First Amendment Law Prof Blog

State Court Judge Rejects Va. AG’s Attempt to Subpoena Climate Change Researcher’s Records

The Blog of the Legal Times reports that a state court judge has rejected Virginia AG Cuccinelli’s attempt to subpoena the research materials of a former University of Virginia climate change researcher as part of what the Attorney General asserted was an investigation of possible false claims for state grant funding.  UVA had opposed the subpoena as an unwarranted incursion on academic freedom. Judge Paul Peatross ruled today that the AG had failed to make a sufficient showing that there was reason to believe the alleged fraud had occurred. The Washington Post provides further background on the case. 

JFB

Courts Unreceptive to Counselors Claiming Their Religious Opposition to Homosexuality Justifies Their Refusal to Serve Homosexual Clients

Crosswalk.com and USA Today have recently noted that federal district courts in Michigan and Georgia have dismissed religious discrimination claims filed by psychological counseling students or employed counselors who face academic or workplace discipline after citing a religious objection to homosexuality as the basis for either refusing to treat a homosexual client or refusing to withhold expressions of opposition to homosexuality in the therapeutic context.  Such conduct has been deemed inconsistent with relevant professional ethical standards by employers, such as the CDC, and by counseling training programs, such as those at Augusta State University and Eastern Michigan University.  The Alliance Defense Fund is currently representing several plaintiffs in such litigation.  Their complaint in the Augusta State University case is available via the ADF website.  

JFB  

Egypt Faces Call to Reconsider Regulation of Marriage as Religious Rather than Civil Matter

In Egypt, media attention has spotlighted the country’s civil courts’ adherence to Coptic Christian Church rulings barring, as a matter of religious law, the divorce and remarriage of women who have fled abusive marriages. The Christian Science Monitor reports that increasing numbers of Egyptians are now calling for the creation of a now non-existent option, civil marriage, as alternative to the only current way to marry and to divorce, proceeding in accordance with the doctrine and authority of one’s religious faith.

JFB  

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

U.K. Study Finds Doctors’ Religious Views Play Role in End of Life Decisions

As reported by the AP in the Washington Post, a United Kingdom study has found that physicians who identified themselves as non-religious were more likely than self-described religious practitioners to make decisions that could hasten the deaths of their terminally ill patients. The study's author, Dr. Clive Seale, advised that "nonreligious doctors should confess their predilections to their patients" in order to ensure that care conforms to patients' own views. Seale also noted that doctors who described themselves as religious were less likely to undertake a discussion of end of life treatment options with patients.

The abstract of the study, published in the Journal of Medical Ethics, describes its methods and findings:

Background and Aims The prevalence of religious faith among doctors and its relationship with decision-making in end-of-life care is not well documented. The impact of ethnic differences on this is also poorly understood. This study compares ethnicity and religious faith in the medical and general UK populations, and reports on their associations with ethically controversial decisions taken when providing care to dying patients.

Method A postal survey of 3733 UK medical practitioners, of whom 2923 reported on the care of their last patient who died.

Findings Specialists in care of the elderly were somewhat more likely to be Hindu or Muslim than other doctors; palliative care specialists were somewhat more likely to be Christian, religious and ‘white’ than others. Ethnicity was largely unrelated to rates of reporting ethically controversial decisions. Independently of speciality, doctors who described themselves as non-religious were more likely than others to report having given continuous deep sedation until death, having taken decisions they expected or partly intended to end life, and to have discussed these decisions with patients judged to have the capacity to participate in discussions. Speciality was independently related to wide variations in the reporting of decisions taken with some intent to end life, with doctors in ‘other hospital’ specialities being almost 10 times as likely to report this when compared with palliative medicine specialists, regardless of religious faith.

Conclusions Greater acknowledgement of the relationship of doctors' values with clinical decision-making is advocated.

JFB

Will Supreme Court Revisit Ten Commandments Display Cases?

In today’s NYTimes, Linda Greenhouse asks if the changed composition of the Supreme Court since their split decisions on when public displays of the Ten Commandments are constitutionally acceptable will lead to a more permissive approach to such displays. Since the Court’s ruling in McCreary in 2005, defendant McCreary County, Kentucky and many other states and localities have persevered with efforts to post the Ten Commandments, often creating “Foundations of Law and Government” displays in government settings as the platform for the display of the Commandments.  McCreary County itself is now pressing an appeal from a Sixth Circuit ruling that County efforts to respond to their loss at the Supreme Court by enacting new resolutions authorizing the posting of the Commandments in a multi-document display were a continuation of their prior pattern of unconstitutional behavior. That opinion was accompanied by a dissent from Judge James Ryanurging the Supreme Court to reconsider precedents like McCreary and Stone v. Graham.

JFB

First Amendment Scholarship Update

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

1. Mary Jean Dolan (The John Marshall Law School),  Government Identity Speech and Religion: Establishment Clause Limits after Summum , 19 Wm. & Mary Bill of Rts J.  --- (2010). The abstract states:

This Article offers in-depth analysis of the opinions in Pleasant Grove v. Summum. Summum is a significant case because it expands “government speech” to cover broad, thematic government identity messages in the form of donated monuments, including the much-litigated Eagles-donated Ten Commandments. The Article explores the fine distinctions between the new “government speech doctrine” – a defense in Free Speech Clause cases that allows government to express its own viewpoint and to reject alternative views – and “government speech” analyzed under the Establishment Clause, which prohibits government from expressing a viewpoint on religion, and from favoring some religions over others. The Court’s decision, to characterize all public monuments as expressing “government-controlled” messages which reflect municipal identity, should impact the Establishment Clause calculus. Using social meaning theory, I show how the Culture Wars have transformed the message of governmental religious displays, and how Summum has eliminated the donor’s ambiguating role, which played a part in Justice Breyer’s Van Orden concurrence.

The Article also serves a valuable function by contesting claims that Summum has eliminated the Establishment Clause endorsement test, or that it dangerously allows government to convert any and all private speech to its own, thus deflecting Free Speech claims. My interpretation shows that the decision is multi-faceted and contextual; it relies on government’s expressive intent, an inherently communicative medium, and viewers’ reasonable attributions regarding monument speech. As shown below, the Court’s exposition on the unfettered indeterminacy of monuments’ content either has been misconstrued, or renders the opinion internally inconsistent. I conclude by proposing a compromise solution: it requires a new level of transparency for the history-based rationales used to explain existing public religious displays, and closer scrutiny of any new government religious displays which are initiated in this religiously-divisive time. Finally, my proposal is illustrated by application to Ten Commandments monuments and the Salazar v. Buono narrative.

2. Peter Danchin (University of Maryland School of Law), Defaming Muhammad: Dignity, Harm, and Incitement to Religious Hatred, 2 Duke Forum for Law & Social Change 5 (2010).  The abstract states:

The Danish cartoons controversy has generated a torrent of commentary seeking to define and defend competing conceptions of the normative implications of the affair. This Article addresses the question of how liberal democratic states ought to respond to visible manifestations of hatred, especially speech that constitutes incitement to religious hatred. Taking the publication of the Danish cartoons as its point of departure, the Article interrogates the complex historical and normative relationship between free speech and freedom of religion in the liberal democratic order and discusses the two critical questions of whether the cartoons give rise to a genuine conflict of rights and how we should understand the notion of harm. An argument is advanced which intervenes in the extant literature by suggesting two dialectical moves, each premised on the distinction between internal and external reasons in philosophical argument, which have the capacity to unsettle the static secular-religious binary and purportedly incommensurable divide between liberal and Islamic values. The Article concludes by asking what a more robust, reflexive account of toleration might look like premised on notions of mutual justification and peaceful coexistence between rival ways of life and on recognition of the need to pay close attention to how legal restrictions seem from the internal point of view of a religious tradition.

3. Patrick Macklem (University of Toronto - Faculty of Law), Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe. The abstract states:

This essay tracks the concept of militant democracy in the jurisprudence of the European Court of Human Rights, where it has migrated from a principle that authorizes a state to act in a militant manner to preserve democratic processes to one that entitles a state to establish perimeters and guard against threats of a different kind. Militant democracy now authorizes a state to assume a militant stance toward the exercise of religious freedom that threatens substantive conceptions of democracy instantiated in its constitutional order. The essay identifies four substantive conceptions of democracy – liberal democracy, secular democracy, republican democracy, and conservative democracy – to which militant democracy has migrated in recent years. It argues that militant democracy’s migration signals an ominous shift in the way in which the European Court of Human Rights comprehends the relationship between religion and state power.

4. Amos N. Guiora (University of Utah - S.J. Quinney College of Law), Protecting the Unprotected: Religious Extremism and Child Endangerment, 12 Journal of Law & Family Studies 391 (2010). The abstract states:

This Article's primary thesis is that male and female children alike are victims of child abuse and neglect in the name of FLDS religious doctrine. While others have addressed "terror in the name of God" (attacking internal and external targets alike) child endangerment in the religion paradigm is, I suggest, fundamentally different. Simply put, it is the deliberate injury to one's own child predicated on religious faith, in particular religious extremism. To that end, this Article will focus on the danger to members of an internal community (members of a particular faith) rather than to an external community (members of other faiths).

5. Hamadullah Hamad Kakepto (Department of Sociology, University of Sindh, Jamshoro, Pakistan), The Phenomenon of Globalization: A Study with Reference to Marginalization and Social Disorder , 1 OIDA International Journal of Sustainable Development 11(2010).  The abstract states:

It is assumed that the sociological consequences of the globalization process are identical for all societies. Their intensity, however, varies from country to country. The study generally aims: to draw the attention of social scientists to the emerging social disorder in all societies; and to indicate the possible role of religion and social institutions in the maintenance of social order. The specific objectives of the study are: (1) to analyze the major dimensions of globalization and its certain consequences for social institutions, state, family and education (2) to study the nature of emerging social disorder and the response of socio-religious movements to it (3) to examine the challenges to the sociology of religion in a globalization age and, (4) to analyze the role of religion and social institutions, state, family, and education, in the maintenance of social order.

