First Amendment Law Prof Blog

U.S. Commission on International Religious Freedom Issues 2011 Report

The United States Commission on International Religious Freedom has issued its Annual Report, which begins with this dedication:

The 2011 Annual Report is dedicated to the memory of Shahbaz Bhatti, the Pakistani Federal Minister for Minorities Affairs. Shahbaz was a courageous advocate for the religious freedoms of all Pakistanis, and he was assassinated on March 2 by the Pakistani
Taliban for those efforts.

The Report’s Overview states:

IRFA [International Religious Freedom Act] requires the President, who has delegated this authority to the Secretary of State, to designate as ―countries of particular concern,‖ or CPCs, those governments that have engaged in or tolerated ―particularly severe‖ violations of religious freedom. IRFA defines ―particularly severe‖ violations as ones that are ―systematic, ongoing, and egregious,‖ including acts such as torture, prolonged detention without charges, disappearances, or ―other flagrant denial[s] of the right to life, liberty, or the security of persons.‖ After a country is designated a CPC, the President is required by law to take one or more of the actions specified in IRFA, or to invoke a waiver if circumstances warrant.

For the 2011 Annual Report, USCIRF recommends that the Secretary of State designate the following 14 countries as CPCs: Burma, the Democratic People‘s Republic of Korea (North Korea), Egypt, Eritrea, Iran, Iraq, Nigeria, Pakistan, the People‘s Republic of China, Saudi Arabia, Sudan, Turkmenistan, Uzbekistan, and Vietnam.

As of the end of the reporting period on March 31, 2011, the Obama administration had yet to make any CPC designations since it came into office. Consequently, the designations of eight countries issued by then-Secretary of State Condoleezza Rice in January 2009 still stand: Burma, the Democratic People’s Republic of Korea (North Korea), Eritrea, Iran, the People‘s Republic of China, Saudi Arabia, Sudan, and
Uzbekistan. The State Department issued a 180-day waiver on taking any action against Uzbekistan and an indefinite waiver for Saudi Arabia, in both cases to ―further the purposes of the [International Religious Freedom] Act.‖ As a result of these waivers, the United States has not implemented any policy response to the particularly severe violations of religious freedom in either country. Moreover, because of the more-than-two-year gap in any designations, the Presidential actions that were levied against the
other current CPC designees have expired.

USCIRF also maintains a Watch List of countries where the serious violations of religious freedom engaged in or tolerated by the governments do not meet the CPC threshold but require close monitoring. The Watch List provides advance warning of negative trends that could develop into severe violations of religious freedom, thereby providing policymakers with the opportunity to engage early and increasing the likelihood of preventing or diminishing the violations. The following countries are on USCIRF‘s Watch List in this reporting period: Afghanistan, Belarus, Cuba, India, Indonesia, Laos, Russia, Somalia, Tajikistan, Turkey, and Venezuela.

JFB

New Bill Seeks to Ban Disruptive Activity at Soldiers’ Funerals

As noted on belief.net, Sen. Olympia Snowe has introduced S. 815, which would impose extensive restrictions as well as penalties on protest activities at military funerals in addition to those already imposed at Arlington and other military cemeteries. The bill identifies it purpose as follows:

to provide necessary and proper support for the recruitment and retention of the Armed Forces and militia employed in the service of the United States by protecting the dignity of the service of the members of such Forces and militia, and by protecting the privacy of their immediate family members and other attendees during funeral services for such members.

The bill then provides:

a) PROHIBITION.—For any funeral of a member or  former member of the Armed Forces that is not located at a cemetery under the control of the National Cemetery Administration or part of Arlington National Cemetery,  it shall be unlawful for any person to engage in an activity 2 during the period beginning 120 minutes before and ending 120 minutes after such funeral, any part of which activity—
(1)(A) takes place within the boundaries of the location of such funeral or takes place within 300 feet of the point of the intersection between—
(i) the boundary of the location of such funeral; and
(ii) a road, pathway, or other route of ingress to or egress from the location of such funeral; and
(B) includes any individual willfully making or assisting in the making of any noise or diversion that is not part of such funeral and that disturbs or tends to disturb the peace or good order of such funeral;
(2)(A) is within 500 feet of the boundary of the location of such funeral; and
(B) includes any individual willfully and without proper authorization impeding or tending to impede the access to or egress from such location or disrupting or tending to disrupt a funeral procession; or
(3) is within 500 feet of the boundary of the residence, home or domicile of any surviving member of the deceased person’s immediate family and includes any individual willfully making or assisting in the making of any noise or diversion that disturbs or tends to disturb the peace of the persons located such location.

