First Amendment Law Prof Blog

Global Free Speech Update

Global Free Speech Update

Europe:  the European Parliament is working to make it easier for broadcasters to deliver programming across the EU’s 27 member countries.  Under consideration is a single uniform licensing standard that would take the place of copyright laws that differ from nation to nation, and which make it exceedingly costly and time consuming to broadcast across borders.

Uzbekistan:  the OSCE Media Representative responded to the arrest of two more journalists by calling for an end to the "unrelenting judicial harassment" of reporters and media broadcasters. Several journalists are awaiting trial on multiple criminal charges, including slander, insult, and distributing materials harmful to public security.  Uzbekistan ranked 160 out of 175 on last year's World Press Freedom Index.

Turkey:  the European Court of Human Rights has agreed to hear the case of Orhan Miroglu, a political candidate who was arrested in 2007 for dotting his election speech with Kurdish phrases.  That's actually a crime in Turkey, where only the national language is allowed to be spoken at a campaign event, a government function, or a state institution.  In the country’s mainly Kurdish southeastern region, Kurdish families and political activists have staged a one week boycott of public schools as a form of protesting the law that prevents teachers from speaking Kurdish to Kurdish speaking children.  Five school children and a pro-Kurdish party leader were arrested when authorities found them handing out leaflets promoting the boycott.

Mexico:  President Calderon promised to push for federal legislation to protect journalists, including a law that would make attacks on journalists a federal crime.  The Committee to Protect Journalists reports that more than  30 journalists have been killed in the last four years alone.  Most of those crimes remain unsolved on account of government corruption at the state and local level.

-Kathleen Bergin  

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

NJ Supreme Court to Decide If Blogger Covered by State Media Shield Law

From the New Jersey Law Journal via law.com: THe NJ Supreme Court will consider whether the state's  press shield statute should be construed to cover a logger facing a defamation suit. The blogger was sued in response to statements she posted on Oprano.com, a website which labels itself as the "Wall Street Journal for the online adult entertainment industry."  The blogger charged that plaintiff Too Much Media had committed  fraud, made "illegal and unethical use of technology," and violated New Jersey's Identity Theft Protection Act. The blogger asserts that her accusations grew out of her investigation of the internet porn industry. She had also created a website, Pornafia.com, to make her findings public and contacted the Washington State attorney general’s office about her allegations. The blogger invoked  the NJ media shield law to block Too Much Media’s efforts to depose her in the defamation suit.  A NJ trial court and state appellate panel have concluded that the blogger’s web postings do not constitute the kind of journalistic activities covered by the Act’s protections.  

JFB

 

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

What is today's 'crowded theater'?

Justice Breyer appeared on Good Morning America this morning to plug his new book, Making Our Democracy Work.  About 2/3 into the video linked below (trouble with the embed), George Stephanopolous asked whether the backlash from the proposed Koran burning earlier this week poses a problem for the First Amendment.  Breyer dodged a bit, but does tip his hat to Holmes' notion that the constitution doesn't guarantee a right to shout fire in a crowded theater, "because people will be trampled to death." 

True enough.  

But what does that mean when the shout is heard around the world, because it's posted on the internet?

GMA video link here.

-Kathleen Bergin

Cancer Awareness Slogan Too Risque For Some Schools

"I Love Boobies."

That’s the breast-cancer awareness slogan adopted by the California non-profit, Keep a Breast Foundation, and banned from schools in California, Florida, South Dakota and Wisconsin.  Kids who've worn t-shirts and bracelets bearing the slogan have been told to remove them or turn them inside-out during class, typically because the slogan is perceived to violate dress code policies that prohibit sexually suggestive language.

Perhaps it’s a close call, but surely there’s a First Amendment concern here, notwithstanding the amount of deference courts tend to give school administrators these days when it comes to student dress codes.

Though students don’t enjoy all of the First Amendment rights they would as adults, they are allowed to engage in non-disruptive silent protests. And it’s hard to see much of a difference between arm bands worn to protest the Vietnam War, which the First Amendment protects, and a bracelet worn to raise awareness about cancer. Onlookers in either situation might be uncomfortable, but that alone doesn’t warrant student censorship unless there’s a real risk that student speech will disrupt school activities or interfere with the rights of other students.

And to say that the slogan is "sexually suggestive" misses the mark. We’re not dealing with a high school assembly, where a student takes the mic, and punctuates his speech with graphic sexual innuendos or profanities. We’re talking about a bracelet or a t-shirt that just happens to say"boobies."

Is that the issue . . . the "boobies?"

Admittedly, school officials enjoy a great deal of leeway when it comes to controlling student speech, particularly when student dress codes are involved. But it’s hard to imagine that there’s much left to student speech rights when they’re prohibited from using common-place slang in their cancer awareness campaign.

-Kathleen Bergin

First Amendment Scholarship Update

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

1. John T. Valauri (Northern Kentucky University - Salmon P. Chase College of Law), Justice Rutledge's Appendix .The abstract states:

Much disagreement and dispute have occurred since the Supreme Court inaugurated the modern era of Establishment Clause doctrine in 1947 in Everson v. Board of Education. Yet rather than turn elsewhere, this article argues that the best path to clarification of this doctrine lies in a return to basics, a return to what that case put forward as the basis of the meaning of the Establishment Clause - Madison’s role in the religious liberty struggle in Virginia in the 1780’s and, above all, in his Memorial and Remonstrance. But this examination focuses on what the justices in Everson did not - the principle of equal religious liberty that underpins that document and Madison’s view of church/state relations generally.

 2. Ronen Bar-El (University of Granada - Campus La Cartuja), Teresa García-Muñoz (Bar Ilan University - Department of Economics), Shoshana Neuman(Bar Ilan University - Interdisciplinary Department of Social Studies), and Yossef Tobol, The Evolution of Secularization: Cultural Transmission, Religion and Fertility Theory, Simulations and Evidence .The abstract states:

This study presents an evolutionary process of secularization that integrates a theoretical model, simulations, and an empirical estimation that employs data from 32 countries (included in the International Social Survey Program: Religion II – ISSP, 1998). Following Bisin and Verdier (2000, 2001a), it is assumed that cultural/social norms are transmitted from one generation to the next one via two venues: (i) direct socialization – across generations, by parents; and (ii) oblique socialization – within generations, by the community and cultural environment. This paper focuses on the transmission of religious norms and in particular on the 'religious taste for children'. The theoretical framework describes the setting and the process leading to secularization of the population; the simulations give more insight into the process; and 'secularization regressions' estimate the effects of the various explanatory variables on secularization (that is measured by rare mass-attendance and by rare-prayer), lending support to corollaries derived from the theory and simulations. The main conclusions/findings are that (i) direct religious socialization efforts of one generation have a negative effect on secularization within the next generation; (ii) oblique socialization by the community has a parabolic effect on secularization; and (iii) the two types of socialization are complements in 'producing' religiosity of the next generation.

3. Kevin J. Worthen (BYU Law School), The NCAA and Religion: Insights About Non-State Governance from Sunday Play and End Zone Celebrations, 2010 Utah L. Rev. 123(2010). The abstract states:

This Essay addresses the topic of religion and non-state governance in a somewhat uncommon way, by considering not how religious groups act as non-state governance entities, but rather, how non-state governance actors address religious issues within their jurisdictional spheres. It does so using the experience of the National Collegiate Athletic Association (NCAA).

