The abstract states:

This paper presents an overlapping generations model to explain why humans live in families rather than in other pair groupings. Since most non-human species are not familial, something special must be behind the family. It is shown that the two necessary features that explain the origin of the family are given by uncertain paternity and overlapping cohorts of dependent children. With such two features built into our model, and under the assumption that individuals care only for the propagation of their own genes, our analysis indicates that fidelity families dominate promiscuous pair bonding, in the sense that they can achieve greater survivorship and enhanced genetic fitness. The explanation lies in the free riding behavior that characterizes the interactions between competing fathers in the same promiscuous pair grouping. Kin ties could also be related to the emergence of the family. When we consider a kinship system in which an adult male transfers resources not just to his offspring but also to his younger siblings, we find that kin ties never emerge as an equilibrium outcome in a promiscuous environment. In a fidelity family environment, instead, kinship can occur in equilibrium and, when it does, it is efficiency enhancing in terms of greater survivorship and fitness. The model can also be used to shed light on the issue as to why virtually all major world religions are centered around the importance of the family.

4) Matthew Steilen, Parental Rights and the State Regulation of Religious Schools, 2009 BYU Educ. & L. J. 269 (2009). The abstract states:

In Wisconsin v. Yoder, the United States Supreme Court invalidated convictions of several Amish parents for removing their children from school in violation of state mandatory attendance laws. In reaching its decision, the Court argued that protecting the Amish parents’ decisions fit into a longstanding American tradition of giving parents control over the upbringing of their children. Yet the Supreme Court mischaracterized the history of parental rights and state interests in education. Contemporary historical research shows that parents have long ceded a large measure of control to the state in the education of their children. Still, very little has been written about this scholarship in legal journals. This article attempts to remedy this deficiency. It isolates and explores three key periods in the development of state administered public schools, paying special attention to early public funding of religious schools, the Protestant character of the common schools, and Catholic resistance to the use of the King James Bible in common schools. In so doing, this article argues for a “republican” interpretation of early educational practices. Drawing on that interpretation, the article joins a debate between Noah Feldman, Martha Nussbaum, and others about the nature of American religious liberties, and argues that their views are not able to fully acknowledge the history of Protestant evangelizing in public schools.

5) Moeen Hayat Cheema (ANU College of Law), Cases and Controversies: Pregnancy as Proof of Guilt Under Pakistan's Hudood Laws .The abstract states:

Pakistan's Hudood (Islamic criminal) laws have been a source of controversy since their promulgation by the military regime of General Muhammad Zia-ul-Haq in 1979. For their supporters, these laws are a welcome step towards the enforcement of shari'ah (Islamic law) and, as such, represent a logical and inevitable progression of those historic processes that had led to the creation of the Islamic Republic of Pakistan. To their opponents, these laws represent gross violations of fundamental human rights and constitutional norms designed to uphold democratic participation in lawmaking and the equality of citizens irrespective of their religion or gender.

This paper will survey the contours of the controversies surrounding the Hudood laws, and seek to broaden the horizons of the debate surrounding these laws by incorporating an “Islamic critique” of these laws that has generally been lacking in the discourse. More importantly, the paper seeks to analyze the role that the Federal Shariat Court has played in substantively shaping the law, through a chronological analysis of the Court's decisions on the most contentious aspects of the Hudood laws: the conviction of rape victims for zina (consensual adultery/fornication) regarding as proof the pregnancy caused by the rape. This analysis will indicate the strengths of the Islamic critique and propose reforms that may offer a viable avenue for alleviating the hardships perpetrated in the application of the Hudood laws.

6) Timothy Zick (William & Mary Law School ), “Duty-Defining Power” and the First Amendment’s Civil Domain, 109 Colum. L. Rev. - Sidebar ---- (2009). The abstract states:

In Rethinking Free Speech and Civil Liability, 109 Colum. L. Rev. 1650 (2009), Daniel Solove and Neil Richards seek to map coherent boundaries for the First Amendment’s vast civil domain. Currently, different rules apply to civil liability for speech depending on whether the liability arises in tort, contract, or property. Solove and Richards claim that these boundaries are unworkable, under-theorized, and in some cases destined to collide. They develop a framework for mapping the First Amendment’s civil domain that is based upon a distinction regarding the type of power the state exercises in various civil liability contexts. This brief response critically examines the choice and meaning of power, and the boundaries that a power-defining approach would draw.

7) Mohit Singhvi, Human Rights and Media: A Comparative Study. The abstract states:

Free speech is the cornerstone of a free society as it is an inherent, inalienable right of the citizens of a democratic country. It is a basic human right enjoyed by all such citizens, regardless of cultural, religious, ethnic, political formation or other backgrounds and is the foundation over which other basic human rights are built. Often regarded as an integral concept in a democratic set up, without free speech no justice is possible and no resistance to injustice and oppression is possible. Thus freedom of speech is significant at all levels in society. It is also equally important to governments because when criticisms of a government are freely voiced, the government has an opportunity to respond to the grievances of the citizens. On the other hand, when freedom of speech is restricted, rumours, unfair criticisms, comments and downright falsehoods are circulated through private conversations and surreptitiously circulated writings. In that context, the government is in no position to counter such views, because they are not publicly stated. It is in the government's interest to allow criticisms in the public arena where it can answer its critics and correct its mistakes if any. Now, due to the surge of Information Technology, the governments have wider and faster access to electronic media far in excess of past communication channels.

