First Amendment Law Prof Blog

First Amendment Scholarship Update - Religion

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

1) Mike Newdow, Question to Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics?, forthcoming in Capital University Law Review. The abstract states:

In June 2005, Justice Antonin Scalia contended that 'the Establishment Clause...permits the disregard of devout atheists.' This statement is extraordinary inasmuch as it appears to reverse an inexorable (albeit, at times, wandering) trend toward true equality. Thus, where individuals had previously been treated as less than equal on the basis of race (e.g., Dred Scott v. Sandford), gender (e.g., Bradwell v. State) and national origin (e.g., Korematsu v. United States), those odious decisions are no longer good law. In his McCreary dissent, it seems that Justice Scalia sought motion in the opposite direction: toward overturning equality, in the one constitutional arena where the Supreme Court had not previously proclaimed such a manifest animus toward minorities: religion.

This article takes three approaches in considering the Justice’s argument. First, recognizing that Justice Scalia prides himself on being a 'textualist,' it considers the Establishment Clause’s text ('Congress shall make no law respecting an establishment of religion'). Next, because Justice Scalia, in McCreary, used specific historical events to support his thesis, those events are analyzed to see if they were selected in a fair manner, and if they really stand for the proposition he claims.

Finally, in Part III, Justice Scalia’s brand of analysis is applied to his own Catholicism. It is shown that the United States of America was born of a literal hatred for Catholics, which was pervasive and persistent. One may well conclude, therefore, that under his approach, the Establishment Clause permits the disregard of his own religion.

2) Adam Schwartzbaum (University of Pennsylvania Law School), Comment -The Niqab in the Courtroom: Protecting Free Exercise in a Post-Smith World, forthcoming in U. Pa. L. Rev. (2010). The abstract states:

The niqab has become enmeshed in heated political controversy all across the world. In the United States, the situation of Ginnah Muhammad exemplifies the complex legal issues arising from conflicts between individuals whose religious beliefs compel this practice and the secular state. Muhammad, an African-American Muslim woman, was ejected from a Michigan small claims court for refusing to remove her veil while testifying. This Comment explores the constitutionality of this action, and a subsequent amendment to the Michigan Rules of Evidence passed in response to her case giving judges the power to “exercise reasonable control over parties and witnesses." Inevitably, neutral, generally applicable laws will sometimes conflict with individuals’ religious practices. In Employment Division v. Smith, the Supreme Court concluded that in most of these situations, the secular goals of the state override the religious objections of the individual so long as the government can advance a rational basis for its legislation. However, Smith itself acknowledges that in certain limited circumstances, even neutral, generally applicable laws are subject to strict scrutiny. This Comment explores the idea that a ban on the niqab in the courtroom is one such case. It analyzes the division amongst the Courts of Appeals regarding the “hybrid-situation,” and argues that Muhammad’s case exemplifies precisely how the doctrine should work in practice, because such a rule violates a Muslim woman’s Free Exercise rights and her corresponding right of access to the courts. It then reviews the interests advanced by the state as compelling reasons for the ban, and presents legal and empirical evidence suggesting that these are not sufficiently compelling and narrowly tailored enough to overcome strict scrutiny. By showing why even individuals at the outer edges of the law still have a strong claim for a religious exemption, this Comment attempts to make jurisprudential space for the vast majority of religious adherents to enjoy fair and equal treatment within the halls of American justice.

3) Lorenz Langer (Yale Law School), Panacea or Pathetic Fallacy? The Swiss Ban on Minarets, 43 Vand. J. Transnat’l L.--- (2010). The abstract states:

On November 29, 2009, Swiss voters adopted a ballot initiative introducing a constitutional ban on the construction of minarets. The supporters of the initiative had argued that minarets were not a religious symbol, but a token of power and conquest: banning them would halt the creeping Islamisation of Switzerland. The ban’s opponents had warned that the ballot initiative violated national and international provisions on non-discrimination and the free exercise of religion.

This article provides a thick description of the context in which the minaret vote took place. First, a legal analysis addresses the implications of the ban under national, regional and international normative frameworks. It is argued that the ban is irreconcilable with the constitutional bill of rights and several international human right provisions. However, in contrast to state ballots in the United States, there is no judicial review of initiatives in Switzerland; respect for the vox populi trumps any concern over conflicting international obligations. A historical analysis will help to explain how, through its excessive emphasis on popular sovereignty, the peculiar myth-system underlying modern-time Switzerland has facilitated the banning of minarets.

Mosques and minarets, however, also cause controversies elsewhere. The fears that fueled the prohibition of minarets in Switzerland are widespread in Europe. I set out how hostility to Islam is partly rooted in historical traditions, partly due to disagreement over how to integrate newcomers into Western society, and I suggest an approach that carefully balances expectations of Muslim adaption with a less exclusive construction of European identity.

4) Lorenzo Zucca (King's College London School of Law), Religious Conflicts and Toleration in Today's Europe , forthcoming in A SECULAR EUROPE- LAW AND RELIGION IN THE EUROPEAN CONSTITUTIONAL LANDSCAPE, Oxford University Press. The abstract states:

In this paper I sharply distinguish between tolerance and toleration as competing attitudes towards religious diversity. I stipulate a definition of tolerance as a non-moralizing attitude, which should be kept apart from moralizing toleration (involving a great deal of moral judgement) and should be understood as the human disposition to put up with diversity. Tolerance thus defined is the basis for an alternative approach to cope with religious conflicts. Such an approach is less dependent on normative assumptions and more responsive to empirical data, including psychological insights as to the human ability to deal with difference. In the paper, I explain the distinction between tolerance and toleration. Then I show the limits of liberal theories based on toleration as a moralizing attitude, which I suggest is as much a problem as it is a solution to religious conflicts. I argue instead that we should rely on and nurture the natural disposition of every individual to cope with difference as the best basis for a theory on how to cope with religious conflicts.

5) Samuel J. Levine (Pepperdine University School of Law), Goldman v. Weinberger: Religious Freedom Confronts Military Uniformity , published in LAW AND RELIGION: CASES IN CONTEXT: LEADING LAW AND RELIGION SCHOLARS EXPLORE THE ISSUES THAT CONFOUND COURTS, Leslie C. Griffin ed., 2010. The abstract states:

In 1986, the United States Supreme Court handed down a 5-4 decision ruling that Air Force regulations prohibiting Simcha Goldman from wearing a yarmulke while in uniform did not violate Goldman’s First Amendment right to the free exercise of religion. The Court’s majority opinion, which accepted the government’s assertion that allowing Goldman to wear a yarmulke would unduly upset important military interests, drew unusually harsh responses from both dissenting justices and legal scholars. Yet, upon closer examination, perhaps what stands out most about the events surrounding the Goldman decision is the untold story of the case, which differs in significant respects from the official version of both the facts of the dispute and the ensuing litigation. The official narrative characterizes the facts as simply presenting a dispute between a Jewish soldier wanting to wear his yarmulke during work and a commanding officer demanding strict adherence to the military uniform protocol. However, the unofficial narrative demonstrates how much of the story was the result of personal factors, such as personal animosity between parties and passionate opinions from judges, that seemed to drive each stage of the legal process.

6) David W. Opderbeck (Seton Hall University - School of Law), A Critical Realist Theology of Law, Neurobiology, and the Soul . The abstract states:

This Chapter summarizes the challenges neurobiology presents to Christian theories of positive law. It begins by summarizing the Christian tradition's tight linkage between theological anthropology and theories of positive law. It next discusses the contemporary Christian theological engagement with neurobiology, which is surprisingly diverse. The discussion then turns to points of convergence and divergence between Christian and neurobiological accounts of law and personhood. It concludes with an outline of a methodological proposal for constructive engagement between Christian theories of law and the neurosicences.

7) Francois-Xavier de Vaujany (Université Paris-Dauphine), A 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 artifacts deployed for its orientation. It draws on the history of religion and religious organizations as elaborated by several promoters of the so-called 'new history' 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.

8) Steven Menashi (Georgetown University Law Center), Toward a ‘More Enlightened and Tolerant View’: Educational Choice and the Regulation of Religious Institutions, forthcoming in NYU Annual Survey of American Law. The abstract states:

Since the Supreme Court upheld the inclusion of religious schools in publicly funded school choice programs, the question of the extent to which states may regulate the schools that participate in such programs remains unsettled. The question is important because state regulation may implicate issues of religious belief and practice that have traditionally been outside state control. Indeed, many legal scholars have endorsed such regulation in order to bring religious institutions into line with majoritarian norms. This Article argues that those activists and legal scholars who advocate public regulation of religious schools through school choice programs ignore the serious constitutional obstacles to such regulation. Even the modest regulations that already apply to religious schools in the nation’s two choice programs that include such schools lack a compelling justification that outweighs the infringement of First Amendment rights. The First Amendment establishes a right of religious institutions to remain free of government oversight and prohibits the government from involving itself in ecclesiastical questions reserved to religious institutions. Even if a religious institution consents to government oversight, an “excessive entanglement” will nevertheless render such oversight unconstitutional. Moreover, if a regulation, had it been imposed directly, would violate the school’s rights under the First Amendment, it would represent an unconstitutional condition when pressed indirectly. Because a school choice program that aims to promote educational pluralism resembles a limited public forum, the state may not discriminate on the basis of viewpoint by imposing regulations that exclude certain types of religious belief and practice. Ultimately, while the government need not empower parents to choose educational alternatives with vouchers, if a state does establish such a program it may not police those alternatives in ways that implicate religious expression.

9) Dr. Fakhrul Islam, Religious Seminaries in Pakistan. The abstract states:  

The religious seminaries (Madaris)1 of Pakistan have been a hot topic of discussion in the national and international media. These Madaris are reminiscent of the ancient education system of Islam. They attracted people’s attention during the last two decades and especially after the 11th September 2001 incident of New York. Another aspect of interest was their role in the Islamic insurgence (Jihad) waged in various parts of the world particularly in Afghanistan and Kashmir. These institutions impart orthodox education based on centuries old syllabus called Dars-i-Nizami. The administrators are disinclined to any slight change in the contents of the syllabus thus bringing them to an open conflict with the modern education system and western culture. The Madaris have been divided on the basis of religious sects i.e. Shia, Sunni and Ahl-i-Hadith. Of them Sunnis are further splintered into many sub-sects such as Deobandis, Brelvis, etc. But their adherence to the primitive education, Jihad and abhorrence for the western civilization is almost the same.

Despite repeated reference to these Madaris, there are many misconceptions or disinformation about them. In the present paper, an attempt has been made to remove these misconceptions and present a true picture. Besides, historical perspective, vital statistics, curricula and problems and prospects have discussed in the paper in hand.

JFB

First Amendment Scholarship Update - Speech

Here is this week’s collection of newly available scholarship addressing speech topics:

1) Hillary Greene (University of Connecticut School of Law),Antitrust Censorship of Economic Protest, 59 Duke L. J. --- (2010). The abstract states:

Antitrust law accepts the competitive marketplace, its operation, and its outcomes as an ideal. Society itself need not and does not. Although antitrust is not in the business of evaluating, for example, the “fairness” of prices, society can, and frequently does, properly concern itself with these issues. When dissatisfaction results, it may manifest itself in an expressive boycott: a form of social campaign wherein purchasers express their dissatisfaction by collectively refusing to buy. Antitrust should neither participate in nor censor such normative discourse. In this Article, I explain how antitrust law impedes this speech, argue why it should not, and provide a framework that accommodates both First Amendment and antitrust values.

The expressive boycotts this Article addresses are characterized by speech that is political yet also economically self-interested. The boycotts discussed involve scientists protesting research tool purveyors, doctors protesting pharmaceutical companies, and academics and librarians protesting for-profit publishers. The legal regimes that govern such undertakings, First Amendment and antitrust law, have proven inept in addressing this phenomenon, which lies at their intersection. I attribute their shortcomings to a combination of the First Amendment’s excessive reliance upon categorization and antitrust’s unduly narrow reliance on economic efficiency. I then craft a recommendation for handling these expressive boycotts that will help ensure that speech about the market can be as free as the market itself.

2) Richard L. Hasen (Loyola Law School Los Angeles), The Nine Lives of Buckley v. Valeo, published in FIRST AMENDMENT STORIES, Richard W. Garnett, Andrew Koppelman, eds., Foundation Press, 2010. The abstract states:

Buckley v. Valeo has been the leading case governing the constitutionality of campaign finance laws in the United States since the Supreme Court decided it in 1976. But it is an unlikely candidate for influence and longevity. The decision upheld federal limits on campaign contributions but it struck down federal limits on campaign spending as violating the First Amendment. It was a compromise opinion written by a committee of Justices; three of the eight Justices deciding the case dissented from parts of its core holdings on contributions and expenditures. Over the years, there have been Court majorities ready to overturn parts of Buckley, though Buckley has remained good law because the Justices have not agreed on which parts to overturn and Justices in the Court’s center have refused to overturn any of Buckley’s central tenets. The Court’s later campaign finance cases have vacillated wildly in their treatment of the First Amendment issues – yet each of these cases has claimed fidelity to Buckley. More than one commentator, including this author, has declared the case on the verge of death. Yet Buckley has survived.

This Chapter tells the story of Buckley v. Valeo, beginning with an examination of the legislation that prompted the litigation, the 1974 Amendments to the Federal Election Campaign Act (FECA). It situates the legislation and litigation in the context of the early 1970s, a time when there was increasing public distrust of politicians and social turmoil, driven especially by controversy over the Vietnam War, changes wrought by the civil rights and women’s rights movements, and a series of political scandals culminating with Watergate and the resignation of President Richard Nixon.

The story of Buckley v. Valeo’s origins turns out to be two stories, both drawn from the themes of that era. One story is that of good government reformers, especially the group Common Cause, who adopted a legislation and litigation strategy aimed at rooting out corruption among politicians. The other story is that of skeptics of government power, including the American Civil Liberties Union, conservative United States Senator (and now D.C. Circuit judge) James Buckley and liberal United States Senator Eugene McCarthy. They mistrusted campaign finance regulation, which they saw as a form of incumbency protection and government censorship. They filed the Buckley litigation, challenging the core provisions of the FECA, to prevent what they viewed as government tyranny.

The chapter then traces Buckley through the litigation process. The D.C. Circuit, sitting en banc, upheld the contribution and spending limits on both anticorruption and political equality grounds. The Supreme Court too divided on the law’s constitutionality, and it produced a Solomonic unsigned opinion that left both sides in the litigation partly unsatisfied.

The Chapter concludes with the unlikely story of how Buckley has survived as a precedent, and looks into the future of campaign finance jurisprudence. In the last decade, the current Supreme Court has moved from its period of greatest deference toward campaign finance legislation to its period of greatest skepticism. All the while, the Court has (at least formally) adhered to the Buckley precedent, perhaps more as a result of political compromise by Court centrists than coherent legal reasoning. However, change could be on the way. The Supreme Court’s most recent significant campaign finance decision, Citizens United v. Federal Election Commission, struck down spending limits imposed on corporations and labor unions. Citizens United overruled earlier cases upholding such limits; unsurprisingly, both the earlier cases and Citizens United relied upon Buckley. The Court in Citizens United indicated great skepticism about the constitutionality of all limits on campaign financing, putting new pressure on the Court to overrule that part of Buckley upholding contribution limitations. But do not count on Buckley being overruled; it may last longer than the readers of this chapter.

3) John A. Humbach (Pace University School of Law ), "Sexting" and the First Amendment, 37 Hastings Const. L.Q. 433 (2010). The abstract states:

'Sexting' and other teen autopornography are becoming a widespread phenomenon, with perhaps 20% of teenagers admitting to producing nude or semi-nude pictures of themselves and an ever greater proportion, perhaps as many as 50%, having illegally received such pictures from friends and classmates. It is, moreover, beginning to result in criminal prosecutions, and the statutory penalties are severe. Given the reality of changing social practices, mores and technology utilization, today’s pornography laws are a trap for unwary teens and operate, in effect, to criminalize a large fraction of America’s young people. As such, these laws and prosecutions represent a stark example of the contradictions that can occur when governmental policies and initiatives built on past truths and values collide with new and unanticipated social phenomena.

The focus of anti-pornography enforcement in recent years has been the child pornography laws. The landmark cases of New York v. Ferber and Osborne v. Ohio have established and defined a categorical exclusion that denies First Amendment protection to sexually explicit visual depictions of minors. Even though Ferber and Osborne may not strictly speaking require a conclusion that sexting and other autopornography are unprotected speech, at least some lower courts and prosecutors appear to regard them that way.

By contrast, the language and reasoning of the more recent case of Ashcroft v. Free Speech Coalition gives strong reason to believe that the scope of the categorical exclusion for child pornography should be closely aligned with the governmental objectives that Ferber and Osborne relied on - which would mean constitutional protection for teen sexting and autopornography that occur on the teens’ own initiative. Ashcroft strongly implies, though does not quite say, that the categorical exclusion should be limited to materials that are produced by means of criminal child abuse and exploitation. Also, current standards of strict scrutiny for content-based regulations, if applied, would probably prevent (on the present state of the studies and research) self-produced teen materials from being subsumed into the Ferber categorical exclusion. How this issue will be decided, however, remains to be seen.

4) Shawn Marie Boyne (Indiana University School of Law-Indianapolis), Free Speech, Terrorism, and European Security: Defining and Defending the Political Community, 30 Pace L. Rev. 417 (2010). The abstract states:

The United States and its European allies are engaged in a global struggle against terror.  While world-wide criticism of America’s leadership of the “war on terror” has focused attention on America’s human rights transgressions, the United States is not the only democratic state that, at times, has privileged national security over civil liberties. Indeed, just as images of the burning World Trade Center towers transformed America’s domestic political dynamic and propelled then President Bush to declare a war on terror, subsequent terrorist attacks in London and Madrid have raised the stakes, as well as the human rights challenges, in Europe.