The Essay describes the NCAA, establishing its bona-fides as a non-state governance entity. It then examines two situations in which the NCAA has addressed religious issues in the past fifteen years - one involving Sunday play for religiously affiliated universities, and the other involving an effort to penalize prayer celebrations in football games. Finally, the Essay offers a few tentative insights from the NCAA’s experience with religion, concerning the manner in which non-state governance entities do (and should be allowed to) address religious liberty issues.

4. David Allen Larson (Hamline University - School of Law), Adventure Learning: Not Everyone Gets to Play , published in VENTURING BEYOND THE CLASSROOM: VOLUME 2 IN THE RETHINKING NEGOTIATION SERIES, Christopher Honeyman, James Coben, Giuseppo DePalo, eds., DRI Press, 2010.  The abstract states:

Educators/trainers try very hard to be inclusive. But sometimes we adopt learning strategies that have the opposite effect. Unless we are careful, the programs we develop may exclude participants because of disability, ethical issues, cultural differences, spirituality, and religion.

Adventure learning encourages students to physically leave the classroom in order to experience how theoretical models and principles apply in the “real” world. Adventure learning admittedly has substantial value. But the initial rush of enthusiasm must be tempered. When participants are directed to venture out of the classroom in order to perform specific tasks, some individuals may find it impossible to complete those assignments.

When a student, without warning or notice, suddenly is confronted with the fact that an essential part of the learning experience will be experiential, and consequently impossible for him or her to complete, then all participants are harmed. The student will be isolated by the abrupt and complete separation from the group. The characteristic that makes this student different will be highlighted in a dramatic fashion. Unique insights attributable specifically to the experiential nature of the exercise will be unavailable to the student. Although the rest of the students who can participate in the adventure learning exercise likely will report their experiences to the entire group once that group is reassembled, the fact that the excluded student only can hear about an adventure learning experience emphasizes the fact that the excluded individual(s) did not share this learning opportunity.

The harm is not restricted to the excluded individual(s), however. To the degree that we believe that diversity has inherent value and that different perspectives are important, an adventure learning exercise can exclude someone as effectively and completely as a bold lettered “No ‘__s’ Allowed” sign (feel free to fill in the blank). Unique perspectives that may be valuable for the entire group will be lost. Furthermore, adventure learning exercises often lead to more intense and multidimensional experiences than one can have in the classroom. Shared experiences of this nature help create connections, and perhaps even friendships, among those who articipate. Individuals who are excluded, however, not only miss the experience itself, they miss the opportunity to build connections with their fellow participants. Particularly when it comes to programs that last only a few days, this loss can be impossible to overcome and the excluded individuals may be relegated to the periphery of the group.

5. Janet Thompson Jackson (Washburn University School of Law), What is Property? Property is Theft: The Lack of Social Justice in U.S. Eminent Domain Law, 84 St. John's L. Rev. 63 (2010).  The abstract states:

Must the government fulfill a social justice obligation when it takes property and, if so, from where does that obligation arise? Social justice has largely been absent in eminent domain law, particularly in the context of blight removal and economic development condemnations. Government takings too often result in an undue burden on poor people and communities of color in a way that resembles Discovery-era takings of land from American Indians. In the periods of colonization and western expansion of the United States as well as in recent takings, the lack of social justice has had a profound effect: the disproportionate burden and exploitation of people who have the fewest resources - legally, politically, or economically - with which to resist the intrusion of eminent domain.

Rooted in an historical framework of social justice, this article examines the pervasive injustice in the realm of eminent domain. Specifically, the article explores the theory of social justice through four lenses: religion, philosophy, mythology, and the law, all of which share the common theme of a social or institutional responsibility and speak to the challenge of eminent domain abuse. The article then critiques competing social justice theories that appear to represent present-day rationales for both sides of the eminent domain debate. This article asserts that social justice requires justice as fairness. Thus, it requires an end to using “blight” and economic development as a pretext to exploit the poor and people of color. It also means implementing policies to restore communities in a way that would allow low-income residents to stay and enjoy the benefits of such improvements.

In American society, two distinct paths have emerged in achieving social justice: social movements and legal reform. This article looks at some examples of how social and legal reform movements have transformed the legal and political climate and led to greater social justice. This article contends that, even in the midst of post-Kelo social movements and legal reform, many poor communities continue their struggle to exist. Legal reform has, in large part, failed to address the injustice of carte blanche blight condemnations or to significantly limit unjust economic development condemnations. Furthermore, reform efforts have essentially ignored the plight of displaced low-income residents who are left without affordable housing in a neighborhood of their choosing. “Justice, if we only knew what it was” queried Socrates. As it turns out, in the case of eminent domain law, we know what justice should be: the equal ability of citizens, regardless of race, income or any other distinction, to protect their home and community from unwarranted condemnation.

 6. Mohamad Atqa (State Islamic University Syarif Hidayatullah - Centre of Multifaith Education), Religious Expression in Indonesia – A Sociological Study of Ahmadiyya Movement, published in OIDA International Journal of Sustainable Development, Vol. 01, No. 06, pp. 19-31, 2010. The abstract states:

The study attempts to investigate the various issues related to the phenomenon of religious expression in contemporary Indonesian society with particular focus on the study of the Ahmadiyya movement and its impact on the society. Ahmadiyya movement is considered against Islamic beliefs especially due to its teaching that its founder, Mirza Ghulam Ahmad is a Prophet and the Tadzkirah is a holy book next to the Qur’ān. The study discusses complex interplay between Indonesian ‘Ulamā Council (MUI) with its fatwā on the prohibition of Ahmadiyya sect, its proponent, the Radical Conservative Islamist group (RCI) and its opponent the Liberal Islamist group (LIG). RCI groups have pushed for imposition of Sharī’ah to solve Indonesia’s multi-dimensional problems. On the other hand, liberal Islamic groups are promoting a liberal-inclusive approach to Islam in society. This situation has put the government in a dilemma as to the most appropriate move to take in dealing with the matter. Moreover, soon after the issuance of the fatwā, a series of attacks on the compounds, buildings and properties of Ahmadiyya centres have taken place. The attacks seemed to suggest to the ordinary people that the fatwā is crucial and timely and they are responsible to implement it. In this context, it is pertinent to investigate in greater detail the central issue in question i.e. the teaching of Ahmadiyya itself, how do its followers understand Islam, how was the “meaning” of Islam developed by the Ahmadiyya founder and his disciples and what are the local socio-cultural factors that might have further influenced their understanding and practice of Islam. In addition, the study also looks at how such an understanding is seen by the above ‘authorities’ and ‘powers’ within the context of Indonesian socio-cultural milieu as well as the implications of such religious understanding and practice on people. This study adopts a qualitative research approach involving both fieldwork and library research. For the former, it uses mainly interview and participant observation as tools for generating primary data from the research site. The study revealed that there are several factors that seem to have influenced the respondents’ decision to join the movement and their understanding of Islam. Among all factors, one element appears to be the most outstanding, that is, some respondents came from families with religious Islamic background and orientation. Their meaning of Islam also seems to be influenced mainly by their own experiences. It is found that there are similar patterns of experience among the respondents which have shaped their meaning of Islam. The study ends with some suggestions and recommendations in its concluding chapter.

