First Amendment Law Prof Blog

Expression and Repression Around the Globe: Protesters Face Police Force in Iraq, Egypt, and China

Security forces in Iraq have arrested several hundred journalists, artists, and lawyers who participated in “Day of Rage” demonstrations Friday. Seeking reform of government operations, tens of thousands of protesters rallied peacefully around the country but faced displays of force by government officers trying to break up the gatherings. The government appears to be targeting for arrest persons perceived to be intellectuals likely ot influence public opinion.       

In Egypt, protesters seeking more democratic reforms and campaigning for the removal of the prime minister and his cabinet were beaten and tasered by police in Tahrir Square Saturday night but returned to the square the next morning. 

In China's major cities, police were deployed in large numbers to squelch any possible protest gatherings.  In  Shanghai, police used a water truck to disperse several hundred people attempting to gather in a public square.  As part of its effort to fend off any nascent protest movement, the Chinese government has arrested activists and human rights lawyers and has blocked the use of Internet search terms including "Egypt," "Tunisia," “jasmine,” and U.S. Ambassador Jon Huntsman Jr.'s Chinese name.

JFB

Post Citizens United: FEC Deadlock May Thwart Disclosure of Independent Advocacy Groups' Ad Financing

The LA Times reports that the six member Federal Election Commission is split 3-3 on whether independent (not formally affiliated with a candidate or party) political groups should be required to disclose who has donated more than $1000 to an “electioneering communications” fund.  The disclosure provision survived the Citizens United ruling last year and was cited by Justice Kennedy as part of what would ensure that an informed electorate could counter-act any potential for corporate-funded political ads to distort the election process. 

Independent groups, such as the Chamber of Commerce, now argue to the FEC that the disclosure rule should not apply to their donors because the donors do not give funds for the specific purpose of funding the electioneering communications.  Republican members of the FEC agree with this interpretation of the rule’s reach and note that Congress failed to pass the DISCLOSE Act, which would have explicitly required independent groups to name large donors whose funds are used to pay for political ads.      

JFB      

 

Campaign Finance and the Constitutional Status of Media Corporations

Earlier this month Adam Liptak of the New York Times examined a particular puzzle within the debate about campaign finance and the rights of corporations: can a critic of extending First Amendment rights to corporations defend treating media corporations differently than other kinds of businesses engaging in speech about candidates or campaigns?  
JFB 

First Amendment Scholarship Update

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

1. Richard Schragger (University of Virginia School of Law), The Relative Irrelevance of the Establishment Clause, 89 Texas L. Rev. 583 (2011). The abstract states:

Despite the heated legal, political, and scholarly battles that rage around the Court’s Establishment Clause decisions, this Article contends that these decisions are actually quite tangential to the maintenance of the nonestablishment norm. The Article argues, first, that a pervasive feature of modern Establishment Clause jurisprudence is that the Court’s stated doctrine is underenforced; second, that there are some legitimate reasons for that underenforcement; and, third, that the Court’s decisions serve mostly as political markers that leave much pertinent activity wholly unregulated by law. By focusing not on what the Court is doing but on what it concertedly seeks not to do, the Article hopes to illuminate the relationship between law and politics in an era in which religious–political movements have become increasingly sophisticated. In light of these movements, the important question for scholars of the Establishment Clause is how the Court “manages establishment” in the political/legal culture outside constitutional law. The Article assesses four potential answers to this question and discusses a number of recent Establishment Clause decisions, paying special attention to disputes about the Ten Commandments, the Pledge of Allegiance, and faith-based initiatives. The Article concludes by suggesting how a self-conscious Supreme Court Justice might help maintain the constitutional settlement of nonestablishment despite the Court’s limited doctrinal influence.

2. Daniela Cojocaru , Stefan Cojocaru (Alexandru Ioan Cuza UNiversity, Department of Sociology and Social Work) and Antonio Sandu (Lumen Association), The Role of Religion in the System of Social and Medical Services in Post-Communism Romania, published in Journal for the Study of Religions and Ideologies, Vol. 10, No. 28, pp. 65-83, Spring 2011. The abstract states:

This article aims to examine the phenomenon of social services in post-1989 Romania, underscoring the role of the religious factor in the establishment and operation of nongovernmental organisations active in the area of family and child protection/child welfare. The results are based on empirical data collected from interviews with representatives of NGOs in Iaşi that correspond to the profile of faith-based organisations and which have been included in the list of accredited providers of social services. We used an assessment grid that allowed us to highlight a number of specific characteristics to the Romanian space, found among faith-based organisations involved in the development of social and medical services. One direction that Romanian organisation took was to dilute in time the religious message and to secularise their practices under the influence of the Orthodox majority, as well as following the requirements imposed by secular donors and especially by public ones. The channelling of private resources donated to religious cults predominantly towards building and restoring establishments (churches, monasteries) rather than towards the development of social faith-based programmes aimed at vulnerable populations has caused in faith-based organisations a high level of dependency on secular donors. The process in which the practices and the discourse are secularised is accompanied by a trend towards the fragmentation of the Christian-based civil society.

3. Adam Epstein (Central Michigan University), Religion and Sports in the Undergraduate Classroom: A Surefire Way to Spark Student Interest, 21  Southern L. J. 133(2011). The abstract states:

The purpose of this pedagogical piece is to present an opportunity to discuss religion in the context of sports as a means of generating classroom discussion and prompting extra-curricular reading on topics pertaining to business law primarily at the undergraduate level. A discussion of religion and sports provides one avenue to pursue exploration of the free exercise and establishment clauses. Examples are provided in the intercollegiate, interscholastic and professional sport contexts. The article also provides a brief primer on the First Amendment generally, outlining some of the classic Supreme Court cases. The article then discusses a series of cases involving the interface between religion and sports. As the piece demonstrates, many questions remain unclearly answered, and changing views and perceptions related to religious tolerance continue to present challenges for communities and the courts.

4.Cassie Ambutter, Latter-Day Sex: Religion, Marriage and Queer Politics, presented at Western Political Science Association 2011 Annual Meeting . The abstract states:

This paper, as part of my dissertation more broadly, will examine the 2008 raid on the Fundamentalist Latter-day Saints through the lens of queer and feminist theories as well as through notions of religious freedom. Using ethnography as a vehicle to complement and buttress my theoretical interventions, I will demonstrate that Texas’s antagonistic relationship to the polygamous Mormon families of Eldorado compels us to reimagine polygamy in terms of queerness. In order to make this analytical move, I will explore the complex relationship between religious duty, bodily comportment, and normative expectations for sexuality. Ultimately, the raid poses a challenge to the nature and reach of religious freedom – particularly what may be an incommensurable relationship between religious freedom and religious/sexual difference.

5. Andrew Flores and Karthick Ramakrishnan, Restrictive Attitudes Towards Same-Sex Marriage: Race, Religion, and the Gender Gap, presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

In the aftermath of Proposition 8--a California constitutional amendment that repealed the rights of gay and lesbian couples to marry--news articles and scholars alike vigorously debated the differences in support for the measure across racial and ethnic groups. In particular, there was considerable controversy over whether African Americans had much higher levels of support for Proposition 8 than other similarly situated groups. Lost amidst this dominant framing around race was the intersectional roles by gender and race We make use of two cross-national datasets to show that gender plays a different role in shaping gay marriage attitudes among Latinos than among whites and African Americans.

6. Cory Gooding, Roots, Rhythm and Religion: The Politics of Context, Identity and Culture Among Afro-Caribbeans in New York and Los Angeles, presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

Through a comparative study of Jamaican and Trinidadian immigrants in New York and Los Angeles, this project uses social context to develop the way political science discusses identity, culture and political engagement. It examines the role that 3 specific elements of social context (religion, media and cultural style) plays in the development of political frames, racial/ethnic identity and political engagement. In addition to examining the impact of social context on traditional engagement it also investigates how cultural practices operate as forms of political engagement as well. In an effort to ground the theoretical approach of this paper with respect to racial/ethnic identity in current events it also examines the campaign of Barack Obama and the role that identity played in Afro-Caribbean political engagement.

