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),  Nonestablishment, Standing, and the Soft Constitution.  The abstract states:

This article praises a development that more commentators have criticized – namely, the Supreme Court’s recent tendency to use “standing” doctrine as a device to avoid addressing establishment clause controversies on the merits. Through much of American history, the article argues, American disestablishment flourished through a “soft constitutionalism” (akin to the “popular constitutionalism” described by Larry Kramer) that gave competing secularist and providentialist interpretations of the Republic a secure place at the constitutional table. With the 1960s school prayer decisions, however, the Court elevated the secularist interpretation to the status of “hard” constitutional doctrine, thereby causing or exacerbating a deep cultural divide and effectively undoing the distinctive American version of disestablishment. The contemporary “culture wars” are in part a product of that well-intended but misguided strategy. And if there is any way to undo the damage and move back in the direction of “soft” constitutionalism, it may well be through using justiciability doctrines like “standing” to create room for soft or popular constitutionalism to revive.

2. Lorenzo Zucca (King's College London School of Law), The Classroom as a Tolerance Lab, published in LAW, RELIGIOUS FREEDOMS AND EDUCATION IN EUROPE (Myriam Hunter Henin, ed.,) forthcoming from Ashgate. The abstract states:

Education is one of the main battlegrounds between secular and religious people. States differ considerably as to their position in this field. Some states calls for more Integration that aims at social, cultural and political cohesion. Integration can be usefully contrasted with accommodation, which assumes and protects a certain degree of diversity. Republican states such as France have pushed for integration of all through free, compulsory, public education. Other states committed to accommodation prefer to let educational establishment mirror the relative social plurality. There are three major sets of challenges for both models: the challenge from religious symbols in the classroom, the challenge from religious syllabuses in schools, and the challenge from students’ selection at the entrance. Integrationists are theoretically open as to the class composition but put heavy limits to religious symbols and syllabuses. Accommodationists leave it to each establishment to decide how to regulate symbols and syllabuses, but encounter major problems as to selection policies of some religious schools (e.g. The Jewish Free School saga). Both models exclude some students on the ground that they don’t fit within the majority or minority requirements. I propose instead a third model, which I call “Classroom as a Tolerance Lab,” which attempts to avoid the pitfalls of integration and accommodation, while relying on their respective achievements. The Tolerance Lab promotes social cohesion by creating actual spaces where mutual understanding between secular and religious people is possible.

3. Mohammad Fadel  (University of Toronto - Faculty of Law), 'No Salvation Outside Islam': Muslim Modernists, Democratic Politics, and Islamic Theological Exclusivism . The abstract states:

The extent to which religions with excluvist claims of salvation can be tolerated in a democracy has been the subject of substantial controversy among liberal political theorists, as exemplified in the different positions taken on this question by Jean-Jacques Rousseau in The Social Contract and John Rawls in A Theory of Justice. This article explores the plausibility of Rawls' claim that democratic institutions have the tendency to dilute the exclusivist claims of salvation theologies in the context of Muslim Modernist theologians in 20th century Egypt. While these theologians were not living in a proper liberal democracy, the prospect of just terms of coexistence with non-Muslim, particularly western, powers apparently prompted them to undertake a substantial revision of pre-modern Muslim theology with respect to the prospects of salvation for non-Muslims. Rejecting pre-modern theologians' insistence on acceptance of true doctrine as a pre-condition for salvation, these modernist theologians radically expanded the concept of excuse while at the same time effectively eliminating the pre-modern doctrine of the duty of inquiry with the result that non-Muslims' prospects for salvation became almost entirely a function of their practical virtue, i.e., contribution to the welfare of mankind and their readiness to engage in peaceful relations with Muslims. The example of these theologians, at least, suggest Rawls' intuitions on the effects of democracy on exclusivist theology are more plausible than Rousseau's concerns that exclusivist theology will subvert liberal democracy.

