First Amendment Law Prof Blog

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

Looking for Lamebook?

You can't get there from Facebook.

The LA Times reports that Facebook users can no longer link to Lamebook, "fan" it's page, or "like" it's posts.  Says anonymous Facebook exec: "In the process of dealing with a routine trademark violation issue regarding some links posted to Facebook, we blocked all mentions of the phrase “lamebook” on Facebook . . . We are committed to promoting free expression on Facebook."

Earlier this month, Lamebook responded to threats from Facebook by seeking First Amendment protection as a parody site.  Two weeks later, Facebook sued Lamebook for trademark-infringement.

-Kathleen Bergin

 

 

Texas Legislator Seeks to Get Ten Commandments on the Walls of State’s Classrooms

Despite the shadow cast by Stone v. Graham over the constitutionality of his initiative, Texas State Rep. Dan Flynn has introduced H.B. 79, which reads, “The board of trustees of an independent school district may not prohibit the posting of a copy of the Ten Commandments in a prominent location in a district classroom.”  Flynn has asserted the posting would represent a "patriotic exercise" but went on, as quoted in the Fort Worth Star Telegram to explain the impetus for the proposal as follows:

This is necessary to protect teachers who have the desire to establish that the country's historical background is based on Judeo-Christian traditions.... This might be a reassuring step to the people that we are wanting to maintain and hold on to those historical findings of how our country was founded. ...And anything that helps build the morals of our young people would be helpful. ...For too long, we've forsaken what our Judeo-Christian heritage has been. Our rights do come from God, not from government.

JFB

Senate Approves Animal Cruelty Bill - Measure Headed for President's Signature

In a voice vote on Friday, the Senate approved the a bill that makes it a crime to sell or distribute "animal crush" videos - those artistic gems that portray a stiletto clad dominatrix threatening to impale a kitten with her heel.

The "Animal Crush Videos Act of 2010" passed the House last week, and now moves to the President's desk for signature. 

All of this is in response to the Supreme Court's decision in US v. Stevens, which struck down a 1999 statute on the ground that it was unconstitutionally over-broad.  That statute defined the prohibited images to include live animals being maimed, injured, tortured or killed if the conduct itself is illegal in the relevant jurisdiction.  The 2010 statute now on the President's desk is narrower in two ways:  (1) it applies to videos that are "obscene," and depict an animal being "crushed, burned, drowned, suffocated, impailed or otherwise subject to serious bodily injury," and (2) it exempts images that involve hunting, trapping or fishing, unlike the previous law that exempted images with "serious religious, political, scientific, educational, journalistic, historical, or artistic value."    

I'm certainly sympathetic to lawmakers who work to ban animal cruelty in any form, but I wonder whether Howard Wasserman and Michael Dorf are on to something in arguing that "this is a perfect example of symbolic legislation."

Consider this:  The New York Times has reported that the federal statute struck down in Stevens had been invoked by prosecutors only 3 times (4 with Stevens), though it had been on the books for more than a decade.  That low number might be explained, in part, by the breadth of the exception written into the 1999 statute.  The exception in the 2010 Act is more limited, but what difference does it make if the underlying prohibition is unconstitutional?  To satisfy the First Amendment, a statute that prohibits obscenity must describe in detail what types of explicit images are prohibited.  The Crush Videos Act acknowledges that "there are certrain extreme acts of animal cruielty that appeal to a specific sexual fetish," and that "many animal crush videos are obscene."  But the statute but does not specifically identify any prohibited sexual images, much less describe them in sufficient detail to satisfy traditional constitutional standards. 

Moreover, what do we get from a statute that that doesn't even come close to prohibiting the breadth of real-life animal cruelty videos on the market today?  It's rumored the videos that hit the market in the 1990s didn't involve real animals - most didn't show any the gruesome detail on film, but the squeals and cries of the animals could be heard off camera.  But even when real animals are involved, how many cruelty videos appeal to a "prurient interest" in sex, as is required by the statute?  Vicks'-type dog-fighting videos (or the videos at issue in Stevens) might be sickening and cruel, but they' don't necessarily appeal to a prurient interest, and therefore aren't obscene as that phrase is understood by the Supreme Court.  Thus, even if such videos do show an animal "subject to serious bodily injury," they wouldn't be covered by the 2010 statute.  And if they were covered, the pace of prosecutions prior to Stevens show that it wouldn't really matter all that much anyway.

I've written elsewhere about my baby girls Kenya and Brutus, up there on the left.  They eat organic kibble, raw meat bones and  wheat-free snacks.  They drink osmosis purified de-ionized water from Whole Foods.  They've gotten accupuncture.  They have a standing reservation at 'doggy day-care' every Friday, sometimes with a sleep-over and oatmeal bath.  And yes, they sleep in our bed.  That's Mousetrap up there too.  We got her from the auto-shop guy who found her in the alley.  She's in the bed too. 

I certainly understand the symbolic value of passing a statute that bans crush-videos.  I just want the statute to make a difference in the real world, and I'm not sure this one will. 

-Kathleen A. Bergin

Survey Examines Effect of Voters' Religious Views on Political Choices

The Public Religion Research Institute has released a new survey entitled " Old Alignments, Emerging Fault Lines: Religion in the 2010 Election and Beyond." The accompanying press release includes the following noteworthy findings:

A majority of Americans say that President Obama's religious beliefs are somewhat different (16 percent) or very different from their own (35 percent). Given that Americans generally want political leaders who share their values, this could be a serious problem for the President moving towards 2012.

Those identifying with the Tea Party are also more likely than white evangelicals to say discrimination against women is no longer a problem in the country, that blacks and other minorities have received too much government attention, and to say that it is not that big a problem if some have more chances in life than others.

[V]iews of Islam are highly polarized by political and religious affiliation. Approximately two-thirds of both Republicans and those identifying with the Tea Party say the values of Islam are at odds with American values, compared to only 3-in-10 Democrats. Nearly 6-in-10 (57 percent) white evangelicals say the values of Islam are at odds with American values, a view held by less than 3-in-10 (28 percent) Americans with no religious affiliation.

