First Amendment Law Prof Blog

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

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

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on religion and speech topics:
 
1. Steven Douglas Smith (University of San Diego School of Law),  Constitutional Divide: The Transformative Significance of the School Prayer Decisions.  The abstract states:

This article challenges the standard view in which Everson v. Board of Education was the foundational and most important establishment clause decision and the school prayer decisions of the early 1960s (Engel v. Vitale and Abington School District v. Schempp) were virtually automatic corollaries. In fact, the article argues, it was the school prayer decisions that were foundational, subverting Everson’s “no aid separationism,” and animating not only later establishment clause jurisprudence but much else in constitutional and public discourse besides. Indeed, it is plausible to see the influence of the school prayer decisions and their articulation of secular neutrality as a constitutionally mandated baseline in many of the social conflicts often today placed under the heading of “culture wars.”

2. Manuel Mueller-Frank (University of Oxford - Nuffield College), The Role of Religion in the Creation of Economic Societies .The abstract states:

This paper studies an anarchic society with a production technology where the allocation of goods is governed by strength. The anarchic society is inefficient as no widespread adoption of the production technology occurs due to its lack of property rights. Property rights are shown not be enforceable through an ex-post punishment mechanism that requires punishers to be stronger. Property rights can be enforced on the other hand through a supernatural punishment mechanism if it is sufficiently credible. This paper makes a new point regarding the crucial role religious systems with a doctrine of salvation and damnation might have played in the transition from hunting and foraging societies to those with agricultural production.

3. Aparna Chandra (National Law School of India University), Gopal Singh Visharad and Ors v. Zahoor Ahmad and Ors., O.S.Nos. 1/1989, 3/1989, 4/1989, 5/1989: A Summary of the Babri Masjid-Ram Janm Bhoomi Decision.  The abstract states:

On September 30, 2010, the Allahabad High Court in India delivered a decision on a property dispute that had dragged on in courts for 50 years. However, this was no simple property dispute. It was a dispute over a 1500 square yard land that has been claimed by various Hindu and Muslim groups alike as their religious place of worship. Dispute over this piece of land led to one of the most horrific instances of communal violence in post-independence India and has shaped the agenda of a large segment of Indian politics.

The decision is not only momentous; it is equally voluminous, totally a mammoth 8189 pages. This note is a summary of the decision of the Allahabad High Court in the Babri Masjid-Ram Janm Bhoomi case. There is no attempt to critique or analyse the decision here. The only purpose of the summary is to give a brief account of the decision, so as to further informed debate.

4. Walker Humphrey, Dennis the Menace?: An Analysis of Whether the Episcopal Church’s Dennis Canon Entitles the Church to an Exemption from Neutral Trust Law .The abstract states:

In 1979, the Episcopal Church amended its canons to include a provision whereby all dioceses and local churches agreed to hold their property in trust for the national church. The Dennis Canon, as it is known, was a response to a schism within the church and an attempt by the church to preserve real property owned by local churches. Many courts construing the effect of the Dennis Canon have found it applies even when common law trust principles would provide otherwise. However, the Supreme Court of South Carolina recently refused to give effect to it, stating it has “no legal effect.” This paper discusses whether United States Supreme Court's jurisprudence, specifically a hybrid rights analysis under Employment Division v. Smith, requires courts to give effect to the Dennis Canon and grant the Episcopal Church an exemption from neutral trust laws when necessary.

5. Daphna Hacker (Tel-Aviv University), Religious Tribunals in Democratic States: Lessons from the Israeli Rabbinical Courts, forthcoming in Journal of Law and Religion. The abstract states:

This paper offers a three-variable explanatory model of religious tribunals' praxis in democratic states. The model emerged from two empirical studies conducted by the author examining the Israeli legal field governing the family matters of Israel’s Jewish population, which involves both religious and civil legal institutions.

The empirical studies revealed that in consensual divorce and inheritance proceedings, the Israeli rabbinical courts attract clients by offering a relatively cheap and efficient alternative to the civil family courts and inheritance registrars. However, the practices of the rabbinical courts diverge greatly in divorce disputes as compared to inheritance conflicts. While in the former, the rabbinical courts fight to preserve their authority and strive to deliver independent rulings, they avoid jurisdiction and jurisprudence in the context of inheritance conflicts. Moreover, whereas in divorce proceedings, rabbinical court judges consistently assert their judicial autonomy even when the result is severe gender discrimination, in inheritance proceedings, a concern with gender equality lies at the foundation of their attempts to mediate between rival family members and to refer conflicts to the family courts.

Religious, cultural, and institutional variables are offered to explain the similarities and divergences in the rabbinical courts' practices and perceptions when dealing with divorce and inheritance matters, as well as to explain the willingness of religious tribunals to adapt to liberal values in certain circumstances. This paper thus seeks to contribute to the theoretical and policy-making debates between legal multiculturalism and liberal stances.

6. Steven Douglas Smith (University of San Diego School of Law), Religious Freedom and its Enemies, or Why the Smith Decision may be a Greater Loss Now than it was Then, forthcoming in Cardozo Law Review. The abstract states:

Threats to religious freedom change over time. In the early modern period, the dominant threat was imposed religious orthodoxy. Although the First Amendment religion clauses were a good response to this threat, by the time they were adopted the threat had already receded, to be replaced by a different challenge that we might call democratic disregard. The Sherbert “compelling interest” test was a plausible response to that newer threat, except that by the time Sherbert was decided the problem of democratic disregard had likewise declined. Consequently, the doctrine had little occasion for application, and Smith’s rejection of Sherbert was no big deal at the time. Today, though, the most serious threat to religious freedom comes from the cultural and legal ascendency of secular egalitarianism – a development that in many ways parallels the classical phenomenon of imposed religious orthodoxy. The Sherbert doctrine, if it were still in force, might be of some help in protecting religious freedom against the demands of secular egalitarianism. Hence, Smith’s repudiation of Sherbert is a more serious loss now than it was at the time.