6. William E. Thro and Charles J. Russo (Christopher Newport University), Preserving Orthodoxy on Secular Campuses: The Right of Student Religious Organizations to Exclude Non-Believers ,  250 Educ. L. Rptr. 497 (2010). The abstract states:

Increasingly, it is common for public universities and student religious organization to litigate over the membership policies of the organization. On the one hand, many public universities ban discrimination based on sexual orientation, political, or religious belief in all aspects of campus life. On the other hand, many faith-based groups wish to exclude those who believe that homosexual conduct is sinful or those who adhere to different theological tenants. In Christian Legal Society v. Walker, the Seventh Circuit held a state university’s interest in preventing discrimination against homosexuals did not outweigh the organization’s interest in expressing its disapproval of homosexual activity by barring active homosexuals (and others) from serving as voting members or serving in leadership capacities even though they participate in its activities. Conversely, in Christian Legal Society v. Kane, the Ninth Circuit, relying on circuit precedent from a similar case in the K-12 context, reached the opposite result.

Yet, despite the conflict between the Seventh and Ninth Circuits, existing Supreme Court precedent suggests that student religious organizations should prevail against public institutions. Quite simply, orthodoxy may be enforced. Student religious organizations have a right to exclude non-believers.

The purpose of this Article is to explain why student religious organizations have a constitutional right to control their membership. Part I details the Seventh Circuit decision in Walker and the district court opinion in Kane, which the Ninth Circuit summarily affirmed. Part II views the issue through three different constitutional lenses - the Free Exercise of Religion, the Freedom of Expressive Association, and the Court’s student organization jurisprudence.

7. Larry Alexander (University of San Diego School of Law), There is No First Amendment Overbreadth (But There are Vague First Amendment Doctrines); Prior Restraints Aren’t ‘Prior’; and ‘As Applied’ Challenges Seek Judicial Statutory Amendments , forthcoming in Constitutional Commentary. The abstract states:

In this short paper I argue that there are no overbroad statutes, and that the worry about overbreadth is really a worry about the vagueness of some First Amendment doctrines. I further argue that there is nothing “prior” about prior restraints; the temporal worry about injunctions is due to the judicially-created collateral bar doctrine, and the temporal worry about licensing schemes is that of the delay occasioned by the license requirement. Finally, I argue that “as applied” constitutional analysis is an exercise in judicial statutory amendment. I conclude with an Appendix discussing two recent prominent articles that are inconsistent with some of my arguments.

8. Adam Samaha (University of Chicago - Law School), The Story of FCC v. Pacifica Foundation (And Its Second Life), published in FIRST AMENDMENT STORIES, Richard Garnett, Andrew Kobbelman, eds., Foundation Press, 2010. The abstract states:

This chapter provides a back story to FCC v. Pacifica Foundation – the so-called seven dirty words case, which upheld the Commission’s authority to regulate broadcast indecency. The history of broadcast indecency regulation is briefly reviewed, along with the emergence of countercultural radio in the 1960s and 1970s. The chapter then turns to George Carlin and his personal transformation, Pacifica radio and its turbulent times, and the complaint of a Morality in Media board member that instigated FCC proceedings. The litigation history of the case is likewise investigated. This research provides insight into why the Department of Justice switched sides when the case reached the Supreme Court, and it identifies Justice Stevens as the likely swing voter. Apparently he was wrestling with issues of statutory interpretation. The chapter includes new interviews with several participants in the controversy, as well as some original archival research. The chapter closes with a few thoughts on the path of indecency regulation since the Pacifica case. It points up the relationship between constraint and creativity; and it suggests that technological change making the broadcast medium less important also makes broadcast regulation less problematic. The ‘just change the channel’ argument, so rhetorically effective against indecency regulation in the past, is now switching sides.

9. Margaret Gilhooley (Seton Hall University - School of Law), Drug Safety and Commercial Speech: Television Advertisements and Reprints on Off-Label Uses, 47 San Diego L. Rev.--- (2010).  The abstract states:

This paper examines how the constitutional protections for commercial speech have limited the ability of Congress and FDA to regulate prescription drugs in ways that can affect safety. In Thompson v. Western States, the Supreme Court struck down a Congressional restriction on advertisements for unapproved "compound" drugs because a disclosure that FDA had not approved the compound was considered a constitutionally adequate alternative. While drug compounds are a relatively obscure category, the decision influenced Congress in deciding not to require a moratorium on television advertisements for newly approved drugs until the risks were better known.

The paper also provides an overview of the intense dispute about the legal and constitutional protections for manufacturers who distribute reprints to doctors of studies they fund about off-label uses of a drug with a disclosure about the lack of agency approval. At the end of the Bush Administration, FDA issued a Guidance Document that the agency did not intend to consider the non-promotional distribution of reprints about an off-label use by a company with disclosures about the lack of FDA approval as establishing an "intent" that the product be used for an unapproved use. While the agency position is ambiguous on whether it rests on statutory or constitutional grounds, or is an enforcement policy, if the new Administration were to revoke the Guidance, a constitutional challenge could ensue. That litigation could also test the difference between commercial speech and expressive speech that receives the highest First Amendment protections.

Justice Breyer, in his dissent in Western States, maintained that a "more lenient application" of the Constitution is needed and warned against "an overly rigid commercial speech doctrine" for Governmental decisions that affect "health and safety." Transforming these decisions into a constitutional decision "would involve a tragic constitutional misunderstanding" as shown by history with respect to the Due Process clause. Instead, for drugs and products that affect health, the test needs to be a "flexible" one that examines the restrictions "proportionality, the relation between restriction and objective, the fit between ends and means." This paper explores how a safety-aware proportionality test would apply to the areas where the commercial speech doctrine has limited FDA's ability to restrict drug promotion.

10.  Seun Damilare Idowu , Of Private Spaces and Vocal Freedom in Big Brother’s Global Village: How to Resolve the Tension between Privacy and Freedom of Speech in the New Digital Media .The abstract states:

“The growth of online and digital media has had profound consequences for the ability to disseminate widely information about individuals. In particular the recent development of websites such as Facebook and Twitter among others has led to concerns regarding the safeguarding of sensitive personal information from breaches of privacy, confidence and defamation. It is not yet established how the benefits of such media can be reconciled with such breaches of personal rights. Are traditional legal rights and procedures equipped to handle this problem in a timely fashion? And is this problem exacerbated by the inherent global reach of these new media”.

11. Ned Snow (University of Arkansas at Fayetteville - School of Law), The Forgotten Right of Fair Use. The abstract states:

Free speech was once an integral part of copyright law; today it is all but forgotten. At common law, principles of free speech protected those who expressed themselves by using another's expression. Free speech determined whether speakers had infringed a copyright. To prevail on a copyright claim, then, a copyright holder would need to prove that the speaker’s use fell outside the scope of permissible speech - or in other words, that the use was not fair. Where uncertainty prevented that proof, fair use would protect speakers from the suppression of copyright. Today, however, all this has changed. Copyright has deeply buried any remnants of free speech, redefining the doctrine of fair use as a pretext for piracy that aims to excuse infringing conduct. Copyright enforcement has become the norm and fair use the exception, resulting in a presumption against fair-use speech. Uncertainty no longer protects speakers; it damns them. The change from fair use as a strong right of speech to fair use as a weak excuse for infringement occurred subtly, unintentionally, and without reason. It was a mistake. Quickly becoming widespread, the mistake swiftly eroded speech protections in copyright. If left unchecked, the mistake will become immutable. This Article traces the history of fair use from its birth as a strong right of speech to its deterioration into a weak excuse for infringement.

12. Ned Snow (University of Arkansas at Fayetteville - School of Law), Untangling Fair Use as a Matter of Law. The abstract states:

Fair use is an issue of fact for the jury. Or at least it should be. Recently courts have been perverting the centuries-old practice of treating fair use as a factual issue. Courts must therefore repent: they must return to construing the issue as factual. Yet even if they do, the question remains whether courts should ever decide fair use as a matter of law. To answer this question, this Article examines whether appellate courts should ever review fair use decisions under a de novo standard. It also examines whether trial courts should ever decide fair use on summary judgment. The Article concludes that the speech nature of fair use necessitates deciding the issue as a matter of law in certain circumstances: appellate courts should review constitutional findings under a de novo standard, but only where a bench trial occurs or where a jury verdict favors the copyright holder; trial courts should rule on summary judgment, but only for fair users. In short, ruling as a matter of law must serve the speech-protective function of fair use. Fair use as a matter of law must favor fair users.

13.    Joseph A. Tomain (University of Louisville Brandeis School of Law), Cyberspace is Outside the Schoolhouse Gate: Offensive Online Student Speech Receives First Amendment Protection, 59 Drake L. Rev.--- (2010).The abstract states:

Normative and doctrinal analysis shows that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.

On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus. The Third Circuit vacated both decisions and is considering these cases in a consolidated en banc appeal. Another case addressing the same issue is currently pending before the Second Circuit. This article provides in-depth analysis on all three cases as well as associated case law.

Specifically, the article focuses on one of the four Supreme Court student speech rulings, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). In Fraser, the court held that a school may discipline a student for giving a lewd and indecent speech at a mandatory school assembly. Fraser created an exception to the Court’s seminal student speech case, Tinker v. Des Moines Area School District, 393 U.S. 503 (1969). Tinker required a substantial disruption of the school environment before a school could punish student speech. Fraser did not require a substantial disruption because the student gave a speech filled sexual innuendo before a captive school audience.

Lower courts struggle with whether Fraser applies to offensive online speech. On February 4, 2010, one Third Circuit panel affirmed the district court by holding that Fraser does not apply to online speech. On the same day, a different Third Circuit panel declined to analyze Fraser, even though the district court upheld a school’s decision to discipline a student under Fraser. Instead, that Third Circuit panel upheld the punishment under Tinker. While not creating an express intra-circuit split, these decisions do not resolve the uncertainty as to whether Fraser applies to online student speech. The case pending before the Second Circuit will address Fraser because the certified question is whether “a school may discipline a student for inappropriate comments made off campus on a blog.”

The rule articulated in this article is that Fraser does not apply to offensive online student speech, regardless of whether it is created or accessed on or off-campus. This rule is supported by doctrinal analysis of Fraser and its progeny.

