First Amendment Scholarship Update

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

1. Steven Menashi (Georgetown University Law Center), Religion of Doubt, 129 Commentary 43 (2010). The abstract states:

A review of Ian Buruma, "Taming the Gods: Religion and Democracy on Three Continents," (Princeton, 2010). Liberal democracy and religion enjoy a strained relationship, Ian Buruma writes in "Taming the Gods," because democracy is about "resolving conflicting interests through negotiation and compromise," while religion claims to represent "absolute or divine truth" and therefore cannot compromise. Democracies, he says, must find a way "to stop irrational passions from turning violent" and to prevent "religious irrationality from interfering with rational inquiry." Because Buruma regards the claim to absolute truth as the quintessential characteristic of any religion, the main opposition one finds in his book is not really between religion and democracy but between certainty and doubt. At the outset of the book, Buruma compares some political ideologies to religious beliefs and notes the danger that arises when "the state claims to be the source of absolute truth." Such claims, he writes, "are always lethal, whether they are enforced by commissars or by priests." Democracy is different: "It is not the task of a liberal democratic state to provide answers to the deeper questions about life, let alone impose metaphysical beliefs on its citizens." Well, yes — and no.

2. Hanna Lerner (Tel Aviv University - Department of Political Science), Entrenching the Status Quo: Religion and State in Israel's Constitutional Proposals, published in Constellations, Vol. 16, No. 3, pp. 445-461, 2009. The abstract states:

The article aims at analyzing the proposed constitutional solutions for the most disputed issues in the religious-secular conflict in Israel. It focuses on the three complete constitutional drafts published between 2005-2006. The article shows how the three constitutional proposals not only refrained from reforming the existing religious arrangements in the area of personal law, observance of Sabbath, and the question of conversion or “who is a Jew?” In addition, all three proposals limit potential future reforms of the religious status quo by the Supreme Court, which is perceived as representing a liberal-secular worldview. The proposed constitutions limit the court’s authority through various constitutional tools which are geared to maintaining parliamentary supremacy in regulating controversial issues of religion-state relations. Thus, the article argues, the debate over the future of the constitutional arrangements in the religious sphere in Israel is a conflict not only between two opposing views of the appropriate relationship between religion and state institutions, but also involves a clash between fundamentally different views of the role of constitutions and constitutional law under conditions of deep societal disagreement. On the one hand advocates of Israel’s secularization hold a liberal understanding of the role of constitutions as vehicles for the introduction of principles of constitutionalism. On the other hand, the authors of the proposed drafts expect constitutions to serve as the basic charter of the state’s identity, and therefore to rest on a broad consensus, reflecting the common vision and shared basic norms of society as a whole. At present the broad consensus of Israeli society seems to prefer the preservation of the religious status quo.

3. Mashood A. Baderin (University of London, School of Oriental & African Studies - School of Law), Religion and International Law: Friends or Foes? , published in European Human Rights Law, Vol. 5, pp. 637-658, 2009. The abstract states:

This article addresses the relationship between international law and religion. The author considers the different aspects of this relationship in a time where a resurgence of religion, and with it new perspectives on international human rights, has sought to change the terms of the debate. The article explores the different models that seek to conceptualise the relationship between religion and international law; in doing so, the author critically analyses the current climate from an historical perspective and from a spectrum of different theoretical perspectives. The author offers a narration of the ongoing interaction of religion and international law, whilst offering his analysis of how that interaction can be acknowledged and promoted whilst being used to harmonise areas of international tension, and further the development of human rights.

4. David E. Guinn (SUNY Center for International Development), Religion, Law and Violence: The State's Efforts at Taming the Beast, forthcoming in BLACKWELL COMPANION TO RELIGION AND VIOLENCE (Andrew R. Murphy, ed.). The abstract states:

Religion represents one of the most powerful and volatile social forces confronted by the state. It predates the state and, by its own confession, promises to outlive the state. Through its ability to meet the spiritual and existential needs of people, it unites and motivates its adherents far more effectively than any other social institution – or the state itself. When directed towards violence, religious followers act with abandon. As such, throughout recorded history the state has sought to control religion, through law, so as to harness its power for state purposes and avoid religion becoming a threat to its own control or its very existence.

