First Amendment Law Prof Blog

First Amendment Scholarship Update

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

1) Steven Douglas Smith (University of San Diego School of Law), Why is Government Speech Problematic? The Unnecessary Problem, the Unnoticed Problem, and the Big Problem, forthcoming in Denver University Law Review. The abstract states:

This article, prepared for a conference on government speech, does not prescribe solutions for the various constitutional problems posed by government speech, but rather attempts in a more diagnostic way to figure out why the issue has come to seem so problematic. The article suggests that some of the difficulties derive from unrealistic and unnecessary commitments to governmental neutrality. Other difficulties reflect a less appreciated problem - what I call the problem of “institutional capture.” Most fundamentally, however, controversies about speech are merely reflections of deeper disagreements about the nature and functions of government. It it seems unlikely, therefore, that we will be able to find satisfactory solutions by focusing on controversies on the level of speech: that is because, ultimately, it is not speech that is the problem, but rather government.

2) Abner S. Greene (Fordham University - School of Law), (Mis) Attribution, forthcoming in Denver University Law Review. The abstract states:

In this essay, I evaluate three issues of attribution and mis-attribution that arise in the so-called area of “government speech.” First, I explore when an individual might have a constitutional claim for mis-attribution by the state. Second, I discuss the citizen’s interest in proper attribution by the government when it is speaking. Third, I consider the government’s interest in avoiding expression being improperly attributed to it. This concern arises less often than is commonly assumed; what many scholars (and governments) claim to be a state interest in avoiding attribution or endorsement is in fact a state interest in not providing a platform for certain types of private speech. As such, the matter cannot be resolved according to the categories of “public forum” or “government speech,” and instead we must decide how much content-based decision-making is appropriate for the state when creating speech opportunities that fall into neither of these more doctrinally understandable forms.

3) Stephen McIntyre (Duke University School of Law), Trying to Agree on Three Articles of Law: The Idea/Expression Dichotomy in Chinese Copyright Law , forthcoming in Cybaris™, An Intellectual Property Law Review (2010). The abstract states:

The idea/expression dichotomy, which holds that copyright protection extends only to expression, but not to ideas, is internationally recognized as a basic principle of copyright law. Yet despite the doctrine’s fundamental importance, China has not codified it in its general copyright statute. This legislative failure threatens to undermine the public-oriented goals of copyright and presents a dilemma to Chinese courts, which are not authorized to make or develop doctrine through recognition of judicial precedent.

This Article provides the first in-depth study in English of the idea/expression dichotomy in Chinese copyright law. It demonstrates that, even though the doctrine is not codified, it is widely acknowledged among Chinese academics and regularly applied in Chinese courts. The doctrine has faced linguistic, cultural, and conceptual challenges in China, and early court decisions left much to be desired. Nonetheless, an analysis of recent judicial opinions reveals that modern courts understand the idea/expression dichotomy and apply it in a reasonably coherent and defensible manner. Their exposition of the doctrine is largely, although not entirely, consistent with its underlying purpose of promoting free speech and safeguarding the public domain.

The courts’ relative success in filling this statutory hole suggests that Chinese judges play an underappreciated, but crucial, lawmaking function. This finding in turn raises intriguing questions as to the authority and function of China’s judicial system generally.

4) Patrick M. Garry (University of South Dakota - School of Law), Raising the Question of Whether Out-of-State Political Contributions May Affect a Small State’s Political Autonomy: A Case Study of the South Dakota Voter Referendum on Abortion , 55 South Dakota Law Review --- (2010). The abstract states:

The federalism structure inherent in the American political system presumes not only that states occupy a separate level of authority from that of the federal government, but also that each state retains its own independence and autonomy from every other state. Each state, for instance, must be free to enact and enforce its own set of laws. This ability, however, may be jeopardized by current patterns of political fundraising and campaign expenditures. This article examines how a state holding a voter referendum on a particular issue of national importance may be significantly affected by out-of-state interests - particularly if those out-of-state interests contribute a substantial majority of the political campaign expenditures relating to that issue. Sparsely populated states such as South Dakota are particularly vulnerable to influxes of out-of-state campaign money. Although the First Amendment may preclude any regulations in this respect, the effects of out-of-state political fundraising and campaign expenditures could be such so as to jeopardize a small state’s electoral autonomy.

5) Jennifer A. Chandler (University of Ottawa - Faculty of Law - Common Law Section), Technological Self-Help and Equality in Cyberspace, 55 McGill Law Journal --- ( 2010). The abstract states:

New technologies challenge the law in many ways, including by extending a person’s capacity both to harm others and to defend him or herself against harm from others. These changes require the law to decide whether we have legal rights to be free of those harms, and whether we may react against those harms extra-judicially through some form of self-help (e.g. self-defense or defense of third parties) or whether we must resort to legal mechanisms only. These questions have been challenging to answer in the cyberspace context, where new interests and new harms have emerged.

The legal limits on permissible self-defense have historically been a function of necessity and proportionality to the threat. However, this article argues that the case law and historical commentary show that equality between individuals is an important policy issue that underlies the limits on self-defense. The use of technologies in self-defense brings the question of equality to the fore since technologies may sometimes neutralize an inequality in strength between an attacker and a defender. A legal approach that would limit resort to technological tools in self-defense would ratify and preserve that inequality.

However, the relationship between technology and human equality is complex, and this article proposes an analytical structure for understanding it. The objective is to understand which technologies promote equality while imposing the least social costs when used in self-defense.

The article proposes principles (including explicit consideration of the effects on equality) for setting limits on technological self-help, and illustrates their use by applying them to several forms of cyberspace counter-strikes against hackers, phishers, spammers and peer-to-peer networks.

6) Nathan Murphy (University of Connecticut), Context, Not Content: Medium-Based Press Clause Restrictions on Government Speech in the Internet Age, 7 University of Denver Sports & Entertainment Law Journal 26 (2009). The abstract states:

By all accounts, the Obama campaign was remarkably successful at harnessing internet resources like YouTube, Facebook and Twitter to secure a convincing electoral victory last November. And President Obama has made it clear that he will continue to use the internet to bypass traditional media outlets and take his message directly to the public. Many commentators have applauded this renewed commitment to transparency as a welcome change, but others have voiced concerns about the government’s version of events becoming the dominant narrative.

