First Amendment Scholarship Update

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

1.Michael W. McConnell (Stanford Law School), Schism, Plague, and Late Rites in the French Quarter: The Strange Story Behind the Supreme Court’s First Free Exercise. The abstract states:

On November 9, 1842, Father Bernard Permoli performed an open casket funeral in the church of St. Augustin in the French Quarter of New Orleans, Louisiana. He blessed the body and offered the prayers specified by the doctrines and forms of the Roman Catholic Church. For this performance of the priestly function, he was prosecuted by the City, criminally convicted, and fined $50. The ceremony violated a city ordinance, passed thirteen days before, prohibiting open casket funerals at all “Catholic Churches” of the city, other than a designated mortuary chapel on the outskirts of town. After he was charged for the violation, Permoli filed an answer claiming the protection of the Free Exercise Clause of the First Amendment.

Thus began a case that went all the way to the United States Supreme Court. Under the name of Permoli v. Municipality No. 1 of the City of New Orleans, it was the first Supreme Court case in which a party invoked the protections of the Free Exercise Clause of the First Amendment. Unfortunately for Father Permoli, the Court rejected his argument, holding, in a unanimous opinion by Justice Catron, that the Free Exercise Clause does not apply to the acts of state and local governments. The case is now cited, along with Barron v. Baltimore, solely for the proposition that the Bill of Rights did not apply to the states prior to the Fourteenth Amendment. Except for that, the case has largely been forgotten. 
That is a loss. Not only do the arguments in the case tell us a great deal about the state of free exercise jurisprudence in the antebellum period; the case itself is a darned good story.

 2. B. M. S. van Praag(University of Amsterdam - Faculty of Economics and Business) , Dmitri Romanov (Government of the State of Israel - Israel Central Bureau of Statistics), and Ada Ferrer-i-Carbonell (University of Amsterdam - Faculty of Economics and Econometrics),  Happiness and Financial Satisfaction in Israel: Effects of Religiosity, Ethnicity, and War. The abstract states:

We analyze individual satisfaction with life as a whole and satisfaction with the personal financial situation for Israeli citizens of Jewish and Arab descent. Our data set is the Israeli Social Survey (2006). We are especially interested in the impact of the religions Judaism, Islam and Christianity, where we are able to differentiate between individuals who vary in religiosity between secular and ultra-orthodox. We find a significant effect of religiosity on happiness. With respect to Jewish families it is most striking that the impact of family size on both life and financial satisfaction seems to vary with religiosity. This might be a reason for differentiation in family equivalence scales. For Arab families we did not find this effect. First-generation immigrants are less happy than second-generation immigrants, while there is no significant difference between second-generation families and native families. The effect of the Lebanon War is much less than expected.

3. Jesse R. Merriam (Johns Hopkins University), Establishment Clause-Trophobia: Building a Framework for Escaping the Confines of Domestic Church-State Jurisprudence, 41 Colum. Hum. Rts. L. Rev. --- (2010)   The abstract states:

Does the First Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion,” apply to United States conduct abroad? For years, this question has been lurking in the background of discussions of the Constitution’s extraterritorial application. Indeed, while the U.S. Supreme Court has ruled that the Fifth and Sixth Amendments apply abroad in some circumstances, and that the Fourth Amendment’s warrant requirement generally does not apply abroad, the Court has never considered the transnational applicability of the Establishment Clause. In fact, only one case has directly addressed whether the Establishment Clause applies abroad, Lamont v. Woods, a Second Circuit U.S. Court of Appeals decision holding that the Establishment Clause always applies abroad but less strictly than it does domestically. Although several scholars have recently explored whether and to what extent the Constitution applies abroad, the specific issue of whether and how the Establishment Clause applies abroad has risen barely above a whisper in scholarly discourse. Indeed, although some prominent church-state scholars have commented on the Lamont decision, none has thoroughly analyzed it, leaving a law student Note as the most significant work to engage the Lamont reasoning. The issue is now screaming for scholarly and judicial treatment, as evidenced by a July 17, 2009 audit by the USAID inspector general’s office questioning whether some of USAID’s programs violate the Establishment Clause. This audit, as well as recent reports on this issue by the Chicago Council on Global Affairs and the Center for Strategic and International Studies, indicate the need for legal clarity on this important policy question. This Article seeks to provide that clarity by comprehensively analyzing whether and to what extent the Establishment Clause applies abroad.

