First Amendment Law Prof Blog

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

Groups Direct Judiciary Committee Attention to Kagan’s Views of Religion Clause Questions

With the Kagan confirmation hearing set to begin next week, the First Amendment Center notes that Brookings Institution Fellow Melissa Rogers has released a brief report analyzing the nominee’s expressed views on free exercise controversies.  The Center also observes that Barry Lynn of Americans United for the Separation of Church and State has filed a letter with the Senate Judiciary Committee urging members to explore the nominee’s views on the a number of topics related to religious liberty.

JFB 

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

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

Horn Honking as Protected Speech?

The state supreme court in Washington today hears oral arguments to decide whether honking a car horn in a residential area is protected free speech.  The case arose out of a neighborhood dispute when a woman parked her car outside a neighbor's home and honked her horn in retaliation for complaints she received about noisy chickens in her back yard.  The woman was arrested under an ordinance that apparently qualifies horn honking as a public disturbance unless done for purposes of public safety. 

Arguments in State v. Immelt are broadcast live, here, at 1:30 pt. 

-Kathleen Bergin

 

First Amendment Scholarship Update

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

1.  Daniel Philpott (University of Notre Dame),Has the Study of Global Politics Found Religion? , 12 Annual Review of Political Science 183 (2009 ). The abstract states:

The past generation has witnessed a resurgence of religion in global politics, but political science has been slow to catch up with it. The reason lies in the secularism embedded in the field's major theories, one that reflects actual secularism in world politics, beginning with the events surrounding the Peace of Westphalia in 1648 and growing steadily through the middle twentieth century. Today, a small but growing number of political scientists have begun to explore religion, doing so in ways that depart from secular assumptions and embrace religion's distinctiveness to greater and lesser degrees.

2. John J. DiIulio (University of Pennsylvania),  More Religion, Less Crime? Science, Felonies, and the Three Faith Factors, 5 Annual Review of Law and Social Science 115 (2009).  The abstract states:

In recent decades, as politicians and journalists have paid greater attention to religion, social scientists have too. Much attention has focused on religion in relation to various indices of social and civic well-being. There are now four different schools of thought, two academic and two popular, regarding the relationship between religion and crime. While much worthwhile scientific research has been done, religion remains a neglected variable in criminology and in criminal justice studies. The popular view that religion reduces crime is neither without empirical foundation nor without need for far more refined and intensive testing. This article offers a simple algorithm for future social science research on crime and religion in relation to three different faith factors, three different species of religious nonprofit organizations, three different categories of crime, and three different types of empirical research.

3. Salman Ahmed Shaikh (University of East, Pakistan), Proposal for a New Economic Framework Based on Islamic Principles . The abstract states:

This book provides a holistic socio-economic framework working in conformity with the Islamic principles. Chapter 2 builds the ground for the proposed framework by discussing the foundations of the ethical precepts of Islam. It discusses the thesis of religion, answers some of the questions in the comparative study of religion and tries to resolve few of the misconceptions about the faith of Islam.

Chapter 3 outlines the economic teachings of Islam with regard to earning and spending. It discusses at length the ideals Islam set before its adherents in the ethical sphere of life. The ethical principles are discussed based on the study of relevant Quranic text and the narrations of Prophet Muhammad (PBUH).

Chapter 4 studies the comparative economic systems. It analyzes Capitalism, Socialism, Mixed Economy and Islamic economic system. Chapter 5 introduces the salient features of the proposed economic framework with special focus on fiscal reforms. It discusses the potential of the institution of Zakat to meet fiscal needs of the government and to assist it in doing away with deficit financing, fiscal bleeding, crowding out private sector and reducing deadweight loss by parting the way with private sector so as to ensure market economy operating on its own as far as possible and playing an active regulatory role.

Chapter 6 introduces the monetary reforms. It discusses how savings would feature despite discontinuation of interest, how inflation will be checked with central banks not having at their disposal conventional OMO, how liquidity will be managed in banking sector when a central bank wants to inject liquidity or mop up funds. How and to what extent the institution of Zakat would enable the government to meet its fiscal targets and does not crowd out private sector with public borrowing. How balance of payments and exchange rate stability can be managed in an interest free economy. If in the short term, the government or central bank needs alternative source of revenue other than Zakat, they can issue GDP linked bonds. This could replace T-bill and provide a base instrument for OMO and liquidity management in the banking and financial sector.

Chapter 7 introduces the currently practiced Islamic Banking and Finance. Since Islamic economic principles have more prominently been used in banking and finance, much of the discussion centers on Islamic banking and finance in lieu of analyzing the existing practices and then in the next chapter, preferable alternatives in areas where shortcoming is observed and need for improvement is felt are suggested.

Chapter 8 discusses the financial system in the proposed framework with the role of institutions and the discussion on comprehensive need fulfillment mechanisms to serve every major need of a sophisticated contemporary financial system.

Some important novel changes are recommended, such as introduction of options in mortgage financing, which will allow the bank to separate the tenancy and sale contract in a distinctive way. This will still ensure that it locks the sale with the borrower or with the third party without making both contracts dependent on each other. It will benefit the bank as well as the borrower, who will have an option but not an obligation to buy the asset at maturity.

The modified role of bank entering in a Mudarabah contract as a “Rabb-ul-maal” (investor) will ensure that the bank takes on operational risk. It will enable the resources to go into productive avenues rather than in financial instruments. This modification will generate employment and productive activities in the economy in a more direct manner.

The division of Mudarabah corporate and Mudarabah consumer will target two very distinct markets and will result in channeling of funds from saving surplus units to saving-deficient units. Reforms in equity markets and alternatives for insurance are also suggested.

Chapter 9 introduces feasibility and structure of Micro credit as an alternative for interest based micro finance. It discusses how the potential obstacles in the form of lack of trust, funding commitment, lack of collateral arrangement, lack of documentation etc would be handled.

4. Jenny Elayne Ronis, The Minaret as Political Missile: Infringement of Minority Religious Rights after the Swiss Prohibition of Minarets on Mosques. The abstract states:

On November 29, 2009, the people of Switzerland voted to ban construction of new minarets on Islamic mosques. As Muslim communities face pressure to assimilate or risk alienation from European communities, the vote represents the greater clash between European and Swiss claims of prioritizing nationalism over religious identity, and the protection of minority rights to religious practice and symbolism. The legal arguments buttressing each side of this argument, and which rights prevail - those of the sovereign nation or those of the minority religious group - may very well determine the success of Muslim integration into Western populations, as well as the degree of acceptance and protection that minority populations can expect to receive in the future.

