First Amendment Scholarship Update

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

1.  Anupam Chander (University of California, Davis - School of Law), Googling Freedom , forthcoming in California Law Review. The abstract states:

While GM and GE are rushing in to China, why are so many Americans cheering the possibility of Google pulling out? The answer to this puzzle lies in Google’s special role as new media. Television once moved the free speech paradigm from the local street corner to the national platform of CBS; the Internet has shifted it further to the global stage offered by Google and its peers. Free speech theory – and Western media corporations – must now grapple with the reach of this media into unfree societies. While a growing chorus has denounced Western new media enterprises for betraying their obligations to the people of China and other authoritarian regimes, no one has yet explained what those obligations are or why these companies might have them. Corporate social responsibility theory has focused largely on the risks of a global supply chain in goods, neglecting the questions raised by the rise of global information services. The notion of corporate obligations to people around the world seems especially perplexing in juxtaposition with the familiar mandate to maximize shareholder wealth at home. Drawing from theories of Foucault and Habermas and the history of the underground press, I argue that information service providers bear a special responsibility to unfree people. What might have been mutually beneficial transactions in a free society can become, in an unfree society, predicate offenses leading to years of hard labor. New media can either help give voice to dissidents or help perfect totalitarianism.

2.  Steven Douglas Smith (University of San Diego School of Law), The Phases and Functions of Freedom of Conscience. The abstract states:

This short essay, written for a book collecting papers on religion and human rights, surveys the development of constitutional and international commitments to freedom of conscience and examines some of the difficulties associated with freedom of conscience in a secular and egalitarian political setting.

3.  Michael J. Perry (Emory University School of Law), Secular Worldviews, Religious Worldviews, and the Morality of Human Rights , forthcoming in The Routledge Companion to Theism, Charles Taliaferro, Steven Goetz & Victoria S. Harrison, eds.The abstract states:

The morality of human rights -- by which I mean the foundational, connected moral claims articulated in the International Bill of Human Rights -- coheres well with some religious worldviews. For example, and as philosopher Charles Taylor has explained, the “affirmation of universal human rights [that characterizes] modern liberal political culture [represents an] authentic development[] of the gospel . . .” But does the morality of human rights also cohere, well or otherwise, with any secular worldview: any worldview that denies or is agnostic about the existence of a “transcendent” reality, as distinct from the reality that is the object of natural-scientific inquiry? Put another way: Are secular worldviews and the morality of human rights like oil and water?

This is an essay in human rights theory--a brief essay, given its intended venue; see below. In it, I explicate the morality of human rights and then address the question articulated in the preceding paragraph. Along the way, I reference recent work in human rights theory by religious human-rights theorist Nicholas Wolterstorff ("Justice: Rights and Wrongs") and secular human-rights theorist James Griffin ("On Human Rights").

In this essay, I build on an argument I began in The Idea of Human Rights (Oxford, 1998) and continued, in revised form, in Toward a Theory of Human Rights (Cambridge, 2007).

4. Michael J. Perry (Emory University School of Law), From Religious Freedom to Moral Freedom, forthcoming in Religion and Human Rights, John Witte Jr. & M. Christian Green, eds, Oxford University Press. The abstract states:

In one or another articulation, the right to religious freedom is a familiar constituent of national constitutions and of regional and international human rights instruments. The canonical articulation of the right is found in Article 18 of the International Covenant on Civil and Political Rights, to which the United States is one of more than 160 state parties. I argue in this essay that the "logic" (so to speak) of the best case for the right to religious freedom also supports an analogous right to moral freedom. At the end of the essay, I comment on the the proper, and properly limited, role of religiously grounded moral premises as a basis of laws and other policies that implicate the right to moral freedom.

This essay will appear in a symposium issue of the University of San Diego Law Review -- a symposium issue devoted to freedom of conscience. A shorter version of the essay will appear in Religion and Human Rights, edited by John Witte Jr. and M. Christian Green (Oxford University Press, forthcoming).