7. P. K. Hart-Brinson, Measuring Social Generational Change in Discourse About Same-Sex Marriage , presented  at ESA Research Network Sociology of Culture Midterm Conference: Culture and the Making of Worlds, October 2010.   The abstract states:

The cultural turn in sociology sparked a renewal in theorizing about generational change in European sociology. While this represents an improvement over older research on generational change, the persistent problem in generational research has always been empirical, not theoretical. In this paper, I show how social generational change can be measured as it is manifested in the discourse about same-sex marriage in the United States. By comparing simultaneously between and within cohorts, I show that social generational change in people's cultural repertoires manifests itself differently depending upon a person's political and religious ideologies. Specifically, I show that young religious conservatives and older liberals are more likely to use middle-ground discourses to talk about same-sex marriage because their taken-for-granted understandings of homosexuality conflict with their political or religious ideologies. I argue that the social generation concept is integral to the analysis of social reproduction and social change as long as it is conceptualized and operationalized in theoretically-sound ways.

8. Dick Carpenter, Private Choice in Public Programs. The abstract states:

In 2006, the Arizona Legislature passed two new educational voucher programs, each worth $2.5 million annually, for children in foster care and for children with disabilities. On November 14, 2006, school choice opponents filed a lawsuit challenging the constitutionality of the programs. Yet, as this report details, for decades the State of Arizona has operated voucher-style programs just like the new educational scholarships. These programs, ranging from educational aid to welfare to adoption assistance, give aid directly to those in need and allow them to spend it on the service provider of their choice, including public agencies, private organizations and even, in most programs, religious schools and institutions. Similarly, school choice plans like Arizona’s give scholarships directly to qualifying parents who can then select the public, private or religious school of their choice. Indeed, we found that Arizona already had six different educational voucher programs that help more than 22,000 students annually attend the public, private or religious school of their choice. And the total annual cost of $22 million for these programs dwarfs the $5 million allotted for Arizona’s new school choice programs. This report shows that voucher programs that give recipients the free and independent choice of an array of providers, including faith-based organizations, have a long and established history in Arizona. Vouchers for foster children and those with disabilities represent only a modest addition to a long-standing and sensible policy of providing services through efficient choice-based programs for those most in need.

9. Renee Newman Knake (Michigan State University College of Law), Attorney Advice and the First Amendment. The abstract states:

An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment jurisprudence.

This article is the first to offer a detailed analysis of free speech protection for advice rendered by an attorney. Attention to this topic is especially timely given the Supreme Court’s recent focus on advice bans in statutes that address bankruptcy abuse and antiterrorism. These cases illustrate important considerations regarding two previously unresolved questions in First Amendment jurisprudence: first, whether legal advice is protected under the First Amendment and second, if so, to what extent may the government constitutionally restrict legal advice.

Part I of the article reviews the Court’s recent opinions on the two advice bans, neither of which directly addressed the First Amendment’s application to advice rendered by attorneys, though both offer helpful illustrations of the important concerns at stake when the government legislatively constricts access to legal advice. Part II of the article reframes attorney speech precedent from other contexts and assesses relevant constitutional theory to support the conclusion that attorney advice deserves strong protection. Part III reflects on the circumstances in which an attorney’s advice may be constitutionally constrained, and concludes with a summary of mechanisms preferable to advice bans for addressing concerns about problematic legal advice.

10. Gregory Brazeal, How Much Does a Belief Cost?: Revisiting the Marketplace of Ideas , 21 S. Cal. Interdisc. L. J. --- (2011). The abstract states:

The notion of a marketplace of ideas, one of the cornerstones of debates over speech regulation and the First Amendment, has often been unclear. This article investigates whether it is possible to give any meaningful, worthwhile content to the marketplace of ideas metaphor, and concludes against earlier critics that it is. Using an economic approach to human behavior to understand the creation, dissemination, and consumption of ideas can be valuable, even if we ultimately decide that this approach should not play a determinative role in First Amendment jurisprudence. The article clarifies the history of the notion of a marketplace of ideas; proposes a basic economic model of idea-markets; identifies a variety of possible sources of market failure; and offers in conclusion a brief illustration of how the model might be applied, using it to generate a possible explanation for what some have seen as a systemic failure in the economics profession.

11. Azhar Majeed (Foundation for Individual Rights in Education (FIRE),  Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students’ Speech Rights, 8 Cardozo Pub. L., Pol’y and Ethics J. --- (2010).  The abstract states:

This article argues that the courts should deny qualified immunity to public college and university officials who are sued in their personal capacity for violating a student’s First Amendment right to freedom of speech. Qualified immunity shields public officials from personal liability under 42 U.S.C. § 1983 for the violation of a federal constitutional or statutory right insofar as the right in question is not “clearly established” by the law.

The article argues that the expressive rights of students at public colleges and universities are clearly established for purposes of qualified immunity, and that, therefore, courts should reject qualified immunity for two broad categories of First Amendment violations on campus: the enactment of facially unconstitutional speech codes, which chill campus dialogue and the free exchange of ideas by their very existence, and the censorship and punishment of particular instances of constitutionally protected student speech and expressive activity.

The article argues that student plaintiffs would then be able to use Section 1983 suits to vindicate their right to freedom of speech by pursuing monetary damages from individual administrators. Faced with the prospect of paying damages out of their own pockets, administrators would be forced to rethink their policies and practices toward student expression and would be more likely to respect student speech rights, thus allowing a true “marketplace of ideas” to flourish on campus.

12. Heather R. Abraham (University of Minnesota - Twin Cities - School of Law), Note - Legitimate Absenteeism: The Unconstitutionality of the Caucus Attendance Requirement , 95 Minn. L. Rev. --- (2010).  The abstract states:

Dubbed by the Washington Post as “undemocratic,” the caucus system for selecting delegates to national party presidential nominating conventions tends to disenfranchise identifiable factions of voters, including deployed service members, religious observers, persons with disabilities or in poor health, students who attend school away from home, and shift workers unable to leave work during caucus hours. This Note contends that eligible party voters have the constitutional right to vote in their political parties’ caucuses without being physically present. It presents three central constitutional arguments that raise doubts about the constitutionality of the physical attendance requirement of many state party caucuses: first, that the attendance requirement may violate the First Amendment associational rights of voters; second, that it may breach Fourteenth Amendment equal protection of the right to vote; and third, that it may constitute an unconstitutional poll tax. This Note proposes four alternatives to the present caucus system that could eliminate or mitigate the potential unconstitutionality of the physical attendance requirement. Additionally, it examines which actors are best situated to reform caucuses. It concludes that the most effective avenues toward reform are an associational rights judicial challenge or congressional legislation.

