First Amendment Law Prof Blog

Religion and Politics Research Highlighted

On Huffington Post, Robert P. Jones, CEO and Founder of the Public Religion Research Institute, offers his list of the “Top 10 Religion and Politics Research Findings of 2010.” Here is a sampling of the list:

* Pew found that nearly 1-in-5 (18 percent) Americans wrongly believe President Obama is a Muslim, and PRRI found a majority (51 percent) say his religious beliefs are different from their own.
* Fifty-seven percent of Americans are opposed to allowing NY Muslims to build an Islamic center and mosque two blocks from ground zero, but 76 percent say they would support Muslims building a mosque in their local community if they followed the same regulations as other religious groups.
* Americans are about five times more likely to give an "F" (24 percent) than an "A" (5 percent) to churches for their handling of homosexuality. Two-thirds see connections between messages coming from America's churches and higher rates of suicide among gay and lesbian youth.
* Forty-five percent of Americans say the values of Islam are at odds with American values and way of life, while a plurality (49 percent) disagree.
* If another vote similar to Proposition 8 were held now, a majority (51 percent) of Californians say they would vote to allow gay and lesbian couples to marry.

The post provides links to the underlying research.

JFB

 

I ♥ Boobies: First Amendment Snapshot at Findlaw

Findlaw's Julie Hilden breaks down the "I (Heart) Boobies" controversy, and the governing precedent that will determine whether school administrators were legally justified in telling students they could not wear the breast cancer awareness bracelets to school.  A First Amendment suit is pending in Philadelphia on behalf of two students who were suspended after they refused to remove the bracelets that school administrators said were vulgar and disruptive.

Prior posts here and here.

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

Hungary: new media law raises free speech concerns

The OSCE Media Rep expressed concern about a new "Law on media services and mass communication", that was adopted by the Hungarian Parliament on 20 December.  From the OSCE press release:  

"The law regulates all media content - broadcast, print and online - based on identical principles, which runs against OSCE standards on free media. It also gives unusually broad powers to the recently established media authority and media council, which are led exclusively by members supported by the governing party," Mijatovic said.

Traditionally, regulatory authorities govern broadcast media only, but the new law in Hungary empowers the authorities to also govern print and online media content.

"Such concentration of power in regulatory authorities is unprecedented in European democracies, and it harms media freedom," Mijatovic said. "Regulating print media can curb free public debate and pluralism. Even though regulating online media is considered technologically impossible, it introduces self-censorship."

Virginia Courthouse First-Come, First-Served Display Policy Produces Eclectic Scene

As described in a recent Washington Post piece, this year's holiday season display at the Loudon County Courthouse in Virginia features an eclectic montage that includes a Christmas tree, three manger scenes, five displays from local atheists, and a mannequin tableau featuring Luke Skywalker as "the chosen one" of Star Wars. One notable element is a large "letter from Jesus," penned by a member of the Northern Virginia Atheists. The letter begins, “Dear Christians, It has come to my attention that many of you are upset that folks are taking MY name out of the season," and goes on to present what its author saw as an appeal for tolerance and civility during the frequently contentious December holiday season.

In 2009, the county's Courthouse Grounds and Facility Committee decided to prohibit unattended displays outside the facility, but the county Board of Supervisors, facing a wave of resident outrage, instead adopted a policy permitting up to ten groups to present displays on the courthouse grounds on a first-come, first-served basis.

JFB

 

December Can Highlight Workplace Religion Issues

A McClatchy Newspapers article notes that December can be a time when offices around the country face the challenge of maintaining an inclusive atmosphere amidst rising religious diversity.  The article notes that this year the EEOC filed suit against the Belk Department store chain based on its firing of a Jehovah’s Witness employee who refused to wear a Santa hat while working in the gift wrap department.  The employee had asserted that her faith did not allow her to celebrate holidays and that the store’s “festivities policy” could have been adjusted to accommodate her beliefs. 

JFB        

First Amendment Scholarship Update

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

1. Robert C. Blitt (University of Tennessee College of Law), Russia’s "Orthodox" Foreign Policy: The Growing Influence of the Russian Orthodox Church in Shaping Russia’s Policies Abroad. The abstract states:

The government of Russia and the Russian Orthodox Church (ROC) - the country’s predominant religious group - recently underwent back-to-back changes in each institution’s respective leadership. This coincidence of timing has afforded a unique opportunity to reexamine the status of constitutional secularism and church-state relations in the Russian Federation.

In the short space of two years, The partnership of President Dmitri Medvedev and Patriarch Kirill has further entrench a discriminatory three-tiered status system for religious groups and - perhaps more significantly - has generated multiple new channels of influence for the ROC in Russian social and political life, including handing the Church its long-coveted prizes of access to the public education system and the military. While these developments represent a significant blow to constitutional secularism in Russia, they do not tell the entire story.

As the following article demonstrates, the ROC’s influence is increasingly evident beyond the realm of domestic policies. The Patriarch today enjoys the ear of Russia’s Foreign Ministry and plays a key role in both formulating and advancing Russian interests abroad. Consequently, the breakdown in the constitutional principle of secularism so evident in the domestic realm has spilled over into Russia’s foreign policy, leading to the bizarre reality whereby a secular state is advocating on behalf of Orthodoxy and "traditional" values abroad.

By assessing the various points of cooperative overlap and commonality shared by the ROC and Russian government on this plane, this article posits that the practice of mutual reinforcement in foreign policy objectives as between the ROC and government of Russia not only undermines respect for the Russian constitution, but actually risks exacerbating already adverse domestic conditions related to freedom of expression and freedom of religion or belief, as well as destabilizing international consensus concerning universal human rights and related norms.

2. Benjamin L. Berger (University of Victoria - Faculty of Law), Section 1, Constitutional Reasoning, and Cultural Difference: Assessing the Impacts of Alberta V. Hutterian Brethren of Wilson Colony , published in Supreme Court Law Review (2D), Vol. 51, pp. 25-46, 2010. The abstract states:

In recent years, freedom of religion jurisprudence has emerged as a key site for the illumination of assumptions and conceptual tensions at work but often unseen within Canadian constitutionalism. This article approaches the Supreme Court of Canada’s decision in Wilson Colony as an access point into the relationship between constitutional reasoning and the management of cultural difference. In this decision the Court both expresses what it finds so difficult about religious freedom cases and articulates a substantial shift in the justificatory analysis under s. 1 of the Charter. Drawing out and explaining both points, this article exposes a deep irony at the core of the Wilson Colony judgment, an irony that betrays the true complexity inherent in the management of religious difference by means of rights-based adjudication. The article concludes by adding the Court’s decision in A.C. to the mix, suggesting that the two cases lay bare the enormous ethical demands involved in the adjudication of constitutional claims rooted in deep cultural difference, demands that our courts may not yet be willing or able to meet.