These mixed reactions are symptomatic of the confused state of the law, and of legal scholarship, on the issue of government communication. On one hand, communicating with the public is an essential function of government. But government speech that becomes too dominant can begin to resemble unconstitutional propaganda. Government expression thus presents two interpretational challenges. First, drawing a line between persuasion and propaganda can be difficult. Second, even if a particular form of government speech seems impermissible, articulating a constitutional reason for prohibiting it is not obvious. The new technologies of the “information age” have put these problems into particular relief.

This paper proposes an answer to both of these questions. First, the Constitution established the press as a check on government, so when government speech interferes with the press’s checking function, that speech is unconstitutional. The Supreme Court’s recent decision in Pleasant Grove City, Utah, v. Summum apparently exempts government speech from First Amendment analysis altogether. However, this paper - the first to examine Summum’s Press Clause implications - explains why future courts may be willing to consider Press Clause limitations to the new expansive Summum liberties when government expression impedes the checking function.

But even those writers who believe that the Press Clause places limits on government speech have not been able to clearly articulate when those limitations should come into effect. This paper contends for the first time that Press Clause restrictions should not be based on the content expressed, but on the physical medium used. The advent of the internet is eroding the power of the traditional media, while simultaneously consolidating the government’s power as a speaker. Moreover, the online news sources that are supplanting traditional media outlets are too fragmented to provide a coherent check on the government’s version of events. The internet is thus the first mass communication medium whose use by the government raises substantial constitutional concerns.

Our current administration is not engaged in impermissible government speech. However, the day may come when it crosses the line. Accordingly, courts faced with Press Clause challenges to government speech should distinguish Summum and consider limiting that speech, especially if is communicated via the internet.

7) Monique B. Lampke,Why the Fair Use Defense of Free Speech or Parody Under the Anticybersquatting Consumer Protection Act Needs Judicial Review by the United States Supreme Court. The abstract states:

This Article suggests the time is ripe for the United States Supreme Court to interpret the fair use defense of free speech or parody under the Anticybersquatting Consumer Protection Act (“ACPA”). The ACPA was enacted in 1999 to protect consumers from “cybersquatting,” or when a non-trademark holder registers a domain name of a trademark and attempts to: (1) sell the name either to the holder for a ransom or to the highest bidder; or (2) divert or confuse consumers. Although published decisions from the circuit courts interpreting the ACPA continue to explore the marriage of trademark protection with the First Amendment’s protections of domain names and websites as free speech, a conflicting criteria has emerged regarding when an alleged cybersquatter can successfully assert the fair use defense. For example, the Tenth Circuit’s standard is that it must be immediately apparent to anyone visiting a parodic website that it was not the trademark owner’s website. However, the Fourth Circuit’s criteria is whether the domain name at issue conveys two simultaneous, yet contradictory, messages: that it is the original and that it is not the original and is instead a parody. Such inconsistent criteria has the potential to render an alleged cybersquatter victorious in one circuit, yet liable in another circuit.

This Article’s circuit-by-circuit analysis exposes the vast inconsistencies between the circuit courts’ decisions and argues that the United States Supreme Court should, by granting a petition for a writ of certiorari, articulate the standard for the ACPA’s fair use defense based upon free speech or parody.

8) Kalyani Ramnath, Rumour Has It: Silence, Violence and Too Much Speech . The abstract states:

The objective of this paper is to investigate rumour as a medium for the violence of the state and its role in fashioning the ‘event’, the ‘everyday’ and the legends that are enmeshed in the two. This paper draws upon existing work treating the language of rumour as ‘a perlocutionary force’ that ties seemingly disparate events together. Nevertheless it cannot be tethered to one author, which may make it a site for contestations (Veena Das, 2007). In this region of doubt and anonymity, does the state lurk?

Perhaps the state resides in these 'unfinished stories' of violence and the law, told by people who are 'translators'. These translations give and take away from the form that the event assumes at any point, given that people speak from different and multiple positions. The attempt is perhaps to piece together fragments, convey their pain / suffering. The state is both implicated and vindicated in this process of translation, in these words without an author and in this language whose meaning is uncertain.

The paper uses people’s tellings of such events as a starting point, using the example of a spate of attack on places of worship in Karnataka, India in 2008-2009. How does the subject, living in the 'site of devastation', engage with the uncertainty of the rumour? What does this imply for democratic practice, if a culture of incompleteness is to be the ‘norm’?

9) Philip Cook (University of Leicester)and Conrad Heilmann (London School of Economics), Two Types of Self-Censorship: Public and Private. The abstract states:

We propose and defend a distinction between two types of self-censorship: public and private. In public self-censorship, individuals restrain their expressive attitudes in response to public censors. In private self-censorship, individuals do so in the absence of public censorship. We argue for this distinction by introducing a general model which allows us to identify, describe, and compare a wide range of censorship regimes. The model explicates the interaction between censors and censees and yields the distinction between two types of self-censorship. In public self-censorship, the censee aligns her expression of attitudes according to the public censor. In private self-censorship, the roles of censor and censee are fulfilled by the same agent. The distinction has repercussions for normative analysis: principles of free speech can only be invoked in cases of public self-censorship.

10) Joseph P. Bauer (Notre Dame Law School), Copyright and the First Amendment: Comrades, Combatants or Uneasy Allies? , forthcoming in Washington and Lee Law Review. The abstract states:

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform and perform that work for a extended period of time. The First Amendment, on the other hand, proclaims that Congress “shall make no law ... abridging the freedom of speech or of the press,” thus at least nominally indicating that limitations on the reproduction and distribution of works – including the works of others – are forbidden.

Courts, including the U.S. Supreme Court in Eldred v. Ashcroft, have stated that these two regimes can be reconciled in large part by some mechanisms internal to the copyright system, and in particular the fair use doctrine and the denial of copyright protection to facts and ideas. Yet, the rejection of these two defenses in a number of prominent copyright infringement actions, and the resulting unavailability of unconstrained access to important materials, illustrates that, on occasion, broader application of First Amendment protection is necessary.

This Essay first explores the history, goals and values of these two regimes. It concludes that not only has First Amendment protection been denied in important cases; this denial has likely had a chilling effect in many other instances, in which socially valuable uses of copyrighted materials have been voluntarily forsaken for fear of litigation. The Essay then offers a test for greater unconstrained access to otherwise protected works. First Amendment interests should prevail when there is a strong public interest in allowing the unauthorized use of protectable expression; when the speaker has a compelling need to use the expression itself, ie, when paraphrasing, describing or summarizing the work is inadequate to meet the speaker’s needs; and when there is no reasonable alternative available to obtain consent to that use.

