First Amendment Scholarship Update

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

1. Deana Pollard-Sacks (Texas Southern University - Thurgood Marshall School of Law), Snyder v. Phelps & The Supreme Court’s Speech-Tort Jurisprudence: A Prediction .The abstract states:

In Snyder v. Phelps, members of the Westboro Baptist Church targeted a young marine’s untimely death to exemplify their "religious" message to the world that "God Hates Fags" and retaliates against America for tolerating homosexuality by killing American soldiers. A jury awarded the marine’s father $10.9 million for invasion of privacy and emotional distress after the church members disseminated extremely hateful and personalized attacks against the fallen marine’s family. The Supreme Court is reviewing the case to determine whether civil liability based on invasive, emotionally injurious speech violates the First Amendment. This essay explains how the court is likely to analyze the case, based on the Court’s speech-tort precedent and the justices’ questions at oral argument on October 6, 2010. In short, the Supreme Court began a process of "constitutionalizing" tort liability arising from speech in New York Times v. Sullivan, and has increased the prima facie case evidentiary requirements of various torts to reconcile the interests protected by tort law with the First Amendment. The Court’s questions at oral argument indicate that it will adhere to this speech-tort methodology, will balance the interests involved in Snyder v. Phelps, and will allow limited civil liability by raising Mr. Snyder’s burdens of proof and/or limiting his damages to reconcile his tort claims with the First Amendment.

2. Hannibal Travis (Florida International University College of Law),  The FCC's New Theory of the First Amendment, 51 Santa Clara L. Rev. 101 (2010).  The abstract states:

This article describes the Federal Communications Commission’s new theory of the First Amendment, as articulated in the agency's decision sanctioning Comcast for blocking certain peer-to-peer file sharing traffic, later reversed by the U.S. Court of Appeals for the District of Columbia Circuit. The article proposes a unified theory with which to analyze First Amendment challenges to proposed regulation of discriminatory denials of access to broadcast, cable, or Internet media. It builds on my previous research into the democracy-promoting implications of decentralized, collaborative Internet media as opposed to traditional media's top-down model.

My analysis begins with an account of the fall and rise of FCC regulation of the mass media and the Internet through four distinct eras in the FCC’s conception of its own authority and the constraints imposed upon it by the First Amendment. In the first era, the “statist regulatory period,” the FCC doled out telecommunications licenses to entities favored by the government and vigorously regulated broadcast content. In the second era, the “democracy-promotion period,” the FCC regulated the content of speech in an attempt to engender a more robust democratic culture in the aftermath of World War II. In the third era, the “deregulatory period,” the FCC tolerated blatant discrimination against minority political or ethnic viewpoints, as well as long-term campaigns to reduce competition in media content by merging corporate owners. In the fourth and most recent era, which began in 2005 with renewed citizen activism and congressional attention to bias within the mass media and Internet, the FCC announced new nondiscrimination principles focused on the Internet, but with clear implications for broadcast media.

The FCC handed a stunning victory to advocates of media accountability in 2005 and again in 2008 when it endorsed a different theory of the First Amendment. This new theory moves away from selective deregulation of corporate media (i.e. granting federal or state exclusive rights without any countervailing responsibilities to the public) by prioritizing the right of media consumers to access content and communications platforms on a more equal footing, rather than the right of large corporations to acquire and control ever-larger combinations of media infrastructure. The decision, if upheld, may herald a new era of attention to voters’ First Amendment interests in accessing and benefiting from regulated telecommunications facilities such as broadcast airwaves or cable networks. I attempt to theorize this new vision of the First Amendment using four strands of constitutional and legal theory: formalist attention to constitutional text and precedent, purposivist and originalist emphasis on the principles and contexts underlying constitutional text, economic approaches to efficient or cost-avoiding interpretations of legal language, and egalitarian advocacy of citizen-empowering constitutional narratives.

