First Amendment Law Prof Blog

First Amendment Scholarship Update

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

1. Brian Leiter (University of Chicago Law School), The Law of Religious Liberty in a Tolerant Society. The abstract states:

This is a draft of the final chapter of my forthcoming book WHY TOLERATE RELIGION? Earlier versions of material in the first part of the book appear on SSRN as "Why Tolerate Religion?" (Constitutional Commentary, 2008) and "Foundations of Religious Liberty: Toleration or Respect?" (San Diego Law Review, 2010) (the account of religion has changed somewhat since these two papers). The two main conclusions from earlier in the book that are presupposed in this draft chapter are that: (1) the moral value of liberty of conscience is not specific to claims of "religious" conscience; and (2) there are claims of conscience that are not "religious" in character (however precisely religion is understood). "Principled toleration" requires that a dominant group, with the means to stamp out or repress disfavored beliefs of others, nonetheless recognize that there are good moral reasons to permit such beliefs to be held and expressed (subject to the limits imposed by the Harm Principle). The draft chapter explores the question: what should become of the law of religious liberty in light of these conclusions? Should we opt for a scheme of universal exemptions for claims of conscience, or are there reasons to think that no exemptions for claims of conscience, religious or otherwise, are justified? The relation between toleration and religious establishment is also discussed.

2. Faisal Kutty (Valparaiso University - Law School ), The Myth and Reality of 'Shari'a' Courts in Canada: A Delayed Opportunity for the Indigenization of Islamic Legal Rulings,  7 University of St. Thomas L. J. ---. The abstract states:

The Ontario government’s passage of the Family Statute Law Amendment Act, 2005 ostensibly precluding the enforcement of faith-based decisions issued by arbitration panels pursuant to the Arbitrations Act, 1991, in the area of family law, brought to the fore a debate that has been raging in liberal democracies for some time.

Those opposed to allowing the use of religious principles in resolving family disputes using the Arbitrations Act, 1991, raised some legitimate concerns about gender rights within religious communities. They also questioned the role of religion in secular society and opposed what they saw as privatization of the legal system. Opponents contended that religious groups should be able to govern their lives according to their conscience within the parameters of law if the constitutional right to freedom of religion and association is to have any real value. Consenting and informed adults, they argued, must be able to make religious choices even if others do not believe these are “correct” choices.

The issues, of course, transcend dispute resolution and tug at fundamental tensions surrounding multiculturalism and national identity, the limits of accommodation and legal pluralism within a liberal democracy and the separation of church and state. I argue that Ontario lost a timely opportunity to devise a way to balance these competing rights and interests in a manner that respects all parties and protects the vulnerable.

The controversy was a prime case to examine whether Islamic law and liberal democracy can co-exist within a liberal constitutional framework. Moreover, I also argue that Ontario also delayed an opportunity to indigenize or Canadianize Islamic law rulings in a manner that would help in the integration process of its Muslim citizens.

3. Wilson Ray Huhn (University of Akron - School of Law), A Higher Law: Abraham Lincoln's Use of Biblical Imagery.  The abstract states:

This article describes Lincoln’s use of biblical imagery in seven of his works: the Peoria Address, the House Divided Speech, his Address at Chicago, his Speech at Lewistown, the Word Fitly Spoken fragment, the Gettysburg Address, and the Second Inaugural. Lincoln uses biblical imagery to express the depth of his own conviction, the stature of the founders of this country, the timeless and universal nature of the principles of the Declaration, and the magnitude of our moral obligation to defend those principles. Lincoln persuaded the American people to embrace the standard “all men are created equal” and to make it part of our fundamental law. This goal was formally accomplished as a matter of law in 1868 when the Equal Protection Clause was added to the Constitution as part of the Fourteenth Amendment, but it is approached in fact only through our constant application of this ideal to our society and in our daily lives. The principle of equality is a higher law, but it need not exceed our grasp. As Lincoln called upon us – “let it be as nearly reached as we can.”

4. Edward Fallone (Marquette University - Law School), Funding Stem Cell Research: The Convergence of Science, Religion & Politics in the Formation of Public Health Policy, published in Marquette Elder's Advisor, Vol. 12, 2011.  The abstract states:

The controversy over the funding of stem cell research by the federal government is used as a case study for examining how policy choices are made in the field of public bioethics. This article examines the manner in which the decision to fund stem cell research has been influenced by the convergence of evolving scientific knowledge, conflicting religious values, and the role of elected officials in a representative democracy. The article begins by reviewing the current state of scientific knowledge concerning adult stem cells, embryonic stem cells, induced pluripotent stem cells, and the process of direct cell re-programming. Because each of these four areas of regenerative medicine possess advantages and disadvantages as a potential source of medical treatment, it appears that non-scientific considerations explain the decisions of policymakers to favor or disfavor particular types of research. Next, the article surveys the official positions of major religious faiths in the United States in regards to stem cell research, and concludes that there are a variety of differing religious perspectives concerning both the moral status of the embryo and our society’s affirmative obligation to heal the sick. In addition, the article discusses the bifurcated funding landscape for stem cell research, whereby individual states and the federal government both currently provide some measure of research support. Finally, this article concludes by asserting two neutral principles that should guide elected officials in the future when they consider whether to fund medical research in controversial areas: 1) the federal government should be the preferred source of funding for basic medical research and 2) government funding decisions should not favor one religious perspective over another.

 5. Joshua Golombik , (University of New South Wales - School of Banking and Finance) , Alok Kumar (University of Miami - School of Business Administration) and Jerry T. Parwada (University of New South Wales (UNSW) - School of Banking and Finance), Does Religion Affect Stock Markets and Institutional Investor Behavior? . The abstract states:

Socially responsible (SR) investing based on religious beliefs is experiencing robust growth. While the prior literature has related investment behavior to investors’ religious backgrounds, whether a religious authority’s stock preferences affect equity markets is far less understood. In this paper we study the relevance of a well known religiously motivated stock index, the MSCI US Catholic Values Index (CV400), which is based on opinions of the Catholic Church, to stock market activity and to mutual fund manager behavior. We examine the price and comovement effects of additions and deletions to the index and hypothesize that fund managers located in predominantly Catholic regions (1) show preferences for CV400 stocks relative to the rest of the market and (2) actively trade on changes to the index. We find that generally, CV400 index changes have no impact on constituent stocks’ prices and comovement with their index peers. Catholic managers tilt more towards CV400 stocks than Protestant managers. However, Catholic managers only actively trade in reaction to index changes instigated by a religious authority in a similar manor as they trade in stocks with corresponding financial characteristics. Taken together, our results suggest that institutional investors value the SR attribute of a stock only if the asset would have been chosen on its financial merits alone.

