First Amendment Law Prof Blog

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion issues:

1) Randall P. Bezanson (University of Iowa College of Law), The Manner of Government Speech , forthcoming in Denver University Law Review, Spring 2010. The abstract states:

The government speech doctrine has evolved into a government speech forum doctrine in which the government has the power to exclude unwanted speech in the time, place, and space reserved for its forum. The article explores the possible limits than should be placed on the form of government expressive acts that take place in the government’s exclusive forum. The article is drawn from a speech presented originally at a symposium on government speech sponsored by the Byron R. White Center for the Study of American Constitutional Law at the University of Colorado.

2) Erin Daly (Widener University School of Law), Garcetti in Delaware: New Limits on Public Employees' Speech , 11 Del. L. Rev.23 (2009). The abstract states:

In 2006, the Supreme Court decided Garcetti v. Ceballos, 547 U.S. 410 (2006), which significantly altered the free speech rights of the more than 18 million Americans who are public employees for federal, state or local government. It revised the test it had formerly used for public employee speech and, in so doing, dramatically diminished the scope of their rights. This has significant implications not only for the individuals involved, but for the public at large, and for the praxis of democracy in America: by limiting what public employees can say about their workplaces, the Court has reduced the amount of information that Americans have access to about the functioning of government. Lower court cases implementing Garcetti confirm that public employees have far less recourse than before when they are punished for raising concerns about their government workplaces such as problems in environmental compliance, cost overruns, racial discrimination, and so on. This article examines the Garcetti decision and then reviews the Third Circuit and Delaware cases applying it.

3) Jennifer E. Rothman (Loyola Law School Los Angeles),  Liberating Copyright: Thinking Beyond Free Speech, forthcoming in 95 Cornell Law Review --- (2010. The abstract states:

Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious practice implicate fundamental rights. In such circumstances the application of copyright law deserves heightened scrutiny. The proposed liberty-based approach shores up arguments that some personal uses should be lawful and suggests that such uses should not be limited to those that are private and not for profit.

4) Heather Kennedy, Pleasant Grove v. Summum: Is Ten Truly Greater than Seven? An Examination of the Government Speech Doctrine Regarding Privately Donated Monuments Displayed on Public Land.  The abstract states:

In Pleasant Grove v. Summum, the United States Supreme Court held that it is constitutional for the City of Pleasant Grove, Utah to deny a religious group’s request to place a monument in a park even though a donated monument of the Ten Commandments was already on display there. This case note examines the progression of the law before this decision, as well as the changes it made and the possible repercussions to come.

5) Raphael Cohen-Almagor (University of Hull), Countering Hate on the Internet - A Rejoinder , 2  Amsterdam Law Forum 125 (2010). The abstract states:

Steve Newman of York University wrote a reply to my “Holocaust Denial Is A Form of Hate Speech”, Amsterdam Law Forum, Vol. 2, No 1 (2009), pp. 33-42. The Editors of Amsterdam Law Forum invited me to write a rejoinder, answering Newman’s critic. The result is this article in which I reiterate that Internet providers and web-hosting companies should abide by their own rules of conduct. If their terms of service disallow hateful messages on their servers then they should not host or provide forums for Holocaust denial. I further tell the story of Sabina Citron showing that Holocaust denial can cause people severe offence, upsetting them to the extent of loss in their self-esteem. Further, I argue that hate speech can and did translate to hate crime. Some hate mongers are not satisfied merely by the sound of their pounding words and wish to see blood. Finally, I propose ways for countering hate on the Net.

6) Perry Dane (Rutgers School of Law – Camden), Constitutional Law and Religion, in Dennis Patterson, ed., BLACKWELL COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY (2010). The abstract states:

This essay on law and religion appears in the second edition of the Blackwell Companion to Philosophy of Law and Legal Theory, edited by Dennis Patterson. It is a revision of a similar entry in the book’s first edition. The essay opens by broadly discussing the complex relationships between law and religion writ large as movements in human history – social, cultural, intellectual, and institutional phenomena with distinct but often overlapping logics and concerns. It then hones in on the efforts of secular law to make sense of religion and determine its place in the civil state. The essay argues that, while the questions raised by the American Bill of Rights’ religion clauses connect in some important respects to broader constitutional principles such as free expression and equality, the most interesting and theoretically excruciating conundrums involving religion need to be approached on their own unique terms. Two useful rubrics for such understanding are “separation” and “deference.” Any honest account must also admit, however, that there is an “intractable residue,” questions in the relation of religion and law to which there simply is no determinate or completely satisfactory answer. Finally, the essay emphasizes that the full texture of the legal imagination’s effort to grapple with religion only becomes apparent in the wider range of subconstitutional and nonconstitutional contexts beyond the standard litany of constitutional discourse.

7) Luc B. Tremblay (European University Institute - Department of Law) ,The Bouchard-Taylor Report on Cultural and Religious Accommodation: Multiculturalism by Any Other Name?. The abstract states:

In 2008, Gerard Bouchard and Charles Taylor released an important report as Co-Chairs of the Consultation Commission on Accommodation Practices Related to Cultural Differences. The Commission was set up by the Quebec government in response to public discontent concerning "reasonable accommodation" of religious and cultural practices. In the report, four delicate issues, among others, are examined: cultural integration, collective identity, church-state relations and the most appropriate procedures for handling cultural and religious harmonization requests. Altogether, the Co-Chairs’ positions propound a normative conception of sociocultural integration in a pluralist society. This conception, that may be called "interculturalism", is conceived by the commissioners as an alternative to "multiculturalism". The text examines whether interculturalism, as conceived in the report, is anything but a version of multiculturalism. The contention is that it is a rose by any other name.

8) Paul Sarfo-Mensah (Kwame Nkrumah University of Science - Bureau of Integrated Rural Development and Technology) and William Oduro (Kwame Nkrumah University of Science), Changes in Beliefs and Perceptions About the Natural Environment in the Forest-Savanna Transitional Zone of Ghana: The Influence of Religion . The abstract states:

The potential of traditional natural resources management for biodiversity conservation and the improvement of sustainable rural livelihoods is no longer in doubt. In sub-Saharan Africa, extensive habitat destruction, degradation, and severe depletion of wildlife, which have seriously reduced biodiversity and undermined the livelihoods of many people in rural communities, have been attributed mainly to the erosion of traditional strategies for natural resources management. In Ghana, recent studies point to an increasing disregard for traditional rules and regulations, beliefs and practices that are associated with natural resources management. Traditional natural resources management in many typically indigenous communities in Ghana derives from changes in the perceptions and attitudes of local people towards Tumi, the traditional belief in super natural power suffused in nature by Onyame, the Supreme Creator Deity. However, this is closely entwined with ecological, demographic and economic factors. Whilst these factors have driven the need to over-exploit natural resources, a situation which threatens the sustainability of community forests including sacred groves, religion has been used to justify such actions. This paper explores changes in Tumi and the sustainability of sacred groves in the forest-savanna transitional zone in Ghana. It would confirm that changes in traditional animist beliefs, such as tumi, which informs the worldview of local people and underlies traditional natural resources management, is mainly due to the advances made by Christianity and Islam.

9) Bassam Yousef Ibrahim Banat (The University of Granada, Department of Sociology, Faculty of Political Sciences & Sociology),  Palestinians Suicide Martyrs (Istishhadiyin): Facts and Figures,
Doctoral Dissertation, Department of Sociology, Faculty of Political Sciences and Sociology, The University of Granada, Spain, 2010. The abstract states:

The current thesis explores the Palestinian suicide martyrs (Istishhadiyin) and the martyrdom operations from the point of view of their families and relatives. The study has tackled the issue of martyrdom operations as a multi dimensional phenomenon addressed by both theoretical and applied researches. The thesis addressed a new social phenomenon which spread in the Palestinian society in all its groups, youth and social classes. The Palestinian suicide martyrs (Istishhadiyin) were able to implement two hundred qualitative martyrdom operations that rocked Israel and raised a large scale wave of reactions locally and internationally; they constituted a turning point in the history of the Palestinian-Israeli conflict; it is rare to find a similar phenomenon to this one with this huge number of Palestinian suicide martyrs in any other place in the world. They have their own psychological, social, religious and national features which qualified them to do this strategic action. Besides, the thesis focuses on identifying the main motives which drove the Palestinian youth to carry out such operations and the relationship between the emergence of these operations and Israeli crimes committed against the rights of the unarmed Palestinian people.

To sum up, the current thesis is considered the first survey study of the Palestinian suicide martyrs (Istishhadiyin). It is expected that its results would add new scientific knowledge to its field in particular since it discusses a new and important topic in the history of Palestinian struggle. The thesis will be an important source of reference to those concerned in the area of martyrdom operations especially in the information it will reveal on the phenomenon, which crossed beyond the borders of Palestine to become a world phenomenon. The researcher in honored by this national duty to be the first performer of this duty within his own potentials as being one of the researchers of the topic of Palestinian suicide martyrs in a scientific survey.

10) Faisal Rabby and William M. Rodgers III (Rutgers University), The Impact of 9/11 and the London Bombings on the Employment and Earnings of U.K. Muslims. The abstract states:

Using a difference-in-differences framework, this paper estimates the impact that Britain's July 2005 bombings had on the labor market outcomes of UK residents who are either Muslim by religious affiliation or whose nativity profiles are similar to the terrorists. We find a 10 percentage point decrease in the employment of very young Muslim men relative to non-Muslim immigrants after the London bombings. The drop in employment is accompanied by consistent declines in real earnings and hours worked. A weak association between the 9-11 terrorist attacks and a drop in the employment of very young male immigrants from Muslim-majority countries is also found. The terrorist events had little impact on the employment of older men.

11) Pute R. Makol-Abdul ( International Islamic University Malaysia), Abu Sadat Nurullah (University of Alberta - Department of Sociology) , Syed S. Imam ( International Islamic University Malaysia), and Saodah A. Rahman (International Islamic University Malaysia), Parents’ Attitudes Towards Inclusion of Sexuality Education in Malaysian Schools, 3 International Journal about Parents in Education 42 (2009). The abstract states:

The present study examined the attitudes of Malaysian rural parents regarding sexual health education in elementary schools. Using a comprehensive list of sex education topics, parents were asked to examine which topics they believed should be taught at schools. In addition, the study also assessed the relationship between parents’ demographic characteristics such as age, gender, education, and occupation and their approval of sexual health education. The respondents of the study included parents (n=211) of children registered in four selected schools in Kedah, Malaysia. The majority of them (73%) supported the inclusion of various sexual health topics in school curriculum provided the contents were in line with religious teachings. The study has generated important empirical findings regarding local community’s response to school-based sexuality education. This information is needed in facilitating the development of sexual health policy at various institutional levels, and in the effective implementation of sexual health curriculum in Malaysian schools.

12) Frederick C. DeCoste (Faculty of Law, University of Alberta), Caesar's Faith: Limited Government and Freedom of Religion in Bruker v. Marcovitz, 32 Dalhousie Law Journal 153 (2009). The abstract states:

The Supreme Court of Canada has long pursued the view that our law is somehow an expression and repository of what it terms "Canada's fundatmental values." In Bruker v. Marcovitz -- a case that concerned the enforceability of a promise by a divorcing Jewish husband to provide his wife Get, a religious divorce -- the Court added to the catalogue of these judicially decreed and enforced values one concerning religion, namely, the protection of Canadians against the arbitary disadvanagtes of their religions. This comment argues that the Court's judgment in this regard constitutes a fundamental threat to religious liberty inasmuch as it subordinates religious belief and practice to state values by making the legal acceptability of the former turn on their conformity to the latter.

13) Juliet P. Stumpf (Lewis & Clark Law School), The Implausible Alien: IQBAL and the Influence of Immigration Law, 14 Lewis & Clark Law Review --- (2010). The abstract states:

This Article addresses the subterranean impact of immigration law on the outcome of Ashcroft v. Iqbal, a watershed case for civil pleading standards. In a new generation of cases seeking remedies for alleged mistreatment by high-level government officials, immigration law is exercising a quiet but powerful influence. Due to Iqbal, that influence will have a tremendous impact on the survival of civil complaints generally. The Supreme Court’s adoption of a heightened civil pleading standard results from the limits that the immigration context placed on the scope of Iqbal’s claims. This Article unearths the relevance of Iqbal’s immigration status through comparison with two cases that apply Iqbal’s holding to U.S. citizens in circumstances strikingly similar to Iqbal’s, yet rule in favor of the plaintiffs. In each case, the courts seized upon U.S. citizenship as the distinction that made the difference. The Article concludes that Iqbal relies on a questionable subtextual link between immigration law, national security, and ethnicity and religion.

14) Kristine Pham, The Substantial Burden Mountain: Implications of the United States Supreme Court’s Denial of Certiorari in Navajo Nation v. United States Forest Service. The abstract states:

As a result of judicial and legislative developments, the substantial burden inquiry has become the first step of any free exercise challenge under RFRA, RLUIPA, the respective state legislative version of RFRA, the state constitutional provisions mirroring RFRA, and all federal laws that are not neutral or are not of general applicability. Thus, the substantial burden analysis has far-reaching implications not only in the context of religious practices affected by state action, but also for actions requiring federal permits, grants, or loans and federal land use actions. Despite the importance of the substantial burden inquiry, courts have not agreed on what constitutes a substantial burden short of criminal sanctions on religious exercise or compelled actions contrary to belief. Rather than providing much needed guidance to the lower courts, the Supreme Court recently denied certiorari in Navajo Nation IV, leaving Navajo Nation v. United States Forest Service, (Navajo Nation III) as the most current and most significant guidance on the substantial burden inquiry. Unfortunately, the United States Ninth Circuit Court of Appeals in Navajo Nation III seems to have made the substantial burden threshold unduly restrictive, making a successful free exercise challenge virtually impossible.