13. David S. Ardia (Berkman Center for Internet & Society), Reputation in a Networked World: Revisiting the Social Foundations of Defamation Law, forthcoming in Harvard Civil Rights-Civil Liberties Law Review. The abstract states:

It is time again to rethink defamation law. The law we know today saw its origin in feudal times, expanded to serve as a counterweight to the disruption occasioned by the printing press, and was constitutionalized in the low-participation age of broadcast and print mass media. The journalistic institutions that led the fight for constitutional reform are now in decline while online platforms optimized for high participation, such as blogs, social networks, and discussion forums, are in ascendency. In this age of the networked information economy, reputation occupies a very different role in the social order than it did even twenty years ago.

Using a recent defamation lawsuit filed by the actor Ron Livingston against a user of Wikipedia as a lens through which to examine defamation law's operation in our increasingly networked society, this Article argues that defamation law suffers from significant doctrinal and practical limitations that preclude it from achieving its goal of protecting reputation. Cognizant of these limitations, it offers some guidelines for reforming defamation law, suggesting that existing monetary remedies should be deemphasized while alternative approaches that seek to correct inaccurate information and provide opportunities for contextualization should be pursued.

The Article concludes that we should take as our touchstone that reputation is a societal interest and devise remedies that leverage the power of communities to deal with reputational harm. Although the global communication networks that are the hallmarks of our networked society have brought new reputational challenges, they also provide novel solutions to prevent and ameliorate those harms. One solution is to enlist, through legal and social incentives, the help of online intermediaries such as content hosts and search providers. These intermediaries play a central role in community governance and are often in a position to recognize and respond to reputational harms. By harnessing the power of communities to deter and mitigate reputational harm, we will be better able to balance the protection of reputation with society’s desire to maintain an environment for speech that is conducive to public engagement and vigorous debate.

14, Timothy Zick (William & Mary Law School),  'Summum', the Vocality of Public Places, and the Public Forum, published in Brigham Young University Law Review (2011).  The abstract states:

This contribution to a symposium on the emerging complexities of government speech focuses on Pleasant Grove City v. Summum.  Summum is a remarkable decision in several respects. It represents many firsts in terms of the Supreme Court's public speech jurisprudence: First to hold that the public forum doctrine is out of place in a public park (a traditional public forum); first to treat a public park as a channel of governmental speech; and first to expressly engage the communicative aspects (the vocality) of public place. Because the Court dispatched the public forum doctrine so quickly, one might think the decision has nothing much to say about the concept or status of the public forum. To the contrary, this piece contends that a close reading of Summum shows that the decision’s analysis and rationale may have a substantial effect on private speech rights in public places. The government speaker is not like any other speaker in a park or other public place. Its voice is louder, and its right to remain is stronger, than that of any private speaker. Most importantly, of course, government speakers have the power to exclude other voices. This piece argues that the Court’s conception of public places as channels of governmental speech, its heavy reliance on the analogy of private property ownership, and its suggestion that public places such as parks themselves convey governmental identity claims threaten to undermine fundamental tenets of the public forum concept and to limit private speech in public places.

15. Malla Pollack, Patriotism for Profit and Persuasion: The Trademark, Free Speech, and Governance Problems with Protection of Governmental Marks in the United States, published in Trademark Reporter, Vol. 100, Sept./Oct. 2010.  The abstract states:

"Governmental marks" are words or phrases which involve the identity of a social group that is partly defined in terms of its citizenship in a government-institution. The power to name a social group (especially one from which exit is difficult) confers enormous power over the group’s members. Legally classifying such words as trademarks commodifies them, increasing the namer’s power: both by giving the word monetary value and by providing the mark-holder with the legal right to prevent others from manipulating the word’s meaning.

Destination marketing employing governmental marks has become ubiquitous. The municipal governments of both New York City and Las Vegas used the courts to prevent local businesses from selling unlicensed souvenirs decorated with trademarks referring to their respective cities. The courts treated these disputes as no different from litigation over shoe-brands; even if the courts had classified the disputed marks as governmental, they could have ruled for the plaintiffs by invoking the doctrine of government speech.

This article argues against allowing mark-rights in governmental marks. It weaves together marketing literature, examples of recent marketing campaigns by various public-appearing entities, concepts from trademark law, free speech literature, and critiques of government accountability to illuminate the conceptual slippages demonstrated by these cases and by current marketing practices. First, most governmental marks lack a basic requirement for trademark-status; such marks generally do not signify one unique source. Furthermore, even if commercial practice led a substantial percentage of the public to perceive a unique source, legal recognition of such a source is incompatible with liberal, representative government. Additionally, the current practices in which governmental marks are embedded are counter-productive because they decrease citizen-control of government.

16. John D. Inazu (Duke University School of Law),  Liberty's Refuge: The Forgotten Freedom of Assembly, forthcoming  from Yale University Press.  The abstract states:

The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women’s suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the Civil Rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the Great War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called the right of assembly part of “the Constitutional substitute for revolution.” In 1939, the popular press heralded it as one of the “four freedoms” at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of our “basic liberties.” But in the past thirty years, the freedom of assembly has become little more than a historical footnote in American political theory and law. Some believe that assembly has been subsumed into the freedoms of speech and association and that we are none for the worse. Others think we are better off without meaningful protections for group autonomy because they undercut antidiscrimination norms that underwrite modern civil rights statutes. Liberty’s Refuge argues that these views could not be more wrong. Our right to assemble - to form relationships, to gather, to exist as groups of our choosing - is fundamental to liberty and meaningful pluralism. Drawing from resources in constitutional law, political theory, and history, this book argues for a return to the freedom of assembly and the destabilizing difference that it brings.

JFB

First Amendment Scholarship Update

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

1.John Witte Jr. (Emory University School of Law) and Joel A. Nichols (Univ. of St. Thomas School of Law (MN)) , Preface: Religion and the American Constitutional Experiment, published in RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT, Westview Press, 2010. The abstract states:

This new book provides a comprehensive, multidisciplinary overview of the history, theory, law, and comparative analysis of American religious liberty from the earliest colonial period through the most recent Supreme Court cases. It also highlights the shifting jurisprudence and weakening of First Amendment religion clauses that is leading to new federal and state legislation and eroding protection of religious liberty in the United States. “We are troubled by this emerging shift from the judiciary to the legislature, and from the federal to the state governments in the protection of religious liberty in America. Such a shift leaves what should be common national rights of religious liberty vulnerable to fleeting political fashions and contingent on a claimant’s geographical location,” the authors write in the new introduction.