JFB

Navid Mohebbi: the boy who blogged about equality for women stands trial

Navid Mohebbi is an Iranian blogger accused of "activities contrary to national security" and "insulting the Islamic Republic's founder . . . by means of foreign media."  He was beaten by the police when he was arrested at his home in September, and is being tried in a closed proceeding that his attorney cannot attend.

Navid is also a member of the "One Million Signatures" movement, a campaign to mobilize support for ending laws that discriminate against women, and according to reports, was beaten during a police interrogation about his involvemet in a program to celebrate International Women's day.

That's Navid, above.  If he looks young, it's because he is.  Navid is only 18, and his arrest in Iran makes him the youngest detained blogger in the world. 

view Sept. Global Free Speech Update 

view Aug. Global Free Speech Update

-Kathleen Bergin

 

 

First Amendment Scholarship Update

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

1. Jeremy Patrick (Osgoode Hall Law School, York University), The Curious Persistence of Blasphemy. The abstract states:

Despite expectations to the contrary, blasphemy laws and their modern-day counterparts persist in a surprising number of jurisdictions around the globe. This article discusses four examples: the "defamation of religion" movement at the United Nations, the surprising resurrection of blasphemy law in Ireland, the Australian trend toward enacting "religious vilification" laws, and the problem of formal illegality and private violence for blasphemous speech in Pakistan. Next, blasphemy is considered from three conceptual angles: the religious, the legal, and the secular/cultural. Last, the curious persistence of blasphemy is examined through an inquiry into why people blaspheme to begin with, and what harms (real or perceived) are caused by blasphemy. The conclusion here is that as long as societies hold something sacred - religiously or culturally - blasphemy will remain an operative concept and legal or social pressure to suppress blasphemous statements will continue to persist.

2. Roberta Rosenthal Kwall (DePaul University - College of Law),  Creativity and Cultural Influence in Early Jewish Law, forthcoming in Notre Dame Law Review. The abstract states:

Human creativity thus lies at the heart of Judaism, both from a theological and a legal standpoint. Therefore, there is much scholars who are interested in the creative process from a secular standpoint can learn from the Jewish tradition. On the secular side, legal scholars currently are turning their attention to analyzing law within cultural terms because political “culture” struggles are being waged increasingly on legal turf. This pairing of law and culture requires clear articulations of what culture means and what the relationship between law and culture should look like. This approach enables us to transcend the standard inquiries of what the law is, and what we want it to be, by asking instead what the law makes us. Among those scholars who invoke cultural analysis, there is a general sense that law and culture should not be viewed as two distinct entities but rather as embodiments of one another. When law is seen as culture and culture as law, it becomes logical to discuss how to interpret law in cultural terms.

Jewish religious law, known as halakhah, has been influenced by cultural developments both within the Jewish community and outside of it. Cultural analysis reminds us that cultures are not hermetically sealed but continuously interact with the world around them. This reality is especially true with respect to Jewish law given that the history of the Jewish people is such that they have been living in foreign cultures in the Diaspora for thousands of years. This Article illustrates how these cultures, generally and particularly with respect to Hellenism, have exerted an enormous influence on the development and application of Jewish law in its formative period. It adopts a cultural analysis perspective, thus positing that Jewish culture and Jewish law are inextricably intertwined. Further, it argues that from an early stage in the development of Jewish law, its inherent creativity derives from its confrontation with outside cultural influences.

Part I of this Article examines the analytical relationship between law and cultural analysis, and establishes the important symbiotic relationship between law and culture. Part II initially explores the fundamental tenets of the Jewish legal system in the law’s formative years. It then investigates the influence of the surrounding cultures, particularly the Hellenistic influence, on the development of early Jewish law. Throughout this Part, the Article develops the argument that the need for adaptation to the surrounding environment insured the inherent creativity of the law’s development and application. Part III contrasts the situation involving American Jewry in the twenty-first century with earlier times. It posits that the familiar and successful pattern of acculturation that historically insured a creative Jewish legal system is no longer viable in the sociological milieu in which most American Jews live.

3. Tobias Lock (University College London), Religious Symbols in Germany.  The abstract states:

The paper is concerned with religious symbols in Germany. It mainly focuses on decisions by the Federal Constitutional Court on religious symbols in schools. Court had to deal with two landmark cases concerning the topic of religious symbols. The facts and the outcome of the first decision very much resemble those in the recent Lautsi case: the parents of a child objected to a Bavarian law requiring that a crucifix be affixed in every class room. The Court regarded this as a violation of the student’s freedom of religion. The second case added another dimension: the school authority refused to employ a Muslim teacher who insisted on wearing a headscarf in class. In that case not only the students’ freedom of religion was at issue but also that of the teacher. The Court managed to avoid a ruling on this conflict of fundamental rights by arguing that the school authority had acted without a legislative basis, which made the refusal to employ the teacher illegal. The paper will look at the arguments made in the academic discussion and by inferior courts (most importantly by the Federal Administrative Court). Furthermore, it will examine the reaction by the legislatures of the Länder, which ranged from categorically banning all religious symbols to allowing only those which are in accordance with ‘Christian and occidental cultural and educational values’, a provision which was upheld by the Bavarian Constitutional Court. The paper also discusses unsuccessful challenges under anti-discrimination law as well as the possibilities of banning religious symbols worn by students.

4. Seyed Reza Eftekhari (Islamic Azad University, Gonbad Branch) , A Case Study of Human Development Observing Islamic Standards in Iranian Society: Women’s Progress in Legal Professional Careers,  published in OIDA International Journal of Sustainable Development, Vol. 2, No. 4, pp.11-16, 2010.  The abstract states:

The pattern of human development in women’s affairs in a religious and revolutionary society such as Iran can be read as a model based on Islamic standards which may be considered restrictive by some. Legal affairs, both in legislative area and in legal educations and careers are good examples of this participation in a developing country. Women occupy an increasing number of job opportunities as judges, lawyers, advocates, and attorneys and a great percent of university students rush for legal educations. In this essay, we do not aim to speak merely by numbers and graphs, but to show that how the Islamic society can extend the field for women’s development and reconcile the value-driven public view with the social necessities. In this paper, based on a research program about HD in Iran, in addition to the documentary official statistics and social surveys, there will be an analysis regarding the qualitative growth of women’s conditions and the effect of their presence in legal areas on development at a large scale, considering three aspects of a) the effect on legislative power and parliamentary movements regarding the enactment of laws discussing women’s civil and social rights; b) a collectively flow toward institutionalization of women’s rights and for conceptualizing related rules; and c) different attempts with the purpose of promoting educational standards for women in contesting career fields.