6. Mike Madden (Dalhousie University), Second Among Equals? Understanding the Short Shrift that Freedom of Religion is Receiving in Canadian Jurisprudence , 7 Journal of Law and Equality 55 (2011).  The abstract states:

Decisions of the Supreme Court of Canada seem to indicate that freedom of religion is not protected to the same extent as other fundamental human rights, even though the text of the Canadian Charter of Rights and Freedoms suggests that all rights are equal, and that there is no “hierarchy of rights.” This article will demonstrate, through analysis of leading and recent Supreme Court decisions, that a judicial tendency of affording reduced protection to freedom of religion exists in Canada, and that this tendency possibly reflects the relatively weak philosophical justifications for inclusion of freedom of religion within human rights instruments.

7. Lorin Geitner (Chapman University School of Law), Merry Season’s Controversy, forthcoming in Orange County Lawyer, Forthcoming  The abstract states:

Discussion of the infamous "Christmas Controversy" – the legality of religious symbols in holiday displays on public land. This issue is examined both from the viewpoint of an attorney and a scholar of religion: From a legal point of view, the article examines the holdings of three major Supreme Court cases which have addressed this issue. From the viewpoint of religious scholarship, the article examined the relevant sociology of religion, which is also an important factor in accounting for why, in spite of settled precedents, this issue remains controversial.

8. Lorin Geitner (Chapman University School of Law), Law and Religion – the First Amendment and the Problems of Alienation, forthcoming in Orange County Lawyer.  The abstract states:

A survey of the different patterns of the relationship between of law to religion (and vice versa) in the course of world history, in order to provide historical and legal context and argue for the notion that the United States, truly, a secular society, but rather a religiously pluralistic one.

9. Mark Rienzi (Catholic University of America - Columbus School of Law), The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers. The abstract states:

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right to refuse to perform abortions. This historical analysis shows that the right to refuse passes the Court’s stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court’s stated tests, than the abortion right itself.

Beyond this historical case, a healthcare provider’s right to make this decision also fits squarely within the zone of individual decision-making protected by the Court’s opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right to refuse to participate in abortions.

10. Christopher Weber and Matthew Thornton  (Louisiana State University), Culture Warriors: How Political Candidates Activate Religious Considerations in Campaign Ads. The abstract states:

Religion plays an important role in American politics. From being an impetus behind numerous political movements, to shaping how political candidates are considered, scholars and pundits alike have emphasized the role of religion for political behavior and attitudes. Yet, there has been a scarcity of empirical work examining the consequences of religious appeals in campaigns. Drawing on recent work, which contends that views about religious traditionalism have replaced many of the inter-denominational differences in vote choice and issue attitudes, we argue that religious cues activate religious traditionalism, which subsequently influences how political candidates are considered. In a priming experiment administered to a representative cross-section of adults, we examine whether religious priming occurs. By manipulating the participant’s information environment, we also examine whether there are bounds to priming. We find strong evidence that religious traditionalism is activated when religious cues are embedded in campaign ads, but we find that priming effects are reduced when participants are provided information about the candidate. While religious cues have the potential to shape how candidates are evaluated, we argue that the consequences of religious cues are dampened among those who learn more about political issues and candidates.

11. Carlton F. W. Larson (University of California, Davis - School of Law), Naming Baby: The Constitutional Dimensions of Parental Naming Rights . The abstract states:

This Article provides the first comprehensive legal analysis of parents’ rights to name their own children. Currently, state laws restrict parental naming rights in a number of ways, from restrictions on particular surnames to restrictions on diacritical marks to prohibitions on obscenities, numerals, and pictograms. Yet state laws do not prohibit seemingly horrific names like “Adolf Hitler,” the name recently given to a New Jersey boy.

This Article argues that state laws restricting parental naming rights are subject to strict scrutiny under both the Due Process Clause of the Fourteenth Amendment and the Free Speech Clause of the First Amendment. This Article concludes that although many restrictions are constitutional, prohibitions on diacritical marks, such as that employed by the state of California, are unconstitutional. If parents wish to name their child Lucía or José, they have a constitutional right to do so. Similarly, current laws restricting parental choice of surnames fail strict scrutiny. This Article also considers the constitutionality and desirability of statutory reforms that would address certain harmful names not prohibited by current law.

Along the way, readers will encounter heavy metal bands with unusual umlauts, boys named Sue, the history of birth certificates, false implications of paternity, and dozens of truly awful, but very real, names given by parents to their children.

 12. Antonio Mortez Haynes (Cornell University - School of Law),  Note -The Age of Consent: When Sexting is No Longer Speech Integral to Criminal Activity.  The abstract states:

This Note argues that after United States v. Stevens, the First Amendment prohibits the prosecution of minors for sexting once the minor has passed its state's age of consent. If the First Amendment no longer has "child pornography exception," but instead only a "speech integral to criminal conduct" exception, where the underlying sexual act is itself legal, than depictions of the act that are not obscene must be fully protected by the First Amendment. Part I briefly discusses "sexting," its prevalence among today’s teenagers, and sexting has resulted in a surprising number of recent prosecutions of teens under various child pornography statutes. Part II explores the growth and development of child pornography law in the United States and explains why using child pornography statutes to go after what may be nothing more than high-tech flirting, was probably impermissible even before Stevens. Prior to Stevens, Court noted that child pornography that was neither obscene nor the product of actual child abuse was fully protected by the First Amendment. While what constitutes obscenity may differ based on the particular community in which the speech is prosecuted, it is difficult to see how today's sexting teens are appealing to prurient interests in sex. In Part III, I explain that since there is no longer a child pornography exception to the First Amendment, but instead a "speech integral to criminal activity exception," to survive constitutional scrutiny, child pornography statutes must necessarily be tied to another "valid criminal statute." With respect to older teens' sexting, the most logical starting point is state statutory rape laws, which generally set the age of consent. Because the states have wide latitude in determining the age of consent, in Part IV, I critically examine the potential consequences of tying First Amendment protections to underlying state criminal statutes. I then suggest that an entirely different analytical framework may be appropriate when scrutinizing activities like sexting. Part V briefly concludes.

13. Larry Alexander (University of San Diego School of Law), There is No First Amendment Overbreadth (But There are Vague First Amendment Doctrines); Prior Restraints Aren’t ‘Prior’; and ‘As Applied’ Challenges Seek Judicial Statutory Amendments, forthcoming in Constitutional Commentary. The abstract states:

In this short paper I argue that there are no overbroad statutes, and that the worry about overbreadth is really a worry about the vagueness of some First Amendment doctrines. I further argue that there is nothing “prior” about prior restraints; the temporal worry about injunctions is due to the judicially-created collateral bar doctrine, and the temporal worry about licensing schemes is that of the delay occasioned by the license requirement. Finally, I argue that “as applied” constitutional analysis is an exercise in judicial statutory amendment. I conclude with an Appendix discussing two recent prominent articles that are inconsistent with some of my arguments.