3. Leslie C. Griffin (University of Houston Law Center),  Snyder V. Phelps: Searching for a Legal Standard, published in Cardozo Law Review De Novo, p. 353 (2010). The abstract states:

This essay previews the case of Albert Snyder against Westboro Baptist Church, which picketed the military funeral of Albert’s son Matthew. A jury’s award of emotional distress damages was overturned on appeal on First Amendment grounds. The essay situates the case within current defamation and privacy law and suggests that the Court clarify that law by protecting plaintiffs in the private figure/private concern area.

4. Leslie C. Griffin (University of Houston Law Center), Smith and Women's Equality, 32 Cardozo L. Rev. --- (2011).  The abstract states:

This essay was part of a Cardozo symposium celebrating the twentieth anniversary of the landmark free exercise case, Employment Division v. Smith. I argue that full enforcement of Smith is essential to women’s equality. I explain that male-dominated religious communities have repeatedly opposed women’s rights by seeking not only to exempt themselves from the law of women’s equality but also to change the content of that law to undermine women’s rights. Although Smith has given women’s groups some victories over this anti-egalitarian trend, resistance to Smith and refusal to apply its holding have harmed women’s rights.

In Part I, I explain why Smith is necessary to support women’s equality in the family and reproductive rights. In Part II I argue that if Smith were taken seriously, the courts would not continue to dismiss sex discrimination lawsuits under the invented ministerial exemption and church autonomy theories of the First Amendment, and the legislatures would not persistently seek to undo Smith’s regime by exempting religious groups from the law.

5. Alan E. Brownstein (University of California, Davis - School of Law), Gays, Jews, and Other Strangers in a Strange Land: The Case for Reciprocal Accommodation of Religious Liberty and the Right of Same-Sex Couples to Marry,  published in University of San Francisco Law Review (2010). The abstract states:

This article presents a new perspective on the question of whether and to what extent states should provide accommodations to religious objectors to same-sex marriage. It critically evaluates both of the commonly presented, competing analogies for addressing this issue; the accommodation of religiously-based race discrimination (offered by those who oppose most accommodations) and conscience clauses for health care providers (suggested by commentators who are more supportive of accommodations.) As an alternative model, the article suggests that the starting place for determining whether or not an accommodation for religious objectors to same-sex marriage should be granted is to ask whether a comparable accommodation would be granted to an individual or institution seeking the right to discriminate on the basis of religion in providing goods, services, or benefits to others.

The analogy to accommodation for religious discrimination is grounded on the recognition that religious liberty and the right of same-sex couples to marry share a common foundation and are in some sense mutually reinforcing interests. Both religion and same-sex marriage go to the core of a person’s identity. Both are intrinsically relational. Both involve conduct that expresses commitment. Both relationships are the source of duties and responsibilities that people feel compelled to fulfill. Both religious liberty and gay and lesbian rights are susceptible to similar kinds of slippery slope challenges. (Polygamy is the pit at the bottom of both slippery slopes.) Finally, and perhaps most importantly, the essence of religious liberty is the right to be different and, in the eyes of the majority, to be wrong. That understanding has parallels to the debate about same-sex marriage as well.

In evaluating possible accommodations, the article carefully describes the costs to objectors if accommodations are denied and the cost to same-sex couples if accommodations are granted. It concludes by suggesting that government has dual responsibilities if accommodations are granted. When the state protects religious liberty by adopting discretionary accommodations, it must also use its resources and authority to promote the goals of civil rights legislation by spreading or mitigating the costs and burdens resulting from such accommodations.

6. Patrick M. Garry (University of South Dakota - School of Law),  Re-Evaluating Media Regulation in a Media Environment of Nearly Unlimited Entertainment Programming and Ample Alternative Channels of Communication , 22 Regent U. L. Rev.  --- (2009-2010). The abstract states:

In addition to prominent constitutional theories relating to the importance of political speech, the Supreme Court on countless occasions has stated that political speech, or speech relating to the conduct of self-government, is the kind of speech with which the First Amendment is most concerned and should most protect. Under current First Amendment jurisprudence, however, not only do some constitutional doctrines fail to favor political speech, but at times political speech actually receives more disadvantageous treatment than does indecent commercial media entertainment. This Essay examines some ways in which this has occurred, along with the reasons for such disadvantageous treatment. Such an examination will involve the legacy of First Amendment doctrines born nearly a century ago and under a much different media environment than what exists today. Using the marketplace metaphor that was first articulated by Justice Holmes nine decades ago in his dissent in Abrams v. United States, this Essay argues that the Court has articulated First Amendment doctrines that end up greatly benefiting nonpolitical media entertainment - sometimes at the expense of political speech.

Current First Amendment doctrines can give the illusion, by protecting the vilest and most vulgar of speech, that speech in general is overly protected, which in turn results in a backlash that can spill over to political speech.

7. Patrick M. Garry (University of South Dakota - School of Law),  An Equal Protection View of the First Amendment, 4 Quinnipiac L. Rev. 787  2010).  The abstract states:

This article considers the debate among scholars as to the intent and purpose behind the Bill of Rights. One argument is that the Bill of Rights seeks to protect certain individual fundamental rights. Under this argument, the Bill of Rights seeks first and foremost to identify particular individual freedoms and to then create a constitutional protection for those substantive freedoms. There is, however, another argument that looks at the Bill of Rights from a wholly different perspective. This argument sees the Bill of Rights as provisions designed primarily to better ensure the maintenance of limited government within our constitutional scheme.

The way the Bill of Rights protects individual freedoms is through an equal protection approach. This approach best harmonizes the constitutional protections listed in the Bill of Rights with the workings of the democratic process outlined in the original Constitution. A democracy allows a society to govern itself according to its best judgment. The glaring problem with any democracy, however, is how to handle minorities and minority rights. An equal protection approach best serves this concern. At the same time, it also allows democratic society to govern itself, the only proviso being that whatever the majority does to the minority, it has to do to itself.