5. Vasoontara Yiengprugsawan , Sam-Ang Seubsman , Lynette L.Y. Lim and Adrian Sleigh (Australian National University (ANU), Social Capital, Economic Stress, and Religion in a National Cohort of 87,134 Thai Adults, published in Journal of Population and Social Studies, Vol. 19, No. 2, 2011. The abstract states:

Social capital includes collective features such as social trust, norms, and networks. This paper examines social capital-related variables against demographic, socioeconomic and geographic characteristics of 87,134 adult distance-learning students from Sukhothai Thammathirat Open University.

We have found economic stress to be higher in non-married groups, lower income groups, and those residing in rural areas. Social trust was higher among married, especially with higher income and those in rural areas. Those who were separated, divorced or widowed and those with lower socioeconomic status had the highest economic stress and the least social trust. These groups also reported high importance of religious belief, karma and spiritual belief, along with lower income groups. Despite having high economic stress, social interaction with and support from families were found to be high among those not-married, with lower income, and in rural areas.

As Thailand urbanises and progresses economically, diverse patterns of social capital have emerged and some changes might have offset others. For example, we have shown that economic stress associated with low income tends to co-occur with high social interaction and family support. This observation should be reassuring to policymakers aiming to preserve and promote social capital as Thailand continues to urbanise and modernise.

6. Steven J. Heyman (Illinois Institute of Technology - Chicago-Kent College of Law), The Dark Side of the Force: The Legacy of Justice Holmes for First Amendment Jurisprudence , 19 William & Mary Bill of Rights J. ---- (2011).  The abstract states:

Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes the positive values promoted by free speech, and a darker vision that is rooted in the jurisprudence of Justice Oliver Wendell Holmes. Holmes understands free speech as part of a struggle for power between different social groups - a struggle that ultimately can be resolved only by force. After sketching the liberal humanist view, I trace the development of Holmes’s position, which is grounded in his Darwinian understanding of human life and in his deeper view that all phenomena in the universe are governed by force. Next, I evaluate the Holmesian approach and discuss its implications for a wide range of contemporary issues, from hate speech and pornography to the Citizens United decision on electoral advertising by corporations. I conclude that Holmes’s view does not provide an adequate rationale for free speech, and that it undermines the liberal humanist principles that should be regarded as central to the First Amendment.

7. Marc Jonathan Blitz (Oklahoma City University), Stanley in Cyberspace: Why the Privacy Protection of the First Amendment Should Be More Like that of the Fourth, published in 62 Hastings L. J. --- (2010). The abstract states:

The 1969 case of Stanley v. Georgia forbade the government from restricting the books that an individual may read or the films he may watch “in the privacy of his own home.” Since that time, the Supreme Court has repeatedly emphasized that Stanley’s protection apply solely within the physical boundaries of the home: While obscene books or films are protected inside of the home, they are not protected en route to it – whether in a package sent by mail, in a suitcase one is carrying to one’s own house, or in a stream of data obtained through the Internet.

But however adequate this narrow reading of Stanley may have been in the four decades since Stanley was decided, it is ill-suited to the home life of the twenty-first century, where the in-home cultural life protected by the Court in Stanley inevitably spills over, or connects with, electronic realms beyond it. Individuals increasingly watch films not, as the defendant in Stanley did, by bringing an eight millimeter film or other physical copy of the film into their house, but by streaming it through the Internet. Especially as eReaders like Kindle, and tablets like the iPad, proliferate, they read books by downloading digital copies of them. They store their own artistic and written work not in a desk drawer or safe, but in the “cloud” of data storage offered to them in far-away servers. If courts adhere rigidly to the reading of Stanley that has developed over the past four decades, they may find that while this First Amendment constitutional shield has remained fixed in place, the home life it is supposed to protect has moved into a more interconnected environment where it is now vulnerable to precisely the kind of censorship and cultural restriction Stanley was meant to prevent.

I thus argue that courts should revisit and revise their understanding of Stanley v. Georgia in the same way that Katz v. United States revised Fourth Amendment law in 1967 – by holding that the privacy it protected was not limited to the physical boundaries of the home (as United States v. Olmstead had held in 1928) but covers wire-line communications and other electronic environments where individuals have an expectation of privacy. This is not to say that Court’s understanding of Stanley v. Georgia should be revised in precisely the same way – Stanley’s First Amendment holding protects a different kind of privacy (decisional) than the informational privacy safeguarded by the Fourth Amendment protection against unreasonable government searches. However, Stanley v. Georgia should, at a minimum, be extended to protect Web-based interactions where use of an electronic resource outside of the home (such as the Internet) is an integral component of the act of possessing, viewing, or reading cultural material.

8. John Samples (Cato Institute), The DISCLOSE Act, Deliberation, and the First Amendment . The abstract states:

The United States Supreme Court decided in Citizens United v. Federal Election Commission that Congress may not prohibit spending on political speech by corporations. President Obama and several members of Congress have sharply criticized Citizens United, and Sen. Charles Schumer and Rep. Chris Van Hollen have proposed the DISCLOSE Act in response to the ruling. DISCLOSE mandates disclosure of corporate sources of independent spending on speech, putatively in the interest of shareholders and voters. However, it is unlikely that either shareholders or voters would be made better off by this legislation. Shareholders could demand and receive such disclosure without government mandates, given the efficiency of capital markets. The benefits of such disclosure for voters are likely less than assumed, while the costs are paid in chilled speech and in less rational public deliberation. DISCLOSE also prohibits speech by government contractors, TARP recipients, and companies managed by foreign nationals. The case for prohibiting speech by each of these groups seems flawed. In general, DISCLOSE exploits loopholes in Citizens United limits on government control of speech to contravene the spirit of that decision and the letter of the First Amendment.