 7. Thomas H. Koenig (Northeastern University) and Michael L. Rustad (Suffolk University Law School), Deciding Whether the Death Penalty Should Be Abolished. The abstract states:

Professors Thomas H. Koenig & Michael L. Rustad’s review essay highlights the importance of Russell Murphy’s recent book, Voices of the Death Penalty Debate: A Citizen’s Guide to Capital Punishment for social science classes as well as the legal academy. This review essay contends that Murphy’s narrative approach to death penalty arguments is pedagogically the most sound approach to thinking about the death penalty.

Lawyers, journalists, and informed members of the public need this book because it dispassionately examines the arguments for and against the death penalty in an innovative format: through witness testimony. The title of this book reflects Murphy’s sincere attempt to present the arguments and the witnesses’ testimony in a fair and impartial manner that is in the best tradition of field studies in sociology. The expert and participant observation witnesses included family members of murder victims, correctional officials, leading law professors and social scientists, academics, criminal defense attorneys, prosecutors, religious leaders, law reformers police officers, exonerated death row inmates, jurists, and celebrities such as Bianca Jagger, ex-wife of Rolling Stone legend, Mick Jagger. This is a “deliberately different” book in that it presents multiple perspectives through the narratives of major participants in the death penalty debates: criminologists, legal academics, social scientists, religious leaders, family members of victims, and former death row inmates vindicated by later discovered evidence. The review essay concludes that this book is a significant contribution to the social science literature in that it enables students, scholars, and policymakers to consider diverse arguments in a format that is fair and balanced.

8. Tom Donnelly (Harvard Law School), A Popular Approach to Popular Constitutionalism: The First Amendment, Civic Education, and Constitutional Change , 28Quinnipiac L. Rev. 321(2010).  The abstract states:

Popular constitutionalists often ignore one of the most important features of popular constitutional culture — the constitutional life of the average citizen. Although these scholars have detailed the key role played by non-judicial actors in promoting non-Article V constitutional change, they have spent little time considering how changes to constitutional meaning become part of our popular constitutional fabric. This Article fills a gap in the literature by examining how popular constitutional meaning is shaped “on the ground,” once the most recent controversy fades and constitutional life returns to normal. To that end, it focuses on a pathway that has been largely ignored by legal scholars — civic education. In particular, this Article scrutinizes the free speech stories presented in our leading high school textbooks. In the end, these popular constitutional narratives are not particularly popular — and have become even less so in recent decades. Furthermore, the patterns of change in these accounts suggest that transformations in our popular constitutional narratives tend to follow periods where key public officials and broad-based social movements promote similar changes to constitutional meaning.

9. Randall P. Bezanson (University of Iowa College of Law), No Middle Ground? A Comment on the Citizens United Decision ,forthcoming in Iowa Law Review. The abstract states:

My interest in this brief essay is to explore precisely what the Court decided in Citizen’s United and the constitutional basis upon which the decision rests. I will turn first to the Kennedy opinion, its broad holding that corporations are first amendment speakers, its logical consequences, and the analytical problems under the First Amendment and Supreme Court doctrine that Kennedy basically ignored. I will then turn to the Scalia opinion and its significance for first amendment theory and doctrine. Finally, I will make the claim that Justice Scalia’s opinion is, for analytical purposes, the governing opinion. At least this is so on all of the “holdings” in the Court’s opinion that Justice Kennedy’s style of decision unnecessarily (in terms of Justice Scalia’s reasoning) reached out to announce. These broad holdings are the very basis upon which the controversy about the decision has rested.

10. Arpan Banerjee, Political Censorship and Indian Cinematographic Laws: A Functionalist Liberal Analysis, 2 Drexel L. Rev. 557(2010).  The abstract states:

Discusses the censorship of political films in colonial and contemporary India. Examines the Cinematograph Act 1952.

11. Douglas Irvin (Division of Global Affairs), Burma's Modern Monks: The Politics of the Sangha's Pro-Democracy Movement. The abstract states:

Late in the summer of 2007, hundreds of thousands of people took to the streets of major cities across Burma to protest their government.1 Nearly the entire ranks of the country's monkhood embarked upon a religious boycott of the state's armed forces, walking past the Burmese military with upturned alms bowls, despite the grave consequences they all knew they would incur. The government crack down was notoriously bloody. The protest, known as the Saffron Revolution, neither promoted social reform, nor rallied a successful international response against the ruling junta, which calls itself the State Peace and Development Council (SPDC) (Selth, 2008). Three years later, the resistance movement has faded from world headlines and the SPDC has strengthened their power over government while effectively barring opposition leader Aung San Suu Kyi from partaking in upcoming elections. Burma is at a crossroads, not in the least because the elections slated for the end of 2010 are widely seen as sham elections intended to solidify the military's position in power, which will test the resolve of the pro-democracy movement.

JFB

First Amendment Protects Tattoo Artists

Tattoo artists won a victory in the Ninth Circuit last week when the court struck down a municipal ordinance that effectively banned tattoo parlors. The court held that tattooing was "purely expressive activity" akin to a pen and ink drawing, rather than expressive conduct, and that the city had not demonstrated why it’s health and safety concerns could not be adequately addressed through regulations, instead of an outright ban.

Anderson v. City of Hermosa Beach

-Kathleen Bergin

Global Free Speech Update

 

Global Free Speech Update

 

Japan:  a UN working group slams the conviction of two greenpeace activists who had disclosed evidence of corruption in the country’s controversial whaling industry, saying it raises significant free speech and free press concerns under the ICCPR.

South Africa:  the ANC is vetting a media reform bill that would establish a tribunal with the authority to punish journalists for the content of their reports. Party officials insist that the bill is still being tweaked, but free speech stakeholders are alarmed that it is even being considered.

Mexico:  The Committee to Protect Journalists calls on the national government to end the culture of impunity that has allowed attacks against journalists and media workers to go unpunished.  More than 30 journalists have been killed in Mexico over the past 4 years, most in retaliation for reporting on organized crime.

Costa Rica: access to the internet is a fundamental right, so declares the Constitutional Court in Costa Rica. The government will reportedly prioritize the development of telecommunication technology across the country in light of the ruling.  Last year, the high court in France reached a similar conclusion, striking down a three-strikes law that barred internet access as a punishment for computer piracy. 

-Kathleen Bergin

Gainesville Pastor Agrees to Cancel Koran Burning Event, Plans Meeting with Imam Rauf

The New York Times reports that Pastor Terry Jones of the Dove World Outreach Center has announced that he will cancel the announced September 11 Koran burning event and has arranged to meet with Imam Rauf of the Cordoba Initiative.

JFB

Emergency Interfaith Summit Convened to Denounce Anti-Islamic Bigotry

The New York Times and Reuters provide coverage of yesterday’s emergency interfaith summit at which a broad cross-section of American religious leaders came together to condemn the mounting wave of hostility toward Islam and toward American Muslims.  CSPAN provides video of the summit press conference, and the Islamic Society of North America provides the text of the leaders’ summit statement. 