5. Adam S. Hofri-Winogradow  (Hebrew University of Jerusalem, Faculty of Law), A Plurality of Discontent: Legal Pluralism, Religious Adjudication and the State , 26 J.L. & Relig.101 (2010). The abstract states:

Can a modern state provide its citizens with a just and stable legal order while adopting religious normativities as part of its law? While dispute resolution according to some type of religious law is available in nearly every jurisdiction, it is Muslim-majority jurisdictions, as well as the only Jewish-majority jurisdiction, Israel, that explicitly adopt religious normativities as parts of their positive law. After discussing the different ways in which state legal systems may be made to apply religious normativities, the article concludes that such an integrationist approach leads not only to injustice, but also to continuous instability. To illustrate this conclusion by way of example, I describe the recent expansion of non-state religious adjudication in Israel. While Israel has long based much of its family law on several religious legal traditions, giving traditional religious courts jurisdiction over the subject, Israeli religious conservatives are now rapidly establishing non-state courts which apply Jewish religious law to subject areas other than family law, intending to draw litigants away from the state civil court system. Other, Muslim-majority jurisdictions attempting to integrate religious adjudication into their state legal systems are also prone to continuous instability. Much of the injustice stems from the common choice of family law as the subject to which the state applies religious normativities; the religious law of the family infringes core human rights standards far more than many other parts of religious law. Since religious conservatives ascribe a special importance to religious family law and are unlikely to be satisfied with the choice of another subject as the point where state law is to be impacted by religious law, Muslim-majority jurisdictions' and Israel's struggle with conservatives' demands that religious normativities be applied as state law, and with the injustice and instability consequent on granting those demands, is likely to continue.

6. Antonio Pele (Universidad Carlos III de Madrid), Understanding Human Dignity. The abstract states:

Human dignity represents one of the main conquest of western humanism, recognizing an absolute and intrinsic value in each individual. It is also considered as he grounding of human rights (e.g. article 1 of The Universal Declaration of Human Rights) and the rule of law. Moreover, several contemporary issues, such as cloning, gender equality, euthanasia, torture, the free disposal of the body, are related to this value. Nonetheless, the importance of human dignity contrasts with the fact that very few studies try to analyze this notion correctly. Indeed, a vast majority of academic works consist in criticizing this idea because of its ambiguities, vagueness and ethnocentrism. Also, many writings are just interested in understanding this value from theological and religious perspectives. Those approaches are relevant but can not be exclusive. Indeed, they do not take into account other parameters that might help to understand human dignity, such as philosophy, anthropology and history. Thus, this brief paper considers that human dignity should be understood through the historical process of Modernity and the particular notion of individualism. Human dignity represents the base and the horizon of the political and legal orders of the modern western societies. This reality comes from a general rupture due to Modernity: it consists in the fact that ontology is now preceded by axiology.

7. J.P. Nichols, The Hidden Dichotomy in the Law of Morality, 31 Campbell L.Rev. 591 (2009).  The abstract states:

A careful reading of American jurisprudence reveals that hidden within the states’ so-called interest in protecting morality, there is a dichotomy between the unconstitutional imposition of religious morality and the proper and necessary protection of the civil morality. Rather than annihilating the states’ right to enforce laws on the basis of any form of morality, Justice Kennedy’s opinion in Lawrence v. Texas carefully excised and prohibited statutes based merely on religious morality, while leaving the states’ ability to enforce laws based on civil morality untouched.

This Comment begins by exploring the dichotomy itself, and then carefully distinguishing civil and religious morality. The analysis then examines Lawrence v. Texas and clarifies how the opinion affected the dichotomy. Next, this Comment applies the post-Lawrence understanding of the rational basis test to several issues of concern raised by opponents of the decision. Finally, this Comment speculates as to the possible implications of Lawrence for moral issues lying
on the horizon.

8. Ran Abramitzky and Liran Einav  (Stanford University, Economics and Stanford University - Department of Economics),  Is Hanukkah Responsive to Christmas?, published in The Economic Journal, Vol. 120, Issue 545, pp. 612-630, June 2010. The abstract states:

We use individual-level survey and county-level expenditure data to examine the extent to which Hanukkah celebrations among US Jews are driven by the presence of Christmas. We document that Jews with young children are more likely to celebrate Hanukkah, that this effect is greater for reform Jews and for strongly-identified Jews, and that Jewish-related expenditure on Hanukkah is higher in counties with lower shares of Jews. All these findings are consistent with the hypothesis that celebration of religious holidays is designed not only for worship and enjoyment but also to provide a counterbalance for children against competing cultural influences.

9. Latika Chaudhary and Jared Rubin  (California State University, Fullerton), Reading, Writing, and Religion: Institutions and Human Capital Formation, forthcoming in Journal of Comparative Economics. The abstract states:

In this paper, we empirically test the role that religious and political institutions play in the accumulation of human capital. Using a new data set on literacy in colonial India, we find that Muslim literacy is negatively correlated with the proportion of Muslims in the district, although we find no similar result for Hindu literacy. We employ a theoretical model which suggests that districts which experienced a more recent collapse of Muslim political authority had more powerful and better funded religious authorities, who established religious schools which were less effective at promoting literacy on the margin than state schools. We test this hypothesis econometrically, finding that the period of Muslim political collapse has a statistically significant effect on Muslim literacy while controlling for it eliminates the significance of the proportion of Muslims on Muslim literacy. This suggests that the “long hand of history” has played some role in subsequent differences in human capital formation through the persistence of institutions discouraging literacy.

10 Gary LaFree and Gary Ackerman (University of Maryland, College Park), The Empirical Study of Terrorism: Social and Legal Research, 5 Annual Review of Law and Social Science 347 (2009). The abstract states:

Social science research on terrorism has grown rapidly in recent years, aided by social and legal studies. In this review, we examine research on the causes of terrorism and the effectiveness of strategies for countering it. We define terrorism as the threatened or actual use of illegal force directed against civilian targets by nonstate actors in order to attain a political goal through fear, coercion, or intimidation. Our review of causes is divided by level of analysis into sections on individual-, group-, and macro-level explanations. Our evaluation of counterterrorism strategies includes reviews of legal, criminal justice, military, and legitimacy campaigns. Psychopathological approaches have been largely discredited; however, evidence suggests that certain experiences, attitudes, and behaviors are overrepresented among terrorists. The potential impact of ideology, leadership, popular support, Diasporic communities, and socialization on group dynamics all provide fertile areas for additional research. Terrorism feeds on the ability of groups to portray governments and their agents as illegitimate. There is also evidence for high rates of terrorism in countries that are in democratic transition or are described as failed states. Research on connections between religious motives and terrorism is mixed. Although research on the efficacy of counterterrorism methods has grown rapidly in recent years, it is still rarely evaluated with strong empirical methods. All of these conclusions are qualified by the fact that both individual- and group-level empirical data on terrorism are in short supply.