Part I of this Article summarizes the historical development of Supreme Court cases that have guided the substantial burden analysis. Over time, the Court has added a variety of factors that have made it increasingly confusing for lower courts to apply the substantial burden test. The resulting conflict and confusion in the United States Circuit Courts regarding the proper definition of “substantial burden” is presented in Part II. Part III is a close examination of Navajo Nation III in an attempt to clarify how substantial burden should be analyzed. Finally, Part IV places Navajo Nation III in the context of existing substantial burden jurisprudence, recognizing that a Supreme Court decision on this issue may be necessary.

15) Arnold H. Loewy (Texas Tech University - School of Law), Intelligently Designing a Course in Intelligent Design. The abstract states:

Intelligent Design is consistent with creationism or evolution. Evolution (the opposite of creationism) could have occurred with or without an intelligent designer. The opposite of intelligent design is atheism. A course that explores the probabilities of intelligent design and atheism, indoctrinating neither but exploring and testing on both neither favors nor disfavors religion, and thus is constitutional. It is wise to teach such a course in the senior year of high school because it will teach students to think.

16) Ashraf Mohammed Hasan Abukhayran (The University of Granada), Palestinian Curriculum from an Israeli Perspective. The abstract states:

This study explores the Palestinian curriculum from an Israeli perspective. Israelis accused the Palestinian school books do not teach the notions of peace and coexistence with Israel, but plant the seeds of hate in upcoming Palestinian generations through their delegitimization of Israel’s existence, hotbed of anti-Israeli and anti-Semitic, implicit seeking of Israel’s destruction, defamation of Israel and encouraging militarism and violence. Findings show that the consensus of expert opinion on Palestinian Authority schoolbooks is quite different from what Israelis accused. The overall orientation of the Palestinian curriculum is peaceful in spite of the harsh and violent realities in which schools operate; they are focusing on teaching human rights concepts, justice, peace, equality, freedom, and tolerance, in terms of both self and others, and it encourages tolerance among religions and ask students to respect the freedom of religion and protect religious places as well. They tell history from a Palestinian point of view and reflect Palestinian life and reality as victims, as well as the diversity within Palestinian society, taking into consideration his culture, norms, heritage, values, and believes. Accordingly, Palestinian curriculum should teach Palestinian history from a Palestinian, rather than a Zionist, perspective. Finally, Palestinian school books are not perfect since they are under continual revision and improvement.

17) Cosmin Dariescu (Alexandru I. Cuza University of Iasi), Jurisdiction Over Marriage in the Romanian Principalities: From the Ecclesiastical Court to the Secular Tribunal, in Szabolcs Hornyak, Botond Juhasz, Krisztina Korsosne Delacasse, Zsuzsanna Peres,eds., TURNING POINTS AND BREAKLINES: YEARBOOK OF YOUNG LEGAL HISTORY 4,( Martin Meidenbauer, Munchen, 2009). The abstract states:

In the Romanian principalities, Wallachia and Moldavia, the dominant religion was the Christian Orthodox faith. According to the Byzantine tradition, between the Orthodox Church and the Prince there was a strong alliance and the Metropolitan Bishop was the second important man in the state after the ruler.

The Orthodox Church brought in Wallachia and in Moldavia the first written laws. They were Byzantine nomocanons ( that is collections of Canon law and Secular law) that arrived from Constantinople through the medium of the South Slavs. In the 17-th century, the Orthodox Church in Moldavia and in Wallachia translated into Romanian language these nomocanons and combined them creatively into the first Romanian written laws.

Therefore, the Orthodox Church had in both principalities, an extensive jurisdiction over clerics and laics. The ecclesiastical courts were: the bishops and the Metropolitan Bishop ( when he judged he was assisted by other clerks and all this assembly was named dicasteria or the Tribunal of the Metropolitanate).

Because marriage is one of the seven mysteries of the Christian Church (Catholic or Orthodox), the Tribunal of the Metropolitanate was the only court in Moldavia and Wallachia which could rule over matrimonial litigations. This position is certified by documents of the 18-th century and by the law codifications from the first half of the 19-th century. The other bishops restrained themselves from deciding in matrimonial litigations. They made only the judicial investigation and sometimes they suggested a solution. However, only the Metropolitan Bishop with his tribunal decided in such cases with the approval of the Prince, who was the supreme judge.

The Constitutional Regulations of Wallachia and The Constitutional Regulations of Moldavia ( both enforced under Russian occupation in 1831, respectively 1832) tried to separate the jurisdictional power from the executive one and in Article 240 ( 298 for Moldavia) provided that the Metropolitan bishop and the other bishops had jurisdiction only over ecclesiastical and spiritual matters. According to Article 7 of the Constitutional Convention of the United Principalities ( Paris, 1858), the judicial power had to be entrusted by the Prince to magistrates (whose appointment and promotion had to be regulated by a special law based on the gradual enforcement of the immovability principle).

But the clerical jurisdiction over marriage survived. Thus, the Law for the establishment of the Court of Cassation and Justice of January 12, 1861 provided in Art. 2 that the clerical courts which in fact had some attributions in matrimonial matters were subjected to the jurisdiction of the Court of Cassation and Justice, as well as all the tribunals and courts of appeal from the United Principalities of Moldavia and Wallachia.

The clerical tribunals lost their jurisdiction over matrimonial litigations only through the Law for the judicial organization of April 11, 1864. The clerical tribunals were not enumerated in Article 3 among the courts that served justice in Romania ( the new name taken in 1862 by the United Principalities). Thus, the Orthodox Church lost completely its civil and criminal jurisdiction over Romanian citizens. The Orthodox Church kept only the disciplinary jurisdiction over clergy.

18) Michael D. Makowsky,(Towson University - Department of Economics), A Theory of Liberal Churches. The abstract states:

There is a counterintuitive gap in the club theory of religion. While it elegantly accounts for the notable success of strict sectarian religious groups in recruiting members and maintaining commitment, it exhibits less satisfactory properties when used to account for groups requiring neither extreme nor zero sacrifice. Such corner solutions, compared to the moderate middle, are rarely observed empirically. Within the original representative agent model, moderate groups are everywhere and always a suboptimal choice for rational, utility maximizing agents. In this paper, we extend the original model to operate within a multi-agent computational context, with heterogeneous agents occupying coordinates in a two dimensional lattice, making repeated decisions over time. Our model offers the possibility of successful moderate groups, including outcomes wherein the population is dominated by moderate groups. The viability of moderate groups is a result of heterogeneous agent wages. Lower wage agents offer greater time contributions, but lesser financial contributions to groups. Higher sacrifice rates incentive greater contributions from members, but reduce private productivity and screen out other potential members with greater financial resources. Moderate groups succeed by offering an optimal balance of these countervailing forces.

19)  Erin N. East, Comment - I Object: The RLUIPA as a Model for Protecting the Conscience Rights of Religious Objectors to Same-Sex Relationships, 59 Emory L. J. 259 (2009). The abstract states:

In most states, the battle over same-sex marriage has become a showdown with either gay rights activists or religious conservatives prevailing. Each side is fearful of losing ground to the other. Many scholars have noted the threats to religious liberty that arise upon the recognition of same-sex marriage, but few have given significant attention to how religious liberty might be protected without abolishing the rights of same-sex couples. This Comment focuses on one manifestation of the conflict between same-sex rights and religious liberty: the conflict that arises when individuals and organizations are compelled by their religious beliefs to violate state civil rights statutes protecting same-sex couples. Such violations expose them to civil liability for acting in accordance with their religious beliefs.
This Comment examines the shortcomings of the United States Supreme Court’s current free exercise jurisprudence as well as current broad-based statutes like the Religious Freedom Restoration Act (RFRA) in protecting religious objectors in the context of same-sex rights. It then proposes a number of possible ways to protect religious objectors, concluding that while state statute-specific exemptions would be a more direct, and perhaps preferred, method of protecting religious objectors, the absence of state solutions and the need to implement a uniform approach to rights of conscience suggest a federal approach. A statute modeled on the Religious Land Use and Institutionalized Persons Act, (RLUIPA) would provide a more comprehensive and balanced approach than the funding legislation that has typically been used by Congress to protect other types of conscience rights. By providing some protection for religious individuals, such a federal conscience statute could lessen the tension between advocates for gay rights and advocates for religious liberty. While this Comment focuses explicitly on certain classes of religious objectors in the context of same-sex rights, the proposed solution could include provisions covering any class of religious objectors.

JFB

A Follow-up To The Citizens United Follow-up

As a follow-up to yesterday's post on the fallout from Citizens United v. FEC, here's a more detailed list of the types of responses being floated by lawmakers:

• Constitutional Amendment (Senate): a measure proposed this week would expressly authorize Congress to regulate "the raising and spending" of federal election money, and set set limits on federal campaign contributions and expenditures.  States could do the same for state elections.  
• Constitutional Amendment (House): authorizing Congress to regulate "the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity."
• Constitutional Amendment (House): introduced the day Citizens United was decided, this measure would bar corporations and labor organizations from using general treasury funds to pay for a federal campaign ad, regardless of whether the ad expressly advocates for the election or defeat of a particular candidate. 
• The Fair Elections Now Act: this bi-partisan measure seeks to eliminate the influence of corporate money by allocating federal funds to candidates who raise a certain amount through small-dollar contributions. 
• Save Our Democracy From Foreign Influence Act: a bill that would apply the ban on contributions and expenditures by foreign nationals to domestic corporations whose shareholders include any foreign principles.
• Separate Taxpayer Dollars From the Election Act of 2010: to prevent corporations from using TARP money on campaign expenditures or electioneering communications.
• Stand By Your Ad Act of 2010: requiring that certain radio and television campaign ads disclose the top donors behind them.

-Kathleen Bergin

Citizens United Prompts More Calls For Reform

Committees in both the House and the Senate have received proposals to amend the Constitution in response to the SCT's decision in Citizens United v. FEC.  A measure proposed this week by Senators Christoper Dodd (D-CT) and Tom Udall (D-MN) would expressly authorize Congress to set limits on federal campaign contributions and expenditures, and allow states to do the same for state elections.  A stronger proposal was introduced by Rep. Leonard Boswell (D-IO) the day Citizens United was decided.  Boswell's amendment would bar corporations and labor organizations from using general treasury funds to pay for a federal campaign ad, regardless of whether the ad expressly advocates for the election or defeat of a particular candidate. 

I'm doubtful either of these measures has legs, though it's likely we'll see some kind of legislative reform.  One proposal with a fair amount of support is the Fair Elections Now Act, which seeks to eliminate the influence of corporate money by allocating federal funds to candidates who raise a certain amount through small-dollar contributions.  Other measures propose to strengthen corporate disclosure requirements, restrict the political speech of foreign interests and government contractors, and cap the price of campaign related TV ads.

-Kathleen Bergin

First Amendment Scholarship Update

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

1) Olatunde C. Johnson (Columbia University Law School), The Story of Bob Jones University v. United States: Race, Religion, and Congress’ Extraordinary Acquiescence, The abstract states:

On May 25, 1983, the Supreme Court ruled 8-1 that the United States Internal Revenue Service (IRS) had authority to deny tax-exempt status to Bob Jones University, Goldsboro Christian School, and other private and religious schools with racially discriminatory educational policies. The Court relied on the statute’s broad purpose and placed significant weight on Congress’ failure to enact legislation to overturn the IRS policy. A complete account of the legislative history, provided here, both supports and undercuts the Court’s opinion. More importantly, this story provides an account of the dynamic interaction among a Supreme Court critical of racial integration, a Congress divided on this issue, and a presidency at war with itself. In the end, the story suggests that Bob Jones may have a limited role in shaping interpretive methodology, but that the case reveals how all three branches of government (as well as the public) interact to shape a statute’s meaning.

2) Gregory P. Magarian (Washington University School of Law in St. Louis), Religious Argument, Free Speech Theory, and Democratic Dynamism. The abstract states:

Political theorists have long debated whether liberal democratic norms of public political debate should constrain political arguments grounded in religious beliefs or similar conscientious commitments. In this Article, Professor Magarian contends that normative insights from free speech theory have salience for this controversy and should ultimately lead us to reject any normative constraint on religious argument. On the restrictive side of the debate stand prominent liberal theorists, led by John Rawls, who maintain that arguments grounded in religion and other comprehensive commitments threaten liberal democracy by offering illegitimate grounds for government action and destabilizing democratic politics. On the permissive side stand leading advocates for religious liberty, who deny that religious arguments pose any threat to liberal democracy and insist that normative constraints on religious argument deny religious believers’ political autonomy. Both sides proceed from their premises about whether religious argument threatens liberal democracy to their conclusions about whether norms of public political debate should constrain religious argument. Professor Magarian agrees with the restrictive premise that religious argument poses a meaningful threat to liberal democracy, and he accordingly rejects the logic of the permissive position. He finds deeper fault, however, with the restrictive theorists’ move from consciousness of danger to advocacy of normative constraint. Drawing upon two prominent free speech controversies – the debates over First Amendment protection for Communist advocacy and the First Amendment’s proper role in balancing values of political dynamism and political stability – Professor Magarian derives normative lessons that counsel against constraints on religious argument. Based on the Communist speech controversy, he contends that even political advocacy that existentially threatens liberal democracy adds distinctive value to liberal democratic political discourse. Based on the stability-dynamism controversy, he contends that political conditions in the contemporary United States and the nature of religious advocacy make religious argument, at the margin, more beneficial than threatening to our political culture. As a corollary to his rejection of normative constraints on religious argument, Professor Magarian contends that our norms of public political debate should also freely permit substantive political criticism of religious arguments and doctrines.