9.Chesa Boudin (Yale University - Law School), Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship , forthcoming in Journal of Criminal Law and Criminology. The abstract states:

This Article describes the vast population of children with incarcerated parents. The central argument reframes sentencing law and prison visitation policy through the lens of children’s rights, rather than the traditional frame of prisoners’ rights. It then suggests as a possible legal basis for children's right to a relationship with their convicted parents the First Amendment freedom of association and a due process liberty interest. The argument is developed through comparative analysis of current sentencing law and visitation policy in New York State and the federal system, as well as First Amendment doctrinal analysis. International law and practice illustrate that the status quo in the United States need not be the only approach.

10. Chesa Boudin (Yale University - Law School), Note - Publius and the Petition: Doe v. Reed and the History of Anonymous Speech, forthcoming in Yale Law Journal..  The abstract states:

This Note argues signatures on petitions intended for use in legislative action through direct democracy processes such as ballot initiatives should be subject to public scrutiny and disclosure; they should not benefit from free speech protections allowing for anonymity. Signatures used in direct democracy proceedings should not be considered petitions or speech at all, but rather lawmaking. Through rigorous historical, doctrinal, and prudential analysis this Note distinguishes between core First Amendment rights, which might include a signature on a general petition with no legislative implications or minority associational rights, and speech-like activity that forms part of the regulated lawmaking process.

11. Deana Pollard-Sacks (Texas Southern University - Thurgood Marshall School of Law), Snyder v. Phelps, the Supreme Court's Speech-Tort Jurisprudence, and Normative Considerations , forthcoming in Yale Law Journal Online. The abstract states:

In Snyder v. Phelps, members of the Westboro Baptist Church exploited a young marine’s untimely death to further their “religious” message that “God Hates Fags” and retaliates against America for tolerating homosexuality by killing American soldiers. A jury awarded the marine’s father, Mr. Snyder, $10.9 million for invasion of privacy and emotional distress after the church members disseminated extremely hateful and personalized attacks against him and his family, which the district court reduced to $5 million. The Fourth Circuit reversed on First Amendment grounds and assessed costs against Mr. Snyder. The Supreme Court is reviewing the case to determine whether civil liability based on invasive, emotionally injurious speech violates the First Amendment. This essay discusses the Court’s existing speech-tort jurisprudence and the normative aspects of the case that the Court should consider in applying existing precedent, such as the epidemic of bullying and hate-motivated crimes and torts in contemporary American society. The essay concludes that both precedent and normative considerations warrant reversing the Fourth Circuit and recognizing a civil remedy for Mr. Snyder.

12.Abner S. Greene (Fordham University - School of Law), Speech Platforms, forthcoming in Case Western Reserve Law Review.  The abstract states:

First amendment doctrine treats state regulation of private speech differently from the government’s own speech, and public forum doctrine falls somewhere in between. This essay explores whether we ought to rethink some of public forum doctrine to grant more content-based authority to the state. While we must hold the line regarding regulation of private speech, many forums are created and managed by the state for legitimate public purposes, purposes that include attention to speech content. The state may legitimately use its power to speak, fund speech, and open new forums for speech, to promote distinctive, and at times contested, views of the good. Among other things, this essay will explore the recent decision in Christian Legal Society v. Martinez.

13. Matthew Nied , Damage Awards in Internet Defamation Cases: Reassessing Assumptions About the Credibility of Online Speech , published in Alberta Law Review ( October 2010).  The abstract states:

There is a recent trend toward substantially higher damage awards in internet defamation cases than those involving traditional media. Higher awards are attributable to the instantaneous nature of the internet and the potential for limitless replication, as well as questionable assumptions about the credibility of internet speech when it is anonymous, presented in a style that is hyperbolic and unreasoned, or posted in a dubious setting. Because there is a reduced likelihood that readers will believe internet libel in these circumstances, plaintiffs are likely to suffer less reputational harm. Courts should mitigate damages to avoid assessing higher awards than are warranted by the gravity of the defamation.

14, Katherine Helen Murray (University of Edinburgh), Police Legitimacy and Policing Public Protest . The abstract states:

This paper explores police legitimacy in the context of protest policing. The overarching aim is to address how the police might enhance their legitimacy in a protest context. I draw from Beetham’s (1991) proposition that political legitimacy requires alignment between shared public values and institutional standards, and propose a means of bridging the two sets of principles. I suggest that procedural justice theory and the Elaborated Social Identity Model (ESIM) of crowd behaviour allow us to understand the public values that drive police legitimacy in both a general and protest context, namely an overriding concern for fair and respectful process. Next I argue that these values should be institutionally substantiated by a human rights framework. This allows us to buttress policing principles premised on public values with a normative framework and thus meet the criterion for legitimacy according to Beetham’s model. The compatibility between these three singular narratives makes a powerful and coherent argument for protest policing premised upon fairness and respect. I suggest that this style of policing is more likely to sustain public order and allows us to reconcile protester objectives - the ability and right to protest - with key policing objectives, including public order and public safety.

15, Bryan Druzin (King's College London - School of Law),  The Criminalization of Lying: Under What Circumstances, If Any, Should Lies Be Made Criminal? , 101 J. of Crim. L. &  and Criminology --- (2011). The abstract:

This paper argues that lying should be a crime. In doing so we propose the creation of a wholly new category of crime, which we term “egregious lying causing serious harm.” The paper has two broad objectives: the first is to make the case why such a crime should even exist, and the second is to flesh out how this crime might be constructed. The main contribution of the paper lies in the radical nature of its stated aim: the outright criminalization of certain kinds of lies. To our knowledge, such a proposal has not previously been made. The analysis also contributes to a broader discussion regarding the issue of overcriminalization. We conclude that while criminalizing certain forms of lies might at first blush appear fanciful, the case for doing so is not only plausible, it is indeed necessary.