7. (A.J.) Adam Smith (Northern Arizona University - Department of Political Science), Saving Home: The Defense of an Illusion Through Race and Religion, presented at Western Political Science Association 2011 Annual Meeting .The abstract states:

This paper looks at the historical development of the concept of home in the United States. Though the lenses of race and religion, citizens have created a history to defend a conception of home which rarely ever existed. In the actions of individuals, and in the actions of institutions, the political development of the United States can be seen as a fight to save home.

8. Ted G. Jelen (University of Nevada, Las Vegas), Science, Skepticism, and Faith: Public Attitudes Toward Religion and Science, presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

In this paper, I will estimate the dimensionality of public attitudes toward science, and assess the effects of religious belief, membership, and participation on the structure and distribution of attitudes toward science. In so doing, I hope to address the question of whether, and to what extent, public skepticism about scientific knowledge is based on religion. I will then consider the joint effects of attitudes toward science and religion on evolution and climate change. The paper will be based primarily on data from the 2008 General Social Survey.

9. Muhammad Ahmed Qadri and Muhammad Abdullah Qadri , Terrorism: A Serious Threat to Transnational Borders, Equity and Social Justice. A Case Study of Pakistan, presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

Terrorism: A serious threat to Transnational Borders, Equity and Social Justice. A case study of Pakistan.The paper is an attempt to identify the serious challenges of extremism against the world peace order.Pakistan which came into being on the name of religion has become victim of Religion.The religio-Political elite of Pakisan have established interest articulated groups using the name of Islam for their own interets.Keeping facts in view we find out that the contemporary situation arose due to illegitimate support from external forces to the militant religious groups to control world Politics.  A neautral study reveals that Pakistan is a serious victim of extremist groups. More than 7000 people have been killed in suicide bombing and attacks. The paper will suggest practical measures which would help UNO,NATO Forces and other International powers to restore world peace and beat the contemporary extremist behaviour.  It would also suggest practical means to establish Transnational Borders, Equity and Social Justice.The Paper will also deal with the concept of Equity and Social Justice in Pakistan.The author of the paper believes that Social injustice and negation of equity have created serious problems in Pakistan.

10. Valerie Martinez-Ebers, What Would Jesus Do? The Differential Influence of Religion on the Political Attitudes and Behaviors of Latinos and African Americans, presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

To what extent does religous beliefs, religiosity and church affiliation help to explain the policy preferences and political behabior of Latinos and African Americans? Using the 2008 ANES oversamples of African Americams and Latinos, this paper will attempt to answer this question. Group consciousness, support for social justice issues and level of civic and electoral participation are the dependent variables.

11. Jason E. Whitehead, Form Over Substance: A Jurisprudential Critique of the Religious Right, presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

Religious conservatives usually criticize liberal judicial decisions – especially those related to moral issues like homosexuality and abortion – on Positivist or Formalist grounds rather than on Natural-Law grounds. While some take the position that such decisions are substantively immoral, most argue that they are procedurally illegitimate because judges are incorrectly interpreting constitutional rules and/or giving insufficient weight to the wishes of democratic majorities. I analyze the arguments made by conservatives on both sides, paying special attention to the work of Robert Bork and Robert George, arguing that the standard religious conservative critique is inconsistent. Its Positivist-Formalist orientation entails an agnostic attitude toward the substantive content of law, requiring only that judges use the right formula and follow the established rules, however disagreeable the rules may be. But this contradicts the larger religious conservative aim of defending and advancing Judeo-Christian ethical norms as the basis of legal legitimacy. This contradiction is understandable because it allows conservatives to take the politically popular position of defending democratic majorities against judicial activism while avoiding the less popular and more arduous task of defending substantive norms. However, it too often causes the critique to degenerate into political opportunism and demagoguery.

12. Ali A. Valenzuela (Stanford University - Department of Political Science), From the Pulpit or in the Pews: Religious Beliefs, Clergy Messages and Social Influence in Latino Politics , presented at Western Political Science Association 2011 Annual Meeting.  The abstract states:

Research on white Americans finds an emergent political divide, between those with traditional beliefs who worship regularly, and those who are less orthodox and seldom worship. In the last 15 years, religious adherents have adopted more conservative values and shown greater support for Republican candidates. Research on African Americans draws the opposite conclusion: religiosity is associated with stronger racial identity and greater Democratic support. Existing research does not examine the effects of a religious-secular divide among Latinos, so the current study asks about the influence of religious beliefs, clergy messages and social contact on party ID, vote choice and linked fate. Testing a theory of social and political information exposure, the empirical analysis gives special attention to the mediating effects of regular worship on Latino identity choice. Two national surveys are used to show that Latino party identification is determined by factors from both the pulpit and the pews, but such influence is most consistent among regular churchgoers with the greatest exposure to religious beliefs and messages from clergy. Narratives of the processes under study are also gathered from three Catholic parishes selected based on variation in neighborhood racial composition. Using a comparative research design, the focus on neighborhood variation facilitates deeper understanding of the role that ethnic and racial networks plays in the link between religion and politics.

13. Will Umphres, Justice is a Bad Idea for Christians: The Othering of Religious Identity in Liberal Deliberation, presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

Religious groups are in danger of becoming the other of liberal democracies at exactly the moment when rapprochement between them seems vital to domestic and international stability. In this paper, I argue that liberal political discourse must make room for explicit appeals to religious reasons or risk alienating and potentially radicalizing religious groups. Drawing on various conceptions of public reason and deliberative democracy, I show that the establishment of trust and solidarity are central to liberalism. In order to fulfill these normative goals, political deliberation must be a space in which citizens can express their basic religious commitments. For, deliberation is in part a process in which individuals express their identities and respond to the identities of others. Excluding religious commitments from political discourse turns politics into a painful, alienating experience, undermining trust and solidarity. Hearing and valuing these commitments is therefore central to the success of the liberal project.

14. Rachel Stein, Moral Disgust or Religious Conviction: Opposition to Gay Rights in America, presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

The language of contamination and pollution has long been used to ostracize members of out-groups, and the situation of gay and lesbian individuals in the United States today is no exception. Scholars have argued that this form of body politics is extremely powerful because it draws on feeling of disgust. Recent work in moral psychology has found that disgust is a moral sentiment. In other words, what people find disgusting, they are inclined to condemn. Research has also found that moral judgment of sexual behaviors in particular is driven by disgust. In contrast, the conventional wisdom holds that opposition to gay rights policies, such as gay marriage, gay adoption, and ending “don’t ask, don’t tell,� is primarily driven by religious beliefs. In this paper, we provide the first rigorous empirical test of the hypothesis that feelings of disgust, as opposed to the conventional explanation, influence opposition to these policies. To do so, we present results from a nationally representative survey that includes measures of support for gay rights policies, relevant religious beliefs, and novel measures of disgust sensitivity that have been developed by moral psychologists. We also present results from a experiment comparing responses to questions that refer to 'gays and lesbians versus questions that refer to 'homosexuals.' This analysis provides new insight into the body politics strategy of gay rights opponents, and why that strategy has often proved to be effective.

15. Thomas Barnebeck Andersen , Jeanet Bentzen , Carl-Johan Lars Dalgaard, and Paul Richard Sharp  (University of Copenhagen - Department of Economics , University of Copenhagen - Department of Economics), Religious Orders and Growth Through Cultural Change in Pre-Industrial England. The abstract states:

We advance the hypothesis that cultural values such as high work ethic and thrift, “the Protestant ethic” according to MaxWeber, may have been diffused long before the Reformation, thereby importantly affecting the pre-industrial growth record. The source of pre-Reformation Protestant ethic, according to the proposed theory, was the Catholic Order of Cistercians. Using county-level data for England we find empirically that the frequency of Cistercian monasteries influenced county-level comparative development until 1801; that is, long after the Dissolution of the Monasteries. The pre-industrial development of England may thus have been propelled by a process of growth through cultural change.