4. Siti Kholifah (Brawijaya University), The Discourse of Women Santri (Students in Islamic Boarding School) About Politics in East Java – Indonesia , published in OIDA International Journal of Sustainable Development, Vol. 1, No. 9, pp. 81-88, 2010.  The abstract states:

In the concept of gender theology, gender inequality is attributable to divine creation; all belongs to God. Pesantren (Islamic boarding school) is an educational institution with Islamic religion as a specific academic course, still assumed to have a biased concept of gender. Hence, the aim of the research investigates the discourse of women santri about politics. Secondly, this research examines santri’s perception about women in politics as a description the processes of political learning in Islamic boarding school.

By using Foucault’s and feminist theory, the study has been done at pesantren in Jombang, East Java, Indonesia. This research has been conducted as qualitative study, using phenomenology approach. The data collection has been conducted observation and in-depth interview. The results of research are: firstly, there are many varieties of women santri’s discourse and response about politics. Some of women santri state that politics is horrible, repressive, violence and still influenced by masculine domination. However some of santri stress that politics are the rules of games that depend on the political actors. The differences about politics discourse are influenced by knowledge, experience and social setting of participant, political reality in Indonesia, social construction, patriarchal culture, and hegemony of religion that have interpreting misogyny religion texts.

Secondly, woman’s participation in politics sphere is considered as woman’s right and choice to develop equal opportunity in public area. According to Woman santri, the dominant obstacles faced by woman when they develop career in politics area are family and how to balance their roles in public and domestic. Besides, another problems woman in politics are religion, culture (patriarchy), law and woman herself can be barrier for women as political. Finally, woman movement in pesantren can be categorized as apologetic, reformative and transformative.

5. Marci A. Hamilton (Cardozo Law School), The 'Licentiousness' in Religious Organizations and Why it is Not Protected Under Religious Liberty Constitutional Provisions, 18 Wm & Mary Bill Rts J. --- (2010).  The abstract states:

There is no doubt that the sexual abuse of children occurs within religious organizations and that these organizations too often operate to perpetuate cycles of abuse. There was a time when such a statement was counter-intuitive, but it is now merely a statement of fact. One difficult question to answer is how the law has failed to protect the vulnerable in religious organizations. Misguided reliance on the First Amendment is partly to blame.

6. Dermot Groome (Office of the Prosecutor, ICTY), The Church Abuse Scandal: Were Crimes Against Humanity Committed?, forthcoming in Chicago Journal of International Law.  The abstract states:

Increasingly shocking revelations about sexual abuse by members of Catholic religious congregations and diocesan priests have recently raised the question of whether such widespread abuses constitute crimes against humanity. This paper considers that question in the context of a report issued by the Ryan Commission, an independent quasi-judicial commission that spent 10 years conducting detailed investigations into childcare institutions operated by Catholic religious congregations in Ireland. The Ryan Commission’s findings with respect to both widespread physical and sexual abuse provide a factual basis upon which to consider whether crimes against humanity were in fact committed. Contrasting the intentionality of behind excessive physical violence with the recklessness of allowing known pedophiles access to children highlights an important definitional requirement of crimes against humanity, that such not only be widespread and systematic – which both clearly are – but that such be in the context of an attack directed against a civilian population. While the systematic use of excessive corporal punishment to control children committed to industrial schools constitutes an attack upon them, the systematic cover-up of sexual abuse to prevent public scandal thereby causing widespread sexual abuse raises the question of whether an ‘attack’ on a civilian population can be the result of criminal recklessness.

The atypical characteristics of the perpetrator, victim and non-conflict context of these crimes also contributes to the debate on two unresolved issues in international law. First, the role of a “state policy” underlying an attack and whether the existence of one is a definitional requirement or simply an evidential consideration. Second, whether a culpable omission forming the basis of international criminal responsibility can be based on non-criminal legal duties.