In the West, analysis of religion, law and violence has focused on the development of laws protecting religious freedom and the non-establishment of religion both domestically and internationally as a defense against religiously identified violence. These approaches, however, represent only two strands among the complicated web of legal relationships between the state and religiously associated violence developed and practiced throughout the world. Moreover, they are culturally contingent approaches, drawing their salience from the broader development of political liberalism. They focus on only one understanding of religion and a narrow interpretation of religiously associated violence. This leads to misunderstandings between the West and the rest of the world in international efforts to confront the challenges of religiously identified violence.

In order to develop a more comprehensive understanding of the relationships between the law and religiously identified violence, in this chapter I will analyze two typologies of relationships between religion and the state: first, those in which the state seeks to harness the power of religion for its own ends; and second, those in which the state seeks to avoid domestic threats posed by religion. I will then consider the limitations of each approach in addressing religiously identified violence in the domestic and international context. In pursuing this analysis, I adopt more encompassing definitions of religion and violence than that commonly used in the literature.

5.  Bikash Thapa, Case of Sunil Babu Panta: An Initiative to Recognize Third Gender in Nepal. The abstract states:

Universal Declaration of Human Rights proclaim that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction as to race, sex, language or religion. So in this regard the third genders also have equal rights which is even incorporated in Article-13 of Interim Constitution of Nepal,2063 where all citizens shall be equal before the law, provided that there shall not be discrimination among citizens on grounds of religion , race, caste, tribe, gender, origin, language or ideological conviction .In context of Nepal third gender are suffering from violence, harassment, discrimination, exclusion, stigmatization which is a gross human right violation of theirs. Discrimination hampers the growth and prosperity of society and family. Their right identity and to live freely without discrimination have been violated. An ideal society requires an environment where each human individual can exercise his or her freedoms without fear and want.

The last century witnessed major changes in the concept of homosexuality. Since 1974, Homosexuality ceased to be considered as abnormal behavior and was removed from the classification of mental disorder. It was also de-criminalized in many countries. Since then various countries around the globe enacted anti-discriminatory or equal opportunity laws and policies to protect the rights of third gender.  In 1994,South Africa became first nation to constitutionally recognize the rights of third gender.  In 1996,the U.S. supreme ordered that no state could pass the anti discriminatory laws against third gender. Thus recognizing the trend from several countries, this case have been filed to legally third gender, to end the domestic, social and state violence faced every day by the people of this community.  The author tries to highlight the important issues regarding third gender and reveal apex courts decision which is prospective for them towards the realization of their fundamental rights.

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

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

7. Lloyd H. Mayer (Notre Dame Law School), Disclosures About Disclosure, 45 Ind. L. Rev. --- (2010.) The abstract states:

An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the plaintiffs are challenging disclosure of referendum petition signers, but also in the debates in Congress and numerous state legislatures regarding whether to substantially expand disclosure requirements in the wake of Citizens United.

This article questions both factual assertions. Looking first at the informing voters claim, existing political psychology research reveals that whether contributor information provides helpful information to voters depends on what information is disclosed and how it is disseminated to voters. Knowing the identities of numerous smaller contributors is highly unlikely to aid voters, as compared to knowing the identities of larger donors who may be more well-known, and, possibly, knowing aggregate information about smaller contributors such as geographic and industry concentrations. Moreover, even the useful information is more likely to help voters if it is provided in a manner that facilitates their learning of it before the relevant election. As for the retaliation claim, there is sparse evidence that outside of certain specific contexts – civil rights groups during the 1950s and 1960s and communist and socialist parties today – there is much if any retaliation, much less retaliation that rises to a level that raises serious concerns, against contributors whose support becomes known through the existing disclosure rules. That said, the ever increasing access to such information through the Internet may change this conclusion.

