First Amendment Scholarship Update

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

1. Stephen Macedo, Why Public Reason?.  The abstract states:

Some have recently argued that the ideal of public reason not only accords insufficient respect or freedom to some citizens, including some religious citizens, but in addition, it is superfluous. It is enough, according to Jeffrey Stout, Gerald Gaus, and others, if citizens converge on shared principles of justice. No practical purpose is served by the project of seeking to secure consensus on a common, public justification for such principles (what Rawls would call a shared “political conception”). This paper seeks to make the case that seeking to secure a common justification for our most basic principles does serve a variety of practical imperatives. These include greater guidance for public officials charged with interpreting and applying the principles, and greater stability based on deeper mutual assurance of our shared moral commitment to principles of justice. In addition, a shared moral justification can be expected to play an educative role over the course of time. I argue that all of these consequences are most important for the least well off (and most vulnerable) in society, who benefit most from the greater assurance that their fellow citizens are committed to justice.

2. Carl H. Esbeck (University of Missouri School of Law), Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, published in Utah Law Review (2011). The abstract states:

The Supreme Court’s decision in Everson v. Board of Education (1947) is regarded as ushering in the modern era of jurisprudence in church-state relations. Instead of looking to the record of the debates of the First Federal Congress of 1789, the Everson Court adopted the principles animating the disestablishment struggles in Virginia and other newly formed States to give substantive content to the Establishment Clause. Indeed, there was not in the Everson majority even so much as an acknowledgment that the text (“… make no law respecting an establishment …”) was the hard-won effort of Federalists in the House and Senate laboring the summer of 1789 to report amendments that became the Bill of Rights.

This article takes up the curious tale as to why the more obvious text and the drafting record in the House and Senate were ignored by the Court in Everson and what it can tell us about contemporary theories making the rounds. One theory of conservatives is that the Establishment Clause was not intended to prohibit support for religion so long as no religion is preferred over others. This is called “nonpreferentialism.” A second theory is that the clause was only intended to deny the national government power to disturb how States arranged their church-state affairs. I call this “specific federalism.” Neither theory is supported by the text or the congressional record.

As the scholarship has unfolded liberals are just as eager to array the congressional debates on their side. One recent initiative is to relegate the Establishment Clause to safeguarding only liberty of conscience. A more common claim, seemingly sensible to the uninitiated, is that the free exercise and no-establishment principles are in “tension,” as if the Establishment Clause was somehow promulgated to hold organized religion in check rather than to hold the government in check. Again, this article demonstrates why these claims do violence to the text and debates of 1789 in Congress.

Answers to textual and original-meaning inquiries cannot resolve all of the interpretive questions about church and state. However, they do narrow the range of issues that are properly disputed by closing the door to certain errant interpretations of the Establishment Clause. With distractions such as “specific federalism” and “tension between the clauses” confidently put aside, the courts can focus on determining those government actions that bring about the sorts of evils associated with religious establishments in 1789.

3. Meins G. S. Coetsier (Ghent University, Etty Hillesum Research Center), No God on the Horizon? Voegelin, Buber and Bonhoeffer and the Moment of Surrender. The abstract states:

In a time when the faith and freedom of men and women in Europe are challenged by radical atheism and by the fanaticism of secularists, religious extremists and political fundamentalists, public discourse reconsiders the possibility that there is simply “no God on the horizon”. This paper is an attempt to meditate on the secularism rampant in Europe, and builds upon rational and religious insight into the moral potential and mystical dimension of human beings, who seek to resist the attempt of modern-day ideologies and of radical atheism to make history without God and to found it on the strength of man alone. Additionally, this study documents the religious-political commotion in the Netherlands, particularly the open confrontations about Islam by Geert Wilders, the leader of the Dutch Freedom party. By using terms such as “the multicultural nightmare,” “the mass immigration” and “the Islamization,” Wilders attempts to order society and history according to an “anti-Islam” principle and the struggle of races and/or religion. History has taught us that such principles can only lead to severe disorder and destruction. For those of us who like to conserve the divine ordering of human (political) life in the West, few thinkers of the Nazi period have surpassed Voegelin, Buber and Bonhoeffer in opposing the brutal dishonesty at the core of totalitarian movements. Their diagnosis of the “eclipse of reality,” the “eclipse of God,” and the disorder at the root of closed societies was matched by a common concern about the philosophical and theological resources for the rediscovery and defense of human civilization.