7. Christine A. Corcos (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center), Magic Images in Law, published in EXPLORATIONS ON COURTROOM DISCOURSE, Anne Wagner, ed., Ashgate, 2011. The abstract states:

In their current Las Vegas act, “bad boys of magic” Penn and Teller make the U. S. flag disappear from a flagpole, somehow seem to set fire to it while it is wrapped in a copy of the Bill of Rights, and then display the document, while Penn proclaims, “[T]he flag is gone but the Bill of Rights remains!” They then end the illusion by “magically” restoring the flag to its pole. The trick is well done, if a little heavy-handedly symbolic, and it emphasizes the similarities between magic and law. In order to make the flag and document reappear “magically,” Penn and Teller do and say ritualistic things.
Penn then asks the question, "Did we burn a flag? Did we symbolically burn a flag? Or did we merely vanish a flag in a patriotic flash of fireworks? It’s all of those, it’s none of those. It’s up to you. Most shows, and movies, and tv are all fake, they’re phony, they’re fiction. And news and sports are supposed to be real. But Penn & Teller, we like to drive fast, right on down the middle, because sometimes we’re showing you and telling the truth as we see it, from the bottom of our hearts. And sometimes we’re lying, and cheating, and swindling. And it’s up to you to figure that out."

Penn & Teller do not intend their fancy footwork solely as entertainment. They, like all accomplished magicians, engage in a number of principles intended to distract and deceive audience members. By adding “magic words” to their on-stage movement, which employs the cardinal principle of misdirection, one of the principles known to all magicians, with which they distract the willing, paying, audience, which involves itself intellectually in the performance to see the deception, they create the illusion that they have burned the flag. The magic words have nothing to do with what is really going on behind the scenes (or on the stage); that is, Penn and Teller could accomplish the trick without saying the words (although not without the movements required to hide the flag). Both the audience and the magicians know that the words do not create the result. But the audience wants the magicians to engage in the ritual - the saying of the magic words, and the use of the magic wand - and the magicians oblige, because all of this ritual is part of the spectacle. To return the flag, Penn says the appropriate language and he and his partner engage in the appropriate movements. The trick ends. When the audience leaves the theater, both it and the magicians know the illusions and the performance are over.

One lawyer-magician suggests that lawyers engage in misdirection as well. “Everyone knows that magicians misdirect audiences, that they visually and verbally disguise their dirty work... Lawyers also engage in verbal misdirection by “blindsiding witnesses, focusing attention on strengths and away from weaknesses, substituting jury charm for legal substance, and bobbing and weaving with words to deflect, convince and prevail.”

Are “magic words” also a form of misdirection and ritual? Is much of required courtroom behavior simply ritual and incantation? When judges use “magic words” or “magic formulas” in writing opinions, are they engaging in the same behavior? Do they create anything substantive by using those words that were not there before? Do the words themselves “mean” anything? Or are they simply a distraction, serving as misdirection, and perhaps because of our insistence on them, denying due process to the clients of those who negligently omit them? Do the wizards behind the curtain manipulate the system in some unfathomable way for their purposes while sending the rest of us on self-serving quests for witches’ broomsticks? To what extent can we compare the use of magic to the practice of law, and make magical analogies to legal practice? To what extent are such comparisons helpful and/or interesting? When parties, jurors, judges, lawyers, witnesses, and onlookers leave the courtroom, are what “magic words” and ritual leave behind more “real” than what is on a magician’s stage?

I do not intend to make legal formalism the entire subject of this Article. Others discuss that subject elsewhere in greater depth. Consider for example Pierre Schlag’s discussion of the law student’s first encounter with “magic words” in law study.

Still another aspect of the juridification of legal thought is the reliance on "magic words."
"Students, during their first year of law school, learn that in some legal contexts certain words are magic, in that their mere invocation can be guaranteed to induce certain effects upon legal actors. Such words might include "notice," or "possession," or "strict scrutiny." Legal thinkers often exhibit a haughty derision for the magic words - treating them as unfortunate (though perhaps necessary) legacies of formalism. Nonetheless, legal thinkers clearly have their own set of magic words - words like "values" and "rights" and "reason." These are words which, when accompanied with their usual grammar, will simply arrest thought upon impact."