11. James M. Dubois  (Saint Louis University ),  The Ethics of Creating and Responding to Doubts About Death Criteria, 35 Journal of Medicine and Philosophy 365 (2010). The abstract states:

Expressing doubts about death criteria can serve healthy purposes, but can also cause a number of harms, including decreased organ donation rates and distress for donor families and health care staff. This paper explores the various causes of doubts about death criteria-including religious beliefs, misinformation, mistrust, and intellectual questions-and recommends responses to each of these. Some recommended responses are relatively simple and noncontroversial, such as providing accurate information. However, other responses would require significant changes to the way we currently do business. Policymakers should establish minimum national standards for determining death to foster a trustworthy system; academics and publishers have a duty to publish only materials that substantially engage and advance the debate to minimize the harm caused by divided expert opinion; and opposition to the dead donor rule should be conceptually separated from doubts about death criteria.

12 . Patrick J. Charles , The Plenary Power Doctrine and the Constitutionality of Ideological Exclusions: A Historical Perspective, 15 Tex. Rev. Law & Pol.--- (2010).  The abstract states:

For over a century it has been repeatedly but unsuccessfully argued that the First Amendment in the Constitution limits the federal government’s plenary power to exclude or expel aliens from the United States. Such arguments have persisted despite the Supreme Court having repeatedly determined that the First Amendment does not restrict such power. Instead, the Court has upheld the federal government’s plenary power to “forbid aliens or classes of aliens from coming within their borders, and expel aliens or classes of aliens from their territory” regardless of whether its justification is based upon ideological or association grounds.

Numerous commentators, scholars, and attorneys have attacked this rationale by arguing that the Bill of Rights limits the federal government’s power to exclude or expel aliens. For instance, Karen Engle criticizes ideological and association exclusion on the ground that it is impossible to separate bad aliens from good aliens on such grounds. She believes that the United States’ power to “determine immigration policy does not mean that all state actions regarding immigration [should] necessarily go unchallenged.” Berta Esperanza Hernandez-Truyol believes ideological exclusion not only violates the First Amendment, but also a “myriad [of] human rights violations…[including] racial, religious, ethnic, and national discrimination, as well as the discrimination in the applications and enjoyment of the rights to free speech and association.” Meanwhile, academics such as Steven R. Shapiro have argued that ideological and association exclusions “abridge” the “constitutional rights of American citizens[.]” He writes that “ideological exclusions cannot be justified” in the United States because the “popular will” is against such exclusions.

Commentators, such as these, often place the blame of ideological and association exclusions on the Supreme Court’s dicta in the Chinese Exclusion Case. It is frequently argued that the Court “formulated the plenary power doctrine” out of thin air without any supporting constitutional authority. Academic scholar Peter J. Spiro describes the plenary power doctrine as “a rights-subverting constitutional anomaly” which has “long been relegated to a sort of constitutional hall of shame.” Meanwhile, Stephen Legomsky argues that the courts have based too much reliance upon early case precedent such as the Chinese Exclusion Case and its nineteenth century predecessors. Legomsky asserts that the holdings and rationales for these cases provide no support for the plenary power doctrine.

What these commentators fail to address, however, is the legal and historical precedent supporting the Plenary Power Doctrine. Not one of these commentators attempts to delve into the Anglo-American tradition or the early treatises on international law by which the Plenary Power Doctrine was derived. Instead, they attack the Plenary Power Doctrine by asserting that the First Amendment prevents the federal government from conditioning entry or settlement on ideological grounds – all the while without having a firm historical or contextual grasp on the subject. Granted, one may argue that ideological exclusions are morally repugnant to the people that view this nation as being founded on liberty for all. However, the Plenary Power Doctrine is firmly rooted in the Anglo-American legal tradition. It should be stressed that the determination to expel or exclude foreigners is a political question. The argument of moral repugnancy does not make exclusions based on association or ideological grounds unconstitutional. It is an issue that can only be placed into this nation’s political discourse where it has always and rightfully been.

Similar to other constitutional political questions, one must separate their personal political beliefs from the law and history. Just as it may be argued that it is unconstitutional to exclude based upon ideological association, the same argument can be made for aliens do not have sufficient property, are not properly educated, or have dangerous communicable diseases. Nevertheless, we exclude individuals based upon all these factors. Furthermore it may be argued that excluding those convicted of crimes should not be excluded, for it violates their right to due process. This begets the question, “Which factors are excludable and who is to determine them?” The answer is simple; the factors are to be determined by this nation’s elected federal representatives, including the President.

The purpose of this article is to correct the century-old assertion that the plenary power to expel or exclude aliens is subject to any limitations, except the powers delegated between the legislative and executive branches by the Constitution. In particular this article sets forth the well-established, and often forgotten, doctrine of allegiance, the Anglo-American legal precedent for ideological exclusion and expulsion, the inherent authority of nations as understood by early international law commentators, how the Founding Fathers understood these doctrines, and the reasons this power resides with the federal government. The evidence demonstrates that ideological exclusion and expulsion are constitutionally permissible and are political questions to be determined by the people through their federal representatives.

