First Amendment Scholarship Update

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

1. Christopher S. Yoo,  Free Speech and the Myth of the Internet as an Unintermediated Experience, 78 Geo. Wash. L. Rev. 697 (2010). The abstract states:

In recent years, concerns about the role of Internet intermediaries have continued to grow.  The debate initially focused on last-mile broadband providers’ abilities to favor certain content or applications either by giving them different levels of higher priority or by charging them different amounts.  The issue came to a head in 2008 when the FCC sanctioned Comcast for slowing down the traffic associated with a single application, only to see that decision overturned on judicial review.  Commentators have also warned of search engines’ abilities to influence the speech environment by skewing search results.  Other commentators have called for mandating open access to key file-sharing and social networking technologies, such as YouTube, BitTorrent, Facebook, and MySpace.  Most recently, controversy has arisen over access to key device technologies, as demonstrated by the decision of the Federal Communications Commission (“FCC”) to open an investigation into Apple’s decision not to carry certain voice applications developed by Google.  Still other commentators have focused not on these intermediaries’ abilities to shape Internet speech in accordance with their own views, but rather on the government’s ability to impose regulation of intermediaries as an indirect means for imposing its own speech preferences.  Newspaper accounts constantly raise concerns about the manner in which intermediaries such as Comcast, Google, Facebook, and Apple select and prioritize content and applications.

Note that these claims reflect a deep internal inconsistency.  Sometimes the network provider is the actor charged with wielding its market power in a manner that harms the hapless device and application providers.  In other cases, it is the device manufacturer that is accused of abusing its dominance, while in still other cases it is the application provider (particularly search engines and social networking software).  Simply put, these claims cannot be advanced simultaneously in a coherent manner.  If, in fact, more than one level of this chain of distribution is dominated by a single player, the economics of “double marginalization” suggest that consumers would be better off if both were controlled by a single entity.
In short, the image of the Internet as an unintermediated experience, in which speakers speak directly to audiences without passing through any gatekeepers, is more myth than reality.  The real question is not whether some actor, but rather which actor, will serve as the intermediary.  The Supreme Court’s First Amendment jurisprudence underscores that important free speech considerations fall on both sides of the debate over intermediation.  Moreover, in terms of deciding how that balance should be struck, the cases indicate that free speech considerations favor preserving intermediaries’ editorial discretion unless the relevant technologies fall within a narrow range of exceptions, all of which the Court has found to be inapplicable to the Internet.  Indeed, Supreme Court precedent recognizes the importance of this editorial discretion even when intermediaries are simply serving as the conduit for the speech of others.  Moreover, the Court has long held that the fact that an intermediary may wield monopoly power and the danger that intermediaries may act as private censors do not justify regulating their editorial discretion.  That would substitute government decisionmaking for private decisionmaking, and although Supreme Court precedent and our free speech traditions are agnostic as to which private actor should serve as the intermediary, they are very clear that it should not be government, and when choosing between censorship by a private actor and the government, the choice should always favor the former over the latter.

The balance of this Article proceeds as follows: Part I discusses the inevitability of intermediation, both in terms of protecting end users from exposure to unwanted content and in helping them identify and obtain access to desirable content.  It also analyzes the manner in which intermediaries may be essential to solving certain bargaining problems that may prevent end users from obtaining access to the content they desire.  Part II analyzes the judicial precedents recognizing the important free speech values promoted by intermediaries’ exercise of editorial discretion, including the Supreme Court’s decisions regarding newspapers, broadcasting, and cable television.  It also examines lower court decisions on dial-a-porn and on telephone companies’ First Amendment right to offer video programming to explore how editorial discretion can promote free speech values even when exercised by common carriers such as telephone companies.  Part III reviews the inauspicious history of past attempts to regulate the editorial discretion wielded by electronic intermediaries.  Together, these insights underscore how Internet intermediaries’ exercises of editorial discretion can foster rather than impede free speech values.

2.  Eugene Volokh (University of California, Los Angeles (UCLA) - School of Law), Freedom of Speech and the Intentional Infliction of Emotional Distress Tort, forthcoming in Cardozo Law Review - De Novo  (2010).  The abstract states:

Twenty years ago, Hustler Magazine, Inc. v. Falwell held that even outrageous, severely distressing speech is constitutionally protected, at least when it deals with a matter of public concern, and is said about a public figure. In this short essay, I argue - in the context of Snyder v. Phelps, which will be argued in Fall 2010 before the U.S. Supreme Court - that the same must apply to all speech on a matter of public concern.

Whatever the merits of the public/private figure distinction when it’s applied to false statements of fact, it ought not be applied to opinions, however outrageous they might be. As the Court held in Hustler, “‘[o]utrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow [government actors] to impose liability on the basis of the [actors’] tastes or views.” And the same is true whether the plaintiff is a public figure or a private one.
Likewise, I argue that the other arguments sometimes used to defend liability in Snyder v. Phelps - the invasion of privacy argument, the argument that the defendants’ speech interfered with plaintiff’s own religious freedom, and the argument that liability for speech near funeral picketing rests on the time, place, and manner of speech and not its viewpoint - can’t suffice to overcome the defendants’ First Amendment arguments. Contemptible as defendants’ speech is, it can’t be restricted through the vague, content-based, and potentially viewpoint-based emotional distress tort. And this is true even though narrow and content-neutral limits on picketing immediately outside a funeral might well be constitutional.