16. Alexander Tsesis (Loyola University Chicago School of Law), Burning Crosses on Campus: University Hate Speech Codes, 43 Conn. L. Rev. --- (2010). The abstract states:

Debates about the value and constitutionality of hate speech regulations on college campuses have deeply divided academics for over a decade. The Supreme Court’s recent decision in Virginia v. Black, recognizing a state’s power to criminalize intentionally intimidating cross burning, at long last provides the key to resolving this heated dispute. The opponents of hate speech codes argue that such regulation guts our concept of free speech. One prominent scholar claims that this censorship would nullify the First Amendment and have “totalitarian implications.” Another constitutional expert, Erwin Chemerinsky, asserts that the “public university simply cannot prohibit the expression of hate, including anti-Semitism, without running afoul of [established First Amendment principles].”

On the other end of the spectrum, are authors who argue that hate speech attacks individuals’ Fourteenth Amendment right to equality, which outweighs any cathartic desire to degrade people because of their race, ethnicity, sexual orientation, and religion. This line of thinking, recognizes the fundamental right to free speech but argues that it can be restrained when used to intrude on others’ dignity rights. The advocates of campus hate speech codes claim that a college’s mission to further intellectual freedom is not undermined by restricting intimidating speech on campus; consequently, some scholars argue that curbing racist and xenophobic speech would not undermine the core purpose of higher education, the acquisition of truth.

Both factions have relied on the Supreme Court’s First Amendment precedents to bolster their separate claims. Opponents of university hate speech regulations have often based their arguments with R.A.V. v. St. Paul, in which the majority found a municipal ordinance against cross burning to be unconstitutional. Following the rationale of that case, libertarians and several lower federal courts have asserted that university administrators lack the authority to prevent the spread of vitriol, no matter how racist, xenophobic, or sexist. Eleven years later, in a quiet coup, the Court upheld a more rigorously drafted cross burning statute than the one struck down in R.A.V. The later decision, Virginia v. Black, defined the scope of legitimate limitations on destructive messages.

This article adds a fresh perspective to this decades-old academic tempest of intellectual disagreement about First Amendment theory. It first discusses the current problem of hate speech on college campuses. It then turns to a survey of United States First Amendment jurisprudence that is relevant to the regulation of hate speech on campus. Then it provides a comparative analysis of International and European regulations of hate speech. The section compares and contrasts international approaches to that of the United States. In the final portion of the article, I analyze the narrow and broad implications of the Supreme Court’s rational in Virginia v. Black to develop two forms of college hate speech regulations that are likely to withstand First Amendment challenges.

JFB

Sixth Circuit OK's School District Ban on Confederate Flag Symbols

On Thursday, the Sixth Circuit ruled in favor of the Anderson County, Tennessee School Board after it suspended a student who violated a district-wide code of conduct policy that prohibited the display of "racial or ethnic slurs [or] symbols."  On more tha 40 occassion, the student arrived at school wearing t-shirts and accessories with confederate flag emblems, and refused directives by school officials to remove or cover them. 

Applying Tinker v. Des Moines School District, the circuit court concluded that school officials reasonably anticipated a substantial disruption or material interference with the learning environment.  The court documented a history of racial threats and violence by White students directed at students of color, including the use of epithets and graffiti of a noose, a swastika, and comments such as "White Power" and "White 4 Life." 

Most of the decision is a straight-forward analysis of Tinker, but the student also argued that the district's code of conduct was unconstitutionally overbroad because no exception was allowed based on the circumstances as they existed in a particular school or classroom.  The court rejected that argument, reasoning that Tinker did not require such a particularized exception, and that the ban was narrowly tailored because Anderson County officials applied it in a viewpoint neutral manner to symbols and displays that were shown over a long history to be disruptive.

More student speech and student dress code posts.

-Kathleen A. Bergin

 

KY Bar Looks to Regulate Facebook Ads

A proposed amendment to Ethics Rules promulgated by The Kentucky Bar Association would extend existing restrictions on client solicitations to communications posted by an attorney on social networking sites like Facebook and MySpace. 

In one sense, the proposal is a predictable response to the growing use of social media sites as marketing tools by lawyers.  But some say the definition of an "advertisement" is too vague to provide adequate notice of the types of communication that are subject to regulation.  Thus the lurking First Amendment problem. 

Here's the text of the proposal:

'Advertise' means to furnish any information or communication containing a lawyer's name or other identifying information. and an 'advertisement' is any information containing a lawyer's name or other identifying information. except the following ... Information and communication by a lawyer to members of the public in the format of web log journals on the internet that permit real time communication and exchanges on topics of general interest in legal issues provided there is no reference to an offer by the lawyer to render legal services"  

Communications made by a lawyer using a social media website such as MySpace and Facebook that are of a non-legal nature are not considered advertisements: however. those that are of a legal nature are governed by SCR 3.130-7.02(1(j).

Some argue that simply identifying yourself as an attorney by name is enough to trigger the rule, and that posts about a recent court victory could be interpreted as a client solicitation.  Comments have not been added to the proposal, making it more difficult to understand it's precise scope.

The public has until Dec. 15 to submit written comments on the proposed rule to the Executive Director of the KY bar.

prior post on Facebook and the First Amendment here.

 

-Kathleen A. Bergin

 

 

 

 

 

 

 

Time for More Lenient Approach to Speech with the Potential to Harm?

SCOTUSBlog flags Pepperdine law professor Barry McDonald’ s LATimes op-ed  in which he urges the Court to use its ruling on California’s violent video game statute to articulate a new approach to regulations aimed at extreme speech with the potential to cause specific harms.  Describing the Court’s current modes of analysis for cases like California’s and U.S. v. Stevens  as setting “ virtually impossible standards for proving that the speech causes and alleviates the harms no matter how limited or reasonable the regulation may be,” McDonald  urges the Court to give  “state and local governments more latitude to make reasoned determinations that certain types of speech pose a heightened risk of harm.”  McDonald sees Justice O’Connor’s endorsement of such a "common sense" approach in her separate opinion in City of Ladue as pointing the way to a new less severe standard for certain subsets of  content-based restrictions.  