JFB

Theology School Trains Air Force Chaplains to Help with Post-Traumatic Stress

  
Today’s Washington Post carries an AP account of how the Illiff School of Theology in Denver is teaching Air Force chaplains to draw on service members’ religious and spiritual beliefs to cope with post-traumatic stress.  One chaplain who has participated in the training program described it as “incredibly helpful” and underscored that the program guidelines discourage "premature judgment, hasty moralizing or proselytizing."  

JFB

Some Members Continue Informal Prayer in Hawaii State Senate

As noted in a prior post, the Hawaii state Senate recently voted unanimously to end formal legislative prayers.  According to the AP, shortly before Wednesday’s  daily session officially got underway, nine Hawaii State Senators gathered to pray in the state Senate chamber. One of the members of the group, Sen. Pohai Ryan, described their prayer as asking for God’s blessing for the senators' choices and seeking for guidance to do right for the people they represent. Ryan added,“Government and faith should be separate. But just because I voted against it doesn't mean I'm not a spiritual person." Senate President Shan Tsutsui did not object to the group’s prayer, saying: "It's a matter of free speech.  We do encourage members, at their own will and desire, to go ahead and engage in prayer."

HT to How Appealing.  JFB 

 

Rep. Issa’s Proposal to Track FOIA Requests Prompts Civil Liberties Concerns

The New York Times reports that Rep. Darrell Issa, new chair of the House Oversight and Government Reform Committee, has sent a letter to federal agencies asking them to compile a list of the names of those who have filed FOIA requests in the last five years and to document the status of the requests.   Rep. Issa asserts that he seeks to ensure that citizens’ requests for information get prompt  responses and are not impeded by political considerations.  However, the Times notes that some civil liberties advocates see danger in a system that would generate a comprehensive and centralized record of who has sought what information from the government.

JFB

Pew Report on Global Muslim Population Trends Released

The Pew Research Center has released a new report, The Future of the Global Muslim Population - Projections for 2010-2030.  Highlights from the Executive Summary include:

The world's Muslim population is expected to increase by about 35% in the next 20 years, rising from 1.6 billion in 2010 to 2.2 billion by 2030.

Globally, the Muslim population is forecast to grow at about twice the rate of the non-Muslim population over the next two decades -- an average annual growth rate of 1.5% for Muslims, compared with 0.7% for non-Muslims. If current trends continue, Muslims will make up 26.4% of the world's total projected population of 8.3 billion in 2030, up from 23.4% of the estimated 2010 world population of 6.9 billion.

While the global Muslim population is expected to grow at a faster rate than the non-Muslim population, the Muslim population nevertheless is expected to grow at a slower pace in the next two decades than it did in the previous two decades. From 1990 to 2010, the global Muslim population increased at an average annual rate of 2.2%, compared with the projected rate of 1.5% for the period from 2010 to 2030.

If current trends continue, however, 79 countries will have a million or more Muslim inhabitants in 2030, up from 72 countries today.1 A majority of the world's Muslims (about 60%) will continue to live in the Asia-Pacific region, while about 20% will live in the Middle East and North Africa, as is the case today. But Pakistan is expected to surpass Indonesia as the country with the single largest Muslim population.

In the United States, for example, the population projections show the number of Muslims more than doubling over the next two decades, rising from 2.6 million in 2010 to 6.2 million in 2030, in large part because of immigration and higher-than-average fertility among Muslims. The Muslim share of the U.S. population (adults and children) is projected to grow from 0.8% in 2010 to 1.7% in 2030, making Muslims roughly as numerous as Jews or Episcopalians are in the United States today. Although several European countries will have substantially higher percentages of Muslims, the United States is projected to have a larger number of Muslims by 2030 than any European country other than Russia and France.

In Europe as a whole, the Muslim share of the population is expected to grow by nearly one-third over the next 20 years, rising from 6% of the region's inhabitants in 2010 to 8% in 2030. In absolute numbers, Europe's Muslim population is projected to grow from 44.1 million in 2010 to 58.2 million in 2030. The greatest increases -- driven primarily by continued migration -- are likely to occur in Western and Northern Europe, where Muslims will be approaching double-digit percentages of the population in several countries. In the United Kingdom, for example, Muslims are expected to account for 8.2% of the population in 2030, up from an estimated 4.6% today.

Several factors account for the faster projected growth among Muslims than non-Muslims worldwide. Generally, Muslim populations tend to have higher fertility rates (more children per woman) than non-Muslim populations. In addition, a larger share of the Muslim population is in, or soon will enter, the prime reproductive years (ages 15-29). Also, improved health and economic conditions in Muslim-majority countries have led to greater-than-average declines in infant and child mortality rates, and life expectancy is rising even faster in Muslim-majority countries than in other less-developed countries.

JFB

Does New MTV Teen Drama “Skins” Violate Child Porn Law?

The Parents Television Council has asked the U.S. Senate and House Judiciary Committees and the Department of Justice to investigate whether the new MTV teen drama “Skins” presents what amounts to child pornography when it shows the characters’ sexual escapades while using actors ranging from 15 to 19. The New York Times reports that the network is considering possible editing of upcoming episodes in light of concerns that its content may place the show within what federal law defines as child pornography.  18 U.S.C. 2256(8) defines child pornography as “any visual depiction … where A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct.” The Washington Post describes efforts by the show’s creator to defend it as “highly moral” in its candid exploration of teens’ lives. 

JFB

NYPD: Anti-Muslim Film Should Not Have Been Part of Training, Will Not Be Shown Again

The Village Voice reports that earlier this month a group of NYC police office attending counter-terrorism training were shown the film, The Third Jihad, which, as described in the Voice article, uses a variety of inflammatory techniques to express hostility toward Muslims.  For example, the film’s narrator says: "Americans are being told that most of the mainstream Muslim groups are moderate, when in fact if you look a little closer you'll see a very different reality. One of their primary tactics is deception."  The film also repeatedly shows the image of a black and white  Islamic flag flying over the White House. The Council on American Islamic Relations had previously complained about the use of the film after learning about it from a police cadet in the summer of 2010. Deputy Police Commissioner Paul Browne has acknowledged that the film is “inappropriate,” is not approved for use in the Department’s training curriculum, and is no longer being shown.       