13. Timothy Zick  (William & Mary Law School), Territoriality and the First Amendment: Free Speech At - And Beyond - Our Borders, 85 Notre Dame L. Rev.101 (2010).The abstract states:

This Article examines the relationship between territorial borders and First Amendment speech, press, and associational liberties. It posits that we have not one but three First Amendments - the intraterritorial, which protects expressive liberties within the U.S. and its territories; the territorial, which governs the cross-border exercise of these liberties; and the extraterritorial, which concerns both efforts to export First Amendment norms abroad and the application of First Amendment limitations outside U.S. borders. The Article focuses on the First Amendment’s territorial and extraterritorial dimensions. The path of the territorial First Amendment has been one of steady liberalization, mostly owing to legislative and executive policymaking but with some assistance from courts. During the past several decades, many immigration, travel, and trade laws and regulations have been substantially amended or repealed. As a result, cross-border information flow is less affected by explicit ideological concerns and borders are much softer in terms of the materials allowed to enter or exit the U.S. than during past eras. Social and political forces such as globalization, internationalism, and digitization have also contributed substantially to the ability of speech and associations to transcend territorial borders. Although this de-territorialization poses challenges to U.S. security and sovereignty, on balance it ought to be embraced owing to the expressive, political, and economic benefits it produces. With regard to the First Amendment’s extraterritorial dimension, legal, social, and political forces will increasingly place the First Amendment in direct contact and conflict with foreign speech regimes. Like other countries, the U.S. will have to navigate the tension between protecting its citizens’ interests in a globalized world and displacing foreign speech regimes through rights imperialism. The best opportunities for expanding the First Amendment’s domain of influence are likely to arise from diplomatic, funding, and technological policymaking. As it seeks to expand the influence of First Amendment principles abroad, the U.S. will also have to defend First Amendment exceptionalism at home from transnational and international influences. Finally, whether and if so to what extent the First Amendment follows the flag beyond U.S. borders remains an open question. Although support for expanding the Constitution’s territorial domain exists, there are substantial jurisprudential and theoretical obstacles to expansion of the First Amendment’s regulatory domain. Among other things, we lack a convincing justification for extending First Amendment concerns across and even beyond our borders.

14. Ian S. Speir (Georgetown University Law Center), In Search of an Originalist View of the Corporation, The abstract states:

In separate opinions in Citizens United v. Federal Election Commission, Justices Stevens and Scalia spar over “original understandings” of the First Amendment and whether a corporation would have been viewed by the founding generation as within the Amendment's protections. This paper picks up where the Justices leave off, seeking answers to the questions they raise: How did America’s founding generation view the corporation? Did the founders see it as a “private” or a “public” entity? Was it considered the private property of its owners or did it exist to serve a public function? In a similar vein, what was the extent of legislative power over corporations?

The conclusion ultimately drawn is that the search for the founders’ views on the corporate entity is something of a snark hunt. That is, how the corporation was conceived, socially and legally, in the dawn of America is elusive and indeterminate. This is so for two reasons.

First, the early American corporation is a moving target. Even in its earliest incarnations, it was an entity in which public purpose and private interest coexisted. In the late eighteenth century and prior, the public purpose dominated. But as the nineteenth century dawned, the corporation was poised for rapid change, and by 1830, its status as a general-purpose vehicle for conducting private business (such as manufacturing) was unquestioned. The phase shift the corporation underwent over this period suggests that the founding generation (which, after all, did not die out in 1800) was innovating.

In parallel to this historical development, there was tension in the views held by late eighteenth and early nineteenth century American jurists. At that time, the debate over corporations centered on the power retained by state legislatures over their charters. Was a corporate charter – a document specially granted by a legislature to legally constitute a corporation – a general act of legislation, revocable and amendable at the legislature’s will? Or was it a private contract between the state and the corporation’s owners? This early debate would be resolved by the Supreme Court in 1819 in Trustees of Dartmouth College v. Woodward, where the “private contract” argument won the day, buttressed by the Court’s distinction between “public” and “private” corporations. But prior to that, these topics were subjects of some discussion and disagreement among American lawyers.

My modest goal in all of this is to articulate the considerable state of flux in which the corporation found itself in early American history. The founding generation held divergent views of the corporate entity. They were, it appears, as “schizophrenic” as we are today about the corporation. The moral of the story is that engaging in an originalist analysis for answers to the questions that vex us is simply unavailing. In this area, originalism is likely to produce indeterminate judicial and policy outcomes because the founding history and the views held by that generation are in obvious tension.

15.  Jonathan A. Marcantel , (Lincoln Memorial University School of Law), Originalism and the Myth of the Corporate Constitutional Person. The abstract states:

For two centuries now, jurists and corporate scholars have struggled with creating a singular, global definition explaining the essence of corporate existence and its relationship to the law. This challenge has been particularly difficult within the constitutional realm, where small movements in the analysis have the potential for wide impact and have ignited now perennial discussions of controversial issues such as campaign finance reform, congressional power, and the constitutional limitations on the judicial branch. Earlier this year, the United States Supreme Court delivered the opinion in Citizens’ United. Although the opinion facially decided the constitutionality of a nuanced provision of campaign finance reform, the Court, to reach its holding, extended First Amendment protection to corporations.

While this decision has received extensive press attention, academic discussion, and even commentary during the presidential address, the decision, in the constitutional regard, was not novel. Rather, the Court’s decision was premised upon decisions that dated back to the nineteeth century, wherein the Court began providing constitutional protection to corporate entities. What is conspicuously absent from these discussions at both the judicial and academic levels, however, is any comprehensive attempt to analyze the question from an originalist perspective. Rather, the few attempts at analyzing the issue from an originalist perspective have been premised largely on intuitive arguments. Furthermore, none of those attempts have mined any extensive primary documents to support their analytical positions.

This Article fills that gap by providing an extensive and comprehensive review of primary documents relevant to the nation’s founding, including notes, papers, and speeches of the signatories to the United States Constitution; the notes, papers, and speeches of the signatories to the Declaration of Independence; philosophic literature influential to the creation of the organic federal documents; the debates in Congress surrounding the purpose and intent of the Bill of Rights; and each of the early state constitutions. Using those documents as the foundation for the analysis, this Article then argues that the corporate constitutional person is a myth created and promulgated by the United States Supreme Court over the past two centuries.

Part II of this Article discusses the history of corporations in the United States with particular emphasis on primary documents supporting the doctrinal view of corporations prior to 1790. This part additionally provides a history of the Court’s extensions of constitutional rights to corporations beginning in the early nineteenth century and culminating with the Court’s decision in Citizens United. Part III of this Article then provides a brief discussion of originalist thought, outlining the three major branches of originalist thought and providing a framework to analyze the doctrinal view of corporations during the late eighteenth century. Part IV argues the corporate constitutional person is a myth from the originalist perspective. First, Part IV discusses the plain language contained with the Constitution and the Bill of Rights, focusing on the specific entities that are explicitly entitled to constitutional protection in those documents. This section further supports definitions for words contained within those documents using dictionaries from the late eighteenth century; notes, papers, and other documents written by the drafters and ratifiers of the Constitution; debates in Congress over the Bill of Rights; and political literature explicitly adopted by the drafters and ratifiers of the Constitution, among other primary documents. Second, Part IV analyzes early state constitutions and their descriptions and discussions of, and more importantly the distinctions between, those who have constitutional rights pursuant to the state constitution and corporations. This Part ultimately argues that corporations were neither protected by the plain language of the Constitution nor intended to be protected by the language of the Constitution.