JFB

Facebook v. Lamebook: Trademark Infringement or Protected Free Speech

Law.com reports on Facebook's trademark infringement action against Lamebook, which claims to be a parody site that mocks the "best and worst posts" found on Facebook.  The complaint was filed on Nov. 8 in San Francisco.         

Parodies are protected as legitimate forms of criticism and social commentary under both The First Amendment and statutory copyright laws.  Useful overviews of the law are provided here and here.  Facebook's complaint asserts that the defendant's site is not a protected parody, however, but a profit making venture that uses a "mini version of Facebook" to attract advertisers.

-Kathleen Bergin

Video Game Makers Argue First Amendment Protects Use of Images of College Sports Stars

Today’s New York Times examines the right of publicity suit filed by former Arizona State quarterback Sam Keller against Electronic Arts (EA), the National Collegiate Athletic Association, and the Collegiate Licensing Company. Keller contends that the use of his likeness and those of other players in profitable games like NCAA Football and NCAA Basketball amounts to the wrongful appropriation of their images without compensation. As amateur athletes, such stars would not be allowed to endorse products and could not contract with game producers while in school. The college sports video games do not identify the virtual stars by name but present characters who have the same jersey number, height, and signature moves as their real-life counterparts, making them immediately recognizable to gamers.

The federal district judge in the case rejected the EA motion to dismiss earlier this year. The judge ruled that EA had not transformed the athletes’ images to the degree required to trigger protection as an act of free speech rather than triggering liability as a violation the players’ rights of publicity. A number of commentators foresee the case ending up before the Supreme Court for some needed clarification of the constitutional rules that should apply in such controversies. EA’s position has drawn support from the Motion Picture Association of America, a number of media companies such as Gannett and Viacom as well as advocacy groups like the First Amendment Coalition. Keller’s position is supported by the Screen Actors Guild, the A.F.L.-C.I.O., and the American Federation of Television and Radio Artists. The Times article notes that the N.F.L. Players Association has aligned itself with EA in the case, but that group has secured lucrative licensing agreement with EA for the use pro players’ names and likenesses in Madden NFL.

JFB

House Passes Ban on Animal "Crush" Videos

Congress moved one step closer to reviving a ban on animal cruelty videos when the House approved HR 5566 on Monday.  The proposed "Animal Crush Videos Act of 2010" would make it a crime to sell or distribute a video that depicts an animal being "crushed, burned, drowned, suffocated, impailed or otherwise subject to serious bodily injury," but would not apply to hunting, trapping or fishing videos.  The measure must still be reconciled with a Senate version that provides stricter penalties for conspiracy and attempt charges. 

In US v. Stevens, the Supreme Court struck down a 1999 statute that criminalized the distribution of "crush" videos, finding its provisions substantially over-broad in violation of the First Amendment.  Ever since Stevens was decided last April, Congress has been trying to hammer out a more narrowly focused law that would withstand a constitutional challenge.  

prior post here

-Kathleen Bergin

  

Pa. Middle Schoolers Assert “ I ♥ Boobies!” Bracelets Protected by First Amendment

Represented by the ACLU of Pennsylvania, a group of parents and students have filed suit challenging their Easton middle school’s decision to discipline the students for wearing bracelets bearing the message, “ I ♥ Boobies! (Keep A Breast)." The bracelets, which the seventh and eighth grade girls wore as part of an effort to promote breast cancer prevention and research efforts, were deemed demeaning and distracting by school officials. In addition to being required to remove the bracelets and being suspended briefly, the girls were also forbidden from participating in extracurricular activities.  The complaint notes that the girls each had a relative or family friend who had battled breast cancer and   argues that the bracelets represent the students’ private speech communicating a health consciousness message. Because the students’ speech was not disruptive under Tinker or profane, lewd or indecent under Bethel, the complaint argues school officials’ punitive actions violated students’ First Amendment rights.     

Schools’ assertions of authority to enforce dress code rules have often been treated very deferentially by courts as the Fifth Circuit’s ruling in Palmer v. Waxahachie Independent School District illustrates.  In Palmer, the Fifth Circuit upheld a high school’s refusal to allow a sophomore to wear a “John Edwards for President” shirt during the 2008 campaign. The school’s dress code did not allow any shirts with printed messages unless the message was connected with a school club, sports team, university, or school spirit. (The Supreme Court later declined to take cert in Palmer.) Here the Easton district justified its disciplinary decision based on the fact that some students and teachers took offense at the bracelets’ language and perceived flippant tone.  District officials also stressed that, as might be foreseen among an  immature student population, the bracelets prompted some boys to make inappropriate comments about girls' breasts. 

JFB

 

Circumcision Ban Proposed in San Francisco

Asserting that the practice amounts to genital mutilation, Lloyd Schofield, author of a San Francisco ballot measure, would make circumcision of a minor a misdemeanor. Schofield will have to obtain 7000 signatures in order to get the measure before city voters.  When questioned about the potential effect of such a measure on circumcision performed as a religious ritual, Schofield is quoted as responding,  “People can practice whatever religion they want, but your religious practice ends with someone else’s body.” The New York Daily News, the National Journal , and CBS San Francisco provide coverage of the proposed ballot measure.

A recent study documented that fewer circumcisions are being performed in the US. In 2006 56% of male babies were circumcised, but only 33% were circumcised in 2009. In 2007 the World Health Organization and the Joint UN Programme on HIV/AIDS issued a recommendation that newborn males be circumcised based on research indicating that circumcised men had a 50 to 70% reduced risk of acquiring HIV.

JFB 

School District's Social Media Policy Pushes Free Speech Boundaries

A suit filed Friday against The Manatee school district in Florida asserts that a proposed policy on the use of social media sites violates the First Amendment.  The policy would prohibit school employees from posting negative comments about the school district, its employees or students, and includes posts from both a home or work computer. 

First Amendment protections apply when a government employee speaks "as a citizens" on a "matter of public concern," though an employee who blogs or posts comments about an internal workplace dispute could almost certainly be disciplined without raising a constitutional concern under Garcetti v. Ceballos. 