JFB

 

First Amendment Scholarship Update

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

1. Justina A. V. Fischer (Organization for Economic Co-Operation and Development (OECD), Immigration, Integration and Terrorism: Is There a Clash of Cultures?.The abstract states:

We test whether immigrants are more prone to support terror than natives because of lower opportunity costs, using the international World Values Survey data. We show that, in general, economically, politically and socially non-integrated persons are more likely to accept using violence for achieving political goals, consistent with the economic model of crime. We also find evidence for the destructive effects of a ‘clash of cultures’: Immigrants in OECD countries who originate from more culturally distanced countries in Africa and Asia appear more likely to view using violence for political goals as justified. Most importantly, we find no evidence that the clash-of-cultures effect is driven by Islam religion, which appears irrelevant to terror support. As robustness test we relate individual attitude to real-life behavior: using country panels of transnational terrorist attacks in OECD countries, we show that the population attitudes towards violence and terror determine the occurrence of terror incidents, as does the share of immigrants in the population. A further analysis shows a positive association of immigrants from Africa and Asia with transnational terror, while the majority religion Islam of the sending country does not appear to play a role. Again, we find that culture defined by geographic proximity dominates culture defined by religion.

2. Norman I. Silber (Hofstra University School of Law), Remarks on Balancing Legitimate Regulation of Nonprofits with First Amendment Freedoms: Exceptional Nonprofits and Nonprofit Exceptionalism. The abstract states:

Exceptional Nonprofits and Nonprofit Exceptionalism: This set of remarks was prepared for a colloquium designed to explore whether recent proposals to heighten proscriptive regulation and general supervision of nonprofit organizations trenches inappropriately on First Amendment Freedoms.

3. Nicholas Bramble (Information Society Project at Yale Law School), Ill Telecommunications: How Internet Infrastructure Providers Lose First Amendment Protection , 17 Mich. Telecomm. & Tech. L. Rev. --- (2010). The abstract states:

The Federal Communications Commission (FCC) recently proposed an Internet nondiscrimination rule: “Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.” Among other requests, the FCC sought comment on whether the proposed nondiscrimination rule would “promote free speech, civic participation, and democratic engagement,” and whether it would “impose any burdens on access providers’ speech that would be cognizable for purposes of the First Amendment.”

The purpose of this Article is to suggest that a wide range of responses to these First Amendment questions, offered by telecommunications providers and civil society groups alike, have glossed over a fundamental question: whether the activities of broadband Internet providers are sufficiently imbued with speech or expressive conduct to warrant protection under the First Amendment in the first place. Yet if this question is not resolved, any subsequent analysis of those who facilitate Internet-based telecommunications will necessarily rest on an incoherent and insufficiently considered definition of the “speech” that is at the heart of First Amendment concerns.

The FCC’s proposed nondiscrimination rule is an attempt to ensure that when access providers route “lawful content, applications, and services” to users on behalf of some third-party information providers, they are also obligated to route lawful content, applications, and services to users from all other information providers. Based on this understanding of the FCC’s nondiscrimination rule as a form of the equal access rule upheld in Rumsfeld, the Article concludes that the nondiscrimination rule does not affect the speech and association rights of access providers. Internet access providers do not accrue the speech rights associated with the third-party content, applications, and other communications that they transport to users through their networks.

4. Randall P. Bezanson, Essay -  No Middle Ground? Reflections on the Citizens United Decision,
96 Iowa L. Rev. 649 (2011).

5. NOTE -Three’s a Crowd — Defending the Binary Approach to Government Speech, 124 Harv. L. Rev. 805 (2011). The introduction states:

With its 2009 decision in Pleasant Grove City v. Summum, the Supreme Court held that a Ten Commandments monument placed by a city in a public park was government speech, even though the monument had been designed and submitted by a private group. The decision marked another step in the Court’s increasingly confident use of the government speech doctrine, which seems poised to supplant forum analysis in many situations in which both private individuals and the public could be seen to be speaking. A judicial determination that an expressive act is government speech rather than private speech has dramatic consequences for the act’s treatment, allowing the state to favor viewpoints in ways otherwise prohibited by the First Amendment.  This strict dichotomy has led an increasing number of judges and commentators to suggest that the current framework is insufficient. Instead, they argue that some speech should be treated as a “mixture” or “hybrid” of private and governmental elements. This view is intuitively appealing, seeming to treat difficult questions with suitable nuance. But this Note argues that the hybrid speech approach is both doctrinally and practically unsound, as is the more established “four-factor” approach for analyzing whether speech is governmental or private.  Both approaches misleadingly merge what are essentially separate private and governmental expressive acts, allowing private individuals to appropriate the appearance of government approval. Moreover, adding a new category of hybrid speech would derail a doctrine that shows increasing promise. The Supreme Court’s recent government speech cases, which focus on whether the state has carefully controlled a method of communication, create manageable and intuitive criteria for distinguishing government speech from that which is entitled to First Amendment protection.

6. RECENT CASE: Second Circuit Strikes Down the FCC's Indecency Policy as Void for Vagueness. — Fox Television Stations, Inc. v. FCC, 613 F.3d 317 (2d Cir. 2010), 124 Harv. L. Rev. 835 (2011). The introduction states:

Courts have struggled with the puzzle of according proper deference to agency interpretations of law that raise serious constitutional questions.  Arbitrary enforcement practices pose a particular challenge,  since agencies may render the statutes they administer unconstitutionally vague if such practices are granted deference. The Federal Communications Commission (FCC) has skirted these issues when interpreting its own indecency policy,  surviving both First Amendment and vagueness  challenges since 1975. Recently, in Fox Television Stations, Inc. v. FCC6 (Fox II), however, the Second Circuit struck down the FCC’s indecency policy as unconstitutionally vague because the FCC had applied its “patently offensive” standard and the policy’s two exceptions so inconsistently that television broadcasters could not predict when they would be subject to sanction. The court implicitly assumed that the FCC’s enforcement practices were authorized by its indecency policy. Instead, the court should have held that the FCC’s enforcement practices were arbitrary, unauthorized implementations of an otherwise constitutionally sound indecency policy. Such a holding, amply supported by precedent, would have permitted the FCC to preserve its viable indecency framework and avoided establishing
a costly and incoherent deference regime.

7. RECENT CASE: Fourth Circuit Holds that a Regulation Largely Prohibiting Alcohol Advertisements in College Newspapers Is Constitutional. — Educational Media Co. at Virginia Tech v. Swecker, 602 F.3d 583 (4th Cir. 2010), 124 Harv. L. Rev. 843 (2011). The introduction states:

Government regulation of the advertisement of “vice” products, such as tobacco and alcohol, is subject to the First Amendment commercial speech doctrine. The Supreme Court employs the four-prong analysis set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission1 to test whether government regulations on vice advertising are constitutional under this doctrine.2 Recently, in Educational Media Co. at Virginia Tech v. Swecker,3 the Fourth Circuit held that a regulation largely prohibiting college newspapers from publishing alcohol advertisements met the four prongs of the Central Hudson test and thus did not violate the First Amendment.4 But in taking only a cursory look at other direct means of regulating alcohol consumption, the Fourth Circuit applied Central Hudson’s narrow tailoring requirement in a way that differed markedly from the Supreme Court’s application of this prong in cases addressing the constitutionality of vice advertising regulations. The Fourth Circuit’s application of the Central Hudson test pushed back against the Supreme Court’s mode of analysis: while ostensibly following the Court’s test, in practice this case represents a much more deferential approach to child protection censorship than what the Court has authorized.