11) D. Robert MacDougall, Rawls and the Refusal of Medical Treatment to Children, 35 Journal of Medicine and Philosophy 130 (2010).The abstract states:

That Jehovah's Witnesses cannot refuse life-saving blood transfusions on behalf of their children has acquired the status of virtual “consensus” among bioethicists. However strong the consensus may be on this matter, this article explores whether this view can be plausibly defended on liberal principles by examining it in light of one particularly well worked-out liberal political theory, that of Rawls. It concludes that because of the extremely high priority Rawls attributes to “freedom of conscience,” and the implication from the original position that parents must act paternalistically toward their children as their protectors, Jehovah's Witnesses cannot legitimately be barred from making decisions on behalf of their children, even when the consequences of such decisions are serious and irremediable.

12) Stephanie Farrior (Vermont Law School),  Human Rights Advocacy on Gender Issues: Challenges and Opportunities, 1 Journal of Human Rights Practice 83 (2009). The abstract states:

Recent years have seen notable progress on issues of gender and human rights in standard-setting and to some extent application of those standards through international and domestic legislation and jurisprudence, and in institutional programming and development. Some international and regional human rights bodies now go beyond just including ‘women’ in a list of ‘vulnerable’ groups, and have begun to incorporate women's experiences and perspectives into recommendations for structural changes needed to bring about full enjoyment of human rights by women and girls. In addition, recent years have seen the human rights of lesbian, gay, bisexual, transgender, and intersex people being taken up beyond the first human rights bodies that addressed them, and developments have taken place in standard-setting. Despite this progress, many challenges remain. Violence against women continues at a staggering rate. Gender-based discrimination persists in the workplace, housing, education, disaster relief, health care, and countless other areas. Access to justice continues to be hindered by a range of obstacles. Religion, tradition, and culture continue to be used as a shield for violating women's rights. Same-sex conduct is still criminalized in scores of countries, and it carries the death penalty in seven states. The traditional human rights law paradigm, with its focus on the state, may be obsolete in dealing with human rights abuses by such diverse non-state actors as powerful militias and global corporations. This article highlights just a few opportunities and challenges to come for international human rights advocacy on gender issues.

13) Adham A. Hashish (Alexandria University Faculty of Law), Islamic Ijtihad: The Key to Islamic Democracy Bridging and Balancing Political Islam and Intellectual Islam , 9 Richmond Journal of Global Law & Business --- (2010). The abstract states:

Religion is a timeless culture in the Middle East. This article interprets Islam not only as part of the problem of democracy in the Middle East, but rather part of the solution. It proposes a formula of checks and balances that has its origins in Islamic history.

Much has transpired since Muslims were left to govern their own affairs after the death of prophet Mohamed. Muslims' nostalgia is particularly focused on two famous eras in Muslim history, the Rightly Guided Caliphate Era and the Golden Age of Islamic Civilization. The first era is famous for the dominant atmosphere of justice and represents the rise of the first democratic political institution in Muslim history, the historic Caliphate. The second is famous for its advancements in humanities, science, and technology, which represent the rise of advanced academic institutions which include the influential four schools of law (madhhabs) that continue to shape the Islamic legal system today.

This article focuses on the role of Ijtihad in building institutions of Islamic democracy. Rather than addressing the importance of Ijtihad in general or its importance in academia, this article attempts to emphasize Ijtihad's importance as a main tool to empower the intellectual Islam (Intell-Islam) stream to check the political Islam (Polit-Islam) stream and balance it within a framework of Islamic governance.
That helps explaining the dilemma that faces the Arab world right now manifested in the checks and balances between the two wings of Islam, Intellectual Islam, which is ruled by reason, and Political Islam, which is ruled by passion.

Ijtihad represents the untold story behind the big picture of any proposal for Islamic democracy. Both Polit-Islam, through its main tool Jihad, and Intell-Islam, through its main tool Ijtihad, represent [*64] the heart and mind of Islamic democracy. Polls show only the strength of the Polit-Islam stream through measuring civil society's passion in the short term. However, it is the Intell-Islam stream that shapes civil society's culture in the long term, through its structuring of Ijtihad institutions.

The argument will be addressed in three parts in this article. Part I focuses on understanding Islam as a culture of pursuing justice. Early development of Islamic law mirrors culture as a phenomenon in which pursuing ideals went side by side with appropriating realities. Ijtihad played the major role in achieving such development. Part II deals with the institutional role that Ijtihad played in the early development of Islamic law. This includes the rise and fall of Ijtihad institutions, which applies to both madhhabs (as organizations) and Usul (as norms). Part III deals with the institutional role that Ijtihad could play in contemporary development of Islamic democracy. Following a model of early Islamic governance, I propose a contemporary model that is based on reviving Ijtihad institutions. These institutions represent an Intell-Islam stream that could balance the dominating Polit-Islam stream in shaping Islamic culture and ultimately Islamic governance.

14) Darren O'Donovan and Siobhan Mullally (University College Cork), The Legal Framework Regulating the Wearing or Display of Religious Symbols in Educational Institutions, The abstract states:

This paper examines the current legal framework in Ireland regulating the display or wearing of religious symbols in educational institutions. The paper was submitted to the Consultation on Intercultural Education, undertaken by the Ministry for Integration 2008-9. Ireland's current legal framework is examined in the light of recent developments in European and International human rights law.

15) Yuksel Sezgin (City University of New York - Department of Government), Beyond Sacred and Secular: Politics of Religion in Israel and Turkey (Book Review) , 63 The Middle East Journal 162 (Winter 2009). The abstract states:

How can one account for the resurgence of religiously-inspired political movements and parties throughout the globe? Or more specifically, how can we explain the rising power of religious parties like Turkey’s Justice and Development Party (JDP) and Israel’s Shas Party in the Middle East? Who are the people running these parties, ex-clergy, ideologues or lay pragmatists? More importantly, who are the supporters of these parties: swing voters recruited through clientelist networks or zealot loyalists?...

