First Amendment Scholarship Update

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

1. Roger Colinvaux (Catholic University of America (CUA) - Columbus School of Law), Citizens United and the Political Speech of Charities. The abstract states:

The Supreme Court’s decision in Citizens United v. Federal Election Commission makes a Supreme Court challenge to the tax law rule that prohibits charities from involvement in political activities likely, and a reexamination of the political speech of charities necessary. Part I of the Article surveys the history of the political activities prohibition in order to emphasize that it was not a reactionary policy but quite considered, and that there are strong State interests supporting it. Part II of the Article analyzes Citizens United in detail and argues that if the Supreme Court considers a challenge to the political activities prohibition, Citizens United is distinguishable: the purpose of the political activities prohibition is not to suppress speech but to define charity; the legal setting is tax and not campaign finance; unlike the campaign finance rule, violation of the political activities prohibition is not criminal; and the political activities prohibition is by nature a rule associated with a tax status rather than a ban on corporate speech. Accordingly, the political activities prohibition, unlike the campaign finance rule, is not a burden on speech and therefore is constitutional. Part III of the Article discusses cautionary notes to the analysis of Part II, and explains that even if there is a constitutional defect to the political activities prohibition, the political activities limitation on the charitable deduction nonetheless would survive. Regardless of the constitutionality of the political activities prohibition, Part IV examines a number of possibilities for a charitable tax status in which political activity is allowed, and concludes that the current rule is the best option. Part V concludes that the prohibition represents the evolution of a century of wrestling with the subject of political activity and charity, and the wisdom that the two are not compatible. Such wisdom should not be contravened.

2. Alicia C. Armstrong, Friendly Fire Casualties of Civil Liberty in the War on Terror: Humanitarian Law Project v. Holder and the Erosion of Free Speech. The abstract states:

The recent holding in Holder v. Humanitarian Law Project (“HLP”) marks a significant shift in First Amendment doctrine, unprecedented since the early twentieth century "Red Scare" cases. The HLP decision suggests that free speech principles which have been developing for over half a century - culminating in the paramount protection of "subversive advocacy" - are less deserving of adherence in the face of terrorism than in times of "peace." Throughout the past several decades of free speech precedent, the Court has retreated from the notion that speech which is disturbing to public opinion ("pernicious in nature") but benign in its capability to incite imminent lawless action should be afforded lower legal protection. The HLP decision seems to disregard the fact that "freedom for the thought that we hate" has been heralded as a cherished American value, critical and fundamental to the preservation of democracy, and setting the U.S. aside as unique from other nations.

This paper attempts to explain the Court's shift in jurisprudence as resulting from structural flaws in terrorism legislation, and the "hydraulic pressure of emotion or politics" surrounding terrorism today. Drawing from two competing theories that 1) the Court's commitment to free speech-even when disturbing-is fundamentally unwavering and unique to our nation; or 2) the Courts is "unwilling; or perhaps unable, to protect dissident speech except in periods of relative social tranquility," this paper finds that the HLP decision tends to support the latter. The Court, in this sense, has strayed from the "categorical principal" of protecting "narrowly limited classes of speech' based upon their nature, to a protection of speakers based on the factual context of individual case - rather than analyzing a category of speech per se. This shift as marked by the HLP decision runs afoul of accepted free speech theories such as "marketplace of ideas" and "dissent theory," and hence the valuable concepts of moral philosophy and law that the Nation's Courts strive to achieve. The unprecedented infringement on free speech and association upheld in HLP is euphemized by this paper's title as a "friendly-fire" casualty of American civil liberties in the War on Terror.

3. Roselle Wissler (Arizona State University (ASU) - Sandra Day O'Connor College of Law) and and John Soloski (University of Iowa - School of Journalism, Beyond the Courtroom: Alternatives for Resolving Press Disputes, published in BEYOND THE COURTROOM: ALTERNATIVES FOR RESOLVING PRESS DISPUTES, Richard T. Kaplar, ed., Media Institute, 1991. The abstract states: 

This chapter describes an experimental alternative program for resolving media libel disputes out of court and explains why the program was created. The chapter first discusses the findings of an empirical study of the libel litigation system. That study found that the primary objectives of plaintiffs who sue for libel are not met by the current system and that the media incur large financial and other costs in defending libel suits. The experimental, voluntary, alternative program that was created in response to these findings is described, along with the potential benefits that it could offer both parties relative to the current system and to other media libel litigation reform proposals.

4.  Robert C. Blitt (University of Tennessee College of Law), The Bottom Up Journey of 'Defamation of Religion' from Muslim States to the United Nations: A Case Study of the Migration of Anti-Constitutional Ideas. The abstract states: 

This article is intended to elaborate on the existing academic literature addressing the migration of constitutional ideas. Through an examination of ongoing efforts to enshrine "defamation of religion" as a violation of international human rights, the author confirms that the phenomenon of constitutional migration is not restricted to positive norms, but rather encompasses negative ideas that may ultimately serve to undermine international and domestic constitutionalism. The case study also demonstrates that the movement of anti-constitutional ideas is not restricted to the domain of "international security" law, and further, that the vertical axis linking international and domestic law is in fact a two-way channel that permits the transmission of domestic anti-constitutional ideas up to the international level.

In reaching the findings presented herein, the article also adds to the universalism-relativism debate by demonstrating that allowances for “plurality consciousness” on the international level may in certain instances undermine norms previously negotiated and accepted as authoritative by the international community. From this perspective, the movement in favor of prohibiting "defamation of religion" is not merely a case study that helps to expand our understanding of how anti-constitutional ideas migrate, but rather indicative of a reenergized campaign to challenge the promise, status  and stability of universal human rights norms.