8) Wendy Seltzer (Harvard University - Berkman Center for Internet & Society),The Politics of Internet Control and Delegated Censorship. The abstract states:

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

9) Mridul Chowdhury, The Role of the Internet in Burma’s Saffron Revolution, Berkman Center Research Publication No. 2008-8. The abstract states:

The 2007 Saffron Revolution in Burma was in many ways an unprecedented event in the intersection between politics and technology. There is, of course, the obvious: the event marks a rare instance in which a government leveraged control of nationalized ISPs to entirely black out Internet access to prevent images and information about the protests from reaching the outside world. At another level, it is an example of an Internet driven protest which did not lead to tangible political change. On deeper reflection it is also of interest because of the complex interaction between eyewitnesses within the country and a networked public sphere of bloggers, student activists, and governments around the globe. To that end, this case study examines the root causes, progress, and outcomes of the Saffron Revolution and attempts to parse out the extent to which technology may have played a useful or detrimental role in the unfolding of events. The case concludes with some initial hypotheses about the long-term impact of the protests and the role of the Internet in highly authoritarian states.

10) Simon M. Weldehaimanot, The Eritrean Journalists’ Case Before the African Commission. The abstract states:

With brief introduction to the individual complaints mechanism before the African Commission on Human and Peoples’ Rights (the Commission) under the African Charter on Human and Peoples’ Rights (the Charter), this article provides commentary on Article 19 v. Eritrea – the case of Eritrean journalists before the Commission. The author has accessed written submissions of both parties and finds gross misrepresentation of facts and misinterpretation of Eritrean laws by the Government of Eritrea (GoE) in addition to its substantively weak arguments on admissibility and merits of the case. Being an example of res ipsa loquitur, the case hardly required strong argumentation from the complainant yet the latter should have done better. Although inherent weaknesses with the Commission and particularly undue deference the Commission shows to States has delayed the case for four years, the Commission eventually admitted the case, found violation of numerous rights and urged the GoE to release or to bring to a speedy and fair trial the journalists detained since September 2001 and to grant immediate access to their families and legal representatives, to lift the ban on the press and to take appropriate measures to ensure payment of compensation to the detainees.

11)Russell S. Sobel (West Virginia University), Nabamita Dutta  (UW - La Crosse) and Sanjukta Roy  (West Virginia University - College of Business & Economics), Beyond Borders: Is Media Freedom Contagious?  63 Kyklos 133 (February 2010). The abstract states:

Previous literature stresses the importance of free media for economic development. By its nature TV, radio, and newspapers cross borders, allowing citizens to easily sample media from neighboring countries. This creates pressure for domestic reform and spreads media freedom between countries. Using spatial econometric techniques, and a sample of 102 countries, we test for the presence of geographic spillovers in media freedom. We find that a country's level of media freedom significantly depends on its neighbors. Countries ‘catch’ approximately 20 percent of their media freedom from neighboring countries. Our results are robust to alternative specifications and measures of press freedom.

12) Recent Cases - First Amendment — Defamation Law — First Circuit Applies Libel Law that Does Not Allow Truth as a Defense in Cases of “Actual Malice.” — Noonan v. Staples, Inc., 556 F.3d 20, reh’g denied, 561 F.3d 4 (1st Cir. 2009). 123 Harv. L. Rev. 784 (2010). The introduction states:

Few issues touch more closely on an individual’s well-being than his reputation, and few state actions raise more sharply concerns of overly intrusive government than telling people what they can and cannot say. First Amendment jurisprudence has struggled to reconcile the tension between an individual’s right to bring claims for harm to his reputation and the freedom of others to engage in speech without fear of legal liability. But whatever tensions defamation cases raise with regard to free speech, one assumption that has largely gone unchallenged and unlitigated is that a person may not be held liable for making a true statement.

Last February, however, in Noonan v. Staples, Inc., the First Circuit applied a Massachusetts libel law that does not allow truth as a defense for statements made with “actual malice” in reversing a district court’s grant of summary judgment. While the First Circuit did not err in concluding that the defendant was procedurally barred from attacking the constitutionality of the statute for the first time in a petition for rehearing, the court’s decision reveals the tenuous constitutional ground on which the Massachusetts libel law currently stands. The statute’s only doctrinal protection is the distinction between speech concerning public matters and speech concerning private matters. Though this distinction may be sensible in some contexts, it should not extend to statutes concerning truthful statements, both because the affected party in such cases lacks a robust reputational interest and because the distinction is likely to chill protected speech in cases that blur the line between matters of public and private concern.