4. Kevin Lee (Campbell University Law School ),  Free Exercise and Religious Mania: Neuroscience and Religious Free Exercise. The abstract states:

This paper is a presentation given on September 17, 2010 at the conference on Neuroscience in European and North American Case Law sponsored by the Court of Milan and the European Center for Law, Science, and New Technologies at the University of Pavia. It extends the analysis of Steven Goldberg, of Catholic University Law School Professor, who argues that cases in which neuroscience testimony has been used in legal commitment proceeding to invalidate a putative claim of religious belief hold significance (beyond their formal legal meaning) for the use of neuroscience in religious free exercise cases. Like Goldberg, I believe such cases are important for thinking about the future of neuroscience and law in the area of religious free exercise. In this presentation, I argue that while neuroscience testimony may not be used to invalidated the truth-claim of a purported religious belief, it might be admissible to determine the sincerity of a belief or to evaluated the mental state of the believe for consistency with religiousness. While much more work needs to be done in this area, there is promise for enriching the jurisprudence of religious exercise with the insights of the neuroscience of religious belief.

5.  Melissa Crouch (University of Melbourne ), Implementing the Regulation on Places of Worship in Indonesia: New Problems, Local Politics and Court Action, 34 Asian Studies Review. 403 (December 2010). The abstract states:

This article examines the local implementation of the national Joint Regulation 2006 on places of worship in Indonesia. It focuses on the case study of the Protestant Christian Batak Congregation, which became one of the first churches to successfully challenge the authority of a local leader to cancel its permit to build a church. I begin by exploring the history of the regulation of permits for places of worship in Indonesia and the various proposals for law reform that have been put forward since 1998. I then outline the provisions of the new Joint Regulation and highlight the ongoing problems for religious minorities at the local level because of the failure of local authorities to implement the national regulation. I will demonstrate how religious minorities are challenging the decisions of local authorities by complaining to independent watchdogs, taking court action and using the political process. In conclusion, I argue that the Protestant Christian Batak Congregation court case is part of a broader trend for local authorities to use conflict over places of worship as an opportunity for political gain in the highly competitive political atmosphere since the downfall of Suharto in 1998.

 6. Subramaniam Chandran (Vinayaka Missions University - Directorate of Distance Education),  Sustainable Distance Education Through Mobile Learning: A Case Study in Multicultural Context , OIDA International Journal of Sustainable Development, Vol. 2, No. 3, pp. 35-40, 2010. The abstract states:

This paper addresses three important issues: How technology does assure sustainable distance learning for multicultural group of students?; What is the relevance of mobile learning in context of developing countries with multicultural social environment?; and How does mobile learning confirm improved learning solution for different levels of students? This paper reports the impact of mobile learning on distance education in multicultural environment. The emergence of learning technologies through CD, internet, and mobile is increasingly adopted by distance institutes for quick delivery and cost-effective purposes. Their sustainability is conditioned by the structure of learners as well as the teaching community. The experimental study was conducted among the distant learners of Vinayaka Missions University located at Salem in India. Students were drawn from multicultural environment based on different languages, religions, class and communities. During the mobile learning sessions, the students, who divided on language, religion, class and community, were dominated by play impulse rather than study anxiety or cultural inhibitions. This study confirmed that mobile learning improved the performance of the students despite their division based on region, language or culture. In other words, technology was able to transcend the relative deprivation in the multicultural groups. It also confirms sustainable distance education through mobile learning and cost-effective system of instruction. Mobile learning appropriates the self-motivation and play impulse of the young learners in providing sustainable distance education to multicultural social groups of students.