Normative analysis under self-realization theory also supports the rule in this article. Self-realization theory is influential in our Supreme Court’s First Amendment jurisprudence and was most recently invoked in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 972 (Jan. 21, 2010) (Stevens, J., dissenting). Because of conflicting lower court decisions, the issue of online student speech rights will likely reach the United States Supreme Court. Through normative and doctrinal analysis, this article illustrates the importance of limiting school jurisdiction over online student speech to protect First Amendment rights of minors and others.

14. Seth A. Fersko, Comment - United States v. Wecht: When Anonymous Juries, the Right of Access, and Judicial Discretion Collide , 40 Seton Hall L. Rev. --- (2010.  The abstract states:

The United States was a young country in 1807 when proceedings began in Aaron Burr's treason trial. The former vice president sat accused of treason for allegedly conspiring to wage war against the United States. By all accounts, the trial was such a spectacle that the country had not seen anything like it before, even during the colonial period. Although newspapers at the time virtually ignored the courts, the Burr trial “captivated the American public's attention,” and the newspapers happily obliged the public's interest. The news reports were so invasive and the editorials were so provocative that Burr alleged that the coverage prejudiced the jury against him. Acknowledging that some jurors might have formed opinions, Chief Justice John Marshall, serving as the trial judge, instructed the jury to remain open to the evidence and witness testimony. Despite the prejudicial media coverage, the jury acquitted Burr of treason.

Since 1807, courts have occasionally witnessed high public interest in criminal trials. In the early 1920s, the newspapers and public carefully followed the Sacco and Vanzetti arrests and murder trial. The media coverage continued throughout the defendants' appeals and right up to their execution. Reporters even tracked down the original jurors from the trial--seven years after the guilty verdicts--to ask whether, in hindsight, they thought that the trial was fair. The intensity and pervasiveness of the media's trial coverage, however, took on a new character in the 1950s with the advent of television and the growth of broadcast news.

The justice system witnessed one of the first modern media frenzies in the 1954 murder trial of Dr. Samuel Sheppard. The prosecution accused Dr. Sheppard, a “handsome, 30-year-old” doctor from an Ohio suburb, of brutally murdering his pregnant, thirty-one-year-old wife. The press's daily trial coverage included "[a]bout fifty reporters from newspapers, news services, radio and television networks, with perhaps twenty still and movie camera men . . . swarmed over the court house. . . . Except [for] eight or ten seats in the last row, all places in the court room not occupied by participants and attendants [were] filled by the press. Not only were critics concerned about the fairness of the process to Dr. Sheppard, the trial also raised serious questions about the privacy of jurors because of the pervasive media coverage."

During the years following the Sheppard trial and Dr. Sheppard's appeal to the Supreme Court of the United States in Sheppard v. Maxwell, the legal community recognized the need to address how the media covers high-profile trials and the negative influence excessive media coverage can have on the trial itself. Congress also embraced the idea of greater judicial discretion and control over criminal proceedings. As a result, district courts have relied on case law, statutes, and their inherent judicial authority to address intense media coverage, including withholding jurors' identities from the public by using anonymous juries. In contrast, because of the media's First Amendment right of access and the inherent benefits of public trials and media scrutiny, the Supreme Court has voiced concern over excessive judicial measures that close proceedings from the public eye. For these reasons, in 1986, the Supreme Court adopted the “experience and logic” test. The “experience and logic” test seeks a balance between too much and too little public access under the First Amendment by instructing courts when proceedings must be open or may be closed.

Courts determine whether the “experience and logic” test weighs in favor of a First Amendment right of access by examining both the historical openness of the proceeding and the benefits and detriments of public access. If a First Amendment right attaches, then a presumption of openness applies. A court can close a proceeding and overcome this presumption only when detailed, case-specific findings reveal the necessity of closure. On the other hand, when the First Amendment does not attach, the courts need not overcome a constitutional burden to close the proceedings. Thus, courts have far greater discretion and control over the trial process when a First Amendment right does not attach because they do not need to overcome a constitutional presumption of openness.

The “experience and logic” test and the stability it achieves have worked well, but the U.S. Court of Appeals for the Third Circuit upset the status quo in United States v. Wecht ( Wecht II). In Wecht II, the Third Circuit held that the media has a First Amendment right of access to the names and addresses of prospective jurors. Yet legal tradition and policy considerations weigh against the Third Circuit's holding under the “experience and logic” test.

If Wecht II endures, district judges will lose a significant amount of discretion over the jury-selection process and will no longer control when or how the court releases prospective jurors' identities to the public in high-profile trials. Instead of using their inherent and statutory discretion, courts would first need to rebut a strong, constitutional presumption--rather than a common-law presumption--that the jurors' identities are publicly available. By making it more difficult for the district courts to exercise their discretion during jury selection, Wecht II ignores the history that led to the “experience and logic” test and the delicate policy balance that the Supreme Court and Congress achieved.

This Comment contends that, under the “experience and logic” test, the First Amendment does not apply to prospective jurors' identities during jury selection. Therefore, the First Amendment does not require that courts disclose prospective jurors' identities to the public when the parties have not finished jury selection in a high-profile case that lacks safety concerns. Part II of this Comment introduces the concept of the anonymous jury and the source of the district judge's authority to empanel an anonymous jury. Part II also presents the constitutional issues raised by an anonymous jury and the current case law addressing those issues. Part III discusses the unprecedented decision in Wecht II, which creates a constitutional right to obtain the identities of prospective jurors. Part IV analyzes the ways in which the Wecht II court misapplied the “experience and logic” test. Part IV also evaluates the potential effects of Wecht II and how, if followed, it might substantially affect the balance achieved between media-access concerns and concerns for juror privacy and systemic integrity.

JFB

First Amendment Scholarship Update

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

1. Toni M. Massaro (University of Arizona College of Law) , Christian Legal Society v. Martinez: Six Frames .The abstract states:

In Christian Legal Society v. Martinez, the United States Supreme Court upheld the Hastings Law School registered student organization (“RSO”) policy, which required that all student groups comply with a nondiscrimination condition on RSO status and benefits. Viewing the case as a matter of government benefits, the Court held that CLS was obliged to comply with an “all comers” condition on access to benefits, despite the burden on CLS members’ expressive associational, free speech and religious freedom to organize around religious beliefs. According to the Court, the policy was a reasonable and viewpoint neutral condition on access that did not unduly infringe on the group’s right to exclude members and officers who did not share its core beliefs.

This case falls at the intersection between government power to condition access to its benefits and fora on legitimate and non-neutral conditions, and the right of individuals and groups to access without barriers that may be described as “unconstitutional conditions.” The tension between these interests is an enduring and complex one, and applies to a broad range of government programs.

The particular tension in Martinez – whether religious associations have a constitutional right to exemption from generally applicable nondiscrimination rules, and whether these generally applicable rules are themselves a form of viewpoint discrimination against some forms of religious expressive association – is one of the most hotly contested and often litigated issues today. Martinez is hardly the last word in this debate.

This Article focuses on the wider landscape within which the case can be located. It notes that the Court identified two primary frames for analysis – whether the RSO program was a “carrot” or “stick” form of regulation – but ignored other possible frames for the issues and thereby missed an important point about government “imprimatur” and the long shadow of state action that enables private discrimination. It explains why the state action frame is an extremely important baseline for understanding the practical, legal and political dynamics at stake, and suggests a common way of analyzing the constitutionality of conditions on funding and fora that is based on this state action baseline. In the conditions on benefits and fora cases ahead, these observations may offer courts greater insight to the legal and practical complexities involved, as well as a new model for analyzing them.

2. Iain T. Benson (University of the Free State - Faculty of Law, Department of Constitutional Law and Philosophy of Law), Living Together with Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today , published in The Ronning Centre Forums II, 2010. The abstract states:

The Canadian approach to a pluralistic society has frequently overlooked the important role religion plays in the lives of its citizens. This paper argues that the current Canadian approach to religious pluralism too often attempts to impose a single, unitary construct of nonreligious social norms. Secularism, as a movement, cannot be neutral with respect to religion – the exclusion of religion from the public square threatens to undermine a key component of many citizens’ identities, their freedom of religion. This paper, building upon earlier work of the author, argues for a definition of “secular” that keeps religion and the state jurisdictionally separated, but that does not preclude cooperation and mutual understanding between these two spheres. Canadian society, in common with all properly liberal and open constitutional societies, must grow to accept and tolerate disagreements about differing beliefs. The ultimate goal of this new approach is to create a modus vivendi, a society in which individual and communal differences are accepted and embraced rather than one in which law and politics are viewed as building towards forced “agreement” or “convergence.” Also discussed is the idea of sexual dogma which the author suggests should be treated like religious dogma in which no one view of sexual conduct or sexual orientation should be accorded official public support in a plural society.

3. Marc R. Poirier (Seton Hall University - School of Law), The Multiscalar Geography of Hate Crimes. The abstract states:

This paper develops a theoretical analysis of hate crimes in light of some core concepts of legal geography – physical place, discursive space, scale, territory, and citizenship. It argues that bias crimes and reactions to them, including the possibility of state counterviolence, constitute a dynamic and ongoing dialogue that constructs territory and citizenship around marked bodies, buildings, and other physical structures, whose visible presence in specific places is visibly threatened. It introduces the concept of ubiety – having whereness or place – as a characteristic that distinguishes bias crimes from hate speech. Hate crimes engage both physical place and discursive place. So do governmental and community responses to bias crimes. Because bias crimes and the reaction to them always involve competing claims around the safety and security of bodies and things in physical places, the dialogue they engender can occur at different scales. These include the neighborhood, city and country, but also, as feminist theory teaches us, the supposedly “private” space of the home. The discursive aspect of hate crimes is likewise multiscalar, depending in part on the interests of the media that notice and disseminate dialogue about hate crimes. Finally, inasmuch as citizenship often implicates a sense of belonging or exclusion that can involve the physical body, bias crimes and responses to them can be understood as an integral component of the processes of defining citizenship. In considering these related themes, this paper will draw its examples primarily from the world of violence against LGBT folk, where issues of place have been less often examined than in parallel considerations of bias crimes based on race, ethnicity, alienage, religion, and gender.