16. Yun Wang, The Other Kind of Human Rights: Christian Transnational Religious Advocacy Networks and Religious Freedom in China, presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

This project studies transnational Christian networks who try to promote religious freedom in China through both strategic and opportunity perspectives. What makes an advocacy group more successful than others? Does the strategy they used play a role in their success, or is it more about the opportunities permitted by the sociopolitical conditions? Human rights groups should declare victory over religious freedom in China, since Hu Jintao government has passed a new religious law and swear to protect “every citizen’s legal rights to religious beliefs.� However, foreign religious organizations still are not welcomed in China, some church leaders are harassed or arrested, and cross-national collaboration, no matter it is donation or preaches led by outside believers, remains as a taboo. It is possible that central government opens the door of legal protection to avoid direct contention with foreign human rights advocacies, but its enforcement agencies tighten the control over actual religious activities. Yet, progress promoted by alternative strategies does happen. Small groups of Christian missionaries go to China and disregard what the government has forbidden them to do. In some cities, they organize, collaborate and participate in local religious gatherings without the interference of government. How can they do so? This paper presents the initial results from the field work about Christian transnational networks conducted in California, Taiwan, and China.

17. Giorgi Areshidze,The Paradox of Religious Toleration in American Liberalism and European Multiculturalism, presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

Should the failure of European multiculturalism and Rawlsian political liberalism to answer the challenge of illiberal religion be a cause for dismay for liberals today? Or does liberalism, especially in its American variety, posses theoretical and practical resources that are not exhausted by political liberalism that should give us hope as we confront an increasingly globalized and ethnically and religiously divided Western world? This article traces the deficiencies of the EU “multicultural model� of integration and “the politics of difference� to the theory of Rawlsian political liberalism, which leaves citizens’ religious identities intact in order to create a politics that is more genuinely protective of individual and group autonomy, and therefore more inclusive and just, than its Enlightenment predecessor. I then turn to early modern Enlightenment strategies for political reform of religion, focusing on the Hobbesian model of state church establishment and the Lockean model of free exercise. Both of these models can be distinguished from the Rawlsian theory of neutrality as well as the late European model of multiculturalism, since they are alternative institutional strategies for the common Enlightenment goal of pushing religious believers to accept liberal political principles.

18. Linda Veazey, Women’s Rights and the Christian Right: How Attitudes About Gender Rights Can Shed Light on the Legal Worldview of Evangelical and Fundamentalist Christians, presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

Messages about women’s rights are part of Evangelical and Fundamentalist attitudes towards law and politics. Evangelical and Fundamentalist women, as well as men proclaim these positions about both domestic gender rights concerns and women’s rights abroad. Gender issues are often part of larger arguments in American politics about judicial nominations, federal and state statutes, and international treaties. Yet, their attitudes about gender rights and law are often viewed disconnected from their larger worldview, or viewed from perspectives that do not take into account how attitudes towards gender rights fit into their larger worldview. What is the narrative about law and gender within Evangelical and Fundamentalist communities? More simply, what are gender rights or the rights of women? What is the source and how are these rights protected? Investigating these questions about court-centered activism and gender can shed light on wider attitudes towards law, justice, and the role of the state in a multicultural, multi-religious society. Thus, in this paper, I will analyze religious-right literature, websites, and public statements of Evangelical and Fundamentalist elites as they relate to gender rights and concerns, pointing the way toward a more ethnographic approach, which seeks to engage Evangelicals and Fundamentalists in conversations regarding their overall approach to women’s rights, courts, and the rule of law.

19. Danielle Keats Citron  (University of Maryland School of Law) and Helen L. Norton (University of Colorado School of Law), Intermediaries and Hate Speech: Fostering Digital Citizenship for Our Information Age, 91 B.U. L. Rev. --- (2011).The abstract states:

No longer confined to isolated corners of the web, cyber hate now enjoys a major presence on popular social media sites. The Facebook group “Kill a Jew Day,” for instance, acquired thousands of friends within days of its formation, while YouTube has hosted videos with names like “How to Kill Beaners,” “Execute the Gays,” and “Murder Muslim Scum.” The mainstreaming of cyber hate has the troubling potential to shape public expectations of online discourse.

Internet intermediaries have the freedom and influence to seize this defining moment in cyber hate’s history. We believe that a thoughtful and nuanced intermediary-based approach to hate speech can foster respectful online discourse without suppressing valuable expression. To this end, we urge intermediaries to help address cyber hate by adopting accessible and transparent policies that educate users about their rights and responsibilities as digital citizens. Intermediaries’ options include challenging hateful speech by responding with counter-speech and empowering community members to enforce norms of digital citizenship.

20. David S. Ardia (Berkman Center for Internet & Society), Government Speech and Online Forums: First Amendment Limitations on Moderating Public Discourse on Government Websites, forthcoming in Brigham Young University Law Review. The abstract states:

Over the past decade, governments at all levels have moved with alacrity to engage with their citizens online, launching thousands of government websites, including blogs, discussion boards, and other online platforms that solicit public participation. When government engages with the public online, however, it raises difficult questions about the limits of the government’s ability to control its own message, to subsidize the speech of others, and to restrict private parties from speaking.  
Courts typically apply the First Amendment’s public forum doctrine to answer these questions, but that doctrine is ill-suited to deal with online forums because it has not kept pace with the changes in public discourse in our increasingly networked world. To overcome the public forum doctrine’s shortcomings, courts are looking to the recently minted government speech doctrine to deal with conflicts over speech on government websites. Unlike the public forum doctrine, which is premised on the idea that all citizens have an equal right to speak in the public forum and a right to equal treatment from the government, the government speech doctrine is based on the assumption that government not only can, but must, privilege some viewpoints over others.

The government speech doctrine, however, suffers from a disturbing circularity. The Supreme Court’s current test, which turns on whether the government "effectively controlled" the message being conveyed, simply requires that the government be effective in doing the very things that are the subject of a plaintiff’s First Amendment challenge. Indeed, the more aggressive the government is in controlling speech, the greater will be its entitlement to claim special treatment under the government speech doctrine.

Echoing Justice Souter’s concurrence in Pleasant Grove City v. Summum, I argue that the government speech doctrine should be grounded in meaningful governmental accountability. That is to say, the doctrine should ensure that recipients of government speech have enough information about the government’s expressive activities that they will be capable of holding the government accountable when it overreaches. Fortunately, the government already has access to the tools it needs to be transparent about its expressive activities online. The real question is whether the government has the will to do so and whether the law provides sufficient incentives when that will is lacking.

21. Erica Rachel Goldberg, Amending Christian Legal Society v. Martinez: Protecting Expressive Association as an Independent Right in a Limited Public Forum , in 16 Tex. J. Civ. Lib. & Civ. Rts ---- (2011). The abstract states:

With limited acknowledgment of its dramatically different approach to expressive association, the Supreme Court in Christian Legal Society v. Martinez upheld a public university’s policy requiring all student organizations to give voting membership to all interested students, even if a student’s beliefs conflict with the expressive purpose of the organization. In concluding that this "all-comers" policy was both reasonable and viewpoint neutral, the Court analyzed a student organization’s First Amendment expressive association claim using the test for speech restrictions on government property constituting a limited public forum. This article argues that the Court’s merging of protections for speech and expressive association in a limited public forum is inadequate to protect associational rights that lie at the core of the First Amendment. In Part I, I highlight the Supreme Court’s prior expressive association cases, and in Part II, I explore the ways in which Martinez departed from the approach of these cases. Part III argues that the viewpoint neutrality test governing restrictions affecting speech in a limited public forum does not translate well as a means to safeguard associational rights, and proposes new tests for analyzing expressive association in a limited public forum. Finally, Part IV contends that, in a limited public forum, expressive association should protect an organization’s right to select members on the basis of voluntarily selected beliefs or conduct, but not based on immutable characteristics or status. I explore this status/belief distinction and address two opposing yet compelling criticisms of the distinction - that it does not sufficiently protect minority groups from discrimination, and, on the other hand, that it does not sufficiently protect expressive association.

22. Ryan J. Walsh (University of Chicago Law School), Comment -Painting on a Canvas of Skin: Tattooing and the First Amendment , 78 U. Chi. L. Rev. --- (2011).  The abstract states:

Introduction: "I impose my own set of aesthetics and value judgments as to what beauty is and what it isn’t in the context of the image that [customers] choose," one tattooist says. "I [ ] manifest those qualities in a language." That language, spoken fluently by an increasing number of self-described tattoo "artists," consists in unique images, honed techniques, innovative color schemes, and other artistic methods or themes. As the tattooists themselves describe it, their work is nothing short of pure art - as expressive as Da Vinci’s Mona Lisa or T.S. Eliot’s The Four Quartets. Yet, unlike Da Vinci’s canvas or Eliot’s verses, the First Amendment status of so-called "skin art" has yet to be determined. Is tattooing protected speech?