Largely obscured behind the dark cloud of the perceived human rights transgressions of the United States and America’s ongoing struggle to exit Iraq is the extent to which European governments have followed the U.S. lead in privileging national security concerns at the expense of civil liberties.Perhaps nowhere is this development so evident as in the area of free speech. In particular, the Council of Europe took a significant step towards curtailing free speech when the Council adopted the Convention on Prevention of Terrorism. The Convention was the first international instrument that called for the enactment of penal code provisions criminalizing the offense of incitement to terrorism. Most notably, the Convention’s public provocation offense extends both to direct, as well as to, indirect incitement  of terrorism. The Convention has led states throughout Europe,  to enact anti-incitement and public disorder laws. These laws  grant states broad authority to prohibit and punish speech that may possess only highly attenuated links to  actual terrorist activity. A key example of the erosion of free speech occurring throughout Europe is the European Court of Human Rights October 2008 decision in Leroy v. France. In that case, the Court upheld the French conviction of a cartoonist who had penned and published a cartoon that linked the 9/11 attacks with America’s decline.That case  is but one example of several cases that demonstrate that legislators and judges on the other side of the Atlantic have opened the door to the broad regulation of speech by enacting vaguely-worded legislation that grants prosecutors wide discretion.. This trend towards criminalizing broader categories of speech raises the question as to whether measures taken by democratic governments to restrict speech in the name of preventing Islamic radicalization will undermine or strengthen European models of democratic governance.

While scholars have extensively documented the tension that exists between national security and civil liberties, in this paper I focus specifically on penal code provisions designed to target individuals who encourage others to commit terrorist acts by inciting or glorifying terrorism.  I lay out the nature of the threat that radical speech poses to European states as well as the difficulties inherent in crafting legislation that does not overbroadly target radical speech. I then outline the efforts that have been taken at the European Community and Member State levels that criminalize speech that glorifies or tends to incite terrorism. I argue that that the prominent role that the concept of human dignity plays in European jurisprudence at both the supranational and national levels helps to explain the ease with which European states have so quickly moved to restrict speech to counter perceived terrorist threats. I argue that a key reason why some European states are moving closer to over-regulating free speech is that the political culture has never endorsed an absolutist vision of free speech.  Drawing on cases to prove my thesis, I suggest that newly enacted legislation that is designed to curb radicalization expands prosecutorial discretion to a degree that is unwarranted by the legislation’s efficacy in fighting terrorism.

5) Christine A. Corcos (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center), Some Thoughts on Chuck Lorre: 'Bad Words' and 'The Raging Paranoia of Our Network Censors' , forthcoming in Regent University Law Review. The abstract states:

The FCC Golden Globes ruling set forth policy holding for the first time that the agency could regulate unintentional or “fleeting” uses of patently offensive or profane language over the airwaves. As a result, network censors, including those at CBS, have become increasing concerned that indecent or offensive language might trigger FCC scrutiny. Creative talent, like Chuck Lorre, reacts by “pushing the envelope” even further. In this essay, I examine how Lorre’s current CBS hit, Two and a Half Men, expresses some of his frustration over the Golden Globes ruling and the censors’ understandable responses to current FCC policy.

6) Robert Burrell (The University of Queensland - T.C. Beirne School of Law) and and Dev Saif Gangjee (London School of Economics), Trade Marks and Freedom of Expression: A Call for Caution. The abstract states:

Over recent years there has been growing interest in the relationship between trade marks and free speech. United States academics have argued that we should look to freedom of expression principles to curb the expansion of trade mark rights and this suggestion is being taken increasingly seriously in other jurisdictions. While sharing concerns about the overreach of trade mark law, we express caution about the advisability of looking to freedom of expression to solve the problem. Specifically, we argue that this focus concedes too much in terms of the reach of trade mark law, is unlikely to prove effective (at least outside of the United States) and carries with it the danger that the relationship between trade marks and speech will become overly simplified.

7) Sandhya Ramadas (University of California, Berkeley - School of Law), How Earl Warren Previewed Today’s Civil Liberties Debate – And Got it Right in the End , 16 Asian Am.  L J. 73 ( 2009). The abstract states:

Earl Warren is revered for his tenure as Chief Justice of the U.S. Supreme Court and for his legacy as the icon of American civil liberties, but a dark moment lurked in his past. In late 1941 and early 1942, as the Attorney General of California, Warren confronted a host of difficult questions involving constitutional law, civil liberties, and race relations. With the United States still reeling from the bombing of Pearl Harbor, and with the dawn of the involvement of American combat troops in World War II, Warren advocated for the relocation and internment of both Japanese Americans and Japanese immigrants living in the United States.

How did this heralded champion of individual freedom once decide to subordinate civil liberties to security? Two documents released in 2006 by the California State Archives, which houses Warren's California papers, shed light on his decision-making process. The first is a speech Warren delivered in June of 1942 to the Stanford Law Society entitled “Martial Rule in a Time of War.” The second is a set of 138 letters sent from February 17 to 24, 1942 by California law enforcement in response to Warren's request for suggested solutions to the “alien problem” in California. These documents have never before been the subject of scholarly publication.

This Article is an attempt to focus on Warren's decision-making process concerning Internment in light of these newly released documents. It is also an attempt to analyze the lifetime transformation of Warren's attitude surrounding civil rights and the protection of individual liberties, as well as document Warren's progression from Internment advocate to civil rights proponent. Given the documented current of racism that underlay the Internment decision, many scholars have argued that Warren's changed attitude towards civil rights was influenced by his changed views of race over his lifetime.

But another factor that arguably influenced Warren's transformation, and one that has been less explored by scholars, was his changing view of the law's role and function in our society. This Article argues that Warren began his legal career with a vision of the law as predominantly a means of securing state stability; by the end, he viewed state power as the ultimate threat and the law as the predominant mean of safeguarding citizens against it. This Article does not attempt to remove Warren's decision to advocate for Internment from its racial context, nor does it attempt to minimize that context. Rather, it attempts, with the information contained in these two newly released documents, to analyze Warren's support for Internment in the context of his views on the role of the law, and to trace the evolution of Warren's concept of the role of the law throughout his lifetime.

This Article begins with a discussion of the historical context surrounding the decision to intern Japanese Americans and Japanese immigrants, including Warren's role in Internment. Next, the Article examines Warren's decision-making process, exploring his speeches, articles, Congressional testimony, and the letters Warren solicited and received from California's local law enforcement. The article then discusses Warren's career following his time as Attorney General of California, from Governor of California to Chief Justice, including Warren's final reflections on his decision to intern the Japanese and his changing concept of the role and function of the law from depriver to protector of civil liberties. Finally, the Article examines the modern-day takeaway from Warren's evolving concept of the law and the law's legitimacy, possible parallels to the role of the law as perceived by the Bush administration in its “War on Terror,” and the Obama administration's likely attitude towards the protection of civil liberties. Earl Warren is revered for his tenure as Chief Justice of the U.S. Supreme Court and for his legacy as the icon of American civil liberties, but a dark moment lurked in his past. In late 1941 and early 1942, as the Attorney General of California, Warren confronted a host of difficult questions involving constitutional law, civil liberties, and race relations. With the United States still reeling from the bombing of Pearl Harbor, and with the dawn of the involvement of American combat troops in World War II, Warren advocated for the relocation and internment of both Japanese Americans and Japanese immigrants living in the United States.

How did this heralded champion of individual freedom once decide to subordinate civil liberties to security? Two documents released in 2006 by the California State Archives, which houses Warren's California papers, shed light on his decision-making process. The first is a speech Warren delivered in June of 1942 to the Stanford Law Society entitled “Martial Rule in a Time of War.” The second is a set of 138 letters sent from February 17 to 24, 1942 by California law enforcement in response to Warren's request for suggested solutions to the “alien problem” in California. These documents have never before been the subject of scholarly publication.

JFB

First Amendment Scholarship Update - Religion

Here is this week's collection of newly available scholarship on religion topics:

1) John D. Inazu (Duke University School of Law), The Unsettling ‘Well-Settled’ Law of Freedom of Association, forthcoming in 43 Conn. L. Rev. --- ( 2010). The abstract states:

This article brings historical, theoretical, and doctrinal critiques to bear upon the current framework for the constitutional right of association. It argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. Intimate association and expressive association are indefensible categories, but they matter deeply. They matter to the Jaycees. They matter to the Chi Iota Colony of the Alpha Epsilon Pi fraternity, a now defunct Jewish social group at the College of Staten Island that had sought to limit its membership to men. They matter to the Christian Legal Society at Hastings Law School, a student group denied official recognition because of its desire to limit its membership to Christians who adhered to its moral code (which included a prohibition on homosexual conduct). Each of these groups sought to maintain an unpopular composition and message in the face of anti-discrimination laws. Each was denied associational protections. Each was forced to change its composition – and therefore its message. Each no longer exists in the form it once held and desired to maintain.

The demise of associational protections is at least partially attributable to the Roberts categories of intimate and expressive association. These categories set in place a framework in which courts sidestep the hard work of weighing the constitutional values that shape the law that binds us. This article exposes the problems inherent in these categories and calls for a meaningful constitutional inquiry into laws impinging upon associational freedom. It suggests that the Court eliminate the categories of intimate and expressive association and turn instead to the right of assembly, which emphasizes the centrality of dissent to associational freedom.

2) Bernadette A. Meyler (Cornell University - School of Law), Constitutional Commitments and Religious Identity, forthcoming in Cornell Journal of Law and Public Policy. The abstract states:

This essay comments on Steve Shiffrin's The Religious Left and Church-State Relations. It contends, on the one hand, that Shiffrin has valuably brought to the fore various reasons why religious believers might resist close relations between church and state. On the other hand, it argues that no fundamental connection exists between the "religious Left" and a particular position on church-state relations and that religious liberals will not necessarily be more persuasive than secular liberals in arguing against positions espoused by religious conservatives.

3)  Paul Horwitz  (University of Alabama School of Law), Of Football, ‘Footnote One,’ and the Counter-Jurisdictional Establishment Clause: The Story of Santa Fe Independent School District v. Doe . The abstract states:

This article is a chapter in the forthcoming collection First Amendment Stories. It tells the story of Santa Fe Independent School District v. Doe, a case in which the United States Supreme Court struck down a school policy establishing an election mechanism that enabled student-led prayers before football games. It offers both a doctrinal and a human perspective on the case.

In particular, this article focuses on two issues. First, it argues that the first footnote in the Supreme Court’s opinion in Santa Fe, recounting the strenuous efforts that both school officials and private citizens undertook to “ferret out” the identity of the anonymous plaintiffs in the case, deserves greater attention. “Footnote One” speaks volumes about why the election mechanism the school district tried to employ as a “circuit-breaker” between government speech and private speech failed, and more broadly about the meaning of the Establishment Clause in overwhelmingly religiously homogeneous jurisdictions.

Second, it argues that for similar reasons, there are good grounds for thinking about the Establishment Clause in a “counter-jurisdictional” fashion: that is, despite its own language, the Establishment Clause should, if anything, be more strictly maintained at the state and local level than at the national level. This suggestion, which follows from the lumpy rather than even nature of religious diversity in the United States, runs counter to an increasing trend on the Court and in legal scholarship in favor of a “jurisdictional” reading of the Establishment Clause which would apply it more loosely at the state and local level than at the national level.

4) Joseph Vining (University of Michigan Law School), The Consequence of Human Differences, forthcoming in  Journal of Law, Philosophy and Culture ( 2010). The abstract states:

This essay explores the ways in which the recognition of individual and person in the legal form of thought distinguishes it from forms of thought in evolutionary biology and mathematics that are put forward as means to a complete picture of the world. The essay observes that the legal form of thought is in fact deeply involved in our modern understanding of Nature itself.

5) Carmel Ullman Chiswick (University of Illinois at Chicago - Department of Economics), Economics and Religion. The abstract states:

This paper provides an overview of the relationship between economics and religion. It first considers the effects of economic incentives in the religious marketplace on consumersﾒ demand for "religion." It then shows how this demand affects religious institutions and generates a supply of religious goods and services. Other topics include the structure of this religious marketplace and the related "marketplace for ideas" in a religiously pluralistic society. Empirical evidence is summarized for the effects on selected economic behaviors of religious affiliation and intensity of belief or practice.

6) Lisa R. Anderson ( College of William and Mary - Department of Economics),  Jennifer Mellor (College of William and Mary - Department of Economics ),  and Jeffrey Milyo (University of Missouri),  Did the Devil Make Them Do it? The Effects of Religion in Public Goods and Trust Games, 63 Kyklos 163 (2010). The abstract states:

We examine the extent to which religious affiliation and participation are associated with other-regarding behavior in canonical public goods and bi-lateral trust games. In general, religious affiliation is unrelated to behavior in these experiments; further, there is only weak evidence that attendance at religious services is correlated with behavior in these games. Contrary to popular wisdom and several recent observational studies, religion is not strongly associated with increased cooperation and trust in our controlled experiments.

7) Michael Siam Heng Heng (National University of Singapore),  State and Secularism: Perspectives from Asia. The abstract states:

The concept of a secular state is important in many parts of Asia and how this is resolved has important implications for the social, economic and political development of various Asian countries. Unfortunately, problems of the secular state have all along been studied based on the historical experience of state formation in Europe, with little (or no) input from the Asian perspective. This book will for the very first time, present mainly Asian perspectives, while drawing on Western experience as well. Conceptual issues are discussed together with detailed accounts on how different countries and traditions understand and seek to implement the ideas of a secular state.

8) Otto F. von Feigenblatt (Nova Southeastern University), The Muslim Malay Community in Southern Thailand: A ‘Small People’ Facing Existential Uncertainty, 27 Ritsumeikan Journal of Asia Pacific Studies  53 (February 2010). The abstract states:

This article aims to apply Abulof's concept of "small peoples" to the case of the Muslim Malay Community in Southern Thailand. Existential uncertainty as an intersubjective reality is the defining characteristic of a "small people." Moreover, the article explores how the Muslim Malay community in the South of Thailand is facing ethnonational existential threats due to the assimilationist policies of the central government. The Patani-Malay language and the Islamic religion are threatened by policies favoring a homogenous national culture based on a unitary nation-state held together by the three pillars of nation, monarchy, and religion. Finally, the article concludes that one of the root causes of the Southern insurgency is the perceived slow death of the Patani-Malay ethnonationality by a significant number of traditional leaders and youths. Some "soft" approaches to deal with the intersubjective reality of existential uncertainty experienced by the Muslim Malay minority are also provided as tentative recommendations.

9) Colin Harvey (Queen's University Belfast - School of Law), Faith in Human Rights: Freedom of Religion and the European Convention on Human Rights . The abstract states:

This paper is a speech delivered to Northern Ireland Human Rights Commission conference in 2007 on faith and human rights.

JFB

First Amendment Scholarship Update - Speech

Here is this week’s list of newly available scholarship on speech topics:

1) John C. Harrison and Lillian Riemer BeVier (University of Virginia - School of Law), The State Action Principle and its Critics, forthcoming in Virginia Law Review. The abstract states:

The article is an entry in a long-standing debate concerning the soundness of the state action principle in American constitutional law. According to that principle, exercises of private rights by private people are not subject to the constitutional rules that apply to the government, even though those private decisions are supported by the government's coercive power. For many decades, some scholars have argued that the principle is irrational and also inconsistent with the purpose of some of the constitutional norms that it limits, such as the First Amendment. The article defends the principle from its critics, a group that includes a number of important contemporary constitutional theorists. We maintain that the state action principle is a reasonable implementation of the Constitution's basic distinction between public and private decision makers, and that it is consistent with a plausible and we think persuasive, understanding of the particular constitutional rules that the critics maintain the state action principle arbitrarily limits.

2) Deborah Hellman (University of Maryland - School of Law), Money Talks But it Isn't Speech, 95 Minn. L. Rev. --- ( 2011). The abstract states:

This Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the grounds that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these other rights, this Article notes that sometimes constitutional rights generate a penumbral right to spend money and sometimes they do not. Thus the fact that money facilitates the exercise of a right is insufficient to show that the right includes a penumbral right to give or spend money. The first contribution this Article makes is to identify this question: when do constitutional rights generate a penumbral right to spend money? The second contribution this Article makes is to provide an answer. When a right depends on a market good for its exercise, the right generates a penumbral right to give or spend money. When a right does not depend on a market good for its exercise, the right does not include a penumbral right to spend money. Using this account, this Article argues that the right to give and spend money in connection with elections need not be protected as speech under the First Amendment.

3) Minjeong Kim (Department of Journalism and Technical Communication, College of Liberal Arts, Colorado State University) and Lenae Vinson (Hawaii Pacific University), Friends of the First Amendment? Amicus Curiae Briefs in Free Speech/Press Cases During the Warren and Burger Courts, 1 Journal of Media Law & Ethics --- (Winter/Spring 2009). The abstract states:

This study, relying upon a pre-existing data set compiled by other researchers, quantitatively examines the trends and effect of amicus curiae brief filing in free speech/press cases decided by the U.S. Supreme Court in the years between 1953 and 1986. Out of 4,441 cases analyzed in this study, 181 cases were in the free speech/press topic area, and 124 of them had at least one amicus brief filed. The study findings demonstrate general trends in the filing and outcome of the cases; general trends of amicus curiae brief filing in free speech/press cases; the influence of amicus curiae briefs indicated in the Court opinion and indicated in litigation success; the most active participants of amicus brief filing in free speech/press cases; and the top ten free speech/press cases with the most number of amicus curiae briefs. This study suggests that various media organizations and civil rights groups would be wise to continue to engage in amicus curiae filings in free speech/press cases to defend First Amendment freedoms.

4) Jennifer S. Hendricks (University of Tennessee College of Law) and  Dawn Howerton (University of Tennessee), Teaching Values, Teaching Stereotypes: Sex Ed and Indoctrination in Public Schools , 13 University of Pennsylvania Journal of Constitutional Law --- (2010). The abstract states:

Many sex education curricula currently used in public schools indoctrinate students in gender stereotypes. As expressed in the title of one article: “If You Don’t Aim to Please, Don’t Dress to Tease,” and Other Public School Sex Education Lessons Subsidized by You, the Federal Taxpayer (Jennifer L. Greenblatt, 14 TEX. J. ON C.L. & C.R. 1 (2008)). Other lessons pertain not only to responsibility for sexual activity but to lifelong approaches to family life and individual achievement. One lesson, for example, instructs students that, in marriage, men need sex from their wives and women need financial support from their husbands.