By viewing the Bill of Rights as first a provision aimed at ensuring that government possesses only limited powers and second as mandating that the various listed freedoms be protected through an equal protection approach, courts would be relieved of having to identify the parameters and underlying values and purposes of various individual rights and freedoms. By viewing the Bill of Rights as seeking to protect individual freedoms through an equal protection approach, courts can avoid interjecting their own substantive values. Thus, their role can be both narrower and more defined, which in turn will help preserve judicial integrity and authority.

8. Tanya Kateri Hernandez,( Fordham University School of Law), Hate Speech and The Language of Racism in Latin America: A Lens for Reconsidering Global Hate Speech Restrictions and Legislation Models , forthcoming in University of Pennsylvania Journal of International Law. The abstract states:

In Latin America, like many countries in Europe, hate speech is prohibited. Yet, Latin America is rarely included in the transnational discussion regarding the regulation of hate speech. Instead, the discussion is captured by the binary comparisons between the advisability of Europe’s hate speech regulations as opposed to the United States free speech acceptance of hate speech. As a result, the ability to fundamentally examine the connections between hate speech and inequality, in addition to the most effective legal mechanisms for addressing it, are undermined. It is especially critical to broaden the hate speech debate now that we are seeing an apparent rise in the occurrence of hate speech worldwide.

Expanding the transnational hate speech discussion to incorporate the Latin American context, can help to provide insights about which legal structures are pragmatically more effective. For persons of African-descent frequently subjected to the blows of racist hate speech in Latin America, there is little effective enforcement of the criminal law sanctions that predominate. In contrast, civil law remedies have shown greater success at responding to the harms of hate speech.

This Article begins by presenting in Section I, the social science research regarding the harms of hate speech. Section II then examines the international law sanctions against hate speech and the ways in which they have inspired Latin American hate speech laws. The enforcement of the Latin American hate speech laws will then be assessed in Section III, and the Brazilian litigation regarding the “Look At Her Hair” song lyrics will be examined as a case study in Section IV. With the benefit of the Brazilian case study, the Article then concludes that the predominant criminal law approach is a poor vehicle for regulating hate speech. What is needed is a framework for civil remedies that is better formulated to address the harms of hate speech and its hindrance to racial equality.

9. Richael Faithful (American University - Washington College of Law ), Comment - Religious Exemption or Exceptionalism? Exploring the Tension of First Amendment Religion Protections & Civil Rights Progress within the Employment Non-Discrimination Act , forthcoming in The Legislation and Policy Brief. The abstract states:

This comment discusses ENDA’s long history of broad religious exemption and its meanings for LGBT civil rights progress ahead. Part I traces ENDA’s religious exemption transformation from 1994 to present, noting a narrowing of the exemption as the LGBT movement witnessed increasing political success. Part II examines the delicate balance between the First Amendment Religion Clauses, as well as LGBT civil rights and religious freedom, and argues that ENDA’s previous exemptions tipped this delicate balance toward religious over-accommodation prohibited by the Establishment Clause. Part III concludes that the LGBT movement experienced a significant victory with the modified religious exemption in the 2009 version of ENDA, which challenged the conservative Christian bloc’s political and cultural monopoly over LGBT rights’ narrative, and represents the defeat of a potentially dangerous precedent for future civil rights struggles.

10. Mirjam Künkler (Princeton University)and Julia Leininger (German Development Institute),
The Multi-Faceted Role of Religious Actors in Democratization Processes: Empirical Evidence from Five Young Democracies, 16 Democratization1058 (December 2009). The abstract states:

The article comparatively investigates the role of religious actors in the democratization processes of five young democracies from the Catholic, Protestant, Christian-Orthodox and Muslim world, specifically in West Germany after World War II (1945-1969), in Georgia and Ukraine post-1987/9, as well as in Mali post-1987 and Indonesia after 1998. The analysis provides an overview of the roles religious actors played in the erosion of authoritarian rule, the transition to democracy and subsequent democratic consolidation processes, as well as de-democratization processes. Our three paired comparisons, including one in-country comparison, show that the condition which most affected the role of religious actors in all three phases of democratic transitions was the legal position they enjoyed vis-à-vis the political regime as well as the organizational form these actors took. Their aims, means, and the political significance of their theology were highly dependent on their de facto legal status within the state.

11. Jeremy Waldron (New York University School of Law ), Persons, Community, and the Image of God in Rawls’s Brief Inquiry . The abstract states:

The idea that humans are created in the image of God – imago dei – is an idea that John Rawls deployed in “A Brief Inquiry into the Meaning of Sin and Faith,” his undergraduate senior thesis from 1942, published last year in a well-received volume edited by Thomas Nagel. Usually when talk of the image of God is in the air, emphasis is being put on the individual: the individual human person, created in the image of God, commands a certain respect and must not be used, violated, or desecrated – not even for the sake of the greater good of a community to which he or she belongs or with which he or she is associated. But in Rawls’s dissertation it is community that is said to be created in the image of God; the individual human in his or her own right is not dignified directly under these auspices. The community is dignified with the image of God, but because God Himself is a community, on the theology that Rawls is using: God is “perfect community within Himself,” as Rawls puts it, “being three persons in one as the doctrine of the Trinity states.” In this paper, I criticize the young Rawls’s use of this communal image argument. In their introduction to “Brief Inquiry” Tom Nagel and Joshua Cohen say that Rawls’s communal image argument is compatible with (even congenial to) his later insistence in “A Theory of Justice” on taking individuals seriously (and criticizing theories like utilitarianism which fail to take seriously the distinctions between persons). I argue that Cohen and Nagel are wrong about this. I also argue that if one reflects on what I call “the circumstances of (human) community,” one will see that nothing but confusion follows from any analogy (even an idealizing analogy) between human community and whatever community exists in the “social Trinity.”