3. Ariel Macaspac Penetrante (International Institute for Applied Systems Analysis (IIASA)),  Mass-Violence and Struggle for Recognition in Identity Conflicts - Negotiating Memories and Justice in the Philippines, forthcoming in PROMOTING NEGOTIATION IN IDENTITY CONFLICTS, William Zartman & Mark Anstey, eds., University of Georgia Press.  The abstract states:

The Southern Philippines provides an interesting example of how violence contributes to the development and maintenance of identity in a self-sustaining conflict cycle. It reflects a conflict whose complexity has been reduced simplistically to one of a Muslim minority in contest with the state. An intervention based on superficial analysis may however not simply fail to resolve the conflict and end the violence, but fuel new conflicts. This paper proposes a disaggregation of the levels of conflict and the design of interventions appropriate to each to raise prospects of success. Particular attention is given the role of civil society and NGO’s in peace processes.

4. Ernest F. Lidge III (University of Memphis - Cecil C. Humphreys School of Law),  A 'Person Aggrieved' - Who May Sue Under Title VII? , forthcoming in University of Memphis Law Review.  The abstract states:

Who may sue under Title VII and other employment discrimination laws? The statutes contain inherent tensions. Section 703(a) of Title VII, the substantive provision, is rather narrow, providing that it is “an unlawful employment practice for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” The language of the provision limits the scope of a violation to situations in which the employer takes action against an employee (or applicant for employment) because of that employee’s membership in a protected group. Similarly, section 704(a) of Title VII, the antiretaliation provision, takes a narrow approach, banning an employer from taking retaliatory action against an employee for engaging in protected conduct and limiting the definition of a violation to situations where “he has opposed any [unlawful employment practice or] . . . he has made a charge [of discrimination].” However, section 706(b), the enforcement provision, is broader, providing that “[w]henever a charge is filed by or on behalf of a person claiming to be aggrieved, . . . alleging that an employer . . . has engaged in an unlawful employment practice, the Commission . . . shall make an investigation.”

5. Jason Sorens  (University at Buffalo, Political Science),  Heterogeneity, Fiscal Federalism, and the Size of Government The abstract states:

What explains cross-national differences in the fiscal impact of government, including the size of the welfare state? Standard explanations center on citizen and government ideology and ethnic heterogeneity, with a smaller role for institutions such as majoritarianism, presidentialism, and federalism. Recent research has discovered that fiscal federalism has previously been mismeasured in such a way as to obscure its impact on policy. This paper argues that, in high-income countries, ethnic and religious heterogeneity was historically associated with the retention of federal institutions. Cross-national statistical results show that fiscal federalism suppresses government consumption, particularly on goods and services, while religious heterogeneity has an independent effect on government consumption, employment, and social spending. By contrast, jurisdictional competition under fiscal federalism does not provide incentives to cut government investment or transfers. Fiscal federalism appears to constrain government by keeping administrative costs low, while religious heterogeneity reduces the generosity of the welfare state. Together, fiscal federalism with a large number of jurisdictions and religious heterogeneity explain essentially all differences in size of government between the United States and more comprehensive welfare states such as Denmark, Canada, and the Netherlands.

6.  Peter Nicolas (University of Washington School of Law), Common Law Same-Sex Marriage. The abstract states:

In this manuscript, I demonstrate that, with the extension of the right to marry to same-sex couples in Iowa, the District of Columbia, and New Hampshire (all states that recognize common law marriage), there now exists the possibility that – for the first time in the United States – a same-sex couple may enter into a legally recognized common law marriage.

In the manuscript, I first show, as a doctrinal matter, that same-sex couples have the right to enter into common law marriages in each of these jurisdictions, and I explain and compare the criteria for entering into common law marriages in each of them. I then address the question whether it makes sense, as a policy matter, to expand the concept of common law marriage to include same-sex couples, including an analysis of whether being a closeted same-sex couple is consistent with being in a common law marriage. I conclude that the lack of consistent access to religious and public officials willing to perform same-sex marriages coupled with the libertarian spirit underlying both same-sex marriage and common law marriage militate in favor of recognizing common law same-sex marriages. I also demonstrate the advantages that common law marriage – with its lack of a paper trail – provides to same-sex couples who need to keep their relationships closeted, such as those in the military or foreign nationals with temporary visas.

7.  Joshua J. McIntyre (DePaul University College of Law),  Golan v. Holder Revisited: Why the U.S. Implementation of Berne Article 18 Should Pass Intermediate Scrutiny.  The abstract states:

In 2009, the District Court for the District of Colorado found 17 U.S.C. § 104A, which implements the Berne Convention requirement of retro-activity, to be an unconstitutional violation of authors’ First Amendment interests in derivative works created from works restored from the public domain. A brief examination of the history of Berne Article 18 and its intended application suggests that, contrary to the court’s view, Berne member nations may not excuse derivative works from the application of retroactivity. Because the United States implements its Berne requirements in a way that is not substantially broader than necessary, its retro-activity law should pass intermediate scrutiny.

8.  Uladzislau Belavusau (European University Institute, Florence, Italy), A Dernier Cri from Strasbourg: An Ever Formidable Challenge of Hate Speech, 16  European Public Law 373 (2010). The abstract states:

This article provides the analysis of three recent decisions of the European Court of Human Rights on the problem of hate speech, pertinent in the context of the danger of terrorism, an infamous (anti)-immigration debate, and an extreme nationalist historical mythology (Soulas & Others v. France, Leroy v. France, Balsytė-Lideikienė v. Lithuania). The author endeavours to answer if the ‘dernier judicial design’ of these decisions is actually posing a risk of chilling effect (as some scholars have recently argued) or the earlier Strasbourg proportionality is still à la mode.

JFB