The new volume gives ample attention to the seven U.S. Supreme Court cases regarding religious liberty, including McCreary County v. ACLU and Christian Legal Society v. Martinez, that have arisen since the second edition went to press in 2004. Also included is a chapter on religious organizations and the law, a topic that has become increasingly important as attention shifts toward this subject with regard to religious institutions’ division over same-sex marriage. The book maintains the structure and themes introduced in the first two editions but contains substantial revisions.

Widely used among scholars of law, theology, history, ethics, political science, human rights and American studies, the book is an introduction for students, a provocation for specialists, and an invitation for the public to view afresh the American experiment in religious rights and liberties.

2. Barry R. Chiswick(University of Illinois at Chicago) and Donka Mirtcheva, Religion and Child Health.  The abstract states:

This paper examines the determinants of the health of children ages 6 to 19, as reported in the Child Development Supplements (CDS) to the Panel Study of Income Dynamics (PSID). The primary focus is on the effect of religion on the reported overall health and psychological health of the child. Three measures of religion/religiosity of the child are employed: whether there is a religious affiliation (and what kind), the importance of religion, and the frequency of church attendance. Other variables the same, the analysis reveals that there appears to be a positive association between both measures of health and the three measures of religion/religiosity. Those children (self-report or primary caregiver report) who have identified a religious affiliation, who view religion as very important, compared to those who view it as unimportant, and who attend church at least weekly compared to those who do not or seldom attend have higher levels of overall health and psychological health. When the analysis of affiliation is done by denomination, the primary difference is between those who report a religious affiliation and those who do not.

3. Sergio Carrera(Centre for European Policy Studies) and Joanna Parkin, The Place of Religion in European Union Law and Policy: Competing Approaches and Actors Inside the European Commission. The abstract states:

While the EU has no explicit legal competence in the sphere of religion and the management of relations with faith communities, religious concerns have taken on increasing importance within the legal and institutional framework and policy discourses of the European Union in the last years. This paper provides an overview of how religion and issues of religious diversity are being framed and addressed in EU law and policy by undertaking a critical analysis of the ways in which EU law and policy deal with, engage and understand religion at the policy level of the European Commission.

Through an examination of EU legislation and both formal and informal policy initiatives in the fields of citizenship and fundamental rights, non-discrimination, immigration and integration, social inclusion and education and culture, this paper demonstrates that there is a complex and highly heterogeneous patchwork of EU normative approaches delineating the relationship between religion and the EU. These competing framings, very much rooted in the institutional structures of the Commission services, have important implications for discretionary power and sovereignty of the EU member states and for the coherence of European Union policies.

4. Nicholas A Bastine (Osgoode Hall Law School - York University, Canada), The Relevance of National and International Laws for the Protection of the Rights of Women and Children in Ghana: A Critical Look at the Trokosi System in Ghana, published in OIDA International Journal of Sustainable Development, Vol. 1, No. 10, pp. 81-90, 2010. The abstract states:

This paper demonstrates that the rights of women and children are not being protected effectively in Ghana. It argues that although Ghana has laws such as the 1992 Constitution, a number of international human rights laws that Ghana had ratified to protect the rights of women and children, and the Criminal Code (Amendment) Act, 1998, trokosi which discriminates against women and children is being practiced in the country. The paper attempts to answer why :(a) Ghanaian women and children continue to be oppressed in spite of Ghana’s robust domestic and international laws that protect them?(b) the government does not enforce the trokosi law ?, and (c) the 1992 Constitution has not been effective in eliminating violence against women and children Ghana? The paper anchors the trokosi practice in the paradigms of cultural relativism and universalism, and discusses the (i) presence of a strong patriarchal framework and the family structure which favours men over women in Ghana, the (ii) the secrecy of traditional religious practices, particularly, the trokosi rituals; (iii) the possible irrelevance of international conventions to Ghana’s cultural and political situation; and (iv) the internal dynamics of Ghanaian politics. The paper concludes that trokosism persists in Ghana because of the conflict between culture and religious norms on the one hand and positive laws on the other.

5. Shelly Kreiczer-Levy (Academic Center of Law & Business), Religiously Inspired Gender-Bias Disinheritance – What’s Law Got to Do with It?, 43 Creighton L. Rev. 669 (2010).  The abstract states:

There are several religious groups that order a specific distribution of the estate, which includes disinheritance of daughters in favor of sons. A testator’s choice to follow this rule presents a fascinating intersection of conflicting values, world-views, and belief systems. In this Article, I examine the legal treatment of such bequests, and present different solutions from different inheritance law systems. I review three types of systems, Continental law of forced heirship, family provision jurisdictions, and testamentary freedom systems. I claim that deciding these cases is ultimately connected to a legal system’s perception of inheritance. In several systems this function includes recognizing a child’s interest in belonging to the family. If we understand inheritance as communicating a message regarding a child’s belongingness to her family, then gender bias disinheritance should be reviewed with caution. In testamentary freedom systems, the question seems to be quite simple as such a distribution is well within the testator’s prerogative. However, I suggest a more intricate analysis based on the doctrine of public policy.

6. W. Edward Afield III (Ave Maria School of Law), Dining With Tax Collectors: Reducing the Tax Gap Through Church-Government Partnerships , 7 Rutgers Business L. J. 53 (2010).  The abstract states:

This article explores an untapped resource in improving tax compliance: partnerships between the government and Judeo-Christian religious organizations. Currently, most of the techniques the IRS employs to improve tax compliance are based on a traditional theory of law enforcement in which compliance is achieved through a combination of increasing the probability of detection and/or increasing the potential penalty. Although the IRS has begun to adopt some initiatives based on awareness that factors apart from a simple economic calculus motivate tax compliance decisions, these programs are still in their infancy. The solutions that the IRS is considering are worthwhile, but they are mere stopgaps. In order to achieve a more lasting improvement in compliance rates, the IRS must considerably expand its efforts beyond the traditional theories of enforcement and adopt strategies that help establish tax compliance as an underlying social virtue. Scholars have recognized this need, but the current literature has paid little attention to how religious organizations can be used to help effect this change in taxpayer attitudes. Partnerships between the government and religious organizations have significant potential to effect a culture change by providing more effective forums for taxpayer education than those currently used and by serving as intermediaries between taxpayers and the government. These partnerships, if implemented correctly (as they have been in other areas of law enforcement), potentially could help create a long-term norm shift that would improve compliance, without significantly burdening the IRS’ already underwhelming resources. 