4. Thomas C. Omer , Nathan Y. Sharp and Dechun Wang  (Texas A&M University - Department of Accounting , Texas A&M University - Department of Accounting and Texas A&M University), Do Local Religious Norms Affect Auditors’ Going Concern Decisions?. The abstract states:

We extend recent research on the effects of local audit practice office characteristics on audit quality by investigating whether Big 4 audit firms in U.S. Metropolitan Statistical Areas (MSAs) with strong religious social norms exhibit more conservative going concern decisions than audit firms in less religious MSAs. We predict that audit practice offices in more religious MSAs are more likely to resist client pressure to withhold going concern opinions because prior research links religiosity to reduced acceptance of unethical business practices and because auditors in more religious MSAs are likely to be more averse to litigation risk. We find that audit practice offices located in MSAs with strong religious social norms are more likely to issue going concern audit opinions, both in a broad sample of audit clients and in a sample of financially distressed clients. Furthermore, the effects of religiosity on audit firm going concern decisions extend to both expert and non-expert local offices, as well as to large and small audit practice offices. Finally, we find that audit firms in more religious MSAs are more likely to issue going concern opinions in a situation where potential threats to auditor independence exist (i.e., where non-audit services to clients are high).

5. Kristin Fabbe (Massachusetts Institute of Technology),Disciples of the State? Historical Legacies and State Control of Social Discipline in Turkey and Greece. The abstract states:

Through a detailed case study of late Ottoman and early Republican Turkey, this paper presents an argument for why Mustafa Kemal’s founding regime was able to assert control over institutions of social discipline so decisively in the 1920s. The argument is built around an understanding of two historical legacies that had a substantial impact on founding regimes’ ability to consolidate state control throughout the former Ottoman World: 1) the “deep” cultural legacy of Ottoman administration via the millet system; and 2) the more immediate institutional legacy of early modernizing reforms. I question the prevailing assumption that Turkey’s process of modernization and secularization was unique to the region. Instead of juxtaposing the Turkish case against failed attempts at secularization and state centralization in the Muslim majority countries to its east, I argue that a relevant comparative case exhibiting similar dynamics can be found by looking west. Through a brief and stylized comparative case study of modernizing reforms in 19th century Greece, I highlight a number of generalizable conclusions about the conditions necessary for the successful state consolidation of institutions of social discipline in the former Ottoman world.

6. Christopher C. Lund (Wayne State University Law School), Religious Liberty after Gonzales: A Look at State RFRAs, published in South Dakota Law Review (2010). The abstract states:

This symposium piece examines the state of religious liberty after the Supreme Court's decision in Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006), which gave a strong interpretation to the federal Religious Freedom Restoration Act (RFRA). While Gonzales offers religious believers significant protection from federal laws, most free exercise disputes happen at the state and local level, where Gonzales does not apply.

The future of Free Exercise therefore lies largely in the hands of the states. This piece examines what states have done with it, focusing particularly on state religious freedom restoration acts, called state RFRAs. Examining the field of state RFRA cases, this piece offers some interesting (though certainly preliminary) conclusions.

Perhaps most surprising is the paucity of cases decided under state RFRAs thus far. Sixteen states now have state RFRAs. But four states have never decided even a single case under their state RFRAs, and another six states have decided only one or two. In most jurisdictions with state RFRAs, plaintiffs have not won a single case litigated to judgment. Besides the numbers, the reasoning of these state RFRA cases often leaves much to be desired - courts routinely and improperly heighten the threshold showing of a "substantial burden" on religious exercise, and regularly equate the strict scrutiny standard to be the equivalent of rational basis review.
Beginning with those observations, this piece explains these curiousities and traces them back to their possible sources, along the way addressing the full range of interpretative and normative issues that these state RFRAs present.