8. RECENT CASE: Second Circuit Holds that Law Barring ACORN from Receiving Federal Funding Is Not a Bill of Attainder. — ACORN v. United States, 618 F.3d 125 (2d Cir. 2010), 124 Harv. L. Rev. 859 (2011). The introduction states:

The Bill of Attainder Clause is one of the least successfully litigated provisions of the Constitution. In fact, the Supreme Court has invalidated legislation on this ground only five times since 1789.  Recently, in ACORN v. United States, the Second Circuit held that an appropriations act barring a nonprofit organization and its affiliates from receiving federal funding was not an unconstitutional bill of attainder.  The court concluded that the withholding of federal funds did not meet the historical or functional definition of “punishment,” and that the legislative record did not contain sufficient proof of punitive intent.  Because Supreme Court jurisprudence on this subject is so limited, ACORN is facially consistent with precedent. In reaching its decision, however, the Second Circuit failed to give due consideration to legislative determination of guilt, thus undermining the separation of powers underpinnings of the Bill of Attainder Clause.

JFB

New Governors’ Actions Suggest Flawed Understanding of First Amendment

Gene Policinski, Senior Vice President and Executive Director of the First Amendment Center, has posted a commentary examining recent mis-steps by a number of new governors. These incidents range from Alabama Governor Bentley’s statement, at a church service, that persons who had not accepted Jesus Christ were not his brothers and sisters, a remark for which he has now apologized, to Rhode Island Governor Lincoln Chafee’s order barring state employees from participating in radio talk shows.  
    
JFB

Will Rep. King’s Planned Hearings on Alleged Radicalization of U.S. Muslims Spawn Anti-Muslim McCarthyism?

Today’s Washington Post examines American Muslims’ mounting fears that planned House Homeland Security Committee hearings next month will fuel anti-Muslim bias. 

JFB
 

Texas Legislator Proposes Constitutional Amendment to Bar Courts from Use or Application of “Religious or Cultural Law”

Texas state Rep. Leo Berman has filed a resolution seeking ratification of a state constitutional amendment that reads as follows:  

A court of this state shall uphold the laws of the onstitution of the United States, this Constitution, federal laws, and laws of this state. A court of this state may not enforce, consider, or apply any religious or cultural law.

Similar proposals have been introduced in Louisiana, Tennessee, Arizona, Florida, South Carolina, and Utah. A federal judge has enjoined any implementation of Oklahoma’s constitutional amendment prohibiting the use of Sharia law. The Houston Chronicle Believe It or Not Blog provides coverage of the Texas proposal. 

JFB

Hawaii State Senate Ends Daily Session Prayer

As reported by the AP via the Washington Post, Hawaii’s state Senate voted last week to end its practice of opening its daily sessions with a prayer.  Acting on behalf of a citizen, the ACLU had written to the state Senate complaining about the daily invocations, noting how frequently they included references to Jesus Christ.  The state Senate decided to end the prayer practice rather than restrict the content of the invocations to ensure they was more inclusive and more in line with what the Supreme Court had deemed constitutionally  acceptable in Marsh v. Chambers,  non-sectarian, non-proselytizing prayer.  The Hawaii state Senate appears to be the first state legislative body to vote to end such a prayer practice.

JFB        
 

Common Cause Asks AG Holder to Investigate Whether Potential Lack of Impartiality Should Have Precluded Justices Scalia and Thomas from Participating in Citizens United

 Common Cause has written to Attorney General Eric Holder asking him to investigate whether the Justices should have recused themselves from consideration of Citizens United. The group’s letter states:

The Supreme Court’s 5-4 decision in Citizens United vs. Federal Election Commission, 130 S. Ct. 876 (2010), has had a dramatic impact, overturning prior Court precedent, ending restrictions on corporate and union political spending that had been in place since 1947, and fueling a surge in secret and independent spending in the 2010 elections.  Outside groups spent more than $296 million on the 2010 Congressional midterms – a 330 percent increase over 2006 – with more than $135 million of that coming from undisclosed donors¸ according to the nonpartisan Center for Responsive Politics.

Since that decision, information has come to light that raises serious questions about the impartiality of Justices Thomas and Scalia in the Citizens United case.  It appears both justices have participated in political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision.  With respect to Justice Thomas, there may also be an undisclosed financial conflict of interest due to his wife’s role as CEO of Liberty Central, a 501(c)(4) organization that stood to benefit from the decision and played an active role in the 2010 elections.

Until these questions are resolved, public debate over allegations of bias and conflicts of interest will serve to undermine the legitimacy of the Citizens United decision and erode public confidence in the integrity of our nation’s highest court. As Attorney General, you are ideally situated to address this matter, both in the interest of justice and in the interest of your client, the Federal Election Commission.  The Commission was the losing party in  Citizens United, but may now have legitimate grounds to seek reconsideration.  

Therefore, Common Cause hereby formally requests that the Justice Department promptly investigate whether Justices Thomas and Scalia should have recused themselves from the Citizens United case under 28 U.S.C. § 455. If the Department finds sufficient grounds for disqualification of either Justice, we request that the Solicitor General file a Rule 60(b) motion with the full Supreme Court seeking to vacate the judgment. (emphasis in original)

The New York Times provides further information about the allegations.

JFB

 

First Amendment Scholarship Update

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

1. Daniel O. Conkle (Indiana University School of Law-Bloomington), Religious Truth, Pluralism, and Secularization: The Shaking Foundations of American Religious Liberty, 32 Carrdozo L. Rev.---(2011). The abstract states:

In this Essay, I recount John Locke’s 1689 Letter Concerning Toleration and explain how religious liberty continues to rest on Lockean and related justifications. These various justifications depend in part on religious-moral reasoning (both Christian and non-Christian) and in part on political-pragmatic considerations. I then discuss recent and ongoing developments in the American religious landscape, including a radical increase in religious diversity, the modernization of traditional faiths, the individualization or "spiritualization" of religion, and the increasing secularization of individual belief structures. I suggest that these developments, over time, may seriously threaten the underlying religious-moral and political-pragmatic foundations of religious liberty and therefore America’s commitment to religious liberty as a fundamental value. If I am correct, the long-term future of American religious liberty may be in peril. 