5.  Linda C. McClain (Boston University - School of Law), Marriage Pluralism in the United States: On Civil and Religious Jurisdiction and the Demands of Equal Citizenship, forthcoming in Marriage and Divorce in a Multi-Cultural Context: Reconsidering the Boundaries of Civil Law and Religion, Joel Nichols, ed., Cambridge University Press. The abstract states:

“Legal pluralism” is hot, particularly in family law. As family law and practice in the United States have become global due to the globalization of the family, some argue it is time for U.S. family law to embrace more legal pluralism so that civil government would cede jurisdictional authority over marriage and divorce law to religious communities. They point to forms of pluralism already present in U.S. family law, such as covenant marriage (available in three states) and New York’s get statutes. They suggest the U.S. should learn from how many other nations allocate jurisdiction over marriage and divorce law (for example, systems of personal law, in which religious tribunals have such jurisdiction). In this chapter, I argue that an exercise in comparative law does reveal many different ways of allocating jurisdiction over family law, but does not answer the normative question of whether these are good models for U.S. family law. Challenging the call for a “multi-tiered” marriage, I analyze what form of marriage pluralism in the U.S. is sought and what might be motivating this demand. I examine differing views about whether there should be congruence between religious and civil marriage, illustrating with the controversy over same-sex marriage. I raise a normative concern over tensions between religious doctrines and key commitments, values, and functions of civil family law, illustrating with how state courts in the U.S. now navigate those tensions when asked to enforce terms of religious marriage contracts and other religious law. I am also skeptical as to whether a more pluralistic legal system can adequately protect the equal citizenship of women. Nearly every foreign example that proponents of jurisdictional pluralism in family law offer raises troubling question about how to reconcile sex equality with religious freedom. Feminist scholars highlight the importance of claims of national and constitutional citizenship as a strategy for redressing sex inequality, even as they affirm the value of membership in religious and cultural groups. Finally, I ask what lessons we might learn about legal pluralism from the recent controversy over religious family law arbitration (or “sharia arbitration”) in Ontario.

6. Christopher P. Guzelian (Visiting Assistant Professor of Law, Thomas Jefferson School of Law), True and False Speech, 51 B.C. L. Rev. 669 (2010). The abstract states:

First Amendment law is structurally unstable because it does not adequately distinguish true and false speech. Free speech law, there-fore, is “unpredictable,” meaning that speakers cannot accurately predict whether their contemplated speech will suffer sanction. Unpredictable law causes the Rule of Law’s collapse. This Article demonstrates that an effective first step in improving First Amendment law would be to create well-defined liability for false speech. We conclude that, in particular, scientific speech—a form of speech readily determined to be true or false— must face additional scrutiny. Anticipating serious objections to formal-ized false-speech liability, we then show that these objections, interest-ingly, apply with equal force to any form of legal liability. The implication of this fact is that rejection of this Article’s modifications to First Amend-ment law requires deep reconsideration about how we should administer most legal liability, not only First Amendment law.

7.  Eric Osei-Assibey (Nagoya University), Choosing Not to Borrow: An Evaluation of Perception and Sociocultural Factors Underlying Voluntary Self-Exclusion, published in The IUP Journal of Financial Economics, Vol. 8, Nos. 1 & 2, pp. 36-66, March & June 2010. The abstract states:

The purpose of this study is to investigate the underlying sociocultural factors that drive the majority of microentrepreneurs to voluntarily exclude themselves from seeking external finance, despite complaints of severe financial constraints. Using structured questionnaire, data on some 176 microenterprises in Ashanti region of Ghana were collected. A simple conceptual framework was utilized to classify various forms of financially constrained and unconstrained microenterprises. A logistic regression technique was then applied to a utility function model of credit demand. The findings suggest that voluntary self-exclusion is not only driven by microenterprise or owner’s socioeconomic status, but also most significantly by their perceived difficulties in accessing external finance and negative cultural-religious biases toward credit use or borrowing as well as financial illiteracy. The study further finds that most microentrepreneurs are interest inelastic or insensitive suggesting that they are more interested in easier and faster access to finance rather than the cost of borrowing. The evidence implies that policies directed at building all-inclusive financial system by focusing on supply side alone are unlikely to be successful. Complementary target policies that tackle the fundamental issues of negative perceptions and mistrusts on the financial institutions by creating awareness through extensive financial literacy programs and social mobilization would be a holistic approach in solving the problem. Besides, innovations in religioncompliant financial institutions should be promoted to meet the financing needs of those who exclude themselves because of religious beliefs.

