First Amendment Scholarship Update

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

1. Susanna Mancini (Johns Hopkins University - Bologna Center), To Be or Not to Be Jewish: The UK Supreme Court Answers the Question. The abstract states:

On 16 December 2009 the U.K. Supreme Court held a state-funded Jewish school ("Jewish Free School") to be guilty of discrimination based on ethnic origin in the way it operated its admissions policies. The school’s admission criteria were based on the traditional membership rule of Judaism, according to which to be Jewish one must be born of Jewish mother. The Court considered that the admission test was not religious in nature, but ethnic-based and instructed the school to establish a new test based on autonomous individual decisions and on the irrelevance of descent, i.e. on a basis compatible with Christian logic. In this paper I critically analyze this decision, concentrating my remarks on three issues, namely, the categorization of Jews in ethnic terms, the nature of the Jewish membership rule, and the justifiability of discriminatory conduct that is motivated by religion. I argue that the Court, by applying a concept of equality that implies a homogenization of behaviours and values, ends up restricting the room for diversity that is necessary for the preservation of a genuinely pluralistic society.

2. Andrew Darion Cohen (Fordham University - School of Law), Note - How The Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence ,  79 Fordham L. Rev. --- (2010). The abstract states:

Criminal adultery bans, despite widespread transgression and lax enforcement, remain on the books in a substantial minority of states. The landmark Lawrence v. Texas decision casts doubt on all state interference with consensual sexual activity among adults, including adultery bans. Additionally, adultery bans on their face implicate the Establishment Clause, due to adultery bans’ and marriage’s roots in religious doctrine and religiosity. This Note examines the constitutionality of adultery bans after Lawrence v. Texas, and proposes a novel approach to substantive due process analysis that applies Establishment Clause values. In proposing what this Note dubs the “Establishment Clause prism,” through which a facially legitimate state interest is delegitimized if substantially motivated by religious forces, this Note concludes that adultery bans are unconstitutional.

3. Amy Stambach, Education, Religion, and Anthropology in Africa , published in Annual Review of Anthropology, Vol. 39, pp. 361-379, 2010 .The abstract states:

Taking as its starting point classic accounts of native education and culture contact, this article reviews key trends and orientations that have shaped the anthropological study of education and religion in Africa. It identifies three frames that capture the development of research chronologically from the 1930s onward: (a) a functionalist focus on Christian-inflected adaptive education; (b) applied and sociohistorical emphases on education as, respectively, an engine for driving secular change and a medium through which to shape new ritualized practices and religious beliefs; and (c) a more recent concentration on youth education as a key site for analyzing politicized religious identity and youths' radicalization. I argue that this trajectory of research foregrounds two phenomena that anthropology also underanalyzes: first, the close association of religious missions with the development of today's highly secularized yet religiously inflected regional and global institutions that support educational programming in Africa; and second, a marginalization of the study of Islam in Africa, which reflects a Christianized cultural legacy in anthropological studies of religion and education.

4. Sarah Schacter (Georgetown University Law Center), Note - The Barracuda Lacuna: Music, Political Campaigns, and the First Amendment,  forthcoming in Georgetown Law Journal. The abstract states:

This Note is about the First Amendment issues that are raised when political candidates use music in conjunction with political campaigns without the consent of songwriters and recording artists. Sometimes, based on the circumstances, copyright law provides a clear remedy for a contested use. Other times, however, an artist will have to look to other legal doctrines for a remedy. Although there are other doctrines that the musical artist may invoke, this Note will demonstrate that these alternative avenues of relief are inadequate to protect the artist and also flawed in that they fail to fully address the unique First Amendment concerns that arise in such a scenario. There is, thus, a lacuna in this area of the law - a "gap" that Congress must fill.

This Note argues that Congress should address this lacuna by providing a remedy that would protect the rights of musical artists not to associate, through their music, with the campaign of a candidate whose views they do not share. I will discuss this First Amendment-based nonassociation interest, which is entangled with the related interest against compelled speech. These two interests, taken together, constitute a strong reason for Congress to fill the lacuna, thus protecting musical artists. Such a remedy, however, must also take into account the competing First Amendment interests of the political candidates who seek to express their political views through music.

Part I of this Note will set the stage with a discussion of the relevant portions of the Copyright Act, followed by a historical survey of the use of music in political campaigns. Section I.A will explain how the statutory structure of copyright law, in tandem with practices inherent to the music industry, leads to a scenario in which a musical artist is without legal recourse under the Copyright Act. Section I.B will discuss the history of the use of music in political campaigns and survey the legal battles arising out of several contested uses, noting the specific claims the plaintiffs stated in each. Part II of this Note will then discuss the two competing First Amendment issues that are at stake when a politician seeks to use a song or sound recording for political speech while the writer or performer of that song or sound recording wishes not to be associated with that speech.

Part III will address the existing avenues of relief (outside of copyright) that are available to a hypothetical plaintiff, namely, a right of publicity action and a claim under § 1125(a) of the Lanham Act. Section III.A will address the right of publicity, concluding that it is an unreliable cause of action that does not lend itself to the necessary balancing of competing First Amendment interests and that it is also unlikely to provide a remedy for our plaintiff. Section III.B will address the Lanham Act, and conclude that such a plaintiff is not likely to find relief under the Act.