12. Bernd Hayo University of Marburg - Faculty of Economics and Business Administration and and Stefan Voigt (Center for Economic Studies and Ifo Institute for Economic Research),  Mapping Constitutionally Safeguarded Judicial Independence — A Global Survey . The abstract states:

De jure judicial independence (JI) is the single most important predictor of de facto JI. In this paper, we describe under what conditions countries are likely to include JI in their constitutions. We describe and analyze both their original choice in this regard as well as change over time using a newly constructed dataset comprised of 100 countries and covering the years between 1950 and 2005. Three results stand out. First, legal origins do have an impact on the likelihood of explicitly anchoring JI in the constitution: countries belonging to the common law tradition are less likely to implement JI in their constitutions (and those with a socialist tradition are more likely to do so). Correspondingly, former British colonies are less likely to address JI explicitly as are states in the Caribbean. Second, religion has a significant impact on whether JI is included in the constitution: societies experiencing a high level of religious fractionalization are not only less likely to anchor JI in their constitutions, but are also less likely to change their constitutions in that direction later on. Finally, Muslim countries are more likely to include mention of JI, whereas Protestant countries are less likely to do so. Third, the distribution of resources within societies has important — and largely unexpected — effects: a higher percentage of family farms, a wider distribution of education, and a higher percentage of urban dwellers are all connected with a lower likelihood of JI being mentioned in the constitution.

13.  Alastair Mullis and Andrew Scott (London School of Economics - Law Department ), Reframing Libel: Taking (All) Rights Seriously and Where It Leads. The abstract states:

In preparing this paper, we have returned to first principles and re-evaluated fundamental aspects of libel law, its purposes, its substance, and its processes. Our thinking has been informed by, first, philosophical understandings of democracy and the public sphere and in particular the role of freedom of speech and of the media therein, and secondly, the social psychology of reputation and privacy. By doing so, we are able to ground some of the proposals for reform made previously by Index on Censorship, English PEN, Lord Lester, and others. We do so, however, not through the prism of an over-weaned emphasis on freedom of expression, but rather by triangulating the rights and interests of claimants, defendants, and the wider public. Ultimately, we recommend a coherent set of significant substantive and procedural reforms that if enacted would enhance access to justice and reduce costs for all but the most serious and/or most damaging libels. This involves the recommendation of the introduction of a two-track libel regime.

14.  Roseann B. Termini (Widener University - School of Law), The Family Smoking Prevention and Tobacco Control Act and Public Health,  Pennsylvania Bar Association Quarterly, p. 147 (October 2010). The abstract states:

According to the Center for Disease Control, approximately 443,000 individuals in the United States die annually due to cigarette smoking. This represents one in five adult deaths each year. Direct medical health costs attributed to smoking are skyrocketing to over $96 billion dollars annually. Cigarette smoking is linked to heart disease and other chronic and often fatal diseases, including lung cancer and respiratory diseases, such as emphysema, bronchitis and pneumonia. Regarding children, the Campaign for Tobacco-Free Kids noted that every day over 3,500 children in the United States try their first cigarette and approximately 1,000 children become daily smokers.

Public awareness of the detrimental health consequences that result from the use of tobacco products has existed since 1964, when the United States Surgeon General informed the nation that smoking causes lung cancer. Congress subsequently initiated tobacco product regulation in 1965 with passage of the Federal Cigarette Labeling and Advertising Act, requiring warning labels and the eventual ban on television and radio advertising. Congress continued to establish a regulatory scheme for tobacco products until the United States Food and Drug Administration (FDA) attempted to regulate tobacco products with the “FDA Rule of 1996”. The FDA Rule of 1996 was the legislation in question before the United States Supreme Court in FDA v. Brown & Williamson Tobacco Corporation in 2000 (Brown). In its opinion, the Court ruled that the FDA lacked the legal authority to regulate tobacco, and invalidated the 1996 FDA Rule.

Due in part to this United States Supreme Court opinion as well as the public health impact of the staggering detrimental impact resulting from use of tobacco products, President Obama signed into law the Family Smoking Prevention and Tobacco Control Act (FSPTCA) on June 22, 2009. The FSPTCA grants the FDA “authority to regulate the manufacturing, marketing and distribution of tobacco products to protect the public health generally and to reduce tobacco use by children and adolescents.” The FSPTCA further requires the FDA to reintroduce the 1996 regulations regarding the restriction of tobacco marketing procedures that promotes the use of tobacco by youth consumers and the restriction of the manner by which cigarette and smokeless tobacco can be sold and distributed.

This legislation has only been in effect for a brief time and therefore the longterm future impact is unknown. One aspect that is certain is the filing of lawsuits against the FDA challenging the FSPTCA. In BBK Tobacco & Foods, LLP v. U.S. Food and Drug Admin. , plaintiffs argued that flavored rolling papers, as utilized in the process of roll-your-own-tobacco cigarettes, did not qualify as tobacco products under the FSPTCA. In another case, Commonwealth Brands, Inc. v. U.S., plaintiff tobacco companies filed suit challenging the constitutionality of the FSPTCA as viable free speech in advertising. As “big tobacco” continues to file these lawsuits, the FDA’s Center for Tobacco Products will have to allocate its limited resources between overseeing the implementation of the provisions of the FSPTCA, continuing to obtain data regarding the achievement of the goals contained in the legislation and advocating for the FSTCA’s legitimacy in courts throughout the United States.

JFB

Wikileaks: House Judiciary Committee Hearing

Following up on Josie's earlier post, the House Judiciary Committee held hearings this morning on "Wikileaks, The Espionage Act, and the Constitution." 

In introductory remarks, Committee Chair Rep. John Conyers tempered the drumbeat favoring Assange's prosecution on three grounds: (1) the constitutionally protected watchdog role played by members of the press; (2) the limited damage caused by the disclosure, as acknowledged by Defense Secretary Gates and others; and (3) over-reaching by the Executive Branch when it comes to classifying documents. 

Here, here, Mr. Conyers.

Below are witnesses who testified, with prepared remarks available here.