7. Nazmul Hussain, Muslims of West Bengal: An Analysis of the Educational Status of a Minority Community in India. The abstract states:

Education is a crucial social factor that initiates the process of social, economic and cultural development of communities. Muslims are the second largest religious group in West Bengal and the largest minority in this Indian state. With a population of over 20 million in absolute numbers, Muslims constitute 25 per cent of the total population of the state. The main objective of this study is to analyze the regional imbalances in the distributional pattern of Muslim, including the trend of the Muslim population over the past century and in the future and the concentration pattern of Muslim population across the state, in the context of developing an educational profile of Muslims in West Bengal. Since the religion wise data on any other educational indicator are not available at district level, this study utilizes only the data on literacy to examine the level of educational development of Muslims across the region. Finally the study examines the relationship between literacy level and concentration of Muslim population in West Bengal. The relative backwardness of the Muslim community, particularly in education, is noted as a factor in the relative economic backwardness observed among the Muslim population in India.

8. Nazmul Hussain, Literacy and Socio-Economic Marginalization of Muslim Population in Malda District of West Bengal, India . The abstract states:

Literacy and education are like oxygen for human beings in contemporary technology driven world and knowledge economy. Low level of literacy and education impedes national growth and violates human rights as well as for the religious communities, in reverse higher literacy rate bring social changes, cultural advancement and economic development. The present deductive approach of research aims at examining the reciprocal relationship between literacy and socio-economic determinants as the consequence of backwardness of Muslim community in Malda district. The paper quantitatively proves that higher literacy rate reduces number of 0-6 population and growth of population; however it is an impetus to higher urbanization and employment which are the testimonies of human development. Finally, paper concludes with some suggestive remarks to enhance the Muslim literacy which is an ultimate solution of reduction of existing human group disparities of socio-economic development in the district.

9. Clifford J. Rosky (University of Utah S.J. Quinney College of Law), Just the Facts? Rethinking Same-Sex Marriage Law in Perry V. Schwarzenegger . The abstract states:

On August 4, 2010, Chief Judge Vaughn Walker of the U.S. District Court for the Northern District of California issued a 136-page ruling in Perry v. Schwarzenegger. In his ruling, Judge Walker held that Proposition 8, an amendment to the California constitution providing that “only marriage between a man and a woman is valid or recognized in California,” violates the Due Process and Equal Protection Clauses of the U.S. Constitution. In analyzing Judge Walker’s ruling, many experts have claimed that the judge’s findings of fact are more novel and significant than his conclusions of law. Based on a close reading of Judge Walker’s ruling, this Article suggests that the common wisdom may be overstated on both counts - his conclusions of law may be more significant than many have recognized, and his findings of fact may be less significant than many have hoped. By contrasting Judge Walker’s legal analysis to previous federal and state court opinions in same-sex marriage cases, Parts I through III demonstrate that Judge Walker has made three novel contributions to same-sex marriage law. These Parts show that by insisting that the fear of queer children is a form of homophobia, recognizing the historical link between discrimination based on sexual orientation and sex, and analogizing prohibitions against moral and religious justifications under the Fourteenth Amendment, Judge Walker has not only made a lasting impact on debates over the constitutionality of laws against same-sex marriage, but shaped broader conversations about the constitutional status of LGBT rights, and the meaning and scope of the Equal Protection and Due Process Clauses. Turning to Judge Walker’s analysis of the evidence, Part IV explains why his findings of fact are less likely to have a significant impact than his conclusions of law. The Article concludes by briefly exploring how Judge Walker’s legal analysis might impact the future of same-sex marriage law.

10, Alberto Bisin (New York University - Leonard N. Stern School of Business - Department of Economics) , Eleonora Patacchini (Università di Roma "La Sapienza"), Thierry Verdier (Delta - Ecole Normale Superieure), and Yves Zenou Stockholm University, Bend it Like Beckham: Ethnic Identity and Integration. The abstract states:

We propose a theoretical framework to study the determinants of ethnic and religious identity along two distinct motivational processes which have been proposed in the social sciences: cultural conformity and cultural distinction. Under cultural conformity, ethnic identity is reduced by neighborhood integration, which weakens group loyalties and prejudices. On the contrary, under cultural distinction, ethnic minorities are more motivated in retaining their own distinctive cultural heritage the more integrated are the neighborhoods where they reside and work. Data on ethnic preferences and attitudes provided by the Fourth National Survey of Ethnic Minorities in the UK enables us to test the relative significance of these two identity processes. We find evidence consistent with intense ethnic and religious identity mostly formed as a cultural distinction mechanism. Consistently, we document that ethnic identities are more intense in mixed than in segregated neighborhoods.