Additionally, trademark doctrine is not equipped to fully and consistently address the unique First Amendment interests underlying such a scenario. The various tests that have been developed by the courts to address First Amendment issues in Lanham Act cases are inadequate to address this scenario, which implicates competing First Amendment interests - as opposed to a more typical case, in which the First Amendment is simply used as an affirmative defense by a plaintiff. Section IV.A will propose that Congress enact legislation to create a remedy that fills the lacuna by protecting musical artists while also ensuring that the First Amendment rights of political candidates are not unduly burdened. Finally, section IV.B will address two implications of the proposed legislation.

This Note will conclude that political candidates should generally be required to obtain the consent of musical artists in order to use a song, but when such a use rises to the level of true political speech - in that it communicates a discrete political message pertaining to a matter of public concern - political speech interests outweigh the competing nonassociation interests of the musical artist and the use should be permitted with or without consent.

 5. Erica Rachel Goldberg, Must Universities 'Subsidize' Controversial Ideas? Allocating Security Fees When Student Groups Host Divisive Speakers , 21 George Mason U. Civ. Rts. L. J. --- (2011).  The abstract states:

Across the political spectrum, student groups wishing to host controversial speakers face potentially prohibitive security fees when universities anticipate that audience members will create security concerns. Although Forsyth County v. The Nationalist Movement barred the government from imposing higher security fees on controversial speakers in a traditional public forum, courts and scholars have not yet addressed whether Forsyth applies to the student organizational context. In this article, I devise constitutional standards to govern the assessment of security fees imposed upon student groups by public universities. I begin the article by charting the animating principles behind Forsyth. I then outline the current doctrinal ambiguity surrounding First Amendment standards applicable to student organizations, from Healy v. James to the Supreme Court’s recent opinion in Christian Legal Society v. Martinez. Next, I examine specifically the issue of student organizations sponsoring outside speakers and explore the students’ right to receive information and the outside speaker’s right of access to the university forum. I argue that Forsyth’s rule against administrators possessing “unbridled discretion” and its rule of content neutrality should be applied to the student organizational context. Finally, I analyze several schools’ security fee policies and devise a way for schools to allocate security fees between the student organization and the university’s own funds in a constitutionally permissible manner.

6. Lisa P. Ramsey (University of San Diego School of Law), Free Speech and International Obligations to Protect Trademarks ,  35 Yale J. Intl L. --- (2010). The abstract states:

There is an increasing global recognition that certain trademark laws may harm the free flow of information and ideas. Yet if a state reduces trademark rights to protect speech interests, this may raise concerns regarding that country’s compliance with its international obligations to protect trademarks. This Article argues that the trademark provisions of the Paris Convention for the Protection of Industrial Property (Paris Convention) and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) contain sufficient flexibility to allow member states to protect expression in their domestic trademark laws. If a state’s speech-protective trademark laws are challenged before the World Trade Organization as violating the Paris Convention or TRIPS, WTO panels and the Appellate Body should narrowly interpret ambiguous international obligations to protect trademarks and avoid an activist interpretation of the provisions that adopts a particular solution to any conflict between trademark and free speech rights. To better protect speech interests in international trademark law, member states could amend the Paris Convention or TRIPS to explicitly require states to protect “the right to freedom of expression” when implementing their trademark obligations. States could also add specific permissive or mandatory exemptions for certain uses of a mark to the international trademark laws. This Article concludes that states should instead adopt speech-friendly trademark laws at the national level, evaluate whether these domestic laws properly balance trademark and free speech rights, and not pursue international reform until more states recognize that certain trademark laws can harm the right to freedom of expression.

7. Paul M. Secunda (Marquette University - Law School), The Future of NLRB Doctrine on Captive Audience Speeches, 87 Ind. L. J. --- (2012).  The abstract states:

Under the National Labor Relations Act, as interpreted by the courts and the National Labor Relations Board (Board) over the last sixty years, employers have been permitted to give captive audience speeches at work to employees contemplating unionization. Employees must attend such meetings, cannot question the employer representative, and may not have the union come to the workplace to present opposing views. Not surprisingly, these speeches are one of the most effective anti-union weapons that employers currently have in their arsenal. Now that the Board has both a quorum and a sizable Democratic majority, this Essay considers if, and how, the Obama Board might limit the rights of employers to engage in captive audience speeches during union organizational campaigns.

If the issue arises in a representation election case, the Board might expand the Peerless Plywood doctrine to prohibit captive audience speeches for a longer period of time before an election. On the other hand, If a union raises the captive audience speech issue in a case alleging a Section 8(a)(1) unfair labor practice, the Board might reexamine its precedent under Section 8(c) and consider when exactly employer captive audience speech tactics become coercive under Exchange Parts or Gissel. This approach would require a more searching inquiry into the content of the speech. It might also lead the Board to adopt a presumption of employer coercion where employees are unable to leave such a meeting or ask questions of the employer’s speaker. An employer would be able to rebut such a presumption under a modified form of the Struksnes polling standards.

 JFB