• Abbe Lowell, McDermot Will & Emery
• Kenneth Wainstein, O'Melveny & Meyers
• Geoffrey Stone, Univ. Chicago Law School
• Gabriel Schoenfeld, Hudson Institute
• Thomas Blanton, National Security Archive at GW University
• Stephen Vladeck, American University Washington College of Law
• Ralph Nader, Legal Advocate and Author

-Kathleen Bergin

Neurotheology: Using Science to Examine the Nature of Religious Experience

Yesterday on NPR’s Talk of the Nation, Neal Conan spoke with Andrew Newburg about this new book, Principles of Neurotheology. Dr.Newburg is Director of Research at the Myrna Brind Center for Integrative Medicine at Thomas Jefferson University Hospital and Medical College and also teaches in  the Department of Religious Studies at the University of Pennsylvania. Dr. Newburg’s research uses brain imaging techniques to study how religious practices, like meditation, affect brain functioning.  In the book, Dr. Newburg describes how this emerging research field negotiates what are sometimes perceived to be the antagonistic worlds of science and religion: 

It is important to infuse throughout the principles of neurotheology the notion that neurotheology requires an openness to both the scientific as well as the spiritual perspectives.  It is also important to preserve the essential elements of both perspectives.  The scientific side must progress utilizing adequate definitions, measures, methodology and interpretations of data.  The religious side must maintain a subjective sense of spirituality, a phenomenological assessment of the sense of ultimate reality that may or may not include a Divine presence, a notion of the meaning and purpose in life, an adherence to various doctrinal processes, and a careful analysis of religion from the theological perspective.

In short, for neurotheology to be successful, science must be kept rigorous and religion must be kept religious.  This book will also have the purpose of facilitating a sharing of ideas and concepts across the boundary between science and religion. Such a dialogue can be considered a constructive approach that informs both perspectives by enriching the understanding of both science and religion.

It is at the neurotheological juncture that the science and religion interaction may be most valuable and help establish a more fundamental link between the spiritual and biological dimensions of the human being.  Therefore, neurotheology, which should provide an openness to a number of different perspectives, might also be viewed as a nexus in which those from the religious as well as scientific side can come together to explore deep issues about humanity in a constructive and complementary manner. 

JFB
 

Georgia Woman, Arrested for Refusing to Remove Headscarf Before Entering Courthouse, Files Suit

The ACLU of Georgia has announced its filing of a civil rights action on behalf of Lisa Valentine.  When Ms. Valentine tried to enter a Douglasville, Georgia courthouse in December 2008 to attend her nephew’s traffic hearing, she was told by court personnel that she could not enter the building unless she removed her headscarf. Ms. Valentine refused to do so, citing her adherence to Islamic  modesty requirements . She was then arrested for contempt and jailed. While in jail, she was forced to remove the headscarf, causing her to appear uncovered in front of male jail staff.  Describing Ms. Valentine’s experience, Georgia ACLU attorney Azadeh Shahshahani stated: “By locking up Ms. Valentine and forcing her to remove her head covering in public, officers not only showed extreme indifference to her fundamental right to practice her faith, but also humiliated her and caused her unnecessary emotional suffering.”  In her complaint, Ms. Valentine asserts that her treatment violated her First and Fourth Amendment rights and well as the Religious Land Use and Institutionalized Persons Act.   In 2009 Ms. Valentine’s experience prompted the Georgia Judicial Council to adopt a policy that makes clear that religious head coverings are allowed in the state’s courthouses.  

JFB
 

French Court Rescinds Fine For Wearing Islamic Face Veil While Driving

French Court Rescinds Fine For Wearing Islamic Face Veil While Driving

In April traffic police in Nantes fined an Islamic woman for wearing a face veil which the police alleged obstructed her field of vision.  As reported by the AP via the Washington Post, on Monday a court found the veil did not impair the women’s ability to see and operate a car safely.  However, controversy continues to surround the woman at the center of the case, Sandrine Mouleres. Her husband faces charges that he has practiced polygamy, fraudulently claimed aid for fifteen children in different households, and committed aggravated rape against another female companion. 

This spring France’s ban on the wearing of Islamic face veils will take effect. Women wearing such veils in any public place could be punished with fines of 150 euros (approximately $199) and/or mandatory attendance at citizenship classes. The law even applies to foreign visitors and imposes more severe sanctions on any man found to have forced a woman to wear a veil.

JFB

Facing Criticism of FBI Infiltration of California Mosque, AG Holder Defends FBI Sting Operations

Friday, in a speech the Muslim Advocates, a civil rights advocacy group, Attorney General Eric Holder defended the FBI and Justice Department against allegations that law enforcement agents have engaged in improper surveillance of religious activities and attempted to entrap mosque attendees.  Holder’s speech comes in the wake of the arrest of a young Islamic man in Portland. Mohamed Osman Mohamud is alleged to have plotted to set off an explosive devices at a Christmas tree lighting ceremony after undercover FBI agents presented him with the opportunity to set off what he believed was a real bomb.  Holder stated that accusations that Mohamud  was entrapped by agents are baseless. 

The NYTimes reported that Holder received a standing ovation when he rose to address the Muslim Advoctaes but faced a stony silence as he defended the use of informants in the recent operations.  Holder’s remarks acknowledged the anxieties and concerns voiced by many American Muslims about how their communities are regarded by law enforcement authorities:  

Since becoming Attorney General last February, I have heard from Arab Americans and Muslims who say they feel uneasy about their relationship with the United States government.
 
Some feel that they have not been afforded the full rights of citizenship.  Others are worried about the safety of their families, communities, and places of worship.  And, too often, Muslims and Arab Americans have told me that they feel as though they are treated by their fellow citizens, by their government, and especially by those of us in law enforcement as though it were, quote, “us versus them.”
 
That is unacceptable.  And it is inconsistent with what America is all about.  Muslims and Arab Americans have helped to build and strengthen our nation.  They have served as police officers, teachers, civic leaders and soldiers – strengthening their local communities and safeguarding their country.  And the cooperation of Muslim and Arab-American communities has been absolutely essential in identifying, and preventing, terrorist threats.  We must never lose sight of this.  And, as we work to create a brighter and more prosperous future, we must not fail to heed the lessons of our past.

The FBI’s use of an informant to infiltrate an Irvine, California mosque has drawn particularly harsh criticism. As recounted in the Washington Post, FBI informant and convicted felon Craig Monteilh alleges that  he was instructed by FBI “handlers” to spy on members of the Islamic Center of Irvine, to take notes on who opened the mosque each day, and to tape conversations with mosque members using a recording device in his keychain and a camera sewn into his robe.  However, Monteilh, who assumed the identity Farouk al-Aziz while attending at the mosque, soon aroused concern among worshippers. Members contacted the FBI about Monteilh as a possible terrorist and sought a restraining order to bar him from the mosque.  His comments about weapons and jihad had prompted suspicion that he was a dangerous extremist trying to lure others into a mission.  The Justice Department later dropped the prosecution of a mosque member based on Monteilh’s recorded discussions of what the informant proposed as a operation to bomb local buildings.   The Irvine experience has left area Muslims feeling wary of the FBI and has strained efforts to work with the Muslim community as a vital counter-terrorism information source.          

