First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:
 
1. Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School), God of Our Fathers, Gods for Ourselves: Fundamentalism and Postmodern Belief, 18 Wm. & Mary Bill of Rts. J. 901  (2010). The abstract states:

Prepared for a symposium on “Families, Fundamentalism, and the First Amendment,” this essay uses the “death of God” as a frame for recent developments in law and religion in the United States. Western culture has been obsessed with the death of God at least since Nietzsche. During the 1900s, this obsession took the form of a prediction that modernization had so undercut belief that the latter would eventually disappear entirely. That prediction turned out to be spectacularly wrong in the United States; popular and academic literature is now filled with triumphant - and regretful - expositions of the contemporary vibrance and vitality of religion. God has cheated death (or, at least, Nietzsche).

Or has he? The God whose death was widely predicted and the God who today is alive and well are not the same God. The God who died is the God of Christendom, who bound together western society with a universal account of the world that did not survive the advent of postmodernism; this God, indeed, is dead. The vibrant God of today is the one adapted to postmodernism; the vitality of that God is on display in contemporary American religion, especially in the spirituality movement. The most pressing religious problem now confronting the world is posed by believers who refuse to recognize the demise of the first God and the rise of the second; these “fundamentalists” continue to press for government recognition and enforcement of absolute religious truths. All three of these phenomena - the death of God, his rebirth in postmodernity, and his remnants in fundamentalism - are manifest in recent Religion Clause decisions.

2. Matthijs de Blois, Religious Law Versus Secular Law: The Example of the Get Refusal in Dutch, English and Israeli Law, 6 Utrecht L. Rev. 93 (2010). The abstract states:

The tension between religious law and secular law in modern democracies is illustrated in this article by a discussion of the different approaches to the get (a bill of divorce) refusal (based on Jewish law) under Dutch, English and Israeli law. These legal orders share many characteristics, but also display important differences as to the role of religion and religious law in the public realm. The Dutch system is the most secular of the three; it does not recognize a role for religious law within the secular system as such. The English legislation provides for means that to a certain extent facilitate the effectuation of a religious divorce. In Israel, finally, the law of marriage and divorce is as such governed by the religious law of the parties concerned; for the majority of the population that is Jewish law. An evaluation of the different approaches in the framework of human rights law reveals the complexities of the collision of the underlying values in terms of equality, religious freedom and minority rights, also having regard to the diversity of opinions within religious communities.

3. Natasha Bakht (University of Ottawa - Faculty of Law),  What’s in a Face? Demeanour Evidence in the Sexual Assault Context , published in SEXUAL ASSAULT LAW, PRACTICE AND ACTIVISM IN A POST-JANE DOE ERA, Elizabeth Sheehy, ed., University of Ottawa Press, 2010 The abstract states:

Sexual assault is an area of law that has been fraught with misogyny and racism. This paper attempts to contribute to the literature on gender-justice in the sexual assault context by relying on an intersectional analysis that examines religion and culture. In doing so, I discuss the needs of a small minority of women. Though their numbers may be few in Canada, adequately responding to the plight of niqab-wearing women in this context is both just and will serve to ameliorate the workings of the judicial system for all women. In Toronto, Ontario, a Muslim woman complainant recently made a request to wear her niqab while giving testimony in a preliminary inquiry in which she alleged that two accuseds sexually assaulted her over a period of several years. The accuseds’ lawyers objected to the complainant wearing her niqab arguing that it prevented them from effectively cross-examining her. This paper will argue that the prosecution and adjudication of the offence of sexual assault must be more inclusive of the needs of Muslim women who cover their faces. My interest with this work is in ensuring that women’s equality is furthered, that women from minority groups in particular are not in the unhelpful position of having to choose between their cultural or religious beliefs and other fundamental rights that they are entitled to.

4. Lea S. Vandervelde (University of Iowa - College of Law), A Singular Conscience: In Re Summers, 14 Em. Rts. & Emp. Pol'y J. 153 (2010).  The abstract states:

This article tells the story behind In Re Summers, 325 U.S. 561 (1945) in which Clyde Summers was denied admission to practice law in Illinois based on a finding of unfit character because he elected conscientious objector status and declared that he could not kill another human being. Summers initiated his own appeal and the U.S. Supreme Court upheld the Illinois decision reaffirming that admission to practice law could be denied on these grounds. The story richly illustrates the circumstances of an individual taking a different course because he senses ideas that have not yet become generally understood. Such persons of singular conscience do not fit the categories of logic, law and convention that have gone before, as an analysis of the case demonstrates.

This long neglected decision has never been overturned. The decision permits states to single out principled individuals and disqualify them from occupations. Also at stake is the free exercise of religious conscience.