7. Guobin Zhu (City University of Hong Kong), Prosecuting 'Evil Cults': A Critical Examination of Law Regarding Freedom of Religious Belief in Mainland China , 32  Human Rights Quarterly 471 (August 2010).  The abstract states:

Starting with Falun Gong, this article first identifies the meanings of the term “cult” in the context of religious belief and Chinese law, which are characterized by a strong instrumentalist nature. The article then explores the current system of law governing “evil cults,” and examines how the system actually simultaneously protects and restricts the freedom of religious belief. The author observes that the extent and scope of citizens’ religious beliefs have been restricted by law, and further asserts that legislation and regulations against “evil cult” activities should not be used to control and limit citizens’ normal religious life.

8. Nazila Isgandarovaa (Wilfrid Laurier University - Waterloo Lutheran Seminary),  The Contribution of Muslim Charities in the West to International Development, published in OIDA International Journal of Sustainable Development, Vol. 01, No. 01, pp. 39-44, 2010. The abstract states:

Since the mid 1990s, civil society has been making significant contributions to international development but, at the same time, it became a focus of a special concern in development discourse policy. However, regardless of its significant influence to international development, the Muslim organizations have been neglected in this discourse but this has been noticeable only after the terrible event of 9/11. Since the early 1980s, Islam has become a significant driver of change and Muslim organizations have become important actors in efforts to fight global poverty. The author tries to highlight the growing prominence of Muslim organizations in development contexts and argues that the contributions of these organizations are still inadequately understood. However, the paper also discusses the need to develop a nationwide umbrella organization in order to achieve more transparency and accountability.

9. Joseph Blocher (Duke Law School), Schrödinger’s Cross: The Quantum Mechanics of the Establishment Clause , forthcoming in Virginia Law Review. The abstract states:

Perhaps the most famous character in modern physics is Schrödinger’s Cat, an unfortunate feline trapped in a box alongside a flask containing deadly poison that may or may not have been released. Thanks to the wonders of quantum mechanics, the cat is both alive and dead — “mixed or smeared out in equal parts” — until the box is opened, at which point the act of observation causes its state to collapse into either life or death.

Far away in the Mojave Desert, the “life” of a six-foot-tall cross is disputed: it is either a religious symbol or it is not. Like the cat, it has spent much of its life (or non-life) in a box that makes direct observation impossible. Is the cross, like the cat, both alive and dead? And does opening the box — either metaphorically or otherwise — cause it to become one or the other? This short Article argues that recent forays into “constitutional physics” may have over-emphasized the role of box-opening judges, and thereby elided the cat’s predicament and the relationship between legal and social reality.

10. Adil Ahmad Haque (Rutgers,The State University of New Jersey - School of Law-Newark),  International Crime: In Context and in Contrast , published in STRUCTURES OF CRIMINAL LAW, R.A. Duff, Lindsay Farmer, Sandra Marshall, Victor Tadros, eds., 2010.  The abstract states:

The topic of this chapter is the structure of international crimes, which differs from the structure of national crimes in two important respects. First, international crimes typically include – in addition to their conduct, result, and attendant circumstance elements – a contextual element that national crimes rarely contain. For example, the killing of a civilian will be considered a war crime if “[t]he conduct took place in the context of and was associated with” an armed conflict; a crime against humanity if “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack;” or an act of genocide if “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The first task of this chapter is to explain how this unfamiliar structure relates the values at stake in international crimes to one another. More specifically, the task will be to determine whether the contextual element of each international crime contributes to the moral wrongfulness of the offense or to the justification for subjecting the offense to the jurisdiction of international criminal tribunals.

In addition, to the extent that international crimes and national crimes display parallel structures, the parallel structures they display organize similar values in dissimilar ways. For example, international crimes such as attacking civilians are defined in terms of conduct; national crimes that implicate similar values such as murder are typically defined in terms of result. International crimes such as causing excessive civilian death include justificatory concepts in the definition of the offense; national crimes typically exclude such concepts, which instead appear in the definition of affirmative defenses. The second task of the chapter is to determine whether these international crimes place the relevant values in their proper orientation toward one another, or whether they should be restructured along the lines of national criminal law. In particular, it must be determined whether these international crimes reflect a viable alternative structure according to which crimes are constituted by or related to either an attack or an endangerment.