16) Dimitris Georgarakos (University of Frankfurt) and Sven Fuerth (Goethe University Frankfurt), Household Repayment Behavior: The Role of Social Capital, Institutional, Political, and Religious Beliefs. The abstract states:

We examine the influence of social capital, beliefs about corruption, public perceptions about the justice system, religiosity, and political views, on household repayment behavior after taking into account household-specific and legal or institutional factors that existing literature has identified as important. We find that households living in regions with more dense beliefs about corruption in the country or in authorities that have an immediate power of execution (police) are more likely to delay or skip scheduled payments. We also show that arrears are more common in regions where more people find it difficult to win a dispute with a bank, political views are more left-wing, and people are less religious. Furthermore, we show that high stocks of social capital induce good repayment behavior, net of the influence of informal borrowing, of beliefs about corruption and the legal environment, of religiosity, of economic growth, and of social stigma considerations related to the observed repayment behavior of other households in the region. This remaining effect can be consistent with the fact that households in high social capital communities have strong ethical considerations and face a higher hazard of loosing their standing in the group and access to the positive externalities of social capital.

17) Paul M. Secunda (Marquette University - Law School), District Court Amicus Brief of Law Professors in Support of Defendants, Associated Oregon Industries v. Avakian, No. 3:09-CV-1494-MO . The abstract states:

Amici curiae law professors filed this brief to urge the United States District Court for the District of Oregon to deny Plaintiffs' summary judgment motion. That motion argues that SB 519, Oregon state legislation that prohibits employers from firing workers who refuse to attend captive audience meetings about the employer's political, religious, or union views, is invalid as preempted by the National Labor Relations Act (NLRA) and inconsistent with the First Amendment of the federal Constitution.

This brief argues that a finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship. Traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption. There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers.

Employers in Oregon are still able to communicate their views about unionization with their employees as Section 8(c) of the NLRA contemplates, but are forbidden from engaging in conduct that forces these same employees to listen to such presentations on pain of losing their jobs or other benefits of employment. The right to speech simply does not include the right to compel someone to listen. Not under the First Amendment and certainly not under statutory law. In short, amici law professors maintain that the Court should find that Oregon had the inherent power to enact SB 519 and such promulgation is consistent with the reach and purposes of the NLRA and with principles of federalism.

18) Aziz Z. Huq (University of Chicago Law School), Modeling Terrorist Radicalization, forthcoming in 
Duke Journal of Law and Social Change. The abstract states:

Recent high-profile terrorism arrests and litigation in New York, Colorado, and Detroit have brought public attention to the question of how the government should respond to the possibility of domestic-origin terrorism linked to al Qaeda. This symposium essay identifies and discussing one emerging approach in the United States and Europe which attends to the process of terrorist “radicalization.” States on both sides of the Atlantic are investing increasingly in developing an epistemology of terrorist violence. The results have implications for how policing resources are allocated, whether privacy rights are respected, and how religious liberty may be exercised. This essay traces the development of state discourses on “radicalization” in the United States and the United Kingdom. It argues that understanding this new “radicalization” discourse entails attention to interactions between nations and between the federal government and states as well as to the political economy of counter-terrorism.

19) Amy Pomerantz Nickerson , Comment- Coercive Discovery and the First Amendment: Towards a Heightened Discoverability Standard,57 UCLA L. Rev. 841 (2010). The abstract states:

This Comment addresses whether the First Amendment restricts a litigant’s or the government’s ability to compel disclosure of information about protected First Amendment activities. In evaluating whether such speech-related information may be subpoenaed, courts have struggled to balance a speaker’s right to anonymous or confidential speech with the evidentiary needs of prosecutors or plaintiffs.
The fractured jurisprudence addressing this issue contains a multitude of discoverability standards that vary dramatically in the level of protection afforded to speakers. In some circumstances, such as where a party subpoenas confidential membership or donor lists, courts have refused to compel disclosure absent a showing of a compelling interest and need for the information. In other situations, for instance subpoenas seeking confidential statements, the requesting party need only demonstrate mere relevance. In still other cases, such as where the discovery request seeks to identify an anonymous blogger or a journalist’s anonymous source, courts balance the competing interests through application of multifactor tests. This Comment suggests that notwithstanding such doctrinal compartmentalization, an important commonality exists between different types of cases involving of compelled disclosures: The risk that coercive discovery techniques, such as subpoenas and search warrants, will chill freedom of expression.
This Comment argues that given the inadequacy of current discovery laws and constitutional criminal procedure standards as a safeguard of free speech interests, the First Amendment should operate as an additional restriction on coercive investigatory powers. It thus makes the case for subjecting coercive discovery requests for information about speech-protected activities to a uniform, heightened discoverability standard. Specifically, it proposes a five-part framework under which courts should analyze whether certain speech-related information can be coercively discovered.

20) David S. Olson (Boston College Law School), First Amendment Based Copyright Misuse. The abstract states:

We are at a crossroads with respect to the under-developed equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or - if judges accept the proposal of this Article – courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control other’s speech.

The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new works by preventing subsequent creators from using copyrighted work to make their own, new speech. Courts have long recognized this inherent tension, and have also recognized that the conflict should sometimes be decided in favor of allowing a subsequent speaker the right to make unauthorized use of others’ copyrighted works. Accordingly, courts created, and Congress codified, the fair use defense to copyright infringement, which allows unauthorized use of copyrighted works under certain circumstances that encourage speech and creation of transformative works. The problem with fair use, however, is that the informational uncertainties and transaction costs of litigating the defense make the fair use right unavailable to many as a practical matter. Subsequent creators are left open to intimidation by copyright holders threatening infringement suits. By decoupling the copyright misuse defense from its basis in antitrust principles and basing it in First Amendment speech principles, the legal protections for fair use shift from theoretical rights to practical rights for many. Copyright misuse has two deterrent features that will allow fair use as a practical right. First, a copyright holder’s misuse of its copyrights against anyone can be used to prove the defense of misuse. Second, once misuse is found, the copyright owner loses its ability to enforce its copyright against everyone, at least until the misuse is cured. Thus, by defining as copyright misuse the unjustified chilling of speech that some copyright holders perpetrate, the misuse defense will encourage important speech rights that are currently under-protected.

21) Ian C. Bartrum(Drake Law School), Commentary, Same-Sex Marriage in the Heartland: The Case for Legislative Minimalism in Crafting Religious Exemptions, 108 Mich. L. Rev. First Impressions 8 (2009). 
 