Violators would be subject to fines and imprisonment of not more than two years and could be sued for damages. The bill would also establish a rebuttable presumption of willfulness if the violator “did not have reasonable grounds to believe, either from the attention or publicity sought by the violator or other circumstance, that the conduct of such violator or  person would not disturb or tend to disturb the peace or  good order of such funeral, impede or tend to impede the access to or egress from such funeral, disrupt or tend disrupt to a funeral procession, or disturb or tend to disturb the peace of any surviving member of the deceased person’s immediate family who may be found at the residence home or domicile of the deceased person’s immediate family on the date of the service or ceremony.”

 JFB

First Amendment Scholarship Update

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

1. Winnifred Fallers Sullivan (University at Buffalo Law School, SUNY), Joan’s Two Bodies: A Study in Political Anthropology, forthcoming in Social Research. The abstract states:

From all of the evidence, Joan of Arc was a conventionally pious Catholic and a patriotic Frenchman. Yet she was tried as a heretic and executed as a traitor. She unnerved both her friends and her enemies in the church and the state with her zeal. And she continues to fascinate. Almost six centuries after she was burned at the stake, her body still has life. This essay uses Kantorowicz’s reading of the historical development of the legal fiction of the king’s two bodies to re-focus our attention on what Joan of Arc accomplished as a political actor.

2. Kenneth L. Marcus (Institute for Jewish & Community Research),The New OCR Antisemitism Policy, 2
Journal for the Study of Antisemitism --- (2011). The abstract states:

The U.S. Department of Education's Office for Civil Rights (OCR) issued important policy guidance on bullying and harassment in October 2010. Although easily overlooked within this policy document, OCR's new guidance includes an important statement regarding OCR's position on anti-Semitism within federally funded educational programs and activities. In a nutshell, OCR has reinstated its long-disregarded 2004 policy, which had established that OCR would prosecute cases of harassment that are based on ethnic or ancestral discrimination, even though OCR lacks jurisdiction to address cases of purely religious discrimination. This conference paper, delivered at the inaugural symposium of the Journal for the Study of Antisemitism, argues that the Obama administration's October 2010 OCR anti-Semitism policy is a bold and important advance but that its success or failure in practice will depend on three questions: First, can OCR properly define anti-Semitism in practice, distinguishing it where appropriate from non-discriminatory criticism of the State of Israel? Second, can OCR properly respect the boundaries between harassment law and the Speech Clause of the First Amendment? Third, will Congress close the remaining loophole which permits discrimination against ethno-religious minorities if it is based exclusively on religion but not if it is based in part on ethnicity?

3. Jessica Knouse (University of Toledo - College of Law), Civil Marriage: Threat to Democracy, forthcoming in Michigan Journal of Gender & Law, 2012. The abstract states:

This article argues that civil marriage and democracy are inherently incompatible, whether they are assessed from a trans-cultural perspective that reduces them to their most universal aspects, or from a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than self-determining based on their own preferences; they effectively deprive their citizens of equality by establishing an insidious status hierarchy. While some deprivations of liberty and equality are justified – for example, those that promote social welfare – this article argues that those resulting from civil marriage are emphatically unjustified. The incompatibility that exists on a trans-cultural level is magnified when one considers civil marriage and democracy in their American elaborations. American civil marriage privileges not only sexual partners but also religious, patriarchal, and heterosexist ideologies, while American democracy presupposes respect for the Due Process, Equal Protection, Establishment, and Free Speech Clauses.

Even if American civil marriage could be stripped of its religious, patriarchal, and heterosexist aspects, it would remain an essentially undemocratic institution due to its inherent privileging of sexual partners. Inasmuch as American civil marriage cannot be democratized, this article argues that it should be abolished. It does not, however, propose (as some have) that American civil marriage be replaced by a relatively analogous “civil union” regime. It instead proposes that states remove themselves entirely from the business of affirming sexual partnerships. It explains that abolishing civil marriage would not only enhance American democracy, but also enable states to reallocate their resources away from sexual partners and toward individual providers. While sexual partners do not necessarily deserve government benefits, individuals who provide for dependents do – yet they are often denied such benefits under our current system. It should be emphasized that this article applies only to civil marriage, and does not propose to limit the ability of sexual partners to celebrate their commitments through private ceremonies or to dissolve their relationships according to the terms of private contracts.