The First Amendment, applied to the states through the Fourteenth Amendment, forbids laws "abridging the freedom of speech." The Supreme Court has interpreted this language to protect not only basic political expression, but also nontraditional communicative media (such as dance, film, and music ) as well as expressive conduct (such as burning an American flag ). The Court has also declared - with little explanation - that the First Amendment protects "artistic expression." Nonetheless, precedent leaves a fundamental question unanswered: What is artistic expression?

Left to wrestle with this difficult question on their own, a couple circuits have seen fit to fashion their own approaches. In White v City of Sparks, the Ninth Circuit announced a "self-expression" test: an artistic work constitutes protected speech only if it is "an artist’s self-expression" - of which "originality" is one mark (among possible others). Building on the "self-expression" standard for purposes of evaluating allegedly expressive commercial goods, the Second Circuit, in Mastrovincenzo v. New York, announced a "predominantly expressive purpose" standard: if the objective physical features of the item, viewed on its face, serve a predominantly expressive end, and the artist intended to convey a message, the item and the activity that produced it receive protection.

In this context of the still-undefined nature of protected artistic expression generally, courts have split over one allegedly artistic medium in particular: tattooing. Is it pure speech or not speech at all - a mere commercial activity? Alternatively, is it expressive or non-expressive conduct? As theoretical as these questions may seem, fitting tattooing into the right First Amendment category is no mere exercise in academic abstraction: indeed, the validity of city and state tattooing regulations of all types - outright bans, zoning ordinances, and licensing restrictions - hinges on the inquiry. If, for instance, tattooing is neither expressive conduct nor pure speech and instead a purely commercial activity, the state may regulate it with a relatively free hand - so long as its regulations are supported by a legitimate government interest. If instead it is expressive conduct (that is, it satisfies the test in Spence v. Washington ), restrictions must pass a stricter test, which the Court announced in United States v. O’Brien, requiring - among other things - the furtherance of "an important or substantial governmental interest." Lastly, if tattooing is pure speech, it merits near full protection and is thus subject only to content-neutral “reasonable time, place, or manner” restrictions.

The split over tattooing encompasses roughly three positions. In a line of cases beginning with Yurkew v Sinclair, several state and federal district courts have held that (1) for purposes of determining its constitutional status, tattooing is an activity to be assessed without regard to the alleged speech it produces (the tattooed image); (2) thus viewed, the process of tattooing is conduct; and, (3) as conduct, tattooing is not sufficiently imbued with communication to merit protection. Meanwhile, two Massachusetts courts, while assenting to the first two positions, disagree with the third, concluding instead that tattooing is sufficiently communicative to constitute expressive conduct. Recently, in Anderson v City of Hermosa Beach, the Ninth Circuit adopted an entirely new position, challenging all three of Yurkew’s conclusions, as well one of the Massachusetts courts’. First, it rejected as absurd the attempt, for purposes of a First Amendment analysis, to divorce an activity that directly produces alleged speech from the alleged speech itself. Second, emphasizing the technical and expressive characteristics of modern tattooing (the “skill, artistry, and care that modern tattooists have demonstrated”), it held that modern tattoos and, by extension, modern tattooing - rather than constituting mere or expressive conduct - are pure speech.

Critiquing aspects of all three positions, this Comment argues that, to best assess the constitutional status of any given tattooist’s work, courts ought to apply a case-by-case self-expression standard. The courts in this split err in two main respects. First, as Anderson shows, and an examination of Supreme Court precedent corroborates, a proper First Amendment analysis of an allegedly expressive activity ought not to separate the process of creating the expression from the final product - the expression itself - to determine whether the activity merits protection. For this reason, both Yurkew and its progeny as well as the Massachusetts courts are mistaken to evaluate tattooing as a type of conduct. Second, all three positions, in concluding that tattooing writ large is either categorically protected or unprotected, wrongly presuppose that American tattooing takes only one general form, either meriting protection or not. To the contrary, expert opinion suggests that modern practice of tattooing takes two general forms, one best characterized as craft-like, old-school "commercial" tattooing and the other best identified as a "fine art" approach. Further, evidence suggests that, whereas commercial tattooing is not expressive, fine art tattooing is. When evaluating challenges to regulations on tattooing, then, courts ought to distinguish between the two, as well as between the hard cases that fall in the middle. But how? Instead of taking the Anderson-Yurkew categorical approach, courts should - on a case-by-case basis - ask whether each claimant’s form of tattooing amounts to artistic self-expression. To perform this analysis, courts should ask - in the tradition of Mastovincenzo and White - whether the claimant-tattooist has objectively manifested an intent to engage in artistic self-expression. Since this test focuses mainly on the objective features of the allegedly artistic speech at issue, it works to deny constitutional protection to those tattooists whose motives are purely commercial (and not at all expressive), while granting protection to those tattooists who conceive of their work as aesthetically communicative.

This Comment comprises three parts. Part I, after first briefly noting the types of tattooing regulations in dispute, provides background on relevant First Amendment doctrine, focusing mainly on the speech-versus-conduct distinction, the Supreme Court’s approach to the visual arts, and the subsequent tests adopted by two circuit courts to evaluate the First Amendment status of different forms of alleged artistic expression. Part II then turns to the split over tattooing, analyzing the three different positions courts have taken. Finding fault with parts of all three approaches, Part III advances a solution. Courts ought to recognize that contemporary American tattooing takes two forms: the still-dominant "commercial" style and the "fine art" approach. As the Comment shows, the latter is a form of pure speech, but the former is neither pure speech nor expressive conduct. To discern the First Amendment status of a given tattoo artist’s methods, then, courts ought to perform, on a case-by-case basis, a self-expression analysis centered on the question whether the claimant-tattooist has objectively manifested an intent to engage in artistic self-expression.

23. Roger Coffin (University of Delaware), A Responsibility to Speak: Citizens United, Corporate Governance and Managing Risks. The abstract states:

Corporations have the right, under the United States Supreme Court decision Citizens United v. FEC, to make independent political expenditures in federal elections. Most public corporations are subject to some level of federal or state regulation of their business practices. Because regulations are the by-product of the political process, shouldn’t public companies exercise their right to influence the process by which regulations are created? This paper analyzes Citizens United from a corporate governance perspective and asserts that corporate political speech is a necessary fact of life for many public corporations. Additionally, the paper adds a new set of empirical findings to the literature which demonstrates that the decision in Citizens United and the associated right to speech does not have an adverse effect on the market value of firms. The paper further argues that Citizens United was based on assumptions regarding corporate governance’s ability to protect shareholders who may have opposing political beliefs. These assumptions do not hold true in the modern corporate marketplace. I argue that the personal political predictions of shareholders are largely irrelevant to the larger mission of the corporation - which is to enhance long-term shareholder financial value. Shareholders should not, as has been proposed, be given express rights to approve or disapprove political speech. To grant such rights would unnecessarily encroach into legitimate business judgment by adding another layer of shareholder sovereignty in addition to those granted by recent Congressional and regulatory action. Even assuming that corporations do not possess all of the attributes of natural persons for whom political speech rights were designed, corporate participation in the political process should be welcomed by shareholders who have economic incentives to gain, and by the public, who will benefit from the enrichment of political discourse.

24. Alan D. Miller (University of Haifa - Faculty of Law), The Impossibility of Community Standards.The abstract states:

Under a doctrine introduced by the United States Supreme Court in Roth v. United States (1957), works deemed “obscene” according to “contemporary community standards” are not protected by the freedoms of speech and of the press enshrined in the U.S. Constitution. This paper describes a new theory of community standards. In this theory, both individual and community standards are taken to be judgments — categorizations of possible works as either “obscene” or “not obscene.” Community standards are derived systematically from the individual standards. Every possible method of deriving the community standards is considered. The methods are they evaluated according to normative criteria which require that the community standard (a) preserve unanimous agreements about the entire standard, (b) become more permissive when all individuals become more permissive, and (c) not discriminate, ex ante, between individuals or between works. Unanimity Rule is shown to uniquely satisfy these normative criteria. Unanimity Rule is clearly not the rule envisioned by the courts — an individual could not be found guilty unless every single individual in the community considered the work obscene. The consequence is that any community standard used in practice must violate one of these normative criteria.