Secondly, the case invokes an ancient understanding of what it means to be a lawyer, “the lawyer-warrior.” The discursive exchange at the controversy’s heart can be read as marking the emergence of a new, contrasting view, “the lawyer-peacemaker.” The “lawyer-warrior,” a conventional model for attorneys in an adversarial system, had a significant hold on the minds of the Board on Character and Fitness. Although Summers did not prevail, in the process, at an early date, 1943, he articulated a remarkably modern view of the lawyer as problem-solver.

In 1873, sixty years before Summers, the same state declared Myra Bradwell unfit to practice law because she was a woman, a decision also upheld by the U.S. Supreme Court in Bradwell v. Illinois. The two cases share an interesting connection: the prescribed role for the lawyer-warrior in the adversarial system is quintessentially male. If the test is the willingness of a person to take a human life, Summers justifies excluding women from the bar and many men as well.

5. Ali Çarkoğlu , Public Attitudes Towards the Türban Ban in Turkey, 6 Utrecht L. Rev. 145 (2010). The abstract states:

This paper looks at the türban ban controversy in Turkish politics from an empirical and behavioural perspective. With the aid of a number of nationwide surveys I aim to clarify how the ban on the türban in public spaces is being evaluated by different segments of Turkish society. Who supports which policy options and who opposes these options for what reasons? The policy implications of these findings will be evaluated in the concluding section.

6. Susanna Mancini (Johns Hopkins University - Bologna Center), The Crucifix Rage: Supranational Constitutionalism Bumps Against the Counter-Majoritarian Difficulty, 6  European Constitutional Law Review 6 (2010). The abstract states:

On November 3rd 2009, in Lautsi v. Italy, the European Court of Human Rights held that the mandatory display of the crucifix in Italian public school classrooms restricts the right of parents to educate their children in conformity with their convictions, and the right of children to believe or not to believe. The Court concluded, unanimously, that there had been a violation of Article 2 of Protocol No. 1 taken jointly with Article 9 of the European Convention.

Within a few hours of its becoming public, this decision turned the Court into a target of bitter political criticism and deep popular resentment. The Italian Prime Minister declared that 'This decision is not acceptable for us Italians. It is one of those decisions that make us doubt about Europe’s common sense.’ Similar reactions came from virtually all of the Italian political class. The Vatican accused the Court of having delivered a ‘short sighted and ideological’ decision. In the northern area of the country, mainly controlled by the populist right-wing Northern League, crucifixes were distributed in the village's main squares, and acts were enacted to compel even shopkeepers to display the crucifix. In one case a two meters high crucifix was posted at the gate of a municipality. The judges who took part in the decision were subject to personal attacks. Some even talked about a ‘Moslem plot.’

As these reactions show, the implications of the crucifix decision are complex and multi-faced. Schematically, they relate to three major questions. The first one has to do with the increasing difficulty that constitutional democracies experience in reconciling constitutionalism and religion through adherence to secularism in the public place. The concurrent process of globalization and privatization has led to an increasing blurring of the line between the public sphere and the private sphere. In this connection, religion has become ‘deprivatized,’ in a trend started in the 1980’s in countries as different as Iran, Poland, Brazil and the United States. Deprivatized religion not only seeks a much increased role in the public sphere but also in the political arena. As a result of this, reconciliation of constitutionalism and religion through adherence to secularism in the public place becomes increasingly difficult and contested. The second question concerns the entanglement between religion and the polity’s core identity in secularised societies who experience threats to their self- as a consequence of globalization, large-scale migration and the aftermath of September 11th. These developments have led to increased demand for social cohesion and for reinforced collective identities , which accounts for a particular draw towards religious symbols, such as the crucifix, in view of their capacity to evoke unquestioned belongings. The third and last question relates to the role of the European supervision in the field of religious freedoms and, specifically, in addressing national conflicts between religious majorities and religious minorities.

With these questions in mind, in this essay I will first situate the crucifix case in the frame of Italian legal, political and cultural, context, with reference to similar cases decided in other European jurisdictions. I will then highlight the novelty of the Lautsi case and emphasize its potentially positive implications in strengthening the counter-majoritarian role of the ECtHR, while at the same time remaining mindful of its possible negative consequences. If, as it seems likely, the Italian institutions and the Italian people will resist the European judgment, this could in fact set the premises for a weakening of the judicial authority of Court.

7. Susanne Baer, A Closer Look at Law: Human Rights as Multi-Level Sites of Struggles Over Multi-Dimensional Equality , 6 Utrecht L .Rev. 56 (2010). The abstract states:

Conflicts in human rights today are often conflicts around religion and equality. They focus on headscarves, swimming lessons or prayer during school. To understand them better, we need to resist the temptation to reduce them to cases or clashes between a determinate set of rights. Rather, we need to understand the political agendas set, including the culturalization of religion and the othering of sex equality, and we need to analyse such conflicts in contexts of contested secularism, as an occurrence in a world of multi-level (and thus also contested) regulation and as a problem of multiple inequalities. To solve them, this paper suggests relying on a triangle of fundamental human rights, with substantive equality and interrelated liberty as well as dignity.