 

Nebraska Considers Student Speech Law

According to this report, The Student Expression Act would protect students who engage in speech that is otherwise protected under the First Amendment, and prohibit retaliation against teachers who defend academic freedom for students.  The law would also shield teachers and administrators from liability for student speech. 

-Kathleen Bergin

National Security Archives Offers Tips on Preparing FOIA Requests

The Legal History Blog points out that the National Security Archives blog, Unredacted, has a series of valuable posts describing how to draft effective FOIA requests.   

JFB 

Citizens United Invalidates Limitations on Corporate Campaign Spending

Yesterday the Supreme Court issued its long awaited ruling in Citizens United v. FEC. As succinctly captured in election law expert Rick Hasen’s reaction piece on Slate, the ruling “kills campaign finance reform.” As critics of the ruling invoked Justice Stevens’ warning in dissent that the “the Court today unleashes the floodgates of corporate and union general treasury spending"  in elections, they quickly turned to efforts to respond legislatively to the ruling.  On SCOTUSblog, Lyle Denniston addresses both potential legislative action and the next likely cases seeking to apply Citizens United to other campaign spending restrictions. 

SCOTUSblog and the Washington Post provide useful collections of media coverage of the ruling and commentary on its content and implications.

JFB

 

 

 

 

 

 

Manufacturer to Stop Printing Bible Verse Cites on Military Weapons

The Military Religious Freedom Foundation website reports that Trijicon, the manufacturer that had supplied gunsights with Bible verse citations imprinted on weapons’ scopes, has now agreed to stop printing the verses on scopes to be used by the military. The company has also offered to provide kits for removing the verse numbers from previously sold weapons. The gunsight Bible verse episode represents the latest in an ongoing series of revelations of inappropriate infusions of religious content into military activities.  In May, Al Jazeera broadcast footage of a military chaplain and a group of U.S. soldiers discussing plans to distribute Bibles in Afghanistan in an effort to convert Afghans to Christianity despite the fact that such efforts would clearly violate a  US Central Command regulation’s express prohibition of "proselytising of any religion,faith or practice."

JFB

 

Supreme Court: Precedents Favoring Public Access to Trial Proceedings Support Criminal Defendant's Objection to Closure of Voir Dire

Yesterday in Presley v. Georgia, the Court in a 7-2  opinion issued without oral argument ruled that the Georgia Supreme Court erred when it rejected a drug trafficking defendant’s 6th and 14th Amendment challenge to the trial judge’s exclusion of the public from the jury selection process. Before jury selection had begun the judge had noticed one spectator, the defendant’s uncle, in the courtroom. Citing the courtroom’s limited seating capacity and concern that the spectator could end up sitting intermingled with potential jurors and have the opportunity to hear or make prejudicial remarks, the judge barred all observers from the voir dire.  The defendant presented evidence that seating could be arranged so that observers could be separated from potential jurors, but the judge asserted, “It’s totally upto my discretion whether or not I want family members inthe courtroom to intermingle with the jurors and sit directly behind the jurors where they might overhear some inadvertent comment or conversation.”  The Georgia Supreme Court rejected the defendant’s contention that the judge was constitutionally obligated to consider alternatives of closing the courtroom and affirmed the trial court’s exclusion decision, citing “an overriding interest in ensuring that potential jurors heard no inherently prejudicial remarks from observers during voir dire.”  To support this conclusion, the state Supreme Court stated that the U.S. Supreme Court  had “not provide[d] clear guidance regarding whether a court must, sua sponte, advance its own alternatives to [closure],” and noted that the defendant had failed to offer the trial judge potential alternatives. 

Yesterday’s per curiam opinion disputed the Georgia panel’s characterization of Supreme Court direction on the public access question as unclear.  Explaining the guidance previously offered, the Court explained the constitutional origins of its prior holdings: 

This Court’s rulings with respect to the public trial right rest upon two different provisions of the Bill of Rights, both applicable to the States via the Due Process Clause of the Fourteenth Amendment. The Sixth Amendment directs, in relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” The Court in In re Oliver, 333 U. S. 257, 273 (1948), made it clear that this right extends to the States. The Sixth Amendment right, as the quoted language makes explicit, is the right of the accused. … The Court has further held that the public trial right extends beyond the accused and can be invoked under theFirst Amendment. Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U. S. 501 (1984) (Press-Enterprise I). This requirement, too, is binding on the States. Ibid.

The Court did note that it not yet addressed  the exact contours and consequences of approaching the public access question from a First as opposed to a Sixth Amendment perspective but found that in the jury selection context no legitimate reason existed for differentiating the scope of the defendant’s Sixth Amendment entitlement from that of a member of the press or the public seeking to assert a First Amendment privilege to open access.