 25. Doowan Lee, Between Institutional Politics an Insurgencies: Evolution of Social Movements , presented at Western Political Science Association 2011 Annual Meeting. The abstract states:

I build a theory of movement cycles that explains under what conditions social movements either become radical insurgencies or are incorporated into institutional politics. Synthesizing from various social movement frameworks, I theorize that radicalization of social movements is heavily conditioned by three key variables: repression type, protest tactics, and the emergent pattern of interaction between the two. The type of repression against an early movement heavily conditions whether the movement diffuses along preexisting networks or fractures internally. At the same time, subsequent protest tactics can either legitimate or delegitimate the initial repression used by the state. This paper finds that governments can address emergent movements to increase the prospects of stable political competition. For instance, even radical movements can be induced to use institutional channels by selective accommodation and repression. It may be costly in the short run, results from the model suggest that suppressing early movements often radicalizes activists and increases public support for militant means of protest.

JFB

Louisiana Student Hailed for Seeking to Ensure Science Education Includes Evolution

Zack Kopplin, a senior at Baton Rouge Magnet High School, has been waging a campaign to ensure Louisiana schools provide access to accurate information about evolution. Heralded as a “profile in (evolutionary) courage” on the Huffington Post , the student has participated in a successful lobbying effort aimed at persuading  the state’s Board of Elementary and Secondary Education resist pressure to purchase high school biology texts that would not address evolution.  Kopplin has also been lobbying for the repeal of the 2008 Louisiana Science Education Act, which provides:      

B(1)The State Board of Elementary and Secondary Education, upon request of a city, parish, or other local public school board, shall allow and  assist teachers, principals, and other school administrators to create and foster an environment within public elementary and secondary schools that promotes critical thinking skills, logical analysis, and open and objective discussion of scientific theories being studied including, but not limited to, evolution, the origins of life, global warming, and human cloning.

(2) Such assistance shall include support and guidance for teachers regarding effective ways to help students understand, analyze, critique, and objectively review scientific theories being studied, including those enumerated in Paragraph (1) of this Subsection.

C. A teacher shall teach the material presented in the standard textbook supplied by the school system and thereafter may use supplemental textbooks and other instructional materials to help students understand, analyze, critique, and review scientific theories in an objective manner, as permitted by the city, parish, or other local public school board.

D. This Section shall not be construed to promote any religious doctrine, promote discrimination for or against a particular set of religious beliefs, or promote discrimination for or against religion or nonreligion.

The law has been criticized by science educators as a thinly disguised vehicle for the interjection of creationism into the science curriculum, the latest chapter in an anti-evolution campaign in the state.  In Edwards v. Aguillard, 482 U.S. 578 (1986), the U.S. Supreme Court invalidated the state’s Balanced Treatment Act, concluding:

[The Act] advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety. The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose.

JFB

Tenn. School District Pulls Acclaimed AIDS Memoir from Middle School Library after Parent Complaint, Revises Library Book Removal Policy

As reported in the Tennessean, after receiving a parent’s complaint seeking the removal of  “Borrowed Time: An AIDS Memoir” from a middle school library, the Cheatham County, Tennessee School Board pulled the book from the shelves pending a committee review of the volume. The review resulted in the book being placed in a restricted area of the library. The parent had cited the book’s language and sexual content as the basis for the complaint.  “Borrowed Time” by Paul Monette was nominated for the 1988 National Book Critics Circle Award and recounts the two final years of the author’s relationship with Roger Horwitz, who died of AIDS in 1986. 

The incident prompted the school board to alter its book removal policy to authorize the emergency removal of a challenged item pending committee review of the book. The new policy reduces the amount of time the committee has to evaluate a challenged book, shortening the review period from 15 working days to 48 hours.

JFB

Suit Alleges FBI Surveillance of California Mosques Violated Worshippers' FIrst Amendment Rights

Yesterday Council on American-Islamic Relations (CAIR) and the ACLU of Southern California announced the filing of a class action suit against the FBI and seven of its employees, including Director Robert Mueller. The suit alleges that the FBI violated Muslim worshippers’ First Amendment rights when the agency used an informant to infiltrate several southern California mosques and collect personal information on hundreds of innocent Muslim Americans targeted for surveillance based only on their religion. The complaint further states:

This dragnet investigation did not result in even a single conviction related to counterterrorism. This is unsurprising, because the FBI did not gather the information based on suspicion of criminal activity, instead it gathered the information simply because the targets were Muslim. ...

By targeting Muslims in the Orange County and Los Angeles areas for surveillance because of their religion and religious practice, the FBI’s operation not only undermined the trust between law enforcement and the Southern California Muslim communities, it also violated the Constitution’s fundamental guarantee of government neutrality toward all religions.

The complaint seeks an order requiring the federal government to destroy the information collected by the informant as well as damages for those monitored. The Christian Science Monitor, the Washington Post,  and the LATimes provide further coverage of the filing of  the suit.

JFB  

 

Cert Denials This Week in First Amendment Cases

Tuesday the Supreme Court declined to take certiorari in Coyote Publishing Inc. v. Masto, a challenge to a Ninth Circuit ruling upholding Nevada laws banning newspaper ad for legal brothels. The Court also rejected a cert petition filed in McCreary County, Ky, et al. v. ACLU in which two Kentucky counties had argued that they should now be allowed to post the Ten Commandments within multiple document displays in local government buildings despite a long history of unconstitutional motivation for the displays, a history chronicled in the Court’s 2005 McCreary County ruling.

JFB 

Federal Judge Refuses to Order Kings County Bus System to Run Ads with Message "Israeli War Crimes: Your Tax Dollars at Work"

Last month the Seattle Mideast Awareness Campaign (SeaMAC), represented by the ACLU, filed suit against King County, Washington, alleging that the county’s decision to refuse to run a bus ad with the message "Israeli War Crimes: Your Tax Dollars at Work"  violated  SeaMAC’s First Amendment rights.  SeaMAC, which characterizes the ad as conveying an educational message critical of U.S. Mideast policy, submitted the ad to the county last fall. The ad was originally accepted and was scheduled to appear on local buses on December 27.   However, after receiving numerous complaints about the ad in advance of its appearance, the county notified SeaMAC that the ad would not be run.  SeaMAC maintains that other ads presenting controversial, non-commercial content have previously appeared on buses. Prior ads have, for example, addressed the Israeli- Palestinian conflict in Gaza and have expressed pro- atheism messages. 

On Friday, U.S. District Court Judge Richard Jones declined SeaMAC’s request for a preliminary injunction ordering the county to run the ads.  As summarized in an AP report in the Seattle Times, the judge noted that county officials had received threats of violence and disruption of bus service. The judge concluded that safety concerns provided a reasonable basis for county officials’ decision to reject the ad and the record demonstrated that the officials did not act based on hostility to SeaMAC’s viewpoint. Responding to the ruling, the ACLU of Washington announced that it would continue its legal challenge to the county’s rejection of the ads.  The AP reports that the county has decided to revise its bus advertising policy in the wake of the controversy and will no longer accept non-commercial ads. 