8. Kelly Sarabyn,  Free Speech at Private Universities, 39 J.L. & Educ. 145 (2010). The abstract states:

For the last thirty years, our nation’s universities have debated whether to proscribe hate speech on campus. Universities’ paramount function is to seek knowledge, and thus they desire free and open inquiry, but universities also wish to ensure that they provide a welcoming environment to historically disadvantaged groups. A detailed study of the policies of the top 150 universities reveals that the majority of universities - rather than resolve these conflicting goals - maintain contradictory policies that both protect and proscribe hate speech. This allows schools to tout different policies to different interest groups, and it leaves students vulnerable to unexpected punishment. I explore possible responses to this pervasive problem. Direct regulation - forcing private universities to allow hate speech - may vindicate the liberal ideal of free speech, but it threatens the liberal ideal of the right to private association. Applying contract law, in contrast, allows private universities to set their own policies, but not to promise community members one type of institution and then deliver another. This enables experimentation across institutions and forces universities to reach a resolution on the question of proscribing hate speech. It would thus move the debate over proscribing hate speech forward.

9.  David Axelman (University of Miami Law Review), Citizens United: How the New Campaign Finance Jurisprudence Has Been Shaped by Previous Dissents. The abstract states:

This article analyzes the new campaign finance jurisprudence as it relates to the independent expenditures of corporations. The primary purpose of the article is to examine the ways in which the Citizens United majority channeled the previous dissents of Justices Scalia, Kennedy, and Thomas in solidifying a new approach to campaign finance regulations that is centered on a robust protection of free speech rights. After establishing a brief background, the article first seeks to explain why the Court was correct in recognizing that the First Amendment was implicated by restrictions on a corporation’s ability to fund campaign speech. This argument relies largely on the Court’s commercial speech cases, in which the Court consistently recognizes that the First Amendment does protect (at least somewhat) the commercial speech of corporations. If purely commercial corporate speech is protected, the argument goes, then certainly political speech does not lose its protection merely because the speaker is a corporation. This part of the article also relies on longstanding First Amendment jurisprudence in addressing and seeking to discredit the argument that the First Amendment shouldn’t apply to campaign finance regulations because “money isn’t speech.”

After explaining why the First Amendment is implicated by such regulations, the analysis turns to the various ways in which Citizens United was informed by the aforementioned dissents. The analysis proceeds by discussing four separate government interests that have been asserted as justifications for the previous regulatory regime. These interests are the now-discredited anti-distortion interest recognized in Austin, the longstanding interest in preventing corruption and the appearance thereof, the interest in protecting shareholder sensibilities, and the interest in leveling the playing field so that all political speech is given an equal forum. The article explains how the Court’s treatment of each interest in Citizens United was informed by the previous dissents of those who helped to form the new majority that decided the case.

10.  Claudia E. Haupt (George Washington University Law School), Mixed Public-Private Speech and the Establishment Clause, forthcoming in Tulane Law Review. The abstract states:

Determining responsibility for speech is important for two reasons: to address rights to forum access and to identify whether Establishment Clause limits apply. Private speakers may demand rights of access to a public forum, and in such a forum they may articulate their message free from viewpoint restrictions. Private speech, moreover, is not subject to Establishment Clause limits. If the speech is government speech, the Free Speech Clause does not apply, and the government may articulate its message to the exclusion of all other speakers. If the government speech has religious content, it may run afoul of the Establishment Clause. This Article proposes an “effective control” framework to determine Establishment Clause responsibility in cases where public and private actors jointly engage in speech. Between the end-points of purely governmental and purely private speech, it places such speech on a mixed speech continuum. After introducing the framework, this Article demonstrates how the theory of “effective control” functions in a variety of contexts implicating the Establishment Clause, including permanent and temporary displays, prayer in public schools, access to public school property, and legislative prayer. In some instances, discussed as “truly hybrid speech” in this Article, the effective control inquiry fails to identify a unilaterally responsible party. In these limited cases, this Article argues that the speech is sufficiently private for forum access purposes – meaning that the speakers may claim a right to forum access – and at the same time sufficiently governmental for Establishment Clause purposes, creating a secular forum in certain narrowly defined speech contexts.