The Attorney General’s remarks also underscored the Justice Department’s reinvigorated efforts to prosecute hate crimes and to use civil rights laws to protect Muslims and those perceived to be Muslims from attacks and harassment.  Holder  stated: “  I believe that law enforcement has an obligation to ensure that members of every religious community enjoy the ability to worship and to practice their faith in peace, free from intimidation, violence or suspicion. That is the right of all Americans.  And it must be a reality for every citizen.”      

JFB

YouTube and Facebook Step Up Policing of Problematic Internet Speech

Yesterday’s LATImes reports that YouTube executives, emphasizing their commitment to preventing use of their site as a mechanism to "spread terrorist propaganda or incite violence," have announced that the site will now specifically ask users to alert them to videos that “promote terrorism.”  (Users are currently  asked to flag posted videos that present objectionable material such as nudity, sexual activity, animal abuse, hate speech, and the incitement of  violence.)   YouTube has faced increasing criticism from both American lawmakers, such as Sen. Joe Lieberman, and representatives of foreign governments, such as British Security Minister Pauline Neville-Jones, for presenting videos such as those posted by radical cleric Anwar Awlaki. YouTube recently removed hundreds of Awlaki videos, containing what he asserts are religious grounds for attacking those characterized as “enemies of Islam.”   The American-born Awlaki has been identified as a source of inspiration for the violent ambitions of Umar Farouk Abdulmutallab, charged with the Christmas Day attempt to bomb an airliner using explosives stored in his underwear,  Faisal Shahzad, the convicted Times Square  bomb plotter; and Army Maj. Nidal Malik Hasan, now facing charges for fatally shooting thirteen people at Ft. Hood.

The challenges facing Facebook’s “hate and harassment team” are examined in yesterday’s NYTimes. Charged with removing content that is illegal or otherwise violates the site’s terms of service, the team must address problems ranging from posts denying the Holocaust to calls for hacking attacks in support of Wikileaks. Their work sets the team up as a potentially powerful private arbiter of acceptable standards for Internet speech.  GW law professor Jeffrey Rosen is quoted in the piece, commenting: “Facebook has more power in determining who can speak and who can be heard around the globe than any Supreme Court justice, any king or any president. It is important that Facebook is exercising its power carefully and protecting more speech rather than less.”

JFB

Pa. Couple Who Relied on Prayer Alone to Treat Toddler’s Pneumonia Convicted of Involuntary Manslaughter, Child Endangerment

The AP ( via the Washington Post) reports that Friday a jury found a fundamentalist Christian couple guilty of  involuntary manslaughter and child endangerment after the parents failed to seek medical help when their two year old son contracted pneumonia in 2009. The parents had tried to argue that they had not appreciated the child was dying.  During the trial, a social worker testified that the father had asserted that the child died because "the devil won."

According to the couple s pastor, the parents have never sought or received medical care themselves other than having a lay midwife assist with the home births of their children.  In the AP report, the pastor is quoted as saying, "The legal community is trying to force our church group to put them in the hands of this flawed medical system, when they have chosen to put them in the hands of a perfect God, who does not make mistakes."  The jury foreman emphasized that the jury was "careful to make sure we didn't have their religion on trial but were holding them responsible for their conduct." The prosecutor in the case told reporters that she would ask the sentencing judge to place the couple's remaining children under a doctor's care.

JFB

House Judiciary Committee to Hold Hearing on Wikileaks This Week

The Blog of the Legal Times notes that the House Judiciary Committee will hold a hearing on “the Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks” on December 16.    The announcement of the hearing does not include the witness list.  

JFB

First Amendment Scholarship Update

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

1. Jeremy Waldron  (New York University School of Law), Secularism and the Limits of Community . The abstract states:

This paper addresses two issues: (1) the use of religious considerations in social and political argument; and (2) the validation of the claims of community against markets and other aspects of globalization. It argues that we should be very wary of the association of (1) with (2), and the use of (1) to reinforce (2). The claims of community in the modern world are often exclusionary (the word commonly associated with community is "gated") and hostile to the rights of the poor, the homeless, the outcast, and so on. The logic of community in the modern world is a logic that reinforces market exclusion and the disparagement of the claims of the poor. If religious considerations are to be used to uphold those claims and to mitigate exclusion, they need to be oriented directly to that task, and to be pursued in ways that by-pass the antithetical claims of community. Religious considerations are at their most powerful in politics- and are most usefully disconcerting - when they challenge the logic of community.

2. Bruce Ryder (Osgoode Hall Law School - York University), The Canadian Conception of Equal Religious Citizenship, published inLAW AND RELIGIOUS PLURALISM IN CANADA, Richard Moon ed., 2008. The abstract states:

The author describes the Canadian conception of equal religious citizenship, one in which religious freedoms and religious equality rights are allied in advancing the right of religious persons to participate equally in Canadian society without abandoning the tenets of their faith. The core idea is that society must accommodate individuals’ freedom to hold and express religious beliefs and engage in religious practices unless doing so would interfere with the rights of others or with compelling social interests. Canadian law takes a more robust approach to equal religious citizenship than can be found in the human rights jurisprudence of many other countries. The Canadian understanding of religious rights is a positive manifestation of a commitment to a non-assimilationist model of citizenship, one aimed at promoting equality and multiculturalism. The author reviews a number of recent incidents that indicate that in the current climate characterized by fear and outrage directed at the violence and oppression perpetrated in the name of religious fundamentalism, religion is too readily and quickly seen as a threat to equality or security, and all religious freedoms become vulnerable to being too lightly overridden. The resulting downward pressure on religious rights is as great a threat to the Canadian model of multicultural citizenship as that posed by religious fundamentalism.

3. Young-Cheol David K. Jeong  (Yonsei Law School), Corporate Powers and Political Speech S Implications for Korea of Recent US Supreme Court Decisions (Korean), The abstract states:

Citizens United v. FEC made almost every US lawyer, politician and scholar worried or triumphal. Corporations would reign over campaign scenes with corruptions, citizens would lose interest in the democratic process, and shareholders would have no control over management decisions on independent expenditure for political speech, many predicts. Corporations can exercise their freedom of speech to opine on political issues, campaign finance law is coherent and predictable, and shareholders shall monitor the management by fighting against the management or divestiture, winners boast. Several bills are pending at US Congress to prevent foreign governments' influence and make the corporate expenditure more transparent.