The convened leaders later met with Attorney General Eric Holder regarding the need to protect mosques, Islamic community centers, and Muslim citizens from bias-inspired violence.  The planned Koran burning by the Dove World Outreach Center in Gainesville, Florida drew widespread condemnation at the meetings. However,  Dr. Sayyid M. Syeed, National Director of the Islamic Society of North America’s Office of Interfaith And Community Alliances, noted that the activities and statements of the Dove Center pastor had prompted unprecedented interfaith collaboration among the diverse religious communities of Gainesville as they joined together to speak out against attacks on Islamic believers, to defend religious freedom, and to educate each other about each communities' beliefs and traditions.   

JFB 

 

 

 

 

Gen Petraeus: Planned Florida Koran Burning Puts Troops at Risk

Today’s Washington Post quotes General Petraeus reacting to the planned September 11 Koran burning to be held at Gainesville’s Dove World Outreach Center:

I am very concerned by the potential repercussions of the possible Koran burning. Even the rumor that it might take place has sparked demonstrations such as the one that took place in Kabul yesterday. Were the actual burning to take place, the safety of our soldiers and civilians would be put in jeopardy and accomplishment of the mission would be made more difficult….Images of the burning of a Koran would undoubtedly be used by extremists in Afghanistan - and around the world - to inflame public opinion and incite violence. Such images could, in fact, be used as were the photos from [Abu Ghraib]. And this would, again, put our troopers and civilians in jeopardy and undermine our efforts to accomplish the critical mission here in Afghanistan.

The Wall Street Journal provides Reuters video of the protest in Kabul yesterday where hundreds of Afghans gathered to urge America to stop the desecration of the Koran.   

JFB
 

New Gallup Data on Religiosity and Comparative National Wealth

A new report on religiosity around the globe includes the following findings: 

Each of the most religious countries is relatively poor, with a per-capita GDP below $5,000. This reflects the strong relationship between a country's socioeconomic status and the religiosity of its residents. In the world's poorest countries -- those with average per-capita incomes of $2,000 or lower -- the median proportion who say religion is important in their daily lives is 95%. In contrast, the median for the richest countries -- those with average per-capita incomes higher than $25,000 -- is 47%.

The United States is one of the rich countries that bucks the trend. About two-thirds of Americans -- 65% -- say religion is important in their daily lives. Among high-income countries, only Italians, Greeks, Singaporeans, and residents of the oil-rich Persian Gulf states are more likely to say religion is important.

Most high-income countries are further down the religiosity spectrum. In 10 countries, no more than 34% of residents say religion is an important part of their daily lives. Six of those are developed countries in Europe and Asia with per-capita incomes greater than $25,000.

In three of the four lower income countries on the list -- Estonia, Russia, and Belarus -- the Soviet government restricted religious expression for decades until the U.S.S.R.'s collapse in 1991. The final country is Vietnam, where the government also has a history of limiting religious practice.

An earlier Gallup report noted the existence of a stronger relationship between religiosity and a sense of emotional wellbeing in poor countries than in affluent, developed states.

JFB

Video of Sarah Barringer Gordon’ s U of Chicago Lecture on “The Spirit of the Law: Separation of Church and State from 1945-1990”

 A video of Penn Professor Sarah Barringer Gordon delivering the 2010 Fulton Lecture on Legal History is available on the University of Chicago Law School’s website.  Gordon’s address is drawn from research presented in her new book, The Spirit of the Law - Religious Voices and the Constitution in Modern America, published by Harvard University Press.

Hat tip to Legal History Blog

JFB

Europe’s Islamophobia

The Christian Science Monitor examines the experience of European Muslims in the wake of increasingly virulent Islamophobia, which has spawned anti-Islamic laws, such as Switzerland’s minaret ban.  As France moves closer to enacting a ban on burqas, the Washington Post looks at how the measure could harm French tourism and relations with countries with large Islamic populations.   

JFB

American Muslims Face Hostility, Seek Acceptance by Fellow Citizens

In the wake of the NYC Islamic community center construction controversy, the setting of a fire at a Tennessee mosque, and a Florida congregation’s plans to burn Korans to mark the upcoming 9th anniversary of the September 11 terror attacks, today’s NYTimes features an article poignantly titled “American Muslims Ask, Will We Ever Belong?”.

JFB

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on religion and speech topics:
 
1.  Peter Danchin (University of Maryland School of Law), Islam in the Secular Nomos of the European Court of Human Rights . The abstract states:

Since 2001, the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political order in Europe. These controversies raise anew two critical questions for ECHR jurisprudence: the first regarding the proper scope of the right to religious freedom; and the second regarding the conceptual relationship between religion and the public sphere internal to not only European nation-states but the supranational nomos of the Strasbourg Court itself.

The Article argues that a complex historical and normative relationship between Christianity and secularism can be seen to continue to define the modern contours and shape of the public sphere and the right to religious liberty alike and that assertions of claims of right by Muslims have thus made visible both the historical contingency and cultural particularity of these norms and forms of legal ordering. An argument is advanced which views the Court’s reasoning under Article 9 as entangled with not one but two rival liberal traditions: one dialogic which defines the right to religious liberty in strongly value pluralist terms and the public sphere in terms of social peace; the second rationalist which defines the right more narrowly in terms of autonomy and rational choice and the public sphere in terms of a particular substantive theory of justice. The Article concludes by suggesting that a better understanding of how religious freedom emerged in early modern moral and political thought will show that the second pluralist strand is deeply encoded in the logic and normative structure of Article 9 and how this may open new pathways by which to re-imagine the current limits of the Court’s jurisprudence.

2.  Robert Johns and Graeme Davies (University of Strathclyde and University of Leeds), Democratic Peace or Clash of Civilisations? Target States and Support for War in Britain and the USA. The abstract states:

Research on public support for war has shown that citizens are responsive to the objectives of military action, the chances of success, the interests at stake and other strategic factors. Less attention has been paid to the nature of the target state: are some states just “the kind of countries that we should/should not be attacking”? In this comparative study we look at two features of the target state – regime type and dominant faith – in order to test whether the ‘democratic peace’ and the ‘clash of civilizations’ these are reflected in US and British public opinion on the use of force. The same survey experiment was administered over the internet to American and British samples. Our main results show little difference across the two cases: both publics were somewhat more inclined to use force against dictatorships than against democracies, and against mainly Islamic than against mainly Christian countries. The clash of civilizations seems to trump the democratic peace, with citizens in both countries readier to use force against Islamic democracies than Christian dictatorships. Religion played no moderating role in Britain: Christians and non-believers were alike readier to attack Islamic than Christian states. However, in the US, the dominant faith effect was driven entirely by Christians; it seems that secular Americans refuse to take part in any clash of civilizations. The results suggest that public judgements are driven more by international images and identities than by strategic calculations of threat.

3.  Nancy Wadsworth (University of Denver), Could this be Political Anthropology? Reflections on Studying Conservative Evangelical Subcultures. The abstract states:

For the last three decades (and in fact, the length of U.S. history), faith-based social and political movements – right, left, and center – have been sculpting the American political landscape. Yet the vast majority of our discipline’s coverage of religion and politics (at least in the U.S.) has, until recently, depended on quantitative analysis, usually using large-scale survey and opinion polling on attitudes, practices, and beliefs. If political scientists hope to understand religious politics and faith-based social change efforts in more than superficial, stereotyping ways, we must be willing to explore religious subcultures up close. That involves developing a set of ethnographic research skills that may be less familiar (or comfortable) for political scientists than for sociologists and anthropologists. To some extent, it means carrying out creative observational and interactive research at the fuzzy (and undertheorized) boundary between the realms of “culture” and “politics”.