4. Peter Henne (Georgetown University), The Two Swords: Religion-State Connection and Interstate Disputes , APSA 2010 Annual Meeting Paper. The abstract states:

Beginning with the 1979 Iranian Revolution, religion has come to be accepted as a relevant element of international relations. Yet, for every example of religion driving a state’s behavior, numerous counterexamples exist. What explains this variation in the effects of religion on state behavior? Existing studies of religion and international relations, while useful, focus too exclusively on demonstrating its relevance or analyzing religion as an identity; more attention is needed to the political and institutional conditions under which it comes to influence state behavior, especially in interstate crises. This paper approaches religion as a type of domestic politics, whose influence over crisis behavior depends on two factors: the extent of institutional connections between religion and state, and the level of these connections in the other parties to the dispute. It tests this theory through a quantitative analysis of interstate disputes since 1990. This paper contributes to the study of religion by moving beyond a focus only on religious identity; it also contributes to the broader study of interstate crises, by demonstrating the relevance of both material and ideational factors 

5. Kristine S. Knaplund (Pepperdine University School of Law), Charity for the 'Death Tax': The Impact of Legislation on Charitable Bequests, published in 45 Gonzaga L. Rev. --- (2009/10). The abstract states:

The national debate over the federal estate tax has caused fear in American charities over the past ten years, a fear that is likely to continue for the foreseeable future. Since Congress acted in 2001 to repeal the “death tax” for one year, for decedents dying in 2010, charities and individuals have become increasingly concerned about the impact of a repeal on charitable donations. While only a small percentage of charitable gifts come in the form of gifts at death, these few but generous incidents in fact amount to billions of dollars, and are imperative to the operation of our charities. Today, the vast majority of estates are already exempt from the tax. If the estate tax is repealed, or, as widely expected, the exemption simply remains at the current $3.5 million, will those testators exempt from the estate tax in turn exempt charity from their estates?

Legal literature has addressed many of the factors that affect whether a testator gives to charity, including tax laws, the economy, the individual decedent’s wealth, the family members the decedent leaves behind, and the financial status of each. This article will focus on one factor that has been, thus far, largely ignored: state laws that impede gifts to charity at death. While true mortmain statutes are rare in the U.S., such impediments do still exist and must be examined in order to fully appreciate the impact on charitable donations.

Part I of this article discusses the federal estate tax enacted in 2001 and the potential impact on charities if a repeal is made permanent. Part II traces the history of federal estate tax law and charitable exemptions or deductions and contrasts the federal law with state limitations on charities, especially churches, and testators by examining four types of state statutes that serve as impediments to charitable giving: state laws designed to protect testators from overreaching by charities; state laws designed to protect testators’ families from a testator who is giving away too much; state laws designed to raise revenue from taxing charities; and true mortmain statutes, which limit the amount or value of property a charity can hold. Part III looks at our current laws, beginning with the Revenue Act of 1916, to see how many of these state laws still exist. Part IV concludes the article with a prediction of charitable donations in the future.

6. Kent Roach (University of Toronto - Faculty of Law), Entrapment and Equality in Terrorism Prosecutions: A Comparative Examination of North American and European Approaches, forthcoming in Mississippi Law Journal. The abstract states:

The entrapment defense is no longer peculiarly American and has been recognized in Britain, Canada and by the European Court of Human Rights. This article provides a comparative analysis of North American and European approaches with a focus on the application of entrapment defenses to proactive terrorism investigations. The first part briefly reviews the leading entrapment decisions in the American federal system, in Canada, in England and in the European Court of Human Rights. The second part of this paper evaluates the ability of different approaches to entrapment to detect and disapprove of discriminatory targeting of the accused in terrorism investigations. It suggests that all the entrapment defenses to various degrees allow the accused to argue that they are the victims of a discriminatory targeting decision that it is motivated by the political and religious beliefs of the accused rather than whether they will commit a crime involving terrorism. The third part of this paper explores the future evolution of entrapment defenses in light of the possible impact of terrorism cases. Although the terrorist context will likely give the state more leeway in how proactive stings are conducted, the state’s initial decision to target the accused should be carefully examined by the courts in all the jurisdictions examined in this article. Courts should be cautious about allowing the accused to be targeted for intrusive strings simply on the basis of their association with places of political or religious extremism. In the long run, requiring the state to have reasonable suspicion or to establish a predisposition to commit a terrorist crime will bolster the legitimacy of applying the criminal sanction to terrorists.

7. Christina Bohannan (University of Iowa - College of Law), Taming the Derivative Works Right: A Modest Proposal for Reducing Overbreadth and Vagueness in Copyright , 12 Vand. J. Ent. &Tech L. 699 (2010). The abstract states:

The Supreme Court recently decided United States v. Stevens, a case challenging the constitutionality of a federal statute that punishes commercial depictions of animal cruelty, such as videos of dog fights. Concluding that the statute prohibited a good deal of speech that was unrelated to eradicating illegal animal cruelty, the Court held that the statute was substantially overbroad and therefore invalid under the First Amendment.

This case and other First Amendment cases help to shed light on the problems of overbreadth and vagueness in copyright law, particularly the derivative works right. The copyright holder’s derivative works right prohibits others from making any work “based upon a copyrighted work” that “modifies, transforms, or adapts” the copyrighted work in any way. Because all new expression must necessarily borrow from existing expression to some degree, the derivative works right sweeps a good deal of speech within its prohibition. While the fair use doctrine purports to protect some of this new expression, fair use is vague and unpredictable in application, particularly when it intersects with the derivative works right. Further, the doctrine can be asserted only after a speaker has risked an infringement claim.

This Article compares the Copyright Act to a variety of other provisions that limit speech and demonstrates considerable overbreadth and vagueness in the scope of copyright protection. It argues for a narrowing interpretation of copyrights that will substantially mitigate these First Amendment concerns.

8. Deana Pollard-Sacks (Texas Southern University - Thurgood Marshall School of Law), Negligent Speech Torts. The abstract states:

Recent research on the effects of violent media on children has elevated longstanding controversy over civil liability for speech to a new level. Negligent Speech Torts reviews and challenges prevailing negligent speech jurisprudence and proposes wholesale reform to the rules governing civil liability for unreasonably dangerous speech. The prevailing Brandenburg incitement test is inapposite as applied to modern dangerous speech cases and should be replaced by a “constitutionalized” negligence paradigm to reconcile First Amendment and tort policies. The Supreme Court has “constitutionalized” various other speech torts – such as defamation, privacy, and emotional torts – by raising the prima facie case evidentiary requirements to meet First Amendment scrutiny. The same evidentiary tailoring approach should be used to constitutionalize the tort of negligence, to allow limited liability where fault and causation can be established to a level of First Amendment satisfaction. An analytical paradigm derived from the Supreme Court’s speech tort precedent is proposed to replace existing negligent speech liability rules, and the proposed paradigm is illustrated by reference to the contemporary problem of violent video games and children.

9. Gabriel Gillett, Note - A World Without Internet: A New Framework for Analyzing Supervised Release Conditions that Restrict Computer and Internet Access , 79 Ford. L. Rev. --- (2010).  The abstract states:

This Note explores whether a condition of supervised release that restricts computer or internet access violates the theory of unconstitutional conditions. While Courts of Appeals have been inundated with myriad cases challenging the validity of these restrictions, and a split has developed regarding the scope of a permissible restriction, no court has yet viewed these limits through the lens of unconstitutional conditions. This Note begins by setting the scene for discussion of the First Amendment and the theory of unconstitutional conditions, tracing their respective developments in cases relating to prisoners, speech, and the age of the internet. Next, it synthesizes the oft-criticized unconstitutional conditions doctrine into a new three-prong framework, judging the propriety of a condition based on the government’s coerciveness in making the offer, purpose for pursuing the condition, and the condition’s effect on protected speech. Finally, this Note concludes that a condition is constitutional where it is accepted knowingly and voluntarily, is intended to protect the public rather than regulate speech indirectly, and where computer-monitoring and internet-filtering technology is used to minimize First Amendment infringement.

JFB

First Amendment Scholarship Update

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

1. Joseph Blocher (Duke Law School), Government Property and Government Speech. The abstract states:

The relationship between property and speech is close but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of “property” do speakers need to have – physical things, bundles of rights, or something else entirely?

In the context of government property and government speech, the ill-defined relationship between property and speech creates a massive but underappreciated theoretical and doctrinal problem, that threatens the very existence of the public forum. The arc of First Amendment jurisprudence, particularly as manifested in public forum doctrine, has been towards limiting the government’s right to exclude unwanted private speakers. Government speech doctrine, however, effectively reinvigorates the government’s right to exclude unwanted speakers by transforming speech regulations into governmental expressive conduct, which under current government speech doctrine is entirely exempt from constitutional review. The government can therefore invoke not only its property rights, but the expressive nature of their exercise.

Something has to give. Either not all property is expressive, or else not all expressive uses of government property are government “speech” exempt from constitutional scrutiny. Part I of this Article explores the first of these propositions, arguing that the relationship between speech and property requires a more nuanced treatment than it has heretofore received, and that property – whether conceived of as a thing, a legal entitlement, or a social relationship – both enables and is expression. But, as Part II of the Article shows, that conclusion cannot easily be extended into the context of government property and government speech. In government property/government speech cases such as Town of Pleasant Grove v. Summum, the question should be whether the government has the right to exclude unwanted speakers, not whether the exercise of such a right (assuming the government has it) is expressive. And the best way to answer the correct question is by looking not to formal property rights, but to social understandings of property.

2. Joseph Blocher (Duke Law School), Government Viewpoint and Government Speech. The abstract states:

Government speech creates a paradox at the heart of the First Amendment. In order to satisfy traditional First Amendment tests, the government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids – viewpoint discrimination against private speech. This is both a theoretical puzzle and an increasingly important practical problem. In cases like Pleasant Grove City v. Summum, the City’s disagreement with a private message was the heart of the successful government speech claim. Why is viewpoint discrimination flatly forbidden in one area of First Amendment law and entirely exempt from scrutiny in another? This Article explores that question and why it matters, and suggests ways to reconcile these apparently incompatible principles.