In a few pages one cannot re-examine such a debate. But what one can begin to do is examine the repeated comparison that exists in the literature between magicians and attorneys, and question why this particular comparison should be so prevalent. Why do we so often see the phrases “magic words,” “the rabbit in the hat,” and “smoke and mirrors” applied to attorneys and the legal profession? Why do lawyers and judges apply such phrases to themselves and their behavior and what do they mean to convey by such usages? Do practicing lawyer-magicians put magic into practice in the courtroom in order to translate stagecraft into “practical magic?” If so, how do other members of the legal profession react?

That a magician knows that magic words do not themselves create a particular effect is one thing. That he uses them to create the illusion that they do so is quite another. That becomes the substance of the magical effect, even though without the words, the trick or illusion would still come off. Lawyers also know that words might or might not create a particular legal effect - hence the importance of the phrase “magic words.” Words may seem to be interchangeable but they may not be so. Attorneys and judges spill a great deal of ink over just such issues. They know that magic phrases might create important illusions, and in law illusions can become reality. However, if courts or legislatures require magic phrases in order to create effects, then those phrases we must have, and the magic phrases then become the substance of law. If the existence of such phrases might be lacking, and the desired effect might still occur, if the lawyers drawing up a document, for example, provide for all the legal requirements. Thus we agree that in order to create the legal effect, we must have the particular magic words, even though we might ordinarily think that other words might do just as well.

Finally, some magicians, like Penn and Teller, have a particular interest in the legal meaning of the magical act. When Penn Jillette says that the difference between “burning a flag” on the Las Vegas stage and then restoring it is fiction, and that entertainment generally is fiction, he has a point. But the act is still “real.” Penn and Teller “really” make the flag vanish. When Penn discusses the law, and the Supreme Court opinion, that protects the act, he takes us further along a journey into discussion of the comparison between magic and law. Such “burning” and restoring is a magic trick, but it is also real, in the sense that it can be speech, just as the real burning of an American flag might also be speech.

8. Jonathan F. Mitchell (University of Chicago),  Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance, 77 U.Chi. L. Rev. ------ (2010).  The abstract states:

In 1874, the Supreme Court held in Murdock v City of Memphis that it lacked “jurisdiction” to review a state supreme court’s interpretation of state law, even in cases that present federal-law claims. The justices have since backed away from that seemingly ironclad rule; they now review and set aside state-court interpretations of state law that lack “fair and substantial” or “adequate” support in certain cases where the justices wish to enforce federal rights against the states. Yet the justices continue to labor under the Murdock-inspired notion that they are powerless even to consider reversing a state supreme court’s ruling solely on state-law grounds, as a means to avoid ruling on the federal-law claims presented in a case. This Article challenges the Court’s categorical unwillingness to consider such state-law reversals. First, there are no statutes or constitutional provisions that foreclose the Supreme Court from reversing a state supreme court’s judgment solely on state-law grounds, so long as the case presents a colorable federal-law claim sufficient to satisfy Article III and 28 USC § 1257. Second, the Supreme Court’s refusal to consider such state-law reversals is in tension with its oft-stated desire to avoid resolving federal constitutional issues unless absolutely necessary. When state supreme courts issue controversial interpretations of state law that simultaneously give rise to difficult constitutional questions, the Murdock regime forces the justices into a binary choice: allow such state-court judgments to stand, or reverse on federal constitutional grounds. When the justices are unwilling to affirm the state supreme court’s ruling, this false dichotomy causes them to issue unnecessary and often contentious pronouncements of federal constitutional law. These Murdock-induced constitutional pronouncements are often costly substitutes for state-law reversals. They produce nationalized, constitutionally entrenched holdings; this significantly increases the error costs of the Court’s ruling if the justices’ views turn out to be mistaken. In addition, the novel constitutional holdings that the Court has created in its efforts to counter what it perceives as pernicious state-court rulings threaten to impose large decision costs on future courts by complicating federal constitutional doctrines. The Supreme Court could mitigate or avoid these harms by recognizing an option to reverse certain state supreme court rulings on minimalist, state-law grounds; this will alleviate the hydraulic pressure that the Murdock regime imposes on federal constitutional doctrine.

9. Margreth Barrett (University of California, San Francisco - Hastings College of the Law),  A Cause of Action for 'Passing Off/Associational Marketing',  published in Intellectual Property Theory, Vol. 1, 2010.  The abstract states:

This Essay was inspired by discussions at a recent Trademark Scholars Roundtable, addressed to defenses and limitations to the trademark infringement cause of action. In the Essay I combine some of my own ideas with points and suggestions made by the other Roundtable participants, to sketch out a possible judicial approach to regulating modern expansion of trademark owners’ rights over words and symbols.