Citing Waller v. Georgia, 467 U. S. 39 (1984), the Court did acknowledge that “the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information,” but underscored that “[s]uch circumstances will be rare, however, and the balance of interests must be struck with special care.” The Court then observed that Waller had offered a standard to guide a trial judge facing the question of whether the public should be excluded from any stage of a criminal trial: "T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”  The Court further underscored that an obligation to consider alternatives that could preserve an open court proceeding should have been evident both from Press-Enterprise I‘s insistence on the exploration of alternatives of closure of the voir dire as well as from the Court’s repeated recognition that “[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system.”  Given that the record failed to demonstrate that the trial court could not have accommodated the public at Presley’s trial, including at the jury selection, his constitutional objection was valid

JFB

First Amendment Scholarship Update

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

1) Margaret Gilhooley (Seton Hall University - School of Law), Drug Safety and Commercial Speech: Television Advertisements and Reprints on Off-Label Uses. The abstract states:

This paper examines how the constitutional protections for commercial speech have limited the ability of Congress and FDA to regulate prescription drugs in ways that can affect safety. In Thompson v. Western States, the Supreme Court struck down a Congressional restriction on advertisements for unapproved “compound” drugs because a disclosure that FDA had not approved the compound was considered a constitutionally adequate alternative. While drug compounds are a relatively obscure category, the decision influenced Congress in deciding not to require a moratorium on television advertisements for newly approved drugs until the risks were better known.

The paper also provides an overview of the intense dispute about the legal and constitutional protections for manufacturers who distribute reprints to doctors of studies they fund about off-label uses of a drug with a disclosure about the lack of agency approval. At the end of the Bush Administration, FDA issued a Guidance Document that the agency did not intend to consider the non-promotional distribution of reprints about an off-label use by a company with disclosures about the lack of FDA approval as establishing an "intent" that the product be used for an unapproved use. While the agency position is ambiguous on whether it rests on statutory or constitutional grounds, or is an enforcement policy, if the new Administration were to revoke the Guidance, a constitutional challenge could ensue. That litigation could also test the difference between commercial speech and expressive speech that receives the highest First Amendment protections.

Justice Breyer, in his dissent in Western States, maintained that a "more lenient application" of the Constitution is needed and warned against "an overly rigid commercial speech doctrine" for Governmental decisions that affect "health and safety." Transforming these decisions into a constitutional decision "would involve a tragic constitutional misunderstanding" as shown by history with respect to the Due Process clause. Instead, for drugs and products that affect health, the test needs to be a "flexible" one that examines the restrictions "proportionality, the relation between restriction and objective, the fit between ends and means." This paper explores how a safety-aware proportionality test would apply to the areas where the commercial speech doctrine has limited FDA's ability to restrict drug promotion.

2) Edward Lee (Ohio State University - Michael E. Moritz College of Law ), Technological Fair Use,  forthcoming in Southern California Law Review. The abstract states:

The Article proposes a framework tailoring fair use specifically for technology cases. At the inception of the twenty-first century, information technologies have become increasingly central to the U.S. economy. Not surprisingly, complex copyright cases involving speech technologies, such as DVRs, mp3 devices, Google Book Search, and YouTube, have increased as well. Yet existing copyright law, developed long before digital technologies, is ill-prepared to handle the complexities these technology cases pose. The key question often turns, not on prima facie infringement, but on the defense of fair use, which courts have too often relegated to extremely fact-specific decisions. The downside to this ad hoc adjudication of fair use is that it leads to great uncertainty over what is permissible in a way that may retard innovation in speech technologies. This Article addresses this ongoing problem by offering a proposal for courts to recognize a specific type of fair use - technological fair use - and to tailor the four fair use factors accordingly. Technological fair use is supported not only by a synthesis of existing case law, but also, more importantly, by the constitutional underpinnings of the First Amendment and the Copyright and Patent Clause, as well as economic theory.

3) Marc Rohr (Nova Southeastern University - Shepard Broad Law Center), The Ongoing Mystery of the Limited Public Forum, 33 Nova L. Rev. 299 (2009).  The abstract states:

More than 25 years after setting forth the rules of its First Amendment “public forum” doctrine, the U.S. Supreme Court has yet to make clear the legal significance of the term “limited public forum,” or to provide a coherent, consistent explanation of how courts are supposed to evaluate restrictions on speaker access to such forums. This Article, in an effort to clarify the meaning of this concept, explores its treatment at both the Supreme Court and lower court levels, pointing out the difficulties inherent in the concept and suggesting a proper understanding thereof.

4) David S. Olson (Boston College Law School), First Amendment Interests and Copyright Accommodations , 50 B. C. L. Rev. --- (2009). The abstract states:

Copyright law exists to encourage the creation of works of authorship by granting exclusive rights. But copyright’s incentive function seems in tension with the public’s First Amendment interests to use and freely hear copyrighted speech. Conventional wisdom holds, however, that copyright law serves to encourage much more speech than it discourages, and resolves First Amendment concerns with protections internal to copyright law like the fair use defense and the idea/expression dichotomy. This Article argues that the conventional wisdom no longer holds given the unprecedented expansion of copyright’s scope and cor-responding drastic diminution of the public domain in the last three decades. This Article extends the U.S. Supreme Court’s reasoning in Eldred v. Ashcroft, which rejected the notion that courts should never subject copyright laws to First Amendment analysis, to read First Amendment accommodations into copyright laws where use of copyrighted materials implicates significant speech interests.