11. Samuel Issacharoff (New York University School of Law), On Political Corruption, forthcoming in Harvard Law Review. The abstract states:

This Essay takes Citizens United as a launching point to revisit the central Buckley v. Valeo paradigm and examine what possibilities for reform remain to redress the vulnerabilities of democracy before the powers of the purse. Beginning with Buckley, the Court recognized that contributions had the unique potential to corrupt the political process. Revisiting the contribution process and the concept of corruption may yield a better handle on what should be the sources of concern in the financing of electoral campaigns. The inquiry begins with the contested terrain over the nature of political corruption. Once the Supreme Court announced in Buckley that the concern over corruption or even its appearance could justify limitations on money in politics, the race was on to fill the porous concept of corruption with every conceivable meaning advocates could muster. Citizens United categorically rejected the rationale of Austin v. Michigan Chamber of Commerce that corruption ensues from the electoral distortions caused by differences in wealth. Citizens United also rejected any attempt to draw the lines of participation at persons versus corporations based upon similar access to wealth. But what is the remaining corruption concern?

The argument presented is that the corruption concern is really a concern with ensuring public – rather than private – outputs from the policy making process of government once in office, rather than when candidates stand for election. The argument rests heavily on the idea that the threat to democratic governance may come from the emergence of a “clientelist” relation between elected officials and those who seek to profit by relations to the state. This reorientation toward corruption in the outputs of policy making suggests effective solutions to address the financial vulnerabilities of democracy compatible with the Court’s strong constitutional stance in Citizens United. Specifically, the focus is on mechanisms to empower democratic participation in two ways, one by inducement, one by prohibition. Counterintuitively, the inducement looks to increasing the amount of contributions to campaigns to alleviate some of the concerns over political corruption, while the prohibition seeks to bar those in a position to distort public policy – such as government contractors – from providing support to candidates’ campaigns.

12. Zahr Said Stauffer (Univ. of Virginia - School of Law), Embedded Advertising and the Venture Consumer, 89 N.C.L.Rev. --- (2010). The abstract states:

Embedded advertising –marketing that promotes brands from within entertainment content—is a thriving, rapidly changing practice. Analysts estimate that embedded advertising expenditures could exceed $10 billion in 2010. The market continues to grow even as traditional advertising revenues contract. The relatively few legal scholars who have studied embedded advertising believe that it is under-regulated. Ineffective regulation, they claim, is deeply troubling because corporations may with legal impunity deceptively pitch products to trusting viewers. Critics charge that embedded advertising creates “hyper-commercialism,” distorts consumers’ tastes, taints the artistic process, and erodes faith in public discourse. This Article argues that the critics are wrong. Sponsorship disclosure law under the Communications Act of 1934 and related regulations is indeed largely ineffective, in part because the media industry has consolidated considerably and in part because media content is now created and consumed in diverse ways unimaginable to the drafters. The law was conceived for yesterday’s marketplace, but also for yesterday’s consumer. The media consumer today is what this Article calls a “venture consumer.” Often, she knows what she wants, knows where to get it, and is aware of the risks and costs involved. The mismatch between the consumer imagined by regulators and the contemporary consumer means that expanded regulation of embedded advertising according to current reform proposals could end up harming consumers more than helping them. Moreover, embedded advertising is not especially amenable to effective regulation, given the incentives for artists and advertisers to collaborate in the production of entertainment content. In light of the difficulty of correcting the regime’s flaws and the consumer interests threatened by expanded regulation, the Article concludes that the consumer is better served if the law is maintained as-is rather than expanded through the proposed reforms.

13. Seyed Vaheed Aghili  and Somaieh Tajik Esma’eili  (Science and Research Branch of Islamic Azad University, Tehran-Iran), The Internet and the National Identity: A Comparison of the Status of National Identity Among High School Girl Students Dependent on or Independent from the Internet . The abstract states:

Establishing a connection within the cyberspace, due to its newness, attraction and coverage, has already been widely accepted as a communication means. There has been a lot of debate and enlightenment on the impact of this technology on the aspects of individuals' social life. A number of scholars optimistically put forward its advantages and the others pessimistically warn about its negative impacts and consequences. This paper is based on a report of a study carried out to examine the relations between the internet and the national identity. The research method is comparison of ex post facto type, with its independent variable being at two levels of dependency on the Internet (chat) and independency from it. National identity has been chosen as the dependent variable in seven dimensions. 400 girl students of high schools in Tehran who were chosen by multiple stage cluster sampling completed the questionnaire. The research hypotheses were tested by Friedman and independent T tests. The results of testing data by SPSS software suggested that the levels of national, geographical, linguistic and cultural identities are lower among the students who are dependent on the Internet, comparing with those who are independent from it. The level of religious identity is also lower among the former but the difference is not statistically significant. The levels of historical and political identities among the two groups are almost equal. Generally speaking the highest rank refers to the historical identity and the lowest to the linguistic identity among the students, and from this point of view, there is no difference between the two groups (those dependent on and those independent from the Internet and chat). It is concluded however, that for precise information on the impacts of the Internet on the individuals and their identities much more studies are needed.