11. Lucian A. Bebchuk (Harvard Law School)  and Robert J. Jackson, Jr. (Columbia Law School) , Corporate Political Speech: Who Decides?,  124 Harv. L. Rev. 83 (2010). The abstract states:

The Supreme Court spoke clearly this Term on the issue of corporate political speech, concluding in Citizens United v. FEC that the First Amendment protects corporations’ freedom to spend corporate funds on indirect support of political candidates. Constitutional law scholars will long debate the wisdom of that holding, as do the authors of the two other Comments in this issue. In contrast, this Comment accepts as given that corporations may not be limited from spending money on politics should they decide to speak. We focus instead on an important question left unanswered by Citizens United: who should have the power to decide whether a corporation will engage in political speech?

Under existing law, a corporation’s decision to engage in political speech is governed by the same rules as ordinary business decisions, which give directors and executives virtually plenary authority. In this Comment, we argue that such rules are inappropriate for corporate political speech decisions. Instead, lawmakers should develop special rules to govern who may make political speech decisions on behalf of corporations. We analyze the types of rules that lawmakers should consider. We also offer a set of proposals, and policymaking considerations, for designing such rules.

In Part II, we consider existing corporate law rules governing the political speech decision. As long as corporations are permitted to engage in political speech, we show, decisional rules governing whether and how they decide to do so are inevitable. Under existing corporate law rules, corporate political speech decisions are subject to the same rules as ordinary business decisions. Accordingly, corporate political speech decisions do not require shareholder input, a role for independent directors, or disclosure — the safeguards that corporate law rules establish for special corporate decisions.

We explain that the interests of directors and executives with respect to political speech decisions may diverge from those of shareholders, that the financial implications of these decisions are hardly trivial, and that the costs of the divergence of interests may be exacerbated by the special expressive significance that these decisions carry for shareholders. We conclude that political speech decisions are substantially different from, and should not be subject to the same rules as, ordinary business decisions.

In Part III, we assess lawmakers’ choices with respect to rules that would align corporate political speech decisions with shareholder interests. In particular, we suggest that lawmakers consider adopting rules that (i) provide shareholders with a role in determining the amount and targets of corporate political spending; (ii) require that independent directors oversee corporate political speech decisions; (iii) allow shareholders to opt out of — that is, either tighten or relax — each of these first two rules; and (iv) mandate detailed and robust disclosure to shareholders of the amounts and beneficiaries of a corporation’s political spending, whether made directly by the company or indirectly through intermediaries. We explain how such rules would benefit share-holders. We also explain why the proposed rules are best viewed not as limitations on corporations’ speech rights but rather as a method of determining whether the corporation actually wishes to engage in political speech. Thus, these rules protect, rather than abridge, corporations’ First Amendment interests.

Part IV discusses an additional objective that decisional rules concerning corporations’ political speech may seek to serve: the protection of minority shareholders from forced association with political speech supported by a majority of shareholders. We discuss the economic and First Amendment interests of minority shareholders that lawmakers may seek to protect. Although we conclude that requiring unanimous shareholder approval for corporate political speech would likely be neither desirable nor permissible, we argue that decisional rules addressing political spending opposed by a sufficiently large minority of shareholders should be viewed as constitutionally permissible, and we discuss how lawmakers could best design such rules.

In our view, as long as corporations have the freedom to engage in political spending, the types of decisional rules we describe in this Comment will be desirable. While Citizens United expanded the scope of corporate resources that may be used for such speech, substantial corporate political spending was permitted before the decision. The expansion of the scope of constitutionally protected corporate political speech brought about by Citizens United, however, makes the need for such rules all the more pressing.