Just last week, the NLRB filed suit when a Connecticut ambulance company fired an employee who criticized her supervisors on Facebook, alleging that the speech was protected under statutory labor laws.  

-Kathleen Bergin

First Amendment Scholarship Update

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

1. Shirin Sinnar (Stanford University), Questioning Law Enforcement: The First Amendment and Counterterrorism Interviews, 77 Brooklyn L. Rev. --- (2011). The abstract states:

Law enforcement interviews are sometimes viewed as among the least intrusive and least objectionable investigative methods in the government’s counterterrorism arsenal. Yet FBI and Customs and Border Protection interviews of U.S. Muslims in the terrorism context involve greater coercion and stigma than prevailing accounts recognize. While such interviews have almost entirely escaped scholarly attention, I argue that as common, direct, and visible encounters between individuals in the U.S. Muslim community and the U.S. government, interviews inform targeted individuals’ and communities’ sense of “belonging” and inclusion in the United States. Moreover, interviews triggered by individuals’ political, religious, or cultural expression or association – those that are based on “First Amendment profiling” – impose particularly grave stigmatic costs and chilling effects on expression. First Amendment profiling, while sometimes justified, is wrong both where the government deliberately seeks to suppress speech and where investigations undertaken for a legitimate law enforcement purpose sweep too broadly in burdening lawful speech and association. I contend that although courts are deeply divided as to which investigations warrant judicial review, and how rigorous that review should be, existing First Amendment doctrine offers the potential for courts to question the questioners in an important segment of cases. Courts should employ heightened scrutiny to evaluate First Amendment profiling rather than categorically defer to law enforcement justifications.

2. Jessie Hill (Case Western Reserve University - School of Law),  Property and the Public Forum: An Essay on Christian Legal Society v. Martinez, published in Duke J. Const.  L. & Pub. Pol’y --- (2010). The abstract states:

Christian Legal Society v. Martinez is situated at the intersection of various, and arguably conflicting, lines of doctrine. In ultimately holding that the Hastings College of Law could decline to recognize the student chapter of the Christian Legal Society due to the group’s refusal to accept members who did not conform their beliefs and conduct to the principles of CLS (particularly regarding homosexuality),the Supreme Court was required to sort through a tangle of precedents involving free speech limitations in nonpublic fora, religious groups’ rights of equal access to school facilities, and freedom of expressive association.

Perhaps less obviously, however, CLS also stands in relation to Pleasant Grove City v. Summum and Salazar v. Buono, two other recent Roberts Court cases. In CLS, as in Summum and Buono, the Supreme Court turned to property - both as a metaphor and as a doctrinal tool - to resolve difficult and multifaceted constitutional questions. Although the relationship between First Amendment rights and property rights is a long-standing one, the Court seems to have turned to property with a renewed enthusiasm in these three recent cases. And although the property framework may appear to hold the promise of simplicity, neutrality, and avoidance of difficult policy questions, this brief essay, prepared for a special online symposium issue of the Duke Journal of Constitutional Law and Public Policy, argues that it fails to deliver on those promises. Instead, property analysis obscures the complex First Amendment issues behind seemingly easy categorical judgments and grants the government virtually unlimited power to exclude undesired speakers and groups. Notwithstanding the Court’s approach, the crux of the issue is, and has always been, when First Amendment values should overcome the forum owner’s right to exclude. That is a question the Court seems increasingly loath to resolve.

3. Eugene Volokh( UCLA School of Law), Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition, 96 Iowa L. Rev. 249 (2010). The Introduction states:

Does the First Amendment constrain common-law tort liability? The U.S. Supreme Court in New York Times Co. v. Sullivan said yes,1 in a decision that focused on libel law, but applies likewise to other torts.2 But some argue that this is a modern innovation and that historically such liability was not seen as constituting the state action required to trigger constitutional constraints.3 The Supreme Court’s turn to original meaning, including in free-speech cases,4 makes the question significant again, especially since the Sullivan Court justified its decision as a matter of policy and logic, not of history.5

This Article argues that constitutional constraints on speech-based civil liability have deep roots, stretching back to the Framing era. That aspect of the Sullivan holding is thus entirely consistent with original meaning. The Framers likely did view the proper scope of libel liability more broadly than recent First Amendment precedent does. But this was because of a substantive judgment about which speech restrictions (civil or criminal) should be permitted—not because of a judgment that civil liability simply didn’t constitute state action, or that tort law was categorically immune from constitutional scrutiny.

4.Haiping Zheng (University of Missouri at Kansas City - School of Law), Regulating the Internet: China’s Law and Practice. 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.

5. Wilson Ray Huhn (University of Akron - School of Law), Ten Questions on Gay Rights and Freedom of Religion, published in Akron Journal of Constitutional Law and Policy, Vol. 1, 2009-2010. The abstract states:

In my opinion most of the legal and social problems that arise under the Constitution stem from the belief, held by some people, that they are better than other people. They do not hate anyone. They simply believe that they are superior and that the law ought to treat them better than the other group. This is true of whites who think they are superior to blacks, men who think they are superior to women, and heterosexuals who think they are superior to homosexuals.

People have often justified these types of beliefs by appeal to religion and have attempted to enshrine these beliefs in our law. But the Free Exercise Clause does not support the proposition that some people - even a majority of the people - have the right to impose their religious beliefs upon others. To the contrary, religious belief is not even a legitimate reason for the law to treat groups of people differently or interfere with their fundamental rights.

Under the Equal Protection Clause of the Constitution gays and lesbians are entitled to equal rights, including equal marriage rights, because the love that they have for each other is indistinguishable from the love that men and women have for their partners. Their relationships are just as valuable to themselves and to society – just as important and just as sacred as the love between heterosexual couples. In that respect we are all created equal.