JFB

First Amendment Scholarship Update

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

1. Anthony E. Varona (American University - Washington College of Law), Taking Initiatives: Reconciling Race, Religion, Media and Democracy in the Quest for Marriage Equality, 19 Colum. J. Gender & L. 805 (2010).  The abstract states:

Election Days 2008 and 2009 were disappointing ones for advocates of equal rights for lesbian, gay, bisexual and transgender (LGBT) Americans, especially supporters of marriage equality. In this comprehensive article, I identity and examine five interrelated tactical lessons the LGBT movement can glean from these recent defeats. Following is the roadmap I provide at the end of the Introduction to the article, describing the five subsections devoted to these individual lessons:
Section I, following the Introduction, provides an overview of what occurred in the various statewide ballot initiative battles in 2008 and 2009 and then describes the preliminary analyses of the reasons for the gay community’s defeats. Section II presents five interrelated lessons that the movement should glean from these ballot initiative losses, which, if used to inform pro-gay campaign strategies going forward, should result in better outcomes at the polls. First, I discuss how and why the LGBT rights movement must remedy its failures by incorporating diversity – especially racial, ethnic and class diversity – in its institutional leadership. Second, I propose that the LGBT rights movement engage religious arguments and communities much more substantively and authentically, instead of ceding religious arguments and circumventing faith communities in favor of what may appear to be a more hospitable, putatively secular ground. Third, I examine the need for more LGBT people of color (POC) to share our identities and family lives with other members of our respective POC communities.   Fourth, I discuss the need for better and more proactive movement strategies to contend with the new atomized digital media environment, which poses difficult challenges in countering political misinformation, responding to anti-gay defamation and promoting public education. In the fifth part of this Section, I attempt to show that although the gay community’s travails in the recent ballot initiative battles illustrate both the dangers of and constitutional infirmity inherent in direct democracy, more strategic and proactive engagement by the LGBT rights movement in direct democratic lawmaking may actually accelerate progress towards marriage equality, both by building favorable support for plebiscitary campaigns and by catalyzing support for legislative and judicial advances. Finally, Section III concludes by discussing the importance of patience and perspective in the movement for LGBT equality.

2. Mateusz Radomyski (VU University Amsterdam),  Medical Oaths: When Religion and Ethics Collide,  Published in Amsterdam Law Forum, Vol. 3, No. 1, 2011. The abstract states:

The main aim of this paper is to analyse the relationship between different medical oaths, particularly the certain moral standard attached to them, and the concept of patient's autonomy with regard to refusal of medical treatment on the grounds of religious beliefs. This topic appears particularly important nowadays, in the light of criticism by medical ethicists of the paternalistic model of doctor-patient relationship and the desired autonomous approach to patients. In the first section of this paper, medical oaths of prime importance, their history and functions are presented. Furthermore, arguments supporting and opposing the ethical professional standard which they promote are discussed. The second section discusses the principle of patient's consent to medical treatment. In the third section, the problem of patients who refuse medical treatment on the basis of religious grounds is examined. Lastly, the paper discusses practical moral problems that physicians may face when a patient refuses medical treatment.

3. Trudy Rushforth, Religious Exercise in Prison - A Guide for Prison Officials. The abstract states:

The Religious Land Use and Institutionalized Persons Act (RLUIPA) prohibits any prison receiving federal funds from substantially burdening the religious exercise of its prisoners unless the burden survives strict scrutiny. This paper will discuss specific accommodations that a prisoner might request and propose solutions that will preserve the inmate’s right to free exercise of religion while still maintaining prison security. Specific accommodations discussed will be: dress and grooming accommodations, dietary accommodations, and ceremonial accommodations. This paper can serve as a guide to prison officials when they are faced with an accommodation request.

4. Jeffrey Shulman (Georgetown University Law Center), Introduction to 'Who Owns the Soul of the Child?: Religious Parenting Rights and the Enfranchisement of the Child'. The abstract states:

At common law, and (for most of the nation's history) under state statutory regimes, the authority of the parent to direct the child's upbringing was a matter of duty, not right, and chief among parental obligations was the duty to provide the child with a suitable education. It has long been a legal commonplace that at common law the parent had a "sacred right" to the custody of his or her child, that the parent's right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on behalf of parental rights. What is deeply rooted in our nation's history - and the custody case law of the nineteenth century and early twentieth century makes this abundantly clear - is the notion that the state only entrusts the parent with educational custody of the child, and does so only as long as the parent meets his or her duty to serve the best interests of the child. Indeed, it was the child who had an absolute right: the right to proper parental care, including the right to an education that would prepare the child for eventual enfranchisement from what Blackstone called the "empire of the father." If by "fundamental" we designate rights with a deep historical pedigree, the right to parent free of state interference cannot be numbered among them. This is the subject of Chapter 1.

Chapter 2 reconsiders the Supreme Court's seminal cases establishing a parent's right to educate. Meyer and Pierce have been made to state broad claims about the fundamental nature of parental rights, but, in fact, they stand for a much more modest proposition: that the state does not have exclusive authority over the child's education; and, more particularly, that the state cannot prohibit parents from teaching their children subject matter outside the scope of the state-mandated curriculum. Rhetoric aside, Meyer and Pierce are hardly a charter of fundamental parental rights. But that is what the Supreme Court made of these cases in Wisconsin v. Yoder. In this chapter, I also examine how the idiosyncratic facts of Yoder encouraged the Supreme Court to abandon well established law governing the right of religious parenting and to formulate a harm standard ill-adapted to the existential intricacies of family disputes.

Chapter 3 suggests that courts should look with skepticism at any authority that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. While a full treatment of these cases lies outside the scope of the article, this part suggests that courts should look with skepticism at any educational program - whether the program is imposed by the parent or by the state - that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. If the courts were to apply the principle that children may not be denied exposure to the full measure of intellectual incitement that should be the heart (and soul) of every young person's education, they would more consistently, and correctly, sort out the competing claims of parents and public school officials to make educational choices on behalf of the child. The work of preparing the child to make free and independent choices is entrusted to the parent, and it is a challenging and somber task, for it means allowing children (in fact, it means helping children) to leave their homes and leave behind the ways of their parents. Or, at least, it means giving children the choice to do so. It is little wonder, then, that we would want to transform this sacred trust into a sacred right, a right that effectively allows parents to shield their children from choice and its attendant responsibilities. But the law of parent-child relations protects children from this sort of "protection," ensuring that children receive a truly public education.

Physically and intellectually transporting the child across the boundaries of home and community, a public education can bring its students a much needed respite from the ideological solipsism of the enclosed family. Of course, public education comes at a cost. It disrupts the intramural transmission of values from parent to child. It threatens to dismantle a familiar world by introducing the child to multiple sources of authority - and to the possibility that a choice must be made among them. Indeed, the open world of the public school should challenge the transmission of any closed set of values. Unless children are to live under "a perpetual childhood of prescription," they must be exposed to the dust and heat of the race - intellectually, morally, spiritually. A public education is the engine by which children are exposed to "the great sphere" that is their world and legacy. It is their means of escape from, or free commitment to, the social group in which they were born. It is their best guarantee of an open future.

In Chapter IV, I argue that the Yoder standard fails to protect the child from harms routinely addressed in cases involving only secular matters. More specifically, I am concerned with the issue of parental alienation, the (sometimes subtle, often not) ways in which one parent may seek to turn a child against the other parent. Sensitive to the need to nurture a child's relationship with both parents, and averse to any behavior that causes alienation, custody courts commonly prohibit each parent from making disparaging remarks about the other, and they do so without subjecting such measures to the heightened scrutiny demanded by a showing of harm. Penalties for subverting this judicially mandated obligation of tolerance can be severe, including modification of custody arrangements. But toleration gives way to individual rights where disparagement is religiously motivated. The harms to the child do not change. Indeed, the kind of disparagement that bears the imprimatur of religious doctrine may be far more terrifying than a parent's personal verbal rampages. What changes is the deference courts show to the parent's claim of constitutional rights. Under the harm standard, most courts treat religious disparagement as though it were mere abstract advocacy, ignoring the coercive nature of religious beliefs (children are caught between competing moral commands) and the coercive familial context in which such speech occurs (children are caught between competing parental commands).

Judicial non-intervention amounts to little more than a way of not dealing with such cases - or, at least, of not dealing with such cases until it is too late for the child. To honor its fiduciary obligation to the child, the court must be able to consider any practice that could affect the general welfare of the child and to insist upon an appropriate form of civil discourse when religious views diverge. Where exposure to intolerance is not in the best interests of the child, the welfare of the child requires that those responsible for their upbringing observe, or be made to observe, the boundaries of socially appropriate behavior. The duty to respect those with whom one disagrees is a civic obligation for which parents must prepare their children. It is the necessary concomitant of the parenting right. Religious belief should not absolve parents of this obligation, and disparagement born of religious conviction should not get a constitutional pass from judicial scrutiny.

Finally, Chapter 5 looks at how courts respond to claims of psychologically injurious religious indoctrination.

