First Amendment Scholarship Update

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

1) Margaret F. Brinig (Notre Dame Law School), Religion, Race and Motherhood. The abstract states:

Some mothers seem to rely on formal legal relationships to help their children to thrive despite socioeconomic difficulties. Some, and particularly African-Americans, seem to be able to function well as mothers without the community support provided by marriage and adoption. This paper will examine the effect of legal structure, religiosity, income and parenting styles for various groups of American children, identified by ethnic group and four religious traditions: Baptist, Catholic, Jewish and Muslim.

2) A. R. M. Imtiyaz (Temple University), Politicization of Buddhism and Electoral Politics in Sri Lanka, in Ali Riaz, ed., RELIGION AND POLITICS IN SOUTH ASIA (Routledge, 2010). The abstract states:

This study examines the interaction between religion and politics in Sri Lanka. Existing scholarly studies on Sri Lanka’s ethnic conflict largely address the ethnic dimension of the conflict. Indeed, in the understanding of Sri Lanka’s 25-year civil war, which has left 70,000 dead and displaced nearly a half-million people at its height generally, religion is rarely identified as having any role. But there is a point on the other side – what this study identifies as the religious factor.

In Sri Lanka, political elites and politicians often employ emotional symbols such as religion to win and consolidate their political position. This is a common political phenomenon among the Sinhalese (74% of population in 1981) and the mainly Hindu Tamils (12.6% of population in 1981) as well as the Muslims (over 7 % of the population). However, this study is confined to analyzing the behavior (vis-à-vis the use of religion) of Sinhala politicians and their political parties in their quest for political power.

The first section of the chapter would deal with the background of Sri Lanka’s religious politics to help readers understand the complex interactions between religion and politics. The theoretical section of the chapter would employ theories of symbolic politics to understand how symbols are powerful in electoral politics. The final and key section of the chapter would be dedicated to analyzing Sri Lanka in the context of the use of religion in symbolic politics. This section would examine how the politicization of Buddhism helped Sinhala political elites and leaders in their quest for power, reinforcing religious and ethnic tensions. This paper would finally suggest some solution to de-religionize the state structure to help Sri Lanka enjoy the fruits of modernization and democracy.

3) Yossi Nehushtan (Université Paul Cézanne - Aix-Marseille III, College of Management, Law School), Female Segregation for Religious Justifications: The Unfortunate Israeli Case, 4  Droit et Religions 441 (2009-2010). The abstract states:

This paper discusses two cases of segregation between men and women in Israel. In both cases, the segregation was based on religious justifications and in both cases the Israeli High Court of Justice (HCJ) either enforced the segregation (the ‘Women of the Wall’ case) or expressed a principled willingness to do so in the future, subject to certain formal conditions (the ‘segregation in buses’ case).

It is argued that in both cases the HCJ’s decisions were misguided and that in both cases the HCJ gave priority to intolerant religious values over liberal, democratic ones. The purpose of this paper is not to discuss the practice of segregation as such, nor is it to discuss in full the rationales and practice of segregating between men and women for religious considerations. Rather, the purpose here is to describe two specific cases of religious segregation between men and women in Israel and to examine a few of the questions and difficulties which these cases give rise to. Naturally, most of these questions and difficulties are closely related to principled views and issues about the interaction between religion, human rights, and the democratic state. Consequently, the discussion bellow – while confined to the Israeli context – is grounded in principled arguments and based on theoretical frameworks highly relevant to any democratic state that struggles to address the interaction, and at times the conflict, between religion and human rights.

4) Bradley J. Ruffle (Ben-Gurion University of the Negev - Department of Economics) and and Richard H. Sosis (University of Connecticut - Department of Anthropology), Do Religious Contexts Elicit More Trust and Altruism? An Experiment on Facebook.  The abstract states:

We design a decision-making scenario experiment on Facebook to measure subjects’ altruism and trust toward attendees of a religious service, a fitness class and a local music performance. Secular and religious subjects alike display significantly more altruism and trust toward the synagogue attendees than participants at the other two venues. By all measures of religiosity, even the most secular subjects behave more prosocially in the religious venue than in the comparable non-religious settings. We also find that secular subjects are just as altruistic toward synagogue and prayer group members as religious subjects are. These findings support recent theories that emphasize the pivotal role of religious context in arousing high levels of prosociality among those who are religious. Finally, our results offer startlingly little evidence for the widely documented religious-secular divide in Israel.

5) Kenneth Winston and Mary Jo Bane (Harvard University - John F. Kennedy School of Government), Reflections on the Jesuit Mission to China.  The abstract states:

With the explosive growth of transnational dealings, professionals in developed countries have expanding opportunities to spread their particular ways of doing things around the world. However, missionary work, whether religious or secular, raises difficult questions about ends and means. What warrant do missionaries have for inducing others to act and believe as they do? What devices are permissible in the effort to bring about change in a host population? This working paper addresses some of these questions by reflecting on the Jesuit mission to China in the 17th century. The Jesuit mission was the first instance in the modern period of sustained missionary work by westerners in China, and it remains of enduring significance. By focusing on the “ethics of missionary work” in the Jesuit case, we draw some conclusions for 21st century would-be missionaries.