This paper summarizes insights from a multi-methods book project I am completing on racial change efforts among contemporary evangelical Protestants in the U.S. Participants in this movement draw on theology- and culture-based resources to promote a variety of racial change outcomes, including racial reconciliation processes, multiethnic church-building, and cross-racial political coalitions. In addition to using textual analysis, survey data, and interviews with participants in the movement, I conducted ethnographic research in a variety of evangelical cultural contexts (sermons, meetings, prayer groups, workshops, actions), and developed long-term, discussion-based relationships with a few movement leaders. I will discuss the lessons learned and the potential minefields to avoid in studying religious subcultures. My hope is that other political scientists, particularly those working on faith-based movements and the intersections of identities (race, religion, class, gender, etc.) will benefit from these reflections on how we can develop smarter, more creative and nuanced studies of culture and politics.

4. Nadia N. Sawicki (Loyola-Chicago School of Law, Beazley Institute for Health Law & Policy ), The Hollow Promise of Freedom of Conscience. The abstract states:

Freedom of conscience has long been touted as a fundamental principle of American society. Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Indeed, many current policy debates – including debates about the right of medical providers to refuse involvement in controversial procedures, and the right of voluntarily enlisted military personnel to withdraw from armed conflict – are predicated on the theory that claims of conscience are worthy of legal respect. This Article challenges established assumptions, demonstrating that the principle of freedom of conscience has little concrete support in positive American law.

This Article first fills a gap in legal scholarship by broadening traditional understandings of what it means to make a claim of conscience to include cases such as tax evasion, civil disobedience, terrorism, and discrimination. It then analyzes the law’s treatment of conscience across these various substantive realms, critiquing each of the justifications that have been offered for treating some cases more favorably than others. The Article concludes that positive American law does not in fact support a general principle of freedom of conscience; rather, it accommodates conscience only in sui generis cases that align with generally accepted moral principles. By raising our consciousness of conscience in this manner, the author hopes to reframe the debate about the normative value of conscience in American society and promote a more principled jurisprudence of accommodation for conscientious beliefs.

5. Lorenzo Zucca (King's College London School of Law ), Crucifix in the Classroom: The Best Solution to the Lautsi Case.The abstract states:

In this article I discuss the Lautsi case, probably the most talked about human rights case in recent years which deals with the presence of the crucifix in Italian classrooms, and I also reply to some considerations offered by Prof. Weiler in his pleadings before the Grand Chamber of the ECtHR. The central question as I understand it is the following: How can the state treat people with different religious and philosophical convictions in a way that guarantees equal concern and respect? I suggest that the best solution is for the state to involve parents in the decision-making at the local level. Concretely, the state should allow, and possibly promote, debates in every school as to which symbol is most suited for the classroom.

6. Patrick Parkinson (University of Sydney Law School) ,  Kim Oates (University of Sydney, Faculty of Medicine, Discipline of Paediatrics & Child Health), and Amanda Jayakody, Breaking the Long Silence: Reports of Child Sexual Abuse in the Anglican Church of Australia, published in Ecclesiology, Vol. 6, No. 2, pp. 183-200, 2010. The abstract states:

In the last 15 years, there has been extensive study of the problem of child sexual abuse in the Catholic Church. However little is known about the issue of child sexual abuse in other Churches. This article reports on a retrospective study of 191 cases of complaints of child sexual abuse in the Anglican Church of Australia. The accused were clergy, other employed pastoral staff and volunteers helping in church run programs for children and young people between 1990 and 2007. Three quarters of all complainants were male. On average, it took men 25 years to bring forward a complaint, compared with 18 years for women. Males were also less likely than females to report the abuse during childhood. Likely reasons for delay in reporting included threats made at the time, and lack of family support for the complainant, particularly boys. Media reporting of child sexual abuse in the Church was a major factor in encouraging victims to come forward. The study demonstrates the need for all churches to develop programs to deal with historic child sexual abuse. There is little reason to think that the major surge of complaints of historic abuse is now over.

7. Meir Katz (Georgetown University Law Center ), The Economics of Section 170: A Case for the Charitable Deduction of Parochial School Tuition. The abstract states:

That payments for parochial school tuition are not deductible under Section 170 of the Internal Revenue Code is a foregone conclusion in the eyes of many tax policy scholars. Tuition provides an easy case because the donor receives something of great value in return for his donation: the education of his children. This Article questions that conclusion. By taking a close look at the economics behind these tuition payments in the context of a discrete population, the religious Jewish community, I show that traditional economic assumptions are inappropriate for analysis of those payments. Rather than a traditional economic exchange for economically valuable services, tuition payments should be characterized as payments made for unique and vital religious services-payments in exchange for an intangible religious benefit. The benefit of education, so characterized, is not different from many other intangible religious benefits for which corresponding payments are fully deductible. With that observation, I apply traditional tax policy analysis and the policy justifications for Section 170 to payments for parochial school tuition and present an argument for the deduction of tuition payments.

8. Jorge Elorza (Roger Williams University School of Law ), Secularism and the Constitution: Can Government Be Too Secular?, forthcoming in Pittsburgh Law Review. The abstract states:

When the “jurisdictions” of religion and science overlap, the conclusions they each reach sometimes conflict. For example, religiously conservative views towards sex or towards the formation of the universe may be undermined by the secular instruction students receive in public schools. With respect to normative matters, such as views towards sex, courts have resolved the conflicts by stating that public school teachers can neither directly contradict religious beliefs nor compel adherence to the secular view. With respect to empirical matters, such as how planets formed, however, courts have implicitly recognized, although never expressly stated, that a different standard must apply. So long as sufficient evidence exists to support an empirical claim, a public school may teach it. The fact that it directly contradicts a deeply held religious belief, as does evolution for example, is irrelevant.

How far does this principle extend? If scientific evidence leads us to conclude that a particular aspect of God cannot be true, can this be taught in the public schools? In order to explore this issue, I first lay out a framework that precisely isolates the tension that exists between religion and science and that introduces the concept of the memist God. Based on the concept of the meme, the memist God is used to distinguish between theist, deist and atheist views. Second, I examine the extent to which science has spoken to the question of God’s existence and I determine that it has certainly addressed one particular aspect. Specifically, science has disconfirmed the claim that the theist God has the power to violate the laws of physics. Last, once the issues are properly identified and the framework set, I explore whether teaching the non-existence of the theist God would violate the underlying values of the religion clauses. I conclude, first, that teaching that the theist God does not exist would not violate any of the underlying values and second, that the consequences of doing so are not as far-reaching as may be initially believed.