16. Laura A. Heymann (William & Mary Law School),  Reading the Product: Warnings, Disclaimers, and Literary Theory, 22 Yale J.L.& Human. 393 (2010). The abstract states:

The conventional wisdom among some scholars and courts seems to be that product warnings and disclaimers are ineffective – that even if problems with font, location, and other visual elements are resolved, consumers are unable to process these messages. Behavioral economists explain this difficulty by cataloging the various ways in which consumers fail to appreciate risk: cognitive biases, willful ignorance, or the overwhelming appeal of advertising. And yet, the law hasn't abandoned reliance on warnings or disclaimers. Product liability law not only encourages their presence but (in a failure-to-warn case) expects consumers to read and understand them. Courts in trademark infringement cases will, on occasion, order a disclaimer when they feel that important speech-related interests are at stake. And the Supreme Court has suggested the use of disclaimers in several First Amendment-related (albeit not product-related) cases. This conflicted approach is a bit puzzling: If these messages are truly useless, then we might expect courts to abandon reliance on them as any sort of an effective remedy or as considerations in whether the defendant has acted reasonably. The fact that courts haven't done so suggests that courts do not believe that such messages are useless. If that is the case, perhaps we should find ways to increase the chances that such messages are presented effectively, rather than having our initial response be one of skepticism and doubt.

While behavioral economics has contributed many important insights in this regard, literary theory provides an additional consideration. This piece, written for a symposium titled “Reasoning from Literature,” suggests that by recognizing that warnings and disclaimers are “texts” (in the literary theory sense) – and by taking advantage of recent marketing literature on “reading” advertisements – we might well discover that drafting the warning or disclaimer in a particular way may solve some of consumers’ interpretive problems. In other words, to the extent that the conventional wisdom is predicated on a belief that consumers don't have the ability to process these types of contradictory messages, literary theory counters this belief by explaining how readers interpret parody and other similar texts. It also tells us that the most effective way to yield a preferred meaning among readers, given that each reader will bring her own meaning to the table, is to appeal to context and interpretive communities to encourage similar patterns of reading such texts.

17. Richard L. Hasen (Loyola Law School Los Angeles), Citizens United and the Illusion of Coherence. The abstract states:

The self-congratulatory tone of the majority and concurring opinions in last term’s controversial Supreme Court blockbuster, Citizens United v. Federal Election Commission, extended beyond the trumpeting of an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to support or oppose candidates for office. The triumphalism extended to the majority’s view that it had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an “outlier” 1990 opinion, Austin v. Michigan Chamber of Commerce, which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, extending Austin to unions and to a broader set of election-related television and radio broadcasts. The majority saw itself as returning the Court to the fountainhead of this jurisprudence, the Court’s 1976 opinion in Buckley v. Valeo.

Citizens United indisputably harmonized campaign finance law on the question of the constitutionality of spending limits on corporations, even if its view of Austin as an “outlier” remains contested. But the Court in doing so amplified and solidified other significant, incoherent aspects of the Court’s campaign finance jurisprudence. In this regard, consider the Court’s declaration as an empirical matter – apparently for all types of elections and all types of spenders – that “independent expenditures . . . do not give rise to corruption or the appearance of corruption.” Partly to justify this unsupported empirical claim, the Court embraced a narrow, “crabbed” view of corruption, contrary to other precedent including Buckley, that seemed to include little more than quid pro quo already illegal under federal bribery law, and that excluded “ingratiation and access” as forms of corruption. Consider also the Court’s declaration that in the campaign finance context neither the identity of the speaker nor any distortion of the political process caused by disproportionate spending can ever be the basis to limit someone’s right to spend in elections.

Soon enough, this language will force the Court into a corner, where it will either have to adopt a view that no limits on money in politics are ever constitutional or, more likely, vote to sustain some limits on money in politics through doctrinal incoherence. For example, it is unclear how the Court applying the broad pronouncements of Citizens United could possibly sustain spending limits against foreign nationals, who might like to flood U.S. election campaigns with money to influence electoral or legislative outcomes. Indeed, if the Court took its own language seriously about the meaning of corruption in a future case, even normal limits on contributions to candidates would be in serious danger of being struck down as violating the First Amendment.

We need not wait for future cases to see this incoherence, because the Court’s new doctrine is already incoherent. The Citizens United majority could not satisfactorily explain how independent expenditures, which apparently cannot corrupt, were so corruptive, apparently corruptive, or distorting of a judicial election in the 2009 case Caperton v. Massey that the Court mandated the recusal of a state supreme court chief justice hearing a case involving a corporate executive who had made large independent expenditures supporting the chief justice’s election. The Citizen United majority is not in deed treating all elections and speakers equally, even if it is in word.

The Court’s present and future incoherence in its campaign finance jurisprudence reveals a broader point: the Court’s approach to jurisprudential questions may be tempered by a political sensibility. Just as the Court before Citizens United treated corporations and labor unions as subject to identical campaign finance regulation despite the clear inapplicability of the Austin rationale to labor unions, it is likely to treat foreigners and American citizens wishing to make campaign expenditures differently despite the uniformity of the rhetoric of free speech rights in Citizens United. This analysis suggests that the Court’s jurisprudence, while certainly shifting in a deregulatory direction, may not move to a position of complete deregulation unless the Court is willing to endure continued public backlash. At least in the campaign finance context, it may be that Court doctrine moves within a range, bounded at its extremes by public opinion.

Part I of this Article situates Citizens United in the campaign finance jurisprudence that preceded it and describes in detail the key opinions in the case. Part II explains how the Court’s analysis in Citizens United is likely to lead to new incoherence in the Court’s campaign finance jurisprudence, because it is unlikely that the Court will follow the new case to its extreme, for example to allow spending by foreign nationals to influence candidate elections, to treat spending in judicial elections the same way as spending for other races, or to strike down reasonable limits on campaign contributions made directly to candidates. Part III suggests that incoherence is likely to be an enduring feature of the Court’s campaign finance jurisprudence, because consistent application of a coherent approach could well be politically unpalatable for majority of the Justices on the Court. It also considers the challenge such incoherence poses for lawyers arguing campaign finance cases in the Supreme Court and lower courts.