While much remains unknown about the effects of political contributor disclosure, what is known suggests at least two changes that could result in better knowledge for voters and, for the first change, less exposure to retaliation or the risk of retaliation for smaller contributors. The first change would be to reduce the public disclosure of identifying information for smaller contributors, releasing only data relevant for aggregation purposes for such contributors. The second change would be to expand the disclosure of information regarding larger contributors through disclaimers on mass media and other large-scale communications that identify not only the group paying for such communications but the major funders of that group. These common sense strategies both match what we know about the effects of disclosure and may have the added benefit of relieving some of the constitutional tension in this area.

 8. Jeffrey Shulman (Georgetown University Law Center), Free Speech at What Cost?: Snyder v. Phelps and Speech-Based Tort Liability, Cardozo L. Rev. de novo, pp. 101-133 (2010). The abstract states:

It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 130 S. Ct. 1737 (2010), tilts doctrine too far in the direction of free speech, upsetting the Supreme Court’s careful weighing of interests that takes into account both the need for robust political debate and the need to protect private individuals from personal abuse. Where speech is directed at a private individual, especially one unwilling to hear but unable to escape the speaker’s message, the elements of the emotional distress claim more than satisfy the appropriate constitutional standard. Indeed, such a standard can help create a civil space where both robust advocacy and the freedom to avoid robust advocacy can flourish.

This article makes four points about the Fourth Circuit’s decision in Snyder v. Phelps, each of which addresses the need to secure what is purely private from injurious speech.

1. The Fourth Circuit decided that the issues animating the protest of the Westboro Baptist Church (WBC) were matters of public concern. Of course, the “issue[s] of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens” are matters of public concern. But none of these is the issue whose publicness the Fourth Circuit was called upon to consider. That issue is whatever connection Matthew Snyder had to these matters. In the world of speech-based torts, whether a matter is one of legitimate public concern depends on the content, effect, and significance of the plaintiff’s conduct, not the subjective and unilateral assertions of the defendant. WBC must show that that connection is of public concern. Otherwise, every soldier, every Catholic, etc. (no matter how assiduously he or she has avoided the public fray) would be subject to targeted personal assault as long as WBC speaks under the mantle of some public concern (no matter how tenuously connected to the conduct of its target).

2. The Fourth Circuit’s decision turned on the court’s determination that WBC’s speech, even if it was not a matter of public concern, was mere rhetorical hyperbole (and, thus, not provably false; and thus protected opinion). Whatever sense this reasoning makes in the area of public debate, it creates a perverse incentive for WBC to be especially abusive and inflammatory: the more hyperbolically hateful the speech, the more it is constitutionally protected. This doctrinal borrowing from defamation makes little sense where the plaintiff brings an emotional distress claim. First, when the plaintiff’s claim is based on emotional injury caused by non-provable speech, the state’s interest in the protection of private personality is greater. The defamation plaintiff is injured by false statements of fact: where there is no provable factual assertion, there is little chance of reputational injury. No one will believe what is clearly hyperbolic rhetoric. But those same words can heighten a plaintiff’s emotional distress (and the more hyperbolic, the more the harm), whether or not the defendant’s message is verifiable. Second, the value of the speech at issue, and thus the need to offer it constitutional protection, is lesser. Statements meant merely to cause emotional injury to private plaintiffs bear only the most superficial resemblance to protected forms of speech.

3. There is no justification for applying the actual malice standard to emotional distress claims outside the public arena (and little enough inside). The literal application of the actual malice standard offers no protection to the plaintiff claiming emotional injury from rhetorically hyperbolic speech. The victim of a libel can show that the statement was false. The victim of rhetorical hyperbole can prove or disprove nothing that will bring judicial redress. This may be the cost of doing business in the public arena, but there is no reason why a private plaintiff should be left defenseless against emotionally injurious speech that serves no valid communicative purpose.

4. The availability of tort remedies for injurious speech is critical if private individuals are to peacefully exercise their own constitutional rights. The state has a substantial interest in protecting families’ “personal stake in honoring and mourning their dead” and in keeping the most intimate of moments from “unwarranted public exploitation.” Mr. Snyder should have the opportunity to show that WBC’s targeted picketing “was intended to cause him and his family substantial psychological distress,” not to disseminate a public message.