7. Taghi Azadarmaki and Alemzadeh Maryam  (University of Tehran - Social Science Faculty), Immaterialism and Minimal Religiousness in Iran, published in OIDA International Journal of Sustainable Development, Vol. 02, No. 01, pp. 17-26, 2010. The abstract states:

An International collective research made by Ronald Inglehart and his fellows in many industrial countries indicates that alongside an increase in the tendency of the majority of people towards “immaterialism” Freedom of Speech, Quality of Life and their religiousness has found a minimal form: contentment with basic religious beliefs and self-centered spiritual experiences and the not so strong feeling of obligation to all forms of religious rites and rituals as recommended in Abraham’s religion. The purpose of this paper is to examine whether or not a relationship exists between the religiousness and tendencies of individuals to meta-ethics in the context of the Iranian Society, which is expected to encounter certain complexities. Results indicate that despite researches performed in other countries, in the Iranian society a very weak relationship exists between these two variables. Closer inspection of the materialism- immaterialism factor has indicated that due to the absence of ethical clarity, the mere evaluation of one’s level of tendencies towards either of the two poles of materialism-immaterialism does not result in useful results for analysis purposes.

8. Corey L. Brettschneider (Brown University - Department of Political Science),  A Transformative Theory of Religious Freedom: Promoting the Reasons for Rights,  published in  Political Theory, Vol. 38, No 2, April 2010. The abstract states:

Religious freedom is often thought to protect not only religious practices but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the basic rights of citizens. 

9. Danny Cohen-Zada (Ben-Gurion University of the Negev - Department of Economics) and William Sander (DePaul University - Department of Economic), Religious Participation Versus Shopping: What Makes People Happier?  The abstract states:

In this paper, we first explore how an exogenous increase in the opportunity cost of religious participation affects individuals' religious participation and reported happiness using data from the General Social Survey. The exogenous shift in the cost of religious participation is a result of repealing of so-called blue laws which restrict retail activity on Sundays. We find that repealing blue laws causes a significant decline in the level of religious participation of white women and in their happiness. We do not observe any significant decline in reported happiness of other groups whose religious participation was not significantly affected by repeal. We also use repeal as an instrumental variable (IV) for church attendance and provide direct evidence that church attendance has a significant positive effect on happiness, especially for women. 

10. Rebecca Tushnet (Georgetown University Law Center), Attention Must Be Paid: Commercial Speech, User-Generated Ads, and the Challenge of Regulation, 58  Buff. L. Rev. 721 ( 2010). The abstract states:

This Article examines the dynamics that drive advertisers to push into new formats, and the law’s ability to regulate them. I argue that it will remain possible, and constitutional, to identify advertising and subject it to prohibitions on false and misleading claims, even for ads in unconventional formats. The article also addresses the ways in which regulators were caught off-guard by these new formats. In particular, Section 230 of the Communications Decency Act, which frees online service providers and users from liability for content generated by other users, poses some unanticipated barriers to regulating advertising. Yet despite section 230’s provisions, regulators retain flexibility in many situations. The Article considers the Federal Trade Commission’s (“FTC”) recent revisions of its guides on testimonials and endorsements. The guidelines apply to bloggers and others who receive substantial benefits from advertisers in return for their endorsements. After exploring the First Amendment challenges posed by such situations, including questions that go to the heart of the justification for regulating commercial speech, I contend that neither section 230 nor sound policy require the FTC to ignore these new forms of communicating with potential purchasers.

11. Steven R. Morrison  (University of North Dakota School of Law), Terrorism Online: Is Speech the Same as It Ever Was?, published in Creighton Law Review (2010).  The abstract states:

Like all of us, terrorists now use the Internet for many purposes. It is commonly believed that planning operations, fundraising, and recruitment are the three main ways that terrorists take advantage of online communication. While it is clear that speech related to the first two can be prohibited, online recruitment speech may be protected under the First Amendment.

As a result, a number of commentators have been concerned at online recruitment and the fact that our current speech rules may not be adequate to deal with this new threat. They have proposed a number of remedies, but have largely accepted that online recruitment is a unique and potent danger.
This article questions that assumption. It discusses the structure of online communication and observations about it from the field of psychology. It concludes that online communication is currently no more dangerous than its real-world counterpart, and may actually be safer when it comes to terror recruitment.

This is not to say that there is no threat. Terrorist groups do recruit via the Internet. By showing, however, that the nature of online communication does not facilitate this recruitment, we can move toward truly effective solutions to the problem of online recruitment. 

12. W. Wat Hopkins (Virginia Tech), Snyder v. Phelps, Private Persons and Intentional Infliction of Emotional Distress: A Chance for the Supreme Court to Set Things Right, 9 First Amendment L. Rev. 101 (2010).  The abstract states:

For nearly twenty years, the Westboro Baptist Church has been protesting at funerals with impunity. But that may change. In March, the Supreme Court of the United States granted certiorari in a case in which the Fourth U.S. Circuit Court of Appeals, on First Amendment grounds, struck down a $5 million award against the church. The plaintiff was a private person who brought an action for intentional infliction of emotional distress and other torts. Albert Snyder was not involved in a matter of public debate but was merely attempting to bury his son when he was targeted by the church. The boundaries of intentional infliction cases should be narrowly drawn, but the Snyder case falls into even the most narrow of those boundaries. It involves a private figure involved in private matters, so the heightened burden of proof the Supreme Court established for public figures in intentional infliction actions does not apply. Snyder did not bring the action because he disagreed with the message disseminated by the church, so there was no debate on matters of public concern. The Supreme Court seems primed to overrule the Fourth Circuit and sustain the verdict, as it should.