9. Asher Cohen,  Moshe Hellinger and Bernard Susser, (Bar-Ilan University - Department of Political Studies ),  The Influence of Participation in Democratic Processes on Religious Parties in Israel. The abstract states:

The inclusion-moderation theory points to the fact that tendency toward moderation is frequent among religious parties that have some well-established moderate features. This indeed seems to be the case in Israel. The Ashkenazi ultra-Orthodox parties are not marked by any significant activist and extremist ideological components that aim to transform the political order. As to the National Religious camp, in the early days it was small, operating in the shadow of the dominant, state-founding Mapai (Israel Worker’s Party), and as such it was necessarily inclined toward moderation. This state of affairs changed dramatically after the national elections of 1977, when the National Religious camp became the leading force of the right-wing opposition to any peace program that included the evacuation of settlements. Retaining, however, a significant element of moderation, the National-Religious party was committed to the notion that the state was above party politics. This moderate orientation clearly manifested itself in the disengagement from Gaza in 2005, which involved the dismantling of Jewish settlements.
Another aspect of moderation is the inner workings of democracy within the National Religious Party, which are in contra-distinction to the charismatic, non-democratic rabbinical leadership of the ultra-Orthodox parties. While the National Religious Party conducts its affairs through democratic, bureaucratic procedures, these very procedures may have weakened it in the long run. Thus, its relative openness to a democratic political culture contributed to the ‘leakage’ of many votes to the secular parties, mostly to the right-wing Likud.

One of the most important features of party politics in Israel is the effect of the participation in the national elections on the emergence of intra-party conflicts. The decision of the ultra-Orthodox Agudat Yisrael party to enter the coalition after the Likud rose to power (1977) set the stage for the party splits to two new parties the Ashkenazi Degel Hatorah party and the Sephardi Shas party. The availability of government financial support seems to have encouraged these splits.

10. Lindsay Benstead,  Effects of Interviewer Gender and Religious Dress on Gender-Related Survey Responses: Findings from a Nationally-Representative Field Experiment in Morocco. The abstract states:

With the expansion of social surveys in the Muslim world, researchers are increasingly interested in studying salient political and social issues. Yet, few published studies have addressed methodological questions, including the impact of the interviewer on survey responses and data quality. In light of this gap, this paper asks whether and how two observable interviewer characteristics, gender and religious dress, affect responses to survey questions pertaining to women’s rights in the Muslim World. The paper argues that, because of the gendered nature of religious dress, interviewer gender and dress cannot be treated as single analytical categories affecting responses in the Muslim world. Rather, because the hijab implies multiple and intersecting personal, religious, and political dimensions of identity and these dimensions are nested within gender identity, data collected on a broad range of questions in nationally-representative social surveys are likely to be affected by observable interviewer traits. Drawing upon data from a nationally-representative, randomized survey of 800 Moroccans conducted in 2007, the study finds strong evidence that gender and dress affect responses and item non-response to gender-related items. For questions pertaining to women’s role in the public sphere, respondents reported more progressive attitudes and were more likely to refuse to respond to female interviewers not wearing hijab than to male or veiled female interviewers. For support for international standards of gender equality in family law, respondents reported more liberal views and were more likely to refuse to respond to female interviewers with both styles of dress than to their male counterparts. Critically, the magnitude of coefficients on some independent variables changed when interviewer traits were controlled for, affecting substantive interpretation of factors explaining gender-related attitudes. Non-gender-related survey questions, including those measuring support for democracy and personal religiosity, were also affected by interviewer traits. The results suggest that, in the context of a social interview, respondents do not essentialize the veil as merely a political symbol or regard the cleavage between traditionalists and modernists as the sole basis of conflict over gender relations. Further, the results suggest that data collected on a broad range of questions in nationally-representative social surveys are likely to be affected in a non-trivial way by interviewer bias and that researchers may consider coding interviewer characteristics in datasets and later controlling for them in analyses.

11. Anca Parmena Olimid (University of Craiova - Department of Political Sciences ), The Theory of the Ecclesiastical Government – Moral, Political and Legal Issues in Mill’s Theory (In Romanian).  The abstract states:

The purpose of this work is to contribute to an enrichment of the knowledge concerning the religious liberty and the regime of cults of the past two centuries. The present work is not only an introduction in the analysis of the post-French Revolution ideological and religious system, but also an inter-disciplinary study. A noteworthy approach is taken with the analysis of the incitements concerning the religious liberty in Mill’s theory. In this perspective, the article analyses the transformations of the European spiritual environment through a parallel between Mill’s philosophical ideas and the religious practices of the XIXth century. A special place is devoted to the analysis of the rise of the political theory of liberty and participation in Western Europe. The principles of the “ecclesiastical government” are also rigorously highlighted.

12. Christopher C. Lund (Wayne State University Law School), Salazar v. Buono and the Future of the Establishment Clause , forthcoming in Northwestern University Law Review Colloquy (2010). The abstract states:

This short Colloquy essay reflects on the Supreme Court's recent decision in Salazar v. Buono, 130 S. Ct. 1803 (2010). The case involved a constitutional challenge, brought under the Establishment Clause, to a cross put up by private parties on government land in the Mojave National Preserve. This piece reviews the issues presented by the case (only some of which were addressed by the Supreme Court), and considers the future of the Establishment Clause in that light.

13. Bryan L. Adamson (Seattle University School of Law ), The Muslim Manchurian Candidate: Barack Obama, Rumors, and Quotidian Hermeneutics.The abstract states:

This article examines the rumors about President Barack Obama which accused him of being Muslim, unpatriotic, and a terrorist sympathizer. Despite ample evidence that the rumors were patently false, on Election Day, fully 10% of the voters continued to believe that he was Muslim. In addition, many continued to harbor the pernicious racial, socio-ethnic, and religious biases that shaped the rumors. This article asks, and answers “why” the rumors persisted.

This article provides an answer from a unique communication theory perspective. This article first mines the sources of the Obama rumors, and how those rumors were amplified in the media. Next, using semiotic concepts, the article illuminates how the Obama rumors played upon themes of patriotism, “American-ness,” race, and Islamophobia. This article then takes its most novel approach by setting forth the contours of rumor communication, and the central role quotidian hermeneutics played in embedding the Obama rumors.

“Quotidian hermeneutics” is a method by which to analyze everyday conversations. Specifically, conversations amongst in-group members have an underappreciated impact on voters’ source of information and voting decisions. By examining the characteristics and conversational properties of rumors, this article demonstrates how peer groups engaged in quotidian discourse helped re-frame, mediate, and reinforce the Obama rumors. The value of this article lies in two facts: first, the rumors of Obama’s Muslim allegiances were believed in numbers sufficient to tip the election. Second, with regards to issue-based decision making, interpersonal communication represents a significant source of political information and voter influence. Thus, what likely voters discussed in everyday conversation, and how they discussed the Obama rumors provides one answer as to why the Obama rumors persisted.

14. Margaret Tarkington (Brigham Young University - J. Reuben Clark Law School ), A First Amendment Theory for Protecting Attorney Speech. The abstract states:

In June 2010, the United States Supreme Court held that Congress could constitutionally prohibit attorneys from providing legal assistance and advice regarding lawful nonviolent conduct to groups that the Secretary of State has designated as Foreign Terrorist Organizations (FTOs). The plaintiffs, Ralph Fertig and the Humanitarian Law Project, wished to assist two such FTOs invoke international human rights law, petition the United Nations and United States Congress, and peacefully resolve their disputes. The Supreme Court held that the statute clearly prohibited plaintiffs’ proposed activities, but did not violate the Free Speech Clause of the First Amendment because the attorneys could still engage in “independent advocacy” of any message they wished to promote. Allegedly, the plaintiff attorneys’ First Amendment rights were not abridged because the law merely criminalized (with a potential fifteen-year prison sentence) their speaking “in coordination with or under the direction of” their proposed clientele.