11.  Michael Birnhack (Buchmann Faculty of Law, Tel Aviv University), Unmasking Anonymous Online Users in Israel, published in Hukim - Journal on Legislation, Vol. 2, pp. 51-131, 2010. The abstract states:

What should be the legal rule as to unmasking anonymous online users? The typical case is defaming content, generated by anonymous users. The Article discusses this burning issue in the Israeli context, in a comparative manner and within three intertwined frameworks. First, I explore the meaning of anonymity and argue that it is worthy of legal protection both as an instance of the principle of free speech (similar to American jurisprudence), and as an instance of privacy (closer to the European jurisprudence). Second, I argue that free speech should be an organizing principle in regulating the digital environment. The internet offers a unique discursive space. Any proposed rule should be evaluated as to its direct and indirect impact on free speech. Third, the regulation of online anonymity should be located within a broader framework of law and technology, which is attentive to the dynamic inter-relationship between the two.

The Article analyzes the development of the legal rule in Israeli court regarding the unmasking of anonymous users, including the recent decision (April 2010) of the Supreme Court in the case of Mor v. Barak Online, Ltd., in which the Court ruled that current Israeli law lacks a proper procedural frame to enable courts to order the unmasking of users, the result being that courts lack authority to issue such orders. I propose a procedure in which the ISPs first and the courts later, if needed, serve as an intermediary between the offended party and the anonymous user, so to maximize the privacy and free speech of the user, of potential users, while minimizing potential abuse of the unmasking procedure and enabling redress in due cases.

12.  Matthew Mazzotta, Note - Balancing Act: Finding Consensus on Standards for Unmasking Anonymous Internet Speakers, 51 B.C. L. Rev. 833 (2010). The abstract states:

The growth in popular use of the internet has led to a dramatic increase in both the amount of anonymous speech and the number of ag-grieved plaintiffs claiming to be harmed by it. Lawsuits involving anony-mous internet speech present thorny questions for courts because plain-tiffs typically must obtain the identity of anonymous speakers during discovery before any adjudication of the underlying claim. Compelled dis-closure of identifying information thus risks chilling speech by subjecting anonymous speakers who have done nothing illegal to unwarranted har-assment and retaliation. In response to these concerns, courts have formu-lated “unmasking” standards for determining when to allow anonymous speakers to be identified. This Note examines trends within various un-masking standards and proposes a single standard for future courts that requires notice, an evaluation on the merits of the plaintiff’s claim, and a balancing of the First Amendment rights of the anonymous speaker against the strength of the plaintiff’s claim and the need for unmasking.

13. Jolie Martin and Cleotilde Gonzalez (Carnegie Mellon University),The Cultural Determinants of Strategic Bias in Conflict Resolution .The abstract states:

We examine the impact of individuals’ religious and political affiliations on the conflict resolution strategies they employ. Participants in the U.S., Israel, and Qatar played the interactive computer game PeaceMaker (ImpactGames, 2006) with the objective of satisfying constituents on both sides of the Israel-Palestine conflict. We find a “reverse bias” favoring participants’ non-affiliated side in the role of Israeli Prime Minister, but bias favoring one’s affiliated side when playing the role of Palestinian President. We interpret this difference in light of minority-majority group membership, and deliberate assertion of in-group interests versus perspective-taking of out-group interests. Finally, we discuss the potential of interactive computer games to study conflict resolution in other dynamic environments characterized by uncertainty and complex interdependencies.