14. Jason Anthony Aimone (George Mason University - Department of Economics) , Laurence R. Iannaccone (George Mason University - Department of Economics), Michael D. Makowsky (Towson University - Department of Economics), and Jared Rubin  (California State University, Fullerton), Endogenous Group Formation via Unproductive Costs. The abstract states:

How and why do groups form? In many cases, group formation is endogenous to the actions that individual members take and the norms associated with these actions. In this paper, we conduct an experiment that allows groups to form endogenously in the context of the classic voluntary contribution mechanism public goods game. We identify unproductive costs – “sacrifice” – as a mechanism for endogenous group formation, a result which is consistent with the “sacrifice and stigma” theory of religious groups. We find that changes in relative prices (between private and public goods) act to screen out free-riders, subjects who choose high-sacrifice groups contribute more to the public good once in these groups, and moderate welfare gains are available to those who voluntarily incur unproductive costs.

15. S. Vishnu, Protection of Cultural and Educational Rights under the Indian Constitution. The abstract states:

The purpose to guarantee these rights and to distinguish them from majority was not creating such discrimination but to make them able, to diffuse them with the majority. Even the foreigner residing in India and forming the well defined religious and linguistic minority also fall under the preview of this Article. ‘Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.’

16. Paul Sarfo-Mensah (Kwame Nkrumah University of Science - Bureau of Integrated Rural Development and Technology), William Oduro ( Kwame Nkrumah University of Science), Ernestina Antoh Fredua ( Kwame Nkrumah University of Science and Technology) and Stephen Amisah, Traditional Representations of the Natural Environment and Biodiversity Conservation: Sacred Groves in Ghana.  The abstract states:

Local cosmologies and traditional perceptions of the natural environment, especially forests, have been a major influence in the management of the natural resources and biodiversity amongst rural communities in the transitional zone of Ghana. Sacred groves, which are typical outputs of traditional conservation practices, derive from indigenous religious beliefs and perceptions of forest. Sacred groves are believed to be the abode of local gods, ancestral spirits and other super natural beings. These beliefs and perceptions have in the past strongly supported the conservation of biodiversity. However, changes in local cosmologies threaten the protection of rare species, habitats and ecological processes. Data from the study confirm evidence from several studies in Ghana and elsewhere in West Africa that the tremendous ecological, social, institutional, religious and economic changes in communities that have protected sacred groves threaten the survival of these cultural artefacts. The paper demonstrates that in contemporary natural resources management, the sacred grove model may still be used as a means of restoring and protecting landscapes in indigenous communities. Even in communities where population explosion and economic pressures have reached thresholds that undermine the natural landscape, the model may still be useful to keep pockets of forests within the landscape.

17. David Schizer (Columbia Law School) , Subsidizing the Press.  The abstract states:

Information is the lifeblood of a free society, and the professional press is a crucial source of information. For many years, the positive externalities from investigative and beat reporting were cross-subsidized by robust advertising and subscription revenue. Yet the professional press is experiencing a severe economic crisis, and news organizations across the nation are on the brink of insolvency. When an activity that generates positive externalities is undersupplied, the textbook policy response is a government subsidy. Yet if the press becomes financially dependent on the government, would they be deterred from monitoring and criticizing the government? If so, the subsidy would undercut the very social benefits it is meant to preserve.