Holder v. Humanitarian Law Project underscores some of the distinctive problems associated with restrictions on attorney speech. Unfortunately, as demonstrated by the Court’s opinion, as well as Justice Breyer’s impassioned dissent, there is not a workable First Amendment methodology for analyzing restrictions on attorney speech.

Indeed, many regulations on attorneys can be couched as restrictions on attorney speech because the work of an attorney is done primarily through oral and written communications. Attorneys – through their speech – play a key role in providing access to justice and the fair administration of the laws. They provide to clients speech that has the force of law and that is intended to invoke or avoid the power of government in securing individual or collective life, liberty, or property.

In this paper, I propose a new access-to-justice theory of the First Amendment to be used in examining the constitutionality of restrictions on attorney speech – regardless of the regulating entity. The access-to-justice theory proposes that where attorney speech is key to providing or ensuring access to justice or the fair administration of the laws, it needs special protection under the Free Speech Clause, akin to the core protection afforded political speech. The paper identifies four types of attorney speech that deserve this high level of protection, namely, (1) the power to invoke the law on a client’s behalf; (2) the provision of legal advice regarding proposed or past client conduct; (3) the ability to raise relevant and colorable arguments in court proceedings; and (4) the ability to preserve the Constitutional rights of others.

Traditional self-regulation of attorneys preserved, although imperfectly, the special role of attorneys in our justice system because, in theory, the judiciary as regulator understood the attorney’s role. By providing First Amendment protection to attorney speech that is essential to our justice system, the access-to-justice theory also safeguards the attorney’s essential role as self-regulation declines and regulation is imposed by national and intergovernmental entities, including legislative entities subject to majoritarian pressures.

15. Margaret Tarkington (Brigham Young University - J. Reuben Clark Law School ), Government Speech and the Publicly Employed Attorney, forthcoming in Brigham Young University Law Review. The abstract states:

In Garcetti v. Ceballos, the U.S. Supreme Court incorporated the “government speech” doctrine into its case law regarding the speech rights of public employees. This incorporation had the effect of nullifying a public employee’s free speech rights whenever the employee is speaking pursuant to her official duties. While the Garcetti rule may be problematic in a number situations, it is particularly problematic as applied to publicly employed attorney speech, most notably the speech of prosecutors and public defenders. Attorney speech (including the speech of publicly employed attorneys) is not government speech and should not be treated as government speech.

A major premise of the government speech doctrine – allowing the government to make expressive choices – does not apply to criminal process. Compliance with the Constitution upon prosecution of an individual is not an “expressive choice” left to government discretion. The primary justification underlying the government speech doctrine is that government speakers will be responsible for the messages they promote through political accountability. Such political accountability does not exist for attorney speech aimed at preserving the rights of criminal defendants. More importantly, political accountability is both insufficient and inadequate to protect the constitutional rights and interests at stake. Indeed, in the criminal process context, the content of the “government message” is dictated by the Constitution and the role of attorneys in our system of justice. Finally, the scope of government control inherent in the theory and practice of the government speech doctrine is at odds with and interferes with the core function of the publicly employed attorney.

16. Tabatha Abu El-Haj (The Earle Mack School of Law at Drexel University ), Changing the People: Legal Regulation and American Democracy, 86 N.Y.U.L.Rev. ---- (2011). The abstract states:

The world in which we live, a world in which law pervades the practice of democratic politics – from advance regulation of public assemblies to detailed rules governing elections – is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today. Exposing this history challenges two core assumptions driving the work of contemporary scholars who write about the law of the American political process. First, the nineteenth-century mode of regulating politics belies the existing literature’s assumption that law must extensively structure democratic politics. Second, this account of nineteenth-century American democracy serves as a reminder that elections, political parties and voting, while critical to democracy, are not the whole deal. It thereby challenges Law of Democracy scholars to move beyond the existing literature’s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America.

17. Lucian A. Bebchuk (Harvard Law School) and Robert J. Jackson Jr. (Columbia Law School ), Corporate Political Speech: Who Decides?, forthcoming in Harvard Law Review. The abstract states:

As long as corporations have the freedom to engage in political spending - a freedom expanded by the Supreme Court’s recent decision in Citizens United v. FEC - the law will have to provide rules governing how corporations decide to exercise that freedom. This paper, which was written for the Harvard Law Review’s 2010 Supreme Court issue, focuses on what rules should govern public corporations’ decisions to spend corporate funds on politics. Our paper is dedicated to Professor Victor Brudney, who long ago anticipated the significance of corporate law rules for regulating corporate speech.
Under existing corporate-law rules, corporate political speech decisions are subject to the same rules as ordinary business decisions. Consequently, political speech decisions can be made without input from shareholders, a role for independent directors, or detailed disclosure - the safeguards that corporate law rules establish for special corporate decisions. We argue that the interests of directors and executives may significantly diverge from those of shareholders with respect to political speech decisions, and that these decisions may carry special expressive significance from shareholders. Accordingly, we suggest, political speech decisions are fundamentally different from, and should not be subject to the same rules as, ordinary business decisions.

We assess how lawmakers could design special rules that would align corporate political speech decisions with shareholder interests. In particular, we propose the adoption of rules that (i) provide shareholders a role in determining the amount and targets of corporate political spending; (ii) require that political speech decisions be overseen by independent directors; (iii) allow shareholders to opt out of - that is, either tighten or relax - either of these rules; and (iv) mandate disclosure to shareholders of the amounts and beneficiaries of any political spending by the company, either directly or indirectly through intermediaries. We explain how such rules can benefit shareholders. We also explain why such rules are best viewed not as limitations on corporations’ speech rights but rather as a method for determining whether a corporation should be regarded as wishing to engage in political speech. The proposed rules would thus protect, rather than abridge, corporations’ First Amendment rights.

We also discuss an additional objective that decisional rules concerning corporations’ political speech decisions may seek to serve: protecting minority shareholders from forced association with political speech that is supported by the majority of shareholders. We discuss the economic and First Amendment interests of minority shareholders that lawmakers may seek to protect. We suggest that decisional rules addressing political spending opposed by a sufficiently large minority of shareholders are likely to be constitutionally permissible, and we discuss how such rules could be designed by lawmakers.

18. Paul M. Secunda (Marquette University - Law School), Neoformalism and the Reemergence of the Rights/Privilege Distinction in Public Employment Law. The abstract states:

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, a new version of the unconstitutional conditions doctrine has been increasingly used to rob public employees of their constitutional rights.
Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although initially developed in the government as sovereign context, this subsidy approach to the unconstitutional conditions doctrine has now infiltrated the government as employer context and eviscerated large parts of the holding in Pickering v. Bd. of Education. Third, and most significantly, the subsidy approach in the government as employer context has morphed into the government speech doctrine, through which the government employer claims the speech of its employees as it own and regulates it freely. It is this neoformalism of the subsidy school that explains the reemergence of the privilege-right distinction in public employment law.

This article argues for the restoration of Pickering, its constitutional balancing standard, and the penalty version of the unconstitutional conditions doctrine. Only when government actions that practically truncate the rights of public employees are not tolerated, will public employees be able again to speak without fear of retribution, assume the role of the vanguard of the citizenry, and protect fellow citizens from government fraud, waste, and abuse.