12. Samuel Issacharoff (NYU Law School), On Political Corruption, 124 Harv. L. Rev. 118 (2010). The abstract states:

Lurking beneath the surface of all debates on campaign finance is a visceral revulsion over future leaders of state groveling for money. The process of fundraising is demeaning to any claim of a higher calling in public service and taints candidates, policies, donors, and anyone in proximity to this bleakest side of the electoral process. The intuition is that at some level money must be corrupting of the political process and that something must be done to limit the role of money in that process. In turn, and almost inescapably, the same logic appears to lead to the belief that less money is better than more money, and that successful reform must bring down the cost of modern electoral campaigning.

It is the logic of constricting the effects of money that has defined the modern era of campaign finance reform, an era that began after the Watergate scandals and is now completing its fourth decade. Time and again, the impetus behind the reform effort has been to depress the amount of money spent in campaigns and thereby limit the associated moral stain. So long as a stench attaches to money and by extension to those who seek to direct political outcomes with money, the cause of campaign finance reform takes the high road. If money be the root of all evil, reducing the amount of money in the system is the natural conclusion.

With these efforts at limitation comes the inevitable result that some speakers will be handicapped in expressing their views and that the total quantity of speech will be curtailed. This point is not really disputed by the reform camp, nor by the dissident wing of the Supreme Court. The oft-invoked claim that money is not speech, and the corollary claim of the rights of listeners not to be bombarded with excesses from one side of the debate, both assume a right to limit the propagation of certain views, presumably those that are overfunded or overexposed, or both. For Justice Stevens and a persistent minority on the Court, the claim that money is not speech lends constitutional cover to the search for a way to squeeze money out of politics. In turn, this attempt to restrain the amount of money in the system runs headlong not only into the teeth of the constitutional concern of the majority of the Court but also into the brute fact of the increased scale and complexity of campaigning for contested office.

The restrictive aspect of the reform agenda is ultimately both its strength and its constitutional liability. Constitutionally, the effort to limit the spending of political campaigns — which, if not directly speech, is certainly “speechy enough” — has occasioned a long line of losses for reform, with Citizens United v. FEC but the latest in an almost unbroken streak. Citizens United continues the troubled tradition of Buckley v. Valeo in drawing the divide between political contributions and expenditures. The former category gives rise to potential regulation in order to combat a poorly specified corruption of the political process — a concept to which I return below — while the latter is seen as within the domain of expressive liberties that the state may not seek to restrict.

Academic commentary has long had a field day with the core expenditures-versus-contributions rationale of Buckley. The system of limited contributions but unchecked expenditures runs afoul of the animating logic of the 1974 campaign finance amendments, and is in fact a regulatory structure created by the Court. No rational regulatory system would seek to limit the manner by which money is supplied to political campaigns, then leave unchecked the demand for that same money by leaving spending uncapped. In the meantime, majorities drawn from varying voting blocs on the Court have persistently rejected the Buckley divide between contributions and expenditures, with only a division among the Justices on how to overturn Buckley serving to shore up a frayed body of law. Whether framed as doctrinal incoherence or simply as a doctrinal approach that proved unworkable over time, the Court’s attempt to muddle through the difficult issue of money and politics has been subject to easy hits by critics. I confess to being a participant in looking at the failures of Court doctrine, all the while conceding in articles and the classroom just how intractable the problem seemed. Indeed, writing with Professor Pamela Karlan a decade ago, I concluded that not much could be done about the pull of finance in elections, such that the perverse “hydraulic” of money finding its outlet led many campaign finance reform efforts to backfire and empower the unaccountable tertiary actors (the political action committees (PACs), the 527s, and all the rest) at the expense of the candidates and parties who actually had to stand for election before We the People.