8. Anca Parmena Olimid  (University of Craiova - Department of Political Sciences), Rethinking the Theory of New Christianism: Religious Liberty as Fundament of European Spiritual Personalism in Saint Simon’s Theory (Romanian) . The abstract states:

Without pretending to bring solutions, the present article tries to identify the main talking points of the religious liberty and regime of cults in the European recent history, assuming the hypothesis that recognizes its character as a unique phenomenon. The present work recognizes the importance of Saint Simon’s theory, which becomes an indispensable instrument for the reflection and analysis of the history of political ideas of the last two centuries. The work does not rest on a structural analysis of politics, but is oriented towards an understanding of the dynamics of New Christianism in the context of industrial progress.

9. Barbara M. Oomen , Joost Guijt, and Matthias Ploeg, CEDAW, the Bible and the State of the Netherlands: The Struggle Over Orthodox Women’s Political Participation and Their Responses, 6 Utrecht L. Rev.158 (2010), The abstract states:

The case of the SGP essentially concerned the question whether the Netherlands should take measures against a Bible-based political party that bars women from its list of candidates. Against the theoretical background of human rights sociology, the rise of rights as a framework for moral discussions and the role of NGOs in rights implementation, this article assesses how ‘rights talk’, in particular based upon the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), became the language in which the discussion over orthodox women’s political rights came to be framed in the Netherlands. It makes use of extensive quantitative and qualitative data to assess how this particular form of rights realization – via court cases lodged by outside NGOs – impacted upon discussions within the communities concerned, particularly amongst the women themselves. It argues that this particular form of rights realization can also have undesired effects, such as reinforcing more conservative positions and strengthening a general sense of isolation from society and relates these findings to more general discussions on ‘talking rights’ in a context of religious diversity.

10. Susan Rutten, Protection of Spouses in Informal Marriages by Human Rights , 6 Utrecht L. Rev. 77 (2010). The abstract states:

This article deals with one of the aspects of a pluralistic society: the existence of informal marriages. These are marriages concluded in accordance with religious or cultural traditions that do not comply with the requirements of the formal secular legal order. Two aspects of those marriages will be discussed: primarily, whether and to what extent spouses in informal marriages should be regarded and protected by law as spouses, and secondly, whether spouses who are involuntary kept in their informal marriages should be released by and protected by formal law. With regard to both aspects the question will be raised whether human rights could and should serve as a means to offer spouses of informal marriages their desired protection. From recent case law both from the European Court of Human Rights and the national courts, it becomes clear that human rights have only recently and very cautiously started to demand a role in the informal legal orders.

11. Regis Bismuth (Université Paris 1 Panthéon-Sorbonne), Standards of Conduct for Journalists under Europe’s First Amendment, 8 First Amend. L. Rev. 283 (2010). The abstract states:

When it comes to the protection of the freedom of the press, Article 10 of the European Convention on Human Rights, which protects the freedom of expression, fulfills a function similar to the First Amendment in controlling states’ regulation of damage to reputation. An analysis of the abundant case law of the European Court of Human Rights highlights the development of common professional standards for journalists, concerning publications with the potential to affect individuals’ reputations. It appears that the Court has developed distinct standards depending on the nature of the medium at issue, comprising two categories: information and opinions. It is clear that the Court wishes to promote and protect a press it considers serious and useful for the public debate.

12. Pamela Samuelson (University of California, Berkeley - School of Law), First Amendment Defenses in Trade Secrecy Cases, published in THE LAW AND THEORY OF TRADE SECRECY: A HANDBOOK ON CONTEMPORARY RESEARCH, Rochelle C. Dreyfuss, Katherine J. Strandburg, eds., 2010 The abstract states:

Only rarely do defendants in trade secrecy cases raise First Amendment defenses to misappropriation claims. In a few cases, however, such defenses have not only been raised, but have been successful. These successes have been controversial. Some commentators and at least one court have opined that First Amendment defenses should never succeed in trade secret cases because trade secrets are property and property rights trump the First Amendment. Yet, other commentators and at least one court have argued that enjoining the use or disclosure of trade secrets is a prior restraint on speech that is presumptively unconstitutional. This article explores a middle ground. It explains why First Amendment defenses are so uncommon in trade secrecy cases, among them that trade secrecy law has some limiting doctrines (or "weaknesses") that mediate tensions that might otherwise occur between trade secrecy law and the First Amendment as applied to the use or disclosure of information. The article discusses at length the DVD CCA v. Bunner case in which an online activist was sued for trade secret misappropriation for posting DeCSS on the Internet because that code embodied information that DVD CCA asserted had been misappropriated by reverse engineering in breach of a shrinkwrap license. It refutes the California Supreme Court's analysis of First Amendment defenses as well as showing the inconsistency of this decision with other trade secrecy-First Amendment rulings. It argues that in ordinary trade secrecy cases, where disputes typically concern private uses and disclosures of information by firms that have wrongfully obtained it, no presumption of unconstitutionality is appropriate. However, when a third party, such as a journalist, obtains information that he or she knows has been obtained in breach of confidence and seeks to publicly disclose it because of its newsworthiness, First Amendment interests are implicated, and courts should take First Amendment defenses seriously. The article concludes with a discussion of First Amendment due process issues, such as the need for de novo review of constitutionally relevant facts.