5. Tommaso Pavone (University of Michigan at Ann Arbor - Gerald R. Ford School of Public Policy), Redefining Religious Neutrality: Lautsi vs. Italy and the European Court of Human Rights.  The abstract states:

In 2001, Finnish-born Soile Lautsi, an Italian citizen and atheist, sued the Italian school that her two children attended for violating their right to religious freedom by displaying crucifixes in its classrooms. The case was thrown out by Italian administrative courts and the Italian Constitutional Court, so in 2006 Lautsi appealed the decision to the European Court of Human Rights (ECHR) in Strasbourg. The case became known as Lautsi vs. Italy, and in 2009, the Court ruled in favor of Lautsi, arguing that the display of crucifixes in Italian classrooms violates religious and educational freedoms guaranteed in Article 9 of the European Convention on Human Rights. The ruling caused an uproar in the Italian political sphere, and so Italy has proceeded to appeal the decision to the ECHR’s 17-member grand chamber. Regardless of the final outcome, the Lautsi vs. Italy case outlines the ECHR's expanding role in ensuring religious neutrality on the part of European states. If the Court rules against Italy in the appeal it would lay the foundation for an unprecedented enlargement of its jurisprudence in cases of religious neutrality.

6. Melissa Crouch (University of Melbourne), Compromising Religious Tolerance in Indonesia? The Ahmadiyah Controversy, forthcoming in Kultur. The abstract states:

Indonesia has a long history of religious tolerance. Ahmadiyah, a minority religious community that identifies with Islam, has existed peacefully in Indonesia for over 80 years. The Ahmadiyah community in Indonesia, however, is increasingly under threat of attack by radical Islamic groups, and faces demands for further restrictions by the state from conservative Islamic groups. This article explores both the past and present predicament of Ahmadiyah in Indonesia, and questions whether suggestions by the Minister of Religion to ban Ahmadiyh would compromise Indonesia's strong tradition of religious tolerance.

7. Monica Youn (New York University (NYU) - Brennan Center for Justice), First Amendment Fault Lines and the Citizens United Decision, 5 Harv. L. & Pol’y Rev. --- (2011). The abstract states:

This Article argues that in answering the recurring central question of campaign finance doctrine – the question of whether political spending can be treated as speech and, if so, when and to what degree – the Court has employed two competing accounts of First Amendment value. Under the first of these theories, which I call the volitional account, the source of First Amendment value is the volitional impulse of the spender: the spender voluntarily dedicates an expenditure to a particular expressive purpose, thus generating First Amendment value in that particular expenditure. Under the second theory, which I call the commodity account, the market is the source of First Amendment value, which is quantified externally through market measures, such as dollar value, rather than through such individualistic and subjective measures as volition or intensity.

Citizens United marks a new high point for the commodity account and, moreover, presents a major extension of that theory by setting forth a “source-blind” approach to the regulation of money in politics that forbids the state from differentiating among different sources of political spending. The source-blind approach adopted in Citizens United appears to be profoundly at odds with the volitional account of First Amendment value underlying much campaign finance doctrine – the volitional approach requires an inquiry into the degree to which a funding source can be deemed to advance the volitional impulse of the spender; the source-blind approach would seem to forbid such inquiry. This Article concludes by suggesting some of the destabilizing ramifications of this source-blind approach as a First Amendment theory that excludes any volitional considerations.

8. Ilya Shapiro and Nicholas M. Mosvick (Cato Institute), Stare Decisis after Citizens United: When Should Courts Overturn Precedent, 16 Nexus Journal of Law & Public Policy --- ( 2011). The abstract states:

Stare decisis is an important doctrine with deep roots in the common law. It "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U.S. 808, 827 (1991). Indeed, our interest in the law’s stability and predictability, and the reliance interests produced by judicial decisions, sometimes dictate that incorrect legal rulings be maintained - because the social disruptions from correction outweigh the benefits of reaching better decisions. Still, stare decisis is neither an "inexorable command," Lawrence v. Texas, 539 U.S. 558, 577 (2003), nor a "mechanical formula of adherence to the latest decision," Helvering v. Hallock, 309 U.S. 106, 119 (1940). Instead it is a prudential policy, one in which courts have to decide, based on factors such as the correctness, antiquity, and workability of the legal regime a precedent created, whether to overturn their earlier rulings. As Chief Justice Roberts put it in his Citizens United concurrence, "abrogating the errant precedent, rather than reaffirming or extending it, might better preserve the law’s coherence and curtail the precedent’s disruptive effects." 130 S. Ct. 876, 921 (2010) (Roberts, C.J., concurring). And so the Court in Citizens United found that both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. FEC, 540 U.S. 93 (2003), that relied on it were not worthy of preservation. They created an arbitrary and increasingly irrational campaign finance system that was an aberration of restrictions in a sea of protections for political speech.Moreover, then-Solicitor General Elena Kagan abandoned Austin’s speech-equality rationale during oral argument, undercutting any possible reliance interests. Only by overturning precedent could the Court contribute to the stable and orderly development of the law. This article will explain the role stare decisis played in Citizens United and build on the Chief Justice’s concurrence to describe the current state of the doctrine.

9. William M. Carter Jr. (Temple University - James E. Beasley School of Law), Affirmative Action as Government Speech. The abstract states:

This article seeks to transform how we think about “affirmative action.” The Supreme Court’s affirmative action jurisprudence appears to be a seamless whole, but it closer examination reveals important differences. Government race-consciousness sometimes grants a benefit to members of a minority group for remedial or diversifying purposes. But the government may also undertake remedial or diversifying race-conscious action without it resulting in unequal treatment or disadvantage to non-minorities. Under the Court’s current equal protection doctrine, both categories of cases are treated as presumptively unconstitutional. Race-consciousness itself has become a constitutional harm, regardless of tangible effects.

Prior scholarship has suggested that the “strict colorblindness” doctrine is best understood as the Court finding that race-conscious government action inflicts an expressive harm. This Article breaks new ground by arguing that functionally, the Court has come to view race-conscious government action as a form of prohibited government speech because it conflicts with the Court’s preferred message of post-racialism. In essence, the Court has decided that when the government takes such action, it is sending an impermissible message that race still matters in our society.

The Court’s colorblindness doctrine, which is premised on expressive harm, is fundamentally inconsistent with the rationales for the government speech doctrine under the First Amendment. As that doctrine recognizes, disagreement with the message sent by government action is not by itself sufficient to state a constitutional claim. Rather, such agreement is best addressed through the political process. This Article argues that the Court should use government speech principles to inform its equal protection analysis in cases where the predominant harm alleged is expressive in nature.

10. David Mead (University of East Anglia (UEA) - Norwich Law School), The Inter-Dependence of Public & Private in the Regulation of the Right of Peaceful Protest and the Problems Thrown Up by its Privatisation. The abstract states:

This article takes a more holistic perspective on the regulation of peaceful protest, one that is different to that usually taken in Anglo-American literature. It will show how private law rules are as much capable of affecting our ability to engage in protest as is public law regulation through the criminal law or the exercise of administrative discretion. That latter will only ever paint a partial and simplistic picture of how protest is regulated. The first part plots the ways in which private law rights and remedies can shape the exercise of the public right of peaceful protest. It comprises three aspects: the criminalisation of what are essentially private, civil law relationships; the differentiated reality of protest resulting from private law rules and concepts relating to land; and the privatisation of the regulation of protest by which the commercial targets of a protest utilise their own private law rights and remedies to control and constrain protesters. The second part considers some of the ramifications of this privatising of the regulation of protest. It concludes by locating these shifts within contemporary domestic politics and the ideological tensions that lie at the heart of the Conservative-LibDem government in the UK. The case will be made in this article that full restoration of the right to non-violent protest, as was pledged in the coalition agreement in May 2011, will require several contentious decisions to be taken.