This Comment takes Citizens United as a launching point to revisit the central Buckley paradigm and examine what possibilities for reform remain to redress the vulnerabilities of democracy before the powers of the purse. Beginning with Buckley, the Court recognized that contributions had the unique potential to corrupt the political process. Revisiting the contribution process and the concept of corruption may yield a better handle on what should be the sources of concern in the financing of electoral campaigns. The approach taken here is to start by examining the competing concerns that tend to get glossed over by underspecified references to political corruption, then to see if the processes of financing campaigns can be addressed both to those concerns and to increasing the level of democratic engagement in politics. Specifically, this approach focuses on the mechanisms used to empower democratic participation in two ways: one by inducement, one by prohibition.Counterintuitively, the inducement looks to increase the amount of contributions to campaigns to alleviate some of the concerns over political corruption, while the prohibition seeks to bar those in a position to distort public policy — such as government contractors — from providing support to candidates’ campaigns. The argument rests heavily on the idea that the threat to democratic governance may come from the emergence of a “clientelist” relation between elected officials and those who seek to profit from relations to the state.

The inquiry begins in Part I with the contested terrain over the nature of political corruption. Once the Supreme Court announced in Buckley that the concern over corruption or even its appearance could justify limitations on money in politics, the race was on to fill the porous concept of corruption with every conceivable meaning advocates could muster. As with the elusive term “diversity” after Buckley’s contemporary, Regents of the University of California v. Bakke, a thin constitutional reed transformed the lexicon of political debate. Part II advances the argument that the corruption concern is really a concern with ensuring public — rather than private — outputs from the policymaking process. This reorientation toward corruption in the outputs of policymaking suggests effective solutions to address the financial vulnerabilities of democracy compatible with the Court’s strong constitutional stance in Citizens United, which are discussed in Part III.

13. Kathleen M. Sullivan (Stanford Law School), Two Concepts of Freedom of Speech, 124 Harv. L. Rev.  143 (2010). The abstract states:

By holding that corporations may make independent expenditures from their general treasuries advocating the election or defeat of political candidates, Citizens United v. FEC unleashed a torrent of popular criticism, a pointed attack by the President in the State of the Union address, a flurry of proposed corrective legislation in Congress, and various calls to overturn the decision by constitutional amendment. Political uproar over a 5–4 Supreme Court decision upholding a controversial free speech right is not new; the Court’s two 5–4 decisions upholding a right to engage in symbolic flag burning, for example, elicited widespread public condemnation and efforts in Congress to overturn the Court by statute and by constitutional amendment. But Citizens United surely marks the first time a controversial victory for free speech rights emanated from a majority of Justices conventionally viewed as conservative, over the dissent of four Justices conventionally viewed as liberal, with virtually all political criticism arising from the political left.

Does Citizens United mark a reversal in the political valence of free speech? Have liberals grown weary of First Amendment values they once celebrated? Have conservatives flip-flopped and now become free speech devotees? This Comment argues that support for First Amendment values in fact cuts across conventional political allegiances, and that both sides in Citizens United are committed to free speech, but to two very different visions of free speech. Where the two visions align, lopsided victories for free speech claims are still possible. For example, last Term in United States v. Stevens, the Court voted 8–1 to invalidate the criminal conviction of a purveyor of dogfight videos, reasoning that a federal criminal ban on depictions of animal cruelty was overbroad. But where the two visions diverge, divisions like that in Citizens United become sharp.

In the first vision, discussed in Part I, free speech rights serve an overarching interest in political equality. Free speech as equality embraces first an antidiscrimination principle: in upholding the speech rights of anarchists, syndicalists, communists, civil rights marchers, Maoist flag burners, and other marginal, dissident, or unorthodox speakers, the Court protects members of ideological minorities who are likely to be the target of the majority’s animus or selective indifference. A vision of free speech as serving an interest in political equality also endorses a kind of affirmative action for marginal speech in the form of access to government subsidies without speech-restrictive strings attached. By invalidating conditions on speakers’ use of public land, facilities, and funds, a long line of speech cases in the free-speech-as-equality tradition ensures public subvention of speech expressing “the poorly financed causes of little people.” On the equality-based view of free speech, it follows that the well-financed causes of big people (or big corporations) do not merit special judicial protection from political regulation. And because, in this view, the value of equality is prior to the value of speech, politically disadvantaged speech prevails over regulation but regulation promoting political equality prevails over speech.