18. Barbara S. Esbin (The Progress & Freedom Foundation), Net Neutrality: A Further Take on the Debate , Published in Progress & Freedom Foundation: Progress on Point, Vol. 16, No. 26, December 2009. The abstract states:

The case for regulating the Internet has not been made. Proposed rules mandating network neutrality are not in response to evidence of market failure or widespread consumer harm, could deter investment in broadband deployment, and raise First Amendment concerns.

Regulatory advocates' assertions that the Internet has always been a “neutral” network and “we now suddenly cannot trust broadband network operators to discriminate in the handling of Internet traffic in socially beneficial ways, so we must outlaw their ability to do so at all” is flawed and there has always been prioritization of traffic. By requiring operators to request permission before changing the way they managed network traffic, such rules would freeze in place today's Internet operations and business models, and interfere with the organic change that has characterized the Internet ecosystem.

A 2007 Federal Trade Commission report found no evidence of failure in the broadband market and neither the FCC nor proponents of network neutrality regulation point to any significant changes in either market structure or provider behavior in the interim to support the conclusion that we are now at risk of the loss of Internet freedoms enjoyed by users. Moreover, if broadband markets are not sufficiently competitive to adequately protect consumers, steps should be taken to improve competitiveness as opposed to regulating network management practices. Additionally, financial analysts have warned that imposing regulatory constraints on ISPs would inhibit broadband investment.

Regarding “free speech” concerns, it highly unlikely that companies would monitor and censor individual communications on a widespread basis given the sheer volume of traffic on these networks and scant documented cases. Furthermore, protection against censorship by a private entity is does not fall under First Amendment protection. In fact, network neutrality rules will constitute unacceptable interference with the protected speech and press rights of broadband ISPs.

19. Adam D. Thierer and Berin Michael Szoka (The Progress & Freedom), The Wrong Way to Reinvent Media, Part 1: Taxes on Consumer Electronics, Mobile Phones & Broadband, published in The Progress & Freedom Foundation Progress on Point, Vol. 17, No. 1, 2010. The abstract states:

In this essay, we discuss an old idea that‘s gained new currency: taxing media devices or distribution systems to fund media content. We argue that such media income redistribution is fundamentally inconsistent with American press traditions, highly problematic under the First Amendment, difficult to implement in a world of media abundance and platform convergence, and likely to cause serious negative side effects.

20. Jeannine Bell (Indiana University-Bloomington, Maurer School of Law),  Restraining the Heartless: Racist Speech and Minority Rights, 84  Ind. L. J.--- (2009).The abstract states:

This article examines the circumstances of contemporary racist expression in the United States. It discusses various locales for racist speech and the impact of such speech on individuals. In the second section, the article addresses American jurisprudence on hate speech, in particular, the limits on regulation posed by marchers, by hate speech codes and by cross burning. The final section of the article addresses comparative approaches to dealing with racist speech and compares the US approach with that taken by several European countries.

21. Jeannine Bell (Indiana University-Bloomington, Maurer School of Law), The Hangman's Noose and the Lynch Mob: Hate Speech and the Jena Six, 44 Harv. C.R.-C.L. L. Rev. 329 (2009). The abstract states:

Taking the hangman's noose hanging in Jena, Louisiana in 2006 as a starting point, this Article begins by placing the hanging of a noose in historical context. The Article then proceeds to explore contemporary manifestations of noose hanging in the workplace, in schools and other settings. The Article examines noose hangings that occurred around the country since the display in Jena to explore the social meaning of a noose. Also examined are media constructions of noose hanging and the perception that some Blacks targeted by noose hanging have had of these incidents. The article concludes with a victim based reasonable persons approach to regulating extremist symbols of hate speech like the noose.

22. William J. Magnuson, The Responsibility to Protect and the Decline of Sovereignty: Free Speech Protection Under International Law , 43 Vand. J.Transn'l L. --- (2010). The abstract states:

State sovereignty has long held a revered post in international law, but it received a blow in the aftermath of World War II, when the world realized the full extent of atrocities perpetrated by the Nazis on their own citizens. In the postwar period, the idea that individuals possessed rights independent of their own states gained a foothold in world discussions, and a proliferation of human rights treaties guaranteeing fundamental rights followed. These rights were, for the most part, unenforceable, though, and in the 1990s, a number of humanitarian catastrophes (in Kosovo, Rwanda, and Somalia) galvanized the international community to develop a doctrine to protect the fundamental rights of all individuals. The resulting “responsibility to protect” individuals from genocide, ethnic cleansing, and crimes against humanity stood as a radical rejection of the prewar concept of state sovereignty and assured that states could no longer hide behind the shield of territorial integrity. But the doctrine created another disconnect in international law: it picked out only a few fundamental rights for protection, leaving citizens to rely on the whim of their states to protect their other rights. This Article argues that this state of the law is no longer sustainable, as it is still beholden in important ways to the now-eroded concept of state sovereignty. The responsibility to protect should be expanded to include protection of fundamental rights in general and the freedom of speech in particular. The inclusion of the freedom of expression in the pantheon of protected rights is broadly consistent with the moral, legal, and consequentialist arguments in favor of the international norm of responsibility to protect. Moreover, an expansive reading of the obligation to intervene, particularly in nontraditional ways, will increase the legitimacy of the international system.

23. Joseph E. David (University of Oxford, Faculty of Oriental Studies), Legal Comparability and Cultural Identity: The Case of Legal Reasoning in Jewish and Islamic Traditions. The abstract states:

Comparativism is not only a means for political change, but also a heuristic tool for the legal historian within explanatory contexts. The comparability of the Islamic and Jewish legal systems in the medieval period is a typical case for comparative legal history repeatedly mentioned both by legal historiographers and by scholars of religious studies. Our aim is to examine the comparability of these legal systems in the light of modern comparative theories and methodologies: What makes these legal traditions comparable? Is it the theological proximity, the factual transplantations or perhaps the jurists' jurisprudential self-understandings? Our test case will be one of the debated topics in legal philosophy at that time – the legitimacy of legal reasoning in interpreting legal sources and analogizing novel cases to known rulings. Our analysis of the attitudes towards this problem and in relation to theological principles and legal theories in the Islamic and Jewish legal context will revalue the applicability of current comparative theories in a pre-modern and non-western scene.