13. Benjamin C. Zipursky (Fordham University - School of Law),  Snyder v. Phelps, Outrageousness, and the Open Texture of Tort Law, forthcoming in DePaul Law Review. The abstract states:

In Snyder v. Phelps, the United States Supreme Court will decide to what extent state tort law may impose liability for “intentional infliction of emotional distress through outrageous conduct” without running afoul of the First Amendment’s guarantee of freedom of speech. The defendants, the Phelpses, picketed the funeral of a young Marine who died in the line of duty in Iraq; they carried signs with statements such as “God hates the USA,” “God hates you,” “Fag troops,” and “Thank God for dead soldiers.” Sickened, depressed, and infuriated by the conversion of his son’s funeral into a media circus for an extremist group, the soldier’s father, Albert Snyder, successfully sued the defendants for the torts of intentional infliction of emotional distress through outrageous conduct and invasion of privacy. Several important First Amendment scholars have argued that an emotional harm tort that depends on applying the vague, subjective, and malleable concept of “outrageousness” to political speech cannot withstand First Amendment scrutiny, and that the Court should therefore rule for the defendants.  

This Essay examines Snyder v. Phelps from a tort scholar’s point of view and, in doing so, puts forward strong reasons for rejecting the outrageousness argument. When one looks into the nature of the emotional distress tort carefully, as one must if one takes federalism seriously, three points become clear: first, that state tort law contains its own well-developed resources for scrutinizing such emotional distress claims and carefully filters out the vast majority of such claims; second, that the concept of outrageousness is used in part to insure that only a narrow range of kinds of cases can succeed; and third, that one of the most longstanding and best established paradigms for liability in emotional distress torts involves persons who have intentionally or recklessly interfered with a plaintiff’s efforts to grieve for a deceased child, parent, or spouse. As a unanimous United States Supreme Court recognized only seven years ago in the privacy case National Archives and Records Administration v. Favish, the law does acknowledge that “[f]amily members have a personal stake in honoring and mourning their dead” and does not protect the activity of one who, by intruding on the family members’ grief, “tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.” To suppose that Snyder’s tort claim cannot be permitted because “outrage” and “emotional harm” are too vague or mercurial is simply to invert legal reality. 

14. Molly J. Walker Wilson (Saint Louis University - School of Law), Too Much of a Good Thing: Campaign Speech after Citizens United, 31  Cardozo L. Rev. 2365 (2010).  The abstract states:

In January 2010, the Supreme Court in Citizens United v. Federal Election Commission overturned Austin v. Michigan Chamber of Commerce and the portion of McConnell v. Federal Election Commission that restricted independent corporate expenditures, as codified in section 203 of the Bipartisan Campaign Reform Act. Specifically, Citizens United invalidated laws forbidding corporations and unions from using general treasury funds for “electioneering communication,” political advocacy transmitted by broadcast, cable, or satellite communication in the period leading up to a federal election. The effect of Citizens United was to protect the right of corporations, no less than individual American citizens, to fund and distribute political advocacy. The Citizens United holding is controversial for many reasons, not the least of which is that it takes a hard-line approach that unapologetically privileges speech, even while tacitly acknowledging the potential for negative effects. This Article challenges the Citizens United decision on several grounds. First, I dispute the majority’s claim that corporate spending does not result in “corruption.” Second, I assert that the potential for corruption poses a real and serious threat to democratic elections and that preventing this corruption is therefore a vital governmental interest justifying restraints on “speech.” Finally, I adopt the majority’s free speech priority and propose that even if the First Amendment is the only legitimate consideration, corporate spending is harmful because it chills speech in a manner not contemplated by the Court.

15. Daniel Winik (Yale University - Law School), Note - Citizens Informed: Broader Disclosure and Disclaimer for Corporate Electoral Advocacy in the Wake of Citizens United, forthcoming in Yale Law Journal.  The abstract states:

This Note proposes a new direction for the regulation of corporate electoral advocacy in the wake of Citizens United. Rather than examining whether Citizens United was rightly decided, it argues that broad disclosure and disclaimer regulations for corporate electoral speech are both constitutionally sound and normatively superior to outright prohibitions. After surveying state and federal disclosure and disclaimer requirements, the Note proposes a broader scope for such mandates than existing doctrine permits in the context of individual speech. It argues that regulations of corporate-funded electoral speech should be neither strictly limited to express candidate advocacy nor balanced against a right to anonymity. 

16. Michael Kent Curtis (Wake Forest University - School of Law), Citizens United and Davis v. FEC: Lochner on Steroids and Democracy on Life Support .The abstract states:

Citizens United conferred a free speech right on corporate officers to spend unlimited amounts of corporate treasury funds for “independent” broadcast ads that support or oppose candidates for political office. Davis v. FEC protected self-funded millionaires and billionaires from the millionaire amendment to the McCain Feingold Act. That amendment allowed somewhat higher contribution limits (in a total not to exceed the millionaire’s or billionaire’s spending) for candidates facing and outspent by millionaires or billionaires. The Court found this limited effort to protect the opportunity of the underfunded candidate to respond impermissibly chilled the speech of millionaires and billionaires.

These decisions are in considerable tension with the constitutional text and with the historical context and purposes of free speech guarantees. In the case of the 14th Amendment, the transformation of the text from one protecting natural persons born or naturalized to one protecting corporations, has its origin in Lochner era jurisprudence. The Davis and Citizens United decisions can best be understood in light of their impact on the already troubled larger environment necessary to sustain robust free speech and meaningful democracy.

Citizens United threatens to undermine the fiduciary duty of elected officials to the people. It is inconsistent with historic understanding that free speech was a right for people, that it was anti-hierarchical, and that it was designed to produce adequate information from multiple perspectives. It is in tension with the recognition that government has a positive role in furthering free speech and democracy. Government action may support free speech. It is not always a threat. Nor is unrestrained private power merely a benefit for robust free speech.
The Citizens United and Davis v. FEC decisions can best be understood in light of the ecology of freedom of expression and a host of threats it faces. As de Tocqueville, Daniel Webster, and James Madison were aware, extreme concentration of wealth in few hands tends to undermine democracy as well as effective speech from multiple perspectives. In addition, undermining the anti-trust laws to permit extensive corporate consolidation threatens democracy. That candidates need huge advertising budgets for television and often must rely on those with great wealth for contributions undermines their fiduciary duty to “the people.” It facilitates an insidious form of corruption of the political process. Concentration of media power in a few corporate hands exacerbates the problem. The demise of the Fairness Doctrine facilitates one sided political communication.

