First Amendment Scholarship Update

Here is this week's collection of newly available articles on speech and religion topics: 

1. Samuel D. Brunson  (Loyola University Chicago School of Law), Rethinking Public Charities and Political Speech . The abstract  states:

As a precondition to maintaining its tax-exempt status, a public charity cannot campaign for or against any candidate for office. This prohibition, introduced in 1954 without fanfare, debate, or legislative history, has since created uncertainty and administrative burden for public charities, and has provoked firestorms of debate among academics, policymakers, and directors of public charities themselves. The subjects of these debates have ranged from the wisdom to the constitutionality of such a prohibition on political speech.

The debates have not, however, provided any significant certainty to public charities or to policymakers. Without legislative history or debate, public charities can only guess at the purposes underlying the prohibition. The arguments used to defend the prohibition are met by equally compelling counterarguments, while the arguments for why the prohibition should be eliminated are equally countered.

As this debate occurs, the penalty for violation of the prohibition is the loss by a public charity of its tax-exempt status. In light of the draconian nature of the penalty, the IRS underenforces the prohibition, as some public charities routinely flout the prohibition and others self-censor more than is necessary in order to stay on the right side of an uncertain line. Neither reaction leads to the efficient administration of the tax law.

The problem, this Article argues, is that all of the arguments surrounding the prohibition on public charities’ political campaigning takes place in the shadow of the current language of IRC § 501(c)(3), to which commentators and policymakers must ascribe purpose. Rather than argue the benefits and deficiencies of the current regime, the discussion of the role of public charities in political campaigns needs to start anew, without taking as a given the benefits and burdens of the current system. Whatever the result of the new discussion, however, the Article argues that is necessary to provide the IRS with the option to impose intermediate penalties on public charities that violate a prohibition on campaigning.

2. David Gan-wing Cheng,  Wisconsin v. Yoder: Respecting Children’s Rights and Why Yoder Would Soon Be Overturned. The abstract states:

 Parents want what is best for their child. The preceding statement is practically a truism, subject to rare exceptions. Parents almost always strive to act in the child’s best interest as they interpret it to be. At times society and the parents have differing interpretations as to what is in the child’s best interests. However, an absolute answer to the question what is best for the child or what is in the child’s best interests does not exist. The answer is always qualified by the baseline one uses to evaluate the question. The baseline may for example be spiritual salvation, intellectual growth, social development, fitness to compete for economic rewards in the future, or the child’s current gratification. Even after agreeing on a particular baseline, whether a particular mean is the best or even proper for attaining the desired end is debatable. However society usually defers to the judgment of parents on these matters because it is the parents’ natural duty to raise the child.

Indeed everyone generally recognizes that parents have a fundamental right to direct the upbringing of their children. Although society defers to parents on many aspects when it comes to the upbringing of their children, it will not do so if the parents’ means in achieving the ends of a particular baseline conflicts with the ends of another baseline deemed to be compelling by society. For example, if the parents’ religion requires them to mutilate the child in order for the child to achieve spiritual salvation, this would harm the child and would be seen as unacceptable by society. The parents who see spiritual salvation as being more important than worldly harm are genuinely acting in the child’s best interests as they see it. However this view is in tension with that of society which sees the child’s physical well-being as being more compelling. According to the US Supreme Court, although parents may have a fundamental right to direct the upbringing of their children and an additional Free Exercise of Religion right (hereinafter "Free Exercise right"), these rights must give way to the child’s right to be free from harm where they conflict.

In this article, I put two traditional rights: the Free Exercise right and the right to direct the upbringing of one’s child, up against a potential right which the Court has never considered: the child’s "right to an open future," first proposed by the philosopher Joel Feinberg. Generally, the child’s right to an open future is violated if the parent acts in any manner, including the exercise of their own fundamental rights, which irreversibly closes off certain key options for the child when he is an adult. This battle of rights will be discussed by examining Wisconsin v. Yoder, and the Old Order Amish whose religious tenets forbid Amish children from attending high school.

3.  Mark Jarmuth, Preface to Anatomy of Deception: How Liberals Lie About Christianity. The SSRN abstract states:

Submission is the preface to a 280 p. book debunking the anti-Christian claims of Richard Dawkins, Sam Harris, Chris Hedges and other skeptics. The book shows how (Chapter 1) Christianity provided the theoretical foundation for the United States and has been instrumental in its development and success as a nation the last two centuries; how (Chapter 2) Christians led the Woman's Rights Movement of the late nineteenth and early 20th Century and now lead the campaign against the global sex trade; how (Chapter 3) next to Judism Christianity is the world's most Jew-friendly religion; how (Chapter 4) Christians led the Nazi resistance and were Jews' most loyal allies in the Nazi Germany; how (Chapter 5) Christian child rearing is our childrens' only salvation and how home-schooled students beat public school- educated students in all areas of academic achievement; how (Chapter 8) Christianity brought science into existence and is responsible for many other intellectual pursuits which have benefited mankind; how (Chapter 9) Christians are persecuted in and outside the US; how (Chapter 10) Christianity has advanced freedom throughout history and is why China has emerged as a global economic power; and how (Chapter 11) our country and the world would be much worse off if Christianity is further privatized as it has been the last four decades under the liberal church/state rubric.

4.Jose Perez, Jehovah’s Witnesses: Between Patient Autonomy and Paternalism, published in InDret, Vol. 02, 2010. The abstract states:

The refusal of Jehovah's Witnesses to agree to blood or blood product transfusion based on religious beliefs is one of the most interesting conflicts between the duty of beneficence (and the duty to preserve the life) and the freedom of religion. Such conflict is a product of the ideological and religious diversity in society today. I review the reasons why Jehovah's Witnesses refuse transfusion and discuss the ethical and legal. My intention is to justify that in some cases is not justified the respect for the witnesses' decisions of Jehová I support such conclusion in a conception of the personal autonomy in which beliefs minimally rational are necessary to justify the respect for decisions in which is at stake a so important value as the life.