24. Richard M. Esenberg (Marquette University - Law School),  The Lonely Death of Public Campaign Financing, 33 Harv. J.L. & Pub. Pol'y 283 (2010). The abstract states:

This paper argues that the recent decision of the United States Supreme Court in FEC v. Davis renders the idea of public financing of elections largely irrelevant. In Davis, a majority of the Court saw the provision of a "compensatory" benefit to the opponent of a candidate who spends more than a designated amount as a burden on speech. That burden, moreover, cannot be justified by an interest in "leveling the playing field." The paper argues that Davis’ rationale is equally applicable to candidates facing independent expenditures. It suggests that a public financing system cannot be designed in a way that provides asymmetrical funding (often called "rescue" or "fair fight" funds) to those whose candidacies are criticized by such expenditures.

If these efforts to level the playing field are not permitted, public financing of campaigns is likely to be either undesirable (because it will drive money to independent expenditures) or irrelevant (because such independent expenditures will swamp any conceivable amount of public funding). I argue that this is not an undesirable development, suggesting that we move from a model of control to competition with respect to the funding of political campaigns.

JFB

Global Free Speech Update

China:  nothing new to report on this, the 21st anniversary of the Tiananmen Square massacre.  All weekend protesters have been arrested, organizers harassed, and students barred from displaying symbols of democracy and freedom.  In one case the Chinese University Authority apparently took down a statue representing the "goddess of democracy" from the university campus under the requirement of "political neutrality."  Here’s the public outrage. Here’s HK’s official response.

Thailand: three weeks after the military assault on "Red Shirt" protesters, and two months after a state of emergency was declared in Bangkok, the government continues to clamp down on political protest and dissent. Under the emergency decree, public gatherings of 5 or more people are prohibited. More than 1000 websites have been shut down, and protesters are subject to arrest and detention for 30 days without being charged.

US:  the third circuit head oral arguments en banc this past week to determine how much protection the First Amendment provides to students who slam their principles on-line. The two cases being reviewed, Layshock v. Hermitage School District and J.S. v. Blue Mountain, muddied the waters when the trial courts and separate appellate panels reached different conclusions on remarkably similar facts.

Angola: freedom of the press takes a nose-dive when three independent dailies are bought up by a private company whose owners are unknown, leading to suspicion about the government’s influence in facilitating the sale. Says the Open Society Institute: "the biggest blow to democracy and freedom of expression in the country," and an "institutional coup of the ruling oligarchy to silence all dissenting voices and to have everyone under their control."

-Kathleen Bergin

Compulsory Voting as Compelled Political Speech?

In a new policy brief William A. Galston, Senior Fellow at the Brookings Institution, argues that the US should experiment with compulsory voting.  In an interview on NPR, Galston explains what governance benefits he foresees arising out of such a regime.  Would the First Amendment permit such a mandate?   

JFB

Call for Papers: Bits Without Borders: Law, Communications & Transnational Culture Flow In A Digital Age

BITS WITHOUT BORDERS:

LAW, COMMUNICATIONS & TRANSNATIONAL CULTURE FLOW
IN A DIGITAL AGE

   September 24-25, 2010

Intellectual Property & Communications Law Program
Michigan State University College of Law
East Lansing, Michigan


Whether termed a "Flat Earth" or "Global Village," the
planet's shrinking and linking is widely accepted as a fait
accompli. While cybertopians may celebrate the emergence of
globally networked communities, others fear the "coca-
colonization" of culture will impoverish diversity of
expression. Digital communications not only accelerate
cultural convergence, but also disrupt existing policies
that preserve and nourish local cultures and identities. 
Some see the technologies that facilitate such
transnational exchanges as undermining the authority of the
nation state itself.

Look closely, however, and peaks and valleys emerge in the
so-called "Flat Earth," and the "Global Village" turns out
to be far from global. Rather than passively watch their
borders become obsolete, governments at every level subject
digital communications to state control - from the explicit
censorship of "content" (e.g. internet filtering) to
regulation of the "pipes" (e.g. communications protocols)
to restrictions on "speakers" (e.g. media ownership laws). 

This conference examines the broad cross section of
regulatory policies that affect transnational culture
flows. From internet governance to intellectual property
rights to cultural protectionism, we have inherited a
patchwork of piecemeal, often contradictory policies, some
squarely aimed at cross-border exchange, others with purely
domestic motivations. By examining the choices that
governments make to facilitate or thwart transnational
flows of cultural expression across these legal domains, we
hope to provoke insights that transcend these specific
areas and to develop a common language by which scholars
can identify core values, characterize recurring problems,
evaluate systemic tradeoffs, and contribute to more
informed legal decisions.


TOPICS:

We invite contributions from scholars working in both legal
and non-legal disciplines on topics related to the conference
themes. Possible subject-areas include:

Digital Communications
Internet governance
Internet filtering
Search Engine Regulation
International Trade
E-Commerce Regulation
Cultural Economics
Cultural Geography
Intellectual Property Rights
Traditional Knowledge/Folklore Protection
Human Rights/Constitutional Rights
Cybersecurity


PAPER SUBMISSION PROCEDURE:

We have a broad interdisciplinary and international line-up
of committed participants. However, there is still space to
accommodate a few more. Please send abstracts to the
conference organizers, Sean Pager and Adam Candeub
(Michigan State University College of Law) by June 25,
2010. Conference papers will be due in early September. 
Selected papers will also be considered for an edited
collection. Further information can be found on our
website:

    http://law.msu.edu/bits/

CONTACT:    Sean Pager
Email: spager@law.msu.edu
   and 
CONTACT:    Adam Candeub
Email: candeub@law.msu.edu


  

Pace Law Review Call For Article Proposals Relating To Social Networking And The Law

The editors of the Pace Law Review invite proposals from
scholars, researchers, practitioners, and professionals for
contributions to an issue slated for publication during the
Fall of 2010. This issue focuses on how the internet and
social-networking affects the legal landscape. We hope to
publish articles that examine the evolving relationships
between this technology and the many different areas of law
it impacts, including evidence, electronic discovery,
privacy, ethics, and tort. We believe there is room for a
lively written discussion on these subjects. As examples,
Facebook, Myspace, and Twitter are regularly the subject of
national headlines; in 2008 the Federal Rules of Evidence
were amended in an attempt to address the very substantial
issues created by e-discovery; and in the 2009-10 term, the
Supreme Court heard a case that concerned whether a
government employee has a reasonable expectation of privacy
when "sexting" on an employer-provided phone.  
 
 
PROPOSAL SUBMISSION PROCEDURE:
 
Please submit proposals of no more than 500 words by
attachment to:
 
Email: plr@law.pace.edu
by June 15, 2010.
 