This Article first describes the ways in which teaching sex stereotypes may affect children, highlighting the need for further empirical research in this area. Second, it critiques the extant feminist legal response to gender-biased Sex Ed curricula, particularly the use of precedent dealing with governmental perpetuation of stereotypes; those precedents cannot be incorporated wholesale into this context. Finally, to correct this analytical gap, this Article connects the Sex Ed issue to the existing scholarly literature on indoctrination of schoolchildren, a literature that has hooks in both equal protection and the first amendment. The first amendment principles developed in this literature provide the missing link to explain the constitutional flaw in sex stereotyping at school. The result is an endorsement standard, based on a blending of equal protection and first amendment doctrine. Public school students should not be inculcated in values whose entrenchment by government is contrary to constitutional principles.

5) Jennifer Lynch  (Samuelson Law, Technology & Public Policy Clinic) and Nicole Ozer (ACLU of Northern California),, Protecting Reader Privacy in Digital Books, paper presented at Association for the Advancement of Artificial Intelligence Privacy 2010 Symposium. The abstract states:

What you choose to read says a lot about who you are, what you value, and what you believe. That’s why you should be able to learn about anything from politics to health without worrying that someone is looking over your shoulder. However, as books move into digital form, new reader privacy issues are emerging. In stark contrast to libraries that retain as little information about readers as possible, digital book services are capturing detailed information about readers: who they are, what books they browse and read, and even how long a given page is viewed, and the notes written in the “margins.” Without strong privacy protections, all of this browsing and reading history can be collected, analyzed, and may end up in the hands of the government or third parties without a reader’s knowledge or consent.

Retaining and strengthening reader privacy in the digital age requires a thorough examination of the potential privacy and free speech implications of digital book services and of the laws and policies that are needed to properly protect readers. Part I of this article discusses the history of strong legal and policy protections for reader privacy. Part II discusses current developments in digital book services. Part III discusses emerging privacy and free speech issues related to digital book services. Part IV proposes some policy and legislative solutions.

6) David A. Thomas (Brigham Young University - J. Reuben Clark Law School), Whither the Public Forum Doctrine: Has this Creature of the Courts Outlived its Usefulness?, 44 Real Property, Probate and Trust Law Journal 637 (2010). The abstract states:

Tracing both the development of the Public Forum Doctrine and the history of the property rights it affects, in this Article the Author argues that the doctrine currently exists as a tangled mass of precedent that is unworkable in practice. By juxtaposing the current application of the Public Forum Doctrine against a proposed approach that balances the property rights of the owner against the speech rights of the visitor to the land, the Author provides support for the position that the Public Forum Doctrine can be replaced by a more effective means of achieving a fair balance between the competing rights.

Includes an Appendix: Historical Details on the Emerging Concept: Governmental Immunity Over English Land in the Anglo-Saxon and Norman Periods (pp. 735-743).

7) Hyeon Tak Shin (HWANG MOK PARK PC), Legal Liabilities of Credit Rating Agencies in Structured Finance: Based upon the Business Ethics for Investor Protection , U.C. Berkeley School of Law Doctoral Dissertation, 2009. The abstract states:

This doctoral dissertation examined the legal liabilities of credit rating agencies (CRAs) in providing credit ratings of collateralized debt obligations (CDOs), which are pointed to cause the current financial crisis. Until now, CRAs abused the favorable legal and regulatory environments of credit rating business, and finally lost the ability of self-purification.

In considering tort liability of CRAs, First Amendment protection should not be allowed to CRAs, when they were hired to participate in structuring CDOs, which substantially impaired the objectivity of their rating business.

Contractual liability should be considered as well. From the particularities of the CDO transactions, an agency relationship could be inferred between issuers and investors, and then investors could be regarded as clients of CDO ratings, to whom CRAs are liable for theirs CDO ratings.

8) Ken I. Kersch (Boston College), 'Guilt by Association' and the Postwar Civil Libertarians, 25 Social Philosophy and Policy 53 (2008). The abstract states:

In recent years, the constitutional freedom of association has assumed a relatively low profile. Today, the most extended discussions of the right consider it as a second-order countervailing claim in civil rights cases involving questions of identity and the right to exclude. This article provides a brief overview of the right at a time when it was one of the most widely discussed, first-order constitutional rights, and when those discussions centered not on the right to exclude but on the question of “guilt by association.” The article provides a sampling of the way that right was considered in the immediate post-World War Two years in the writings of some of the era's most prominent civil libertarian thinkers – Leo Pfeffer, Milton Konvitz, Robert Cushman, Henry Steele Commager, Zechariah Chafee, Jr., and Sidney Hook. These writings demonstrate that doctrinal development concerning the right was driven by its implication in two of the major political issues of the day: domestic security at the height of the Cold War and civil rights. The article concludes by arguing that, in the aftermath of the September 11 attacks and the ongoing fight against terrorism, free association questions are likely to assume renewed prominence. It argues further that, in a contemporary context, those thinking about the most pressing freedom of association questions would profit by looking less to the more recent discussions of the right as a matter of the right to exclude, and more to the highly-relevant discussions of “guilt by association” by the currently less well known mid-century civil libertarians.

JFB

First Amendment Scholarship Update – Speech

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

1) Neil M. Richards (Washington University School of Law), The Puzzle of Brandeis, Privacy, and Speech, 63 Vand. L. Rev. --- (2010). The abstract states:

Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis – his 1890 Harvard Law Review article “The Right to Privacy” and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this paper, I argue that the puzzle of Brandeis’s views on privacy and speech can be resolved in a surprising and useful way.

My basic claim is that Brandeis came to largely abandon the tort theory of privacy he expounded in “The Right to Privacy.” As a young lawyer, Brandeis conceived of privacy as a tort action protecting emotional injury from newspaper stories that revealed private facts. But Brandeis’s ideas evolved over his life. He soon came to believe strongly in a contrary idea he called “the duty of publicity.” This is the notion that disclosure of most kinds of fraud and wrongdoing are in the public interest; that as he famously put it, “sunlight is the best disinfectant.” When Brandeis came to think through First Amendment issues after the First World War, tort privacy could no longer consistently fit into his influential theories of civil liberty.

But while Brandeis changed his mind about tort privacy, what he replaced it with is even more interesting. In his Olmstead dissent and free speech writings, Brandeis identified a second conception of privacy that I call “intellectual privacy.” Brandeis reminds us that the generation of new ideas requires a certain measure of privacy to succeed, and that in this way intellectual privacy and free speech are mutually supportive. I conclude by suggesting some contemporary implications of Brandeis’s rejection of tort privacy and his linkage of intellectual privacy with free speech.

2) William McGeveran (University of Minnesota Law School), The Trademark Fair Use Reform Act, forthcoming in Boston University Law Review. The abstract states:

Sweeping assertions of exclusive trademark rights in brand names and images have a pernicious chilling effect on free expression, including fictional portrayals, commentary, political speech, parody, and comparative advertising. Some disputes lead to lawsuits. More often, speakers capitulate to litigation threats, even when the substance of the legal claims they face is very weak. As demonstrated in the author’s previous work, existing trademark “fair use” doctrines are not simple defenses that end suits quickly and cheaply, and many defendants cannot bear the resulting costs of protracted litigation.

Observers have proposed a variety of improvements to trademark fair use, but this Article focuses intensively on the decision-making structure of trademark law and ways to reduce its burdensome effects. The analysis draws on theoretical and doctrinal literature about administrative and error costs, rules and standards, and the design of independent defenses. Building on this foundation, the Article argues that reform of trademark fair use should emphasize the reduction of administrative costs and the risk of erroneous findings of liability for speech; should favor clear ex ante rules over more complex ex post standards; and should strive to separate consideration of fair use from the adjudication of the prima facie likelihood of confusion case. It then proposes categorical safe harbors for certain uses of trademarks as a central innovation, complemented by other broader standards. An Appendix contains draft language meant to start the discussion about such defenses.

Traditionally, trademark law has eschewed per se exceptions. Much of its design assumes that avoidance of consumer confusion is imperative, even if high administrative costs and unpredictability result. However, this Article shows that trademark law can reduce administrative costs and improve protection of free speech without an unacceptable increase in the likelihood of consumer confusion. While safe harbors alone cannot resolve every case involving speech interests, at least they prevent the easy cases from contributing to the chilling effect. More generally, the analysis here demonstrates that categorical defenses deserve a greater role in the adjudication of trademark disputes.

3) Ashutosh Avinash Bhagwat (University of California, Hastings College of the Law), Associational Speech. The abstract states:

This article explores the relationship between the First Amendment right of free speech and the nontextual First Amendment right of freedom of association. The article provides important and new insights into this area of law, drawing upon recent scholarship to urge a substantial rethinking of the Court’s approach to this subject.

The article proceeds in three parts. In Part I, I explore the doctrinal roots of the right of association, and also review recent scholarship regarding the association right, as well as the provisions of the First Amendment addressing public assembly and petitioning the government for a redress of grievances. Drawing on these materials, I demonstrate that historically, the assembly, petition, and association rights were important, independent rights of co-equal status to the free speech and press rights of the First Amendment, and therefore that the Supreme Court’s modern tendency to treat the association right as subordinate to speech is incorrect. Building upon this conclusion, I then advance the novel argument that the key First Amendment rights of speech, assembly, petition and association, should be perceived as interrelated, and as mutually reinforcing mechanisms designed to advance self-government. In particular, I argue that one of the key functions of free speech in our system is to facilitate the exercise of other First Amendment rights, including notably the right of association. I describe this as the theory of associational speech. Part II explores the implications of the theory of associational speech for various areas of free speech doctrine, including notably incitement, hostile audiences, and the public forum doctrine. Finally, Part III explores some broader questions about what the theory of associational speech teaches us about the basic nature of free speech, and about the interrelationships between the various provisions of the First Amendment, including the Religion Clauses.

4) Aaron H. Caplan (Loyola Law School Los Angeles), Invasion of the Public Forum Doctrine , forthcoming in Willamette Law Review. The abstract states:

The public forum doctrine is like an invasive weed that has expanded luxuriantly after being transplanted beyond its native habitat. The metaphor of the “forum” was first used as a way to explain why the government cannot engage in prior restraint or content discrimination with regard to speaking, picketing, or leafleting on city parks and sidewalks. It has since outgrown these locations, becoming so pervasive that courts frequently assert that all government property must be some kind of forum. The reflex to invoke the public forum doctrine where it does not belong leads to a number of awkward results. When used in inapt situations, the doctrine does little to help lawyers and judges reach correct results, but instead introduces a branching series of dead ends, redundancies, and inefficiencies. Continued use of the public forum doctrine in these settings may hinder the development of better-fitting legal rules. A larger problem arises when the doctrine goes beyond inelegance to create genuinely unjust results.

For all of the debate that occurs over designating particular government properties as a traditional, designated, limited, or nonpublic forums, almost no effort has been applied to defining a forum itself. The law would be better served by recognizing that some locations for speech are simply not forums at all. As a step towards a better definition of a forum, this article identifies five features of a traditional public forum that help explain why these are spaces where the government must allow free-ranging discourse. It then examines the difficulties that result from invoking the public forum doctrine in factual situations lacking different combinations of these features.

5) David Orentlicher (Indiana University School of Law-Indianapolis), Prescription Data Mining and the Protection of Patients' Interests, 38 Journal of Law, Medicine and Ethics --- (2010). The abstract states:

This article considers efforts to address a long-standing, but increasingly refined practice that pharmaceutical companies use to enhance their drug-detailing efforts. Health care information organizations employ computer technology to collect and analyze data from prescriptions as they are filled at pharmacies. The organizations sell their analyses, which can include general prescribing trends as well as physician-specific data, to pharmaceutical companies so the companies’ sales representatives can better target their marketing activities. This “data mining” has provoked concern because it can not only exacerbate the harmful effects of drug detailing but also compromise other interests of patients.

In response, a few state legislatures have passed laws to prohibit or limit the use of data mining for marketing purposes. In turn, the laws have been challenged by the information organizations as violating their first amendment right to freedom of speech.

This article considers the policy arguments regarding legislative regulation of data mining. It also evaluates the constitutional implications of the regulations and concludes that the state provisions are desirable and should withstand constitutional challenge.

6) Jacob Weinrib (University of Toronto), What is the Purpose of Freedom of Expression?, 67 University of Toronto Faculty of Law Review 165 (2009). The abstract states:

Since freedom of expression is a Charter right, its purpose (or purposes) must be understood in relation to the broader values of the Charter. This note considers whether the traditionally articulated purposes of freedom of expression actually cohere with the values of the Charter framework in which the right of freedom of expression arises. The Supreme Court of Canada conceives of freedom of expression as (1) an instrument for the realization of truth; (2) an instrument of democratic self-government; and (3) an aspect of self-realization or human dignity. The author finds that, of the purposes traditionally understood to underlie freedom of expression, only the dignity of persons relates the broader values of the Charter framework to the realm of expressive activity. The author formulates a dignity-based conception of freedom of expression, defends it from objections, presents its doctrinal implications, and applies it to a recent controversy between Maclean’s and the Canadian Islamic Congress.

7) A. Jacob Werrett, Aligning Cyber-World Censorship with the Real-World Censorship, forthcoming in Connecticut Public Interest Law Journal. The abstract states:

Should six-year-old children be able to access “the largest pornography store in history?” They can. Should eleven be the average age that a child first views pornography? It is. Should children between the ages of twelve and seventeen represent the largest group of pornography consumers? They do. It is puzzling how a quintessentially adult activity has increasingly edged-out Saturday morning cartoons, homework, piano lessons, and T-ball games. Perhaps social consensus is that teenagers are best served by searching out porn 150 billion times a year. But, I doubt it.

Juxtaposing limitations on children's exposure to speech in the real-world versus the cyber-world reveals many inconsistencies. For example, an eight-year old child is not allowed into a strip club with a main street address, but is welcome to enter the same strip club at its URL address. Additionally, a ten-year old child cannot enter an adult bookstore and buy a pornographic book or video, but can enter the same bookstore and purchase pornographic books and videos online. Many arguments can be made about why these inconsistencies are appropriate, justifiable, and perhaps even preferable to the alternative – curbing constitutionally protected speech. Admittedly, the Internet is a special medium of communication; and the First Amendment safeguards for speech and press is a time-honored and important fourth check against our federal government. This article discusses what can be done to bring the unchecked cyber-world into step with the real world without undermining – what some believe is – the crowning characteristic of cyberspace: "[the fact that it is] the most participatory form of mass speech yet developed . . . [a medium] as diverse as human thought."

At first glance, censorship case law seemingly zigzags back and forth upholding a bizarre patchwork of conflicting ideals – one set for the real world and another for the cyber-world. For example, in Ginsberg the Court upheld the constitutionality of a New York statute that prohibited selling “obscene material” to children, including pornographic magazines. Similarly, in Renton, the Court upheld a zoning ordinance that prohibited adult movie theaters "within 1,000 feet of any residential zone, church, park or school," holding that the statute was justified in light of substantial evidence showing the adverse effects on neighborhood children and community improvement efforts. In Pacifica, the court found that the FCC had authority to prohibit certain speech that was "patently indecent" from being broadcast on the radio. These cases illustrate that the Supreme Court has supported many federal laws narrowly tailored to protect the development of minors.

At the other end of the spectrum, Courts have struck down several federal statutes aimed at censoring Internet speech to protect children. The two primary attempts to limit the sale of indecent speech by commercial entities on the internet were passed by the House and Senate, but neither held up under judicial scrutiny. The Communications Decency Act (“CDA”) was the first major attempt. In 1996, Congress added the CDA as a “second thought” amendment to a larger proposal. The CDA prohibited knowingly transmitting obscene or indecent messages to children under the age of eighteen via the internet. This statute was struck down by the Supreme Court as an undue burden on First Amendment protected speech. Indeed, CDA had not been carefully considered by Congress and some have been highly critical of the awful stage it set for future attempts to make the internet safe for children. Larry Lessig found CDA a “law of extraordinary stupidity; it practically impaled itself on the First Amendment.” And Professor Preston elaborated that it was, “thrown together without much thought, the CDA had techies nearly strangling their mouses in the vehemence of submitting their criticisms en blog.” The Child Online Protection Act (COPA) was the second major attempt by Congress to protect children through cyber-regulation.

In 2004, Congress created COPA in response to the overturned CDA, but failed to heed several direct warnings by the Supreme Court, that such a law would be unconstitutional. Wide-open Internet is not predominantly the fault of the Supreme Court. No doubt, Congress made colossal blunders in the legislation process. Each law Congress created fell short of the censorship standards required under the appropriate constitutional review for content regulated speech – strict scrutiny. Perhaps just as surprisingly, Congressional efforts since the CDA and COPA have either failed to catch momentum and have become largely irrelevant or have failed to heed the specific warnings of the Supreme Court in both Reno and Ashcroft. Examples of these more recent attempts to protect children online are discussed in the following sections.

From one perspective, the internet is a special "marketplace of ideas" and may deserve greater protection from censorship than other media. On the other hand, the internet is used in 1.5 billion homes, accessible by even the youngest children, and may be one of the most pervasive mediums available; and perhaps as such, should be regulated more heavily than less pervasive mediums.

This article presents guidelines and ideas for creating a constitutionally sound federal statute to protect children online. Part II discusses and analyzes past precedent to catalyze a discussion of how to create legislation to protect children online that will meet constitutional standards. As a result this section simultaneously discusses successful and unsuccessful legislative attempts to protect children in cyberspace. Part III analyzes several recent attempts to channel speech online. This section also discusses the past failures, successes, and potential of current legislative considerations. Part IV provides several possible strategies for protecting children without burdening online speakers or spectators. This section relies on past precedent and facts about the internet to piece together a coherent regulatory scheme that would provide nearly one hundred percent protection for those cyber-users who want to avoid the indecent and obscene. Finally, in Part V the article concludes by providing a starting point for dealing with an issue that is far from finished. Should six-year-old children be able to access “the largest pornography store in history?” They can. Should eleven be the average age that a child first views pornography? It is. Should children between the ages of twelve and seventeen represent the largest group of pornography consumers? They do. It is puzzling how a quintessentially adult activity has increasingly edged-out Saturday morning cartoons, homework, piano lessons, and T-ball games. Perhaps social consensus is that teenagers are best served by searching out porn 150 billion times a year. But, I doubt it.