2. Paula L. Abrams (Lewis & Clark Law School), The Reasonable Believer: Faith, Formalism, and Endorsement of Religion, 14 Lewis & Clark L. Rev. 1537(2010). The abstract states:

The reasonable observer standard, used in Establishment Clause cases to determine whether government action endorses religion, marks a retreat by the Court from vigorous scrutiny of government purpose and effect. The standard, which examines whether a reasonable observer, familiar with First Amendment values and with the history and context of government action, perceives endorsement, embodies a shift toward formalism in Establishment Clause doctrine.
This Essay argues that the reasonable observer standard, which bypasses the role of faith in perception, undermines the protection of a core Establishment Clause value - inclusion. The reasonable observer standard, representing the abstracted perspectives of a "community" of indeterminate faith, decreases the significance of the effect of government action, particularly on the nonadherent. Application of the standard thus tends to validate the perspective of the majority. The value of inclusion is best served by an inquiry into purpose and effect that considers the perceptions of both adherents and nonadherents.

3. Eduard J. Bomhoff  (Monash University - Faculty of Business and Economics) and Mary Man Li Gu (The University of Nottingham Malaysia Campus), Religion and Support for Democracy: A Comparative Study for Catholic and Muslim Countries.The abstract states:

This paper presents a cross-country empirical analysis of the relationship between religion and political attitudes among the Catholic and Muslim publics, using the most recent data from the World Values Survey (WVS). We find that public support for democracy is stronger among the better educated in both the Catholic and Muslim countries. Contrary to the conventional belief that pious believers are less receptive to democracy, religiosity, measured by belief in God, is found to have a significant positive impact on desire for democracy in both types of society. Our findings further indicate that at the societal level, overt support for democracy is consistently positively correlated to the attachment of a set of more implicit tolerant civil values in the Catholic countries, while exactly the opposite is observed in the Islamic countries.

4. Joel A. Nichols (Univ. of St. Thomas School of Law (MN) and James William McCarty III  (Emory University), When the State is Evil: Biblical Civil (Dis)Obedience in South Africa, 84 St. John's L. Rev. --- (2011). The abstract states:

How should Christians respond to an oppressive government regime? This question has vexed believers for centuries, including in the best known recent example of an "evil state": Nazi Germany. This Article explores the Christian response to the demands of the apartheid state in South Africa in the late 20th century.

This Article particularly focuses upon the way that Biblical text is used – both by the state and against the state. Specifically, governments and ruling Christians in power frequently appeal to Romans 13:1-7 and its command that Christians should submit to the governing authorities, for those authorities have been put in place by God. But disenfranchised, out-of power Christians often look instead to a theme of Biblical resistance to ungodly authority, following the example of Peter in Acts 5:27-30 where the Apostles insist that they must "obey God rather than men." These differing thematic responses to Scripture - submission vs. resistance, authority vs. liberation, order vs. renewal - have come into tension and conflict throughout church history.

The Article first explores the New Testament texts that speak to the relationship of Christians to the civil government. It then provides a modern case study of the competing Biblical themes of submission versus resistance: In apartheid South Africa the ruling state explicitly called upon Romans 13 and those resisting the state overtly invoked Acts 5. (The Article assesses the use of scripture by the Kairos theologians, Beyers Naude, and Archbishop Desmond Tutu.) Finally, the Article offers some concluding reflections on what modern Christians can learn from the Biblical texts and the South African experience.

5. Christopher McCrudden (University of Oxford - Faculty of Law). Religion and Education in Northern Ireland. The abstract states:

Since the foundation of Northern Ireland in 1920, the issue of control over primary and secondary education has been a source of significant tension between the two main ethno-religious communities in Northern Ireland, and between them and the government of Northern Ireland. Education in Northern Ireland is distinctly differently organized in Northern Ireland compared with the rest of the United Kingdom, and several of its ‘unique features’ (McKeown and Connolly, 1992, 211) arise out of the particular form of the political and religious sensitivities of education in the former. The paper is structured as follows. First, I shall outline the features of the governance of education in Northern Irish model. Second, I shall attempt to explain briefly why these features came about. Third, I shall consider research that has attempted to understand what are the effects of the model on the religious background of pupils in different schools. Fourth, I shall consider the role of teachers in this model. Fifth, I shall consider issues relating to curriculum and collective worship. Sixth, the crucial issue of school funding will be examined. Finally, I shall consider the prospects for the model in the future, by considering pupil opinion on the structure of schooling, and I shall explain how this model relates to political developments in Northern Ireland generally.

6. Mel Cousins (Glasgow Caledonian University), Registration of the Religion of Children Under the Irish Poor Law, 1838-1870 , published in The Journal of Ecclesiastical History, Vol. 61, No. 1, pp. 107-124, 2010.  The abstract states:

This article discusses the registration of the religion of children (of unknown religion) on admission to the workhouse under the Irish poor law. The Irish attorney-general had ruled that they should be registered in the religion of the state, that is as Protestants. However, given the demographic situation, the vast majority of such children, who appear primarily to have been illegitimate, were of Catholic parentage. Local boards of guardians often objected forcefully to registering as Protestants children whom they strongly suspected (or in many cases unofficially knew) to be Catholic. The Poor Law Commission attempted to enforce the law, but in the face of ongoing resistance and the difficulty of implementing their views, they eventually proposed legislation to address the matter. Although adopted by the House of Commons, the legislation was amended by the House of Lords. Ultimately the disestablishment of the Church of Ireland put an end to the grounds for baptising children as Protestants.

7. Richard L. Hasen (Loyola Law School Los Angeles), Citizens United and the Orphaned Antidistortion Rationale, forthcoming in Georgia State Univeristy Law Review. The abstract states:

This brief Essay, written for a symposium in the Georgia State Law Review, considers liberals’ abandonment in the Citizens United case of the “antidistortion” interest for corporate campaign spending limits. Soon after his retirement, Supreme Court Justice John Paul Stevens gave an interview to the CBS television program 60 Minutes in which he defended corporate spending limits on antidistortion grounds. Reacting to the Stevens interview, the president of Citizens United lauded the Court’s decision on grounds that it would level the playing field. How strange that both the Citizens United prime dissenter and plaintiff described the decision in terms of antidistortion/political equality effects. The irony in this debate is that Mr. Bossie’s group argued before the Supreme Court that the First Amendment barred taking political equality concerns into account in fashioning campaign finance rules, and Justice Stevens’ dissent did its best to avoid acknowledging that it was defending corporate spending limits, in part, on political equality grounds. Justice Stevens’ failure to expressly defend corporate spending limits on political equality grounds came after the government had abandoned the rationale in the Supreme Court.

This Essay argues that the antidistortion argument did not deserve to be orphaned, and remains a key animating principle in thinking about the desirability of campaign finance laws. Part I explains how the antidistortion argument became an orphan in Citizens United, laying the blame with the Solicitor General’s office and with Justice Stevens muddled Citizens United dissent. Part II explains the cost of this orphaning for the future of campaign finance and related laws: keeping the political equality rationale in the closet will make it harder to get legislative and judicial change in the campaign finance arena going forward, and it prevents a full and honest debate about the desirability and cost of campaign finance laws justified on political equality grounds.