Except, perhaps, for formalist analysis, which applies ambiguously to FCC regulation of private telecommunications firms, the theories support the FCC’s new emphasis on free speech and access to knowledge. Formalism, whether at the level of text or precedent, provides little clear basis for a theory of the First Amendment that permits the federal government to regulate electronic speech in the interest of large corporations, but without any safeguards for the public interest in accessing scarce rights-of-way, or airwaves. Originalist analysis reveals that the purposes of the First Amendment were to prioritize the penetration of facts and debate relevant to controversial political issues throughout the body of the citizenry, rather than the illusory liberty interests of corporations or combinations of government infrastructure licensees. Economic analysis confirms that permitting federal or state infrastructure licensees to leverage their unique control over strategic communications bottlenecks into ownership of content providers threatens the total output, competitive pricing, and overall quality of content. Not only the theorists of antitrust and telecommunications economics, but also those scholars doing empirical work on the output of news and political content, confirm the materialization of these threats. Finally, substantive political theory underlines the link between media consolidation and deregulation and a resulting crisis in access by citizens and voters to essential information and diverse viewpoints.

3. Haiping Zheng (University of Missouri at Kansas City - School of Law), Controlling the Uncontrollable: Internet Censorship in China. The abstract states:

Though internet was not commercially available in China until 1995, it has been growing tremendously over the years. At the same time, the Chinese government has never ceased censoring internet, which has drawn much international criticism.

This paper examines China’s internet censorship and its effects. It provides a general review of the development of internet in China, including the major regulatory schemes that have a direct impact on internet speech. Further, it describes some of the specific measures the Chinese government uses to control the internet: filtering and blocking, imposing liabilities on private parties, access control, internet “police,” and “guiding” public opinion. Finally, the paper argues that internet censorship does more harm than good. It is not only a violation of citizens’ right to freedom of speech, but also an inefficient public policy for the government.

4. Neil M. Richards, The Puzzle of Brandeis, Privacy, and Speech, 63 Vand. L. Rev. 1295 (2010). The abstract states:

Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis—his 1890 Harvard Law Review article The Right to Privacy and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this Article, I argue that the puzzle of Brandeis’s views on privacy and speech can be resolved in a surprising and useful way.

My basic claim is that Brandeis’s mature views on privacy and its relationships to free speech were more complex and interesting than the simplistic tort theory of privacy he expounded in The Right to Privacy. As a young lawyer, Brandeis envisioned privacy as a tort action remedying emotional injury caused by the revelation of embarrassing private facts by the press. But Brandeis’s ideas evolved over his life. He soon came to believe strongly in a contrary idea he called “the duty of publicity.” This is the notion that disclosure of most kinds of fraud and wrongdoing are in the public interest; that as he famously put it, “sunlight is the best disinfectant.” When Brandeis came to think through First Amendment issues after the First World War, tort privacy could no longer consistently fit into his influential theories of civil liberty.

But while Brandeis changed his mind about tort privacy, what he replaced it with is even more interesting. In his Olmstead dissent and free speech writings, Brandeis identified a second conception of privacy that I call “intellectual privacy.” Brandeis reminds us that the generation of new ideas requires a certain measure of privacy to succeed, and that in this way intellectual privacy and free speech are mutually supportive. I conclude by suggesting some modern implications of Brandeis’s ambivalence about tort privacy and his linkage of intellectual privacy with free speech.

5. Nathaniel Jurist Gleicher (Yale Information Society Project), MoneyBombs and Democratic Participation: Regulating Internet Fundraising, forthcoming in Maryland Law Review. The abstract states:

In the last decade, the Internet has upended the world of political fundraising, helping campaigns marshal armies of small donors and volunteers. Rather than eliminating the need for fundraising organizations that intermediate between candidates and constituents, as some predicted, the Internet has created new intermediaries that capitalize on the rapidly changing ecology of online fundraising. These new intermediaries combine fundraising, volunteer mobilization and activism. They raise new risks of accountability, polarization, and nationalized debate, but also have the potential to greatly enhance democratic participation. Although online campaigning is currently largely unregulated, numerous proposals to change this have been advanced in recent years. This Article contrasts online and offline fundraising intermediaries, and uses the differences that it identifies to evaluate several regulatory proposals. It is a guide to regulating online political fundraising and to ensuring that regulation avoids unintended consequences, minimizes the risks of online fundraising, and reinforces its promise of enhanced democratic participation.