Juxtaposing limitations on children's exposure to speech in the real-world versus the cyber-world reveals many inconsistencies. For example, an eight-year old child is not allowed into a strip club with a main street address, but is welcome to enter the same strip club at its URL address. Additionally, a ten-year old child cannot enter an adult bookstore and buy a pornographic book or video, but can enter the same bookstore and purchase pornographic books and videos online. Many arguments can be made about why these inconsistencies are appropriate, justifiable, and perhaps even preferable to the alternative – curbing constitutionally protected speech. Admittedly, the Internet is a special medium of communication; and the First Amendment safeguards for speech and press is a time-honored and important fourth check against our federal government. This article discusses what can be done to bring the unchecked cyber-world into step with the real world without undermining – what some believe is – the crowning characteristic of cyberspace: "[the fact that it is] the most participatory form of mass speech yet developed . . . [a medium] as diverse as human thought."

At first glance, censorship case law seemingly zigzags back and forth upholding a bizarre patchwork of conflicting ideals – one set for the real world and another for the cyber-world. For example, in Ginsberg the Court upheld the constitutionality of a New York statute that prohibited selling “obscene material” to children, including pornographic magazines. Similarly, in Renton, the Court upheld a zoning ordinance that prohibited adult movie theaters "within 1,000 feet of any residential zone, church, park or school," holding that the statute was justified in light of substantial evidence showing the adverse effects on neighborhood children and community improvement efforts. In Pacifica, the court found that the FCC had authority to prohibit certain speech that was "patently indecent" from being broadcast on the radio. These cases illustrate that the Supreme Court has supported many federal laws narrowly tailored to protect the development of minors.

At the other end of the spectrum, Courts have struck down several federal statutes aimed at censoring Internet speech to protect children. The two primary attempts to limit the sale of indecent speech by commercial entities on the internet were passed by the House and Senate, but neither held up under judicial scrutiny. The Communications Decency Act (“CDA”) was the first major attempt. In 1996, Congress added the CDA as a “second thought” amendment to a larger proposal. The CDA prohibited knowingly transmitting obscene or indecent messages to children under the age of eighteen via the internet. This statute was struck down by the Supreme Court as an undue burden on First Amendment protected speech. Indeed, CDA had not been carefully considered by Congress and some have been highly critical of the awful stage it set for future attempts to make the internet safe for children. Larry Lessig found CDA a “law of extraordinary stupidity; it practically impaled itself on the First Amendment.” And Professor Preston elaborated that it was, “thrown together without much thought, the CDA had techies nearly strangling their mouses in the vehemence of submitting their criticisms en blog.” The Child Online Protection Act (COPA) was the second major attempt by Congress to protect children through cyber-regulation.

In 2004, Congress created COPA in response to the overturned CDA, but failed to heed several direct warnings by the Supreme Court, that such a law would be unconstitutional. Wide-open Internet is not predominantly the fault of the Supreme Court. No doubt, Congress made colossal blunders in the legislation process. Each law Congress created fell short of the censorship standards required under the appropriate constitutional review for content regulated speech – strict scrutiny. Perhaps just as surprisingly, Congressional efforts since the CDA and COPA have either failed to catch momentum and have become largely irrelevant or have failed to heed the specific warnings of the Supreme Court in both Reno and Ashcroft. Examples of these more recent attempts to protect children online are discussed in the following sections.

From one perspective, the internet is a special "marketplace of ideas" and may deserve greater protection from censorship than other media. On the other hand, the internet is used in 1.5 billion homes, accessible by even the youngest children, and may be one of the most pervasive mediums available; and perhaps as such, should be regulated more heavily than less pervasive mediums.

This article presents guidelines and ideas for creating a constitutionally sound federal statute to protect children online. Part II discusses and analyzes past precedent to catalyze a discussion of how to create legislation to protect children online that will meet constitutional standards. As a result this section simultaneously discusses successful and unsuccessful legislative attempts to protect children in cyberspace. Part III analyzes several recent attempts to channel speech online. This section also discusses the past failures, successes, and potential of current legislative considerations. Part IV provides several possible strategies for protecting children without burdening online speakers or spectators. This section relies on past precedent and facts about the internet to piece together a coherent regulatory scheme that would provide nearly one hundred percent protection for those cyber-users who want to avoid the indecent and obscene. Finally, in Part V the article concludes by providing a starting point for dealing with an issue that is far from finished.

8) T. John O'Dowd (UCD School of Law), Pilate’s Paramount Duty: Constitutional 'Reasonableness' and the Restriction of Freedom of Speech and Assembly ,published in COMPARATIVE CONSTITUTIONALISM IN SOUTH ASIA, Khilnani, Sunil, Raghavan, Vikram and Thiruvengadam, Arun, eds., Oxford Univ Press India, 2010. The abstract states:

Sir James Fitzjames Stephen was one of the most subtle and obstinate critics of the arguments which John Stuart Mill put forward in On Liberty (1859), particularly Mill’s defence of liberty of thought and discussion. Stephen began composing this reply to Mill on the voyage back to England from India, where amongst other official duties, he had been responsible for the revision of the Indian Penal Code (IPC) so as to introduce an offence of sedition. Against this background it is particularly interesting to examine how the Indian courts have dealt with the IPC offences of sedition, of promoting enmity, hatred or ill-will between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony, of making imputations, assertions prejudicial to national integration, of committing deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and of making statements conducting to public mischief. In broad terms, these or similar offences are to be found also in the Penal Codes of Pakistan, Bangladesh and Myanmar (Burma). This book chapter focuses on India, as the only one of those countries in which (the Emergency apart) national electoral democracy and constitutional judicial review have consistently functioned. The chapter examines how the Indian courts have interpreted these parts of the IPC in the light of the constitutional guarantee of freedom of expression. It also considers the scope and use of the powers to impose prior restraints on freedom of speech and freedom of assembly which state governments and the executive magistracy have under sections 95 and 144 of the Indian Code of Criminal Procedure. The chapter also compares the approach of the Indian courts to expression likely to provoke enmity, hatred or ill-will on grounds of religion (or caste) with the approach taken to such matters by the European Court of Human Rights. It concludes by re-examining the disagreement between Mill and Stephen on the scope of liberty of thought and discussion, in the light of these examples of the relevant law and practice in South Asia.

JFB

First Amendment Scholarship Update – Speech

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

1) Neil M. Richards (Washington University School of Law), The Puzzle of Brandeis, Privacy, and Speech, 63 Vand. L. Rev. --- (2010). The abstract states:

Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis – his 1890 Harvard Law Review article “The Right to Privacy” and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this paper, I argue that the puzzle of Brandeis’s views on privacy and speech can be resolved in a surprising and useful way.

My basic claim is that Brandeis came to largely abandon the tort theory of privacy he expounded in “The Right to Privacy.” As a young lawyer, Brandeis conceived of privacy as a tort action protecting emotional injury from newspaper stories that revealed private facts. But Brandeis’s ideas evolved over his life. He soon came to believe strongly in a contrary idea he called “the duty of publicity.” This is the notion that disclosure of most kinds of fraud and wrongdoing are in the public interest; that as he famously put it, “sunlight is the best disinfectant.” When Brandeis came to think through First Amendment issues after the First World War, tort privacy could no longer consistently fit into his influential theories of civil liberty.

But while Brandeis changed his mind about tort privacy, what he replaced it with is even more interesting. In his Olmstead dissent and free speech writings, Brandeis identified a second conception of privacy that I call “intellectual privacy.” Brandeis reminds us that the generation of new ideas requires a certain measure of privacy to succeed, and that in this way intellectual privacy and free speech are mutually supportive. I conclude by suggesting some contemporary implications of Brandeis’s rejection of tort privacy and his linkage of intellectual privacy with free speech.

2) William McGeveran (University of Minnesota Law School), The Trademark Fair Use Reform Act, forthcoming in Boston University Law Review. The abstract states:

Sweeping assertions of exclusive trademark rights in brand names and images have a pernicious chilling effect on free expression, including fictional portrayals, commentary, political speech, parody, and comparative advertising. Some disputes lead to lawsuits. More often, speakers capitulate to litigation threats, even when the substance of the legal claims they face is very weak. As demonstrated in the author’s previous work, existing trademark “fair use” doctrines are not simple defenses that end suits quickly and cheaply, and many defendants cannot bear the resulting costs of protracted litigation.

Observers have proposed a variety of improvements to trademark fair use, but this Article focuses intensively on the decision-making structure of trademark law and ways to reduce its burdensome effects. The analysis draws on theoretical and doctrinal literature about administrative and error costs, rules and standards, and the design of independent defenses. Building on this foundation, the Article argues that reform of trademark fair use should emphasize the reduction of administrative costs and the risk of erroneous findings of liability for speech; should favor clear ex ante rules over more complex ex post standards; and should strive to separate consideration of fair use from the adjudication of the prima facie likelihood of confusion case. It then proposes categorical safe harbors for certain uses of trademarks as a central innovation, complemented by other broader standards. An Appendix contains draft language meant to start the discussion about such defenses.

Traditionally, trademark law has eschewed per se exceptions. Much of its design assumes that avoidance of consumer confusion is imperative, even if high administrative costs and unpredictability result. However, this Article shows that trademark law can reduce administrative costs and improve protection of free speech without an unacceptable increase in the likelihood of consumer confusion. While safe harbors alone cannot resolve every case involving speech interests, at least they prevent the easy cases from contributing to the chilling effect. More generally, the analysis here demonstrates that categorical defenses deserve a greater role in the adjudication of trademark disputes.

3) Ashutosh Avinash Bhagwat (University of California, Hastings College of the Law), Associational Speech. The abstract states:

This article explores the relationship between the First Amendment right of free speech and the nontextual First Amendment right of freedom of association. The article provides important and new insights into this area of law, drawing upon recent scholarship to urge a substantial rethinking of the Court’s approach to this subject.

The article proceeds in three parts. In Part I, I explore the doctrinal roots of the right of association, and also review recent scholarship regarding the association right, as well as the provisions of the First Amendment addressing public assembly and petitioning the government for a redress of grievances. Drawing on these materials, I demonstrate that historically, the assembly, petition, and association rights were important, independent rights of co-equal status to the free speech and press rights of the First Amendment, and therefore that the Supreme Court’s modern tendency to treat the association right as subordinate to speech is incorrect. Building upon this conclusion, I then advance the novel argument that the key First Amendment rights of speech, assembly, petition and association, should be perceived as interrelated, and as mutually reinforcing mechanisms designed to advance self-government. In particular, I argue that one of the key functions of free speech in our system is to facilitate the exercise of other First Amendment rights, including notably the right of association. I describe this as the theory of associational speech. Part II explores the implications of the theory of associational speech for various areas of free speech doctrine, including notably incitement, hostile audiences, and the public forum doctrine. Finally, Part III explores some broader questions about what the theory of associational speech teaches us about the basic nature of free speech, and about the interrelationships between the various provisions of the First Amendment, including the Religion Clauses.

4) Aaron H. Caplan (Loyola Law School Los Angeles), Invasion of the Public Forum Doctrine , forthcoming in Willamette Law Review. The abstract states:

The public forum doctrine is like an invasive weed that has expanded luxuriantly after being transplanted beyond its native habitat. The metaphor of the “forum” was first used as a way to explain why the government cannot engage in prior restraint or content discrimination with regard to speaking, picketing, or leafleting on city parks and sidewalks. It has since outgrown these locations, becoming so pervasive that courts frequently assert that all government property must be some kind of forum. The reflex to invoke the public forum doctrine where it does not belong leads to a number of awkward results. When used in inapt situations, the doctrine does little to help lawyers and judges reach correct results, but instead introduces a branching series of dead ends, redundancies, and inefficiencies. Continued use of the public forum doctrine in these settings may hinder the development of better-fitting legal rules. A larger problem arises when the doctrine goes beyond inelegance to create genuinely unjust results.

For all of the debate that occurs over designating particular government properties as a traditional, designated, limited, or nonpublic forums, almost no effort has been applied to defining a forum itself. The law would be better served by recognizing that some locations for speech are simply not forums at all. As a step towards a better definition of a forum, this article identifies five features of a traditional public forum that help explain why these are spaces where the government must allow free-ranging discourse. It then examines the difficulties that result from invoking the public forum doctrine in factual situations lacking different combinations of these features.

5) David Orentlicher (Indiana University School of Law-Indianapolis), Prescription Data Mining and the Protection of Patients' Interests, 38 Journal of Law, Medicine and Ethics --- (2010). The abstract states:

This article considers efforts to address a long-standing, but increasingly refined practice that pharmaceutical companies use to enhance their drug-detailing efforts. Health care information organizations employ computer technology to collect and analyze data from prescriptions as they are filled at pharmacies. The organizations sell their analyses, which can include general prescribing trends as well as physician-specific data, to pharmaceutical companies so the companies’ sales representatives can better target their marketing activities. This “data mining” has provoked concern because it can not only exacerbate the harmful effects of drug detailing but also compromise other interests of patients.

In response, a few state legislatures have passed laws to prohibit or limit the use of data mining for marketing purposes. In turn, the laws have been challenged by the information organizations as violating their first amendment right to freedom of speech.

This article considers the policy arguments regarding legislative regulation of data mining. It also evaluates the constitutional implications of the regulations and concludes that the state provisions are desirable and should withstand constitutional challenge.

6) Jacob Weinrib (University of Toronto), What is the Purpose of Freedom of Expression?, 67 University of Toronto Faculty of Law Review 165 (2009). The abstract states:

Since freedom of expression is a Charter right, its purpose (or purposes) must be understood in relation to the broader values of the Charter. This note considers whether the traditionally articulated purposes of freedom of expression actually cohere with the values of the Charter framework in which the right of freedom of expression arises. The Supreme Court of Canada conceives of freedom of expression as (1) an instrument for the realization of truth; (2) an instrument of democratic self-government; and (3) an aspect of self-realization or human dignity. The author finds that, of the purposes traditionally understood to underlie freedom of expression, only the dignity of persons relates the broader values of the Charter framework to the realm of expressive activity. The author formulates a dignity-based conception of freedom of expression, defends it from objections, presents its doctrinal implications, and applies it to a recent controversy between Maclean’s and the Canadian Islamic Congress.

7) A. Jacob Werrett, Aligning Cyber-World Censorship with the Real-World Censorship, forthcoming in Connecticut Public Interest Law Journal. The abstract states:

Should six-year-old children be able to access “the largest pornography store in history?” They can. Should eleven be the average age that a child first views pornography? It is. Should children between the ages of twelve and seventeen represent the largest group of pornography consumers? They do. It is puzzling how a quintessentially adult activity has increasingly edged-out Saturday morning cartoons, homework, piano lessons, and T-ball games. Perhaps social consensus is that teenagers are best served by searching out porn 150 billion times a year. But, I doubt it.

Juxtaposing limitations on children's exposure to speech in the real-world versus the cyber-world reveals many inconsistencies. For example, an eight-year old child is not allowed into a strip club with a main street address, but is welcome to enter the same strip club at its URL address. Additionally, a ten-year old child cannot enter an adult bookstore and buy a pornographic book or video, but can enter the same bookstore and purchase pornographic books and videos online. Many arguments can be made about why these inconsistencies are appropriate, justifiable, and perhaps even preferable to the alternative – curbing constitutionally protected speech. Admittedly, the Internet is a special medium of communication; and the First Amendment safeguards for speech and press is a time-honored and important fourth check against our federal government. This article discusses what can be done to bring the unchecked cyber-world into step with the real world without undermining – what some believe is – the crowning characteristic of cyberspace: "[the fact that it is] the most participatory form of mass speech yet developed . . . [a medium] as diverse as human thought."

At first glance, censorship case law seemingly zigzags back and forth upholding a bizarre patchwork of conflicting ideals – one set for the real world and another for the cyber-world. For example, in Ginsberg the Court upheld the constitutionality of a New York statute that prohibited selling “obscene material” to children, including pornographic magazines. Similarly, in Renton, the Court upheld a zoning ordinance that prohibited adult movie theaters "within 1,000 feet of any residential zone, church, park or school," holding that the statute was justified in light of substantial evidence showing the adverse effects on neighborhood children and community improvement efforts. In Pacifica, the court found that the FCC had authority to prohibit certain speech that was "patently indecent" from being broadcast on the radio. These cases illustrate that the Supreme Court has supported many federal laws narrowly tailored to protect the development of minors.

At the other end of the spectrum, Courts have struck down several federal statutes aimed at censoring Internet speech to protect children. The two primary attempts to limit the sale of indecent speech by commercial entities on the internet were passed by the House and Senate, but neither held up under judicial scrutiny. The Communications Decency Act (“CDA”) was the first major attempt. In 1996, Congress added the CDA as a “second thought” amendment to a larger proposal. The CDA prohibited knowingly transmitting obscene or indecent messages to children under the age of eighteen via the internet. This statute was struck down by the Supreme Court as an undue burden on First Amendment protected speech. Indeed, CDA had not been carefully considered by Congress and some have been highly critical of the awful stage it set for future attempts to make the internet safe for children. Larry Lessig found CDA a “law of extraordinary stupidity; it practically impaled itself on the First Amendment.” And Professor Preston elaborated that it was, “thrown together without much thought, the CDA had techies nearly strangling their mouses in the vehemence of submitting their criticisms en blog.” The Child Online Protection Act (COPA) was the second major attempt by Congress to protect children through cyber-regulation.