3) Alex E. Wallin (The Norman Adrian Wiggins School of Law at Campbell University), The Declaration of Independence: The Religious Beliefs of Thomas Jefferson and John Adams and Their Role in the Beginning of a Revolution and Nation. The abstract states:

Religion’s proper place in our nation and government has been a topic of discussion since the late eighteenth century and has produced the ever-popular and highly dramatized consideration of the Founders’ religious beliefs and their affect on the inception of our nation.

While this is certainly discussed in regards to the text of the Bill of Rights and the Constitution, there is another document that deserves equal consideration, the Declaration of Independence. When our ancestors were still colonists the issue of religion was pervasive and our first public relations statement to the world generally referenced “the Laws of Nature and Nature’s God.” By invoking God as a justification for its purpose, the document invariably created the same questions we wrestle with today in regards to the Constitution. What conception of God was being invoked? Whose beliefs were being represented? By delving into the brackish nature of Thomas Jefferson’s beliefs as the initial drafter, as well as illustrating the staunch and pervasive beliefs of the editing John Adams, a generalized religious view is shown to have been expounded rather than any one person’s or sect’s particularized dogma.

4) Josh Goodman, Divine Judgment: Judicial Review of Religious Legal Systems in India and Israel, 32 Hastings International and Comparative Law Review 379. The abstract states:

This paper analyzes and compares how two democratic states, India and Israel, incorporate discrete areas of religious law into their secular legal systems. As religion has become an increasingly important political force in India and Israel, both countries have turned to constitutionalism and to civil courts to manage the role of religious law within the democratic system. This development represents the convergence of two global trends: an expansion in the power of courts and the growth of religious politics. This paper examines how the conflict of secular and religious legal norms has played out in the Israeli and Indian civil courts, and draws out lessons from these countries’ experiences with religious legal pluralism.

This paper argues that although the judiciaries in India and Israel generally issue rulings supporting secularism, they have only a limited ability to resist the trends that dominate majoritarian politics, including the pressures of religious constituencies, without losing legitimacy and power. Therefore, states that are generally committed to principles of secular governance and law should be wary about introducing elements of religious law into their legal systems, because in cases where civil legal principles conflict with religious mandates, regular civil courts may have difficulty upholding and enforcing the civil law.

5) Richard F. Storrow (City University of New York School of Law), Medical Conscience and the Policing of Parenthood, 16 William & Mary Journal of Women and the Law 369 (2010). The abstract states:

As state and local anti-discrimination provisions become more and more comprehensive, physicians who refuse to treat patients for reasons of sexual orientation or marital status are beginning to face legal liability. Increasingly, physicians are invoking codes of medical ethics alongside more familiar constitutional law claims in support of their claim to insulation from legal liability. This Article explores what medical ethics has to say about physicians who, for sincerely held religious reasons, refuse to treat patients for reasons of sexual orientation or marital status. The issue is explored through the lens of a case recently decided by the California Supreme Court in which infertility physicians refused to help a lesbian couple have a child with the aid of artificial insemination. Through a close examination of the provisions of medical ethics codes and the arguments based on those codes raised in the California case, this Article concludes that medical societies should not support carving out an exception from anti-discrimination laws for physicians who, for reasons of religious conscience, want to express their class-based biases in the clinic.

6) Marc O. DeGirolami (St. John's University School of Law), No Tears for Creon, forthcoming in 
Legal Theory. The abstract states:

This essay critiques Professor Martha Nussbaum’s book, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA’S TRADITION OF RELIGIOUS EQUALITY (2008). Nussbaum’s thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of “Equal Respect” – that “[a]ll citizens have equal rights and deserve equal respect from the government under which they live.” Nussbaum insists that Equal Respect pervades the tradition and that all other values of religious liberty are subordinate to it. She examines various free exercise and establishment issues in light of this principle, concluding that the tradition of religious equality is under threat and calling for renewed vigilance in its defense.

This piece criticizes Nussbaum’s elevation of the principle of Equal Respect to supreme normative status. It claims that Nussbaum’s single-minded focus on Equal Respect distorts and misunderstands the conflicts actually at issue in many religious liberty disputes. The essay focuses specifically on the inadequacies of her assessment of two prominent religious liberty cases, one in the free exercise and the other in the establishment context. The essay concludes that there are reasons for deep skepticism about Nussbaum’s approach as a comprehensive theory of the religion clauses.

7) Patrick McKinley Brennan (Villanova University School of Law), Are Catholics Unreliable from a Democratic Point of View? Thoughts on the Occasion of the Sixtieth Anniversary of Paul Blanshard’s American Freedom and Catholic Power . The abstract states:

From 1949 to 1950, Paul Blanshard’s American Freedom and Catholic Power dominated the New York Times best-seller list for eleven months, having captured the attention of American intelligentsia with its claim that “the Catholic problem is still with us” and its call for the formation of a “resistance movement.” Sixty years later, Blanshard’s bigotry is no longer defended in educated circles. Questions remain, though, concerning why Blanshard’s ideas made progress in some of the smartest American minds and throughout much of the culture. Was Blanshard onto something subversive about Catholics? Are Catholics’ commitments not compatible with the demands of American democratic philosophy and practice?

Today, some scholars try to solve the Blanshard problem by changing the topic. “Liberal Catholicism,” they intimate, is not the problem posed by the unmodified Catholicism Blanshard targeted more than half a century ago. If, however, we refuse to change the topic (on the ground that the Catholic religion has not changed in any relevant sense), the problem is of broader scope, as Pope John Paul II wrote in 1991: all those who are “convinced that they know the truth and firmly adhere to it are considered unreliable from a democratic point of view.” Perhaps Blanshard was right to the extent he worried that Catholics have principled reservations about the scope of democratic legitimacy and the sweep of democratic authority. It is widely and justly celebrated that the Second Vatican Council (1962-65) declared the natural human right to liberty of conscience. What the same Council said about the liberty of the Church, the libertas ecclesiae, however, is little noticed, but of at least as much practical significance as what it declared about human conscience. Also little noticed, and also significant, is that the same Council said nothing directly about democracy.

In light of these and other facts, this paper argues that faithful Catholics are indeed unreliable from a democratic point of view in the respect that they, in and through their Church, insist that the (democratic) socio-political order must be conformed to higher law and true human rights (through means that are both prudent and otherwise in conformity with valid positive law). Faithful Catholics deny the ultimacy or sufficiency of democracy and what it happens to deliver.

This paper was originally delivered as the Yves R. Simon Lecture at the University of Chicago.

8) ICHRP International Council on Human Rights Policy, When Legal Worlds Overlap Human Rights, State and Non-State Law, in WHEN LEGAL WORLDS OVERLAP HUMAN RIGHTS, STATE AND NON-STATE LAW, ICHRP, Geneva, Switzerland, 2009. The abstract states:

This report highlights human rights impacts and dilemmas associated with plural state and non-state laws, such as family laws based on religion, customary justice practices and Alternative Dispute Resolution mechanisms. Drawing on examples of such plural legal orders from around the world, it proposes principles and a framework to guide human rights practitioners and policy-makers.

The report also identifies challenges related to incorporation of non-state law in state law, recognition of cultural differences in law, and justice sector reform. Emphasising the contested nature of culture, especially when dealing with gender equality, religious freedom and indigenous peoples’ rights, it calls for evidence-based assessments of plural legal orders that give special attention to people on the margins of state and non-state law, and equality between and within communities.

9) D. Wendy Greene (Cumberland School of Law, Samford University), On Race, Nationhood, and Citizenship, A Book Review of Laura E. Gomez's 'Manifest Destinies: The Making of the Mexican American Race' , 34 Thurgood Marshall Law Review 421 (2009). The abstract states:

This Article is a book review of Laura E. Gomez's' Manifest Destinies: The Making of the Mexican American Race' (New York University Press 2007). This book review examines the primary tenets of Gomez's rich historical work, which provides insight to contemporary social, political and legal issues: 1) counternarratives to the dominant narratives of European colonization of lands we currently know as Mexico and the western United States; 2) the intersection of race, ethnicity, religion and notions of American citizenship and nationhood; and 3) the socio-legal construction of race, namely the claim that Mexican Americans occupied a fluid racial status in the United States, which Gomez characterizes as "off-white."

10) Reza Banakar (University of Westminster - School of Law), Introduction: Snapshots of Rights Discourse, in RIGHTS IN CONTEXT: LAW AND JUSTICE IN LATE MODERN SOCIETY, Reza Banakar, ed., Ashgate, 2010. The abstract states:

The collection of papers presented in this volume offers snapshots of how rights are debated and employed publically to reshape legal and political relations at the beginning of the twenty-first century. They explore how rights are used to challenge the state of affairs by individuals and groups who seek justice, and the strategies devised to defy the rights by those who wish to recast the social and political order.

This volume discusses rights, firstly, in relation to actual events and issues faced by policymakers, courts, international agencies, or ordinary people. These range from the demands of minority groups living in the West to freely practice their culture and/or religion, to the threat of terrorism, the regulation of asylum rights, the investor’s rights to disclosure and the rights of artists to freedom of expression. Secondly, rights discourse is examined in relation to attempts to redefine the form and content of rights, for example, by banning the right to wear religious symbols in public institutions or detaining terrorism suspects without trial. Thirdly, rights discourse is explored in connection with the attempts to develop new notions of rights, such as ‘human security’, which can more effectively respond to the challenges of late modern societies. Finally, the statuses of rights in sociological theory and socio-legal research are briefly discussed and analysed.

11) Olivier De Schutter (University of Louvain (Belgium)) and Julie Ringelheim (University of Louvain (Belgium) - Center for Philosophy of Law), Foreword to 'Ethnic Monitoring - The Processing of Racial and Ethnic Data in Anti-Discrimination Policies: Reconciling the Promotion of Equality with Privacy Rights', in Olivier De Schutter and Julie Ringelheim, ETHNIC MONITORING - THE PROCESSING OF RACIAL AND ETHNIC DATA IN ANTI-DISCRIMINATION POLICIES: RECONCILING THE PROMOTION OF EQUALITY WITH PRIVACY RIGHTS, Bruylant, 2010. The abstract states:

As a result of the two Equality Directives adopted in 2000, antidiscrimination law is changing rapidly throughout Europe. Pressed by civil society movements and international bodies tasked with monitoring equality, policy-makers, are in search of new and more efficient modes of combating discrimination and promoting equality. The issue of the processing of data relating to ethnicity and religion has become central to these developments. The availability of such data is recognized as playing an increasingly important role in the fight against discrimination. In order to elaborate policies designed to promote equality, States must be able to identify the nature and extent of discrimination, the groups affected by discrimination, and the fields in which discrimination occurs. To this end, they must have access to sufficiently precise information on the situation of members of vulnerable groups in the diverse fields of social life, such as employment, education or housing. In addition, the regular production of new statistical studies enables public authorities to monitor the implementation of equality policies and assess their impact. Furthermore, private actors such as employers who wish to (or are required to) develop an equality plan in their company must have the means to assess the extent to which potentially discriminated groups are adequately represented in their workforce. Finally, in the framework of judicial proceedings, the laws of several European Union member States allow the person who claims to be the victim of discrimination to have recourse to statistical data to prove indirect discrimination.

However, in many European countries, the collection of data needed to fight racial and ethnic discrimination remains a matter of public controversy. Existing personal data protection legislation is often seen as an obstacle to the processing of such data, which international and European norms treat as highly sensitive. The question has arisen more recently whether the principle of ‘self-identification’, which should allow each individual to decide for him- or herself to which category he or she should belong, is always compatible with the need for effective antidiscrimination strategies. Finally, the possibility of classifying people in racial or ethnic categories is itself controversial, given the ambiguity of the concepts of “race” and “ethnicity” and the fear that reliance on such classifications may increase the salience of such categories in the society. The construction of racial or ethnic categories, indeed, is not a purely technical exercise: it puts into question fundamental conceptions about the managing of various identities in a political community and the relation between state, citizens and social groups. This book maps this debate, at moment when it is emerging on continental Europe, and seeks to move it forward. The analysis is based on international human rights law as well as on the laws and practices of several states. The authors conclude that human rights standards, and in particular the right to privacy, do not preclude the collection of data on racial or ethnic origin for antidiscrimination purposes, although they define fundamental safeguards and limits that constrain the extent to and the manner in which this type of information can be gathered and processed.

12) Lourens Du Plessis (Stellenbosch University – Law), Religious Freedom and Equality as Celebration of Difference: A Significant Development in Recent South African Constitutional Case-Law , 12 Potchefstroom Electronic Law Journal (2009). The abstract states:

This contribution focuses on the way in which the South African Constitutional Court has, since 1997, been dealing with the (seemingly) eccentric claims of (assumedly) idiosyncratic 'religious Others'. Developments in this regard have, for the time being at least, culminated in the Constitutional Court's landmark judgment in MEC for Education: KwaZulu Natal v Pillay 2008 (2) BCLR 99 (CC), 2008 (1) SA 474 (CC) (hereafter Pillay). Constitutional Court judgments since 1997 manifesting the adjudication of such unconventional claims are assessed, eventually getting to Pillay as benchmark. This remarkable judgment, dealing with a deceptively mundane issue, has played a considerable role in fleshing out a jurisprudence of difference, putting an adherent of a vulnerable, minority religion in the right. This is not just a high point in the adjudication of constitutional entitlements of the religious (and cultural) Other in South Africa, but also a significant contribution to the growth of a jurisprudence sensitive to the predicaments and constitutional entitlements of unconventional, 'non-mainstream' claimants of religious (and cultural) rights.