JFB

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

 

Global Free Speech Update

International:  Article 19 celebrates International Women's Day, March 8, by honoring women who've stood up for freedom of expression, including Lubna Hussein, the Nigerian journalist who was flogged for wearing pants, and Uma Singh (Nepal), Natalia Estemirova (Chechnya), and Maria Esther Aguilar Casimbe (Mexico), all of whom were murdered or "disappeared" in retaliation for their work.   

Finland: national legislation declares internet access a fundamental right for all citizens and guarantees households a 1 MB connection by July 2010, and a 100 MB connection by 2015. 

Iceland:  major legislative overhauls could make Ireland the world's first "journalism haven."  MPs introduced the Icelandic Modern Media Initiative, seeking support for new legislation that would safeguard confidential sources, strengthen whistleblower protection, discourage libel tourism and promote open access.  The reforms would certainly promote transparency and free speech, but are really designed to attract new business to the country in the wake of last year's economic meltdown.   

Turkey:  prosecutors moved ahead with charges against an online newspaper editor who refused to remove a readers' comment that criticized President Abdullah Gul.  If convicted, the editor faces up to 5 years in prison.

Italy:  three Goggle execs were found guilty of invasion of privacy after someone posted YouTube footage of four teenagers bullying a kid with Down's Syndrome.   The ruling effectively holds Google responsible for the 20 hours of video outside users upload to the site every minute.   

-Kathleen Bergin

Mr. Phelps Goes to Washington

The SCT granted cert this week in Snyder v. Phelps, to determine whether a $5 million verdict should be reinstated against members of the Westboro Baptist Church.  Phelps is the Kansas preacher who targets the funerals of dead soldiers to protest what he believes is America's endorsement of homosexuality.  Snyder is the father of one of those soldiers, Lance Cpl. Matthew Snyder, who was killed in Iraq and buried on March, 10, 2006. 

Phelps showed up at Matthew's funeral carrying signs like: "Semper fi fags," "God hates fags," and "Thank God for dead soldier."  Snyder didn't see the signs that day, but he did see the news footage later on.  A few days after that, Snyder googled Matthew's name and came up with a link to Phelp's church, godhatesfags.com.  Turns out that Phelps had produced a video "epic" about Matthew and the parents who "raised him for the devil," that Phelps used to draw like-minded folks to the church.

As a direct result of Phelp's activities over the years, more than 40 states have enacted measures to limit the scope of funeral protests.  This case does not challenge those laws directly, but instead involves a potential conflict between the First Amendment and the application of state tort laws. The SCT will have to determine what a private individual must prove in order to succeed on an emotional distress claim when the injury arises from offensive speech.  In Hustler v. Falwell, the Court held that that a public figure cannot recover damages for emotional distress unless the defendant communicated a false statement of fact with "actual malice."  This case will answer whether that same standard applies when speech is directed at a private individual.

Also in question is whether Phelps's free speech rights trump the rights to freedom of religion and peaceful assembly that come into play when grieving parents bury their son. 

 Link to questions presented.

-Kathleen Bergin

Military Commissions Raise Press Access Concerns

Due process concerns have gotten most of the attention in the riff over President Obama's announcement that he will consider prosecuting Khalid Sheik Mohammed in a military commission instead of federal court.  But that decision raises serious First Amendment considerations as well. 

Emily Berman, of NYU's Brennan Center for Justice explains what's at stake in this interview with the Reporters Committee For Freedom Of The Press.  First, federal trials are presumptively open to the public and the press, and can be closed only for compelling reasons that are narrowly focused.  It's not clear, however, whether journalists could claim the same right to access the military commissions.  Moreover, federal courts already have a system in place to post court documents online, but there's no guarantee the commissions would voluntarily establish a similar system, or be required to if challenged by journalists barred from the actual proceedings.  "When is a judge going to determine that it's necessary?" Berman asks.  "Are they going to make the same judgments as a civilian judge or give more deference to the government's claims?"  

Good question, and anybody's guess.

-Kathleen Bergin

Vermont Lawmaker Targets Hospital Ads

A measure proposed by State Rep. Steve Maier seeks to redirect hospital spending away from advertising costs and towards patient care.  As written, the bill would prohibit hospitals from allocating money for advertising and marketing in their annual budget.  It defines advertising and marketing as "the proportion of any activity that is intended to be used or is used to influence individuals seeking health care services to use a specific hospital to attain those services." 

Technically the bill doesn't ban advertising, just the hospital's ability to pay for it.  But the importance of money to the ability to speak, recognized by the SCT in other contexts, guarantees that constitutional concerns will come into play if the bill becomes law.

-Kathleen Bergin

  

First Amendment Scholarship Update

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

1) Jill I. Goldenziel (Harvard Law School), Sanctioning Faith: Religion, State, and U.S.-Cuban Relations, 25 Journal of Law and Politics 179 (2009). The abstract states:

Fidel Castro’s government actively suppressed religion in Cuba for decades. Yet in recent years Cuba has experienced a dramatic flourishing of religious life. Since the fall of the Soviet Union, the Cuban government has increased religious liberty by opening political space for religious belief and practice. In 1991, the Cuban Communist Party removed atheism as a prerequisite for membership. One year later, Cuba amended its constitution to deem itself a secular state rather than an atheist state. Since that time, religious life in Cuba has grown exponentially. All religious denominations, from the Catholic Church to the Afro-Cuban religious societies to the Jewish and Muslim communities, report increased participation in religious rites. Religious social service organizations like Caritas have opened in Cuba, providing crucial social services to Cubans of all religious faiths. These religious institutions are assisted by groups from the United States traveling legally to Cuba on religious visas and carrying vital medicine, aid, and religious paraphernalia.

What explains the Cuban government’s sudden accommodation of religion? Drawing on original field research in Havana, I argue that the Cuban government has strategically increased religious liberty for political gain. Loopholes in U.S. sanctions policies have allowed aid to flow into Cuba from the United States via religious groups, tying Cuba’s religious marketplace to its emerging economic markets. The Cuban government has learned from the experience of similar religious awakenings in post-Communist states in Eastern Europe and has shrewdly managed the workings of religious organizations while permitting individual spiritual revival. By allowing greater public expression of religious faith, the Cuban government has opened the door to religious pluralism on the island while closely monitoring religious groups to prevent political opposition. As the Obama Administration has already begun to ease U.S. sanctions on Cuba, these recent changes in Cuban law may allow the U.S. to promote political change in Cuba through religious civil society institutions.