In 2004, Congress created COPA in response to the overturned CDA, but failed to heed several direct warnings by the Supreme Court, that such a law would be unconstitutional. Wide-open Internet is not predominantly the fault of the Supreme Court. No doubt, Congress made colossal blunders in the legislation process. Each law Congress created fell short of the censorship standards required under the appropriate constitutional review for content regulated speech – strict scrutiny. Perhaps just as surprisingly, Congressional efforts since the CDA and COPA have either failed to catch momentum and have become largely irrelevant or have failed to heed the specific warnings of the Supreme Court in both Reno and Ashcroft. Examples of these more recent attempts to protect children online are discussed in the following sections.

From one perspective, the internet is a special "marketplace of ideas" and may deserve greater protection from censorship than other media. On the other hand, the internet is used in 1.5 billion homes, accessible by even the youngest children, and may be one of the most pervasive mediums available; and perhaps as such, should be regulated more heavily than less pervasive mediums.

This article presents guidelines and ideas for creating a constitutionally sound federal statute to protect children online. Part II discusses and analyzes past precedent to catalyze a discussion of how to create legislation to protect children online that will meet constitutional standards. As a result this section simultaneously discusses successful and unsuccessful legislative attempts to protect children in cyberspace. Part III analyzes several recent attempts to channel speech online. This section also discusses the past failures, successes, and potential of current legislative considerations. Part IV provides several possible strategies for protecting children without burdening online speakers or spectators. This section relies on past precedent and facts about the internet to piece together a coherent regulatory scheme that would provide nearly one hundred percent protection for those cyber-users who want to avoid the indecent and obscene. Finally, in Part V the article concludes by providing a starting point for dealing with an issue that is far from finished. Should six-year-old children be able to access “the largest pornography store in history?” They can. Should eleven be the average age that a child first views pornography? It is. Should children between the ages of twelve and seventeen represent the largest group of pornography consumers? They do. It is puzzling how a quintessentially adult activity has increasingly edged-out Saturday morning cartoons, homework, piano lessons, and T-ball games. Perhaps social consensus is that teenagers are best served by searching out porn 150 billion times a year. But, I doubt it.

Juxtaposing limitations on children's exposure to speech in the real-world versus the cyber-world reveals many inconsistencies. For example, an eight-year old child is not allowed into a strip club with a main street address, but is welcome to enter the same strip club at its URL address. Additionally, a ten-year old child cannot enter an adult bookstore and buy a pornographic book or video, but can enter the same bookstore and purchase pornographic books and videos online. Many arguments can be made about why these inconsistencies are appropriate, justifiable, and perhaps even preferable to the alternative – curbing constitutionally protected speech. Admittedly, the Internet is a special medium of communication; and the First Amendment safeguards for speech and press is a time-honored and important fourth check against our federal government. This article discusses what can be done to bring the unchecked cyber-world into step with the real world without undermining – what some believe is – the crowning characteristic of cyberspace: "[the fact that it is] the most participatory form of mass speech yet developed . . . [a medium] as diverse as human thought."

At first glance, censorship case law seemingly zigzags back and forth upholding a bizarre patchwork of conflicting ideals – one set for the real world and another for the cyber-world. For example, in Ginsberg the Court upheld the constitutionality of a New York statute that prohibited selling “obscene material” to children, including pornographic magazines. Similarly, in Renton, the Court upheld a zoning ordinance that prohibited adult movie theaters "within 1,000 feet of any residential zone, church, park or school," holding that the statute was justified in light of substantial evidence showing the adverse effects on neighborhood children and community improvement efforts. In Pacifica, the court found that the FCC had authority to prohibit certain speech that was "patently indecent" from being broadcast on the radio. These cases illustrate that the Supreme Court has supported many federal laws narrowly tailored to protect the development of minors.

At the other end of the spectrum, Courts have struck down several federal statutes aimed at censoring Internet speech to protect children. The two primary attempts to limit the sale of indecent speech by commercial entities on the internet were passed by the House and Senate, but neither held up under judicial scrutiny. The Communications Decency Act (“CDA”) was the first major attempt. In 1996, Congress added the CDA as a “second thought” amendment to a larger proposal. The CDA prohibited knowingly transmitting obscene or indecent messages to children under the age of eighteen via the internet. This statute was struck down by the Supreme Court as an undue burden on First Amendment protected speech. Indeed, CDA had not been carefully considered by Congress and some have been highly critical of the awful stage it set for future attempts to make the internet safe for children. Larry Lessig found CDA a “law of extraordinary stupidity; it practically impaled itself on the First Amendment.” And Professor Preston elaborated that it was, “thrown together without much thought, the CDA had techies nearly strangling their mouses in the vehemence of submitting their criticisms en blog.” The Child Online Protection Act (COPA) was the second major attempt by Congress to protect children through cyber-regulation.

In 2004, Congress created COPA in response to the overturned CDA, but failed to heed several direct warnings by the Supreme Court, that such a law would be unconstitutional. Wide-open Internet is not predominantly the fault of the Supreme Court. No doubt, Congress made colossal blunders in the legislation process. Each law Congress created fell short of the censorship standards required under the appropriate constitutional review for content regulated speech – strict scrutiny. Perhaps just as surprisingly, Congressional efforts since the CDA and COPA have either failed to catch momentum and have become largely irrelevant or have failed to heed the specific warnings of the Supreme Court in both Reno and Ashcroft. Examples of these more recent attempts to protect children online are discussed in the following sections.

From one perspective, the internet is a special "marketplace of ideas" and may deserve greater protection from censorship than other media. On the other hand, the internet is used in 1.5 billion homes, accessible by even the youngest children, and may be one of the most pervasive mediums available; and perhaps as such, should be regulated more heavily than less pervasive mediums.

This article presents guidelines and ideas for creating a constitutionally sound federal statute to protect children online. Part II discusses and analyzes past precedent to catalyze a discussion of how to create legislation to protect children online that will meet constitutional standards. As a result this section simultaneously discusses successful and unsuccessful legislative attempts to protect children in cyberspace. Part III analyzes several recent attempts to channel speech online. This section also discusses the past failures, successes, and potential of current legislative considerations. Part IV provides several possible strategies for protecting children without burdening online speakers or spectators. This section relies on past precedent and facts about the internet to piece together a coherent regulatory scheme that would provide nearly one hundred percent protection for those cyber-users who want to avoid the indecent and obscene. Finally, in Part V the article concludes by providing a starting point for dealing with an issue that is far from finished.

8) T. John O'Dowd (UCD School of Law), Pilate’s Paramount Duty: Constitutional 'Reasonableness' and the Restriction of Freedom of Speech and Assembly ,published in COMPARATIVE CONSTITUTIONALISM IN SOUTH ASIA, Khilnani, Sunil, Raghavan, Vikram and Thiruvengadam, Arun, eds., Oxford Univ Press India, 2010. The abstract states:

Sir James Fitzjames Stephen was one of the most subtle and obstinate critics of the arguments which John Stuart Mill put forward in On Liberty (1859), particularly Mill’s defence of liberty of thought and discussion. Stephen began composing this reply to Mill on the voyage back to England from India, where amongst other official duties, he had been responsible for the revision of the Indian Penal Code (IPC) so as to introduce an offence of sedition. Against this background it is particularly interesting to examine how the Indian courts have dealt with the IPC offences of sedition, of promoting enmity, hatred or ill-will between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony, of making imputations, assertions prejudicial to national integration, of committing deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and of making statements conducting to public mischief. In broad terms, these or similar offences are to be found also in the Penal Codes of Pakistan, Bangladesh and Myanmar (Burma). This book chapter focuses on India, as the only one of those countries in which (the Emergency apart) national electoral democracy and constitutional judicial review have consistently functioned. The chapter examines how the Indian courts have interpreted these parts of the IPC in the light of the constitutional guarantee of freedom of expression. It also considers the scope and use of the powers to impose prior restraints on freedom of speech and freedom of assembly which state governments and the executive magistracy have under sections 95 and 144 of the Indian Code of Criminal Procedure. The chapter also compares the approach of the Indian courts to expression likely to provoke enmity, hatred or ill-will on grounds of religion (or caste) with the approach taken to such matters by the European Court of Human Rights. It concludes by re-examining the disagreement between Mill and Stephen on the scope of liberty of thought and discussion, in the light of these examples of the relevant law and practice in South Asia.

JFB

First Amendment Scholarship Update - Religion

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

1) Michael Young, In Defense of the Constitutionality of Critically Discussing Religion and Ethics in Schools in Light of Free Exercise and Parental Rights, 70 Ohio St. L. J. 1565 (2009). The abstract states:

This paper assesses whether a state could constitutionally mandate the critical discussion of religion and ethics in schools in a way that did not exempt religious objectors from participating. Such broadly critical courses have been proposed by numerous others; and such proposals and courses frequently meet protest from (especially fundamentalist) religious parents fearing an attempt to undermine their children's particular religious faith. Imagining that a state mandated participation in a course of "Critical Discussions," and attempting to take up the strongest imagined form of such a religious challenge, this paper concludes that the legitimate interests of the state in promoting skills of open discourse (and especially on ethical and religious topics) argues conclusively against any First Amendment or parental rights (14th amendment) need for religious exemptions from mandatory participation.

2) Mark Cladis ,Religion, Democracy, and Work: Emerson and Economic Crisis,Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

When our interpretations of Emerson’s political thought include rather than dodge or defuse his religion, our accounts of his work are enhanced. Among other things, we stand to learn much about his contributions to the democracy theory of his day and of our own, and new and bright light is cast on Dewey’s claim that Emerson is not only a philosopher, but that he is the Philosopher of Democracy.ﾔ I will highlight Emerson’s early and late religiosity, mainly focusing on the Divinity School Address (1838) and Worshipﾔ (1860). In these essays, we see an evolving, normative conception of religion in relation to democracy, or what I will call Emerson's spiritual democracy. I will identify two central and interrelated components of this Emersonian spiritual democracy, namely, self-reliance and work. These virtues belong to his conception of a democratic character and culture,that is, to the identity of a democratic nation and its citizens. In particular, I will highlight what he called the democratic practice work, Emerson’s an attempt to address the anomie and hardship that was brought on by rapid economic change.

3) Richard W. Garnett (Notre Dame Law School), Religious Liberty, Church Autonomy, and the Structure of Freedom, in CHRISTIANITY AND HUMAN RIGHTS: AN INTRODUCTION, John Witte, Jr. and Frank S. Alexander eds., pp. 226-238, Cambridge University Press, 2010. The abstract states:

What is the “right to freedom of religion,” a right which our leading human-rights instruments commit us to protecting, and what are the legal and other mechanisms that will sustain and vindicate our commitment? Some mechanisms might be better (or less well) designed for the purpose and so might work better (or less well) than others; some actors and authorities might be more (or less) reliable and effective protectors than others. In other words, the project of protecting human rights – including the right to religious freedom – involves not only reflecting on human goods and goals, but also wrestling with questions about institutional design and competence.

This chapter considers both the content of religious freedom and the ways it is protected and promoted. It proposes, first, that the “right to freedom of religion” belongs not only to individuals, but also to institutions, associations, communities, and congregations. Just as every person has the right to seek religious truth and to cling to it when it is found, religious communities have the right to hold and teach their own doctrines; just as every person ought to be free from official coercion when it comes to religious practices or professions, religious institutions are entitled to govern themselves, and to exercise appropriate authority, free from official interference; just as every person has the right to select the religious teachings he will embrace, churches have the right to select the ministers they will ordain.

Next, it is suggested that the right to church autonomy is a structural mechanism for protecting both the freedom of religion and human rights more generally. The relationship between the enterprise of protecting human rights and religious communities’ right to self-determination is a dynamic, mutually reinforcing one. Human rights law, in other words, protects church autonomy – it protects the freedom of religious communities to govern and organize themselves, to decide religious matters without government interference, to establish their own criteria for membership, leadership, and orthodoxy, etc. – and, in turn, church autonomy promotes the enjoyment and exercise of human rights. This mechanism is, John Courtney Murray thought, “Christianity’s basic contribution to freedom in the political order.” If we understand and appreciate this contribution, we will better understand and appreciate that often misunderstood and misused idea, “the separation of church and state.”

4) Julie A. Oseid (University of St. Thomas School of Law-(Minnesota),The Power of Metaphor: Thomas Jefferson’s ‘Wall of Separation between Church & State’.   The abstract states:

This article is the second in a planned series of articles about the writing qualities and habits of our most eloquent American Presidents. This article examines Thomas Jefferson and his use of one powerful metaphor to describe the First Amendment religion clause as “building a wall of separation between Church & State.” Perhaps no metaphor about church-state relations has been more powerful, more controversial, or more lasting. I leave the debate about whether Jefferson’s “wall of separation” metaphor is a brilliant, flawed, complex, or simplistic metaphor for the First Amendment religion clause to Constitutional scholars and historians.

Instead, this Article has other goals: to examine how Jefferson’s understanding of metaphor differed from the modern understanding of the use of metaphor in a legal context, to study how Jefferson came to use the “wall of separation” metaphor, to consider how the metaphor developed into a doctrinal metaphor substituting for the language and meaning of the First Amendment religion clause, and to glean lessons for legal writers from Jefferson’s “wall of separation” metaphor. The article concludes that Jefferson’s use of the “wall of separation” metaphor should serve as both inspiration and encouragement to modern legal writers as we craft our own metaphors.

5) Thomas Berg (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law ),What Same-Sex Marriage and Religious Liberty Claims Have in Common, forthcoming in Northwestern Journal of Law and Social Policy. The abstract states:

This Article, from a symposium keynote talk, presents a case for adopting significant religious accommodations for objectors to same-sex marriages. My thesis is that there are important common features between the arguments for same-sex civil marriage and those for broad protection of religious conscience. Even though the two are pitted against each other in disputes, the strongest features of the case for same-sex civil marriage also make a strong case for significant religious-liberty protections for dissenters. One implication is that there are good reasons for recognizing same-sex civil marriage. But the other implication is that if a state does so, it should enact strong religious accommodations too, as a matter of consistency and even-handedness.

Among the parallels, both same-sex couples and religious believers claim that their conduct stems from commitments central to their identity – love and fidelity to a life partner, faithfulness to the moral norms of God – and that they should be able to live these commitments in a public way, touching all aspects of their lives. If gay couples claim a right beyond private behavior – participation in the social institution of civil marriage – so too do religious believers who seek to follow their faith not just in houses of worship, but in charitable efforts and in their daily work lives. Therefore, I argue, religious accommodation ought to protect not just churches and clergy, but also religious nonprofit organizations like Catholic Charities, and as small businesses like the wedding photographer providing personal services related to a marriage.

6) Thomas Berg (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law), Religious Displays and the Voluntary Approach to Church and State, forthcoming in Oklahoma Law Review, The abstract states:

This article, from a keynote talk for a symposium on Ten Commandments monuments and other government religious displays, argues that the distinctive constitutional approach to church-state relations in America has been the “voluntary” approach, under which government leaves religious practice to the free decisions and energies of individuals and groups. Several principles within that approach call for invalidating official displays that endorse the religious truth of propositions such as the Ten Commandments. But another key component of the American constitutional approach is that religion remains important to public life: indeed, in America a primary argument for religious freedom and other human rights has been a religious argument that rights are God-given and therefore have priority over government authority. Thus, although religious voluntarism calls for invalidating many government-sponsored religious displays, the rationale for doing so must recognize multiple ways in which religion is relevant to public life at the most fundamental levels. The paper concludes with three suggested means of recognizing that relevance.

7) Mohamad Mova al 'Afghani, Religious Freedom in Indonesia Before and after Constitutional Amendments. The abstract states:

The Indonesian Constitution is very unique in terms of its relation between religion and the state. It is stated there that that the state is based “…on the belief in the One and Supreme God” but at the same time, it never explicitly mentioned the name of any established religion in the world. Historical interpretation into the constitutional drafting process and revelation from the founding fathers on their understanding of 'God' and religion reveals that the Constitution is neutral with respect to religions. However, the Constitution does prefer a theistic worldview over the non theist. The consequences for this is that the state may provide financial and other supports to the followers of religions (provide for positive discrimination) but must not interfere with the freedom of followers of any other worldviews in professing their beliefs. Recent amendment to the Constitution reinforces this neutral stance. This would have a significant impact on the constitutionality of blasphemy laws.

8) erlangga agustino landiyanto (Mahidol University), Abortion Policy in Indonesia: Rights, Law and Religious Perspectives. The abstract states:

Abortion became major issue in Indonesia. There are a lot of controversies behind the policy of abortion, but generally there are two poles of perspectives, pro-choice and pro-life. This paper tries to see abortion from different way and discuss macro-perspective of abortion from religious and legal perspectives as well as provides micro-analysis from individual perspectives to find the reasons why the women need to do abortion. With concerning to local and rights perspectives, this paper attempts to provide alternative or third perspective of abortion in Indonesia and provide alternative policy recommendation for this issue.

9) Nathan B. Oman (William & Mary Law School), Bargaining in the Shadow of God’s Law: Islamic 'Mahr' Contracts and the Perils of Legal Specialization, forthcoming in Wake Forest Law Review. The abstract states:

For a century, the general law of contracts has lost ground to specialized, transaction-specific bodies of law such as employment or labor law. Contracts scholars have generally lauded this development as an improvement over the formalistic rules of classical contract doctrine. This Essay takes a more ambivalent stance, arguing that legal specialization creates two dangers. First, specialized law necessarily rests on strong assumptions about how particular transactions unfold. The script implicit in the law, however, can encourage judges to misinterpret transactions that differ from that script. Second, when transactions differ from the implied narrative assumed by specialized law, the rules created by that law to deal with particular transactional forms may cease to serve a useful function, creating the danger of random, unjustified, or needlessly complex resolution of disputes. Both problems are on display in the application premarital agreement law to Islamic marriage contracts, which are increasing common in American courts. In this case, the law of premarital agreements is in part responsible for the courts’ consistent mischaracterization of Islamic marriage contracts as antenuptial agreements, which has potentially perverse consequences. Furthermore, because that specialized rules for premarital agreements were created for a different context, they allow parties to Islamic marriage contracts to escape liability where we have no reason to suppose that the contracts are otherwise suspect. Ironically, the much maligned general law of contracts provides better tools for policing abuse in such contracts than does the supposedly more nuanced law of premarital agreements.