5) Steven Douglas Smith (University of San Diego School of Law), Persons All the Way Up , forthcoming in Villanova Law Review.  The abstract states:

This essay, written for the 2009 John F. Scarpa Conference at Villanova focusing on the work of Professor Joseph Vining, attempts to provide a sympathetic exposition of what might be described, as a translation and with apologies (because Vining would likely be horrified by the description), as Vining’s distinctively personalist methodology, epistemology, and ontology.

6) James Nelson, Note - Incarceration, Accommodation, and Strict Scrutiny, 95 Va. L. Rev. 2053 (2009). The abstract states:

The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires the application of strict scrutiny to policies substantially burdening the religious exercise of prisoners. Although RLUIPA was passed without dissent, critics and commentators have tended to accept three skeptical claims about the use of strict scrutiny in this context: (1) changes in the formal level of scrutiny applicable to claims for religious accommodation are irrelevant to case outcomes; (2) even the most sympathetic statutory language will not improve prisoners' chances of success in seeking accommodations; (3) using the language of strict scrutiny in prison cases will diminish its force in other areas of the law.

This Note challenges these skeptical conclusions. Since RLUIPA was passed in 2000, federal courts have reviewed hundreds of claims brought by prisoners seeking accommodations. Some federal circuit courts have continued to defer to the judgment of prison administrators when denying exemptions. Other federal courts, however, are employing a more rigorous form of review, taking a "hard look" at prison policies that burden religion, and reviewing carefully the claims of prison administrators. Moreover, rather than diluting strict scrutiny in other areas of the law, these courts are using doctrine from outside of the accommodation context to resolve prisoner claims. The emergence of a searching form of review in the prison context is surprising. After detailing an emerging conflict among the federal courts of appeal, this Note argues that firm constitutional footing, statutory specificity, and the importation of searching review from equal protection and free speech cases all help to explain this unexpected development. This Note concludes with some thoughts about how proponents of religious accommodation should proceed in light of the limited but real success of RLUIPA.

7) Kelly Elizabeth Phipps, Note - Marriage & Redemption: Mormon Polygamy in the Congressional Imagination, 1862-1887. 95 Va. L. Rev. 435 (2009)). The abstract states:

How did nineteenth-century federal legislators imagine Mormon polygamy as they debated and adopted harsh anti-polygamy enforcement laws? Republican anti-polygamists in the Reconstruction era called polygamy and slavery the “twin relics of barbarism,” analogizing polygamous husbands to Southern slaveholders. By the 1880s anti-polygamists in Congress rooted their arguments in Chinese Exclusionism and avoided divisive references to Southern slavery. They compared Mormon polygamy to “despotic” cultural practices popularly associated with Chinese immigrants, like concubinage, prostitution, and “coolieism.” White cultural nationalism mobilized support for the first effective anti-polygamy statutes in 1882 and 1887. These changing representations of polygamy illustrate how the Republican party came to terms with the South's legacy of slavery and rebellion by embracing a unified white cultural identity. Metaphorical comparisons to Southern slavery and “oriental paganism” not only vilified polygamy, they also justified federal intervention into local affairs. The these vivid metaphors arose from the Republican party's shifting ideology, not the lived experience of polygamy's perceived “victims”: the plural wives.

8) Bruce G. Peabody (Fairleigh Dickinson University at Madison), Response - Analogize This: Partial Constitutional Text, Religion, and Maintaining Our Political Order, forthcoming in 2010 Cardozo L. Rev. de novo. The abstract states :

In this essay, I respond to a debate between Geoffrey Stone, Seth Barrett Tillman, Alan Brownstein, and others about the complex relationships between the authors of the 1787 Constitution, contemporaneous religious practices and beliefs, and the enterprise of constitutional interpretation and textual exegesis. I identify religion and other “partial” constitutional phenomena as concepts alluded to in the Constitution but not given a more complete, direct articulation. In order to describe our political system accurately, and sustain the general project of constitutionalism, we need to understand partial constitutional text by adopting a somewhat novel hermeneutic approach. First, we should assume a somewhat abstracted and ahistorical “framer’s perspective” that contrasts rather sharply with the “Framer’s intention” or “originalist” stance holding such a prominent place in today’s constitutional analysis. Second, in reconciling religion and God as concepts incompletely contained within our supreme law, we need to consider the power and utility of constitutional analogies.