13) John Copeland Nagle (Notre Dame Law School), Pornography as Pollution. The abstract states:

Pornography is often compared to pollution. But little effort has been made to consider what it means to describe pornography as a pollution problem, even as many legal scholars have concluded that the law has failed to control internet pornography. Opponents of pornography maintain passionate convictions about how sexually-explicit materials harm both those who are exposed to them and the broader cultural environment. Viewers of pornography may generally hold less fervent beliefs, but champions of free speech and of a free internet object to anti-pornography regulations with strong convictions of their own. The challenge is how to address the widespread concern about pornography while recognizing the limits of government regulation.

This article responds to the law’s failures by framing pornography as a pollution problem. It begins by explaining how pornography is like pollution, and how it is not. It then considers the obstacles to relying on regulation to combat pornography, and conversely, the difficulty with simply instructing internet users to tolerate pornography. The goal of the article is to show how viewing pornography as a problem of pollution may assist in devising new ways of responding to the widespread concerns about internet pornography. Generally, environmental law seeks to prevent some pollution from occurring at all, controls other pollution so that does not enter the environment, facilitates the separation of pollution that does reach the environment from those it could harm, and tolerates the presence of some pollution. The experience of environmental law suggests that the victims of pollution should not be burdened with avoiding it, and that filtering and zoning strategies can play in a role in helping people avoid exposure to the effects that pornography has on the internet environment.

14) Dilan Thampapillai (Deakin University), Low Level Racist Speech: Beyond Law's Reach?. The abstract states:

The nature of racist speech is changing as social mores on matters of race and multiculturalism evolve. However, the underlying intent of the disseminators of racist speech – to divide and subjugate – remains much the same. Part IIA of the Racial Discrimination Act appears to lack the capacity to deal with racist speech that is sophisticated and not profane. This presents a problem, particularly when a racist message can effectively be conveyed with subtlety and without crudity. The effect of this failure on the part of Australia’s racial vilification laws is to effectively privilege the speech of mainstream commentators. Part IIA of the RDA appears to have been drafted with a view to preventing the harms that arise from extreme racist speech and speech encouraging violence. But such speech is rare or is quarantined to the margin of Australian life. The type of racism that is problematic is that which is more insidious, sophisticated, yet visible and divisive and exclusionary in its operation. This is the type of speech that Part IIA needs to engage with if it is to have any meaning in broader Australian life. Further, it is possible for Part IIA to play a role in educating and challenging racist speech without undermining Australian democracy and the general freedom of speech.

15) Paul M. Secunda (Marquette University - Law School), Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment. The abstract states:

Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known impact of this watershed case might have a significant impact in the workplace: It may permit employers to hold political mandatory captive audience meetings with their employees.

To eliminate this danger, and consistent with the First Amendment framework for election law issues post-Citizen United, this Article urges Congress to consider language similar to that enacted by the Oregon Worker Freedom Act Law, SB 519 (effective Jan. 1, 2010). SB 519 prohibits termination of employees for refusing to attend mandatory political, labor, or religious meetings held by their employers.

Such a federal law would constitute permissible employment standards legislation and also would not run afoul of the First Amendment speech rights of employers under Citizens United. Employers would still able to communicate their views about political candidates and parties with their employees as the First Amendment now contemplates, but they will not be able to force them to listen to such speeches at the risk of losing their jobs or other benefits of employment.

16) Sheri Ann Forbes and Marci A. Hamilton (Cardozo Law School), Brief Amicus Curiae of the Jewish Board of Advocates for Children, Inc., Et Al., Ramani V. Segelstein, No. 49341 (Nev. Dec. 11, 2009). The abstract states:

Amicus Brief rejecting categorical First Amendment defense to employment retaliation and other tortious acts by a religious organization defendant.

17) Marci A. Hamilton (Cardozo Law School), Brief of Amicus Curiae People for the American Way Foundation in Support of Respondent, Prince of Peace v. Linklater, No. 66 (Md. Ct. App. Oct. 16, 2009). The abstract states:

Amicus Brief rejecting First Amendment defense by religious defendants for tortious acts.

18) Marci A. Hamilton (Cardozo Law School), Reply Brief of Appellant, Nicholson V. Roman Catholic Archdiocese of St. Louis, No. Ed93009 (Mo. Ct. App. Jan. 8, 2010). The abstract states:

Reply Brief rejecting categorical First Amendment defense of defendant religious organization for sexual abuse.

19) Rebecca Probert (University of Warwick - School of Law), Stephen Gilmore , University of East London - School of Law and and Jonathan Herring (University of Oxford - Faculty of Law), Responsible Parents and Parental Responsibility (Hart Publishing, May 2009). The abstract states:

This book examines the idea of 'parental responsibility' in English law and what is expected of a responsible parent. The scope of 'parental responsibility', a key concept in family law, is undefined and often ambiguous. Yet, to date, more attention has been paid to how individuals acquire parental responsibility than to the question of the rights, powers, duties and responsibilities they have once they obtain it. This book redresses the balance by providing the first sustained examination of the different elements of parental responsibility, bringing together leading scholars to comment on specific aspects of its operation.

The book begins by exploring the conceptual underpinnings of parental responsibility in the context of parents' and children's rights. The analysis highlights the inherent constraints and limitations of 'parental responsibility' and how its scope has deliberately been curtailed in certain contexts. The book then considers what parental responsibility allows and requires in specific areas, for example, naming a child, education, religious upbringing, medical treatment, corporal punishment, dealing with any contracts entered into or property owned by the child, representing the child in legal proceedings, consenting to a child's marriage or civil partnership and the law's response to the death of a child. In the final section, the idea of the 'responsible parent' is considered in the contexts of child support, contact, tort, and criminal law.

20) Seth F. Kreimer (University of Pennsylvania Law School), Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record. The abstract states:

As digital image technology proliferates in camera phones, iPhones, and PDAs, almost any image we observe can be costlessly recorded, freely reproduced and instantly transmitted. We live, relate, work, and decide in an environment in which pervasive image capture from life is routine. During the last half decade, captured images have come to underpin crucial elements of ongoing private and public discourse; digital image capture has become a ubiquitous adjunct to memory and a pervasively accepted mode of connection and correspondence.

Digitally captured images precipitate conflicts between government authority and free expression. From efforts to suppress cell phone videos of official abuse or private malfeasance to prosecutions of “sexting,” the proliferation of digital image technology will require legal decision makers to come to grips with the First Amendment status of pervasive image capture. This Article commences the task.

I begin by parsing the technological trends that have set the stage for pervasive image capture as a social practice, and proceed to sketch the emerging ecology of visual memory and discourse. I then canvass legal developments that threaten to shadow the promise of the new medium, and their proper analysis under the First Amendment. I argue against the claims of earlier legal analysts that the process of recording images is unprotected action; in contemporary social practice, image capture is part of a protected medium of expression. I close with an initial account of the proper scope of First Amendment shelter for the promise of pervasive image capture.

21) Ciara Torres-Spelliscy (Brennan Center for Justice), Corporate Campaign Spending: Giving Shareholders a Voice. The abstract states:

The Supreme Court has radically altered the legal landscape for politics with the 5-4 decision in the case Citizens United v. FEC, handed down on January 21, 2010. Turning back decades of statutory law, the Court has elevated the First Amendment rights of corporations to speak during elections, and has created a new paradigm for how political campaigns may be funded. The way that corporations “speak” is by spending money, usually to purchase advertisements that most individuals could not afford to finance.

Now that the Court has held that publicly-traded corporations have the same First Amendment protections as individuals, limitations on Congress’ ability to regulate their spending will be severely constrained. That means that corporate treasury money – including the funds invested by individuals, mutual funds, pension funds and other institutional investors – can be spent on politics without alerting investors either before or after the fact. Under current laws regulating corporations, there is nothing that requires corporations to disclose to shareholders whether funds are being used to fund politicians or ballot measures, or how the political money is being spent. Moreover, shareholders have no opportunity to consent to the political use of corporate funds.

This does not have to be the case. Britain has an alterative approach. In the U.K., companies disclose past political expenditures directly to shareholders. And more importantly, shareholders must authorize corporate political spending before a corporation uses shareholder funds on political spending.

This report argues for the United States to change its securities laws in the wake of Citizens United to (1) provide notice to shareholders of any and all corporate political spending and (2) to require shareholder authorization of future corporate political spending.

JFB

Deputy White House Counsel Rashad Hussain to Serve as US Envoy to the Organization of the Islamic Conference

Sunday’s Washington Post and New York Times reported President Obama’s appointment of Rashad Hussain, a deputy White House counsel, to serve as the U.S. envoy to the Organization of the Islamic Conference (OIC).  The OIC is a 57 member  inter-governmental organization that describes itself as “the collective voice of the Muslim world.”

Announcing the appointment via a videotaped message delivered to the U.S.- Islamic World Forum  meeting in Doha, Qatar, the President noted that Hussain  was “a hafiz of the Koran,”  a person who has carefully studied and memorized the Islamic sacred text.  In a Reuters interview, Hussain expressed the Obama administration’s  hope that it can build on the framework laid out in the President’s Cairo address  and achieve “comprehensive engagement with the Muslim world."  Hussain identified education, science, and technology as areas where collaborative initiatives will be pursued.  The White House announcement of his appointment also explained that Hussain will work  to correct distorted and disparaging portrayals of the US that have been disseminated by Al Queda.

President Bush appointed the first U.S. envoy to the OIC in 2008, naming Texas businessman Sada Cumber to the post. 

JFB

 

First Amendment Scholarship Update

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

1) Deborah L. Hall (Duke University), David C. Matz (Augsburg College, Minneapolis, MN ), Wendy Wood (University of Southern California), Why Don’t We Practice What We Preach? A Meta-Analytic Review of Religious Racism. The abstract states:

A meta-analytic review of past research evaluated the link between religiosity and racism in the United States since the Civil Rights Act. Religious racism partly reflects intergroup dynamics. That is, a strong religious in-group identity was associated with derogation of racial out-groups. Other races might be treated as out-groups because religion is practiced largely within race, because training in a religious in-group identity promotes general ethnocentrism, and because different others appear to be in competition for resources. In addition, religious racism is tied to basic life values of social conformity and respect for tradition. In support, individuals who were religious for reasons of conformity and tradition expressed racism that declined in recent years with the decreased societal acceptance of overt racial discrimination. The authors failed to find that racial tolerance arises from humanitarian values, consistent with the idea that religious humanitarianism is largely expressed to in-group members. Only religious agnostics were racially tolerant.

2) Ronan McCrea (School of Law, University of Reading), The Recognition of Religion within the Constitutional and Political Order of the European Union.  The abstract states:

This article analyses the recourse to religion as a source of law in the legal and political order of the European Union. It demonstrates that the legitimacy of religious input into law is recognised institutionally, symbolically and substantively. However, religious influence within the Union’s public order must accommodate cultural and humanist influences that can serve to limit attempts to reflect religious teaching in law and which are particularly restrictive of the influence of “outsider” faiths whose demands cannot be routed through culture and those faiths with extensive political ambitions. Thus, the Union’s approach is characterised by a complex and shifting balance between religious, cultural and humanist influences which is struck in a pluralist context that attempts to reconcile the differing balances between such influences in individual Member States with the need to maintain the open and sufficiently religiously neutral common European ethical framework necessary for the functioning of the Union as a polity.

3) Robert K. Vischer  (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law), When is a Catholic Doing Legal Theory Doing 'Catholic Legal Theory?', forthcoming in Seton Hall Law Review.   The abstract states:

What does it mean for me to be a Catholic doing legal theory, even when I am not self-consciously trying to do “Catholic legal theory?” One simple response is methodological: I might be describing the Christian tradition, I might be proclaiming its truth, I might be speaking prophetically to power, or I might be speaking pragmatically about reasonably debatable methods by which to cultivate the common good. At different points, if I want to contribute to the full flowering of the Catholic legal theory project, I hope that I do all of these. At a deeper level, articulating what I do as a Catholic legal scholar must also account for what I do as a legal scholar. One concern is that the religious label, especially the Catholic label, will be an easy way to pigeon-hole me and more easily dismiss my opinions as pre-ordained conclusions dictated by my faith tradition, rendering them less authentic and even less human. In reality, though, my faith should be the impetus to delve even more deeply into the heart of what it means to be human, to grapple unflinchingly with the reality of our existence. When I use faith as an escape, when I toss off trite prayers to numb myself to the tragedy that unfolds around me, rather than praying to express and share in the depth of that grief, I am rightly dismissed by the grieving. Similarly, when I use faith in my scholarship as bludgeon to wield against those who reject my worldview, or when I dress up my unsupported assertions as self-evident simply because they come from my faith tradition, I am rightly dismissed by those legal scholars who are authentically struggling with the question of how imperfect people should govern themselves in an imperfect world. The Catholic legal theory project has much to contribute to legal scholarship, starting with the anthropological question of what it even means to be human. (This essay is based on a presentation at Seton Hall’s conference, “Religious Legal Theory: The State of the Field” in November 2009.)

4) Paul E. McGreal (Southern Illinois University at Carbondale - School of Law), The Unpublished Free Exercise Opinion in Jensen v. Quaring, in Southern Illinois University Law Journal. The abstract states:

Since they were opened to the public in March 2004, the Harry A. Blackmun Papers at the Library of Congress have provided a wealth of information about the United States Supreme Court and its landmark decisions. This Essay leaves the beaten path, focusing on an unpublished Opinion of the Court in the relatively unknown case Jensen v. Quaring. In the official United States Reports, Jensen is a summary disposition - the Court split four to four and so affirmed the lower court without opinion. The Blackmun Papers, however, show that the vote after oral argument was five to three to reverse the court of appeals. After Chief Justice Burger circulated a draft Opinion of the Court that would have radically altered the Court’s approach to the Free Exercise Clause, Justice Blackmun switched his vote, making the tally four to four. So, while Jensen could have been a turning point in the Court’s Free Exercise Clause jurisprudence, it instead resides in constitutional law obscurity.