10) Rayna Flye (University of California, Los Angeles), Making the Outsiders-Welfare Connection: How the Otherization of Welfare Affects Public Opinion on Social Assistance in the US and UK . The abstract states:

This paper addresses the relationship between diversity and public support for welfare, with the question: is support for the welfare state in the US and UK dependent upon who the perceived recipients are? I specifically examine whether negative attitudes towards out-groups (minorities) coupled with the belief that these groups disproportionately and undeservedly receive welfare benefits leads to a decrease in public support for welfare. This is done through the use of ANES and ESS survey data. I further argue that this is a message that citizens are receiving from the media and entrepreneurial politicians. This finding is reinforced by previously conducted content analysis of newspapers and tabloids. I refer to this coupling of welfare with out-groups, or Others, as the Otherization of Welfare. This paper examines not only race, but ethnicity, religion, and citizenship status as well.

11) June Carbone (University of Missouri at Kansas City School of Law) and and Naomi Cahn (George Washington University - Law School), Embryo Fundamentalism, forthcoming in William & Mary Bill of Rights Journal. The abstract states:

The battle for the future of assisted reproduction technologies (ART) has been joined. The tacit compromise underlying assisted reproduction - no laws are passed that even tangentially sanction embryo destruction and no laws are passed that intrude on the profitability of fertility treatments - may be coming to an end. As use of ART has increased, so have calls for supervision and oversight. In the wake of “Octomom” Nadya Suleman’s use of in vitro fertilization (IVF) to give birth to octuplets, the calls to regulate assisted reproduction have become even more pressing. At the same time, religious communities ambivalent about ART have increased the calls to reform ART practices to bring them more in line with religious teachings and spiritually informed notions of human dignity. In this paper, we focus on what may become a new flash point in the effort to craft normative understandings about assisted reproduction. That flash point is the treatment of the hundreds of thousands of extra embryos created through in vitro fertilization (IVF) and the efforts to pass legislation that will recognize these embryos as human beings and facilitate their "adoption." We examine the implications of these efforts for the future of assisted reproduction.

JFB

NYC Mulls Vendor Restrictions

The NYC Department of Parks and Recreation is considering ways to limit the number of artists allowed to sell their work in the city's public parks.  From the NY Times:

The proposed regulations would cap the number of vendors of “materials or objects with expressive content, such as newspapers, books, or writings, or visual art such as paintings, prints, photography, or sculpture,” in congested areas of specific parks. Vendors would be limited to designated spots apportioned on a first-come-first-served basis. The rules specify the dimensions of a seller’s table and the table’s proximity to public property like benches, transit stops and monuments.

Critics say the proposal violates the First Amendment, and that much of the concern about congestion results from the city's refusal to enforce existing regulations against corporate marketers and events.

-Kathleen Bergin

First Amendment Scholarship Update – Religion

Here is this week’s collection:

1) Mark Rahdert (Temple University - James E. Beasley School of Law), Forks Taken and Roads Not Taken: Standing to Challenge Faith-Based Spending.  The abstract states:

In Hein v. Freedom from Religion Foundation, Inc., the Supreme Court denied jurisdiction on the ground that the plaintiffs, as taxpayers, lacked standing to attack the constitutionality of alleged efforts to secure preferential federal funding for religious charitable organizations. In doing so, the Court split three ways on the proper scope and application of Flast v. Cohen, a Warren Court decision which allows taxpayer suits to challenge governmental spending allegedly in violation of the First Amendment’s Establishment Clause. While the Court did not overrule Flast, its decision casts substantial doubt over Flast’s future. This article explores the implications of Hein, both as a standing decision and as a harbinger of future Establishment Clause developments. After evaluating the theoretical limitations of existing standing jurisprudence, the article turns to reciprocity theory as a medium for explaining Flast’s deviation from Frothingham v. Mellon’s general rule against taxpayer standing. The article demonstrates that Flast is based upon the constitutionally non-reciprocal character of spending in aid of religion. It further demonstrates that Hein’s departure from Flast redefines the concept of constitutional injury in establishment cases, both by treating faith-based funding as reciprocal and thus indistinguishable from other sorts of spending, and by denying the existence of intangible or psychic injury when religious preference in the implementation of such funding allegedly occurs. As a consequence, Hein signals a major shift in Supreme Court thinking about the substantive scope of the Establishment Clause.

2) Jennifer Gerarda Brown (Quinnipiac University School of Law), Peacemaking in the Culture War between Gay Rights and Religious Liberty, 95 Iowa L. Rev. 747 ( 2010). The abstract states:

This Article takes seriously two important legal claims. The first claim, increasingly sounded by opponents of marriage rights for same-sex couples, warns that when private or governmental institutions create rights for gay and lesbian people, those institutions simultaneously and inevitably threaten opponents’ rights of religious liberty. The second claim, articulated — surprisingly enough — by at least two federal district-court judges, is that legal disputes involving these potentially conflicting interests can and should be resolved through mediation. The thesis of this Article is that these judges are correct: mediation holds tremendous potential in legal disputes that pit “gay rights” against “religious liberty.”

The argument for mediation proceeds in three steps. First, the article presents cases that illustrate the supposed conflict between gay rights and religious liberty: Peterson v. Hewlett-Packard (a dispute between an employer who posted gay-affirming posters and an employee who posted Bible verses, some condemning homosexuality, in response), Parker v. Hurley (a dispute between a public school and parents over discussions and materials depicting same-sex couples and their families), and Startzell v. City of Philadelphia (a dispute over a city’s arrest of some street preachers who were protesting at a gay-pride festival). Next, the article describes mediation and four of its comparative advantages over unassisted negotiation or litigation in our paradigmatic cases: (1) it addresses psychological barriers to agreement; (2) it allows each disputant to develop a deeper and more nuanced understanding of the other; (3) it focuses on the parties’ ongoing relationship; and (4) it dovetails the parties’ different but often complementary interests. Finally, the article imagines how mediation might have dealt with the conditions that prevented negotiated resolution in each of the paradigmatic cases. In this effort, I am aided by interviews I conducted with participants in these cases. Conversations with some of the individuals involved reveal interests and perspectives that the pleadings and court opinions do not capture.

3) Ekaterina Yahyaoui Krivenko (University of Montreal - Faculty of Law), Muslim Women's Claims to Refugee Status within the Context of Child Custody Upon Divorce Under Islamic Law , 22 International Journal of Refugee Law. 48 (2010). The abstract states:

This article analyses case law from the UK, New Zealand, and Canada relating to claims for recognition of refugee status presented by divorced Muslim women, revolving around the issue of child custody after divorce under conservative Islamic law, which deprives women of any meaningful relationship with their children. The negative attitude of the UK authorities is compared to the open and positive approach of decision makers in New Zealand and Canada. The use and interpretation of aspects of the refugee definition, such as persecution, particular social group and the standard of state protection, are analyzed in more detail. The article argues that, in order to adequately evaluate this type of claim, decision makers should take into account all aspects of a woman's experiences including the consequences of the decision on their children.

4) Cleland B. Welton II (University of Virginia - School of Law), Note - The Future of Locke v. Davey, forthcoming in Virginia Law Review. The abstract states:

The Supreme Court’s decision, in Zelman v. Simmons-Harris, to uphold a voucher program allowing state funds to be diverted to sectarian schools, did not address the question whether such programs are constitutionally required to include religious institutions. Locke v. Davey had the potential to resolve this question, but a surprisingly lopsided 7-2 majority decided the case without squarely addressing it. Davey upheld Washington’s refusal to allow a student to apply a state scholarship towards a degree in “devotional theology,” and it appeared, on its face, to be limited to “the State’s interest in not funding the religious training of clergy.” Yet the Court’s asserted principle of “play in the joints” between the Establishment and Free Exercise Clauses suggested a rationale with much broader implications: A mere denial of funding does not by itself create a cognizable burden on religious practice. Davey did not make clear which line of reasoning should control, and the first two federal appellate court decisions addressing the case are in fundamental disagreement about its meaning and scope.

This Note responds to these developments for the first time, and concludes that a circumscribed version of the no-burden rationale should control Davey’s future application. The opinion’s discussion of the clergy is a red herring, because ultimately the Court found no violation of any constitutional right, meaning that the exclusion required no more than a merely “legitimate” justification. And while the Court suggested that there was no neutrality problem, it did so in such a way as to highlight the fact that neutrality is an incoherent concept unsuited to a sound understanding of the religion clauses. Furthermore, the no-burden rationale is founded on a theory – free exercise as an autonomy right – that is of a piece with our understanding of other similar rights. Of course, the state’s power is not unlimited, and the paper concludes by offering four important restrictions. This reading of Davey harmonizes the case with other Religion Clause doctrine, and protects religious liberty while allowing local governments the freedom to adapt policy to local conditions.

5) Jerold Waltman, RLUIPA at Ten: an Assessment, Western Political Science Association 2010 Annual Meeting Paper.  The abstract states:

Congress passed the Religious Land Use and Institutionalized Persons Act in 2000 in order to widen the scope for free exercise. It was declared constitutional (or a portion of it was) in 2005. This paper is an attempt to assess how much impact the law has had in land use policy and prison administration.

6) Andrea Hatcher,The British Invasion and the Social Transformation of American Evangelicals, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

This research compares political behaviors of American and British evangelicals to explore the sources and implications of the disparity in their public action. As American and British evangelicals share religious beliefs and practices, they differ in styles of civic involvement. Among American evangelicals, civic action means political involvement, but British involvement is less political than social. British evangelicals work to change social norms rather than governmental policy, in contrast to the American tradition of making social issues political ones. There is, however, evidence of a transformation as issues such as the environment and human rights emerge on the agenda of American evangelicals. Not coincidentally, these issues have diffused to American evangelicals from their British counterparts. One consequence of these findings is that if British evangelicals are shaping what American evangelicals are talking about, then British evangelicals also are shaping how American evangelicals are talking. The political role of American evangelicals might be expected to diminish, thereby removing much popular criticism of them for it.

7) Charles Hirschkind, The Contemporary Afterlife of Moorish Spain, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

In this talk I will begin by examining how Spain's Moorish past hasbeen taken up as a problem and affirmed as an inheritance by a fewdifferent Spanish thinkers responding to conditions of social andpolitical crisis. Within the dominant currents of Spanishhistoriography, the final defeat of Spain's Muslim rulers in the 15thcentury and the subsequent expulsion of the Muslim and Jewishpopulations from its territories stand as the founding events of theSpanish nation. Yet, despite a vigorous and sustained attempt withinSpanish historiography to erase Islam (and Judaism) from Spain, acounter-history on the lasting imprint left on Spanish life left byeight hundred years of Muslim presence. In the twentieth century a historiographic literature emerged that aimed at affirming and documentingthe heterogeneity of Spain's historical origins and the contributionof Islam to Spanish national culture and identity. In addressing thisliterature, I aim to highlight the historical sensibilities,attitudes, and practices that ambivalently link the Spanish nation toits Muslim past. I then turn to someof the contemporary movements that incorporate a lived relation to theIslamic past as a condition of ethical agency to explore fissures within contemporary narratives of Europe's Judeo-Christian identity and contribute to debates about religious pluralism within western societies.

8) Robert W. Scharr, Controversy Across Communities: The Role of Race in the Drive to Restrict Teen Abortions in California, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

Multiple times over the course of the last decade, many attempts have been made to pass an abortion parental notification law via ballot initiative in California. While all said attempts thus far has failed, supporters of the initiative persist due to the issue's undying controversy. This paper looks at how the question of race figures into the breakdown of support and opposition for more restrictive abortion laws, and considers economic inequality, religion, cultural traditions and geographic factors for each major racial group. It also makes use of both quantitative (pre-election polling, Census data, and election returns) and qualitative (in-depth interviews asking subjects of various racial backgrounds their perspectives on religious and social questions) data, and predicts future trends as to where the issue is headed based on immigration and public opinion.

9) Bobbi Adams, Economy and the Pluralism of Modern Ireland, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

This paper examines the changing dynamics of pluralism and its relationship to the economy of twenty-first century Ireland. The popular image of Ireland is one of an ethnically and culturally homogenous society. While this popular image of Ireland has always been somewhat suspect, Ireland in the wake of its booming economy of the last twenty years is experiencing an unprecedented level of integration with Europe and the outside world; this has lead to a greater diversity and immigration into Ireland from Africa, Eastern Europe and elsewhere. Ireland needs to define the place of the increasing number of minorities and minority groups. It is not certain whether Ireland is destined to become a pluralistic society or remain a nation state with a hegemonic religion and culture. In the last few years there has been a backlash against the immigrants and their integration even resulting in constitutional amendment limiting citizenship rights. This paper will examine whether in part this backlash is economic or cultural. In examining pluralism and Irish political strategies to deal with itself as a diverse society this paper argues, moreover, that Ireland will transform itself into a more modern pluralistic version of the nation state. Like some of its European counterparts, Ireland will seek to maintain its national identity, while creating space for pluralistic expression.

10) Tina Ruggeiro, The Gender Gap and its Effect on Presidential Campaigns and Political Ads. The abstract states:

In America women not only vote differently than men but they also vote in larger numbers (Poggione). In 2000, 56 % of women turned out while only 53% of men voted. This translated to 8 million more women in the electorate (Schaffner, 804). Women tend to vote for the candidate who talks about issues that they consider to be most important including, healthcare, education, welfare, elderly, and war and peace issues. Research has shown that this is true regardless of party and ideology (Poggione). The gender gap is the idea that women are more liberal than men and tend to care about different issues. The issues like healthcare, education, welfare, elderly and war and peace are referred to as "women's issues." Women place more of an emphasis on issues when they vote than on party and ideology. Some scholars have found that gender is the largest contributing factor that determines how one will vote. Others say that there are stronger factors such as socioeconomic status, party affiliation, the region in which one resides, and a person’s religious affiliation that determine how a woman will vote. The questions driving this paper are: do candidates develop strategies that appeal specifically to women in order to garner votes? Will the candidate who includes more of these issues in his or her campaign message win the female vote? To carry out my research I coded political ads from the 2008 general election campaigns of Barack Obama and John McCain to determine which candidate had more ads focused on issues that have been determined to attract women. I anticipated that the presidential candidate who spoke to women’s issues most during the campaign would maximize his or her chances of securing the female vote at election time. Ultimately this study will assess candidate behavior through political ads to determine whether or not targeting women’s issues in a campaign message helps a candidate win the female vote.

11) Joseph Devaney, The Tenth Amendment as a Bill of Rights, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

While it is commonly agreed upon that one of the primary Anti-Federalist objections to the Constitution was the absence of a bill of rights, the significance of that objection is commonly misunderstood. The essential purpose of a bill of rights, for the Anti-Federalists, was to preserve the prerogatives of the several statesﾗthose subtle and often fragile political, legal, and social arrangements which evolved over a long period of time at the state levelﾗagainst the powers of the national government. The Anti-Federalists, finding little comfort in a constitution which did not explicitly reserve powers to the several states, unapologetically sought unambiguous constitutional protection for the prerogatives of the states. The Anti-Federalists underscored state prerogatives pertaining to matters such as liberty of the press, religious liberty, and criminal procedure, especially trial by jury. These liberties were conserved in state constitutions, state statutes, and the common law. Explicit constitutional language for the protection of these prerogatives was culled, not only from statesﾒ bills of rights, but from Article II of the Articles of Confederation. For any Anti-Federalists, such a reservation of powers to the states, which would be proposed by the First Congress and ratified as the Tenth Amendment, was effectively an abridged bill of rights.

12) Ani Sarkissian (Michigan State University Dept. of Political Science), Tolerating Alternative Voices in Islam: Prospects for Pluralism and Democracy in the Muslim World , Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

Are there limits to the expression of Islam in Muslim majority countries? This paper presents evidence from Muslim-majority countries, focusing in particular on Turkey and Central Asia, to demonstrate that minority Muslim movements are restricted in both secular and religious Islamic countries due to official restrictions against religious expression. I find that intolerance of dissenting or alternative Muslim voices is a result of state-centered policies that attempt to control all aspects of religious expression by formulating a single official version of Islam. I thus conclude that religious conflicts in majority Muslim countries are less a result of sectarian tensions and instead indicative of the nature of power relations. Struggles over the distribution of resources in the developing world contribute to the unequal treatment of both Muslim and non-Muslim minorities, and continue the pattern of authoritarian rule that persists across much of the Muslim world.

13) Alisa Kessel, Hannah Arendt on the Crisis of Authority, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

In the 1950s, Hannah Arendt wrote that the modern world faced a crisis of authority because authority had 'vanished from the modern world' (Hannah Arendt. 'What Is Authority?' Between Past and Future. Penguin: New York,1968. P. 91). Most scholars take Arendt to be lamenting the loss of a republican and conservative notion of authority. In this essay, I agree that Arendt's invocation of the Roman concept of foundation is a conservative move, but I argue that it is a conservative move that makes a radical kind of politics possible. In particular, this essay reflects on Arendt's notion of authority (and its connections to tradition and religion) in order to re-imagine a Roman notion of the authority of political foundings that is fluid and (re-)invigorated by the ongoing political practices of citizens. The crisis of authority that is evident with the loss of authority is not, as some would argue, merely that the world needs more authority, but rather, that without a particular kind of authority to ground politics, humans also lose the capacity for freedom.

14) Brian Patrick LiVecchi ,'The Least of These:' A Constitutional Challenge to North Carolina’s Sexual Offender Laws and Section 14-208.8.  The abstract states:

“We feel it is a good law. When a person takes advantage of a child, I don't worry about their constitutional rights." North Carolina state Sen. David Hoyle, Dem., sponsor of the North Carolina law that resulted in a registered sex offender being arrested for attending a chuch worship service. The law, enacted as part of the nationwide response to the death of Jessica Lunsford, created zones into which offenders could not travel knowingly. These zones included such vague locations as places "where children gather." The offender, James Nichols, challenged the constitutionality of the law, and a superior court judge dismissed the charges against him, finding the law to be unconstitutional on several grounds. The State of North Carolina is currently appealing the decision of Superior Court Judge Allen Baddour, and are seeking to continue to enforce the law against church-going offenders.