8. Timothy K. Kuhner (University of Navarra - School of Law), Citizens United as Neoliberal Jurisprudence: The Resurgence of Economic Theory , 18 Va. J. Soc. Pol'y & Law --- (2011). The abstract states:

On January 21st of 2010, the Roberts Court freed corporations to spend unlimited general treasury funds on political advertisements, including those that mention candidates by name and those that are run in the weeks before an election. Shown by recent polls to be one of the most unpopular cases in U.S. history, Citizens United v. FEC promises to set the tone for the Roberts Court’s treatment of money-in-politics cases. This article shows that Citizens’ holding and reasoning flow directly from neoclassical economic theory, which assumes a perfect (political) market and resists government intervention aimed at correcting power imbalances and anti-competitive behavior. This laissez-faire stance is not new to the Court, but it had been in decline during Chief Justice Rehnquist’s long tenure. Citizens resuscitates a line of neoclassical jurisprudence that traces back to the mid 1970s, in particular to Buckley v. Valeo and First National Bank of Boston v. Bellotti. After summarizing the neoclassical assumptions of Citizens, this Article provides a thorough explanation and critique of these past cases which, in essence, imported economic theory to determine the meaning of democracy. Justice Stevens’ dissenting opinion in Citizens, and alternatives to neoclassical ideology more generally, are discussed in conclusion. In sum, this Article offers two basic contributions to the literature, the first descriptive and the second normative: It explains the neoclassical underpinnings of the line of cases that culminate in Citizens, thus offering a new way to understand the dominant ideology on the Roberts Court; and it provides an argument, rooted in institutional economic theory and separatist philosophy, that the market sphere should not govern the political sphere.

9. Larry E. Ribstein (University of Illinois College of Law,) The First Amendment and Corporate Governance. The abstract states:

The Supreme Court's decision in Citizens United did not end the controversy over regulating corporate speech. Although the Court broadly subjected regulation of corporate speech to the First Amendment, it did not wholly preclude regulation of corporate governance processes that produce corporate speech. The Court's opinion therefore shifted debate concerning corporate speech from corporations' "external" distortion of the political process to their "internal" distortion of shareholders' self-expression. This paper shows that regulation of the corporate governance process that produces speech faces significant obstacles under the First Amendment. These include the limited efficacy of regulation of corporate governance, regulation's potential for protecting the expressive rights of some shareholders by suppressing others, and the uncertain implications of this rationale for types of speech other than that involved in Citizens United. These problems with the corporate governance rationale for regulating corporate speech suggest that protection of shareholders' expressive rights may be trumped by society's interest in hearing corporate speech and the First Amendment''s central goal of preventing government censorship.

10. Timothy Zick (William & Mary Law School), The First Amendment in Trans-Border Perspective: Toward a More Cosmopolitan Orientation, 52 B.C. L. Rev. --- (2011). The abstract states:

This Article examines the First Amendment’s critical trans-border dimension – its application to speech, association, press and religious activities that cross or occur beyond territorial borders. Judicial and scholarly analysis of this aspect of the First Amendment has been limited, at least as compared to consideration of more domestic or purely local concerns. The Article identifies two basic orientations with respect to the First Amendment – the provincial and the cosmopolitan. The provincial orientation, which is the traditional account, generally views the First Amendment rather narrowly – i.e., as a collection of local liberties or a set of limitations on domestic governance. First Amendment provincialism does not fully embrace or protect trans-border speech, press and religious activities, views certain foreign ideas, influences, and ideologies with suspicion or hostility, and envisions a rather minimal extraterritorial domain. First Amendment cosmopolitanism, which the Article offers as an alternative orientation, takes a more global perspective. It embraces and protects cross-border exchange and information flow; preserves citizens’ speech and other First Amendment interests at home and abroad, while at the same time respecting foreign expressive and religious cultures; and expands the First Amendment’s extraterritorial domain. The Article critiques provincialism on various grounds. It offers a normative defense of First Amendment cosmopolitanism, which is both consistent with traditional First Amendment principles and better suited to twenty-first century conditions and concerns. The Article demonstrates how a more cosmopolitan approach would concretely affect trans-border speech, association, press and religious liberties.

11. Deana Pollard-Sacks (Texas Southern University - Thurgood Marshall School of Law), California's Interest in Schwarzenegger v. Entertainment Merchants Association. The abstract states:

The issue presented to the Court in Schwarzenegger v. Entertainment Merchants Association is whether a California sales regulation prohibiting the sale of the most violent "morbid or deviant" video games to minors under eighteen years of age violates the minors’ rights to receive the video game "speech." The issue, as framed, fails to identify fully all of the minors’ First Amendment interests at risk on both sides of the controversy. When viewed from a broader perspective that considers the most recent and credible scientific evidence concerning the risks that violent video games pose to minors synthesized with constitutional policies, the challenged sales regulation should be recognized as preserving minors’ First Amendment rights, not infringing them. California’s Interest in Schwarzenegger v. Entertainment Merchants Association reviews the most recent empirical data and the researchers’ conclusions in light of the theories and policies that animate First Amendment jurisprudence and concludes that the California sales regulation should be upheld because it likely furthers minors’ First Amendment rights and related liberty interests.

12. Mark Tushnet (Harvard Law School), Telling Me Lies: The Constitutionality of Regulating False Statements of Fact. The abstract states:

Using recent decisions dealing with the constitutionality of the Stolen Valor Act as its starting point, this Essay examines the First Amendment questions raised by statutes prohibiting lies as such, that is, outside the context of fraud and defamation. It evaluates the constitutionality of statutes imposing strict or negligence liability for lying, concluding that the First Amendment does not bar legislatures from adopting such statutes if the statutes are carefully drawn. It then assesses arguments that deliberate falsehoods can be prohibited because they have no social value, concluding that that judgment, while somewhat overbroad, is correct. In reaching that conclusion the Essay offers an interpretation of United States v. Stevens, the recently decided "animal snuff video" case, which some have thought stands as an obstacle to statutes prohibiting lies as such. The Essay also deals with false statements made by those who do not believe the statements to be false, observing that many such statements are "ideologically inflected" in ways that make is unwise, and probably unconstitutional, to regulate their dissemination. A final section briefly discusses statutes prohibiting false statements in political campaigns.