6. Vikram D. Amar and Alan E. Brownstein  (University of California, Davis - School of Law and University of California, Davis - School of Law), Reviewing Associational Freedom Claims in a Limited Public Forum: An Extension of the Distinction between Debate Dampening and Debate Distorting State Action , forthcoming in Hastings Constitutional Law Quarterly. The abstract states:

In this article, Professors Amar and Brownstein analyze the arguments made by the parties and the Supreme Court in the recent Christian Legal Society v. Hastings case, in which the Court upheld Hastings College of the Law’s non-discrimination policy as applied to registered student organizations (RSOs). The authors discuss what the Court’s use of the “reasonable and viewpoint neutral” test for limited public forums in this setting means for future doctrine.

Among other things, the authors argue that even had the Hastings policy focused on prohibiting religious discrimination in particular (rather than requiring RSOs to “take all comers”), the Christian Legal Society’s argument that the policy was impermissibly viewpoint discriminatory should have failed. Laws that target and prohibit religious discrimination in some respects favor (rather than discriminate against) religious speech, by protecting religious adherents. Moreover, if singling out religious discrimination constitutes viewpoint discrimination against religious groups, then accommodating religion would also violate free speech neutrality norms by unlawfully favoring religious viewpoints, a result that would hinder rather than promote religious liberty.

7. Vikas Kumar (affiliation not provided to SSRN),  Does Monotheism Cause Conflict?, The abstract states:

Most of the studies that examine the role of religion in conflicts rely on empirical analyses without addressing the prior theoretical question of whether and why religions, or particular classes thereof, should cause conflict. If there is no logical relationship between religion and conflict then there is no point carrying out costly empirical analyses to ascertain if certain religions are more likely to cause conflict. This paper argues that on its own monotheism is neither necessary nor sufficient for conflict.

8. Mary Jean Dolan (The John Marshall Law School),  P.S. Untold Stories and the Cross National Monument. The abstract states:

This Article offers an interesting post script to the Supreme Court’s Salazar v. Buono Establishment Clause decision. It presents some surprising non-record facts and additional issues raised by Congress’s 2002 designation of the Mojave Cross as a “National Memorial.” This Act deserves more exploration, particularly because it appears wholly extraneous to the government policy approved by the Supreme Court plurality: ending the appearance of government endorsement of religion, while simultaneously “avoid[ing] the disturbing symbolism associated with the destruction of the historic monument.”
Included in the new information is evidence that National Memorial status is not as lofty or rare as it would seem, the cross does not appear to be the sole WWI memorial for the nation, and in the past, Congress has abolished National Memorial status upon transferring the land. The Article also looks at the intersection of historic preservation law and Congress’ requirement that the Secretary of the Interior fund and install a new replica cross on Sunrise Rock.

9. Mary Jean Dolan (The John Marshall Law School) , Salazar V. Buono: The Cross Between Endorsement and History , published in Northwestern University Law Review Colloquy, Vol. 105, p. 42 (2010).  The abstract states:

Despite its procedural complications and six opinions, Salazar v. Buono provides some potential insights into the Supreme Court’s evolving approach to religion in the public square. Competing approaches have stressed either preserving history or avoiding government endorsement of religion. This Article analyzes a potential new synthesis which is suggested by Justice Kennedy’s plurality opinion and Justice Alito’s concurrence in the judgment.

The Mojave Cross case involves a war memorial erected in 1934 by WWI veterans on remote federal land, in what later became the Mojave Desert Preserve. In the first round of litigation, the lower courts had found an Establishment Clause violation and enjoined display of the cross. Before the Supreme Court was the validity of a statute transferring the land to the VFW. The plurality remanded to the district court, strongly suggesting that the transfer would end any appearance of government endorsement of religion.