4. Lorenzo Zucca (King's College London School of Law), Crucifix in the Classroom: The Grand Chamber decision in Lautsi, forthcoming in International Journal of Constitutional Law(2011). The abstract states:

This is a critical comment of the Crucifix in the Classroom case decided by the Grand Chamber of the European Court of Human Rights. The comment deals with three issues: the place of religious symbols in the public sphere, the meaning of secularism today, and the notion of respect owed to parental convictions in the educational context. Each one of these pose a big problem in relation to the place of religion in the European Constitutional landscape.

5. Joel A. Nichols (University of St. Thomas School of Law (MN)), Misunderstanding Marriage and Missing Religion, forthcoming in Michigan State Law Review. The abstract states:

This Essay is part of a Symposium that considered the virtues and vices of “E-marriage.” That idea, proposed by Professors Adam Candeub and Mae Kuykendall, seeks to “modernize marriage” by using a variation on older notions of proxy marriage, where a couple need not be physically present in order to be “married” in a state. In essence, the Symposium challenged the assumption of presence in a state dictating decision-making about who may marry and under what procedures (infused with an element, at times, of using electronic means to be “present” in another jurisdiction).

Candeub and Kuykendall’s article and, even more so, the Symposium are notable both for their assumption of state control and for their lack of discussion about religion. This Essay offers correctives to both matters. First, it is not possible to entertain a conversation about marriage without simultaneously having a discussion about its multi-faceted nature as pre-political, contractual, and covenantal. Marriage is not simply a creation of the state that can be altered at a whim, but a deeply personal matter imbued with community (and usually religious) overtones and involving the consent of two individuals.

Second, one must talk about religion when discussing marriage. Merely avoiding talking about religion and the important role it has played and continues to play will not advance the conversation about the nature of marriage. In fact, if one goal of the Candeub and Kuykendall proposal is to “lessen the impetus for protracted political, legal, and cultural struggles over same-sex marriage,” then omitting religion from the discussion will certainly consign the proposal to failure. It is likely, instead, that such a proposal will operate only as an accelerant in the ongoing social debate, for it will be viewed as a Trojan horse to promote same-sex marriage.

6. Iain T. Benson (University of the Free State - Faculty of Law, Department of Constitutional Law and Philosophy of Law), Unexamined Faiths and the Public Place of Religion: Emerging Insights from the Law . The abstract states:

The article examines certain key terms, such as “beliefs” and “faith” and how these are understood in relation to the public sphere. It examines some writings of recent popularist authors such as Richard Dawkins and Christopher Hitchens and is critical of the authors’ claims that they do not have faith or beliefs. Drawing on legal decisions in Canada and South Africa the article suggests that this sort of terminological looseness has legal and political implications when it comes to whether or not beliefs of all sorts (religious and non-religious) are treated fairly in the public sphere.

Arguing for a more diverse public sphere, the article cautions that law should give greater attention to principles of modus vivendi rather than “convergence” in which the attempt is to eradicate legally allowable positions from the public sphere and place those who hold them, and their communities, at a disadvantage. The law must not, by inflating its own role, put added pressures on the liberty that accommodation and subsidiarity require.

7. Tetty Havinga (Radboud University Nijmegen - Faculty of Law), Regulating Halal and Kosher Foods: Different Arrangements between State, Industry and Religious Actors , Erasmus Law Review, Vol. 3, No. 4, p. 241 (2010). The abstract states:

The Netherlands, like other Western countries, is a growing market for halal food products, that is, food products that comply with Islamic food laws. Halal food is becoming more visible as Dutch supermarkets, hospitals and schools decide to include halal food in their supply. This development has been criticised by animal protectionists and people who fear the ‘Islamisation’ of Dutch society. In this article, the regulation of halal food in the Netherlands is compared to the regulation of kosher food in the Netherlands and the United States. I will analyse the division of roles between state actors, the food industry, certification agencies and religious authorities in these regulatory arrangements. Contrary to expectation, the regulatory arrangements are rather state-centred in several US states (liberal market economy), whereas the Dutch corporatist welfare state plays a limited role by allowing religious slaughter and leaving the issue of halal and kosher certification entirely to commercial and religious organizations.