This paper examines the evolution of contemporary sex offender regulations in general over the past several decades, beginning with the first registration requirements and covering the latest restrictions on travel, satellite based monitoring, and residency restrictions. The paper addresses the challenges that have been brought in each stage of this evolution, and culminates with an analysis of the constitutionality of North Carolina’s attempt to banish sexual offenders from their communities, and prevent them from meaningfully participating in society. The case of James Nichols is discussed as an example of the arbitrary and "knee-jerk" nature of legislative responses to sex offenders.
The paper also addresses several myths surrounding sexual crime, and exposes the error in basing legislation affecting fundamental rights on such myths as “stranger danger,” and the threat of sex offender recidivism. The paper discusses the impact that public opinion and the electoral process have on legislative responses to crimes against children and the media attention that those crimes receive.

The paper concludes with recommendations to the North Carolina General Assembly and North Carolina Courts that the legislature and courts of any state would be well served to consider in seeking to protect its children while safeguarding its constitution.

15) Robert Brathwaite and Andrew Bramsen, Reconceptualizing Church and State, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

In this article, we address the need to reconceptualize the relationship between democracy and the separation of religion and state. We argue that previous studies have misconceptualized the impact religion can have on democracy, or have taken a narrow focus by concentrating on specific cases. We use principle component analysis and a large-n dataset covering 125 countries to show that the separation of religion and state should be conceptualized multi-dimensionally and that it should be considered a component of democracy. Our findings also show that as separation of religion and state increases the level of democracy also increases.

16) Nisha K. Nath, The Citizen Insider/Outsider: Governmentality, Citizenship and Quebec's Reasonable Accommodation Commission , Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

Citizenship is often described substantively and formally as delineating between insiders and outsiders. Yet the neatness of these boundaries of inclusion and exclusion has been uniquely and heavily tested by recent events in the Canadian province of Quebec. In the spring of 2006, Quebec's media began to report on a number of curious themes, all of which reinforced a growing consensus that cracks were appearing in Canada's multicultural mosaic. Invective language referenced ethnic enclaves, the discourse of tolerance resurfaced with full force, and a powerful Othering discourse, engaging with notions of race and gender, collided with conceptions of religion, culture, and secularism. Perhaps most critically, a discourse on reasonable accommodation - on the extent to which the dominant society in Quebec should accommodate designated 'others' - dominated common parlance while discussions of systemic inequality faded into the background. By February 2007, months of controversy culminated in the establishment of The Consultation Commission on Accommodation Practices Related to Cultural Differences.By examining media reports, commission submissions, and the commissions final report, this paper explores the idea of the citizen that straddles lines of inclusion and exclusion - the citizen insider/outsider. In addition to unpacking the particular profile of this citizen, this paper explores how a governmentality approach to citizenship may deepen our understandings of what we require from different constituencies of citizens, and how citizen insider/outsiders are cultivated and conducted to act within particular regimes of possibility.

17) Justin Hackett and Michael A. Hogg (Claremont Colleges - Claremont Graduate University),The Diversity Paradox, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

Many societies place value on diversity. The logic is that if people value living in communities that are diverse with respect to race, ethnicity, culture, religion, social values, socioeconomic status, and attitudes they will become tolerant and accepting of human differences. There is however a potential anomaly hereﾖa diversity paradox. The psychology of groups has shown that groups accentuate and value intragroup similarity and intergroup difference. Two experiments examined the influence of this paradox on community identification. We found, subjective importance of diversity predicted increased identification when people were uncertain and believed the community was attitudinally homogeneous (motivated to identify because attitudinal homogeneity cued a sense of being included with and accepted by like-minded others), and when people were certain and believed the community was attitudinally diverse (identified more when attitudinal diversity indicated consistency between valuing diversity and being in a group that was genuinely diverse). Additionally, the importance of diversity predicted increased identification when people felt value similarity within the community was important. An intriguing paradox emergesﾗthose who believe it is important to live in an ideologically diverse community identify with the community more when it is important that other community members all cherish similar values.

18) Zachary White (Columbia University - Department of Political Science), Transformative Toleration,
Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

There are principles and bodies of theory that have developed in the West to define the limits and kinds of allowable state interference in religious practice on one hand, and religious claims on state resources, recognition, and social authority on the other. The configurations of religion, state, and society that have evolved under these principles and theories have come to enjoy fairly stable acceptance. But as these configurations come into contact with public and nomothetic religions like Hinduism and Islam, tolerant states will have to newly specify or clarify tolerationﾒs limits in many areas, and these limits, however carefully they are drawn, are likely to be deeply contested. Consequently, the new circumstances confronted by secularism and toleration place much nearer their theoretical centers an adequate normative and practical response to this contestation. In general, as Rawls and Habermas have insisted, the stability of toleration requires that those whose practices fall outside tolerationﾒs limits come, over time, to affirm those limits for internal reasons. But attempts to grapple with this transformative dimension of toleration have not taken sufficient account of its normative difficulties. The aim of this paper is to begin to get a clearer picture of the normative difficulty and to begin to sketch a phenomenologically plausible picture of how transformation might come about.

19) Richard Haesly and Liesl Haas, My Neighbor''s Keeper: Religious Identity, Community Membership, and the Creation of Policy Preferences, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

For many Americans church membership represents their primary local community, but this religious identification is embedded within, and inseparable from, the larger American society. We examine the role of church membership in encouraging individuals to develop policy positions on national issues, and we explore the conditions under which religiously active Americans are willing to alter their policy preferences. We conduct focus groups in Evangelical and non-Evangelical Christian congregations in Los Angeles and Orange County, CA, which are home to a strong Evangelical presence that coexists with high levels of religious, class, and ethnic diversity in the larger population. The focus groups center on discussions of three contentious issues: health care, immigration and gay marriage. We have selected these because we observed important variations among Evangelical participants in previous research and these issues address the notion of community in interesting and important ways. The focus groups probe conditions under which the sense of responsibility for the congregation expands to include identification with those outside the church. When do individuals think more narrowly of the impact of government policy on fellow congregants, and when does their frame of reference broaden to include the larger local, state, and national community? To what extent do congregants alter public policy positions as the frame of reference of their community broadens or contracts?

20) Ali A. Valenzuela (Stanford University - Department of Political Science), Religious Observance, Political Attitudes and Racial/Ethnic Identity in American Politics, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

Recent research on White Americans finds an emerging political divide between individuals with orthodox religious views who worship regularly, regardless of religious tradition, and those with less orthodox beliefs who seldom worship. Existing scholarship does not examine a possible traditionalist-modernist divide among minorities. This paper examines whether daily prayer, church messages and activities, or beliefs about the Bible exert a direct effect on Latino, Black and Arab American party attachments, propensity to engage in politics, or sense of ethnic/racial group consciousness beyond any effects of religious tradition Answers will shed light on whether growth in religiosity among minorities could lead to increasing conservatism and engagement in politics, or to stronger ethnic attachments and greater Democratic support. I aim to clarify these issues using the 2008 American National Election Studies' (ANES) Time Series, which contains over-samples of Latino and African American respondents that enable multiethnic comparisons, the 2000 Tomás Rivera Policy Institute study of Hispanic Churches in American Public Life (HCAPL), the 2004 National Politics Study (NPS) and the 2003 Detroit Arab American Study (DAAS).

21) John P. Tuman (UNLV - Department of Political Science), Danielle Roth-Johnson (UNLV - Department of Women's Studies),and Ted G. Jelen ( UNLV), Context and Conscience: Public Attitudes Toward Abortion in Mexico, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

In recent years, abortion has become a salient issue in Mexican politics. In this study, we intend to use data from the World Values Surveys to acertain the correlates of attitudes toward abortion among Mexican mass publics. We will examine the effects of attitudinal variables (respect for life, attitudes toward sexual morality, feminism, ideology), religious variables (Catholicism, doctrinal orthodoxy, church attendance) demographic variables (gender, age, education, female labor force participation) and region. We estimate models with ordered logistic regression, while controlling for regional effects and other influences on attitudes.

22) Christina Doonan (Department of Political Science, Rutgers University), 'Solidarity or Moral Crusade? Pepfar and the Anti-Prostitution Pledge' , Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

In 2003 the Bush government announced the "President's Emergency Plan for AIDS Relief" (PEPFAR), promising $15 billion for programs combating the international AIDS epidemic over five years - a program which was renewed in 2008 for another five years. Despite the apparent magnanimity of this gesture, there is a caveat involved, and one heavily criticized even amongst those who praise PEPFAR: the "anti-prostitution pledge." Linking prostitution and trafficking to the spread of HIV/AIDS, the pledge requires that grantees explicitly condemn sex work and sex trafficking. The same political forces behind the anti-prostitution pledge, namely the Christian right, have entered into alliances with a minority of American feminists in the creation of similar policies, such as the "Trafficking Victims Protection Act" (TVPA). This paper explores the impact that PEPFAR has had on NGO work with respect to HIV/AIDS, the theoretical assumptions that allow certain feminists to enter into alliances over such initiatives with what would otherwise be political rivals, and how religious social teaching motivates political behavior. The answers to these questions provide at least a partial answer to how it is that the policy goal of eradicating a disease has turned into a regime of U.S. global sexual regulation.

23) Andria Black and Richard Haesly, Composing a Nation: French Nationalism, a Cultural Perspective, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

For many, France is a paradigmatic case of how a nation is forged. This process has been seen primarily as determined by historical and institutional (e.g., linguistic, religious, and state-building bureaucratic) forces. Some have noted that French appreciation of the arts has influenced their conception of national identity and that the construction of the French nation influenced what was appreciated art. Yet the works that mention culture do not intensively investigate how culture influences and is influenced by nationalism. More importantly, this literature does not look at culture through art, especially music, which unites the masses through the construction of a national identity due to its ability to cross other social cleavages. I systematically analyze reviews, commissioned works, awards, biographies, and lithographs to show how composers and premier educational institutions influenced, and were influenced by, the nation-building process and the formation of a French national identity. My examination includes the French Revolution (the foundation of the French nationalist movement), the Napoleonic era and the 1830 Revolution (the foundation of many composersﾒ political understanding), and 1870-1914 (the culmination of the French nationalist movement). The paper demonstrates that, while the construction of culture is influenced by state-building, it also plays a more significant role in the development of a nationalist identity than has been previously understood.

24) Meltem Ersoy, Moderation of Islamic Political Parties and the Impact on Society, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

Moderation manifests itself in the tendencies of the Islamist parties to engage in more pluralist politics, tone down their religious rhetoric, embrace free market economies, open to debate the absoluteness of religious texts, albeit in different combinations and degrees. The explanations for this have mostly either focused on the role of inclusion and repression in the political processes or the role of the business sector, therefore ended up emphasizing the elites as the determining social actors. Thus the major line of thought tends to leave out the larger popular sectors both within the Islamist movements, if not represents them as the obedient followers of the political and economic elites. This paper aims to bring in the often neglected terrain of grass roots politics both within the Islamist movements and in the wider domain of ideologically ambivalent popular sectors by looking at the interaction between the movements and the people. In order to bring in this perspective, this paper examines the impact of the Islamist political party on the society and questions whether the ideological and behavioral transformations of the party leads to a wider electoral base in the society and through which they culminate into an ideational shift among the popular sectors, hence making moderation a source for more enhanced diffusion of party's goals and values. The governing Justice and Development Party (AKP) of Turkey is the case study through which these questions are examined.

25) Sophia Wilson,Nationalism, Ethnic Minorities and Judicial Behavior in the Post-Soviet World, Western Political Science Association 2010 Annual Meeting Paper. The abstract states: 

A diverse Soviet world with seemingly peacefully coexisting ethnic groups was challenged by the ethnic conflicts and turmoil after its collapse. How do people in the former Soviet countries view ethnic diversity and how are these views reflected in institutional behavior? This paper analyses public views on democracy in the area, which exclude the protection of the rights of minorities. Moreover, my research shows that judicial rulings often reflect racism and nationalism of the public in the post-Soviet world. My research shows that courts in the area attempt to support journalistic liberties but heavily discriminate ethnic and religious minorities. Relying on the original fieldwork, which includes public polls, court documents, interviews with lawyers and journalists in Tajikistan, Azerbaijan and Ukraine, I argue that judicial rulings regarding press freedoms and the rights of ethnic minorities in these countries heavily rely on public opinion and norms. Public norms regarding human rights in these countries are a function of (a) socially enforced self-serving beliefs; and (b) post-Soviet national revival, i.e. concepts, which were asserted as a part of nation-building processes after the collapse of the USSR. A comparison of the judiciaries and their role in the development/suppression of human rights across the post-Soviet world has not been previously performed and will expand significantly current understandings of nationalism and institutional behavior in the area.

26) Elizabeth Oldmixon and David Schecter, Needs, Norms and Food Policy in the U.S. House of Representatives, Western Political Science Association 2010 Annual Meeting Paper. The abstract states: 

This paper explores legislative behavior on food policy in the U.S. House of representatives. Historically, policymaking in this area has been decidedly bipartisan. We are especially interested in whether that pattern holds, in the context of a decidedly partisan era. Moreover, we pay special attention to the influence of religious affiliation. Scholarship investigating the influence of religion on legislative behavior often focuses on cultural issues, such as abortion and gay rights. We argue, however, that a more rigorous test of the influence of religion on legislative behavior should focus on a broad array of issues, such as domestic social policy. The polity may not understand this domain in explicitly religious terms, but religious values are clearly implicated in issues of poverty and justice. To test this argument, this paper analyzes a vote on food policy in the U.S. House of Representatives. The findings indicate that while party, ideology, and district need affect legislative behavior, so too does religious affiliation.

27) Mark Cladis, What to do about Religion in Emerson’s Political Vision?, Western Political Science Association 2010 Annual Meeting Paper. The abstract states: 

When our interpretations of Emerson's political thought include rather than dodge or defuse his religion, our accounts of his work are enhanced. Among other things, we stand to learn much about his contributions to the democracy theory of his day and of our own, and new and bright light is cast on Deweyﾒs claim that 'Emerson is not only a philosopher, but that he is the Philosopher of Democracy.' I will highlight Emerson's early and late religiosity, mainly focusing on the Divinity School Address (1838) and Worship (1860). In these essays, we see an evolving, normative conception of religion in relation to democracy, or what I will call Emerson's spiritual democracy. I will identify two central and interrelated components of this Emersonian spiritual democracy, namely, self-reliance and work. These virtues belong to his conception of a democratic character and culture that is, to the identity of a democratic nation and its citizens. In particular, I will highlight what he called the democratic practice, 'work' - Emerson's an attempt to address the anomie and hardship that was brought on by rapid economic change.

28) Linda Lockett, It's Only a Theory:" Science, Religion and Attitudes Toward Evolution, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

The controversy over evolution is a long standing one in American politics. The issue is often depicted as a conflict between science and religion. In this paper the effects of confidence in science and confidence in religion on attitudes toward human evolution are estimated. Bivariate analysis shows that confidence in science is positively related to belief in human evolution, while confidence in religion has a negative relationship. However, these effects become very weak when controls for religious beliefs and affiliation are imposed. Religious variables, rather than attitudes toward science, seem to be the main sources of attitudes toward evolution.

29) Darren Walhof, Deliberative Democracy’s Religion Problem, Western Political Science Association 2010 Annual Meeting Paper. The abstract states: 

Deliberative democracy has a religion problem. The shared perspective called for by deliberative approaches coexists uneasily with the religious language and activism in U.S. politics today. The solution among deliberative theorists has been to argue that citizens should refrain from appealing to religious reasons in public. This paper argues that deliberative democracyﾒs religion problem is of its own making, stemming from the way that it conceptualizes ﾓreligion.ﾔ Theories of deliberative democracy understand religion as essentially apolitical and ahistorical, consisting primarily of assent to a set of beliefs. Religion is imagined as an autonomous area of life that appears as an occasional interloper on politics, rather than as something that is fundamentally constituted by and through politics. Deliberative theorists are then inevitably surprised and frustrated by the predictable ﾓreturnﾔ of religion and the failure of religiously-based political speech and action to fit their standards of legitimacy. I argue that understanding religion in terms of ﾓtraditionﾔ allows a recognition of its political and historical dimensions, and that this conception fits within a deliberative framework. In other words, the religion problem does not mean that theories of deliberative democracy must be abandoned. Instead, they already have the resources within them to recognize and include religious language and activism as part of the deliberative process.

30) Richard Ledet, Faith and Finances: How Religion Relates to Economic Welfare in the US, Western Political Science Association 2010 Annual Meeting Paper. The abstract states:

Religion influences moral beliefs and concerns about social morality, but religion also influences social and economic welfare. However, there is not a great deal of research on the nature of the relationship between religion and the economy, economic attitudes, social-economic well-being and other issues related to the idea of social justice. What we know about religion is limited also because there are few systematic examinations of religion and politics across the American states. For these reasons, I provide an empirical assessment of the impact of religion on various aspects of economic welfare in the US.

31) Jesse Chupp, Modern Secular Democracy and the Destruction of Religion, Western Political Science Association 2010 Annual Meeting Paper. The abstract states: 

Modern secular democracy is destroying the public practice of religion. While private religion remains a vital human activity in modern secular democracies it has been denied its traditional and moral place in public life. The ancients and medievals recognized that religion is a natural and necessary part of public life and the state should include its practices in its administration of public life. Modern advocates of toleration suggest that state endorsement of a particular religion violates the equal rights of citizens to choose their religions. However, one can imagine and indeed point to historical instances in which the state has promoted a public religious conception and administration while tolerating dissenters and nonconformists. But what of the political life of the dissenters and nonconformists; are they not denied the full human practice of politics? Perhaps it is a more profound question to wonder whether the practice of a full human life is not denied to the conformists and non-dissenters. Under democratic theory, the will of the majority should be supreme unless the will of the majority results in a clear moral violation. It is arguable that the clear moral violation under secularist conceptions of modern democracy is in the denial of the public practice of religion in any meaningful way and that the minor if any positive contributions to the political life of nonconformists are destroyed by the detrimental consequences for the conforming majority.