The Kennedy and Alito opinions can be viewed as describing an expanded endorsement test, which takes the “reasonable observer” one step further along the “endorsement test continuum,” by adding another contextual factor to be considered. Both Justices suggested that privatization of a longstanding religious-historical symbol, when done to avoid showing disrespect for military sacrifice, is unlikely to be viewed as a government endorsement of religion. Given the realistic threat that the Roberts’ Court will adopt an undiluted historical approach, this Article shows the potential resiliency of endorsement-style contextual analysis, and whether the Salazar v. Buono version can be reconciled with the test’s equality rationale.

10. Maimon Schwarzschild (University of San Diego School of Law), How We Judge the Judges, published in Conversations, No. 8, p. 83 (2010). The abstract states:

How does the importance of personal character, the ethical quality of the individual, compare as between a secular judge - say a United States federal judge or a state court judge - and a religious authority such as a leading traditional rabbi? To put the question a little more narrowly, how much does a person’s moral character count, both in theory and practice, in attaining and keeping such a position?
An American judge and a traditional rabbi are not strictly comparable, of course. But if there is a secular authority to which a rabbi is most comparable, especially a rabbi whose rulings are influential among Orthodox Jews, it is probably the judge.

Such a rabbi is invariably expected to be a morally exemplary person, even to be a kind of living ideal, whereas what is typically expected of a secular judge is much more limited. The reason is partly that a rabbi is a religious leader as well as a legal authority, and as in any religion, expected to set a good example. But beyond that, there are differences in the nature and institutions of Jewish and secular law which go far towards explaining why moral character seems to be more important for rabbinic authorities - whether or not they always meet the lofty standards - than for the judiciary of a secular, liberal state.

One important difference is that the scope of law in a secular, liberal society is limited: broadly along lines set out in Mill’s On Liberty. The Torah, by contrast - like Islamic law - governs all, or almost all, aspects of life. Given the breadth of a rabbi’s authority in their lives, it is only reasonable that his followers should take a deep interest in his character.
A second difference is that the power of an American judge is hedged in by an elaborate institutional framework of constraints, whereas there are fewer constraints, at least fewer formal checks and balances, on rabbinic authority.

The religious preoccupation with personal character has implications for any possible new directions in the Orthodox world. The trend in Orthodox Judaism in recent decades has been towards ever greater rigour in religious observance and antipathy to innovation in the interpretation of Jewish law. Personal character is apt to be especially important for any rabbi who would challenge the prevailing trend. To rule “leniently” or innovatively, especially on issues felt to be of defining religious importance, a rabbinic leader would surely need strong Jewish scholarship but also strong personal authority, at least if such rulings are to hope for acceptance in today’s Orthodox world.

11. Rohen Peterson (University of California, San Francisco - Hastings College of the Law), Note - The Emperor’s New Scanner: Muslim Women at the Intersection of the First Amendment and Full Body Scanners , forthcoming in Hastings Women’s Law Journal. The abstract states:

With the introduction of full body scanners, the United States has signaled an increasingly stringent approach to air travel. However, it has not full considered the implication upon Muslim women. While agencies within the United States, such as the Transportation Security Agency, have reacted to concerns from the Muslim community, it has yet to take a proactive role in constructing a method that accommodates the Islamic faith.

This Note approaches Muslim women by identifying the sources of their faith in respect to modesty and clothing. Under the First Amendment, their faith is analyzed in context of airport security measures, particularly full body scanners. From this analysis, a better understanding of how full body scanners impact Muslim women, and the larger Muslim community, can be achieved while simultaneously promoting security and religious freedom.

12. Cynthia Koploy, Note - Free Exorcise Clause? Whether Exorcism Can Survive the Supreme Court’s—”Smith Neutrality,” 104 Nw. U. L. Rev. 363 (2010).

13.. Jacob William Neu, Note - “Workers of God”: The Holy See’s Liability for Clerical Sexual Abuse, 63 Vand. L. Rev. 1507 (2010).

JFB