8. Michael Allsep (Air Command and Staff College),James E. Parco (Colorado College), and David A. Levy (US Air Force Academy, Dept of Management), E Pluribus Unum: Open Homosexuality and the Culture War within the US Armed Forces, Air and Space Power Journal, Vol. 5, No. 1, pp. 68-76( 2011). The abstract states:

On December 22, the Don't Ask, Don't Tell Repeal Act of 2010 was signed into law providing the the legal path to give equal protection to all service members regardless of sexual orientation. As was the case with race and gender, the further expansion of the military social aperture to accept homosexuals had the predominant impact of making the military more inclusive and giving equal social status to a previously disadvantaged class of citizens. Yet, there are reasons for concern in the United States. First, the integration of Blacks and women into the military was not accomplished without difficulty and remains unfinished today. While the military deserves credit for today‘s relatively healthy racial climate, the full integration of women remains a struggle. Second, the gap between the social and political values of the officer corps and those of the general population has widened to a disturbing extent, a fact aggravated by the belief that the military culture is not only separate but also superior. Finally, the extent to which this gap manifests itself in devoutly held religious beliefs that sometimes contradict emerging law and policy on sexual orientation presents a special problem because of faith‘s claim to the whole person. This essay addresses the possible impact of these challenges on a successful transition to a military that respects openly homosexual service members. (Downloadable document in Chinese.)

9. Brent R. Wilson, Is the Almighty Entitled to the Almighty Dollar of the Bankrupt? Free Exercise Issues in the Bankruptcy Code. The abstract states:

This paper will discuss the relationship between the Free Exercise Clause of the First Amendment and the Bankruptcy Code. There are several intersections of these seemingly distinct paths. This paper will address three of these crossroads as it pertains to what many religions find as a duty of its followers: tithing. Before addressing the bankruptcy issues, this paper will discuss the current application of the Free Exercise Clause and the application of Religious Freedom Restoration Act (“RFRA”). This paper will then introduce the areas in which the Bankruptcy Code and Free Exercise Clause intersect. In application of the Free Exercise Clause to the Bankruptcy Code, the first issue that will be addressed is fraudulent conveyance law both under the Bankruptcy Code and state law. Fraudulent transfer law, under state law and the Bankruptcy Code, allows creditors or trustees in bankruptcy to avoid any actual or constructive fraudulent transfer made by the debtor. Next, this paper will address the implications of a debtor’s Chapter 13 plan that requires the debtor to pay all of its “disposable income” to creditors and whether a debtor’s tithes should be excluded from this calculation. Finally, the issue of “charitable donations” allowed for in the means test will be addressed, and how these contributions may decrease the “current monthly income” of an individual allowing them access to Chapter 7 relief that would have been denied before these contributions were included in that calculation.

10. Melissa Crouch (University of Melbourne), Ahmadiyah in Indonesia: A History of Religious Tolerance Under Threat? , Alternative Law Journal, Vol. 36, No. 1, pp. 56-57(2011). The abstract states:

Indonesia is a multi-religious society with 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 there are ongoing demands from conservative Islamic groups that the state implement further legal restrictions on Ahmadis. An analysis of the recent decision of the Constitutional Court on what is known as Indonesia’s ‘Blasphemy Law’ will show the ongoing risk of Ahmadis being convicted for blasphemy, in addition to threats and violent attacks from radical Muslims.

11. Barry McDonald (Pepperdine University - School of Law), The Emerging Oversimplifications of the Government Speech Doctrine: From Substantive Content to a 'Jurisprudence of Labels' , Brigham Young University Law Review( 2010). The abstract states: 

In the past couple of decades, the U.S. Supreme Court has created, and continues to develop the contours of, what it refers to as the "government speech" doctrine. In its current incarnation, this doctrine holds that whenever it can be said that the government is engaging in speech, then it is not subject to First Amendment limitations with respect to the impact its actions or message may have on private speakers associated with that speech. Under some iterations of this doctrine, the Court has sanctioned the imposition of normally prohibited viewpoint restrictions on private speakers who accept government funds or on government employees speaking on matters of public concern, the compulsion of private party funding for speech with which it disagrees, and the selective exclusion of speakers from traditional public fora based on the content of the speakers’ message. In other words, the government speech doctrine has become a First Amendment "escape hatch" for placing substantial restrictions or burdens on private speakers that would otherwise be subject to serious judicial scrutiny and constitutional doubt if traditional free speech principles were applied to these situations.

In this Article, Professor McDonald begins by tracing the development of the government speech doctrine, focusing primarily on the Supreme Court cases of Abood v. Detroit Board of Education, Keller v. State Bar of California, Rust v. Sullivan, Board of Regents v. Southworth, and Johanns v. Livestock Marketing Association. Through this discussion, Professor McDonald demonstrates that the government speech doctrine has become unhinged from its original purpose of assisting in the ordering of governmental and private speech interests in cases where they intersect and conflict. Instead, he argues, the current Court has transformed the doctrine from a tool of substantive analysis into what Justice Breyer has recently termed "a jurisprudence of labels." Based on this view, whenever the Court can label a message involving the interaction of both government and private speakers as primarily that of the government, it washes its hands of assessing the constitutionality of the burdens placed on the interests of the private speakers. Professor McDonald contends that this modern development is misguided and urges a return to a formulation and application of the government speech doctrine as it was originally conceived.