5.  Faruk Balli  (Massey University), Determinants of Income Smoothing via Remittance and Foreign Aid Flows. The abstract states:

In this paper we quantify the international income smoothing via remittance flows and foreign aid flows (both ODA loans and grants) for low income countries in a cross section analysis. We find that remittances smooth some portion of the domestic output shocks for the low income countries in a range 45% (Tajikistan) to -13% (Haiti). Searching for the determinants of the smoothing via remittances, we find that smoothing via remittance increases for a country as the emigrants of that country diversified more across the world. Also for lower populated economies smoothing via remittance is relatively higher. We explore that cultural factors - through religion - affect the extent of smoothing via remittances significantly.

6. Hatla Thelle and Gulazat Tursun, Integration of Minorities Through Legislation - China's Perspective . The abstract states:

Anyone has the possibility to become minority in a region where the population of his ethnic group is inferior to the main population of that region. Minority is easily isolated and discriminated against because of his ethnic, linguistic, religious or cultural differences. Integration of them into the main society by prohibiting any types of discrimination and providing different development opportunities equally improve social, economic and even political benefit of a society. The paper explored and analyzed China’s law and practice of integration under the framework in International and national legal instruments. After reviewing and conducting some empirical research on practice and the main obstacles of integration, it provided some suggestions for better integration policies.

7. Miguel E. Larios  (Law Office of Stephen F. Potts ), ePublius: Anonymous Speech Rights Online, 37 Rutgers Law Record 36 (2010.)  The abstract states:

The First Amendment to the U.S. Constitution prohibits Congress from abridging the freedom of speech, yet the text of the Amendment does not expressly address the issue of anonymous speech rights. Historical records from state ratifying conventions and from the First Congress do not discuss anonymous expression. Still, anonymous speakers and their works played an immensely important role in the founding era and throughout American history. This essay explores the interplay between the right to speak anonymously and the freedom of speech on the Internet. It concludes that the First Amendment also protects the right of individuals to speak anonymously online.

8. Jon Garon  (Hamline University School of Law ), Video Games, Virtual Worlds and Social Media,   published in Jon M. Garon, ENTERTAINMENT LAW & PRACTICE, Carolina Academic Press, 2005 and Supplement 2010. The abstract states:

This newly added casebook chapter highlights changes in the online, interactive environments of computer games, virtual worlds, wikis and social media sites. It highlights questions regarding the constitutionality of state laws that criminalize the sale of ultra-violent content to minors; the power of the FTC to regulate testimonials in blogs; the scope of publicity rights claims by athletes and artists whose likenesses are used for video games; and the enforceability of end user license agreements affecting the ownership of content created by users of the games they play and sites they visit. Note cases and problems explore the current state of cyberspace, encouraging readers to consider how best to address copyright, publicity and regulations for ads embedded in video games, virtual worlds and social media – where virtual advertising is hosted within a virtual medium.

9. Jennifer M. Allen and George H. Norris (University of Minnesota - Twin Cities - School of Law ), Is Genocide Different? Dealing with Hate Speech in a Post-Genocide Society. The abstract states:

The recent government crackdown on opposition voices in Rwanda discussing the country’s 1994 genocide raises important questions about freedom of speech in a post-genocide society. Does a country have greater latitude to restrict speech in the aftermath of destabilizing conflict? Rwanda has enacted a controversial new law criminalized denying the genocide and inciting divisionism. Under that law, opposition leader Victoire Ingabire and American law professor Peter Erlinder were recently arrested for statements allegedly challenging the 1994 genocide. Their cases strike at the heart of the challenges post-conflict countries face balancing civil liberties and freedoms with establishing the rule of law and preventing a slide back into violence. Which considerations should it take into account in deciding whether and how to limit speech? How can a country struggling to establish the rule of law provide effective checks on the potential misuse of speech restrictions? This Article examines how Israel, Germany, and the United States have protected and limited speech and how their experiences could inform speech regulations in post-conflict societies. It argues for post-conflict countries taking a middle ground between Rwanda’s current overbroad genocide ideology law and the United State’s absolutist approach to address restrictions on speech.

10. Nicola Lucchi  (Università di Ferrara - Facoltà di Giurisprudenza ), Regulation and Control of Communication: Access to Information and Technology Applications.  The abstract states:

In today's society, communication and dissemination of information are increasingly using digital technologies. The internet undoubtedly is the best known and most successful application of these tools. However, alongside these technologies, communication also requires a set of rules that must be borne by the professionals. The aim of these rules is to set the boundaries of legality within which the dissemination of ideas and opinions may be established and conducted.

In almost all democratic systems, new and old media have not only posed problems of definition, but have often resulted in attempts to contain and control information flow. The key point is that computer-mediated communication is beyond the control of the nation-state "ushering in a new era of extra-territorial communication". The problem of information control has thus become a more serious concern due to the phenomenon of new media. In order to contain information and maintain control over access, some countries have tried to set up monitoring systems. Democratic countries’ experience with similar provisions reveals that restriction of the freedom of the media may be condemned and declared as unconstitutional and undemocratic.

An influential example of this approach is provided by the recent decision of the French Constitutional Council that, reviewing the constitutionality of laws under Article. 61, paragraph 2 of the Constitution, considered illegitimate a government law aimed at preventing the illicit circulation of digital content protected by copyright on the Internet.

The article will analyze the most controversial points of the decision. After a brief examination of the effects that the French law has produced at European level, we focus on the relationship between the judiciary, administration and restriction of fundamental freedoms in cyberspace.

JFB