5) Susan J. Stabile (University of St. Thomas School of Law - Minnesota), An Effort to Articulate a Catholic Realist Approach to Abortion. The abstract states: 

In an effort to try to move the abortion debate forward by trying to find common ground between very polarized positions, the Article explores what options exist for a political and legal system’s treatment of abortion that might be consistent with a Catholic realist approach. The article begins by identifying three conditions that are required for a position to be labeled a Catholic realist position: factual accuracy, viability and consistency with Catholic moral teaching. It then explores five questions as a means of articulating what a Catholic realist approach to abortion might look like, including the question whether there is a dignity interest in a woman not being forced to carry a pregnancy to term and the extent to which broad societal consensus about the moral status of abortion might impact our views of the role of law in addressing abortion.

6) Hannibal Travis (Florida International University College of Law), The Cultural and Intellectual Property Interests of the Indigenous Peoples of Turkey and Iraq. The abstract states: 

The U.N. Declaration on the Rights of Indigenous Peoples requires states to provide an effective remedy to indigenous peoples deprived of their cultural, religious, or intellectual property (IP) without their free, prior and informed consent. The Declaration could prove to be important safeguard for the indigenous peoples of Iraq and Turkey, the victims for centuries of massacres, assaults on their religious and cultural sites, theft and deterioration of their lands and cultural objects, and forced assimilation. These peoples, among them the Armenians, Assyrians, Greeks, and Yezidis of Turkey and Turkish-occupied Cyprus, and the Armenians, Assyrians, Yezidis, and Mandaeans of Iraq, have lost more than two-thirds of their peak populations, most of their cultural and religious sites, and thousands of priceless artifacts and specimens of visual art.

The European Union has probed these violations of indigenous people's rights as part of the process of bringing Turkish laws and policies into compliance with European human rights standards. The United States has investigated violations of the rights of Iraq’s indigenous peoples in reports issued by the various executive agencies and legislative committees.

My paper will summarize the results of these inquiries, and propose four reforms. First, restitution or compensation should be implemented for the widespread destruction of indigenous peoples’ cultural and intellectual properties by previous Turkish and Iraqi regimes. Second, efforts to promote the security of indigenous peoples’ surviving intellectual and cultural patrimony must be adopted. Third, transnational corporations and other large enterprises such as museums and publishers should respect the rights of indigenous people to protect, access, and use their cultural and intellectual property held outside of Turkey and Iraq. Fourth, policies within Turkey and Iraq that restrict the preservation and transmission of indigenous cultural and intellectual manifestations must be reformed or abolished.

This article also describes the growing body of law governing indigenous peoples' rights, particularly in Europe. Applicable general international law standards are set forth in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, the the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Hague Convention with Respect to the Laws and Customs of War on Land, the Hague Regulations Respecting the Laws and Customs of War on Land, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, the Convention for the Protection of Cultural Property in the Event of Armed Conflict, the Convention on Biodiversity, the ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, and the United Nations Declaration on the Rights of Indigenous Peoples.

European standards are embodied in the European Convention on Human Rights and Fundamental Freedoms, the Copenhagen principles on human rights in the EU, the Framework Convention for the Protection of National Minorities, the OSCE Oslo Recommendations Regarding the Linguistic Rights of National Minorities, and the Council of the European Union's Framework decision on Racism and Xenophobia. In the United States, additional standards are set forth in the Foreign Relations Act of 1961, the International Religious Freedom Act of 1998, the Alien Tort Claims Act, and the Torture Victims Protection Act.

7) Lorenz Langer (Yale Law School), The Rise (and Fall?) of Defamation of Religions, 35 Yale Journal of International Law --- (2010). The abstract states:

This Recent Development provides an overview of the attempts to draft a new international legal instrument to combat defamation of religions.

8) Piero Tozzi (Winston & Strawn LLP), Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence, 49 Journal of Catholic Legal Studies --- (2009) and 48 Catholic Lawyer --- ( 2009). The abstract states:

This article examines one positive result of the Smith decision, namely the rebirth of state constitutional free exercise jurisprudence, which had atrophied in the decades prior to the 1990 decision. Surveying high court case law from several states in the wake of Smith, the author asks whether state constitutions will afford protection to religious believers and others motivated by conscience at a time when religious freedom and rights of conscience are under pressure from those asserting competing "rights" of more recent vintage, such as "reproductive rights" and rights based on "sexual orientation." The author concludes that state constitutional free exercise clauses, especially those worded differently from that found in the federal constitution, may indeed afford greater protection, though how much protection remains to be seen as new rights jostle with those religious and conscience rights that pre-date the Republic for supremacy.

9) Gilat Levy  (London School of Economics & Political Science (LSE) - Department of Economics) and Ronny Razin (London School of Economics - Department of Economics), Religious Organizations. The abstract states:

We propose a model of religious organizations which relies on the ability of such organizations to affect individual beliefs about the causality between actions in the social context and personal utility shocks. We show how religious organizations arise endogenously and characterize their features. Specifically, we find that members of the religious organization share similar beliefs and are more likely to cooperate with one another in social interactions. We identify a "spiritual" as well as a "material" payoff for members of the religious organization. Our results explain and shed light on empirical phenomena such as the effects of secularization and economic development on religious beliefs and participation, the relation between the size of the religion and the intensity of its members' beliefs, religious segregation and religious conflicts.

10) Rigel Christine Oliveri (University of Missouri School of Law), Discriminatory Housing Advertisements On-Line: Lessons from Craigslist, 43 Indiana Law Review ---. The abstract states:

The Fair Housing Act makes it illegal to publish discriminatory housing advertisements. This has long been applied to newspapers, which have effectively screened all discriminatory housing ads from sight. However, in 1996 Congress created a loophole when it immunized website operators from liability for the content posted to their sites by third parties. Without publisher liability, websites have no incentive to screen out discriminatory housing ads. The result is that such ads are proliferating in cyberspace.

While this situation is problematic from a fair housing standpoint, it presents a valuable opportunity. For the first time in a generation discriminatory housing advertisements are out in the open and available for analysis. This article contains a comprehensive review of discriminatory housing ads appearing on the popular website craigslist, which yields a number of interesting findings, including: (1) The vast majority of those who post discriminatory on-line advertisements for housing are placed by people seeking roommates. (2) The overwhelming majority of problematic ads discriminate on the basis of familial status. There are very few that discriminate based on race, ethnicity, or religion. (3) The few roommate ads that do mention race, ethnicity, or religion are more likely to discriminate in favor of minority groups. Thus, they appear more as expressions of individual diversity of backgrounds and beliefs than exclusionary tools of a majoritarian power structure.

This information can and should inform changes to the legislative and enforcement regime for dealing with discriminatory housing advertisements. For example, we should recognize that the roommate relationship is different from traditional rental housing, and accord roommate-seekers protection from the law – protection which is currently given to small landlords (who arguably do not need it) but not co-lessees. Fair housing advocates also must address the unique problems presented by familial status as a protected category, both in terms of public awareness and acceptance of the law.

11) Gabriel M. Ahlfeldt (London School of Economics & Political Science (LSE) - Department of Geography and Environment), Bastian Franke, and Wolfgang Maennig (University of Hamburg - Faculty of Economics and Business Administration), Terrorism and the Regional and Religious Risk Perception of Foreigners: The Case of German Tourists. The abstract states:

This paper analyses how German tourists react to unanticipated shocks that alter their risk perception of selected tourism destinations. Using a difference-in-difference strategy which flexibly accounts for macroeconomic conditions and also addresses potential problems of serial correlation, we isolate significant effects of the 9/11 (2001) terrorist attacks, as well as for the attacks in Egypt (1997), Tunisia (2002), Morocco (2003) and Indonesia (2003). These terror attacks impacted especially on Islamic countries all over the world, indicating a transmission mechanism driven by ethnic and religious proximity. At the same time, tourism into Islamic countries was temporarily substituted by tourism to (south) European countries.

12) Bassam Yousef Ibrahim Banat (University of Granada), Palestinian Youth and the Rush Towards Martyrdom, 51 Journal of Society and Heritage --- (2010). The abstract states:

The current study aims at identifying the rush of the Palestinian youth towards martyrdom operations (Al-Amaliyat Al-Istishhadiya). Findings show that the motivations for martyrdom are nationalistic, religious and humanitarian. These motivations are closely associated with the Israeli occupation of the Palestinian territories and the daily suppressive practices against the helpless and unarmed Palestinian people. Although we should not ignore the religious motives which are the supporting elements of the Palestinian martyrdom operations. As for talking about psychological, social and economic factors and others as motives for martyrdom, it is wrong to associate Palestinian martyrs with these factors since this underestimates the real value of a martyr and makes him/her some kind of a social suicide.

13) Karl-Dieter Opp and Bernhard Kittel (International Labour Office),The Dynamics of Political Protest: Feedback Effects and Interdependence in the Explanation of Protest Participation, 26 European Sociological Review 97 (2010). The abstract states:

This article addresses three largely unsolved problems in theory and research on political protest. The first problem concerns feedback effects. The common assumption is that protest is determined by various factors and does not influence its determinants. We propose and test hypotheses about feedback effects of protest on its determinants. The second issue is the usual assumption that the determinants do not influence each other. We propose and test hypotheses about their interdependence. The third issue which is also rarely addressed in the literature is explaining different effects of individual-level variables (i.e. coefficients) by changes of the political context. Since we test our hypotheses with a four-wave panel survey, conducted in Leipzig between 1990 and 1998, we suggest propositions about differential effects of the variables across waves. We find, among other things, that people having been engaged in protest activities under communist rule in 1989 tend to exhibit a long-term decrease of political discontent. Finally, we find that integration in protest-promoting networks is the most important determinant of protest.

14) Fabiana V. P. Machado , Carlos Scartascini (Inter-American Development Bank) and Mariano Tommasi ( Universidad de San Andres, Department of Economics ), Political Institutions and Street Protests in Latin America. The abstract states: 

This paper argues that where institutions are strong, actors are more likely to participate in the political process through institutionalized arenas, while where they are weak, protests and other unconventional means of participation become more appealing. This relationship is explored empirically by combining country-level measures of institutional strength with individual-level information on protest participation in 17 Latin American countries. Evidence is found that weaker political institutions are associated with a higher propensity to use alternative means for expressing preferences, that is, to protest. Also found are interesting interactions between country-level institutional strength and some individual-level determinants of participation in protests.

15) Robert A. Kahn (University of St. Thomas School of Law - Minnesota), News Value, Islamophobia, or the First Amendment? Why and How the Philadelphia Inquirer Published the Danish Cartoons. The abstract states:

The typical framing of the United States in the Danish cartoon controversy is driven by the refusal of most papers to republish the cartoons. On this view, American journalists, unlike their European counterparts, focused narrowly on the cartoons' "news value" which -- even at the papers that published the cartoons -- ruled out the anti-Muslim stereotypes that accompanied the running of the cartoons in Denmark and Europe.

This paper puts this frame to the test by looking at the debate that unfolded after the Philadelphia Inquirer ran the turban cartoon. While editor Amanda Bennett defended her decision as "what newspapers do," a detailed review of the articles that ran in the paper, the letters the paper received, and Bennett's own justification of her actions suggest the debate was much broader than the news value paradigm suggests. In particular, the debate had an Islamophobic edge reinforced by the failure of the Inquirer to discuss the initial framing of the cartoons in Denmark. This suggests that the image of the United States as narrowly focused on news value needs revision.

16) Susan Stuart (Valparaiso University - Law School),In Loco Parentis in the Public Schools: Abused, Confused and in Need of Change , Univeristy of Cincinnati Law Review, Forthcoming. The abstract states:

In loco parentis is a common law doctrine that has been used to characterize the on-campus relationship between a school and its students, but its abuse has led to such absurd cases as Safford Unified School District No.1 v. Redding. Although waning in higher education, the doctrine is experiencing a resurgence in elementary and secondary schools. As originally conceived, the doctrine was used primarily as the justification for and defense of student disciplinary actions: the school stood in the shoes of the parent and had the authority to discipline, almost at will. The doctrine, however, never seemed to have a corollary in the schools’ responsibility for the safety of students. Now, in loco parentis is being re-energized to excuse violating student rights, particularly with degrading treatment in matters of search and seizure, but with little or no concomitant recognition of any responsibility to protect them from equally degrading treatment occasioned by sexual harassment and bullying. This Article will discuss why this doctrine is being revived and why that revival is misguided. Part of the blame lies with courts and schools in their inability to articulate some other, more modern guidance to justify school disciplinary policies. However, a larger portion of the blame lies both with a careless political process that is tasking schools with more than just an educational function and with an equally careless judiciary that believes in loco parentis means “it’s none of our business.” Instead, education professionals can and should be exploring an institutional model of its relationship to its students in both the treatment of and duties toward their civil rights.

17) Elizabeth R. Sheyn, The Humanization of the Corporate Entity: Changing Views of Corporate Criminal Liability in the Wake of Citizens United. The abstract states:

Although the recent United States Supreme Court decision in Citizens United v. Federal Election Commission clearly controls the First Amendment rights of corporations, the effect of Citizens United on corporate criminal liability is less obvious, though equally (if not more) significant. The Court’s view that corporations are equal to human beings, at least under the First Amendment’s Free Speech Clause, when combined with the traditional understanding that corporations are considered “persons” under the United States Constitution, likely impacts the way that corporations’ alleged misdeeds are investigated by the government and the manner in which the government subsequently deals with corporate misconduct, particularly through deferred and non-prosecution agreements.