19. Robert A. Kahn (University of St. Thomas School of Law - Minnesota), Tragedy, Farce or Legal Mobilization? The Danish Cartoons in Court in France and Canada.  The abstract states:

Why would anyone prosecute the Danish Cartoons? Even as North Americans and Europeans debated whether the cartoons should have been commissioned by the Jyllands Posten or republished elsewhere, most agreed that prosecutions were totally out of line in a liberal Western state. And, yet, there were prosecutions in both France and Canada. While each prosecution ultimately failed from a legal perspective, both cases also operated on the level of symbolic politics. Here the results were mixed. While the Muslim groups that sued Charlie Hebdo won a partial victory when a French court conceded that the turban cartoon was, standing alone, offensive to Muslims, the Canadian Human Rights prosecution against Ezra Levant ended with the entire system of human rights proceedings on trial. This paper tells the story of these two cases.

20. Geoffrey Christopher Rapp (University of Toledo - College of Law ), Defense Against Outrage and the Perils of Parasitic Torts , forthcoming in Georgia Law Review. The abstract states:

In Snyder v. Phelps, the Supreme Court will soon weigh whether protestors at a slain soldier’s funeral committed the tort of Intentional Infliction of Emotional Distress (IIED) or engaged in protected speech. Imagine that Mr. Snyder, the IIED plaintiff and soldier’s father, had, rather than bring a tort claim, used physical force to defend himself from the arguably tortious conduct of Phelps and his crowd. Can force be used to defend against intentional extreme or outrageous conduct threatening a person with severe emotional distress? The answer in the case law and articulated doctrine appears to be “no.”
Two prominent narratives in tort law scholarship address the increasing recognition of claims for loss of emotional tranquility and the expanding privilege to use force in defense of self and others. This Article explores a puzzle in tort law that challenges these traditional accounts. The law permits the use of force to protect dignitary interests, in the case of offensive battery and assault, but seems to deny the use of force to protect against IIED. No basis for this distinction appears in the leading theoretical accounts of tort law – economics, corrective justice, and civil recourse theory. Rather, the basis of the rule seems to be the childhood maxim, “Sticks and stones…,” without strong theoretical or policy justification.
Two implications arise. First, the law continues to privilege physical security above emotional well-being. Second, although it is arguably the most successful “new” tort of the twentieth century, IIED remains a tort whose boundaries are murky and whose place in tort doctrine is unclear. The parasitic nature of IIED has complicated the effort to build clear doctrine around all but the most essential elements of the claim.

JFB

California Finds Limited Support from State AG’s for Defense of Violent Video Games Law

In April, the Supreme Court granted California’s petition for certiorari after the Ninth Circuit ruled the state’s statute banning the sale of violent video games to minors violated the First Amendment.  The Act applies to games that depict "killing, maiming, dismembering, or sexually assaulting an image of a human being" in a manner that meets the following criteria: (1) A reasonable person, considering the game as a whole, would find that it appeals to a deviant or morbid interest of minors; (2) it is patently offensive to prevailing standards in the community as to what is suitable for minors, and; (3) it causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.  Significantly, the law does not bar a parent or guardian from purchasing or renting games for a minor.

The Ninth Circuit ruling in Video Software Dealers Ass'n v. Schwarzenegger,  556 F.3d 950 (9th Cir. 2009), followed in an unbroken series of eight federal court ( two appellate court and six district court)  decisions, all finding such efforts to regulate the sale of violent video games constitutionally infirm and refusing to treat violent video games as a form of obscenity for minors.  Although last term’s decision in U.S. v. Stevens signaled strong resistance on the Court to carving out further exceptions from First Amendment protection in order to prevent harms allegedly linked to controversial expression, California and its amici hope the cert grant suggests the Court is open to their defense of the law.

However, only eleven states’ Attorneys General have signed on to a recently filed amicus brief supporting California’s law. A Law.com article cites a number of reasons for the reluctance among state AG’s to join the case as amici supporting California: the weight of prior precedent against laws of this kind, a sense that government intervention in this area displaces appropriate parental responsibilities for controlling children’s video game play, and apprehensions that the studies cited in support of the law, studies linking violent game play to subsequent aggression, could lay the groundwork for a new defense in criminal cases involving defendants who were violent video game players. 

The documents filed thus far in Schwarzenegger v. Entertainment_Merchants_Association   are available from the SCOTUSblog wiki for the case.  

JFB 

 

 

For Tea Party Movement, Religious Divisions May Lurk Within

The Washington Monthly has an interesting piece examining how the calls for a national religious revival at this weekend’s Glenn Beck rally potentially mask significant divisions about whose God and what faith attendees should use as their political guide.  The article addresses the reservations that some otherwise sympathetic to Beck’s political rhetoric express about his Mormonism.  As reported in the Washington Post, this potential fissure along religious lines comes as Beck, appearing on Fox News, questioned whether President Obama’s beliefs are truly Christian. Asserting that belief in “liberation theology” is central to the President’s  “belief structure," Beck explains his theological questions about what the President’s policy choices as follows:

You see, it's all about victims and victimhood; oppressors and the oppressed; reparations, not repentance; collectivism, not individual salvation. I don't know what that is, other than it's not Muslim, it's not Christian. It's a perversion of the gospel of Jesus Christ as most Christians know it.

JFB

Redaction of Religious Verse from School Fundraising Project Flyer Was Unconstitutional Viewpoint Discrimination, Not Necessary Avoidance of Establishment Clause Violation

A recent opinion from the U.S. District Court for the Southern District of Texas has found that the Katy Independent School District misconstrued its duties under the Establishment Clause and imposed what amounted to unconstitutional viewpoint discrimination in its handling of a school fundraising initiative. The district planned to raise money by selling holiday greeting cards made from student artwork. (One might ask who could not foresee controversy and potential litigation arising out of this choice of fundraising vehicle.)  Parents could purchase cards featuring a drawing by their child and imprinted with one of twelve preselected messages.  The card fundraiser was conducted using ordering materials prepared by an outside ( and regrettably grammatically impaired ) vendor, a company called “Its My Artwork.”   The order form for the cards offered a range of alternative messages:

Wishing you a Merry Christmas and a Happy New Year
Peace on Earth/Let it begin in our hearts.
May your holiday spirit last forever. Happy Holidays!
The gift of love - the gift of peace - the gift of happiness. May these be yours at Christmas
Christmas is for children! Fortunately there’s a little child in all of us! Have a very  Merry Christmas
May the lights of Chanukah/Fill your home with joy!
Happy Chanukah
Happy Chanukah! May the peace and joy of the season be with you and yours.
Feliz Navidad y Prospero Año Nuevo
May the ancestors bless you with a deep sense of heritage;  Best Wishes for Kwanzaa
Happy Kwanzaa/Celebrate Family, Community and Culture

One alternative, Option F, read “And she shall bring forth a son, and thou shalt call his name Jesus; for He shall save his people from their sins. – Matthew 1:21.” The school district blacked out Option F, citing the belief that including that message option would have endorsed a sectarian message and thereby violated the Establishment Clause.  The district court ruled that school district officials were mistaken in treating the order form or the ordered cards as government speech.  Categorizing the order form and the resulting cards as private speech, the court ruled that excising the option presenting a  verse from the Christian New Testament amounted to viewpoint discrimination. 

JFB