3. Jonathan H. Adler (Case Western Reserve University School of Law), Labeling the Little Things. The abstract states:

Nanotechnology processes and nanoscale particles are widely used in consumer products. Yet relatively few products containing nanomaterials reveal this fact on the product label. Is this a problem? The use of nanotechnology in consumer products has many potential benefits, but it may also pose unforeseen risks. There is as yet no definitive evidence that nanoscale materials used in consumer products pose a threat to human health, but such risks may still exist. Do such risks justify mandatory labeling requirements? Mandatory labels would not reduce the threat posed by the use or disposal of nanotech products, but could increase consumer awareness and empower concerned consumers to limit their exposure. Properly designed product labels can help consumers manage their exposure to risky or unproven products without unduly inhibiting consumer preferences generally. On the other hand, poorly developed labeling requirements could frustrate market responses to changes in scientific understanding or consumer preferences, impose unnecessary costs on manufacturers, and fail to address marketplace inefficiencies. In the United States, mandatory labeling requirements also raise potential First Amendment concerns. Before adopting a mandatory labeling requirement, policymakers should consider whether mandatory labels are necessary, or whether voluntary labeling regimes may be superior, with or without government assistance.

4. Matthew Mazzotta ,Balancing Act: Finding Consensus on Standards for Unmasking Anonymous Internet Speakers, 51 B.C. L. Rev. 833 (2010). The abstract states:

The growth in popular use of the internet has led to a dramatic increase in both the amount of anonymous speech and the number of aggrieved plaintiffs claiming to be harmed by it. Lawsuits involving anonymous internet speech present thorny questions for courts because plaintiffs typically must obtain the identity of anonymous speakers during discovery before any adjudication of the underlying claim. Compelled disclosure of identifying information thus risks chilling speech by subjecting anonymous speakers who have done nothing illegal to unwarranted harassment and retaliation. In response to these concerns, courts have formulated “unmasking” standards for determining when to allow anonymous speakers to be identified. This Note examines trends within various unmasking standards and proposes a single standard for future courts that requires notice, an evaluation on the merits of the plaintiff’s claim, and a balancing of the First Amendment rights of the anonymous speaker against the strength of the plaintiff’s claim and the need for unmasking.

5. Matthew J. Wilson (University of Wyoming - College of Law), E-Elections: Time for Japan to Embrace Online Campaigning.The abstract states:

Asia has embraced the Internet and social media. Japan and South Korea rank among the world’s leaders in technological innovation and Internet penetration. China boasts over 420 million Internet users, and other Asian countries have experienced the widespread acceptance of online technologies. With the rapid ascendency of the Internet and social media, however, Asian countries have sometimes struggled with striking the proper balance between individual rights and the legal regulation of online activities. One prime example of such struggle involves the clash between Japan’s election laws and individual political freedoms.

Although Japan generally subscribes to democratic traditions and the principle of limited Internet restriction, its election law effectively prohibits virtually all online campaigning by candidates, political parties, and voters during its official campaigning period. Japan’s election law demands that all political actors forgo the low-cost, speedy, and popular communication, information, and political advocacy tools available on the Internet during the most critical time of an election campaign. The election law also restricts voters from engaging in online grassroots activities and fully participating in the political process. In recent years, an increasing number of actors in the Japanese political process have called for the right to freely express themselves in an online environment during all phases of the election process. Notwithstanding, Japan continues to maintain its ban on Internet electioneering.

Legal considerations and political realities dictate the complete elimination or partial relaxation of Japan’s stringent restrictions on Internet electioneering. In advocating such change, this article analyzes the competing concerns between Japan’s current election laws and individual political freedoms. Additionally, it examines the relevant legal arguments, cultural considerations, and other factors that support the adoption of online campaigning. It also examines how current laws are generally adequate to address the dangers associated with unrestricted online campaigning.

6. Rebecca Tushnet (Georgetown University Law Center), I Put You There: User-Generated Content and Anticircumvention, 12 Vand. J. Ent.& Tech. L. 889 (2010). The abstract states:

This Article discusses recent rulemaking proceedings before the Copyright Office concerning the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). During these proceedings, non-institutionally affiliated artists organized to assert their interests in making fair use of existing works, adding new voices to the debate. A proposed exemption for noncommercial remix video is justified to address the in terrorem effect of anticircumvention law on fair use. Without an exemption, fair users are subjected to a digital literacy test combined with a digital poll tax, and this regime suppresses fair use. The experience of artists (vidders) confronting the law illustrates both the perils of modern copyright lawmaking and the promise of greater artistic involvement and advocacy. Vidders and other fair users can use the rulemaking process to achieve at least partial access to the power of the law by forcing policymakers to confront the people whose speech is threatened by ever-greater copyright protection.

7.  William H. Dutton (Oxford Internet Institute, University of Oxford), Anna Dopatka (The Free Hanseatic City of Bremen, Germany), Michael Hills , Ginette Law and Victoria Nash (University of Oxford - Oxford Internet Institute), Freedom of Connection - Freedom of Expression: The Changing Legal and Regulatory Ecology Shaping the Internet. The abstract states:

Over the first decade of the 21st Century, the Internet and its convergence with mobile communications has enabled greater access to information and communication resources. In 2010, nearly 2 billion people worldwide – over one-quarter of the world’s population – use the Internet. However, during the same period, defenders of digital rights have raised growing concerns over how legal and regulatory trends might be constraining online freedom of expression. Anecdotal accounts of the arrests of bloggers, the filtering of content, and the disconnection of users have sparked these concerns. However, they are reinforced by more systematic studies that provide empirical evidence of encroachments on freedom of expression, such as through the increased use of content filtering.

This report provides a new perspective on the social and political dynamics behind these threats to expression. It develops a conceptual framework on the ‘ecology of freedom of expression’ for discussing the broad context of policy and practice that should be taken into consideration in discussions of this issue. This framework structures an original synthesis of empirical research and case studies of selected technical, legal and regulatory trends. These include developments in six inter-related arenas that focus on: technical initiatives, related to connection and disconnection, such as content filtering; digital rights, including those tied directly to freedom of expression and censorship, but also indirectly, through freedom of information, and privacy and data protection; industrial policy and regulation, including copyright and intellectual property, industrial strategies, and ICTs for development; users, such as focused on fraud, child protection, decency, libel and control of hate speech; network policy and practices, including standards, such as around identity, and regulation of Internet Service Providers; and security, ranging from controlling spam and viruses to protecting national security.

By placing developments in these arenas into a broad ecology of choices, it is more apparent how freedom can be eroded unintentionally as various actors strategically pursue a more diverse array of objectives. The findings reinforce the significance of concerns over freedom of expression and connection, while acknowledging countervailing trends and the open future of technology, policy and practice. Freedom of expression is not an inevitable outcome of technological innovation. It can be diminished or reinforced by the design of technologies, policies and practices – sometimes far removed from freedom of expression. This synthesis points out the need to focus systematic research on this wider ecology shaping the future of expression in the digital age.

8. Thaddeus Mason Pope (Widener University Law School - Health Law Institute), Legal Briefing: Conscience Clauses and Conscientious Refusal , 21 Journal of Clinical Ethics 163 (2010). The abstract states:

This issue’s “Legal Briefing” column covers legal developments pertaining to conscience clauses and conscientious refusal. Not only has this topic been the subject of recent articles in this journal, but it has also been the subject of numerous public and professional discussions. Over the past several months, conscientious refusal disputes have had an unusually high profile not only in courthouses, but also in legislative and regulatory halls across the United States.

Healthcare providers’ own moral beliefs have been obstructing and are expected to increasingly obstruct patients’ access to medical services. For example, some providers, on ethical or moral grounds, have denied: (1) sterilization procedures to pregnant patients, (2) pain medications in end-of-life situations, and (3) information about emergency contraception to rape victims. On the other hand, many healthcare providers have been forced to provide medical treatment that is inconsistent with their moral beliefs.

There are two fundamental types of conscientious objection laws. First, there are laws that permit healthcare workers to refuse providing – on ethical, moral, or religious grounds – healthcare services that they might otherwise have a legal or employer-mandated obligation to provide. Second, there are laws directed at forcing healthcare workers to provide services to which they might have ethical, moral, or religious objections. Both types of laws are rarely comprehensive, but instead target: (1) certain types of healthcare providers, (2) specific categories of healthcare services, (3) specific patient circumstances, and (4) certain conditions under which a right or obligation is triggered.

For the sake of clarity, I have grouped recent legal developments concerning conscientious refusal into eight categories: (1) abortion: right to refuse; (2) abortion: duty to provide; (3) contraception: right to refuse; (4) contraception: duty to provide; (5) sterilization: right to refuse; (6) fertility, HIV, vaccines, counseling; (7) end-of-life measures: right to refuse; and (8) comprehensive laws: right to refuse.

9. Iain T. Benson (University of the Free State - Faculty of Law, Department of Constitutional Law and Philosophy of Law), Is Canada Moving Towards or Away from Religious Inclusivity in the Public Sphere?, presented at Religion in the Public Square in Canada Conference, 2010. The abstract states:

In recent years, the Canadian judiciary has played an increasingly prominent role in determining the place of religion in the public sphere. Some of their decisions have led to greater religious inclusivity, while some have led to an increasing marginalization of religious communities. This paper examines the impact of some of these decisions on the public dimension of religious life. It considers the role of freedom of religion, equality, faith and belief in the lives of both religious and nonreligious citizens. It argues that the role of law is not to promote a single, monolithic conception of citizenship, but instead to foster a diverse and tolerant multicultural society that protects the sanctity of its citizens’ beliefs. Consequently, the public sphere may be best understood as a realm of competing belief systems, all of which must be accorded proper respect.

10. Iain T. Benson (University of the Free State - Faculty of Law, Department of Constitutional Law and Philosophy of Law) Living Together with Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today Published in The Ronning Centre Forums II, 201. No abstract available.