JFB

Cameras In Court

Tony Mauro over at The First Amendment Center discusses how the Supreme Court's decision to halt the You-tube broadcast of California's Prop 8 trial has brought the issue of cameras in the courtroom center stage.  As more jurisdictions open their proceedings to cameras, pressure will only mount on the Supreme Court to allow its own hearings to be recorded on video. 

-Kathleen Bergin

Song Against Iraq Stop-Loss Policy Lands Soldier in Jail

As reported here, Army Specialist and Iraq war veteran Marc Hall delivered a copy of the song to the Pentagon after the Army unilaterally extended his service contract and ordered him to deploy for a second time to Iraq.  Since December 11, Hall has been confined to a county jail in Georgia, where it appears he'll remain for the next several months until the court martial proceeding.  Lawyers familiar with the case note that the Army has not been active in pursuing political speech cases in recent years, but that may be changing in light of the shooting incident at Fort Hood.

Given the unique nature of military service, Congress enjoys "greater breadth and greater flexibility" in regulating the speech of enlisted soldiers.  For more, see the useful overview posted at The First Amendment Center.

-Kathleen Bergin

Jytte Klausen Discusses Publication of "The Cartoons That Shook the World"

Today CSPAN’s Book- TV ran a very interesting presentation by Jytte Klausen,  Brandeis professor of comparative politics and author of The Islamic Challenge: Politics and Religion in Western Europe, 1945 to the Present, in which she discusses her new book, The Cartoons That Shook the World.  Professor Klausen addresses the conflict that arose between her and her publisher, Yale University Press, when the press declined to reprint the controversial cartoons presenting derogatory images of the Prophet Muhammed originally published in the Danish newspaper Jyllands-Posten in 2005 .  The event is hosted by the Hudson Institute in Washington, DC and includes reaction from Hudson Institute Senior Fellow and Director of theCenter for Eurasian Policy, Zeyno Baran. The program will be re-broadcast  tomorrow, January 11th, at 5:30 am.

JFB
 

Anticipating the Citizens United Ruling

How Appealing presents a collection of media reports (here and here) from around the country on the possible consequences of the much anticipated Citizens United ruling.

JFB

Is Obama Administration Fulfilling Campaign Pledges Re: Govt Transparency?

Despite the recent issuance of an executive order launching a government document de-classification initiative, the Christian Science Monitor highlights ongoing questions about the Obama administration's commitment to governmental transparency.  

JFB

First Amendment Scholarship Update

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

1) David C. Gray (University of Maryland - School of Law), Constitutional Faith and Dynamic Stability: Thoughts on Religion, Constitutions, and Transitions to Democracy , 69 Md. L. Rev. 26 (2009).  The abstract states:

This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.

2) Adam MacLeod (Faulkner University, Jones School of Law), A Non-Fatal Collision: Interpreting RLUIPA Where Religious Land Uses and Community Interests Meet, The abstract states:

This paper grapples with the question how best to interpret the Religious Land Use and Institutionalized Persons Act, which creates a prophylactic remedy in favor of religious land users burdened by local land use regulations. Where the burden on religious exercise is substantial, RLUIPA subjects the regulation to strict scrutiny review. Several scholars object to RLUIPA on the grounds that it violates principles of federalism and equality between religious and non-religious landowners. Other scholars make the case for an expansive RLUIPA on the ground that the First Amendment privileges religious exercise over other types of land use.

This article first attempts to narrow the debate about RLUIPA. It suggests that scholars are arguing about what this article calls the RLUIPA interest gap, the space between religious discrimination hidden behind facially-neutral land use regulations, on one hand, and regulations that are narrowly tailored to compelling state interests, on the other. After reviewing the federal courts’ constructions of RLUIPA’s key terms, this article concludes that the RLUIPA interest gap is narrower than most scholars suppose. Focusing on the RLUIPA interest gap and the implications of that gap for communities grappling with the implications of regulating religious land use should clarify what is and what is not at stake in the debate over RLUIPA’s scope. This article affirms the claim of Natural Law philosophers and religious scholars that religion is a basic human good, which deserves the protection of law. However, it denies that the fundamental value of religion is a reason to give religious land users an exemption from land use regulation that non-religious land users do not enjoy.

Next, this article challenges the common assumption that RLUIPA’s strict scrutiny review is necessarily fatal. It attempts to identify some compelling state interests on the basis of which local governing authorities may burden religious land uses. The thesis of this latter part of the argument is that interests in direct protection of basic (underived, ultimate) human goods are compelling, for purposes of strict scrutiny analysis. If this thesis is correct, courts and scholars can more productively focus on the second prong of the strict scrutiny standard: narrow tailoring. A close connection between a community’s compelling interest and the land use decision chosen to protect that interest is a strong indication that the local government has not engaged in religious discrimination.

3) Caroline Mala Corbin (University of Miami School of Law), Ceremonial Deism and the Reasonable Religious Outsider , forthcoming in 57 UCLA Law Review --- (2010).  The abstract states:

State invocations of God are common in the United States; indeed, the national motto is “In God We Trust.” Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian religious content, and achieve a secular goal. Therefore, they conclude, a reasonable person would not think that the state was endorsing religion.

