First Amendment Scholarship Update

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

1. Jeremy A. Blumenthal and Terry L. Turnipseed  (Syracuse University - College of Law), Is Voting in Churches (or Anywhere Else) Unconstitutional?: The Polling Place Priming (PPP) Effect, forthcoming in Boston University Law Review. The abstract states:

A substantial social science literature has demonstrated the power of situational cues on behavior, decisions, choices, attitudes, and emotions. Moreover, recent findings demonstrate that the place where a citizen casts a ballot – Town Hall, a fire station, a school, a church, a library – can itself influence that citizen’s vote, by priming particular concepts, values, or ideals that nudge the voter in a particular direction. More important, that effect – what we call the Polling Place Priming Effect or the PPP Effect – nudges voters in a predictable direction – that is, it leads to a systematic, non-random bias in individuals’ decision-making. For example, school locations activate pro-education concepts and norms, and thus lead to votes supportive of education, specifically, allocating more tax dollars toward education. Voting in churches activates conservative Christian values, leading to support for conservative candidates who express such values, and activates anti-abortion norms as well.

Here we discuss the legal and policy implications of the PPP Effect, focusing on the specific question of the constitutionality of voting in churches. We then connect these findings with similar challenges to voting procedures. We suggest that both the church challenges and these other analogous disputes – and courts’ responses to these challenges – fail to fully take into account the unconscious nature of the influence on a citizen’s decision-making, and warrant a reconsideration of First Amendment and Equal Protection jurisprudence. Drawing on recent scholarship in the abortion rights context, we articulate a plausible approach to grounding such challenges that does consider that unconscious influence. We then connect our discussion with recent steps toward reducing or altogether eliminating the use of polling places, by addressing its relationship to calls for absentee or convenience voting. We close by broadening our discussion and identifying other legal and policy contexts to which the PPP Effect might be relevant, and suggesting empirical research that might address such possibilities.

2. Jeff Redding (Saint Louis University School of Law), Queer/Religious Friendship in the Obama Era, 33 Washington U. J. L.& Pol’y 211 (2010). The abstract states:

In this Article, I respond to (then-candidate) Barack Obama's plea "that if we‘re going to make significant progress on critical issues that we face, ... we‘ve got to be able to get beyond our comfort zones and just talk to people we don‘t like." I do so by challenging commonplace notions of queer political friendship. Differentiating between an assimilative gay and lesbian politics, and a more imaginative queer politics, I argue that queers have been hurt by mainstream gay and lesbian political advocacy - the kind of advocacy, for example, that both led up to and followed Proposition 8 - and that, as a consequence, queers should actively contest and act to counter this gay and lesbian advocacy in political and legal arenas. In other words, I argue that, to the extent that there has been friendly cooperation with gay and lesbian politics by queers, queers should vigorously and skeptically reconsider this cooperation. More importantly, in addition to suggesting an unorthodox queer "adversary" in this Article, I will simultaneously suggest an orthodox "ally," namely, the radically religious opponents of gay and lesbian same-sex marriage. Real opportunities to forge new kinds of political friendship between queers and religious people, as well as real possibilities of generating imaginative legal frameworks that are enhancing of queer agency,have been lost by queer cooperation with a gay and lesbian-led retreat into a strictly secular, religion-phobic sexuality politics. As I argue in this Article, queers never had to and should not continue to join in this retreat. What is needed instead is a more, à la Judith Butler, "antifoundationalist approach to coalition politics."