11. SpearIt (Saint Louis University School of Law), Gang Intervention in the United States: Legal and Extra-Legal Attempts at Peacemaking, forthcoming in PEACEMAKING: A COMPREHENSIVE THEORY AND PRACTICE REFERENCE, Andrea Bartoli, eds., Praeger Security International. The abstract states:

This chapter examines strategies for gang intervention in the United States. In addition to legalistic interventions in criminal justice, the forces of music, religion, and gang culture itself have all helped to broker peace in the annals of American gang history. Although such peacemaking efforts have proven influential, intervention efforts are shadowed by these very brokers, who can just as easily promote the antithesis of peacemaking. Criminal justice intervention has proven suspect in communities where police brutality and racial profiling is systemic. Likewise, music and religion can complicate peacemaking efforts, and beyond, provide justification for violence and other divinely willed destruction. These legal and cultural dynamics render “intervention” a concept whose goals can be undermined by forces that glorify gangs and promote violence. The chapter concludes by commenting on prospects for peacemaking through intervention efforts. Largely a note of caution, this part attempts to temper faith in intervention strategies since, among other reasons, the very forces propagating peace can as easily provoke violence. Potential for peacemaking is further complicated by criminal justice policies at both federal and state levels. Some of the war in gangland is due to inflammation by government policies which directly contribute to increased gang membership and activity. Finally, in addition to these obstacles, intervention strategy must contend with prison gangs and how they factor into peacemaking on the streets. The role of prison gangs has been an overlooked ingredient for long-term interventionist success, yet it may be that peacemaking is possible only under an arrangement that works in tandem with prison gangs. This proposition is not a capitulation to collusion with criminals, but the reality of how prison gangs have the power to disrupt any interventionist strategy at will, the acknowledgment of which might lead to more effective strategies in gang intervention based on a more holistic understanding of the gang problem.

12.  SpearIt (Saint Louis University School of Law), Spreading the Faith: Music and Culture , forthcoming in MUSLIMS IN U.S. PRISONS, Nawal Ammar, ed., Lynne Rienner Publications. The abstract states:

This chapter argues that prison and hip hop culture are major factors in the popularity and growth of Islam in the United States. The connections among Islam, prisons, and hip hop culture are profound, and all three share a deeply intertwined history; the more one studies Islam in the U.S., the student will be led to the powerful sanctuaries of prisons and hip hop culture, where Islam’s presence is pronounced. This work combines textual analysis of musical cultural productions and scholarly research on prison culture to show hip hop and prison culture as two primary sites of religious conversion. In these cultural spheres, Islam has found a steady stream of new recruits which contribute to Islam as the fastest growing religion in the United States.

13.  Ori Aronson (Harvard Law School), Out of Many: Military Commissions, Religious Tribunals, and the Democratic Virtues of Court Specialization, 52 Va.J. Int'l L. --- (2010). The abstract states:

The culture wars of the post-9/11 era have implicated legal systems in multiple ways. The article surveys two such recent episodes, in which questions of institutional design of judicial forums invoked heated disputes regarding the purposes and limits of judicial power in a liberal democracy. The first episode is the ongoing controversy over the legitimacy of military commissions as the forum for trying terrorism suspects in the U.S. The second episode is the failed attempt to award recognition and accommodation to religious (specifically Islamic) tribunals as family arbitration mechanisms in the Canadian province of Ontario. Both episodes seemed to present similarly extreme challenges to the ideal of the ‘rule of law,’ which is largely understood to lie at the core of any legitimate dispensation of judicial power.

The article seeks to recontextualize the two cases – military commissions and religious tribunals – as instances in a general institutional trend of court specialization: the diffusion of court forums into multiple units of disparate jurisdictional breadth, professional expertise, and institutional culture. While the pervasive phenomenon of court specialization – usually assessed in terms of institutional efficiency or interest-group politics – is subject to some effective critiques from the rule of law, the article offers a series of arguments from liberal democracy that justify proliferating and diversifying the institutional field of judicial power by way of specialization. When viewed from an overall systemic perspective, jurisdictional multiplicity and diversity are shown to have the potential to promote democratic values of deliberation, pluralism, access, transparency, and accuracy in legal discourse.

Once the democratic virtues of court specialization are acknowledged, the disputes over military and religious adjudication are revealed to warrant a more nuanced treatment than current debates have allowed. Further, institutional variations that would realize the benefits of specialization and contain its costs for the rule of law – primarily by establishing modes of interaction among diverse court units – are shown to be available, and are briefly explored. It is there that the discussion over court specialization ought to be heading.

14.  Mark L. Movsesian (St. John's University School of Law),  Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence, forthcoming in Seton Hall Law Review. The abstract states:

This essay, a contribution to a symposium on Religious Legal Theory, compares Islamic and Christian conceptions of law and suggests implications for contemporary debates about religious dispute settlement. Both Islam and Christianity begin with faith, but they express that faith differently – and the difference relates to law. In Islam, a comprehensive body of law, fiqh, sacralizes daily life and connects believers to God. In Christianity, by contrast, law serves an auxiliary function; it is facilitative, not constitutive, of believers’ relationship to God. Moreover, unlike classical fiqh, canon law has a limited scope and is not exegetical. This essay explores these differences and shows how they influence the ways in which Muslims and Christians view religious tribunals today, as evidenced by recent controversies over Islamic family and commercial law arbitration in Canada and the United Kingdom.

15. Suleyman Elik (Durham University), Controversies Over the Spread of Iranian Shi’Ite Influence in Egypt: Sixth of October City. The abstract states:

Since the Islamic revolution, Arab states have failed to limit Iran’s religious influence in the Arab public sphere which has dramatically polarised the “Arab Street.” Iran’s regional strategy is aimed at using the Palestinian issue as a political card and playing a key role in both Iraqi and Afghan issues. The backlash and failure of Nasser’s Pan-Arabism policy gave Iran a host of new tools, including cooperation, co-optation, as well as ideological and financial means, which had been especially effective in the Levant but are now manifesting themselves in Sixth of October City, Egypt. Iran’s another political card is Shi’a used for the strategy of obtaining of influence to gain a foothold, mobilized powerful clerical opposition and the state-controlled media campaign, especially in Egypt. Iran’s regional policy also introduces certain advantages for negating strategy such as allowing Tehran to create a diversion from its nuclear programme or to block Anglo-U.S. projects in Iraq. Egypt considers the Iranian-Shi’a-Hezbollah relationship as a way of actively engaging the American and Israeli strategy of containment that will be changing the balance in the region. The regional instability strategy of the Iranian regime, in terms of IRGC, appearing as so called ‘covert activities’ in Sixth of October City brings a new dimension to Iranian-Egyptian relations as well as the wider Middle East. In connection with IR theory, this article investigates how the regional strategy of Iran in a small province of Egypt provide a global security scope, as well as the relative impact of the U.S. regional strategy in the securitizing of the domestic politics of Arab regimes. This article does not aim to demonstrate anti-Shia or anti-Iranian sentiment but check the rational and sociatical basis of Arab national security perspective against Iranian influence in the region.

16. T. John O'Dowd (UCD School of Law), Remembering the Constitution: The Easter Proclamation and Constitutionalism in Independent Ireland .The abstract states:

The phrase “cherishing all the children of the nation equally” in the Proclamation of the Republic in 1916 - understood as referring to the rights and the welfare of actual children - is one that has unparalleled resonance in political, legal and social debates in contemporary Ireland, particularly in the light of the long-standing systematic abuse of children that has been brought fully to light in recent years. The power of the phrase is illustrated by the fact that it has been proposed by an Oireachtas committee as the keystone of a new Article in the Constitution dealing with children’s rights. This rhetorical force seems immune to demonstrations that the phrase was intended by its authors in a metaphorical sense, as a reference to different religious and political identities on the island of Ireland. Other, similar, programmatic statements in Irish constitutional history, such as the Democratic Programme of Dáil Éireann (1919) and the Directive Principles of Social Policy contained in Bunreacht na hÉireann (1937), have never captured the public imagination in the same way. In regard to the latter, a sharp contrast can be drawn between the Directive Principles of Social Policy and the Directive Principles of State Policy contained in the Constitution of India (1950). Whereas the Irish directive principles languish in obscurity, the Indian directive principles are a frequent point of reference in legal and political argument and channel aspirations for a better, more just society just as, in a more limited fashion, the rhetoric of the Proclamation does in Ireland. This contrast prompts reflection on the power of what ordinary citizens imagine the constitution under which they live to provide and to aspire to and the different roles which constitutions play in the creation and maintenance of national identity. The nature of the “constitutional faith” which is thus manifested is a topic of renewed interest in Ireland, at a time of lively debate as to whether the constitution needs to be renewed and as to what role the rhetorical tropes of the Proclamation should play in that process.

JFB

 

Global Free Speech Update

 

 

Malaysia:  protests marked the fiftieth anniversary of the Internal Security Act, an anti-communist measure passed in the 1960s that allows for virtually limitless detention without trial on quite meager grounds of suspicion. Predictably, dozens of protesters were arrested and charged with violating the ISA.

United States:  a federal judge dismissed a group of Texas cities from a lawsuit challenging the state’s open meeting laws. The judge ruled that municipalities do not enjoy First Amendment protection as such, and that the rationale for extending free speech rights to private corporations in Citizens United does not carry forward where public municipalities are concerned.

Somalia:  journalists are calling on the newly elected government to put forth a media reform bill that would liberalize broadcast licensing criteria, ensure judicial independence, and clamp down on violence and threats against journalists and broadcasters. Link here to the 2008 Media Sustainability Index Report for Somalia.

Europe:  The OSCE Representative on Freedom of the Media released it’s first regular report to the OSCE council in July. The report takes note of media developments in several OSCE states, and promises to give more attention to "the digital switchover in broadcasting and matters related to New Media."

-Kathleen Bergin

First Amendment Scholarship Update

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

1. Anita L. Allen  (University of Pennsylvania Law School ),Veiled Women in the American Courtroom: Is the Niqab a Barrier to Justice? . The abstract states:

U.S. courts and policy-makers have recently authorized laws and practices that interfere with the wearing of religious modesty attire that conceals the hair or face in contexts such as courtroom testimony or driver’s license issuance. For example, in response to a court’s dismissal of the case of a woman who refused to remove her niqab in the courtroom, the Michigan Supreme Court decided that judges can exercise “reasonable control” over the appearance of courtroom parties. But what degree of control over religious attire is reasonable? The Constitution will not allow a blanket niqab removal policy based on any of the following needs: to judge demeanor or veracity, to identify witnesses, to compel accountability, or to identify and avert bias. Where the state’s interest in niqab removal is truly compelling, for the sake of religious free exercise it should be protected in the least restrictive manner. I argue that because Muslim women who wear the niqab in the courtroom are neither disruptive nor an affront to the dignity of the court, their religious freedom to dress modestly should be accommodated in straightforward and available ways.