13. Andrew G. Shuman, MD  (University of Michigan Hospitals - Department of Otalaryngology) and  Marc Edelman( Barry Law School), The Bleeding Physician of Philadelphia: Libel, Defamation, and Our Founding Fathers. The abstract states:

Dr. Benjamin Rush filed one of the first professional libel lawsuits in the United States, incited by the writings of William Cobbett, a British journalist, concerning his treatment of yellow fever during the 1793 Philadelphia epidemic. The historical setting is described and the lawsuit dissected, with particular attention to the applicability of the tenets of their debate and its relevance to professional medical libel. Although Dr. Rush won his lawsuit based on the medical dogma, legal principles and political climate of his time, a similar lawsuit today would very likely fail, as recent courts have recognized the media’s right to far broader First Amendment protections against libel suits brought by public figures such as world-famous physicians.

14. Kelly Sarabyn , Prescribing Orthodoxy, 8 Cardozo Pub. L. Pol’y & Ethics J. 367 (2010). The abstract states:

In West Virginia State Board of Education v. Barnette, the Court famously held that no state could prescribe an ideological orthodoxy. Yet more than sixty years later, the constitutional doctrines governing that proscription are in disarray. This article argue that Barnette’s proscription should be understood as banning the state from intentionally utilizing non-rational methods to purposely shape citizens’ ideological beliefs. After espousing this theory, the article will examine the unconstitutional condition and government speech doctrines, and demonstrate how a constitutional principle banning the prescription of orthodoxy provides them with a much-needed coherence.

15. David S. Ardia (Berkman Center for Internet & Society), Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act , 43 Loyola of Los Angeles L. Rev. --- (2010). The abstract states:

In the thirteen years since its enactment, section 230 of the Communications Decency Act has become one of the most important statutes impacting online speech, as well as one of the most intensely criticized. In deceptively simple language, its provisions sweep away the common law’s distinction between publisher and distributor liability, granting operators of Web sites and other interactive computer services broad protection from claims based on the speech of third parties. Section 230 is of critical importance because virtually all speech that occurs on the Internet is facilitated by private intermediaries that have a fragile commitment to the speech they facilitate.

This Article presents the first empirical study of the section 230 case law. It begins by providing a doctrinal overview of common law liability for intermediaries, both online and offline, and describes how section 230 modifies these doctrinal approaches. It then systematically analyzes the 184 decisions courts have issued since the statute’s enactment. The Article also examines how courts have applied section 230, finding that judges have been haphazard in their approach to its application.

The Article closes by discussing the study’s findings and by offering some insights into how plaintiffs and defendants have fared under section 230. While section 230 has largely protected intermediaries from liability for third-party speech, it has not been the free pass many of its proponents claim and its critics lament. More than a third of the claims at issue in the cases survived a section 230 defense. Even in cases where the court dismissed the claims, intermediaries bore liability in the form of litigation costs, and it took courts, on average, nearly a year to issue decisions addressing an intermediary’s defense under section 230.

16. Evan L. Seite , Note - Language Legislation in Iowa: Lessons Learned from the Enactment and Application of the Iowa English Language Reaffirmation Act, 95 Iowa L. Rev. 1369  (2010).  The abstract states:

The Iowa General Assembly enacted the Iowa English Language Reaffirmation Act (“IELRA”) in 2002, an act that purports to make English the official language of that Iowa government’s affairs.  Rhetoric surrounding the debate over the Act centered on its “symbolic” meaning and frequently alluded that the IELRA would not have any real effect on the State government’s actions. In 2008, Polk County District Court Judge Staskal held that non-English voter registration cards published by the Secretary of State violated the official-English mandates of the IELRA. To understand the implications of the IELRA after Judge Staskal’s decision, it is appropriate to examine the history and rhetoric of the official-English debate in Iowa, as well as the implications of the IELRA after Staskal’s decision. Misunderstandings about the plain language of the IELRA caused the public and the Iowa General Assembly to fail to recognize the scope of the IELRA; this Note provides a method to reconceptualize the debate about language legislation nationally.

JFB