The second vision of free speech, by contrast, sees free speech as serving the interest of political liberty. On this view, discussed in Part II, the First Amendment is a negative check on government tyranny, and treats with skepticism all government efforts at speech suppression that might skew the private ordering of ideas. And on this view, members of the public are trusted to make their own individual evaluations of speech, and government is forbidden to intervene for paternalistic or redistributive reasons. Government intervention might be warranted to correct certain allocative inefficiencies in the way that speech transactions take place, but otherwise, ideas are best left to a freely competitive ideological market.

The outcome of Citizens United is best explained as representing a triumph of the libertarian over the egalitarian vision of free speech. Justice Kennedy’s opinion for the Court, joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, articulates a robust vision of free speech as serving political liberty; the dissenting opinion by Justice Stevens, joined by Justices Ginsburg, Breyer, and Sotomayor, sets forth in depth the countervailing egalitarian view. Neither vision, however, entirely eclipses the other in Citizens United; each of the principal opinions pays lip service to the other by invoking the other’s theory in its own cause. And, as Part III illustrates, neither side appears to have fully thought through how its position in Citizens United fits with the broader views its members have expressed about First Amendment rights in other contexts, causing seeming inconsistencies with positions taken in other First Amendment cases last Term. The upshot is that each vision retains vitality for use in other First Amendment contexts.

The tension between these two competing visions — of free speech as serving equality and of free speech as serving liberty — is illuminated by analysis of four possible political reforms that might be considered in the aftermath of the Citizens United decision: first, invalidating limits on political contributions directly to candidates; second, allowing independent electoral expenditures by nonprofit but not for-profit corporations; third, increasing disclosure and disclaimer requirements for corporations making expenditures in connection with political campaigns; and fourth, conditioning receipt of various government benefits to corporations on their limiting political campaign expenditures. The first seems initially attractive to libertarians but not egalitarians; the second to egalitarians but not libertarians; the third to both libertarians and egalitarians; and the fourth to libertarians but not egalitarians. As addressed in Part IV, however, a closer look at each alternative reveals significant complexities.

The best view of freedom of speech would combine the free-speech-as-liberty perspective with the egalitarian view’s skepticism toward speech-restrictive conditions on government benefits. Under such a capacious approach, the first and third reforms are preferable to the second and fourth, and any new regulation of political money in the wake of Citizens United should abandon source and amount limits or increase disclosure requirements, not distinguish among political speakers or make speech restrictions a price of government largesse.

14. Matthew Rimmer (Australian National University (ANU) - College of Law), A Fair Use Project for Australia: Copyright Law and Creative Freedom, 28 Copyright Reporter 165 (2010). The abstract states:

This essay provides a critical assessment of the Fair Use Project based at the Stanford Center for Internet and Society. In evaluating the efficacy of the Fair Use Project, it is worthwhile considering the litigation that the group has been involved in, and evaluating its performance. Part 1 outlines the history of the Stanford Center for Internet and Society, and the aims and objectives of the Fair Use Project. Part 2 considers the litigation in Shloss v. Sweeney over a biography concerning Lucia Joyce, the daughter of the avant-garde literary great, James Joyce. Part 3 examines the dispute over the Harry Potter Lexicon. Part 4 looks at the controversy over the Shepard Fairey poster of President Barack Obama, and the resulting debate with Associated Press. Part 5 of the essay considers the intervention of the Fair Use Project as an amicus curiae in the ‘Column case’. Part 6 explores the participation of the Fair Use Project as an amicus curiae in the litigation over 60 Years Later, an unauthorised literary sequel to J.D. Salinger’s The Catcher in the Rye. Part 7 of the essay investigates the role of the Fair Use project in disputes over copyright law and musical works. Part 8 investigates the role of the Fair Use Project as an advocate in disputes over copyright law, fair use, documentary films, and internet videos.