2. Siobhan Mullally  (University College Cork), Religion in Ireland's 'Public Squares': Education and the Family, forthcoming in Public Law. The abstract states:

The place of religion in the public sphere in Europe has attracted significant commentary and debate in recent years. In a post-secular age, it is argued, Europe’s ‘faltering project’ must recognise the significance of religion and the role that religious discourse can play in democratic debate. In Ireland, religious discourse has often played a contentious role in debates on the meaning and scope of fundamental rights. Although the 1937 Constitution, Bunreacht na hÉireann, did not provide for any established Church, and explicitly protected religious freedom, a conservative Catholic ethos permeated much of the constitutional text. Given its distinct historical traditions, and the religious ethos that permeates the constitutional text, it is not surprising that religious discourse has long had a role in the public sphere in Ireland. That role, however, is changing and continues to be contested.
Recent developments on the role of religion in public education, and on changing family forms, have raised questions as to the limits of religious claims and the potential for conflict with equality guarantees. Reflecting the increasing religious diversity within the State, Ireland has had its own ‘headscarf’ controversy. The legal and policy responses to this controversy reflect the distinct role that religion and religious orders have played in education in Ireland to date. Religious claims have also arisen in legislative debates on the legal recognition of same sex partnerships, challenging the State’s commitment to non-discrimination, on grounds, inter alia, of gender, sexual orientation, and religion. This article explores these developments, and suggests that human rights norms may assist in moving towards a contingent embrace of post-secularism, skipping along the way, a more comprehensive encounter with secularism.

3. Feler Bose  (Alma College ), Environmentalism and Religion: Substitutes or Complements? . The abstract states:

Religion plays an important role in the lives of people. The question that needs to be asked and answered is whether environmentalism is a religion. To answer the question, this paper uses a new dataset to examine the relationship between membership in environmental groups and the percent evangelical in a state and second between membership in environmental groups and the adherence rate to a religion. The relationship for both models is negative and statistically significant after controlling for the relevant variables. This suggests that environmentalism is a substitute for religion.

4.  Robert C. Blitt  (University of Tennessee College of Law ) , One New President, One New Patriarch and a Generous Disregard for the Constitution: A Recipe for the Continuing Decline of Secular Russia.  The abstract states:

The government of Russia and the Russian Orthodox Church (ROC) - the country’s predominant religious group - recently underwent back-to-back changes in each institution’s respective leadership. This coincidence of timing affords a unique opportunity to take a fresh look at the status of constitutional secularism and church-state relations in the Russian Federation.

Following a discussion of the presidential and patriarchal elections that occurred between March 2008 and January 2009, the article surveys recent developments in Russia and assesses their impact on the nation’s constitutional obligations. In the face of this analysis, the article argues that the government and the ROC alike continue to willfully undermine the constitutional principles of secularism, nondiscrimination, and equality through a variety of special privileges, cooperation agreements and legislative initiatives. Further, it contends that these practices do not merely follow but rather deepen the pattern previously developed under the leadership of former President Vladimir Putin. The article concludes that as a consequence of the strengthened church-state relationship, respect for freedom of thought, conscience and religion or belief, and freedom of expression will likely continue to wane, resulting in a further deterioration of the human rights crisis in Russia and of the foundation of Russia’s constitutional order.

5.  Carmel Ullman Chiswick  (University of Illinois at Chicago - Department of Economics), How Economics Helped Shape American Judaism. The abstract states:

This chapter discusses the strong impact of economic forces, and changes in the economic environment, on American Jewish observance and American Jewish religious institutions in the 20th century. Beginning with the immigrants' experience of dramatic economic change between the old country and the new, it focuses on how this affected differences between European and American Jewish practices during the first half of the twentieth century. Equally dramatic upward economic mobility had implications for additional changes during the second half of the century. These were manifested by the development of distinctively American patterns of Jewish education. The relationship between Jewish education in the United States and the other major branches of World Jewry is discussed from an economic perspective. The economic underpinnings of religious intermarriage and assimilation are reviewed. A concluding section forecasts the future of American Judaism and Jewish observance in the coming decades. 

6.  SpearIt (Saint Louis University School of Law),  Criminal Justice & Religion, published in RELIGION AND EVERYDAY LIFE AND CULTURE, p. 657, Vincent F. Biondo &, Richard D. Hecht, eds., Praeger, 2010. The abstract states:

This chapter examines the relationship between criminal justice and religious traditions in the U.S. It outlines a general framework to illuminate the historical tensions between criminality and religious tradition. It further argues that even though the notion of “separation of church and state” is held in high esteem, in practice, history shows that Christian ideals can be linked to the very foundations of American law. The criminal justice system is no exception, and the impacts of Christianity can be seen from the very beginning of its development. In turn, the criminal justice system has played an influential role in the history and day to day realities of religious practitioners and their communities. As home to the largest prison population in the world, this chapter reveals the U.S. criminal justice system is a key factor in the religious practice of many.

7. Farrah Ahmed, The Value of Faith, forthcoming in Religion, State & Society. The abstract states:

Commentators on religious freedom disagree on the rationale for its protection. This question of why we protect religious freedom is important because it influences the manner and scope of the protection of religious freedom by the state. The legal philosopher Timothy Macklem argues, in line with some fideistic approaches to the study of religion, that the value of ‘faith’ – of belief without reason to believe – justifies the protection of religious freedom. This paper offers a critique of Macklem’s account. It argues that this account is inconsistent with a correct view of the nature of reasons, that it over-estimates the circumstances in which faith is valuable, that it fails to adequately consider the connections between faith and false beliefs and that its conclusions imply a much weaker protection of religious freedom than is common in liberal states. This paper also indicates aspects of faith that are valuable, beyond those discussed by Macklem. It is hoped that it will contribute to the debate on the value of faith as well as the broader debate on the justification of religious freedom.

8. Julie A. Oseid  (University of St. Thomas School of Law -Minnesota), The Power of Metaphor: Thomas Jefferson's 'Wall of Separation between Church & State' , 7 Journal of the Association of Legal Writing Directors --- (2010). The abstract states:

Some metaphors are so powerful that they remain the quintessential description of an abstract and complex ideal, despite attacks on their accuracy or helpfulness. This article examines one such powerful metaphor: Thomas Jefferson’s metaphor describing the First Amendment religion clause as “building a wall of separation between Church & State.” Perhaps no metaphor about church-state relations has been more powerful, more controversial, or more lasting.

This Article has several goals: to examine how Jefferson’s understanding of metaphor differed from the modern understanding of the use of metaphor in a legal context, to study how Jefferson came to use the “wall of separation” metaphor, to consider how the metaphor developed into a doctrinal metaphor substituting for the language and meaning of the First Amendment religion clause, and to glean lessons for legal writers from Jefferson’s “wall of separation” metaphor.

9. Simon Butt (University of Sydney - Faculty of Law),  Islam, the State and the Constitutional Court in Indonesia, 19 Pacific Rim Law & Policy Journal 279 (2010). The abstract states:

Indonesia has the largest Muslim population of any country in the world. Of its approximately 240 million people, around 88 percent call themselves Muslims. Yet, the proper place for Islam within the Indonesian legal and political systems is an issue of continuing debate and contest. Muslim groups have, since colonial times, regularly and vocally pushed for a greater political and legal role for Islam. But the state – both colonial and independent – has resisted many of their demands. This article identifies a new player in the contest between the state and Islam – the Constitutional Court. Established in 2003, the Court has power to ensure that legislation enacted by Indonesia’s national parliament complies with the Indonesian Constitution. It is the first Indonesian court to have been granted these powers. It has invalidated several statutes which contradict Indonesia’s constitutional Bill of Rights, inserted during a constitutional amendment round in 2000. As this article aims to show, the Court’s function puts it in a critical position as an arbiter between the central government and Islam, because the Constitution contains both Pancasila – Indonesia’s state ideology which requires a role for religion within the state – and provisions guaranteeing freedom of religion for citizens.

10. Sahar F. Aziz  (Georgetown Law Center ), Sticks and Stones, The Words That Hurt: Entrenched Stereotypes Eight Years after 9/11, forthcoming in New York City Law Review. The abstract states:

In the realm of adults, name-calling is often a fact of life that one simply brushes off like water rolls off a duck’s back. At some point, however, racial slurs and ethnic epithets hurled at employees constitute actionable discrimination rooted in palpable and entrenched stereotypes. In the case of Muslims, Arabs, and South Asians, the September 11, 2001 terrorist attacks not only caused an upsurge in hatred, violence, and discrimination, but also entrenched preexisting negative stereotypes. Targeted law enforcement efforts and media images stereotyping dark-skinned, bearded males with Arabic-sounding names as representing the primary threat to the national security of the United States contribute to racial, national origin, and religious harassment in the workplace.

In the years immediately following the September 11th terrorist attacks, hate crimes and other forms of discrimination against these communities were on the rise at a troubling rate. For the last months of 2001, the FBI reported a 1500% increase in hate crimes against “people of Middle Eastern descent, Muslims, and South Asian Sikhs, who are often mistaken for Muslim” from 28 in 2000 to 481 in 2001. The New York City Police Department received 117 reports of hate crimes against Arab- and Muslim-Americans in the first six months after the attacks, compared to an average of seven hate crime reports per year before 2001. The American-Arab Anti-Discrimination Committee (“ADC”) reported over 700 violent incidents targeting Arab Americans, Muslims, and South Asians or those perceived as such in the first nine weeks following the September 11th terrorist attacks. ADC also documented several murders, 165 violent incidents from January 1, 2002 to October 11, 2002, over eighty cases of illegal and discriminatory removal of passengers from aircrafts based on the passenger’s perceived ethnicity, and over 800 cases of employment discrimination against Arab Americans from September 11, 2001 to October 11, 2002. Similarly, the Council on American-Islamic Relations reported 1717 complaints of discrimination by Muslims in the first six months after September 11.