6) Deborah Cantrell (University of Colorado Law School), Inviting the Bell: A Preliminary Exploration of Buddhist Lawyers in the United States.  The abstract states:

What does it mean to say that one is a “Buddhist lawyer” in the United States? This project explores that question through the narratives of fifteen lawyers who practice law in diverse legal settings across America. The project presents a unique opportunity to investigate and consider how one group of lawyers have cultivated a practice of law that pushes against the dominate notion that American lawyers are hired guns committed to an unrelenting adversarial process. The project importantly advances scholarship about the legal profession by offering rich and nuanced descriptive data about a set of lawyers generally not considered by the existing literature.

7) Alice Ristroph (Seton Hall University - School of Law) and Melissa E. Murray (University of California, Berkeley - School of Law), Disestablishing the Family, forthcoming in Yale Law Journal.  The abstract states:

This Essay explores what it would mean to disestablish the family. It examines a particular theory of religious disestablishment, one that emphasizes institutional pluralism and the importance of competing sources of authority, and argues that this model of church-state relationships has much to teach us about family-state relationships. Though substantial rights to what might be called "free exercise of the family" have been recognized in American constitutional doctrine, at present there is no parallel principle of familial disestablishment. The state is free to regulate families qua families, and to encourage or discourage certain kinds of familial relationships. This Essay suggests reasons to rethink these existing familial establishments. Disestablishment is a risky and unpredictable enterprise, but its risks may be the risks inherent in liberty.

8) Uladzislau Belavusau (European University Institute - Florence, Italy), Judicial Epistemology of Free Speech Through Ancient Lenses, 23 International Journal for the Semiotics of Law (Revue Intenationale de Sémiotique Juridique --- (2010). The abstract states: 

The article is the author’s endeavor to reconstruct the semiotic conflict in the transatlantic legal appraisal of hate speech (between the USA and Europe) through Ancient Greek concepts of παρρησία (parrhēsia) and ισηγορία (isēgoria). The US Supreme Court case law on the First Amendment to American Constitution is, therefore, counter-balanced vis-à-vis la jurisprudence de Strasbourg on Article 10 of the European Convention of Human Rights. The author suggests that an adequate comprehension of the contemporary constitutional concepts of the right to free speech in Western democracies is deceptive without a thorough analysis of its genealogy in the Ancient rhetorical cradleThe article is the author’s endeavor to reconstruct the semiotic conflict in the transatlantic legal appraisal of hate speech (between the USA and Europe) through Ancient Greek concepts of παρρησία (parrhēsia) and ισηγορία (isēgoria). The US Supreme Court case law on the First Amendment to American Constitution is, therefore, counter-balanced vis-à-vis la jurisprudence de Strasbourg on Article 10 of the European Convention of Human Rights. The author suggests that an adequate comprehension of the contemporary constitutional concepts of the right to free speech in Western democracies is deceptive without a thorough analysis of its genealogy in the Ancient rhetorical cradle.

9) Renee Newman Knake (Michigan State University College of Law), Contemplating Free Speech and Congressional Efforts to Constrain Legal Advice, forthcoming in Rutgers Law Record. The abstract states:

This essay addresses an important intersection between attorney regulation and free speech that has received little attention by the legal academy - the question of whether the First Amendment protects the professional speech of lawyers when they give advice. Two cases heard by the United States Supreme Court during the 2009-10 term raised this very issue. Both cases tested Congress’s efforts to constrain the advice lawyers may provide to clients and the public. In Milavetz, Gallop & Milavetz, P.A., et al. v. United States, lawyers and their clients challenged a bankruptcy regulation that bans lawyers from offering advice about the accumulation of additional debt in contemplation of filing for bankruptcy. In Holder v. Humanitarian Law Project, a retired administrative law judge and others argued that a federal anti-terrorism statute unconstitutionally prohibits the offering of legal expertise and advocacy for nonviolent and lawful peacemaking activities. This essay presents an overview of the cases and contends that they serve as a wake-up call for scholars and practitioners alike to focus on the consequences of federal legislative interference in the attorney-client relationship and the free speech rights of attorneys and their clients.

10) Deana Pollard-Sacks (Texas Southern University - Thurgood Marshall School of Law), Speech Torts. The abstract states: 

Tort liability for speech raises important concerns about federalism, self-government, and autonomy. The Supreme Court has resolved the free speech-tort law conflict in a number of cases by balancing the nature of the speech subject to tort liability against the nature of the state'’s interest in imposing tort liability, then "constitutionalizing" the tort to meet First Amendment demands by raising the burden of proof to establish a prima facie case. The Supreme Court has repeatedly denied review of tort liability for speech based on a theory of negligence, and most lower courts have adopted a categorical approach to immunize violent and other allegedly negligent speech from tort liability unless it falls within a category of unprotected speech, instead of balancing the competing interests in accordance with Supreme Court precedent. The lower courts' rules are internally inconsistent and can be socially counterproductive, which has led to a number of results-oriented exceptions that are unrelated logically or doctrinally. Speech Torts reviews nearly a century of decisional law concerning tort liability for speech and concludes that the lower courts' prevailing immunity rules for negligent speech should be replaced by a balancing test to determine the proper level of constitutional scrutiny of laws imposing liability for negligent speech. Speech Torts concludes with suggested prima facie cases of "constitutionalized negligence" to meet strict, intermediate, and relaxed review of negligent speech tort liability.