The conclusion has main three arguments. First, it contends that Australia should establish a Fair Use Project to support creative artists in litigation over copyright exceptions. Second, it maintains that Australia should adopt a flexible, open-ended defence of fair use, and draw upon the rich jurisprudence in the United States on the fair use doctrine. Finally, this paper argues that support should be given at an international level to the proposal for a Treaty on Access to Knowledge.

15. Samuel M. Duncan, Protecting Nominative Fair Use, Parody, and Other Speech-Interests by Reforming the Inconsistent Exemptions from Trademark Liability, 44 Mich. J. of L. Reform 219 (2010). The abstract states:

Federal trademark law exempts certain communicative uses of a trademark from liability so that the public can freely use a trademark to comment on the markowner or to describe its products. These exemptions for “speech-interests” are badly flawed because their scope is inconsistent between infringement and dilution law, and because the cost and difficulty of claiming their protection varies significantly from court to court. Many speech-interests remain vulnerable to the chilling threat of litigation even though they are “protected” by current law. This Note proposes a simple statutory reform that will remedy this inconsistency by creating an express safe harbor for speech-interests in the Lanham Act. This reform will give full effect to the policy behind these exemptions: that if they apply, the public ought to be able to freely use a trademark in discourse. This reform also furthers the Lanham Act’s purpose of establishing a uniform system of nationwide trademark protection by endorsing the simple principle that a given use of a trademark should be either consistently protected from or vulnerable to suit in every court and under every cause of action.

Federal trademark law exempts certain communicative uses of a trademark from liability so that the public can freely use a trademark to comment on the markowner or to describe its products. These exemptions for “speech-interests” are badly flawed because their scope is inconsistent between infringement and dilution law, and because the cost and difficulty of claiming their protection varies significantly from court to court. Many speech-interests remain vulnerable to the chilling threat of litigation even though they are “protected” by current law. This Note proposes a simple statutory reform that will remedy this inconsistency by creating an express safe harbor for speech-interests in the Lanham Act. This reform will give full effect to the policy behind these exemptions: that if they apply, the public ought to be able to freely use a trademark in discourse. This reform also furthers the Lanham Act’s purpose of establishing a uniform system of nationwide trademark protection by endorsing the simple principle that a given use of a trademark should be either consistently protected from or vulnerable to suit in every court and under every cause of action.

16. Wilson Ray Huhn (University of Akron - School of Law), Three Giant Steps Backward for the First Amendment . The abstract states:

Three of the First Amendment cases that the Supreme Court decided during its 2009 term – Holder v. Humanitarian Law Project, United States v. Stevens, and Citizens United v. F.E.C. – constitute setbacks for the principle of freedom of speech. In the latter two cases the Supreme Court ruled that the laws in question violate the First Amendment, creating the impression that Freedom of Speech is on the move. However, careful examination of the Court’s opinions reveals that the movement is retrograde.

The decisions of the Supreme Court in these cases all take us back – back to before 1937 when the Supreme Court recognized the right of the individual to act nonviolently in concert with disfavored organizations, before 1925 when Holmes and Brandeis introduced realist analysis into First Amendment law, and before 1907 when this country agreed to prohibit corporations from contributing money to political candidates. The Supreme Court seeks to return to the “good old days” when political activism (no matter how peaceful) could be prosecuted, longstanding traditions (no matter how unjust) were honored, and large corporations (no matter how much they may drown out the voices of ordinary citizens) were permitted to dominate the political process and purchase influence with public officials.

JFB