13. Christian Leuprecht (Royal Military College of Canada), Deception in Speeches of Candidates for Public Office. The abstract states:

The contribution of this article is twofold: the adaptation and application of models of deception from psychology, combined with data-mining techniques, to the text of speeches given by candidates in the 2008 U.S. presidential election; and the observation of both short-term and medium-term differences in the levels of deception. The method of analysis is fully automated and requires no human coding, and so can be applied to many other domains in a straightforward way. The authors posit explanations for the observed variation in terms of a dynamic tension between the goals of campaigns at each moment in time, for example gaps between their view of the candidate’s persona and the persona expected for the position; and the difficulties of crafting and sustaining a persona, for example, the cognitive cost and the need for apparent continuity with past actions and perceptions. The changes in the resulting balance provide a new channel by which to understand the drivers of political campaigning, a channel that is hard to manipulate because its markers are created subconsciously.

14. Adam D. Thierer (George Mason University - Mercatus Center), Unappreciated Benefits of Advertising and Commercial Speech. The abstract states:

Federal policy makers, state legislators, and state attorneys general have recently shown interest in regulating commercial advertising and marketing. Several new regulatory initiatives are being proposed, or are already underway, that could severely curtail or restrict advertising or marketing on a variety of platforms. The consequences of these stepped-up regulatory efforts will be profound and will hurt consumer welfare both directly and indirectly.

The affected platforms range from traditional media (newspapers, TV and radio broadcasters, etc.) to the newest media outlets (the Internet, online ad networks, social networks, video games, mobile devices, and interactive television). This expanded regulatory activism would apply to issues and products including pharmaceuticals, tobacco, alcohol, advertising during children’s television programming, online marketing to children, the loudness of ads on television, product placement marketing and testimonials, and more. Perhaps the most notable of these efforts is the recent push to impose a comprehensive regulatory regime on online advertising and data collection efforts in the name of enhancing consumer privacy. This might include a so-called “Do Not Track” mechanism that would block advertising or data collection through the mandatory reengineering of web browsers.

 JFB

Florida Bill Would Bar Doctors From Asking Patient or Family About Guns in Home

Fla. State Rep. Jason Brodeur has introduced H.B. 155, which provides:

1)(a) A verbal or written inquiry by a public or private physician, nurse, or other medical staff person regarding the ownership of a firearm by a patient or the family of a patient or the presence of a firearm in a private home or other domicile of a patient or the family of a patient violates the privacy of the patient or the patient's family members, respectively.
(b) A public or private physician, nurse, or other medical staff person may not condition receipt of medical treatment or medical care on a person's willingness or refusal to disclose personal and private information unrelated to medical treatment  in violation of an individual's privacy as specified in this section.
(c) A public or private physician, nurse, or other medical staff person may not enter any intentionally, accidentally, or  inadvertently disclosed information concerning firearms into any record, whether written or electronic, or disclose such 43 information to any other source.

A violation would be a third degree felony and could be punished with a fine “of not more than $5 million if the court determines that the person knew or reasonably should have known that the conduct was unlawful.” As the Palm Beach Post reports, the NRA has identified the bill a priority item on its agenda for this Florida legislative session. The legislative proposal would clearly invite a strong challenge as an unconstitutional prior restraint if enacted.

JFB

Hattiesburg TV Station Challenges Youth Court Ban on Showing Video of Alleged Beating at Juvenile Detention Facility

The AP (via the First Amendment Center) reports that a Mississippi TV station is asking the state Supreme Court to overturn a local Youth Court order barring the broadcast of video of guards’ allegedly abusive treatment of youths at a juvenile detention facility. In a ruling that the station contends is an unconstitutional prior restraint, the Youth Court has concluded that the broadcast would violate the privacy of the juveniles filmed, but the station argues that showing the film would serve the public interest in ensuring the proper operation of the facility.

JFB

Internet Freedom Act Seeks to Curtail FCC Authority

The First Amendment Center notes that Rep. Marsha Blackburn, R-Tenn., has introduced H.R.96, the “Internet Freedom Act". An apparent response to recent FCC net neutrality initiatives, the bill provides that the FCC “shall not propose, promulgate, or issue any regulations regarding the Internet or IP-enabled services,” but provides that this limitation of FCC authority would not apply to regulations the agency deems necessary for national security, public safety, or law enforcement purposes. The bill specifies that it would not have the effect of repealing or superceding regulations in effect at the time of its enactment.    

JFB

 

The Offensive Internet – New from Harvard University Press

 
The Legal Theory Blog offers as recommended reading The Offensive Internet: Speech, Privacy, and Reputation, edited by Saul Levmore & Martha C. Nussbaum.  Harvard University Press provides this description of its contents:

The Internet has been romanticized as a zone of freedom. The alluring combination of sophisticated technology with low barriers to entry and instantaneous outreach to millions of users has mesmerized libertarians and communitarians alike. Lawmakers have joined the celebration, passing the Communications Decency Act, which enables Internet Service Providers to allow unregulated discourse without danger of liability, all in the name of enhancing freedom of speech. But an unregulated Internet is a breeding ground for offensive conduct.

At last we have a book that begins to focus on abuses made possible by anonymity, freedom from liability, and lack of oversight. The distinguished scholars assembled in this volume, drawn from law and philosophy, connect the absence of legal oversight with harassment and discrimination. Questioning the simplistic notion that abusive speech and mobocracy are the inevitable outcomes of new technology, they argue that current misuse is the outgrowth of social, technological, and legal choices. Seeing this clearly will help us to be better informed about our options.

In a field still dominated by a frontier perspective, this book has the potential to be a real game changer. Armed with example after example of harassment in Internet chat rooms and forums, the authors detail some of the vile and hateful speech that the current combination of law and technology has bred. The facts are then treated to analysis and policy prescriptions. Read this book and you will never again see the Internet through rose-colored glasses.

JFB

Vermont Accepts 2d Circuit Ruling, Abandons Vanity Plate Policy Prohibiting References to Religion or Deity

In October, the Second Circuit ruled in Byrne v. Rutledge that Vermont’s policy prohibiting the issuance of vanity plates with references to a religion or deity violated the First Amendment by enforcing viewpoint discrimination.   The plaintiff had sought to obtain a plate saying “JN36TN," a reference to the Biblical passage John 3:16.  As reported by the AP via How Appealing, the state has announced it will not appeal the decision, acknowledging that it was unlikely the Second Circuit’s decision would be overruled.   

JFB

 

 

2d Circuit: Maker of Documentary on Chevron Oil Drilling in Ecuador Not Covered by Journalist Privilege

As reported in the New York Times, filmmaker Joe Berlinger, will have to turn over footage from his 2009 documentary “Crude” to the Chevron Corporation as part of discovery in foreign legal proceedings arising out of allegations that drilling by a company now owned by Chevron polluted a local  water supply in Ecuador. The panel ruling sustained the district court’s production order, finding that it was based on the reasonable conclusion that “Berlinger’s making of the film was solicited by the plaintiffs for the purpose of telling their story, and that changes to the film were made at their instance.” Consequently the filmmaker had not shown that he “collected information for the purpose of independent reporting and commentary” as would be required to invoke the journalist privilege recognized by the Circuit.

JFB