14. Stelios Michalopoulos (Tufts University, Department of Economics), Alireza Naghavi (University of Bologna - Department of Economics) and Giovanni Prarolo  (University of Bologna), Trade and Geography in the Economic Origins of Islam: Theory and Evidence. The abstract states:

This research examines the economic origins of Islam and uncovers two empirical regularities. First, Muslim countries, virtual countries and ethnic groups, exhibit highly unequal regional agricultural endowments. Second, Muslim adherence is systematically larger along the pre-Islamic trade routes in the Old World. The theory argues that this particular type of geography (i) determined the economic aspects of the religious doctrine upon which Islam was formed, and (ii) shaped its subsequent economic performance. It suggests that the unequal distribution of land endowments conferred differential gains from trade across regions, fostering predatory behavior from the poorly endowed ones. In such an environment it was mutually beneficial to institute a system of income redistribution. However, a higher propensity to save by the rich would exacerbate wealth inequality rendering redistribution unsustainable, leading to the demise of the Islamic unity. Consequently, income inequality had to remain within limits for Islam to persist. This was instituted via restrictions on physical capital accumulation. Such rules rendered the investments on public goods, through religious endowments, increasingly attractive. As a result, capital accumulation remained low and wealth inequality bounded. Geography and trade shaped the set of economically relevant religious principles of Islam affecting its economic trajectory in the pre-industrial world.

15. Neil W. Netanel (University of California, Los Angeles - School of Law) and David Nimmer (Irell & Manella LLP), Is Copyright Property? The Debate in Jewish Law, forthcoming in 112 Theoretical Inquiries in Law --- (2011). Here is the abstract:

Is copyright a property right? That question raises a host of thorny theoretical issues regarding the foundational underpinnings of both copyright and property. The notion that if copyright is “property,” it will or should resemble a perpetual, absolute, pre-political property right, has repeatedly infused judicial proceedings, legislative enactments, and public debate in both common law and civil law countries as well.

Like their common law and civil law counterparts, Jewish law jurists have engaged in protracted debate about whether copyright is a property right. Recent decades have seen numerous rabbinic court decisions, responsa (rulings in disputes or advisory opinions coupled with a lengthy exegesis on Jewish law in answer to questions posed), scholarly articles, and blog entries on such issues as whether it is permissible, without license from the author or publisher, to republish a book after the rabbinic printing privilege has expired; to copy and distribute software or sound recordings; to perform music in wedding halls; to make copies for classroom use; and to download songs from the Internet. And like in secular law, but for somewhat different reasons, the characterization of copyright as “property” has significant doctrinal consequences for resolution of these controversies in Jewish law.

There are numerous, and at times profound, differences in the terminology, form of argument, doctrinal specifics, and overarching legal framework of Jewish law and secular law in this area and others. Nonetheless, the arguments within the Jewish law debate have some intriguing parallels with those of secular law copyright. In fact, one finds the direct, if largely unstated, influence of secular copyright just below the surface in the debate about whether copyright is property in Jewish law.

16. Mirjam Künkler (Princeton University), The Special Courts of the Clergy (Dadgah-E Vizheh-Ye Ruhaniyyat) and the Repression of Dissident Clergy in Iran. The abstract states:

The paper focuses on the special courts for the clergy (SCC) in Iran, their legal mandate, functions, performance and transformation over time. Set up in the early years of the revolution, the SCC were formally re-established in 1987 by decree of Leader Ayatollah Khomeini, and endowed with an ordinance by Leader Khamenei in 1990. The official function of the SCC is to investigate criminal transgressions of the clergy, but the courts have increasingly become an instrument for the suppression of dissident clerics.

The SCC function under the direct jurisdiction of the Leader, and not, as all other courts, within the framework of the judiciary. Whereas the judges of other courts are appointed by the Head of the Judiciary, the chief judges and prosecutors of the SCC are directly appointed by the Supreme Leader.

As the SCC are not part of the official judiciary system, they run their own security network, including their own prison system. The Supreme Court, being part of the judiciary, has no jurisdiction to review cases of the SCC. Instead, appeals are heard by another chamber of the SCC. All court proceedings are closed to the public and whatever other laws may apply to legal proceedings and prison conditions in the country, they do not apply to the SCC.

JFB