In this Article, I first discuss how contemporary gay and lesbian same-sex marriage advocacy has effectively de-friended queers by wielding a peculiar conception of "dignity" in a jurispathic and queer-phobic manner. I then demonstrate how a number of religious folk have acted in a more queer-friendly manner by arguing for different understandings and implementations of human dignity (and its conceptual cognates, e.g., minority rights, toleration, etc.), namely ones that are jurisgenerative and pluralistically oriented. Finally, I discuss two specific aspects of a larger agenda on which newly-friendly queers and radically religious folk might collaborate in the United States, which would include active resistance to the legal strategies and understandings deployed by attorneys Theodore Olson and David Boies in their ongoing Perry v. Schwarzenegger litigation challenging the U.S. constitutional bona fides of California‘s Proposition 8. With respect to this litigation, I suggest and develop an alternative queer/religious legal strategy, using arguments which are embedded in the City of San Francisco‘s motion to intervene in Perry v. Schwarzenegger.

3. Ceyhun Elgin (Bogazici University) , Mehmet Gurdal (TOBB University of Economics and Technology) , Turkmen Goksel  (Ankara University),  and Cuneyt Orman (Central Bank of the Republic of Turkey),  Religion, Income Inequality, and the Size of the Government .The abstract states:

Recent empirical research has demonstrated that countries with higher levels of religiosity are characterized by greater income inequality. We argue that this is due to the lower level of government services demanded in more religious countries. Religion requires that individuals make financial sacrifices and this leads the religious to prefer making their contributions voluntarily rather than through mandatory means. To the extent that citizen preferences are reflected in policy outcomes, religiosity results in lower taxes, which in turn implies lower levels of spending on both public goods and redistribution. Since measures of income typically do not fully take into account the part of income coming from donations received, this increases measured income inequality. We formalize these ideas in a general equilibrium political economy model and also show that the implications of our model are supported by cross-country data.

4. Scott Gaylord (Elon University School of Law),  When the Exception Becomes the Rule: Marsh and Sectarian Legislative Prayer Post-Summum, forthcoming in University of Cincinnati Law Review.  The abstract states:

Across the country, federal, state, and local legislative bodies begin their meetings with prayer. Yet, as recent challenges to sectarian legislative prayer demonstrate, legislative prayer rests uneasily at the intersection of the Free Speech and Establishment Clauses. While the government has the right to speak for itself, many contend that it is precluded from engaging in paradigmatic religious activity, such as sectarian prayer. As a result, although legislative prayer has been part of the “fabric of our society” since at least the First Continental Congress, sectarian prayer teeters on the brink of unconstitutionality. Despite the pervasiveness of legislative prayer and the importance of the constitutional issues it raises, the United States Supreme Court did not decide a legislative prayer case until Marsh v. Chambers in 1983. In Marsh, the Court upheld legislative prayers generally but did not explain how Marsh fit within its larger Establishment Clause jurisprudence. Subsequent Supreme Court and lower court decisions, therefore, have treated Marsh as a narrow exception to the Court’s general Establishment Clause rules.

This Article examines recent developments that undermine the traditional view of Marsh as a limited exception and place Marsh at the center of the Court’s current view of facially religious government speech. In particular, after analyzing the Court’s discussions of legislative prayer in Marsh and Allegheny, the Article focuses on the recent flood of challenges to sectarian legislative prayers, comparing the widely divergent conclusions reached by the seven Circuit Courts that have heard such cases. It then explores how the Court’s 2009 decision in Summum v. Pleasant Grove City provides a new lens through which to interpret Marsh, contending that the Court’s “recently minted” government speech doctrine (i) is inconsistent with the endorsement test and, in fact, (ii) mandates the Establishment Clause test the Court first developed in Marsh. In the last section, the Article considers the constitutionality of sectarian and nonsectarian legislative prayer in light of Marsh and Summum, arguing that, under this “new” standard, federal, state, and local governments can continue to engage in legislative prayer, even if those prayers contain sectarian references.

5. Toni M. Massaro (University of Arizona College of Law), Foreign Nationals, Electoral Spending, and the First Amendment.  The abstract states:

The Court in January of 2010 rocked the nation when it decided Citizens United v. FEC – a case that critics described as a “threat to democracy.” The case lifted restrictions that prevented corporations and unions from using general treasury funds to engage in independent expenditures on behalf of electoral candidates, and thereby opened the spigot on significant new spending for political campaigns.