11) Paul M. Secunda (Marquette University - Law School), The Story of Pickering v. Bd. of Education: Unconstitutional Conditions and Public Employment, in Richard W. Garnett & Andrew Koppelman, eds., FIRST AMENDMENT LAW STORIES (2010). The abstract states:

The story of Pickering v. Bd. of Education, a foundational case in public employment law, prominently foreshadows more generally the coming prominence of the doctrine of unconstitutional conditions in constitutional law. Under that doctrine, the Supreme Court limits a government actor, like a government employer, from being able to condition governmental benefits, like public employment, on the basis of individuals forfeiting their constitutional rights. It would thus seem to follow that a public employee should not have to sacrifice constitutionally-protected rights in order to enjoy the benefits and privileges of public employment. Yet, today, that is far from the actual case.

So why have First Amendment public employee speech rights, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, suddenly diminished in recent years? I want to suggest in this contribution to First Amendment Law Stories that a certain jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Under the subsidy school of thought, in contexts as different as abortion funding to the provision of tax exemptions, the unconstitutional conditions doctrine has become largely toothless, as government actors can simply compel a given result by saying they are doing nothing but subsidizing (or not subsidizing) a right a citizen or public employee already has under the Constitution.

In order to more concretely illustrate the genesis of the unconstitutional conditions doctrine, and its recent distortions, this Chapter returns to an in-depth exploration of the case that started it all: Pickering v. Bd. of Education. Although the Court decided this case in Marvin Pickering’s favor, the resulting framework has, over the years, been interpreted by the Supreme Court in a manner that significantly limits public employee free speech rights.

12) Elad Peled (University of Haifa),Should States Have a Legal Right to Reputation? Applying the Rationales of Defamation Law to the International Arena, 35 Brooklyn Journal of International Law 107 (2010). The abstract states:

In the era of globalization and of information technology, the conduct of states is the subject of numerous reports published routinely throughout the world by various sources, primarily the mass media and non-governmental organizations. Those reports shape the reputations of states in the eyes of individuals, publics, organizations, and governments. While most reporting may be presumed accurate, disinformation inevitably finds its way into the international public domain and does injustice to the states concerned. Nevertheless, states normally do not enjoy a legal, actionable right of reputation, nor is the option of endowing them with such a right seriously considered in the political and academic international debates. Against this background, my Article seeks to conceptualize states' interest in their reputation as a legal right.

As general principles of law recognized by national legal systems constitute a source of inspiration for international law, the Article draws an analogy from domestic laws of defamation, which are prevalent worldwide, and calls for establishing a parallel normative framework in international law. Based on insights drawn from the areas of political science, international relations, sociology, and communications studies, the Article contends that the principal rationales of defamation law, which typically concern natural persons and private legal entities, are relevant to states as well. As it explains, given the prominence of mass media reporting and of the public opinion in today's international arena, false defamatory statements harm substantial interests of states, especially the weaker ones. This is so particularly when states are accused of violating international law. The harm suffered by states also generates side-effects that are often felt by their individual nationals. Furthermore, defamatory falsehoods are harmful from the perspective of the international community as a whole, especially in light of the crucial and complex role played by information in contemporary life. Thus, such publications reduce states' incentive to comply with international law, and render the global decision-making processes less informed and consequently less efficient. Arguably, they also undermine the individual right of the citizens of the world to be properly informed and to take a meaningful part in global governance.

Taking into account the needs of states, practical constraints, and considerations pertaining to the freedom of speech, the Article concludes by portraying basic parameters for designing an international law of libel.

13) Indira M. Carr (University of Surrey) and David Lewis, Combating Corruption Through Employment Law and Whistleblower Protection, 39 Industrial Law Journal 52 (2010).The abstract states:

This article examines the extent to which employment law has the potential to fight corruption by imposing rights and duties on employers and workers and analyses the extent to which the UN Convention on Corruption 2003 (UNCAC) protects those who speak out about malpractices within an organisation. Section 2 focuses on UNCAC while Section 3 focuses on the extent to which employment law imposes obligations on those within the workplace to report corrupt activities and the circumstances in which those who speak out about corruption are protected under UK employment law. It is argued that because of the inadequacies of the existing legislation and the threat posed by disclosures via the Internet, organisations have much to gain from devising effective policies on both internal and external reporting that do not inhibit the exposure of corruption or unnecessarily curtail freedom of speech. The authors conclude by welcoming the draft recommendations from the Council of Europe's Parliamentary Assembly to draw up a set of guidelines for the protection of whistleblowers and consider drafting a framework convention.

JFB