But would all reasonable people reach this conclusion? This Article examines the “reasonable person” at the heart of the Establishment Clause’s endorsement analysis. The starting point is the feminist critique of early sexual harassment decisions, which often held that a reasonable person would not find that the alleged harassment created a hostile work environment. Feminists argued that the supposedly objective reasonable person was actually a reasonable man, that men and women often have different perspectives on what amounts to sexual harassment due to structural inequalities, and that reliance on this unstated norm perpetuates male privilege rather than remedies it. The Article argues that the same insights apply to the reasonable person used to evaluate ceremonial deism. The supposedly objective reasonable person too often equates to a reasonable Christian. Furthermore, just as men might find harmless comments that women would find offensive, certain invocations of God may seem acceptable to Christians that non-Christians would find alienating because of their status as religious outsiders. Finally, reliance on this norm perpetuates Christian privilege rather than ensures religious liberty and equality for all. Consequently, the constitutionally of ceremonial deism should evaluated from perspective of a reasonable religious outsider.

4) Jan Horwath (University of Sheffield) and Janet Lees, Assessing the Influence of Religious Beliefs and Practices on Parenting Capacity: The Challenges for Social Work Practitioners, 40 ritish Journal of Social Work 82 (2010). The abstract states:

The 1989 Children Act emphasizes the importance of giving due consideration to the child's religious persuasion. Yet, government assessment guidance provides practitioners with very little assistance in terms of establishing ways in which religious beliefs and practices influence family life. This is concerning at a time when considerable attention is being paid in the media to the negative influences of religious beliefs on parenting and Britain is becoming increasingly diverse. Drawing on a literature review of seventy-seven papers on religion and parenting, consideration is given to some of the challenges encountered by social workers when assessing the influence of religious beliefs on parenting. These challenges include: a lack of clarity with regard to what is meant by ‘religion’; small-scale research studies with limited scope; a focus on perceptions of the influence of religious beliefs; disregard for both social workers' own views about religion and the ways in which these views are likely to influence practice. Moreover, poor preparation on social work training programmes and minimal support from supervisors mean that practitioners do not feel confident exploring religious beliefs and practices with families. All these factors lead to a significant influence in many families' lives being ignored.

5) Michael J. Perry (Emory University School of Law), The Political Morality of Liberal Democracy. The abstract states:

At the beginning of my career as a law professor, in the mid-1970s, I was principally engaged by – and I remain engaged by – constitutional controversies closely aligned with moral controversies: the constitutional controversy, for example, over laws banning abortion. (I have also been engaged by the related question of the courts' proper role – especially the U.S. Supreme Court's proper role – in resolving such controversies.) I was soon confronted by the question of the proper relationship of morality to constitutional law. Because for most citizens of the United States morality is religiously grounded, another question – one that would become for me a scholarly obsession – quickly came into view: the proper role of religion in the politics and law of a liberal democracy. Before long I was in the grip of this large question: Can any worldview that is not religious support – embed – the twofold claim to which liberal democracy is, as such – as liberal democracy – committed, namely, that each and every human being has equal inherent dignity and is inviolable?

I can now see, in retrospect, that each of the principal questions that have engaged me over the course of my career concerns one or another aspect of the political morality of liberal democracy; in particular, each question concerns either (a) the grounding, (b) the content, (c) the implications for one or another political-moral controversy, or (d) the judicial enforcement of the political morality of liberal democracy.

In my new book, The Political Morality of Liberal Democracy (Cambridge Univ. Press, 2010), I address all four aspects: grounding, content, implications – in particular, implications for the political-moral controversies over abortion and same-sex marriage – and judicial enforcement. In the book, I am particularly concerned with the proper - and properly limited - role of religious faith in the politics and law of a liberal democracy.

Those interested in seeing the table of contents and reading the introduction to The Political Morality of Liberal Democracy can download this document.

6) John A. Pearce II , David Fritz and Peter S. Davis,  Entrepreneurial Orientation and the Performance of Religious Congregations as Predicted by Rational Choice Theory, 34 Entrepreneurship Theory and Practice, 219 (January 2010). The abstract states:

Empirical and anecdotal evidence suggests that businesses that act with an entrepreneurial orientation enjoy superior performance. Our research investigates whether nonprofit, religious congregations can benefit from similar initiatives. We based our hypotheses on the Rational Choice Theory of Religion, which was developed by social scientists to bring economic analysis to the understanding of the effects of competition among nonprofit organizations. Using a sample of 250 religious congregations in five different geographical markets, an entrepreneurial orientation is found to be positively associated with organizational performance. A hypothesized interaction effect between environmental munificence and entrepreneurial orientation is assessed.

7) Arthur H. Garrison  (Garrison Consultants LLC), The Internal Security Acts of 1798: The Founding Generation and the Judiciary During America’s First National Security Crisis, 34 Journal of Supreme Court History 1  (2009). The abstract states:

Review of the history of the Internal Security Acts of 1798 which included the Alien and Sedition Act and the resulting trials between 1798 and 1800.