The decisions of the Lochner era struck down progressive legislation, but left the political process relatively open. Decisions which undermine the democratic nature of the political process are worse. They strangle reform in the crib. The Court’s rejection of any consideration of equality of access to speech in the political process and its refusal to see any threat to the fiduciary role of public officials beyond outright bribery block almost all meaningful reform.

JFB

ACS Panel Examines RLUIPA on the Act's 10th Anniversary

Last month the American Constitution Society marked the tenth anniversary of the enactment of  the Religious Land Use and Institutionalized Persons Act (RLUIPA)  by convening a panel of lawyers and scholars to discuss the Act’s uses and effects . A video of the session is available on the ACS website. 

JFB
 

Westboro Church Members Protest in Front of the Supreme Court Awaiting Today’s Argument in Funeral Protest Case

As the Supreme Court prepares to hear Snyder v. Phelps later this morning, the AP (via the NY Times) reports that members of the respondent Westboro Baptist Church have gathered outside the Court. The protesters are using their trademark signs bearing messages such as the “God Hates You” sign carried today, according to the report, by a young boy.   

JFB

New Website Offers Access to Justices' Papers in Selected Civil Rights Cases

As the Supreme Court starts its work this first Monday in October, Professor David Achtenberg of UMKC School of Law is launching the Petition to Decision website. The UMKC description of the website follows:

In time for the opening of the Supreme Court’s new term, David Achtenberg, University of Missouri—Kansas City School of Law, is rolling out the Petition to Decision website.  Petition to Decision is a comprehensive digital archive of all the available papers of the Supreme Court justices relating to selected civil rights cases.  It may be interesting to those who study the internal workings of the Court as well as to those with a particular interest in civil rights litigation.  The website, which contains as many as 1800 pages of documents per case, can be accessed at: www.petitiontodecision.com

Petition to Decision presents an interactive timeline of the various cases, identifying every step in the justices’ decision-making process and linking each step to digital copies the relevant internal papers.  A typical case file includes the pool memoranda regarding certiorari (together with annotations by the various justices and their clerks), notes prior to and during the cert conference, various notes and memoranda prior to oral argument, justices’ oral argument notes, justices’ records of what took place at the merits conference, miscellaneous memoranda to and from the justices discussing the case, and annotated drafts of the various opinions. The timelines make it possible to study the Court’s handling of the cases from the filing of the petition for certiorari until announcement of the final decision. 

For those who prefer to review the papers without interpretation, the website also makes it possible to view the documents in archive order, i.e., arranged into digital boxes and folders that correspond to the ones in which the original hard copies are stored.   These “Archive Pages” may be particularly useful for teachers who want to give their students a feel for what it is like to do archival legal history research.  

Additional features of the website include transcriptions of important but hard-to-decipher handwritten documents, short descriptions of the legal significance and background story of each case, and links to more readily publicly available documents such as briefs, appendices, oral arguments. 

The website focuses on decisions in which the Supreme Court interpreted 42 U.S.C. § 1983, the principal statutory vehicle used to sue state and local officials for violations of constitutional rights.  The long range plan is for Petition to Decision to include a wide range of § 1983 cases dealing with issues such as municipal liability, official immunity, color of law, etc.  The current, pilot version of the website is limited to cases dealing with municipal liability issues.  Additional case files and features will be added on a regular basis.  

For more information about Petition to Decision, you can reach Professor Achtenberg at AchtenbergD@umkc.edu.

JFB

New Brennan Biography Examines Justice’s Efforts to Explain School Prayer Decisions to Potentially Skeptical Catholics

Education Week’s School Law Blog spotlights how the new biography of Justice Brennan by Seth Stern and Stephen Wermiel explores the Justice’s efforts to explain his votes in the Court’s early school prayer cases. Stern and Wermiel assert that Brennan, then the Court’s only Catholic, wanted to craft his 70 page concurrence in Abington School District v. Schempp to “explain to a Catholic audience what justified his breaking with what he viewed as the Church's position."  

JFB

Putnam and Campbell Examine Religion in American Life and Politics

On Weekend Edition yesterday, Scott Simon interviewed Professors Robert Putnam and David Campbell about their new book, American Grace: How Religion Divides and Unites Us, which will arrive in bookstores this week.  This description appears on the book's website:

American Grace is a major achievement, a fascinating look at religion in today’s America. Unique among nations, America is deeply religious, religiously diverse and remarkably tolerant.  But in recent decades, the nation’s religious landscape has been reshaped.

America has experienced three seismic shocks, say Robert Putnam and David Campbell. In the 1960s religious observance plummeted.  Then, in the 1970s and 1980s a conservative reaction produced the rise of evangelicalism and the Religious Right.  Since the 1990s, however, young people, turned off by that linkage between faith and conservative politics, have abandoned organized religion entirely.  The result:  growing polarization. The ranks of religious conservatives and secular liberals have swelled, leaving a dwindling group of religious moderates in between. At the same time, personal interfaith ties are strengthening. Interfaith marriage has increased, while religious identities are increasingly fluid. Putnam and Campbell show how this denser web of personal ties brings surprising interfaith tolerance, notwithstanding the so-called “culture wars.”

American Grace is based on two of the most comprehensive surveys ever conducted on religion and public life in America. It includes a dozen in-depth profiles of diverse congregations across the country, which illuminate the trends described by Putnam and Campbell in the lives of real Americans. Nearly every chapter of American Grace contains a surprise about American religious life.

JFB

 

First Amendment Scholarship Update

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

1. Susanna Mancini  (Johns Hopkins University - Bologna Center) and Michel Rosenfeld (Cardozo Law Schoo), Unveiling the Limits of Tolerance: Comparing the Treatment of Majority and Minority Religious Symbols in the Public Sphere. The abstract states:

The main purpose of this essay will be to focus on certain key questions raised under the prevailing circumstances through a comparative analysis of the handling of the display of religious symbols in public places. These questions include: whether, assuming commitments to pluralism, multiculturalism and religious and non-religious comprehensive views, there may be ways to improve on existing models or to replace them with ones that are better suited to accommodate the new religious and political realities, and whether tolerance can be redeployed to buttress pluralism and to avoid falling into an irreconcilable conflict between religious fundamentalism and antireligious secularism.