2) Mark Kende (Drake University Law School), Free Exercise of Religion: A Pragmatic and Comparative Assessment, forthcoming in University of South Dakota Law Review. The abstract states:

This short article analyzes the leading free exercise of religion cases from the U.S., South Africa, and Canada. It reveals that the most well reasoned case (from Canada) take an approach that can be called “constitutional pragmatism.” This approach focuses on the factual details of the case, the social and historical context, and the likely consequences. It is also transparent in its justifications and openly balances the various competing factors on both sides of the case. Moreover, the weaker cases utilize more formalistic and abstract reasoning, tend to be overbroad , and therefore produce decisions that create doctrinal tensions with previous precedents. This comparative analysis can provide valuable lessons for religious liberty jurisprudence.

3) David Skillen Bogen (University of Maryland - School of Law) and leslie goldstein, Culture, Religion, and Indigenous People, 69 Md L. Rev. 48 (2009). The abstract states:

The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur – challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed the Supreme Court toward recognition of a common constitutional standard for religion and cultural protection, but also justified political exemptions targeted at tribal behavior that do not extend to other religions or cultures.

4) Pierre Kohler (Graduate Institute of International and Development Studies), Education, Gender, Religion, Politics: What Priorities for Cultural Integration Policies in Switzerland? . The abstract states:

This study explores cultural integration paths of 8 migrant groups in Switzerland. It specifically analyzes the evolution of objective behaviors and subjective attitudes from the first to the second generation. To deepen our analysis, we look at this evolution from different perspectives: across cohorts (older vs. younger migrants) and across types of couples (individuals in endogamous vs. mixed couples). Gender differences are also paid attention to. First, we look at behaviors by examining performance of migrants at school (educational attainment and gender gap). As women play a key role in the transmission of cultural traits and the socialization of the second generation, we turn to their position in the couple (marriage, intermarriage, age and education gap between partners, early marriage, cohabitation, fertility, divorce) and on the labor market (labor force participation). Then we look at migrants' use of language, their feelings towards Switzerland, as well as their attitudes towards gender, religious and political issues. We find evidence of overall convergence. As the most striking and lasting differences across groups do not relate to educational achievement, religious or political attitudes, but to gender related attitudes and even more to gender related behaviors in endogamous couples, we recommend to better take into account migration-related gender issues and migration-specific “household dynamics” in the design of future cultural integration policies.

5) Nathan B. Oman (William & Mary Law School ), Natural Law and the Rhetoric of Empire: Reynolds v. United States, Polygamy, and Imperialism . The abstract states:

In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds and the massive wave of anti-polygamy legislation and litigation that it midwifed as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the Mormons offered in Reynolds, a theory grounded in the natural law tradition. It then shows how the Court rejected this theory by using British imperial law to interpret the scope of the first amendment. Unraveling the work done by these international analogies reveals how the legal debates in Reynolds reached back to natural law theorists of the seventeenth-century such as Hugo Grotius and forward to fin de siècle imperialists such as Theodore Roosevelt. By analogizing the federal government to the British Raj, Reynolds provided a framework for national politicians in the 1880s to employ the supposedly discredited tactics of Reconstruction against the Mormons. Embedded in imperialist analogies, Reynolds and its progeny thus formed a prelude to the constitutional battles over American imperialism in the wake of the Spanish-American War. These constitutional debates reached their dénouement in The Insular Cases, where Reynolds and its progeny appeared not as Free Exercise cases but as precedents on the scope of American imperial power. This Article thus remaps key events in late nineteenth-century constitutional history, showing how the birth of Free Exercise jurisprudence in Reynolds must be understood as part of America’s engagement with Great Power imperialism and the ideologies that sustained it.

6) Peter J. Smith and Robert W. Tuttle ( George Washington University Law School), Biblical Literalism and Constitutional Originalism. The abstract states:

Critics of constitutional originalism have often described originalists as “fundamentalists” or “literalists” as a way of discrediting originalism. This comparison has obvious rhetorical force because it tends implicitly to taint originalism with guilt by association, given views in the academy of Protestant fundamentalism. But originalism’s critics are not the only ones who appear to have noticed the similarities between the two interpretive approaches; when they have entered the arena of policy and judicial politics, proponents of biblical literalism have generally embraced originalism as the correct approach to constitutional interpretation.

It is not surprising that both critics of constitutional originalism and proponents of biblical literalism have noted a connection between the two interpretive approaches, as there are some obvious similarities. Indeed, the similarities go beyond the caricatures that both critics and proponents have tended to offer. Literalism and originalism share a core commitment to the idea that their relevant texts have a timeless, fixed meaning that is readily ascertainable. In addition, both interpretive approaches are in significant part projects of restoration; both are deeply concerned about the loss of constraint that results from interpretation that is untethered to text; both have a strong, self-consciously populist impulse and an equally strong and self-conscious disdain for elite opinion, both with respect to interpretive norms and cultural values; and both maintain that all other approaches to their relevant texts are fundamentally illegitimate because they breach a duty of fidelity.

Yet if we are to understand the force of the critics’ comparison and, more important, the continuing attraction of originalism to conservative Protestants, we need not only a more nuanced appreciation of the similarities between the two approaches but also a better understanding of the differences. And, indeed, both critics of originalism and literalists who urge originalism as an approach to constitutional interpretation have failed to identify the fundamental differences between the two approaches. For literalism, interpretation is an act of faith in a God who is just and good. Accordingly, for the literalist, obedience to the biblical text - the Word of God - is the highest human good. Originalism, in contrast, demands loyalty to the text regardless of its moral quality; just or good results are accidental rather than necessary features of originalist interpretation.

Originalism’s critics have been perhaps too quick to assign to originalists assumptions that, even to literalists, are unique to the project of biblical interpretation. More important, literalists who have been attracted to originalism - including those whose attraction is instrumental - might want to take a closer look at the approach, and its amoral character, before giving an unqualified endorsement to a theory that could just as well produce results anathema to their most deeply held (and biblically ordained) beliefs.