This Article argues that, in light of Citizens United, the government must change the manner in which it pursues investigations of corporations and must alter the provisions of its deferred and non-prosecution agreements. Part I of the Article provides an introduction to the concept of corporate criminal liability, with Section A describing the courts’ approach, Section B providing an overview of the commentators’ approach, Section C detailing the government’s approach - including overall charging policy and use of deferred and non-prosecution agreements. Part II examines the Supreme Court’s decision in Citizens United. Finally, Part III enumerates the ways in which Citizens United potentially affects the above-described approaches to corporate criminal liability and outlines the resulting changes with respect to the treatment of corporate criminality.

18) Akilah Folami (Hofstra University - School of Law), Deliberative Democracy on Air: Reinvigorate Localism - Resuscitate Radio’s Subversive Past , 62 Federal Communications Law Journal --- (2009-2010). The abstract states:

Many scholars, media reformists, activists and musicians currently lament the present condition of commercial radio, given the deregulatory effects of the last two decades on radio ownership and content. Many contend that commercial radio, once thought of as a deliberative tool in advancing the democratic ideals of inclusiveness and representation, is now nothing more than a commercialized wasteland with the democratic ideals of it serving as a deliberative tool laid to rest due, in part, to radio ownership consolidation, competition from other media sources, and the provision of overlapping and homogenized content on the nation’s radio airwaves. While there has been considerable scholarship exploring the need to breathe deliberative life back into the localism standard by requiring broadcasters to include more meaningful local news and public affairs programming, pursuant to the public interest obligations imposed on radio licensees, little scholarly attention has been given to broadening understandings of localism to include music and popular cultural expression for the purpose of furthering dialogic discourse in particular, rather than solely for entertainment purposes.

This article focuses on a particular moment in radio and America’s cultural history that was rife with struggles over constructions of identity, and with contests over meaning between dominant ideological frameworks and voices of subversion that would challenge these dominant normative understandings, all within a very commercialized, corporately controlled media environment. Specifically, this article focuses on the rise of rock and roll on commercial radio and of the White rock and roll disc jockey, who came to represent the pulse of the historically marginalized (pre World War II), White American youth. The White rock and roll disc jockey, through radio, heavily influenced American popular culture and this newly emerging and recognized audience, and was instrumental in forging discussion and deliberation in America, at a time of intense inter-generational unrest among younger and older generations of White Americans. By exploring this snapshot in history of radio’s subaltern past via the playing of rock and roll by White radio disc jockeys on White radio during what some have defined as America’s Cultural Revolution, this article builds on the scholarship of others that have considered radio’s influence on popular culture, dialogic democracy, and the struggles over will formation and constructions of identity.

This article expands upon such analysis, however, by exploring the law’s role in this contest over meaning and the dialogic process: a role that must be taken into account as the FCC, Congress, and the courts reconsider current media policy in light of the public outcry over the lack of diverse content on the nation’s radio airwaves. It also is the first to specifically call for the inclusion of music and, by extension, popular cultural expression into the localism concept for dialogic purposes to ensure that these sites that are key to will formation and the deliberative process are not overlooked or, better yet, extinguished due to consolidation in radio ownership and the current market driven interpretive standard applied to the public interest standard. As America residentially re-segregates itself, and becomes all the more socio-economically stratified based on class, history has shown that the rumblings and contestations of the overlooked and marginalized may be found in their everyday interactions and interests, and musical preferences, which can serve as challenges to dominant and hegemonic societal configurations.

JFB

"Respect Choice" License Plates

Lawmakers in Virginia must decide whether to approve a NARAL sponsored "Trust Women/Respect Choice" license plate, or face a First Amendment lawsuit in court.  Because the state already allows "Choose Life" tags, a decision not to offer NARAL's tags would amount to unconstitutional viewpoint discrimination, the group says.  The state's governor and AG say their main concern isn't the tag itself, but whether money from its sale would be used to support abortion services. 

On the great license plate debate, see prior posts here and here and here.

-Kathleen A. Bergin

Shouting "Valor!" In A Public Forum

Xavier Alvarez isn’t a decorated war hero, but he claimed to be, and as a result was charged with violating the Stolen Valor Act.  That law makes it a crime to lie about receiving a military service medal.  Alvarez, a local politician in Pomona, California, told an assembly of folks in 2007 that he had received the Medal of Honor while serving in the Marines. But there’s no record that Alvarez was ever in the Marines. He pled guilty to the charges on the condition that he be allowed to raise a First Amendment defense against the SVA on appeal.

So does Alvarez have a case?  Not according to Gary Solis, military law expert and adjunct prof at Georgetown Law.  He told ABC News recently that lying about the Medal of Honor is "no more free speech than (falsely) yelling Fire! in a crowded theater."

But that can’t be right.  Where’s the imminent panic, the clear and present danger (since we’re citing Holmes), the public stampede following Alvarez’s claim that would place lies like this beyond the reach of the First Amendment?  Alvarez wasn’t making a false claim to obtain military benefits (fraud), or testifying about his military service on the stand (perjury). He told an ugly lie to impress local constituents.

I can only imagine the gut-punch that false claims like this feel like to soldiers who survive the actual carnage of war.  But the whole point of the First Amendment is to let the truth play itself out in the marketplace of ideas; and that's precisely what happened here.  Alvarez had a bad idea, tossed it into the marketplace, and in the process revealed himself to be a complete jackass.  I'm not sure we'd get more from a federal prosecution.   

-  Kathleen Bergin 

First Amendment Scholarship Update

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

1) Steven G. Gey (Florida State University - College of Law), Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?, forthcoming in Iowa Law Review. The abstract states:

It is an uncontroversial fact of political life that the government sometimes must communicate with the public. For several years, however, the Supreme Court has used this uncontroversial fact as a justification for developing a First Amendment doctrine of government speech. This new doctrine does more than simply recognize the government's authority to speak out on matters of public policy; as envisioned by the Supreme Court, the doctrine also allows the government to silence or coerce the speech of those in the private sector who wish to speak out against the government. In much the same way that private speakers have long been given a First Amendment right to fend off government control of their speech, the government now has been afforded a First Amendment "right" to free speech as well. The question is whether this new "right" is necessary. Both the facts and theory of the Court's new government speech cases suggest that the answer to this question is no. For the most part, the cases in which the Court has resorted to its new government speech doctrine involve situations in which the government's ability to communicate with the public would not have been inhibited in any way if such a doctrine did not exist. The Court has even relied on its new government speech doctrine in several cases in which the government either was communicating ambiguously or not at all. It is a mystery why the government should be allowed to employ a First Amendment "right" to government speech against private speakers when the government has nothing to say. This Article addresses the Court's new government speech doctrine. After reviewing the cases in which the Court develops this doctrine, the Article concludes that these cases do not support the Court's increasingly expansive conception of government speech. These cases indicate instead that all of the legitimate purposes of government speech would be served just as effectively by a much more truncated conception of the government speech doctrine than by the broader version being developed by the Court. The Article concludes by proposing, in the alternative, that the government speech doctrine could be eliminated entirely without harming a single one of the government's legitimate objectives. It may be, in other words, that from a First Amendment perspective, the best government speech doctrine is no doctrine at all.

2) Jason Kuznicki (Cato Institute), Attack of the Utility Monsters: The New Threats to Free Speech,
Cato Policy Analysis Series, No. 652. The abstract states:

Freedom of expression is looking less and less like a settled issue. Challenges to it have lately arisen from the right, from the left, from Muslim perspectives, and even in the name of protecting children online. These challenges seem to share an underlying concern, namely that we must balance free expression against the psychic hurt that some expressions will provoke. Often these critiques are couched in language that draws or appears to draw, on the law and economics movement. Yet the cost-benefit analyses advanced to support restrictions on expression are incomplete, subjective, and self-contradictory.

Several examples help to illustrate this point, including flag-desecration laws, hate-speech laws in the United Kingdom and Canada, U.S. college and university speech codes, the Cairo Declaration on Human Rights in Islam, and the Megan Meier Cyberbullying Prevention Act, currently before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. Although seemingly unrelated, these measures rely on a common assumption, namely that governments should provide emotional well-being to their citizens, even at the expense of free expression. This assumption discounts the emotional well-being of other citizens, neglects countervailing social considerations, and hands arbitrary power to governments.

The result is not more happiness, but a race to the bottom, in which aggrieved groups compete endlessly with one another for a slice of government power. Philosopher Robert Nozick once observed that utilitarianism is hard-pressed to banish what he termed utility monsters - that is, individuals who take inordinate satisfaction from acts that displease others. Arguing about who hurt whose feelings worse, and about who needs more soothing than whom, seems designed to discover - or create - utility monsters. We must not allow this to happen.

Instead, liberal governments have traditionally relied on a particular bargain, in which freedom of expression is maintained for all, and in which emotional satisfaction is a private pursuit, not a public guarantee. This bargain can extend equally to all people, and it forms the basis for an enduring and diverse society, one in which differences may be aired without fear of reprisal. Although world cultures increasingly mix with one another, and although our powers of expression are greater than ever before, these are not sound reasons to abandon the liberal bargain. Restrictions on free expression do not make societies happier or more tolerant, but instead make them more fractious and censorious.

3) James J. Brudney (Ohio State University College of Law), Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns, forthcoming inSouthern California Law Review. The abstract states:

The article addresses an important yet largely overlooked issue of statutory meaning and labor relations policy: employers’ aggressive use of civil RICO actions to chill coordinated union efforts in the organizing and bargaining arenas.

Over the past 30 years, facing volatile economic conditions and complex corporate relationships, unions have mounted coordinated campaigns (aimed at consumers, public officials, lenders, the media, and the public) in order to help organize new workers and to renew collective bargaining relationships. These often high-profile campaigns have at times been quite successful. In response, employers since the late 1980s have invoked civil RICO’s broad language to claim that the campaigns constitute actionable extortion. When these employer claims survive a motion to dismiss, they carry the threat of treble damages, attorneys’ fees, and reputational harms associated with unions being labeled mobsters. Such threats are usually enough to force a settlement if a motion to dismiss is denied, and this often means the demise of the union’s organizing or bargaining efforts. Countless millions of dollars have been expended on lawsuits involving civil RICO and unions, and there is no sign the litigation will abate any time soon.
The article contends that as a matter of law most RICO extortion claims against union comprehensive campaigns should not survive a motion to dismiss. In making its argument, the article examines in unprecedented depth the remarkable conversation between the Court and Congress regarding RICO – how the Court in the 1980s consciously expanded the text’s meaning well beyond conduct Congress had meant to reach; how Congress’s serious reform efforts over a 15 year period met with no success; and how the Court since 2001 has proceeded to adopt restrictive interpretations of civil RICO in the face of the prolonged congressional failure to do so. Having discounted Congress’s inability to enact RICO reform, the Court has signaled a willingness to exercise its own constraints when interpreting the language and concepts of civil RICO. That willingness, along with previous Court decisions reconciling federal regulation with various forms of aggressive speech-related activity, helps to frame and guide an appropriate response to the extortion cause of action at issue.

4) Reuven S. Avi-Yonah (University of Michigan Law School),To Be or Not to Be? Citizens United and the Corporate Form. The abstract states:

In Citizens United vs. FEC, the Supreme Court struck down a Federal ban on direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. The thesis of this Article is that by viewing Citizens United through the prism of theories about the corporate form, it is possible to understand why both the majority and the dissent departed from previous Supreme Court cases on the First Amendment rights of corporations, and to predict what arguments can be expected next.

5) Andrew W. Torrance (University of Kansas - School of Law), Neurobiology and Patenting Thought, 50 IDEA: The Journal of Law and Technology 27 (2009). The abstract states:

Many have argued that thought should constitute per se unpatentable subject matter, and some have even suggested that any patent claim that includes a mental step should lie outside patentability. Many courts have long disagreed with such a draconian rule, and have instead upheld myriad patent claims that include mental steps. Recently there has been renewed interest in the venerable Mental Steps Doctrine, and in patents claiming thoughts or aspects of thoughts, by the courts, including, most notably, the Court of Appeals for the Federal Circuit and the United States Supreme Court. Insights from neurobiology about how to differentiate categories of thought can offer useful criteria for deciding between patentable and unpatentable mental steps, and for setting more coherent and defensible boundaries on the patenting of thought. In particular, this article argues that thoughts subject to "executive control" should be situated more towards the patentable end of the spectrum, whereas "default thoughts" should be situated closer to the unpatentable end of the spectrum. This schema represents somewhat of a departure from the traditional view that First Amendment interests should privilege sophisticated, expressive thought by protecting it from patentability. Nevertheless, it accords well with Thirteenth Amendment interests, privileging thoughts that cannot be avoided by protecting them from patentability, and thus preventing the iniquity of involuntary patent servitude.

6) Robert Corn-Revere, Fairness 2.0: Media Content Regulation in the 21st Century, Cato Policy Analysis Series, No. 651. The abstract states:

Civil libertarians feared that a change of administrations would herald a revived Fairness Doctrine, a policy that previously permitted the government to oversee broadcast news coverage for "balanced views." A return to the Fairness Doctrine, however, now seems unlikely. It is very likely, however, that politicians from both the left and the right will try to extend government control over the media beyond current policies. New rules adopted or proposed by the Federal Communications Commission suggest that the agency may be poised to enforce the most intensive government oversight of broadcast programming in decades - perhaps even in the history of the agency. The FCC voted last year to require each broadcast licensee to file quarterly "enhanced disclosure" reports - highly detailed information regarding its programming and editorial choices. This information will be used by organized groups to file complaints to pressure broadcasters to air programming that the complainants prefer. The FCC is also formulating programming guidelines based on the enhanced disclosure reports purporting to ensure that broadcasters meet local needs. This "broadcast localism" effort may also require broadcasters to appoint local boards to oversee their performance and their editorial decisions. As the FCC seeks to expand regulation of broadcast media, the traditional justification for its authority - spectrum scarcity - has lost credibility, and the agency's new efforts are likely to run afoul of the First Amendment.