After discussing the expansion and the problems it poses, I suggest classifying four particularly problematic new categories of trademark infringement claims as “passing off/associational marketing” claims, to be evaluated not as trademark infringement but as a form of “residual passing off” claim. The Essay grounds “residual passing off” causes of action in the common law and the Lanham Act, and notes the tradition of subjecting such claims to more rigorous limitations and defenses (such as a materiality requirement) that have not generally been applied to cases of trademark infringement. The last section of the Essay discusses a number of presumptions, defenses and other limitations that might appropriately be applied in evaluating “passing off/associational marketing” claims, to ensure a proper balance of the competing interests of avoiding marketplace confusion and maintaining marketplace competition and protecting First Amendment interests.

10. Gregory Conko (Competitive Enterprise Institute), Truth or Consequences: The Perils and Protection of Off-Label Drug and Medical Device Promotion, published in Health Matrix: Journal of Law-Medicine, Vol. 21, 2011. The abstract states:

Off-label prescribing is an essential component of good medical care, and it offers greater choice in treatment options for millions of patients. Food and Drug Administration rules prohibit manufacturers from disseminating most information about off-label uses, though, making it difficult for doctors and their patients to learn about important therapeutic options. The prohibition on truthful and non-misleading speech raises constitutionality questions, which have not yet been fully explored by courts. This paper examines the role of off-label prescribing in medical practice and the regulation of off-label promotion. It also discusses the scope of permissible commercial speech regulation and analyzes the constitutionality of off-label speech restrictions in light of applicable case law. It concludes that the FDA’s ban on off-label promotion is unconstitutional, but suggests less burdensome alternative restrictions that likely would pass constitutional muster while still advancing the government’s asserted interests.

11. Justin Levitt (Loyola Law School - Los Angeles),  Confronting the Impact of Citizens United, 29 Yale L. & Pol’y Rev. --- (2010).  The abstract states:

A recent backlash against perceived corporate primacy has spurred substantial populism on both political left and political right. The Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, granting corporations the right to spend directly on express political advocacy, has become the target of particularly heated critique.

This Essay confronts the impact of Citizens United, in two primary respects. Part I first reviews Citizens United’s place in the campaign finance constellation. It suggests that although the decision was a bold stroke in many ways, its incremental impact on the scope of permissible campaign finance regulation is — surprisingly — far less substantial than commonly assumed.

Nevertheless, however individually weighty, Citizens United seems to have the feel of a final straw. The decision has provoked first furor, and then fear, for the health of the American political process. Part II therefore confronts the source of this fear, carefully parsing the pragmatic concerns at the root of opposition to corporate political spending in an effort to better understand the uproar. The Essay then suggests responsive policy proposals to mitigate these concerns - including a novel form of campaign finance disclosure and a novel recusal obligation. These regulatory proposals, better tailored to the real fears of independent corporate political spending, fall well within the regulatory space undisturbed by Citizens United.

12. Marc Hertogh (University of Groningen - Faculty of Law), Loyalists, Cynics and Outsiders: Who are the Critics of the Justice System in the UK and the Netherlands?, published in International Journal of Law in Context, Vol. 7, No. 1, 2011.  The abstract states:

Recent surveys in the UK and the Netherlands indicate that there is widespread dissatisfaction with the justice system. But who are these ‘critics’ of the justice system? Most previous studies only produced general statistics, while the persons behind the figures remained invisible. By contrast, this paper aims to put a face to these numbers and discusses two ways of analyzing the profile of the critics. Based on a review of existing survey data, the paper first looks at their ‘demographic profile’. Next, the paper also considers a second, alternative, approach. Based on their level of legal awareness and legal identification, it distinguishes four different ‘normative profiles’: legalists, loyalists, cynics and outsiders. Moreover, the paper shows how these normative profiles may be applied in future comparative studies on legal mobilization and legal protest. It is concluded that combining both approaches will help us to look beyond common stereotypes and consider the critics of the justice system as real persons with genuine concerns about the administration of justice in their country.

JFB