32) Adam Gomez, Vox Populi, Vox Dei: Themes of Civil Religion in the Public Speech of William Jennings Bryan, Western Political Science Association 2010 Annual Meeting Paper. The abstract states: 

Writing in a time of economic upheaval and dramatic inequalities of wealth, William Jennings Bryan argued for popular sovereignty in all aspects of American political, economic, and institutional life. I argue that Bryan drew on the rhetorical tradition of American civil religion, being influenced by the public speech of figures as diverse as Stephen Douglas, Abraham Lincoln, and literary editor John L. O'Sullivan, who coined the phrase Manifest Destiny. Combining the language of civil religion with his belief that the masses were all but infallible, Bryan described a vision of American politics in which the US is a community of belief in the political good of equality, which he believed fundamental to both Christianity and democracy. I show that Bryan deploys the language of civil religion as a vehicle for his argument that the people were competent to address any number of political questions, including the limits of the American polity, the proper role of the United States on the world stage, and the role of government in the economy. His solutions entailed a tacit approval of racist exclusion, a pacifistic view of America as a model of equality, and the claim that the economy should have as its focus not elite institutions, but the people at a mass level. Bryan's civil religious language and policy proposals have relevance in today's political environment, and show that Bryan's significance in American political history extends far beyond the Scopes trial.

33) Helene Slessarev-Jamir, New Forms of Religion and Labor Collaboration, Western Political Science Association 2010 Annual Meeting Paper. The abstract states: 

Much of contemporary union organizing is done among workers with minimal citizenship rights, making them particularly vulnerable to threats and intimidation by employers. This occurs in the context of the dismantling of federal regulations that once structured union organizing campaigns. In response to these conditions, new forms of community/labor collaborations have emerged. This paper will explore the tremendous growth or religiously constructed labor support groups that are able to lend moral credibility to these union organizing campaigns, mobilize religious activists in support of low wage workers, and rebuild support for low wage workers within local religious communities. The paper will have a particular focus on the work of Clergy and Laity United for Economic Justice (CLUE) which is active in California. I will argue that where they have been successful, these collaborations are creating new citizenship rights from below.

34) Paromita Goswami (Xavier Institute of Management), Resisting Indoctrination to Violence by Religion-Based Terror Groups with Social Marketing. The abstract states: 

‘Imagine there's no Heaven…No hell below us…Imagine there's no countries…Nothing to kill or die for…And no religion too…Imagine all the people Living life in peace’ - John Lennon, 1971.

If you are in India, Pakistan, Afghanistan or Israel, the next time you go shopping for your groceries, you might be dead in a terror attack: no matter whether you are rich or famous, or poor and unknown. An act of violence derided as terrorism by some, may be respected as a martyr in a liberation struggle to another (Turk, 2004). In this proposal, I shall focus only on religion-based terrorism. As far as religious reasons for violence are concerned, the source of violence is more than perception of threat to religion and could range from issues such a power dynamics in terrorist organizations, ethnicity and political power (Witte, 2007). Most major religions sanction violence in the form of animal sacrifice for therapeutic reasons by evoking and venting violent impulse in general (Freud as quoted in Juergensmeyer, 2008, Staal, 1983). Such ritual violence performs a positive role in society by spending violence on victims whose death shall not provoke reprisals but in the process releasing the hostile feelings of individuals towards members of their own community and achieving greater social cohesion (Girard, 1977). Indiscriminate killing of innocent people for religious reasons rarely involve psychopathology or material deprivation and perpetrators of terror are likely to be respected individuals from stable family and community ties who are likely to be honored in their communities rather than be condemned for their violence (Silke, 1988; Turk, 2004; Hassan, 2002; Sageman, 2004; Taylor and Qualye, 1994; Rasch, 1979). Terror attacks are likely to be a response to feelings of indignity and frustration developed in repressive political environments (Krueger and Maleckova, 2003) and strategic, religious, political and other objectives act on the mind of a terrorist to transform humiliating defeat into victory over victimization and assumption of the divine (Prof J.S. Piven as quoted by Hill and Kinney, 2007/08). Terrorists do not see themselves as instigators of harm but rather as individuals reacting to the provocative abuses and injustices of others (Silke, 2003). Terror organizations systematically target individuals who might get indoctrinated to violence and are likely to target shy, serious youth, slightly aloof from the crowd and like the sacrificial victim of religious rituals, perceived as a symbol of disorder, from an uncertain category, and sublimely wacky in order that their sacrifice is seen as pure, their almost un-human holiness making them right candidates for martyrdom (Krammer, 1991; Juergensmeyer, 2008; Hawley, 1994). The sacrificial victim is said to represent destruction in a battle of ‘us’ versus ‘them’ and war organizes social history in a storyline of persecution, conflict and the hope of redemption, liberation and conquest (Juergensmeyer, 1991). Although there is no way to know how exactly the process of indoctrination to violence takes place, Juergensmeyer (2008) estimate that after targeting a prospective terrorist, terror organizations identify their enemies, subhumanize them by denying them personhood and preferably give them a faceless collective enemy to target, and lastly satanize/humiliate/belittle the enemy through a process of delegitimization (Sprinzak, 1991). The role of persuasion in the struggle against terrorism is an under-researched area as pointed out by RAND researchers Cragin and Gerwerhr (2005). My research vision is to devise a social marketing intervention to resist the attempt of terror groups to turn individuals into terrorists.

35) Andrew Koch (Appalachian State University) and Paul Gates , Crime, Punishment, Religion, and Constitutional Interpretation, Western Political Science Association 2010 Annual Meeting Paper. The abstract states: 

This paper will examine the role cultural beliefs play in the confinement, control, and torture of the human body as acts of justice. Specifically, the work will explore the links between some of the foundational ideas of Christianity and the nature of constitutional law in the United State regarding matters of crime and punishment. These will include the role of biblical interpretation in defining of justice, the significance of the notion of ﾓfree willﾔ in the determination of sentencing for criminal behavior, and the significance of the idea of transcendence in the characterization of the law and punishment. This will include a discussion of the role of natural law. The paper will conclude with some suggestions regarding constitutional interpretation that seeks to move away from the influence of non-secular considerations in matters of criminal justice.

36) Sangay Mishra ,Race, Religion, and Discrimination: South Asian Immigrants and Challenges of Panethnic Mobilization , Western Political Science Association 2010 Annual Meeting Paper. The abstract states: 

This paper analyzes the extent of panethnic South Asian identity formation and mobilization among South Asian immigrants in the United States. Based on the analysis of quantitative data from PNAAPS, 2001 and 60 in-depth interviews conducted with both leaders and community members of Indian, Pakistani, and Bangladeshi communities in Los Angeles and New York City, the questions which this paper ask are: Does the experience of discrimination based on skin color, appearance, foreign origin shape a panethnic identity of South Asian American? Did the experience of racial targeting of immigrants of South Asian Origin after September 11th, 2001 play a catalyzing role in shaping a broad South Asian American identity? The paper argues that broader panethnic identities such as South Asian and Asian American are always in constant negotiation with more firmly rooted categories such as Indian, Pakistani, and Bangladeshi. There is a limited acceptability of the category of South Asian among first generation immigrants from India, Pakistan, and Bangladesh. However, there are political mobilization attempts within these communities using the broader South Asian panethnic identity to gain some level of political efficacy. These attempts of broader South Asian panethnic mobilization coexist with mobilization and identity formation around the country of origin which emphasizes religious, linguistic, and country of origin distinctions which get strengthened by strong transnational linkages.

37) Hans-Martien Th.D. ten Napel (Leiden Law School), Protestantism, Globalization and the Democratic Constitutional State, RESHAPING PROTESTANTISM IN A GLOBAL CONTEXT, Volker Küster, ed., LIT, 2009. The abstract states:

In this article I want to explore whether Calvinism has the potential to once again act as a force toward cultural liberty in today's world, and if so, to what extent. Because religion is of profound importance to one's identity, I will thereby focus on religious liberty. In paragraph two I will, first of all, indicate what the pluralist approach to constitutional democracy is about, that neo-Calvinists have developed during the nineteenth and twentieth centuries. Paragraphs three and four will then look at the prospects for this approach in the Netherlands, where it originated, and in other cultural contexts, respectively. I will round up with a conclusion in which I will refer to Alister E. McGrath's thesis about the end of mainline Protestantism.

JFB

First Amendment Scholarship – Speech Topics

Here is this week’s collection:

1) Wendy Seltzer (Harvard University - Berkman Center for Internet & Society), Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment . The abstract states:

Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law's shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech.

Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

When non-infringing speech is taken down, not only does its poster lose an opportunity to reach an audience, the public loses the benefit of hearing that lawful speech in the marketplace of ideas. Yet under the DMCA's pressure, the poster's private incentive to counter-notify and the host's incentives to support challenged speech are often insufficient to support an optimal communication environment for the public. Instead, this set of incentives produces a blander, but not significantly less copyright infringing, information space.

Copyright claimants assert that the expedited process of the DMCA is critical to suppress infringement in the highly networked digital world. While many instances of infringement are properly targeted for takedown under the DMCA, I argue that the accuracy of some takedowns does not excuse a careful examination of the rate and costs of error. I therefore recommend changes to the law to reduce the error, balancing speech protection and copyright.

Part I surveys the legal, economic, and architectural sources of the DMCA's chilling effects on speech. Part II then examines the First Amendment doctrines that should guide lawmaking, with critique of copyright's place in speech law. Part III reviews the history and mechanics of the DMCA and provides examples of chilled speech and a few instances of limited warming. Finally, Part IV engages current policy debates and proposes reform to protect online speech better.

2) Martha H Good (Miami University of Ohio),  State Regulation of Judicial Campaign: the Constitutionality of Limiting Political Activities and Speech of State Trial Court Candidates , Western Political Science Association 2010 Annual Meeting Paper.  The abstract states:

Since the US Supreme Court decided Republican Party of Minnesota v. White in 2002, there have been serious questions about the constitutionality of Judicial Canons which bar judicial candidates from activity and speech that would clearly be constitutionally protected if engaged in by non-judicial candidates. This paper examines the ways in which some states have responded to White by allowing judicial candidates greater latitude in voicing their political views, while other states, such as Ohio, have moved in the opposite direction. Particular attention is devoted to the constitutionality of Ohioﾒs 2009 modifications of its Code of Judicial Conduct which further restricted judicial candidatesﾒ political speech and association. Finally, the paper examines the impact of White on judicial election campaign advertising, speech and disciplinary measures in Ohio to determine whether the added restrictions have reduced partisanship and spending in contested judicial races.

3) Caleb M. Deats , Note -Talk that Isn't Cheap: Does the First Amendment Protect Credit Rating Agencies' Faulty Methodologies from Regulation?, forthcoming  in Columbia Law Review. The abstract states:

This Note argues that courts should reject the Southern District of New York's distinction in Abu Dhabi Commercial Bank v. Morgan Stanley & Co. between publicly and privately disseminated ratings, instead analyzing ratings as commercial speech. Courts should do so not because precedent compels such analysis, but instead because the First Amendment values that the Supreme Court has previously identified render an analogy with commercial speech appropriate. Analyzing ratings as commercial speech best addresses the Supreme Court’s underlying concerns in Dun & Bradstreet. Moreover, it provides a standard for private liability that neither immunizes egregious conduct nor threatens the financial viability of the rating industry. Finally, it identifies the interests in pursuit of which the legislature may regulate rating agencies.

4) Saurabh Vishnubhakat ( Franklin Pierce Law Center ),  Protecting the Public from Itself: The Unconstitutional ‘Say No to Drug Ads’ Act, forthcoming Washington Legal Foundation Legal Backgrounder.  The abstract states:

This Legal Backgrounder examines the Say No to Drug Ads Act 1 proposed to end the tax deductibility of direct-to-consumer (DTC) prescription drug advertising. After evaluating the SNDAA's policy implications and its impact on free commercial speech, the publication concludes that the legislation would be unsound and unconstitutional if passed into law.

5)  Melinda Gann Hall (Michigan State University - Department of Political Science ),  Attacking Judges: The New Politics of State Supreme Court Election Campaigns , Western Political Science Association 2010 Annual Meeting Paper . The abstract states:

Recent trends in judicial elections, including expensive rough-and-tumble campaigns characterized by televised attack advertising and politicized discourse, are causing advocacy groups and legal scholars to condemn the practice of electing judges. This paper addresses an important aspect of this controversy by evaluating whether attack advertising and liberalized speech codes brought about by Republican Party of Minnesota v. White (2002) have had detrimental effects on the electoral performance of incumbents in state supreme courts. In doing so, I assess whether crucial determinants of the incumbency advantage identified in past studies continue to influence supreme court elections in this new era of judicial campaigning. I also draw careful distinctions between partisan and nonpartisan elections. My specific focus is on 73 supreme court justices seeking reelection in nineteen states from 2002 through 2006 and CMAG advertising data on the messages broadcast to electorates. Likewise, I examine official campaign finance reports, to distinguish the effects of campaign spending from television advertising. Overall, I find that attack ads have deleterious effects but only in nonpartisan elections. Further, less restrictive speech codes actually improve incumbents’ vote shares. Finally, factors indicative of discerning voter choices still have predictive power, even after dramatic transformations in the electoral context. Collectively, these findings demonstrate that the assertions of judicial reform advocates merit empirical scrutiny and that the sharp attacks on partisan elections should be reassessed. These findings also illustrate the powerful impact of institutional arrangements in structuring political processes and the analytical advantages of studying state supreme courts.

6)  T. Rebecca L. Haffajee and M. Gregg Bloche, The FCTC and the Psychology of Tobacco Control , 5 Asian Journal of WTO & International Health Law and Policy  87 ( March 2010). The abstract states:

The Framework Convention on Tobacco Control (FCTC) is a promising public health accomplishment, but its emphasis on top-down, command-and-control approaches to tobacco control puts this promise at risk. The World Health Organization’s “Guidelines for Implementation” of the FCTC prescribe restrictive regulation of artistic speech, contributions to popular culture, and even political speech, as well as constraints on promotion of tobacco products. This intrusiveness fails to take account much of what we know, from research in psychology and the neurosciences, about what prompts people to engage in risky behaviors and what empowers them to exercise restraint. The Guidelines (and the FCTC) start from the premise that people smoke either because they become “addicted” (rendering personal choice impossible) or because they fail to comprehend tobacco’s dangers. But recent findings about the workings of the mind suggest a different story, a story of risky behavior (including smoking, unhealthy eating, and unsafe sex) as the product of competition between aspects of the self – between systems of perception and motivation that drive indulgence and restraint. We argue in this Essay that the WHO, in its “Guidelines”, should pursue anti-smoking strategies that support individuals’ self-restraint, rather than merely suppressing tobacco use in a coercive fashion. Alliances between governments and myriad actors that shape social and cultural norms and influence people’s behavior, along with funding for research into the psychological determinants of tobacco use, will prove critical to this approach. Crude coercion, on the other hand, risks cultural backlash and even embrace of smoking as a way to express independence and rebellion.

7) Mark Bartholomew (University at Buffalo Law School (SUNY)), Foreword: Advertising and the Law , Forthcoming in Buffalo Law Review. The abstract states:

This foreword to a special issue of the Buffalo Law Review provides an overview of seven articles addressing the intersection of advertising and law. The special issue stems from a November 2009 conference held at the University at Buffalo Law School. The foreword examines the particular difficulties in characterizing the relationship between advertisers, consumers, and the law. Advertisers promulgate certain symbolic meanings designed to induce consumption. Sometimes these meanings are contested through legal means yet consumers can only participate in advertising's regulatory apparatus indirectly. This results in a dynamic between advertiser and consumer that is difficult to define yet ubiquitous in our lives and critical to proposals for legal reform. The articles described offer important new evidence and modes of analysis for understanding this dynamic.

8) Heidi Reamer Anderson (Florida Coastal School of Law), The Mythical Right to Obscurity. The abstract states:

One long-understood limit on an individual’s right to privacy is that a person has no legally-recognized privacy interest in something that person does “in public.” For example, although it may be tortious or even criminal for a newspaper to print a revealing photo taken from a camera hidden in an actress’s private bathroom, it would not be tortious to print the same embarrassing photo if taken as the same actress emerged from her car outside of a movie theater. The primary distinction is that the first picture captured private conduct while the second picture captured conduct that occurred “in public.”

Many scholars, including Daniel Solove, recently have questioned whether this “public isn’t private” rule remains valid in today’s society. Essentially, they argue that technological innovations in the collection of information (e.g., pocket-size video cameras), the distribution of information (e.g., broadband Internet), and the indexing of information (e.g., Google image search) threaten individual privacy interests so much more than, and in such different ways than, ever before experienced. Thus, they argue, the law should respond to further restrict the collection, distribution and/or indexing of information in order to protect an individual’s right to privacy - or else. The “or else” is described via a series of anecdotal horror stories involving a regular person suffering supposedly serious harm because someone else videotaped her doing something embarrassing (e.g., tripping) and then put that video on the internet (e.g., on a website like Facebook) which anyone could find (e.g., via searching the person’s name or likeness on Google).

Although these scholars’ primary goal - the protection of individual dignity - may be admirable, my position is that their proposed ends simply do not justify the means. Instead, I argue, the law should not preemptively censor or event restrict the flow of truthful, public information now in order to prevent a perceived, potential harm to one’s privacy in the future. In support, I show how existing arguments for restricting the collection, distribution and indexing of truthful information in order to protect individual privacy are flawed in at least three ways. First, they overstate the potential harms to privacy that they are trying to prevent. Second, they fail to fully recognize the potential benefits of the technological innovations they fear. Third, the reformers do not persuasively reconcile their suggested legal restrictions - which essentially would act as prior restraints - with the First Amendment.

Ultimately, those arguing for additional privacy-related legal restrictions confuse the right to privacy, which exists, with the right to obscurity, which does not.

JFB