7) James Reist Stoner (Louisiana State University), Teaching American Political Thought to Students of American Government, 2010 APSA Teaching and Learning Conference Paper. The abstract states:

Since the behavioral revolution, political scientists have characteristically distinguished between American political thought on the one hand and the scientific study of American politics on the other. Although courses in American government – at least at the introductory level – typically start with the Constitution, most of the analysis proceeds without engaging the political thinking of political actors on its own terms. Political speech is seen to be immediately practical and inevitably partisan; the political scientist avoids such traps by examining interests and ambitions from a distance, determining identity by objective characteristics rather than expressed opinion, and treating opinion itself as data to be counted, not as emergent truth. But if politics is more than the aggregation of preferences and their strategic competition, as in practice everyone except the most cynical campaign operative assumes it is, then, however useful analysis of data might be in unmasking hidden intentions and discovering unintended consequences, political analysis is incomplete unless political thought is considered on its own terms. I propose a three-fold framework to analyze American political thought, distinguishing (a) arguments about constitutional rights and forms, (b) arguments about first principles, and (c) arguments that aim to build or advance party coalitions. Using this framework and applying it to one or two significant debates in American political history, I aim to show how such analysis extends (or perhaps calls into question) common findings of political science on some standard topic – for example, parties and interest groups, or federalism and public policy. Finally, I will consider the pedagogical implications through analysis of the corresponding chapter or chapters from a basic introductory textbook. Are citizens being well-formed by contemporary political analysis, or would they be better served by being introduced to American politics through the leading debates in the history of American political thought? Is there a way to integrate the two?

8) Dov Fox (Yale Law School),Taking Sides on Genetic Modification, forthcoming in American Journal of Bioethics – Neuroscience. The abstract states:

Should government fund safe human enhancements for the hereditary contribution to good looks or athletic prowess or IQ? Is there reason to restrict genetic interventions that would create chickens without the nesting instincts that agitate normal chickens confined to life in a battery cage? Or cows with stunted emotions that would feel less fear as they were led off to slaughter? Or pigs with no legs, better suited to a sedentary existence as bacon-to-be? Some philosophers argue that political decisions about such practices, to be legitimate, must be made without reference to reasons that arise from within controversial worldviews. They believe that society is arranged best when governed by principles that leave citizens free to pursue their own views about what gives life value. So the reasons that public officials give to justify state action must not privilege some moral or religious beliefs over others.

This is a mistake, for two reasons. First, it is conceptually incoherent for the state to stay neutral toward genetic engineering because any strategy that legislators might choose depends for its plausibility on an answer to the underlying normative questions these practices presuppose. Second, the bracketing of formative moral commitments would unduly diminish the character of public deliberation about these questions. What we should do about offspring enhancement depends on why the natural lottery matters to us. And whether we should re-fashion animals to suit our uses for them depends on whether “animal nature” is worth preserving. But these are precisely the sort of controversial moral questions that a neutral state excludes as legitimate grounds for political debate and policy decisions. It might be replied that it is unrealistic to expect citizens in a diverse society to reach agreement on normative issues as contentious as the value of animal nature or the qualities of character worth promoting in a modern democracy.

The truth in this reply is that there is no assurance that agreement will follow from public discourse about the moral status of genetic engineering of humans and animals. Nor might such discourse even lead people to have any greater understanding or respect for those views with which they disagree. But people who hold conflicting values can engage in rational moral dialogue about matters of public policy. And it is possible for people who disagree about controversial technological advances to persuade one another, at least for a time, that some moral views about, for example, genetic engineering, are more reasonable than other views. The price of excluding substantive moral arguments from political debate should not be overlooked. The risk of seeking neutral justification for policy decisions about genetic engineering is that future generations and our own will be subject to a course of action that we cannot plausibly endorse or coherently defend.

9) MATTHIJS P.S. VAN WIJMEN , METTE L. RURUP , H. ROELINE W. PASMAN , PAM J. KASPERS and BREGJE D. ONWUTEAKA-PHILIPSEN, Advance Directives in the Netherlands: An Empirical Contribution to the Exploration of a Cross-Cultural Perspective on Advance Directives, 24 Bioethics 118 (March 2010). The abstract states:

Research Objective: This study focuses on ADs in the Netherlands and introduces a cross-cultural perspective by comparing it with other countries.
Methods: A questionnaire was sent to a panel comprising 1621 people representative of the Dutch population. The response was 86%.
Results: 95% of the respondents didn't have an AD, and 24% of these were not familiar with the idea of drawing up an AD. Most of those familiar with ADs knew about the Advanced Euthanasia Directive (AED, 64%). Both low education and the presence of a religious conviction that plays an important role in one's life increase the chance of not wanting to draw up an AD. Also not having experienced a request for euthanasia from someone else, and the inconceivability of asking for euthanasia yourself, increase the chance of not wanting to draw up an AD.
Discussion: This study shows that the subjects of palliative care and end-of-life-decision-making were very much dominated by the issue of euthanasia in the Netherlands. The AED was the best known AD; and factors that can be linked to euthanasia play an important role in whether or not people choose to draw up an AD. This differentiates the Netherlands from other countries and, when it comes to ADs, the global differences between countries and cultures are still so large that the highest possible goals, at this moment in time, are observing and possibly learning from other cultural settings.

10) ) Edward L. Rubin (Vanderbilt University - School of Law), Assisted Suicide, Morality and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause , forthcoming in Vanderbilt Law Review (2010). The abstract states:

Laws that criminalize assisted suicide should be struck down under the First Amendment’s Establishment Clause. These laws fail the secular purpose strand of the Lemon test and the anti-coercion strand that Lee v. Wiseman established under the accommodation test. While it is true that laws against assisted suicide don’t involve performance of a religious ritual, they codify a highly specific interpretation of Christian doctrine. This article uses an historical analysis to demonstrate that prohibitions against suicide and assisted suicide emerged from a conception of Christianity that defined actions as moral only if they served a higher purpose. In the modern world, this conception has been replaced by a rival morality centered on individual self-fulfillment, which accepts rather than condemns an individual’s decision to end his or her life under certain circumstances. The advent of the new morality clarifies the specificity of the prior morality and highlights its religious origin. Based on this analysis, it seems clear that according to an historically and contextually established definition of religion in our contemporary society (the only defensible type of definition) laws against assisted suicide are efforts to compel obedience to a particular religious ideology, and should be struck down on that basis.

11) Dan Ernst (Ewha Womans University), The Meaning and Liberal Justifications of Israel's Law of Return, 42 Israel Law Review 564 (2010). The abstract states:

The Article argues for a new assessment of the significance of Israel’s Law of Return - that the Law of Return reflects not the sovereign prerogative of a state to control immigration, but the right of every Jew to settle in the Land of Israel. This understanding of the Law of Return explains why Section 4 proclaims that as far as the Law is concerned, the status of Jews born within the State of Israel is the same as those arriving to Israel from abroad. Resolving the anomaly of Section 4 dispels several misinterpretations of the Law of Return and the critiques of the Law which grow out of these misinterpretations. The Article also surveys and answers several liberal objections to Israel’s policy of granting preference in immigration and naturalization based on ethno-national identity and presents an argument for giving priority to Jewish immigration and naturalization based on the extra benefits (religious, political, and communal) that Jews receive from such immigration and naturalization. Finally, it is submitted that the State of Israel has an obligation of justice to admit Jews into the state as full citizens upon their demand, since this was a reasonable expectation of those in past generations who had contributed to the existence and maintenance of the state. The Article argues for a new assessment of the significance of Israel’s Law of Return - that the Law of Return reflects not the sovereign prerogative of a state to control immigration, but the right of every Jew to settle in the Land of Israel. This understanding of the Law of Return explains why Section 4 proclaims that as far as the Law is concerned, the status of Jews born within the State of Israel is the same as those arriving to Israel from abroad. Resolving the anomaly of Section 4 dispels several misinterpretations of the Law of Return and the critiques of the Law which grow out of these misinterpretations. The Article also surveys and answers several liberal objections to Israel’s policy of granting preference in immigration and naturalization based on ethno-national identity and presents an argument for giving priority to Jewish immigration and naturalization based on the extra benefits (religious, political, and communal) that Jews receive from such immigration and naturalization. Finally, it is submitted that the State of Israel has an obligation of justice to admit Jews into the state as full citizens upon their demand, since this was a reasonable expectation of those in past generations who had contributed to the existence and maintenance of the state.

12) Andrew Koppelman (Northwestern University School of Law),  No Respect: Brian Leiter on Religion. The abstract states:

In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment, and that religion is not an apt candidate for respect in the “thick” sense of being an object of favorable appraisal. Both arguments depend on a radically impoverished conception of what religion is and what it does. In this paper, I explain what Leiter leaves out, and offer an hypothesis about why. I also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter’s analysis.

13) Mary Jean Dolan (The John Marshall Law School), Government Identity Messages and Religion: The Endorsement Test after Summum. The abstract states:

This Article offers an in-depth analysis of the opinions in Pleasant Grove v. Summum. It explores the distinctions between the “government speech doctrine”—which operates as a defense to a Free Speech Clause claim—and “government speech” as it has been used in Establishment Clause cases. It serves a valuable function by addressing concerns that the decision has eliminated the Establishment Clause endorsement test, or that it dangerously allows government to convert any and all private speech to its own, thus deflecting free speech claims. My interpretation shows that the Summum decision is multi-faceted and contextual; it relies on government’s expressive intent, an inherently communicative medium, and viewers’ reasonable attributions regarding monument speech. Justice Alito’s exposition on the unfettered indeterminacy of monuments’ content is either misunderstood or renders his opinion internally inconsistent.

Summum should serve to heighten scrutiny in the Court’s Establishment Clause analysis of governments’ religious displays. The case expanded the government speech doctrine beyond specific policies dictated by government-funded programs, and labeled donated monuments as “government identity speech.” Doing so unequivocally erased the diffusing role of the donor, and will exacerbate the perception of preference when government decisions involve religious expression. This Article proposes a balanced solution, which calls governments to a new level of transparency and requires clear display of their history-based rationales. Using social meaning theory and considering alternative approaches, the Article illustrates my proposal using the examples of Eagles-donated Ten Commandments monuments and the Salazar v. Buono story.

14) Louis J. Virelli III (Stetson University College of Law), Evolutionary Due Process, Northwestern University Law Review : Colloquy January 17, 2010. The abstract states:

The issue of evolution instruction in American public schools is becoming increasingly complex, both legally and politically.  Until recently, the controversy over whether and how to teach evolution in public school science classes has been singularly focused on the constitutional limits of government support for religion under the First Amendment’s Establishment Clause.  Current measures in Louisiana and Texas, however, represent a shift toward a new “adjudicative model” for addressing questions of evolution instruction.  This adjudicative model permits individual educators to treat evolution issues on a case-by-case basis, which, in turn, implicates a new constitutional issue in the evolution education debate: procedural due process.  By creating powerful disincentives for anti-evolutionist policymakers, procedural due process concerns could affect the future of evolution education even more profoundly than does the Establishment Clause.  This Essay explores the relationship between evolution education policy and procedural due process by first identifying and defining the adjudicative model.  It then considers the model’s constitutional ramifications for evolution instruction, concluding that this new approach to policymaking introduces procedural due process concerns that radically alter the legal and political calculus of the debate over evolution education.

15) Sean T. McGuire , Thomas C. Omer and Nathan Y. Sharp (Texas A&M University - Department of Accounting), The Influence of Religion on Aggressive Financial Reporting and Corporate Social Responsibility. The abstract states:

Recent research suggests that firms headquartered in counties with high numbers of religious adherents exhibit more conservative corporate investing than firms headquartered in areas with lower numbers of religious adherents (Hilary and Hui 2009). We extend this line of research by examining the influence of religion on two additional areas of corporate policy: financial reporting and social responsibility. Our results suggest that firms headquartered in areas with strong religious social norms generally exhibit less aggressive financial reporting; however, the influence of religion on financial reporting occurs primarily among firms with low levels of external monitoring. We also find evidence that firms in religious areas receive lower ratings for corporate social responsibility, and we provide several potential explanations for this association. We conclude that the influence of religion on corporate policies is multidimensional and provides many potential avenues for future research.

16) Andrew Koppelman (Northwestern University School of Law), Careful with that Gun: Lee, George, Wax, and Geach on Gay Rights and Same-Sex Marriage. The abstract states:

Many Americans think that homosexual sex is morally wrong and oppose same-sex marriage. Philosophers trying to defend these views have relied on two strategies. One is to claim that such sex is wrong irrespective of consequences: there is something intrinsic to sex that makes it only licit when it takes place within a heterosexual marriage (in which there is no contraception or possibility of divorce). Patrick Lee and Robert P. George have developed and clarified this claim. The second strategy focuses on consequences: the baleful effects on heterosexual families of societal tolerance for homosexuality. Amy Wax (who is not a clear opponent of same-sex marriage, but who is worried by it) has tried to array evidence to support the second. Mary Geach has developed a novel hybrid, relying on the second argument to support the first one. Both strategies fail. The first cannot show that the intrinsic goodness of sex is at once (a) derived from its reproductive character and (b) present in the coitus of married couples who know themselves to be infertile, but not present in any sex act other than heterosexual marital coitus. As for evidence of bad consequences of tolerance of homosexuality, the evidence is all the other way.

17) Robert B. Talisse(Vanderbilt University), Religion in Politics. The abstract states:

The author defends a version of justificatory liberalism against a line of criticism developed by Christopher Eberle. Along the way, a conception of respect that liberal citizens owe to each other qua citizens is proposed. According to thins conception, respect requires citizens to both seek and find public justifications for their favored coercive laws.