We welcome proposals for articles, essays, and book
reviews. All proposals should include the author's name,
title, institutional affiliation, contact information, and
should concern issues related to the subject-matter
described above. Book review proposals should also include
(a) the title and publication date of the book proposed for
review; (b) a description of the importance of the book to
the general topic; and (c) any other information relevant
to the book or proposed review (e.g. the reviewer's
expertise or any relationship with the author). Authors are
also welcome, but not required, to submit a CV. We expect
to make publication offers by June 31, 2010. Completed
manuscripts of scholarly articles and book reviews will be
due August 31, 2010.

Call for Papers: Chapman Symposium on Citizens United

   
CITIZENS DIVIDED ON CITIZENS UNITED: 

CAMPAIGN FINANCE REFORM AND THE FIRST AMENDMENT 
  
October 22, 2010    
Chapman University School of Law: 
Nexus Journal of Law and Policy   
Orange, CA
  
  
In connection with the Supreme Court's recent holding in
Citizens United v. FEC and the upcoming November election,
Chapman University School of Law's Nexus Journal of Law and
Policy is pleased to host a legal symposium on Friday,
October 22, 2010, on the topic of Campaign Finance Reform
and the First Amendment..
 
This symposium provides a great opportunity to explore and
discuss the range of state and national issues that arise
within the area of campaign finance from both a
philosophical and pragmatic viewpoint. The deadline to file
for candidacy has passed, the primary elections will take
place in a few short months, and the highly anticipated
mid-term elections will occur on the first Tuesday of
November. All across the nation the stage has been set to
witness the effects of Citizens United in vivid, high-
definition. The symposium date of October 22, 2010 was
carefully chosen to be both timely and significant as it is
less than two weeks prior to the November 2, 2010 election.
Rarely have we had the chance to observe the practical
consequences of a Supreme Court decision with such intimacy
and immediacy.
 
Campaign finance truly affects our system of government on
its most basic levels. In 2006, candidates spent over $750
million for election to the House and $514 million for
election to the Senate. In 2008, congressional campaign
costs ran over $2 billion and the costs continue to rise.
What will we see in 2010? Citizens United marks a new
paradigm. The most recent Supreme Court ruling challenges
the way we balance the influence of money against the First
Amendment in political campaigns. It brings to the
forefront questions about the fundamental principles of
democratic representation, our conception of political
speech, and the rationalization of personifying business
organizations. This symposium offers the opportunity to
speak and publish on First Amendment jurisprudence as it
sits on the precipice of fundamental change.
 
 
TOPICS:
 
We are now accepting proposals for papers and panel
presentations on issues related to this symposium topic.
 
 
PAPER SUBMISSION PROCEDURE:
 
Interested authors and presenters should submit an abstract
of not more than 250 words to:
 
Email: nexuslawjournal@gmail.com
 
by June 15, 2010. Authors and presenters will be informed
by June 31, 2010 of the outcome of the initial review
process.
 
Final papers will be due on October 22, 2010, however, some
extensions may be granted. Accepted papers will be
published in the Chapman University School of Law, Nexus
Journal of Law and Policy in a special symposium issue, and
authors will be expected to present at the symposium.
 
The Nexus Journal expects to be able to cover the cost of
travel and accommodations to attend and present at the
symposium.
 
 
FURTHER INFORMATION:
 
Questions and requests for further information can be
directed to:
 
CONTACT:    Kyle Worrell
    Editor-in-Chief
    Nexus Journal of Law and Policy
Email: worre100@mail.chapman.edu

New Book Examines Scientists’ Views About Religion

In Sunday’s Washington Post, Josh Rosenau spotlights Rice University sociologist Elaine Howard Ecklund's new book,  Science Vs. Religion  - What Scientists Really Think . Prof. Ecklund presents the results of a detailed survey of almost 1,700 scientists working at top U.S. research universities and the contents of follow-up interviews with 275 of the survey participants. Her study reveals that few scientists actively oppose religion. In addition, among the one third of  respondents who identified as atheists, many also characterized themselves as “spiritual,” with one such respondent explaining this perspective as reflecting "wonder about the complexity and the majesty of existence."  Among the surveyed scientists who characterized themselves as religious (half of the total participants), many expressed apprehension about how their peers would regard them if they acknowledged their religious views more openly. Despite the propagation of the view that science and religion are inevitably antagonistic, Rosenau sees the Ecklund book as offering a more nuanced dimension to discussions of the interplay between scientific knowledge and  religious conviction in what have too often become polarizing debates about climate change, public school science curriculum content, and medical research. 

JFB

Conservative Christian Candidates Crusade for San Diego Superior Court Spots

As reported by the AP in Monday’s Washington Post, a group called “Better Courts Now” is mounting a campaign to gain four seats on the San Diego Superior Court.  This relatively low profile June 8 election for the spots could offer a glimpse into the future of judicial elections in the wake of Citizens United v. F.E.C. and Republican Party of Minnesota v. White.

The banner of  Better Courts Now’s website identifies the group as “unifying the moral vote,” and Craig Candelore, one of the BCN slate of judicial candidates, describes BCN’s mission as follows: "We believe our country is under assault and needs Christian values. Unfortunately, God has called upon us to do this only with the judiciary." In a recent op-ed, another BCN candidate Chris Clark, pastor of East Clairemont Southern Baptist Church,  offered this explanation of the BCN effort: [I]t’s not about four judges. It’s about the ability of an elite few to continue to control who becomes a judge. And the democratic process of voting makes it difficult for the “right” people to fill those court seats, in the mind of these few. …The real question that must be answered is this: who is it that should be selecting judges? An elite group of a few who handpick those judges? Or “We the People” via the democratic process?”

Targeting local judicial elections via a campaign aimed at Christian right voters was an idea championed by Don Hamer, a San Diego pastor who had been active in the Proposition 8 movement. Hamer, who died suddenly in March, had vetted the judicial candidates.  Putting forth a slate of socially conservative Christian judicial candidates calls to mind comparable campaigns by elected members of the Christian right to local school boards. 

Three of the four BCN candidates were rated “lacking qualifications” by the San Diego County Bar Association. As explained on the Bar Association’s website, a candidate receiving that designation has been found to “lack some or all of the qualities of professional ability, experience, competence, integrity and temperament indicative of fitness to perform the judicial function in a satisfactory mode.”  The fourth BCN candidate , Harold Coleman, was not rated due to insufficient information.

JFB
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