7) Whitney E. Easton (University of Connecticut), One in the Spirit: The Summoning of the Spirit in the Spread of Christianity, Capitalism and Democracy. The abstract states:

Since the founding of the United States, presidential rhetoric has often been riddled with references to the ‘spirit’, be it the ‘American Spirit’, the ‘spirit of democracy’ or the ‘spirit of capitalism’. This paper seeks to understand what animates that spirit in an effort to understand the religious underpinnings of American capitalism and democracy as an ideology that is not founded on the letter of the Bible but one that is rooted in an accessible, amorphous spirit that brings order and control to the individual soul. This paper will seek to link the invocation of this amorphous spirit as an important element through three phases of history since the descending of the Holy Spirit in the early church era; the Protestant Reformation and the birth of the spirit of capitalism; manifest destiny and the invocation of the American spirit: and finally, the Wilson Doctrine and the branching out of America onto the world stage with the spread of the spirit of democracy. This ethereal binding element has allowed the founding fathers as well as subsequent presidents to pursue what they consider to be a rational/moral foundation in government while largely avoiding the literalism of Christian fundamentalism. The invocation of a zealous spirit is a common thread throughout American history and may bring an understanding of the character of the religious sentiment that has permeated American cultural heritage and how it has been tied closely to the spread of emergent ideologies. By speaking of the spirit within the framework of capitalism and democracy, presidents such as Reagan, Wilson, George W. Bush, Nixon, and Lincoln have helped to spread democracy and capitalism using tools similar to the spread of Christianity in the early church era. This is done namely by imbuing capitalism and democracy with a spirit, sacraments, scripture, and myths.

8) Christian Behrendt (University of Liege), State Norms and Religious Norms: Summary Reflections on Some of their Characteristics (Règles Étatiques Et Règles Religieuses: Brèves Réflexions Sur Certaines De Leurs Caractéristiques),Revue de la Faculté de droit de l'Université de Liège, pp. 287-294, 2009. The abstract states:

The article studies some aspects of the relations between the public law concept of sovereignty and the religious notion of devine omnipotence.

9) Francois-Xavier de Vaujany (Université Paris-Dauphine),New Perspective on the Genealogy of Collective Action Through the History of Religious Organizations, 5 Management & Organizational History 65 (2010). The abstract states:

This article puts forwards a ‘reorientationist’ perspective about the genealogy of collective action and artefacts deployed for its orientation. It draws on the history of religion and religious organizations as elaborated by several promoters of the so-called ‘new histor y’ in France.These historians (mainly medievalist) can be helpful in writing a different genealogy of contemporary models of collective action (i.e. ways of reaching a goal together) and their institutional context in western countries.They can also facilitate a critical understanding of long-range organizational dynamics.

10) Asem Khalil (Birzeit University), A Constitutional Framework of a Future Palestinian State - Synthesis of Leading Palestinian Thinking and Public Perceptions.  The abstract states:

This paper will look at leading Palestinian thinking and public perceptions on the following: First, the relationship between the three powers of state; different perceptions of the principle of the ‘separation of powers’ in Palestinian literature including the potential separation between the PLO and the PA. Second, the systems which create, amend and enforce laws such as the PLC and the judiciary. Third, the basic rules which govern public finances including a presentation of the main principles included in the BL and DPC and also the reform process. Fourth, the degree to which normative orientation (secular/religious) should direct state formation, institution building and the application of law.

11) Charlotte Garden (Georgetown University Law Center), Labor Values are First Amendment Values: Why Union Comprehensive Campaigns are Protected Speech.  The abstract states:

Corporate targets of union “comprehensive campaigns” have increasingly responded by filing civil RICO lawsuits alleging that unions’ speech and petitioning activities are extortionate. These lawsuits are the descendants of the Supreme Court’s unexplained and inconsistent treatment of much labor speech as less worthy of protection than civil rights or commercial speech. Starting from the position that speech that promotes democratic discourse deserves top-tier First Amendment protection, I argue that labor speech - which plays a unique role in civil society - should be on an equal footing with civil rights speech. Thus, even if union advocacy is somehow extortionate, the First Amendment should trump civil RICO enforcement, with two limited exceptions: speech that is actually malicious; and speech that threatens imminently to force an employer to choose between breaking the law and suffering significant economic harm or shutting its doors altogether.

12) Hiram Melendez-Juarbe (University of Puerto Rico Law School), Preliminary Remarks on Personal Use and Freedom of Speech. The abstract states:

This discussion-paper is part of a larger project in which I explore ways contemporary forms of enforcing copyright law through intermediaries, or gatekeepers, affect free speech values that may be implicated by personal and non-commercial uses of copyrighted content. The sole focus of this essay is the extent to which personal use of copyrighted content is related to free speech values.

With the advent of digital technologies and their undeniable impact on copyright interests, content owners have turned to alternative methods of copyright enforcement sidestepping legal copyright mechanisms and doctrines. Some of these alternative mechanisms involve enforcing copyright interests indirectly, through technological intermediaries, with varying degrees of legal backing. This form of enforcement has become so significant that “the regulation of intermediaries can conceivably be regarded as a new objective of intellectual property law”.

Sometimes, indirect enforcement proceeds by exposing intermediary entities to civil liability for infringement by end-users. For example, by subjecting to liability online services that facilitate individual uses, secondary liability rules induce these services to encode monitoring mechanisms or design technologies to curb uses that may or may not be infringing. In the process, legal gatekeeping regimes are established where the task of policing infringing behavior is delegated to these intermediaries. In other cases, intermediaries and copyright owners set up private gatekeeping relations. For instance, today we see a worldwide trend to enlist conduits for internet access (Internet Service Providers or ISPs) to monitor, filter and generally police individual users believed to be illegally filesharing.

As direct enforcement against users becomes costly in a digital context, the responsibility for copyright enforcement is delegated to those technologies designed to enable expressive activity. However, because risk-averse intermediaries do not capture the full value of the online content they control, they might be induced to over-enforce copyright interests, adversely affecting end-users’ speech interests.

While some consequences of overenforcement may clearly register as affronts to free speech values (for instance, ISP’s cutting off internet access to clients for copyright infringement), some potentially affected activities are not immediately seen as covered by freedom of speech. In particular, indirect enforcement may affect individual activities that occur within a personal sphere of non-commercial uses that are part of what people expect to do with digital information goods. But because these personal uses may not implicate new creative expression, engagement in political speech, manipulation of digital works or communication of ideas to the public, they do not necessarily “have a facial claim to be considered with reference to the reasons underlying” freedom of speech.