Matthew Snyder died in service to his country, but the injuries that took his life left a legacy of trauma for his family. It is now the Supreme Court’s opportunity to decide whether our nation’s profound commitment to the contentious discussion of public issues is also a license for egregiously intrusive and injurious speech.

9. Anne Klinefelter (University of North Carolina (UNC) at Chapel Hill - School of Law), First Amendment Limits on Libraries’ Discretion to Manage Their Collections , 102 Law Library Journal --- (2010). The abstract states:

First Amendment freedoms impose some limits on publicly funded libraries’ discretion to manage their collections, but identifying those limits is difficult. The First Amendment law of libraries is murky territory, defined by three Supreme Court decisions that failed to produce majority opinions and lower court opinions that have employed a variety of doctrinal approaches. Libraries nonetheless must make sense of these cases to create and implement collection development and Internet access policies and procedures. This article surveys and analyzes the First Amendment law of library collections and finds that libraries’ discretion is broad, but certain limitations apply. These can serve as a reminder to librarians of their ethical commitment to challenge censorship and provide access to all points of view.

10.  Helen L. Norton (University of Colorado School of Law), Shining a Light on Democracy's Dark Lagoon, 61 S.C. Law Rev. --- (2010).The abstract states:

Written for a symposium examining the Fourth Circuit’s jurisprudential tradition, this short essay explores the Fourth Circuit’s approach to the emerging government speech doctrine, under which the government’s own speech is exempt from free speech clause scrutiny. In developing this doctrine, the Supreme Court has been too quick to defer to public entities’ assertion that contested speech is their own; indeed, it has yet to deny the government’s claim to expression in the face of a competing private claim – at significant cost to the public’s ability to hold government politically accountable for its expressive choices. The Fourth Circuit, in contrast, has recognized the great value of government speech to the public, while remaining mindful that such value turns on the public’s ability to ascertain the speech’s governmental source and has thus insisted that government remain meaningfully accountable to the public for its speech as a condition of claiming the government speech defense. As Judge Wilkinson so elegantly observed, “[i]t is vital to the health of our policy that the functioning of the ever more complex and powerful machinery of government not become democracy’s dark lagoon.” By demanding meaningful transparency as a condition of the government’s ability to claim speech as its own, the Fourth Circuit has been asking exactly the right questions in its government speech cases to date (even though reasonable people might disagree on the answers), thus shining a light on democracy’s (sometimes dark) waters.

11. Joshua J. McIntyre (DePaul University College of Law), The Number is Me: Why Internet Protocol (IP) Addresses Should Be Protected as Personally Identifiable Information, 60 DePaul L. Rev.---(2011). The abstract states:

Although computer logs typically correlate online activity only to Internet Protocol (IP) addresses, those addresses can be used to expose the individuals who initiated that activity. While various federal statutes protect similar data, such as telephone numbers and mailing addresses, as Personally Identifiable Information, federal privacy law does not sufficiently protect IP addresses. Thus, it has become commonplace for litigants to subpoena Internet Service Providers (ISPs) to unmask online speakers. Many ISPs have no reason to fight these subpoenas and readily give up their subscribers’ names, addresses, telephone numbers, and other identifying data without demanding any court oversight or providing any notice to those identified. Left unchecked, such reporting could undermine free speech and the free exchange of ideas by encouraging users to censor their own online conduct.

This Comment explores the possibility of protecting the IP address itself as Personally Identifiable Information (PII). It explores the various definitions of PII and the relevant technical aspects of IP addressing. It concludes that, despite some technical shortcomings, IP addresses are functionally similar to other types of PII and should be similarly protected in order to protect online privacy.

12. Jonathan Weinberg (Wayne State University Law School), Non-State Actors and Global Informal Governance - The Case of Icann, published in (INTERNATIONAL HANDBOOK ON INFORMAL GOVERNANCE (Thomas Christiansen, Christine Neuhold, eds.). The abstract states:

This chapter will appear as part of the forthcoming INTERNATIONAL HANDBOOK ON INFORMAL GOVERNANCE (Thomas Christiansen & Christine Neuhold eds.). It examines the history of the Internet Corporation for Assigned Names and Numbers, or ICANN. ICANN is an unusual beast. When it came into existence, it faced legitimacy challenges: some were unconvinced that it was an appropriate wielder of the power it claimed, that they had any obligation to cooperate in its governance functions, or that they should comply with its pronouncements. I argue in this chapter that ICANN’s key move in establishing its legitimacy was its expansion and bureaucratization. ICANN initially positioned itself as an informal technical coordination body in the tradition of the Internet Engineering Task Force: today, it has shifted to adopt the appearance, processes and culture of a modern large bureaucracy. In seeking to be accepted by business enterprises and governments, it structured itself so that it looks like a business enterprise or government. It negotiated successfully with influential players as to the goals it should pursue, and reframed its structure and culture so as to conform to their images of what a successful and legitimate organization ought to look like.

13. Nancy Danforth Zeronda, Note - Street Shootings: Covert Photography and Public Privacy, 63 Vand. L. Rev. 1131 (2010). The Introduction states:

Street photographers, like snipers, pride themselves on stealth. Camouflaged in nondescript clothing, they wander the streets undetectable, armed, and on the hunt. When they find their mark,they act quickly. As the famous twentieth-century street photographer Henri Cartier-Bresson described: “The creative act lasts but a brief moment, a lightning instant of give-and-take, just long enough for you to level the camera and to trap the fleeting prey in your little box.”

While methods of “trapping prey” vary from shooter to shooter, the mission remains the same—staying as covert as possible and catching an unknowing subject in a candid pose.  In the formative years of street photography, Cartier-Bresson concealed himself by wrapping a large handkerchief around his camera and pretending to blow his nose while discretely taking a picture.  He also covered his camera in black tape to conceal any shiny parts that might give him away to his subjects.

Today’s street photographers are armed with a new generation of weapons that hardly need concealment. The rise of miniaturized and digital technologies has taken street shooting to a whole new level. In a world where companies compete to make the smallest, most inexpensive cameras, surreptitious photography runs rampant. For example, cell-phone cameras and “dime-sized spy cameras” make it possible for photographers to shoot their subjects from virtually any angle without detection.  However, as technology advances, so does the potential scope and harm from photographic invasions of a subject’s privacy.

One of the most disturbing products of these developments isthe birth of “upskirt photography.”  As its name suggests, upskirt photography involves taking pictures of women up their skirts. There are currently over one hundred websites featuring upskirt images,indicating just how in-demand the product is.  This form of unauthorized photography can have devastating effects on subjects. An upskirt photograph draws attention to a private aspect of a person’s life that would not have been seen by the naked eye and that the subject likely would not have consented to put on public display. In this regard, upskirt photographs infringe on basic precepts of human dignity.  They also often cause outrage, mental suffering, shame, or humiliation for their subjects.

Despite these severe injuries, an individual photographed in public has nearly no recourse under current civil law. Street photography thrives because an individual has no right to privacy in public places.  Instead, the law protects the photographer, not the victim.

Civil law must keep pace with technology and break away from its current conception of privacy in public places. Upskirt photography will persist until the law provides a remedy that serves as a sufficient deterrent against the behavior. Deterrence, though,cannot be achieved when courts cling to conventional thinking that invasions of privacy cannot occur in the public sphere. New and problematic forms of street photography necessitate a reexamination of photographic invasions of privacy.

Part II of this Note provides a brief history of the right to privacy, highlights specific characteristics unique to photography that intensify its threat to privacy, and introduces the conventional rationales for denying individuals a right to privacy in public. Part III surveys photographic invasion-of-privacy cases and examines the classic rationales for upholding photographers’ rights to shoot subjects covertly in public. Drawing upon the concepts discussed in Part III, Part IV then proposes that the tort of battery should be expanded to encompass photographic street shootings. The tort of battery protects an individual’s dignity from intentional invasions. Accordingly, the interests at stake in street shootings fit squarely within the interests battery seeks to preserve. Part IV further argues that the “contact” requirement of battery can be satisfied either by actual contact between the photographer and the victim (or the victim’s clothing) or by a nontraditional theory of contact via light particles. Characterizing street shootings as a form of battery eliminates many of the impediments faced by plaintiffs in photographic invasion of privacy claims.

JFB