Contrary to the situation in the US, Korean law completely prohibits any corporate contribution or expenditure since 2004. In 2006, the Constitutional Court in Korea rejected a challenge without reviewing the merits of the arguments. Thus, politicians have been financing campaign through individual's contribution, supports from the party, and private sources, part of which were reimbursed by the national election commission.

This paper is to review the conflicting visions surrounding Citizens United decision in the United States and apply them to the situation in Korea as it needs more open discussion about this sensitive, but unavoidable issue. What freedom of speech means in a given political society would largely be determined by the history and wording of that constitution. To what extent courts defer to the political determination of the legislative branch also would be decided by the institutional integrity they have built up and prospective response from the ruled. Nonetheless, as Korea has been continuously moving towards a more democratic society, coordination and consensus-building through the political process is becoming more important. Corporations should not be cast away simply because of the possible corruption. Rather, considering the economic importance of corporate entities in national economy, they should be able to participate in the political process and share the cost pertinent thereto in an open and candid manner. I suggest Korean laws be changed to allow corporate contributions and expenditure up to a certain limit like an individual. As a control mechanism, they should be disclosed and reviewed by shareholders, however. Any violators of the rules would be criminally sanctioned. If political consensus needs more time, it might not be too early to discuss this issues more maturely and practically among scholars and politicians. 

Note: Downloadable document is in Korean. 

4. Uladzislau Belavusau (European University Institute -Florence, Italy), Instrumentalisation of Freedom of Expression in Postmodern Legal Discourses, 3 European Journal of Legal Studies 145 (2010). The abstract states:

This paper rationalizes in the transatlantic perspective the instrumentalisation strategies of the right to free speech in postmodern legal discourses, stemming from the recent twenty years of American critical studies (rethinking Marxism, liberalism, nationalism, and post-structuralism). Race, gender, and sexual orientation are, consequently, the deconstructionist markers of the three legal movements discussed, namely: (1) critical race theory, (2) feminist jurisprudence, and (3) queer legal discourse. The respective scholars ruin a comfortable myth of the law-neutrality and deconstruct the oppressive nature of legal settings. They challenge the value of pure l’expression pour l’expression and balance freedom of expression against the yardsticks of non-discrimination, providing an account of the victim-stories, usually disregarded and silenced in the traditional juridical discourses.

5. Timothy D. Lytton (Albany Law School), Banning Front-of-Package Food Labels: First Amendment Constraints on Public Health Policy, forthcoming in Public Health Nutrition. The abstract states:

In recent months, the FDA has begun a crackdown on misleading nutrition and health claims on the front of food packages by issuing warning letters to manufacturers and promising to develop stricter regulatory standards. Leading nutrition policy experts Marion Nestle and David Ludwig have called for an even tougher approach: a ban on all nutrition and health claims on the front of food packages. Nestle and Ludwig argue that most of these claims are scientifically unsound and misleading to consumers and that eliminating them would ‘aid educational efforts to encourage the public to eat whole or minimally processed foods and to read the ingredients list on processed foods’. Nestle and Ludwig are right to raise concerns about consumer protection and public health when it comes to front-of-package food labels, but an outright ban on front-of-package nutrition and health claims would violate the First Amendment. As nutrition policy experts develop efforts to regulate front-of-package nutrition and health claims, they should be mindful of First Amendment constraints on government regulation of commercial speech.

6. Heidi Kitrosser (University of Minnesota - Twin Cities - School of Law), Supremely Opaque? Accountability, Transparency, and Presidential Supremacy, St. Thomas Journal of Law & Public Policy, 2010. The abstract states:

This Article explores the connection between government secrecy and a school of thought that I call “presidential supremacy.” Presidential supremacists read the President’s constitutional powers to preclude Congress or the courts from limiting, overseeing, or otherwise checking presidential actions in many cases. Supremacy encompasses, but is not limited to, the school of thought sometimes called “exclusivity.” Exclusivity is the view that statutes that unduly restrict the President’s discretion in either his commander-in-chief or executive capacity are unconstitutional. This Article describes four forms of supremacist reasoning directed against transparency-based checks on the executive: executive privilege, state secrets privilege, exclusivist arguments in support of secret law, and “classified speech” arguments to the effect that classifying information effectively removes it from the protections of the First Amendment. While the Article’s most direct goals are descriptive – to explore supremacist reasoning and the broad and deep impact of the same on transparency and accountability – the goals have normative implications that I flag in the Article and explore in more depth elsewhere. For one thing, I briefly explain in the Article my view that supremacy’s impact on secrecy calls into question its constitutional legitimacy. Furthermore, a point demonstrated in the Article – that executive privilege, state secrets, and classified speech claims vary substantially in their breadth – helps to undermine supremacist arguments that equate relatively narrow historical examples with much broader contemporary claims. The final paragraphs of the Article’s last sub-section before the conclusion – entitled “Discretion to Punish Classified Speech” – includes some thoughts on the developing controversy over WikiLeaks.

7. Pamela S. Karlan (Stanford Law School), Marriage, Method, and the Supreme Court, Forthcoming in Supreme Court Review. The abstract states:

Marriage is in the air at One First Street, N.E. Within the next few Terms, the Supreme Court seems likely to face head-on the question whether same-sex couples have a constitutional right to marry.

Last Term, the Court faced a trilogy of cases skirting the edges of the question. In Hollingsworth v. Perry, the Court overturned a district court’s decision to allow closed circuit televising of the trial challenging California’s ban on same-sex marriage. In Doe v. Reed, the Court rejected a challenge to Washington State’s Public Records Act by opponents of Washington’s domestic-partnership law who wanted to keep private their signatures on a referendum petition. And in Christian Legal Society v. Martinez, the Court upheld a public law school’s refusal to fund a student group that restricted its membership to individuals who agreed that sexual intimacy was permissible – and that they would engage in it – only within a “marriage between a man and a woman.” Each time, the Court was sharply, indeed angrily, divided.