A long list of proposals followed in the wake of the decision, including proposals to further limit the already restricted right of foreign nationals to make campaign contributions to candidates for state or federal office, or to American political parties. The Court in Citizens United expressly declined to rule on the constitutionality of restrictions on foreign nationals’ electoral spending, though Justice Stevens argued in his vigorous dissent that the reasoning of Citizens United casts doubt on such speaker-based restrictions on campaign spending.

This Essay analyzes in detail whether foreign speakers, including foreign corporations, can be fenced out of campaign electoral spending, and concludes that the constitutional case against such restrictions is very powerful, if not overwhelming. It predicts that the Court nevertheless will be loath to defy Congress on this point, particularly if the government invokes a national security interest or so-called right to prevent “undue foreign influence” over American elections. Signs are that the current Court would defer to Congress and uphold restrictions on foreign national campaign expenditures, were it to address the question directly. But to do so, it would need to ignore its own first amendment logic and especially its soaring rhetoric about the sophistication of American voters and the value of robust political expression fueled by private expenditures.

Whether this constitutional point matters, however, is questionable given the rapid development of new communications technologies. Foreign nationals, like American citizens, now have multiple ways of reaching potential voters that make efforts to territorialize such influence infeasible. Consequently, the most important constitutional question on the post-Citizens United horizon may not be who can expend funds, but whether donor identity can be disclosed so that voters can better evaluate electoral messages from foreign and non-foreign sources, and whether the privacy objections to such disclosure can, or should, be overcome.

6. Jennifer E. Rothman (Loyola Law School Los Angeles),  Best Intentions: Reconsidering the Best Practices Statements in the Context of Fair Use and Copyright Law , forthcoming in Journal of the Copyright Society. The abstract states:

Private ordering is increasingly playing a role in determining the scope of intellectual property rights both as a de facto and a de jure matter. In this essay, I consider the best practices movement and its efforts to use private ordering to limit the scope and enforcement of copyright law. Best practices statements in the copyright context establish voluntary guidelines for what should be deemed fair uses of others’ copyrighted works. I identify some of the de facto successes of the best practices movement, but also raise a number of concerns about the project. As I have discussed elsewhere, the incorporation of industry practices and social norms into the law in the context of intellectual property can be problematic. The best practices statements have limited value for setting a standard for appropriate uses because they are very one-sided, having been developed without input from the content owners whose work is likely to be used. This one-sided approach to custom is misguided as a normative matter, but may also backfire because courts are more likely to incorporate the more restrictive and dominant practices that promote IP holders’ rights.

Not only are the best practices statements’ call for incorporating unrepresentative customs problematic, but the statements can also be critiqued on other grounds. First, the statements are misleading about the parameters of fair use law – a fact which is particularly concerning given that the intended audience is not composed of legal professionals. Second, some of the statements propose overly constraining limitations on fair use that will limit what can be made both as a de facto and de jure matter. The essay concludes with some suggestions for ways that the best practices project could be redirected in positive ways that support law reform and the defense of reasonable fair use claims without risking the downsides of the current statements.

7. Corey L. Brettschneider (Brown University - Department of Political Science), When the State Speaks, What Should it Say? Freedom of Expression and Democratic Persuasion, published in Perspectives on Politics, Vol. 8, No. 4, December 2010.  The abstract states:

Hate groups are often thought to reveal a paradox in liberal thinking. On the one hand, such groups challenge the very foundations of liberal thought, including core values of equality and autonomy. On the other hand, these same values underlie the rights such as freedom of expression and association that protect hate groups. Thus a liberal democratic state that extends those protections to such groups in the name of value neutrality and freedom of expression may be thought to be undermining the values on which its legitimacy rests. In this paper, I suggest how this apparent paradox might be resolved. I argue that the state should protect the expression of illiberal beliefs, but that the state (along with its citizens) is also obligated to criticize publicly those beliefs. Distinguishing between two kinds of state action - coercive and expressive - I contend that such criticism should be pursued through the state's expressive capacities in its roles as speaker, educator, and spender. Here I extend the familiar idea that law, to be legitimate, must be widely publicized; I contend that a proper theory of the freedom of expression obligates the legitimate state to publicize the reasons that underlie rights, in particular reasons that appeal to the entitlement of each citizen subject to coercion to be treated as free and equal. My theory of freedom of expression is thus “expressive” in two senses: it protects the entitlement of citizens to express any political viewpoint, and it emphasizes a role for the state in explaining these free-speech protections and persuading its citizens of the value of the entitlements that underlie them.

8. Alan K. Chen (University of Denver Sturm College of Law), Right Labels, Wrong Categories: Some Comments on Steven D. Smith's, 'Why is Government Speech Problematic?' , published in Denver University Law Review Online, Vol. 87, No. 78, 2010.  The abstract states:

This essay is a response to a paper presented by the noted First Amendment scholar, Steven D. Smith, at the 17th Ira C. Rothgerber, Jr. Constitutional Law Conference, “Government Speech in Transition.” In his thoughtful paper, Professor Smith addresses the theoretical underpinnings of free speech analysis as applied to the confounding problem of government speech. He argues that much of the confusion surrounding government speech can be addressed by reaching a clearer understanding of three problems – the unnecessary problem (a misguided commitment to government neutrality), an unnoticed problem (the issue of institutional capture), and the “big” problem (the lack of a working consensus about the proper role of government). The essay agrees that these labels are useful, but asserts that Professor Smith attaches each of them to the wrong problem. Rather, it argues, neutrality has been, and remains, the big problem; institutional capture is a non-problem; and the working consensus about the function of government is the unnoticed problem (perhaps because it is also an impossible one).

9. Inimai Chettiar (New York University - School of Law) and James Scott Holladay (New York University School of Law - Institute for Policy Integrity), Free to Invest: The Economic Benefits of Preserving Net Neutrality. The abstract states:

It is hard to imagine a future where the value of the Web takes a downward spiral: where less content is created, online access is less useful, and fewer people log on. Currently, thousands of new websites and applications are constantly created. The content attracts millions of new users who email, tweet, blog, and discuss the information on the Web freely. Net neutrality supports this open and entrepreneurial dynamic which helps to create billions of dollars in free value for the American public. In Free to Invest, the Institute for Policy Integrity warns of negative economic consequences if net neutrality is weakened. The report arrived at five main findings that describe the trade-offs of revoking net neutrality.

10. Mirjana Todorovska (University American College Skopje), The Earth Revolves Around the Sun? How Science, Law and Religion Come Together. The abstract states:

If we try going back into history we would trace the origins of both science and law in religion. At one point in time, i.e. the Enlightenment, science separated from religion and began to question the religious dogmas. Stemming from this Age and announcing the separation of science from religion was the heliocentric doctrine of Nicolaus Copernicus that went straight in the face of one of the most important dogmas of Christianity (Aristotelian and geocentric), i.e. the Earth revolves around the Sun and not the other way round. Since then science has asked the inevitable HOW… how “things” happen, function, evolve, revolve, die… The ultimate goal of science is TRUTH. The ultimate goal of religion is GOD. Thus, both science and religion aim towards an absolute. The main problem lies in the fact that both science and religion are created by humans, and thus depend on human perception. Consequently both truth and God cannot be isolated from human perception and are not objective but subjective phenomena. On the other hand since its inception, the law, again human creation, has asked both HOW and WHY. In legal context, “how” annotates the descriptive side of the law and “why” annotates the prescriptive and the one dealing with justice. Inevitably, the law relies upon values that are transposed into norms, the latter shaping the human behavior and at the same time reflecting, at least in so – called democratic societies, the values of the majority. Hence, the law is value driven.

JFB