6. Jeffrey L. Callen (University of Toronto - Joseph L. Rotman School of Management) , Mindy Morel  University of Toronto - Joseph L. Rotman School of Management) and and Grant A. Richardson (City University of Hong Kong - Department of Accountancy), Do Culture and Religion Mitigate Earnings Management? Evidence from a Cross-Country Analysis , forthcoming in International Journal of Disclosure and Governance. The abstract states:

This study investigates whether culture in general and religion in particular mitigate earnings management. Using a cross-country data set, empirical tests based on rank regressions indicate that earnings management is unrelated to both religious affiliation and the degree of religiosity. In contrast, earnings management is found to be negatively related to the updated Hofstede (1980) cultural variable of individualism and positively related to uncertainty avoidance. Our results also indicate that the positive impact of the legal environment in mitigating earnings management, documented by Leuz et al. (2003), can no longer be demonstrated after controlling for culture.

 7. Christopher C. Lund (Wayne State University Law School), Legislative Prayer and the Secret Costs of Religious Endorsements, 94 Minn. L. Rev.. 972 ( 2010). The abstract states:

For fifty years, the Establishment Clause has generally required the government to be neutral on religious questions. That principle of neutrality, however, has become more controversial with time. Now even quite moderate judges and commentators reject it as a conceptual model for the Establishment Clause. Part of it is they have come to see many endorsements of religion as fundamentally harmless. Where exactly, they ask, is the real harm in the government speaking religiously? Who exactly is hurt when the government advances a religious message – when it, say, puts up a Christmas display or arranges for a prayer to be delivered at a public school graduation? Given that these minor religious endorsements do so little apparent harm, maybe they are not worth striking down, especially given the hostile societal reaction that striking them down sometimes generates. Yet there are obvious difficulties in evaluating this argument. For the neutrality principle is still the law. And as long as the government cannot speak religiously, we cannot really see the harms that would flow from such speech. And being unable to evaluate the severity of those harms, we cannot really judge the wisdom of the neutrality principle.

But there is a separate world where the government does speak religiously – the world of legislative prayer. Upheld by the Supreme Court roughly twenty-five years ago in Marsh v. Chambers, legislative prayer remains the only clear and official exception to the neutrality rule. Legislative prayer now serves as a strange realm where the government constitutionally can (and routinely does) develop things like prayer policies. Through the window that Marsh created, we can glimpse an alternative constitutional universe – one where neutrality goes unobserved and religious endorsements freely proliferate.
The thesis of this Article is that what can be seen through this window does not look good. Over the past twenty-five years, legislative prayer has become deeply troublesome in ways that the Marsh court had no reason to foresee. Legislative prayer has caused tremendous political division in city councils, county commissions, and state legislatures throughout this country; it has probably caused more constitutional litigation in the past decade than any other Establishment Clause issue. With that in mind, this Article has two purposes. First, it examines the second-order constitutional questions inspired by legislative prayer – under what circumstances might legislative prayer, constitutional in theory, nevertheless turn unconstitutional in practice? And second, it uses legislative prayer as a case study – as a way of analyzing how superficially innocuous religious endorsements can take on a life of their own, creating social costs that are initially quite difficult to foresee. In future years, the Supreme Court will have to decide whether to retain the neutrality principle or, if not, how far to depart from it. These costs should be kept in mind.

8. Malick W. Ghachem (University of Maine School of Law),  Of 'Scalpels' and 'Sledgehammers': Comparing British and American Approaches to Muslim Charities Since 9/11, published in UCLA Journal of Near Eastern and Islamic Law, Vol. 9 (December 2010).  The abstract states:

Several commentators have remarked that, since 9/11, Muslim charities have met with a softer and more flexible hand in the United Kingdom and continental Europe than in the United States. The American federal government has resorted to "sledgehammer" - style tools - wholesale freezing of assets, designation of entire entities as terrorist organizations, and aggressive criminal prosecutions - in its efforts to police Islamic philanthropy. By contrast, the Charity Commission in Britain has employed "scalpel" - like measures, such as the removal of individual trustees or temporary transfer of a charity’s management, that have generally spared British Muslim charities from American-style criminalization. The continental European states, for their part, have tended to gravitate more closely to the British than the American pole of this comparative dichotomy. The sweeping assertion of executive branch authority during the Bush administration only partly explains this difference. Contrasting traditions of religious liberty are also at stake. A First Amendment culture of “non-entanglement” has historically kept the federal government out of the business of administering religious institutions. In the U.K. and continental Europe, albeit to differing degrees, traditions of state involvement in religious institutions and functions (including the classic Christian function of providing charity) have permitted a more targeted and nuanced approach to the regulation of Muslim charities. Lacking the administrative and legal tools descended from those traditions, American policymakers have resorted to criminalization and its accessories as a path of first, rather than last, resort.

JFB

Don't Ask, Don't Tell . . . For Now

SCT refused to stay enforcement of DADT today, leaving in place the 9th Circuit's decision that the policy should remain in effect pending appeal.  Meanwhile, WAPO reports that a Pentagon study soon to be delivered to the President concludes that lifting the ban would pose only "minimal and isolated incidents of risk" to the current war effort.

-Kathleen Bergin

 

 

 

Uganda: Free Speech Backlash Against LGBT Rights Supporters

In May, lawmakers in Uganda withdrew the horrifying proposal that would have authorized the death penalty for "aggravated homosexuality" and criminalize the "promotion" of homosexuality.  But the backlash against LGBT groups and their supporters continues in the form of media smear campaigns, arbitrary arrests of protesters, exclusion from public meetings, and threats to withdraw governmental recognition of LGBT-friendly civil society groups.  

Informative update at The Media Law and Freedom of Expression Blog.

-Kathleen Bergin

  

Tenth Circuit: Colo. Campaign Finance Disclosure Requirements Threaten Small, Single Issue Group’s Right to Freedom of Association

This week in Sampson v.  Buescher, the Tenth Circuit found that  Colorado’s  campaign finance disclosure requirements could not be applied to a campaign committee created  to oppose neighborhood annexation. Noting that the group had raised less than $1000 and was directed at a single ballot issue, the appellate panel found that the public interest in disclosure from such an organization was limited and that, in such circumstances, such required disclosure represented a violation of  the committee members' right to freedom of association.

JFB