In response to this conundrum, this Article proposes a three-part analytical framework for evaluating press subsidies. The first step is to assess how effectively the subsidy safeguards press independence, including the extent to which the First Amendment helps to achieve this goal. The second criterion, which this Article calls “focus,” gauges how effectively a subsidy channels resources to externality-generating activities, as opposed to other uses. For example, a subsidy that induces press organizations to hire more reporters is superior to one that can be used, instead, to fund pay raises for the advertising staff or more attractive office space. The third criterion is political plausibility. How likely is a subsidy to attract political support? And how much political support does it need? One that can be implemented under current law, for example, requires less political support than one that depends on broad new legislation.

Based on this framework, the principal recommendation of this Article is for news organizations to make greater use of the nonprofit form. By providing a subsidy through the charitable deduction, we would not empower the government to choose how much funding to allocate to each news organization. Instead, the charitable deduction allows the government to piggyback on the judgments of private donors about which charities to support. In addition, this subsidy is feasible politically since it already can be used, to a significant extent, under current law. This Article also considers four alternative subsidy structures, highlighting their strengths and weaknesses and showing the tradeoffs they present.

18. Leslie Gielow Jacobs (University of the Pacific (UOP) - McGeorge School of Law), What the Abortion Disclosure Cases Say About the Constitutionality of Persuasive Government Speech on Product Labels , published in Denver University Law Review ( 2010).  The abstract states:

This article addresses the uncertain constitutional status of government compelled disclosure requirements imposed on commercial speech. In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the Supreme Court held that, while commercial speech restrictions are subject to intermediate scrutiny review under Central Hudson, at least certain types of disclosure requirements would be subject to more lenient rational basis review. Many had assumed that Zauderer’s deferential review applied to disclosure requirements imposed to promote legitimate regulatory objectives including, but not limited to, preventing consumers from being deceived by unsupplemented commercial speech. As new requirements that cigarette labels provide larger and more graphic health warnings illustrate, these regulatory purposes may include achieving the public health objective of reducing demand for the product on which the information must be placed. But the Supreme Court’s recent interpretations expanding the free speech protection of commercial and corporate speakers from government regulations that take the form of restricting their speech create uncertainty as to whether and how these changes in the jurisprudence of speech restrictions will modify the authority of governments to achieve their legitimate regulatory objectives by means of information disclosure requirements imposed on commercial speech. Yet this apparent uncertainty in the commercial speech jurisprudence has an odd and inconsistent counterpart. At the same time that members of the Court have suggested that disclosure requirements imposed on commercial speech for purposes other than preventing consumer deception may be constitutionally suspect, in the analogous context of the abortion service, the Court has applied deferential rational basis review to uphold selective and persuasive disclosure requirements that were imposed for purposes other than correcting potentially misleading speech. This piece identifies the symmetry between the two lines of cases, and to points out that, so long as the informed consent to abortion precedent remains unchanged, it is controlling in the context of commercial speech disclosures. Deferential rational basis scrutiny applies to judicial evaluations of information disclosure mandates imposed on product labels and other types of commercial speech, even if the government’s purpose is something other than preventing consumer deception and even if the information is obviously selected and presented to persuade.

19. Phillip Buckley (University of Pennsylvania - Graduate School of Education), Rights, Republicans, & Refuseniks: Children’s Speech Rights Law & the Three R’s of Citizenship . The abstract states:

In the face of evidence that Americans’ civic knowledge and civic participation fall short of what many consider ideal, there is a broad consensus within popular political discourse and the field of political theory that children should learn the qualities and attitudes conducive to good citizenship. However, this consensus falls apart once the process of defining “good citizenship” begins. This paper considers one context in which this lack of consensus is apparent: constitutional law. Drawing on the theory that law and society have a mutually constitutive relationship, as well as literature from the areas of public law and judicial decision-making, the paper analyzes, through the lens of citizenship, a set of opinions from US Supreme Court cases that have recognized, defined, and applied the speech rights of children vis-à-vis schools. The analysis shows that the authors of the opinions regularly draw on four different visions of citizenship - 1) liberal citizenship based on the protection of individual rights and the pursuit of individual goals; 2) civic republican citizenship based on political participation and the pursuit of the common good; 3) communitarian citizenship based on the importance and promulgation of common values and norms; and 4) critical citizenship based on the preservation of diverse thought, the protection of dissent, and the promotion of fervent debate - when presenting the rationale for their decisions. The paper also explores the relationship between the judges’ reference to particular visions of citizenship and the core principles that make up the legal precedent that governs children’s speech rights in school.