8) Dominique Johnson (Ramapo College of New Jersey), In Schools We Trust? Leadership in Loco Parentis and the Failure to Protect Students from Bullying and Harassment,  published in
TRUST AND BETRAYAL IN EDUCATIONAL ADMINISTRATION AND LEADERSHIP( E.A. Samier, M. Schmidt, eds.).The abstract states:

This chapter begins by asking if students and families can trust schools to ensure safety from bullying and harassment, particularly in light of a recent group of bullying-related suicides in America. The stories of three such students are discussed in context of in loco parentis, gender as speech and the Tinker doctrine, and the responsibilities of school leadership to ensure student safety from bullying and harassment. The chapter then turns to a discussion of bullying as a way for youth to police traditional gender roles among peers. The tolerance of peer abuse such as bullying and harassment by school administration, either through a lack of prevention or intervention, is therefore argued to constitute a systemic violence in schools.

Even though evidence suggests a strong relationship between gender role nonconformity and the increased likelihood of experiencing bullying, research and practice in educational administration have yet to address how schools might better support gender nonconforming students. Acting in the place of the parent, schools and their leadership betray the trust of those students and their families who experience bullying and harassment, particularly when it is based in peer gender role regulation. The chapter concludes with a discussion of possibilities for school leadership to move from (potential) failure to protect students from bullying and harassment toward the promise of regaining the trust of students and families.

9) Beth George, Note - An Administrative Law Approach to Reforming the State Secrets Privilege, 84 N.Y.U. L. Rev.  1691 (2009). The abstract states:

Many scholars assert that the common law state secrets privilege is abused by government officials who use it to cover up misconduct or prevent embarrassment. For the second time in two sessions, Congress is considering a bill that would require substantive judicial review of the privilege: If the government invokes the privilege, a judge would be required to review each document and determine whether its revelation would harm national security. This Note argues that judicial review alone is unlikely to reform the state secrets privilege effectively because it does not address the underlying incentives that encourage abuse of the privilege by the executive branch. A risk-adverse judiciary is unlikely to challenge assertions of grave harm to national security except in the most blatant  cases of abuse. This Note builds the case that administrative law–based reforms will deter government abuse more effectively than judicial review alone by creating disincentives that discourage invocation of the privilege. By making invocation of the privilege more administratively burdensome and by putting the professional credibility of officials who may not benefit from its use on the line, the reforms proposed here would more effectively discourage
overreaching in the state secrets privilege context.

10) Theresa Nagy,  Note - Credit Rating Agencies and the First Amendment: Applying Constitutional Journalistic Protections to Subprime Mortgage Litigation, 94 Minn. L. Rev. 140 (2009). The abstract states:

The First Amendment should not protect credit rating agencies for their grossly inaccurate ratings of residential mortgage-backed securities. The rating agencies played a significant role in the subprime mortgage crash and resulting financial market crisis. In past litigation, rating agencies have been successful in defending lawsuits involving claims of inaccurate ratings using a First Amendment shield. Courts have typically used the actual malice standard described in New York Times v. Sullivan, which is difficult for plaintiffs to overcome.However, three major characteristics of the agencies distinguish them from the traditional press and render the First Amendment inapplicable to cases involving their ratings. The agencies receive compensation from the issuers, are actively involved in the structuring of transactions, and their ratings are more akin to certifications than opinions.
 
Courts should refuse to afford rating agencies automatic First Amendment protection in future litigation related to the inaccurate rating of residential mortgage-backed securities. Instead, courts should use a three-factor test to determine if an agency actually qualifies for constitutional protection. The first two factors comprise the In re Fitch standard, rating agent compensation and role in structuring the transaction at issue, and the third factor addresses whether a rating is a “certification” or “benchmark” versus merely an opinion. The judicial system must hold rating agencies accountable for their role in the subprime mortgage crisis. Moody’s, S&P, and Fitch should not escape liability for the irreparable damage they caused millions of investors and the global financial market.

JFB

Blasphemy as a Legal Offense?

The Washington Post/Newsweek “On Faith” blog provides a collection of reactions from representatives of different faiths, religion scholars, and noted secularists addressing news accounts of the recently  revised Irish blasphemy law. ( See prior post on Irish atheist group's efforts to defy the law and perhaps create an opportunity for a legal challenge to the constitutional provision.)

JFB

TSA Withdraws Subpoena of Travel Blogger

The Reporters Committee for Freedom of the Press reports that the Department of Homeland Security has withdrawn its administrative subpoena to travel blogger Christopher  Elliott “as no longer necessary.”(See prior post.) Elliott’s blog also reports that Steve Frischling, the other travel blogger originally subpoenaed, told Elliott that TSA had offered to buy him a new computer after Frischling’s original computer was damaged when seized by the TSA. 

JFB