5. Seth Barrett Tillman (United States District Court, NJ), The Originalist Who Came In From The Cold: A “New” View of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination. The abstract states:

This article is a response to Professor Josh Chafetz's Impeachment & Assassination, 95 Minn. L. Rev. 347 (2010).

According to Professor Josh Chafetz, “impeachment maintains the link between removal and death, but attenuates it…. Impeachment is … a political death—a President who is impeached and convicted is deprived of his continued existence as a political officeholder. And, like death, impeachment and conviction may be permanent.” In this response, it is my purpose to show that Chafetz’s proposed metaphor does not work and, indeed, that inferences drawn from this metaphor lead Chafetz far afield from the Constitution’s original public meaning.

6. Reid Krell (Arkansas State University - College of Humanities & Social Sciences), And the Spirit of the Lord Spake within Them: Biblical References by State Supreme Courts, 1900-1999. The abstract states: 

This early draft of a piece discussing the use of the Bible by State supreme courts does several things: first, it develops the independent variables to be used in a future study; it conducts a preliminary quantitative investigation to determine that controlled study is unnecessary; and it offers a qualitative study of judicial use of the Bible to examine what uses courts make.

7. Gerry van Klinken (KITLV), Happy Liberals and Unhappy Islamists: Class Aspects of Religion in Indonesia. The abstract states: 

Indonesian Islam’s famous diversity has challenged analysts for over a century. They have dreamed up one dichotomy after another - priests vs. aristocrats, modernists vs. traditionalists, orthodox vs. syncretists (santri vs. abangan), regimists vs. pluralists, radicals vs. moderates. Their motivation was not merely academic - most wanted to contribute to agendas beyond the purely religious. Imperial control, modernisation, democracy, and counter-terrorism have all been projects with a major interest in religion. One important question (too rarely asked) is whether these religious differences can be linked with any other social contrasts, and in particular with socio-economic class. If they can, our insight should expand enormously. Instead of dealing merely with an array of free-floating convictions, we can work with a multi-dimensional analytical field that is broad enough to give rise to comprehensible social forces.

8. Jeff Redding (Saint Louis University School of Law), Beyond Exclusion: A Review of Peter J. Spiro’s 'Beyond Citizenship', 95 Minnesota Law Review Headnotes 29 (2010). The abstract states: 

In a disorienting world where many non-Americans (and Americans) no longer recognize or identify with the United States, Peter J. Spiro’s "Beyond Citizenship: American Identity After Globalization" intervenes with a timely and provocative discussion of the issues, problems, and dilemmas that accompany twenty-first century American identity, and its articulation in U.S. citizenship law. In 163 pages of learned but accessible text, Spiro’s rich and erudite work describes the history and future trajectory of key aspects of U.S. citizenship law, American national identity, and their interaction. Spiro’s work is particularly interested in giving a descriptive account of citizenship law’s contributions to the “eroding foundation of the national community." And while most of the broad themes that Spiro engages with in his book are intriguing, he makes a number of particular arguments in his work concerning the similarities between religious and national community that are especially provocative.

As I argue in this Review, however, Spiro’s arguments about religious and national communities’ shared need to exclude outsiders and also insist upon internal conformity in order to become “meaningful” communities are often quite simplistic. This is especially so where Spiro premises his arguments on unsupportable generalizations about religion writ large, and under-theorizes the foundational ideas of “community” and “meaningfulness.” In fact, Spiro ultimately undermines his ambitious and thought-provoking arguments connecting religious and national communities by relying on narrow and inaccurate accounts of what counts as a real or meaningful “religion” or “nation” in the first place. Ultimately, these problems undermine his overarching account concerning American community, including his account of how an over-inclusive U.S. citizenship regime has seriously diluted American national identity.

9. Yuksel Sezgin (Harvard Divinity School), How to Integrate Universal Human Rights into Customary and Religious Legal Systems?, published in Journal of Legal Pluralism, Vol. 60, 2010 The abstract states:

Customary religious legal systems have been utilized in various areas from fighting against crime to such mundane affairs as setting the price of goods and services in the market place or regulating personal and familial relations. Against this background, the present study will exclusively focus its lenses on so-called personal status systems as quintessential example of customary religious legal systems in the contemporary world. In this context the article will first address the question of why modern nation-states (e.g., Israel, Egypt, and India) still continue to employ pluralistic personal status systems and differentiate among their citizens despite the fact that they were originally founded on premises of non-discrimination and equal treatment. Secondly, the study will explain how pluralistic organization of law and justice affect the fundamental rights and freedoms of individuals living under such systems; how they cope with limitations imposed upon their rights by communal/religious institutions; and what tactics and strategies they use to navigate through the maze of personal law. Lastly, after demonstrating what approaches have been successfully used to bring about changes in the context of Israeli, Egyptian, and Indian personal status laws, the paper will identify key lessons and recommendations for the purpose of helping human rights activists, donors and members of programmatic communities who design intervention mechanisms and tools to incorporate universal human rights standards into customary and religious systems around the world.

10. Mansour Alhaidary (Imam University - The Higher Judicial Institute), The Islamic Law and Constitution . The abstract states:

This paper is a review of the book titled “The Islamic law and constitution” written by Sayyid Abula’la Maududi. The author was a well-known Islamic thinker, reformist, and semi-revolutionist. The importance of the book stems from its subject, time and surrounding circumstances. The subject of the book is a forgotten one. Even though references to the provision of Islamic constitution can be found in scattered Islamic treatises, the author was one of the first scholars who introduced it in a thematic organized way.

The author argues that Islamic constitution already existed in the past and its roots are available theoretically; consequently, Islamic constitution can be carried out in a modern country. His views are from an orthodox Islamic perspective. His intended audience is educated people in Pakistan who either had lost their identity in the secular world, or who still had faith in Islam but who did not know how Islamic law could be carried out or practiced.

JFB