Through an evaluation of First Amendment theory and doctrine, this discussion essay considers free speech values plausibly implicated by personal non-commercial uses. After arguing that the First Amendment is implicated in such uses, further research will consider modes of contemporary copyright indirect enforcement and their potential impact on personal uses.

Since this paper reflects the initial stages of a larger project, it intends to identify further research avenues rather than final conclusions. From the reader I would greatly appreciate criticism and help on the overarching structure and goals of the project and on the specific arguments made in its constituent parts.

13) Helen L. Norton (University of Colorado School of Law ) and Danielle Keats Citron (University of Maryland School of Law ),Government Speech 2.0, 87 Denver University Law Review --- (2010). The abstract states:

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these decisions, moreover, has the Court required government publicly to identify itself as the source of a contested message to satisfy the government speech defense to a First Amendment claim. The Court’s failure to condition the government speech defense on the message’s transparent identification as governmental is especially mystifying because the costs of such a requirement are so small when compared to its considerable benefits in ensuring that government remains politically accountable for its expressive choices.

This Article seeks to start a conversation about how courts – and the rest of us – might re-think our expectations about government speech in light of government’s increasing reliance on emerging technologies that have dramatically altered expression’s speed, audience, collaborative nature, and anonymity. It anticipates the next generation of government speech disputes in which certain associations and entanglements between government and private speakers complicate the government speech question. By adding to these challenges, government’s increasing use of newer technologies that vary in their interactivity and transparency may give the Court additional reason to re-examine its government speech jurisprudence. “Government Speech 2.0” thus refers not only to the next generation of government speech, but also to the possibility that government’s increasing reliance on emerging expressive technologies may help inspire the next generation of government speech doctrine: one more appropriately focused on ensuring government’s meaningful political accountability for its expressive choices.

14) Paul M. Secunda (Marquette University - Law School), The Contemporary 'Fist Inside the Velvet Glove' - Employer Captive Audience Meetings Under the NLRA , forthcoming in Florida International University Law Review. The abstract states:

One of the more effective anti-union techniques used by employers during labor organizational campaigns is the holding of employee captive audience meetings. Employees, in the midst of deciding whether or not to join a union, are compelled to attend an assembly where management has a one-way conversation with them about the evils of unionism. These meetings occur during working hours, when the employer is best able to exert its economic authority over employees and to play on fears of job loss if employees vote for the union.

While employees are free to leave these meetings in the formal sense, they may only do so at the peril of losing their jobs. Further, employers can exclude pro-union employees from such meetings and can fire employees for attempting to ask questions. When one also considers that unions generally lack access to employer property to disseminate pro-union messages, one begins to understand the imbalance of this workplace dynamic. What is most amazing to those who hear about the captive audience meeting tactics for the first time is that such actions by employers are not only tolerated in the United States, but have been considered lawful under the National Labor Relations Act for over sixty years.

Based on employee free choice, the conduct/speech distinction in labor picketing cases, and the threadbare nature of NLRB precedent in this area, this Article contends that the Board should return to its Clark Bros. doctrine and make employer captive audience meetings a per se violation of Section 8(a)(1) of the NLRA. No need exists for statutory amendment of the NLRA because the current language of the Act, even in light of the Section 8(c) employer free speech provisions, readily supports this alternative interpretation. Without the proverbial gun to their heads, employees will again be able to exercise free choice in deciding whether they wish to be represented by a labor organization.

15) James Grimmelmann (New York Law School), The Unmasking Option, Denver University Law Review Online, Vol. 887 (2010). The abstract states:

In the recent "Skanks in NYC" case, the plaintiff dropped her defamation lawsuit once the court had unmasked the John Doe defendant. Although the plaintiff was criticized for her seemingly pretextual use of a lawsuit, the outcome was substantively just. The harasser got almost exactly what she deserved for trying to humiliate her victim: embarrassment of her own.

This brief essay discusses a counterintuitive proposal inspired by the Skanks in NYC case: that the law unmask anonymous online harassers as a substitute for litigation, rather than as an aid to it. Identifying harassers can be an effective way of holding them accountable, while causing less of a chilling effect on socially valuable speech than liability would. While the proposal itself is probably unworkable, decoupling anonymity from liability enables us to understand more clearly what’s at stake with each.

16) Gregory L. Acquaviva (Government of the United States of America - United States Court of Appeals for the Third Circuit) and and John D. Castiglione (Latham & Watkins LLP), Judicial Diversity on State Supreme Courts, 38 Seton Hall L. Rev.1203 (2009). The abstract states:

State courts of last resort are, in many ways, the primary expositors of law in the United States. Much of the law that affects people on an everyday basis - criminal law, contracts, family law, wills, trusts, and estates, just to name a few - fall within their purview. And yet we know surprisingly little about just who sits on these courts. Indeed, state supreme court judges have been aptly described as “perhaps the most important and least written about group within the judicial system” of the United States. There is little information regarding the composite characteristics of the jurists on state courts of last resort, and the last study on the characteristics and experiences of the state supreme court justices is twelve years old.

In this Article, we present the findings of a comprehensive examination of the demographic and experiential characteristics of all judges on the courts of last resort of the fifty states. The most important part of this examination was a survey developed for this project and submitted to every state supreme court justice in the country. In this survey, we asked the justices to self-report information regarding race, gender, religion, schooling, prior work experience, community involvement, bar association membership, and pro bono experience. The raw data we collected through this survey, augmented by publicly available resources, are presented throughout and as addenda to this Article.

JFB

Holy Snowflake!!

In a culture over-saturated with sex, it's funny to think what still offends.  Take the Venus de Milo to the left, created by a family in New Jersey who received a visit from the cops following an anonymous complaint.  The report says "the officer was apologetic and appreciative of the sculpture's assets," but asked the family to cover her up nonetheless.  Constitution be damned!  

To the right is another example from . . . I want to say Detroit.  The artist painted a replica of Michelangelo's famous mural on the outside of his shop, but was told to take it down because the image was obscene (just like that smut in the Sistine Chapel).  I show this to my First Amendment class every year, and more often than not they don't even notice what caused all the fuss, that is, until I show the censored version below, at which point we all have a good laugh.

It's funny in one sense, but this business of censoring art is serious stuff because so much discretion comes into play.  It's true from a First Amendment standpoint there are limits on the artwork one has a constitutional right to publicly display, but could anyone seriously argue that the snow-venus crossed the line?

-Kathleen Bergin