JFB

Indiana Court of Appeals Rejects Establishment Clause Challenge to Felony Enhancement for Burglary of House of Worship

As noted by the Religion Clause Blog, last week in Burke v. State the Indiana Court of Appeals rejected the claim that the state’s heightened felony classification of a burglary of a building or structure used for religious worship violated the Establishment Clause.  The court substantiated its conclusion by cataloguing precedents rejecting similar challenges: 

Comparable Establishment Clause challenges in other jurisdictions have reached the same conclusion. See, e.g., United States v. Corum, 362 F.3d 489, 495-97 (8th Cir. 2004) (challenging federal Church Arson Prevention Act); Rice v. State, 754 So. 2d 881, 883-84 (Fla. Dist. Ct. App. 2000) (challenging state statute enhancing sentences for drug offenses committed within 1000 feet of a place of worship); Todd v. State, 643 So. 2d 625, 627-30 (Fla. Dist. Ct. App. 1994) (challenging state statute making it a felony to deface a place of worship); People v. Falbe, 727 N.E.2d 200, 206-09 (Ill. 2000)(challenging state statute enhancing sentences for drug offenses committed within 1000 feet of a place of worship); Dimaio v. State, 951 So. 2d 581, 587-88 (Miss. Ct. App. 2006) (challenging state statutes enhancing sentences for burglary or petit larceny committed in a place of worship); State v. Vogenthaler, 548 P.2d 112, 113-14 (N.M. Ct. App. 1976) (challenging state statute criminalizing desecration of a church); Maxwell v. State, 141 P.3d 564, 567-69 (Okla. Crim. App. 2006) (challenging state statute criminalizing maintaining a house of prostitution within 1000 feet of a church).

JFB

New Survey Looks at Attitudes Toward American Muslims

A new Public Religion Research Institute/Religion News Service survey examines Americans’ attitudes toward the American Muslim community.  The survey’s notable findings include:

A majority (56%) of Americans say that the upcoming Congressional hearings to investigate alleged extremism in the American Muslim community are a good idea, compared with 29% who say they are a bad idea.

More than 7-in-10 (72%) Americans believe Congress should investigate religious extremism anywhere it exists and not just focus on the American Muslim community.

A plurality (46%) of Americans believe that American Muslims have not done enough to oppose extremism in their communities.

Nearly half (49%) of Americans do not believe that Muslims in the U.S. have been unfairly targeted by law enforcement.

Only about 1-in-5 (22%) Americans believe that American Muslims want to establish Shari’a law as law of the land in the United States.

JFB
 

Early Reaction to HHS Revision of Health Care Providers' Conscience Protections

The New York Times and Washington Post provide more information about early reactions to the newly released rules.

JFB  

 

 

Gene Sharp and the Practical Architecture of Peaceful Protest Movements

This week the New York Times examined how the writings of American intellectual Gene Sharp on the tactics of nonviolent revolution have influenced activists involved in recent Mideast protests and other dissidents around the globe.  Sharp is the author of “From Dictatorship to Democracy” and “198 Methods of Nonviolent Action,” and he has just completed a new book, “Sharp’s Dictionary of Power and Struggle: Terminology of Civil Resistance in Conflicts,” which will be released by Oxford University Press this fall. Often identified as the father of the study of strategic nonviolent action, Sharp quickly emphasizes that the credit for the success of movements such as the Tahrir Square protest must ultimately rest with the people who turn planning guides into action.  

JFB
 

Libya Shuts Off Internet to Thwart Protests

Multiple news services are reporting that the Internet has been shut down in Libya. The LA Times gathers the reports on how the government is trying to block web communication in order to stem rising tide of protest activity.   

JFB

HHS Releases Regs on Conscience Protections for Federal Health Care Providers

Today HHS released the text of its Final Rule on the Enforcement of Federal Health Care Provider Conscience Protection Laws. On Mirror of Justice, Rob Vischer offers a quick preliminary assessment of how the new approach departs from positions enforced in the Bush Administration and how the terms of the new rule address claims about potential tension between conscience provisions and patient access concerns.

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“Don’t Filter Me” Initiative Seeks to Combat Schools’ Blocking of LGBT Web Content

The ACLU and Yale Law School have launched the “Don’t Filter Me” campaign, which aims to identify public schools that are blocking access to web content that addresses information of interest to LGBT students.  The ACLU website presents a form that students can use to report such blocking incidents as well as a video that instructs students how to learn whether their school is engaging in such Internet censorship. The ACLU announcement of the campaign states:

Students may not realize that it actually is illegal for their schools to block educational and political content geared toward the LGBT community,” said Joshua Block, staff attorney with the ACLU LGBT Project. “With this initiative, we hope to inform students of their rights, and let them know there is something they can do if their school is engaging in censorship.”

Programs that block all LGBT content violate First Amendment rights to free speech, as well as the Equal Access Act, which requires equal access to school resources for all extracurricular clubs, including gay-straight alliances and LGBT support groups. Some schools have improperly configured their web filters to block access to websites for LGBT rights organizations such as the GSA Network and the Gay, Lesbian and Straight Education Network, but allow access to sites that condemn homosexuality or urge LGBT people to try to change their sexual orientation, such as People Can Change. Some schools have also improperly configured their web filters to block news items pertaining to issues like “Don’t Ask, Don’t Tell” and deny access to support groups that could be vital for troubled LGBT youth who either don’t have access to the Internet at home, or do not feel safe accessing such information on their home computers.

“Schools harm students by denying them vital information,” said Block. “Schools not only have a legal duty to allow students access to these sites, it is also imperative that LGBT youth who are experiencing discrimination and bullying be able to access this information for their own safety.”

In 2009, a lawsuit filed by the ACLU against the Knox County, Tennessee Public Schools produced a settlement agreement providing that the school system would refrain from using software that blocked access to LGBT sites but would continue to use filtering software that blocked access to “sexually gratuitous content, personals and/or chat capabilities.”  The school district also reserved its right to take action to block content in order to comply with the Children’s Internet Protection Act and E-rate program conditions. The agreement did not concede that its prior conduct was unconstitutional.  Such blocking policies, however, are clearly vulnerable to challenge as viewpoint-based restrictions and as violations of the Equal Access Act.    

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Can You Dance at the Jefferson Memorial?

Shortly before midnight on April 12, 2008, Mary Oberwetter joined seventeen other people in an “expressive dance” inside the Jefferson Memorial. Wearing headphones, the members of the group danced to honor “individualist spirit for which Jefferson is known.” A Park Service officer told them to stop. Oberwetter refused and was arrested for violating the prohibition on demonstrations at the site. (The charges against Oberwetter were eventually dismissed, but she asserts that her arrest was unconstitutional.) 

Pressed by the appellate panel to describe how park police decide what kind of activity is permitted inside the Memorial, AUSA Roback responded that “casual” use of the space, such as conversations among friends and family or taking photos, was allowed. Judge Judith Rogers asked whether she could shift from foot to foot for 15 minutes, prompting the AUSA to respond that “[t]he government takes no position on Judge Rogers dancing.”  Undeterred by this attempt at levity, Judge Rogers continued to question how visitors could know what conduct would be permitted and, as recounted in Blog of the Legal Times, pressed unsuccessfully for an explanation of what guides the government’s discretionary determinations about what forms of movement are permissible or prohibited at the Memorial. 

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State Dept Announces Plan to Promote Internet Freedom

In a speech yesterday, Secretary of State Clinton announced that the State Department will finance the  dissemination of technologies that allow Internet users to circumvent government firewalls. The Department will also fund training for human rights workers on how to secure email messages and how to destroy incriminating cell phone data.  Secretary Clinton emphasized that she did not view possible legal action against Wikileaks, whose activities she characterized as involving the theft of government information, as inconsistent with the promotion of Internet freedom. The New York Times article on Clinton’s remarks notes that the State Department’s lack of prior effort in this area has drawn criticism from some Republican lawmakers, who now want to move responsibility for Internet freedom programs to the Broadcasting Board of Governors, the agency in charge of Voice of America and Radio Free Europe. 

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Technology Experts Explore How Egypt Managed to Turn Off the Internet

Puzzled by how the Mubarak regime managed to find what amounted to a “kill switch” for the Internet, Internet experts are examining how the government used multiple vulnerabilities in the country’s cyber-infrastructure to cut off connectivity for five days.  Notably, the Egyptian government owns the country’s dominant Internet carrier as do the governments in Syria, Jordan, Qatar, Oman, and Saudi Arabia. The New York Times looks at what is known about how the Egyptian shut-off was achieved and how such repressive action could be prevented in the future.

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