18) Romeo B. Lee(De La Salle University-Manila, Philippines), Lourdes P Nacionales and Luis Pedroso (Population Commission, Mandaluyong City, Philippines) and Population Commission, Manaluyong City, Philippines), The Influence of Local Policy on Contraceptive Provision and Use in Three Locales in the Philippines. The abstract states:

The Philippines has a family planning programme, but modern contraceptive prevalence has been moderate. Among low-income women, fewer are using modern methods, resulting in a fertility rate among them of 5.9. This limited use is due to lack of consistent national and local government support for modern methods because of religious opposition. Following devolution of responsibility for health services to local government in 1991, three local leaders – in Laguna Province and the cities of Manila and Puerto Princesa – passed anti-modern contraceptive policies. This paper analyses the status and impact of these policies, using information from interviews with local government officials and family planning officers, published data and studies, and accounts in national newspapers. In Laguna Province and Puerto Princesa, the policies were ineffectually implemented or short-lived. The strictly-enforced Manila law, however, has severely disrupted the city's provision of free contraception to and method use by low-income women. The great majority of Filipinos (89%) approve of modern contraceptives. There is an urgent need to improve low-income women's access to modern contraceptives through itinerant and community-based distribution, especially in poor neighbourhoods in Manila, but also throughout the country. Strategies for increasing local government support for and provision of modern methods are also needed.

19) Alexander Tallchief Skibine (University of Utah - S.J. Quinney College of Law), Culture Talk or Culture War in Federal Indian Law?, forthcoming in Tulsa Law Review. The abstract states:

In this article, I ask whether in the area of Native American cultural and religious rights federal law is more inclined towards “culture talk” meaning accommodations and compromises, or whether the attitude is more one of “culture war,” meaning geared towards confrontation and intolerance. I answer the question by focusing on how the law has treated Native American rights in four areas: use of peyote and controlled substances, possession of eagle feathers, implementation of the Native American Graves Protection Act, and protection of sacred sites. Not surprisingly, I conclude that there are both culture talks and culture wars going on. On the other hand, perhaps surprisingly, I find that among the three branches of the federal government, the courts have been the least willing to accommodate Native cultural and religious interests.

20) Carissima Mathen (University of New Brunswick), What Religious Freedom Jurisprudence Reveals About Equality, 6 Journal of Law and Equality --- (2009). The abstract states:

In this article I compare jurisprudence arising under the religious freedom and the equality provisions of the Canadian Charter of Rights and Freedoms. I suggest that religious freedom jurisprudence is actually more consonant with equality ideals (what Justice Peter Cory referred to as “the foundation for a just society”). I first argue that, while Canada’s approach to its constitutional equality guarantees has much to laud, establishing an equality rights claim has become increasingly complex, beset by multi-part tests and providing numerous opportunities for the state to justify discrimination. Then, I show how religious freedom jurisprudence has developed quite differently, invoking powerful purposive descriptions of the right; a clear focus on the individual; a clear recognition and respect for difference; and an expectation of compelling state justification. On the whole, Canadian courts display a sympathy to the religiously devout that often is absent in equality cases. I conclude with some observations about why it seems to be easier for courts to “get” religious freedom claims compared to equality claims (despite their many points of analytical intersection), and some thoughts on whether equality law could actually be reinvigorated by religious freedom jurisprudence. In an addendum, I consider the implications for my analysis posed by the Supreme Court of Canada’s 2009 decision in Hutterian Brethren of Wilson Colony.

21) Carla Marchese and G. B. Ramello (University of Eastern Piedmont - A. Avogadro - Department of Public Policy and Public Choice), In the Beginning Was the Word - Now is the Copyright. The abstract states:

Since 2005 all Roman Pope’s teaching is copyrighted. As the tenet of the Catholic Church is that of spreading the faith and teaching all the people, this seems at odds with any restriction of access. The Catholic Church, however, does not represent an exception, since the copyright is applied also in other religions. In this paper a simple model is presented in order to assess the possibility of rationalizing the exercise of the copyright by a religious organization. The analysis provides also more general indications about the working of the copyright, which seems to function more alike the right of drawing a tax than the right of setting a monopoly price, as currently thought.

22) David Hulme (University of Manchester - Institute for Development Policy and Management), Reproductive Health and the Millennium Development Goals: Politics, Ethics, Evidence and an ‘Unholy Alliance’ . The abstract states:

This paper provides a chronological account of the evolution of the concept and policy of reproductive health and its initial entry, and subsequent exclusion, from UN declarations. In the 1990s effective lobbying by sexual and reproductive rights activists established reproductive health for all as a UN goal. However, at the Millennium Assembly of 2000 and in the Millennium Development Goals (MDGs), an ‘unholy alliance’ of the Holy See and a handful of conservative Muslim governments managed to keep reproductive health off the agenda. This was successful political manoeuvring for the short-term, but the alliance fell apart and the power of the theoretical and empirical case in support of reproductive health saw it return to the MDGs in 2005. The moral standing of religious institutions, such as the Holy See, is undermined by such opportunistic, short-term political behaviour and, in particular, the ambiguous legal status of the Holy See at the UN is called into question.

23) Elizabeth Rose Schiltz (University of St. Thomas School of Law -Minnesota), The Paradox of the Global and the Local in the Financial Crisis of 2008: Applying the Lessons of Caritas in Veritate to the Regulation of Consumer Credit in the United States and the European Union, 26 Journal of Law and Religion --- (2010). The abstract states:

In his recent encyclical Caritas in Veritate, Pope Benedict XVI grapples with one of the most vexing paradoxes of the current global economic crisis: that a systemic global financial crisis was rooted in uniquely local transactions: loans to individual consumers tied to unique, unmovable parcels of residential real estate. This paradox raises some tricky questions about the “architecture” of the regulatory response to the crisis. Does the scope of the problem demand the efficiencies of broad-brush uniform regulation, or does the origin of the problem require more differentiated local responses?

In one sense, the question of whether a global or a local response is most appropriate is largely academic, since there is no global authority with the power to implement any response. But on a smaller scale, this question is the subject of active debate in two significant political arenas – the U.S. and the E.U. In the U.S., the battle over whether consumer credit should be regulated on the local (state) level or on the federal level has been raging in banking circles and federal courts for years. Proposals to tinker with the balance of federal and state authority over consumer credit laws are part of every version of financial reform legislation currently under consideration in Congress. This same question is also being raised in the E.U., which is currently considering a European directive on consumer rights that would diminish the authority of national governments to regulate consumer credit locally, while increasing the authority of the E.U. to impose uniform standards across member states.

In Caritas, Pope Benedict portrays the current global economic crisis as a crisis of world development. He argues that the globalization of the world economy leading to the current crisis has exposed inadequacies in our views of the authority of existing political structures and the authority of the market. Our conception of the state as an institution capable of fostering human development is flawed because the authority of states ends at their borders, while markets cross borders. Our conception of the market as an institution capable of fostering human development is flawed because it does not incorporate the essential insights of the principle of gratuitousness – the internalization of solidarity and mutual trust necessary for the human subjects of market transactions to be recognized as members of the same human community. Our current views of the structures of political and economic authority are flawed because they are rigidly, but unrealistically, dualistic. They fail to acknowledge the multiplicity of values at stake in the various spheres of human activity. Benedict thus concludes that both political and economic authority has to be articulated. There will be different levels at which governmental and market forces can most effectively act to protect the different values at stake.

This article first describes how the tension between a local or a nonlocal approach plays out in the debates about the appropriate regulatory scheme for consumer credit in the U.S. and the E.U. In both jurisdictions, the primary motivation for the increasingly predominant uniform, nonlocal approach has been economic efficiency. Next, the article explores Pope Benedict’s arguments in Caritas for why only an articulated response to the root causes of the global economic crisis protects the multiplicity of values required to achieve an authentically humane global economy. Finally, it applies Pope Benedict’s general framework to the debates in the U.S. and the E.U. It concludes that, while this framework does not reject entirely the value of economic efficiency that supports some uniform nonlocal regulation, it also counsels for the preservation of the possibility of some differentiated, inefficient, local regulation of consumer credit. The most effective regulatory responses to the current crisis, therefore, will be those that support an ongoing dynamic balancing of the competing claims of local and nonlocal interests.

24) Lesław Michnowski (Polish Academy of Sciences), A Cybernetic Approach to Sacrum – Profanum, 5 Problems of Sustainable Development 109 (2010). The abstract states:

A new approach to religion institutions is proposed. To adopt world society to era of highly developed science and technology we ought to put away social-Darwinistic social relations and organize humans/world society on three – by John Paul II proposed – universal values: common good/common interest, solidarity and subsidiarity. For life in such State of Change and Risk we have to activate big intellectual – cognitive and innovative – currently in most cases, passive creative potential and allow access to knowledge used up to-date usually for egoistic – business and/or political – purposes. For this end we have to change work force position from “tools like” into creative one. We have also to build world information system that especially will allow to get knowledge about future complex effects of human activity.

Civilization of Life and Love, proposed by John Paul II, should be treated as draft of proper long-term socio-economy transformation that allow to adapt world society to life supported by high science and technology. To avoid global catastrophe and achieve sustainable development of the world society, it would be convenient to include strong religion institutions – for example in Poland, Catholic Church – into social homeostats that con-trol proper process of defense and development of local and global societies. Social teaching of John Paul II should be treated – as soon as possible – as important input into Polish, European and global sustainable development strategy building.

25) Li-Ann Thio (National University of Singapore - Faculty of Law), Between Eden and Armageddon: Navigating ‘Religion’ And ‘Politics’ in Singapore, Singapore Journal of Legal Studies, pp. 365-405, December 2009. The abstract states:

Typically, inter-religious conflict posed the main threat to racial and religious harmony in Singapore. In 2009, ‘soft constitutional law’ norms ordering the distinct but overlapping spheres of ‘religion’ and 'politics' were extended to a newly emergent public order threat to social harmony. This arises where groups advocating religiously informed values clash with groups advocating liberalhumanistic values to shape legal policy. The ‘AWARE controversy’ exemplified such ‘culture wars’. A non-government organisation leadership tussle became a public order threat when non-religious parties invoked the spectre of religious activism to agitate other religious and secular groups; this episode received presidential and ministerial attention in major policy speeches, reiterating the rules of engagement between religion and politics in a secular democracy. These informal norms are analysed to ascertain the legitimate role of religion in the public sphere as exercises of religious liberty, and what constitutes a religious ‘threat’ to public order within the constitutional framework.

26) Rupal M. Doshi, Note - Nonincorporation of the Establishment Clause: Satisfying the Demands of Equality, Pluralism, and Originalism, 98 Geo. L. J. 459 (2010).

27) Laura K. Klein, Note - Rights Clash: How Conflicts Between Gay Rights and Religious Freedoms Challenge the Legal System, 98 Geo. L. J. 505 (2010)

JFB

Stanley Fish:Citizens United Opinions Reflect Limited Argument Repertoire Available Within Current First Amendment Jurisprudence

In the New York Times, Stanley Fish examines the language and argumentation used by Justice Kennedy, writing for the majority in Citizens United, and by Justice Stevens, writing in dissent. Professor Fish identifies “chill” to be the word most important to Kennedy’s presentation of what Fish characterizes the “principled” approach to First Amendment analysis.  Labeling the Stevens opinion a presentation of consequentialist argument, Fish finds that the word “corrupt” presents the core of the dissent.  Fish writes:  

The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords. You could build an entire course around it. And that is why even though I agree with much of what Stevens says (I’m a consequentialist myself) and dislike the decision as a citizen, as a teacher of First Amendment law I absolutely love it.

JFB

Understanding "Don't Ask, Don't Tell" as a Free Speech Violation

As reported in today’s New York Times, tomorrow the Senate Armed Services Committee will hear the testimony of Secretary of Defense Robert Gates and  Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, on whether Congress should repeal the military’s “Don’t Ask, Don’t Tell” (DADT) policy. Although the DADT policy has been challenged on substantive due process and Equal Protection grounds, the policy also merits scrutiny as a First Amendment violation.  In Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), Judge Patti Saris dissented from the portion of  the panel’s ruling rejecting the appellants’ First Amendment challenge to DADT.  Judge Saris’s throughtful opinion drew on the analysis of DADT as a restriction of freedom of speech presented in an excellent amicus brief filed by law professors Akhil Reed Amar, C, Edwin Baker, Erwin Chemerinsky, Owen M. Fiss, Pamela S. Karlan, Andrew Koppelman, Kathleen M. Sullivan, Laurence H. Tribe, and Tobias Barrington Wolff, avialble at 2006 WL 4015626.

JFB
  

Will Citizens United Ruling Create the Momentum to End Judicial Elections?

On Law.com, Tony Mauro spotlights what is being hailed by some as a silver lining to the Citizens United decision, the possibility that the ruling will draw attention to how an avalanche of corporate campaign contributions to the state campaigns of judicial candidates could cast elected judges’ ability to rule impartially into question and mobilize advocates for merit selection of judges in the states.  Justice Stevens’ Citizens United dissent raised the alarm about how the ruling could affect state judicial election campaigns and undermine public confidence in elected state judges, noting the Court’s recognition of a constitutional mandate for judicial recusal in Caperton v. A.T. Massey Coal Co., Inc. as a consequence of an appearance of impropriety stemming from a victorious litigant’s campaign contributions. Previously, Justice O’Connor, concurring in Republican Party of Minnesota v. White, had observed that the problem that needed to addressed for those concerned about how judicial candidates’ campaign statements could undermine faith in their judicial objectivity was not how to craft rules regulating what such candidates could say, a task fraught with obvious First Amendment difficulties, but how to move away from the election of judges in state court systems.

JFB