Notwithstanding the passage of eight years, “post-9/11 discrimination” persists, most profoundly in the workplace. While the volume of cases has seemingly decreased, negative stereotypes of Muslims and Arabs have become entrenched into popular culture and consequently more prevalent in the workplace. One need only recall the 2008 presidential elections where allegations that Barack Obama was a Muslim or Arab were in effect racial slurs and ethnic epithets. Months after Barack Obama’s inauguration, anti-Muslim sentiment continues in the form of the growing “Birther” movement challenging the validity of President Obama’s Hawaiian birth certificate, and ultimately the legitimacy of his presidency, on grounds that he is a closeted Muslim born in a Muslim country. Despite the spuriousness of the allegations, the popularity of the Birther movement suggests that suspicion and distrust of Muslims in America will continue for years to come.

Litigation of civil rights employment claims, both under Title VII and 42 U.S.C. § 1981 et seq, offers an effective means of countering entrenched bias in the workplace. In addition to providing remedies to plaintiffs harmed by employment discrimination, such cases offer a powerful disincentive to employers who permit their workplace to become infested with insidious stereotypes against Muslims, Arabs, or South Asians.

Accordingly, this Article provides the legal framework for pursuing such claims. Part I lays out the theoretical backdrop of how immigrants and racial minorities have historically been targeted as a result of a misguided Eurocentric definition of “American.” Though Arabs, Muslims, and South Asians have historically experienced the adverse effects of such narrow and exclusive definitions of citizenship, the terrorist attacks directed long-standing nativist bias to these groups and permanently racialized them. Part II discusses how governmental racial profiling and targeted law enforcement action legitimizes private bias that is ultimately manifested as workplace harassment. To highlight the misconceptions and fallacies perpetuated by the racial slurs, Part III offers a general introduction to the Arab, Muslim, Middle Eastern, Sikh, and South Asian communities in the United States. Part IV discusses the availability of national origin and ethnic origin as a basis of liability under Title VII. Part V explains the theories of liability under which a plaintiff may pursue a hostile work environment claim on the basis of national origin or ethnic origin. Included is an analysis of the myriad of cases filed since September 11, 2001 that involve allegations of discrimination against Arabs, Muslims, Middle Easterners, Sikhs, or South Asians. Finally, the Article concludes by arguing that national or ethnic origin harassment expressed through accusations of being a terrorist, ethnic slurs about an employee’s Arab heritage, and allegations of condoning violence based on a profession of the Islamic faith are all results of the racialization of Arabs, Muslims, and South Asians as the “terrorist other” and the entrenchment of stereotypes that have surpassed being merely backlash. 

11. Christina E. Wells  (University of Missouri School of Law ), Regulating Offensiveness: Snyder v. Phelps, Emotion, and the First Amendment.  The abstract states:

In its upcoming term, the Court will decide in Snyder v. Phelps whether Albert Snyder can sue the Reverend Fred Phelps and other members of the Westboro Baptist Church for invasion of privacy and intentional infliction of emotional distress for protesting near his son’s funeral. Those arguing in favor of tort liability claim that the Phelps’ speech during a time of mourning and vulnerability is especially outrageous and injurious and that the First Amendment allows such regulation. Their arguments, however, effectively rely on the offensiveness of the Phelps’ message rather than on any external indicia of harm, such as noisy or disruptive speech, or resulting violence.

But the Court’s longstanding precedents do not allow regulation of speech solely based on its offensive content absent those objective indicia of harm. Psychological research on emotions validates the Court’s approach as it reveals that anger, the emotion most likely to be involved with offensive speech, is inextricably linked with censorship. Put simply, individuals are often angered by demeaning offenses to their personal or social identity, including speech that is critical of their values and beliefs. As a result, they are often stirred to responsive action. The availability of civil lawsuits based solely on emotional harm would thus provide offended plaintiffs with potential tools to censor speech with which they disagree. The Supreme Court has wisely steered clear of such an approach and should continue to do so in Snyder.

12 . Helen L. Norton (University of Colorado School of Law) and Danielle Keats Citron ( University of Maryland School of Law ), Government Speech 2.0 , 87 Denver U. L. Rev. 899 (2010). The abstract states:

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these decisions, moreover, has the Court required government publicly to identify itself as the source of a contested message to satisfy the government speech defense to a First Amendment claim. The Court’s failure to condition the government speech defense on the message’s transparent identification as governmental is especially mystifying because the costs of such a requirement are so small when compared to its considerable benefits in ensuring that government remains politically accountable for its expressive choices.

This Article seeks to start a conversation about how courts – and the rest of us – might re-think our expectations about government speech in light of government’s increasing reliance on emerging technologies that have dramatically altered expression’s speed, audience, collaborative nature, and anonymity. It anticipates the next generation of government speech disputes in which certain associations and entanglements between government and private speakers complicate the government speech question. By adding to these challenges, government’s increasing use of newer technologies that vary in their interactivity and transparency may give the Court additional reason to re-examine its government speech jurisprudence. “Government Speech 2.0” thus refers not only to the next generation of government speech, but also to the possibility that government’s increasing reliance on emerging expressive technologies may help inspire the next generation of government speech doctrine: one more appropriately focused on ensuring government’s meaningful political accountability for its expressive choices.

13. William M. Carter Jr.  (Temple University - James E. Beasley School of Law) , Affirmative Action as Government Speech. The abstract states:

The Supreme Court’s affirmative action cases can be divided into two categories. In the first category are those cases in which race-conscious government action provides a material and concrete benefit or preference to members of a minority group, e.g., federal contracts in Adarand and law school admissions in Grutter. In the second category are cases where the government takes race-conscious action but without it resulting in any concrete disadvantage to non-minorities. In this latter category are cases such Parents Involved in Community Schools, where school districts sought to maintain integration by use of race-conscious student assignment plans, with the result that all students would attend more diverse schools, and Shaw v. Reno, where the state drew voting districts in such a way as to improve minority voting strength, but without any claim of dilution of white voters’ voting strength. Under the Court’s current Equal Protection doctrine, both categories of cases are treated as presumptively unconstitutional. Those cases where the government takes race-conscious remedial action without any concrete disadvantage to non-minorities create a constitutionally cognizable harm, the Court has held, because of the governmental race-consciousness itself.

Prior scholarship has suggested that the pure colorblindness doctrine is best understood as the Court finding that such action inflicts an “expressive harm.” The expressive harm theory of the colorblindness doctrine, however, remains undertheorized. This Article breaks new ground by suggesting that functionally, the Court has come to view race-conscious, non-disadvantaging government action as a form of prohibited government speech. In essence, the Court has decided that when the government takes such action, it is sending an impermissible message that race still matters in our society. The Court’s “colorblindness” doctrine, however, is fundamentally inconsistent with the “government speech” doctrine. As the Court has recognized in its government speech cases, the government is free to express its own message without regard to content or viewpoint neutrality, as long as it does not restrict or compel private speech in doing so. Thus, under the government speech doctrine, a government entity, such as a state legislature or a school district, is free to express the message that racial inequalities are real and unacceptable through action designed to correct such inequalities.

If the Court continues to analyze race-conscious remedial action as an expressive harm, it should do so explicitly and with doctrinal consistency. Non-disadvantaging race-conscious remedial action is permissible government speech because it involves the government expressing its own message that racial inequalities are still very real. The fact that a majority of the Court apparently disagrees with this message does not make it unconstitutional.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1649099

14. Samantha Barbas, The Death of the Public Disclosure Tort: A Historical Perspective, 22 Yale J. of L. & Humanities 171 (QQQQ). The abstract states:

In 1890, Samuel Warren and Louis Brandeis, in their famous Harvard Law Review article The Right to Privacy, called for a new legal right that would allow the victims of truthful but embarrassing press publicity to recover damages for emotional harm. Currently, in most states, it constitutes a tort if the disclosure of “matter concerning the private life of another” would be highly offensive to a reasonable person and the matter is not “of legitimate concern to the public,” or newsworthy. However, because courts generally consider virtually everything that appears in the news media to be newsworthy, the public disclosure of private facts tort is generally regarded as dead. But why did newsworthiness, in the words of Harry Kalven, Jr., become “so overpowering as to virtually swallow the tort”? The scholarly literature has been largely silent on this question.

This article traces the “death” of the right to privacy against the press to two broad cultural shifts in the period between 1920 and 1940. One was a cultural devaluation of privacy, in the sense of concealing one’s private self from public view. By the 1930s, a certain degree of public self-exposure was not only considered desirable but inevitable. The other change was an expansion of the definition of “the news” to encompass a wide variety of information, including private facts, and a reassessment of the significance of the news media to modern social life. Drawing on an emerging discourse theory of the news, one that saw the purpose of the news media as fostering public discussion and “making people talk,” courts affirmed the social value of media gossip, folding it into a broad new definition of newsworthiness that extended to the far reaches of popular publishing. These developments created the modern American culture of self-exposure, in which the media’s desire to reveal private lives is rivaled by our penchant for self-publicity.

15.  Alina Ng  (Mississippi College School of Law), Property and Progress.  The abstract states:

Copyright laws aim to protect intangible interests in the use of literary and artistic works to provide creators with an incentive to produce. The law rationalizes that by granting exclusive “property” rights in creative works, authors will be encouraged to produce works for the ultimate benefit of society as the potential for commercial rewards is assumed to be the primary motivation for creativity. But, the exclusive control these rights give creators and owners of copyrighted works have been the subject of severe criticism because they create access barriers to the use of content, which, free speech and civil liberties advocates, argue should be free of restrictions for civil discourse and political dialogue. This Article argues that, contrary to contemporary thought that rights in the copyright system hampers progress, the protection of individual rights in literary and artistic works - besides encouraging creativity for progress - also brings into the copyright system a normative order for social conduct that advances society towards the Constitutional goal of progress. A strong institution of property rights for the copyright system correlates with greater progress of science and arts because the recognition and protection of individual authorial autonomy instills individual and collective social responsibility in how works are used and produced, generates public respect for the act of authorship, and fosters education, research, and economic development through the production and use of literary and artistic works. The creation of diverse works will contribute towards progress of science and arts only if an underlying foundation of property rights protect the creator of a work to instill a sense of individual autonomy and responsible authorship and directs public use of the work toward socially beneficial purposes in ways that strengthen, rather than weaken, the moral fabric of society. This Article concludes that the progress of science and arts is not only dependent on a system of statutory copyright provided by the Copyright Act but on an institution of property laws to provide normative guidance on proper conduct in the production and use of literary and artistic works in ways, which would advance progress.

JFB