None of these cases tells us directly how the Justices will resolve the marriage question bearing down upon them, although each offers some hints. But both before and after that question reaches the Court, it will shape, with a sort of gravitational pull, the development of constitutional law more broadly. Just as questions of racial justice provided a lens during the Warren and Burger Courts for viewing issues ranging from constitutional criminal procedure to the state action doctrine to the scope of libel law under the First Amendment, the Court’s confrontation with claims involving sexual orientation serves as a lens through which to view a variety of constitutional law issues – for example, television in the courtroom; standing doctrine; tthe distinction between facial and as-applied challenges; the scope of rationality review and of “exacting scrutiny”; the continuing vitality of antidiscrimination law and the relationship among status, conduct, and belief; and adherence to originalism as an interpretive method in the face of rapid social and technological change.

Hollingsworth, Doe, and Christian Legal Society are not only cases about gay rights and how to reconcile the competing claims of supporters and opponents of marriage equality. They are also cases about technology. The rights to communicate about political issues, to associate with like-minded people, and to retain one’s privacy touch core constitutional values. The internet has transformed the nature of information, simultaneously enhancing and threatening these values and posing new problems for constitutional interpretation. Ironically, the interaction of rapid social and technological change meant that in all three cases the group invoking claims of constitutional protection was not gay people, but defenders of traditional sexual mores.

JFB

"Some of my best friends are Jewish . . . "

 

They just shouldn't hold elected office.

That's how John Cook, member of the Texas State Republican Executive Committee, defended the party's strategy to fill open House seats with Christian conservatives.  In an interview with Texas Observer's Abby Rapoport, Cook explained:

It's not anything about Jews and whether I think their religion is right or Muslims and whether I think their religion is right . . .  I got into politics to put Christian conservatives into office.  They're the people that do the best jobs over all. 

Cook insisted that he harbors no prejudice against Jews.  "They're some of my best friends. . .  My favorite person that's ever been on this earth is a Jew . . . How can they possibly think that if Jesus Christ is a Jew, and he's my favorite person that's ever been on this earth?"

More on the mix of church with state in Texas politics:

Federal Judge Bars Texas School District From Holding Student Vote on Graduation

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

Texas Education Official Resigns as Battlelines Drawn for Debate Over How State Science Standards Treat Evolution

Texas Textbook Massacre, at Religion Dispatches

Liu Xiaobo: In Absentia

Liu Xiaobo was represented by an empty chair at last night's ceremony in Oslo, Norway, where he would have received the Nobel Peace Prize.  The Chinese human rights activists remains in prison where he is serving an 11 year sentence for "inciting subversion of state power."  Among his many crimes is the role he played in the Charter 08 movement.  Charter 08 is a human rights manifesto that calls for democratic reforms in China and respect for fundamental rights, including freedom of expression and association.  It was released two years ago today (to mark the 60th anniversary of the Declaration of Human Rights), and Liu, along with 300 others, was an initial organizer and signatory.  Liu also served time in prison and in labor camps for "counter-revolutionary propaganda and incitement" after criticizing the government and participating in the Tiananmen Square protests. 

In October, Liu was awarded the Nobel Peace Prize for his "long and non-violent struggle for fundamental human rights in China."  The Chinese government immediately censored internet searches of Liu's name and shut down CNN and BBC broadcasts after they announced the award.  The Chinese Foreign Minister called Liu a "criminal," and said his recognition runs "completely counter to the principle of the award and is also a desecration of the Peace Prize."  China did not allow Liu or anyone from his family to attend the ceremony.

-Kathleen Bergin

 

Wikileaks: Australia and Brazil Nudge the the Debate

Amid the chorus of condemnation government officials are directing towards WikiLeaks, Brazil's President Luiz Inacio Lula da Silva defended the disclosure of classified documents in the interest of freedom of expression.  "To WikiLeaks: my solidarity in disclosing these things and my protest on behalf of free speech,” he said, adding that the controversy is being used to shift public attention away from problematic policy decisions revealed in the cache of secret documents.  "Instead of blaming the person who disclosed it, blame the person who wrote this nonsense.  Otherwise, we wouldn't have the scandal we now have."  Australia's Foreign Minister Kevin Rudd has also publicly criticized the "adequacy" of US security over the documents.

The UN's High Commissioner on Human Rights, Navi Pillay also defended WikiLeaks, cautioning that efforts designed to interfere with its ability to publish would violate international free speech standards.  In an obvious response to reports that government officials pressured MasterCard, Visa, Amazon and PayPal to suspend services to the site, Pillay said: 

I am concerned about reports of pressure exerted on private companies including banks, credit card companies and Internet service providers to close down credit lines for donations to WikiLeaks, as well as to stop hosting the website. . . . If WikiLeaks has committed any recognisable illegal act then this should be handled through the legal system, and not through pressure and intimidation including on third parties.

-Kathleen Bergin

 

 

 

Wikileaks: Law Students Blacklisted?

Links to Wikileaks could get you into a heap of trouble.  That's the message being sent to students at Boston University Law School who were warned in an e-mail from the Career Development office that they could violate federal law if they read confidential documents posted on the site.

What?

Here's the text of the e-mail posted last week at Above the Law (emphasis added):

Dear Students and Alumni,

Today I received information about Wikileaks that I want to pass on to you. This is most relevant if you are going to apply for or have already applied for federal government positions. Two big factors in hiring for many federal government positions are determining if the applicants have good judgment and if they know how to deal with confidential/classified information. The documents released by Wikileaks remain classified; thus, reading them, passing them on, commenting on them may be seen as a violation of Executive Order 13526, Classified National Security Information. See Section 5.5 (Sanctions).

For many federal government jobs, applicants must obtain security clearances. There are various levels of security checks, but all federal positions require background checks. As part of such checks, social media may be researched to see what you are up to, so DO NOT post links to the documents or make comments on any social media sites. Moreover, polygraphs are conducted for the highest levels of security clearance.

I have not yet heard any fallout about specific individuals, but we wanted to give you this take on the situation.

To be fair, it's unclear whether BU interprets the executive order this way, or if it's sharing "career services" advice from the government, as did Columbia University's School of International and Public Affairs.  It's e-mail sent word that an alumni at the State Department:

recommends that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter.  Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government. . .

I won't pretend to be an expert on national security law, but telling students to watch out for EO 13526 seems like quite a stretch.  That order was signed by President Obama last year, and it's primary purpose, ironically, was to provide a mechanism for declassifying information as soon as practicable.  As to documents that remain classified, the EO prohibits disclosure by designated individuals, none of whom include "law students".

-Kathleen Bergin