20. Steven J. Mulroy (University of Memphis - Cecil C. Humphreys School of Law),  Sunlight’s Glare: How Overbroad Open Government Laws Chill Free Speech and Hamper Effective Democracy. The abstract states:

In this Article, Prof. Mulroy argues that the broadest of state “open meetings laws” violate the free speech rights of covered government officials. The Article focuses on those laws which ban substantive discussion of government business by any two or three legislators outside of a publicly noticed official meeting (far less than a quorum), and those laws which admit no exceptions for matters involving individual privacy, personnel matters, consultation with counsel, ongoing financial negotiations, or other sensitive topics where confidentiality is warranted. They are likely overbroad under the strict scrutiny standard applicable to content-based speech restrictions, or even under the intermediate standard applicable to content-neutral laws. The Article also discusses equal protection issues arising when state legislatures exempt themselves from such strict requirements imposed on local legislators. As a policy matter, such overstrict laws chill needed deliberation and collegiality, prevent compromise, transfer power to unelected staff and lobbyists, encourage the violation of individual privacy, and, ultimately, force conscientious local legislators to become casual lawbreakers. The Article concludes by calling for reform of these laws, and provides a model open meetings act as a guide for such reform legislation.

21. Andrew T. Kenyon (University of Melbourne Law School), What Conversation? Free Speech and Defamation Law , published in The Modern Law Review, Vol. 73, Issue 5, pp. 697-720, September 2010. The abstract states:

Common rationales for free speech are offered in legal writing across many countries, even though their laws regulating speech differ markedly. This article suggests another way of thinking about speech, based on particular qualities of speech which help to explain why public speech – or at least public speech perceived as valuable for cultural, political or other purposes – is frequently thought of as a conversation. That often appears as the ideal, but a conversational conception can limit what is seen to be at stake in the control of speech. Instead of imagining public speech as open exchange that leads to agreement, here a slightly different vision is offered based more on the articulation of incommensurable world views and dissent. Implications of such an approach are considered for scholarly understanding, particularly of defamation law – an area of law commonly seen as important for the range and style of public speech.

22. S. Vishnu,  Right to Strike and Article 19(1) of the Indian Constitution. The abstract states:

Demonstrations and processions usually involve three fundamental rights; freedom of speech, freedom of assembly, and freedom of movement. Many a times the question arose before the court that whether the above stated fundamental rights includes the right to strike.In this research the researcher tried to analyse the emergence of the concept of right to strike under the Article 19(1) of the Indian Constitution, by analysing various decided case laws in this matter.

23. James A. Gardner (University at Buffalo Law School, SUNY), Anti-Regulatory Absolutism in the Campaign Arena: Citizens United and the Implied Slippery Slope, 20 Cornell J. L. & Pub. Pol’y --- (2010).  The abstract states:

Perhaps the most striking feature of the Supreme Court’s constitutional campaign jurisprudence is its longstanding, profound hostility to virtually any government regulation whatsoever of campaign speech and spending. Such an approach is highly unusual in constitutional law, which typically tolerates at least some level of regulatory intervention even with respect to strongly protected rights. The Court’s behavior in this respect is consistent with – and, I argue, is best understood as – the kind of behavior in which a court engages when it fears a slide down a slippery slope. But what lies at the bottom of the slope? And how reasonable is the Court’s apparent belief that any movement at all down the slope will result in an irreversible slide into the disfavored outcome?

Although the evidence is scanty, the Court’s behavior appears to be motivated by a deep-seated fear of loss of democratic self-rule, especially a fear that incumbents will use government power to entrench themselves in office, resulting in a catastrophic and possibly irremediable loss of popular sovereignty. This is without question a serious and legitimate fear. Justification of the Court’s rigid response to this fear, however, requires more: it requires the existence of some mechanism by which permitting even a modicum of government regulation of campaign spending might plausibly lead down the slippery slope to political slavery. Because slippery slope arguments nearly always rest on speculative empirical premises, they rarely can be rebutted in any formal sense. Nevertheless, slippery slope arguments can be more or less plausible, and I argue that none of the possible mechanisms of descent down the slope is sufficiently plausible to justify the Court’s uncompromising, absolutist stance against regulation of campaign spending.

 

JFB