2. William E. Thro and Charles J. Russo (Christopher Newport University), A Serious Setback for Freedom: The Implications of Christian Legal Society v. Martinez,  published in West Education Law Reporter 2011). The abstract states:

In Christian Legal Society v. Martinez, a sharply divided Supreme Court upheld an order of the Ninth Circuit that officials at a public law school in California may require an on campus religious group to admit all-comers from the student body, including those who disagree with its beliefs as a condition of becoming a recognized student organization. Put another way, the Court declared that the government, through university officials, may now force religious groups to choose between compromising their values and receiving benefits that other student groups receive as a matter of constitutional right. The question remains slightly open because the Court remanded for consideration of whether law school officials applied the all-comers policy selectively to the Christian Legal Society.

Christian Legal Society is a victory for those who believe that no student should experience discrimination in any form. Yet, Christian Legal Society is a serious setback for freedom. As the Wall Street Journal noted, “under the guise of nondiscrimination, the school would actively suppress the convictions of certain groups and their ability to express their views.” Moreover, as the Los Angeles Times observed, Christian Legal Society represented a departure from the Court’s “theme” of protecting the First Amendment rights of “unpopular” groups.

This Article explores the Supreme Court’s decision in Christian Legal Society and its implications. Part I reviews the facts in Christian Legal Society as well as the Opinion of the Court, the two concurrences, and the four Justice dissent. Part II of this Commentary addresses the fundamental change in the Court’s limited-public forum jurisprudence, its evaluation of equality over freedom, and the significant impact that Christian Legal Society has on student organization jurisprudence.

3. John A. Humbach (Pace University School of Law), Teens, Porn and Videogames: Time to Rethink Ginsberg?. The abstract states:

This term the Supreme Court will decide whether states can constitutionally ban sales of violent videogames to minors. In reaching its decision, the Court will inevitably be faced with how to deal with Ginsberg v. New York, the case that allowed states to forbid sales of non-obscene (constitutionally “protected”) pornography to persons under age 17.

The opinion in Ginsberg, if not the result, is an odd duck in First Amendment jurisprudence. It is a case that applied "rational basis" review in an area where the Supreme Court now insists on strict scrutiny. But the Court predicated its use of rational basis review on reasoning that was analytically flawed. Not only was the reasoning circular but it was founded on the startling idea that states have the power to modify the scope of a constitutional concept (i.e., obscenity) and, therefore, to cut down constitutional rights. 

It is doubtful that Ginsberg could be decided on the same reasoning today and, on its record, it probably could not have the same outcome. Rather than gloss over or ignore the analytical flaws of Ginsberg, the Court should take the occasion to rethink Ginsberg and to place this area of law, and minors' constitutional rights, on a sounder footing that is in harmony with the rest of First Amendment law.

4. Harold Anthony Lloyd (Wake Forest University - School of Law) , A Right But Wrong Place: Righting and Rewriting Citizens United. The abstract states:

The majority in Citizens United would create corporate free speech rights in the wrong place. Although corporations should have certain derivative procedural due process and property rights, granting them free speech rights should not survive Constitutional scrutiny. Instead, free speech rights (which also predate the Constitution) should lie solely with natural persons. This means that natural persons should have free speech rights to hear corporate speech but corporations should have no free speech rights themselves. Putting free speech rights in the right place (i.e., with natural persons) clarifies the task involved in reconciling such rights with other rights of the same natural persons to a functioning representative government (which latter rights also predate the Constitution). One must harmonize natural persons' free speech and functional representative government rights in a manner which harms neither of these rights and, if possible, increases the benefits of one or both. Disclaimer requirements work by increasing freedom of speech and PAC limitations work without diminishing freedom of speech. Equal time and variable funding restrictions work in theory but prove undesirable in practice. Finally, the so-called “problem” of corporate media speech is a canard resulting from the failure to distinguish between speech as speech and speech as property.

5. Emily Gold Waldman (Pace University School of Law), Badmouthing Authority: Hostile Speech About School Officials and the Limits of School Restrictions , forthcoming in 19 William & Mary Bill of Rights Journal --- (2011). The abstract states:

This Article offers a new perspective on what is arguably the thorniest, most pressing issue in student speech rights today: the extent to which schools can regulate students’ off-campus speech, particularly on the internet. Although numerous scholars have considered this topic, there has been little critical focus on the fact that most of these cases are arising in one very specific category: student speech that is hostile toward school officials. In fact, that has been the context of all four of the student internet speech cases that have reached the circuit court level so far, including two cases that are currently pending in the Third Circuit after being reheard en banc.

In this Article, I explore the issue of students’ hostile speech about school officials, both on and off school grounds. To what extent can schools legally restrict such speech, and how does that change when the speech originates off campus? Conversely, what legal and educational risks do schools face by not responding to such speech? I look to both case law and relevant psychological research to answer those questions, and then propose a standard that focuses on preserving students’ ability to express dissenting views while also protecting school officials from harassment. My analysis suggests that the on-campus/off-campus distinction, while important, should be less central to the outcome than the content of the speech itself. Indeed, I argue that courts are under-protecting some on-campus speech that qualifies as legitimate dissent, while over-protecting some off-campus speech that largely amounts to harassment.

6. Samira Alić Omerović, Note - Improper Taxation of the Vowed Religious: How Glenshaw Glass Principles Can Reestablish Horizontal Equity, 51 B.C. L. Rev. 1247 (2010). The abstract states:

The 1955 U.S. Supreme Court decision in Commissioner v. Glenshaw Glass Co. defined income as all “undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” In cases where members of religious orders assign all earnings to their orders pursuant to the vow of poverty, this definition has not played a role in the courts’ evaluation of proper tax treatment. Consequently, tax treatment of the members of these orders has violated the fundamental principle of horizontal equity, which states that similarly situated taxpay-ers should receive similar tax treatment. Instead, the Internal Revenue Service and three federal appellate courts have applied a formulistic agency theory that makes it virtually impossible for the vowed religious who work outside their orders to exclude the assigned earnings from in-come. In doing so, the IRS and the courts have misapplied the U.S. Su-preme Court’s assignment of income doctrine. Nonetheless, the agency theory has been applied in comparable non-religious contexts with favor-able outcomes for the taxpayers. The inconsistent results demonstrate that the agency theory is flawed when it is applied to assignments made pursuant to the vow of poverty. This Note argues that courts should evaluate assignments of personal service income under the Glenshaw Glass “dominion and control” standard to reestablish horizontal equity and end the improper taxation of the vowed religious.

JFB