12. Jerome A. Barron (George Washington University - Law School),The Pentagon Papers Case and the Wikileaks Controversy: National Security and the First Amendment, Wake Forest Journal of Law and Policy, 2011. The abstract states:

This Essay focuses on two clashes between national security and the First Amendment - the Pentagon Papers case and the WikiLeaks controversy. The two cases are hardly exact parallels. In the Pentagon Papers case the government was seeking to enjoin publications, asking for the imposition of a prior restraint. In that context, the press received the benefit of the "heavy presumption" against prior restraints. In the WikiLeaks controversy, because the discussion centers on the possibility of a criminal prosecution against Julian Assange, there is no equivalent "heavy presumption" against such a prosecution. In each case, the actual leaker was arrested, but, in the Pentagon Papers case, the publishers were not prosecuted. Assange has not yet been the subject of a U.S. criminal prosecution, but it may happen.

The newspaper press is obviously an addressee of the First Amendment, but an issue remains as to whether a website such as WikiLeaks is part of that press. Furthermore, Assange and WikiLeaks seek to challenge the very idea and practice of government secrets altogether. Such a claim is unlikely to receive full First Amendment protection.

13. Bradley Parker (CUNY School of Law), Note - Material Support and the First Amendment: Eliminating Terrorist Support by Punishing Those with No Intention to Support Terror?, 13 N.Y.C. L. Rev. 201 (2010). The abstract states:

In this Note, I argue that the present prohibition on providing material support to designated foreign terrorist organizations in the form of "expert advice and assistance" is misguided in the larger context of the interminable "War on Terror." The prohibition should be viewed as a violation of the First Amendment of the U.S. Constitution because the terrorism support statutes are not in accord with Scales v. United States and Brandenburg v. Ohio. The broad interpretation of material support prohibitions is a throwback to McCarthyism and essentially criminalizes the provision of advice only when offered to a certain disfavored political organization that has been designated by the Secretary of State as a Foreign Terrorist Organization ("FTO"). Finally, I argue that material support statutes should be narrowly drawn, requiring specific intent to further the illegal aims of an FTO in order to prevent misguided prosecutions against individuals who have no intention to support the illegal aims of a designated FTO. Focusing law enforcement resources on individuals who do not intend to support violent or even illegal acts of an organization ultimately makes us more vulnerable to future attacks.

14. Flora Sapio (Julius-Maximilians-Universität Würzburg), Legal Erosion and the Policing of Petitions. The abstract states:

Is the PRC legal system pursuing a trajectory towards liberalization, or has it embarked upon a different developmental path? To provide an answer to this question, comparisons of China with an ideal legal order have been considered less useful than approaches able to account for differences, seeming aberrations or twisted paths towards the rule of law. Besides, legal change has been seen driven by historical or institutional legacies.

This paper attempts to make sense of seemingly contrasting dynamics by bringing cross-fertilization between political science and law one step further. In this work, I conceive of the legal system as an entity composed by a multitude of legal and non-legal (political) institutions and organizations which are to a certain degree autonomous, and to a certain degree embedded in networks of communication, control or dependence. Any change in a given institution or organization will set in motion a chain of change which will propagate across the system or areas thereof. Outcomes will be neither regular nor predictable. To observers, at any of its states the system will seem balanced on a precarious equilibrium between progress towards the law and shifts away from the law. Holistic perspectives of the legal system are implicit in conceptions of the law as an agent of positive change. But, such perspectives have also a potential to account for the opposite development.

As an illustration of how legal change can set in motion a turn for worse, I develop an analytical tool I label ‘legal erosion’ and use it to observe political-legal responses to protests, with a narrow focus on protests by petitioners.

A progress towards ‘formal legality’ can be observed in this area too. Until 2003, protests by petitioners were managed through shelter and deportation (shourong qiansong). As this measure was abolished, the need to provide a renewed and different response to protests arose. But, the newer response to the policing of petitions was by no means more liberal than earlier ones. The practice to ‘pick up’ petitioners and bring them back, something that existed in parallel to shelter and deportation, became dominant and witnessed a process of legalization. By 2006, innovations by local organs and politicized interpretations of the law allowed to “attach” ‘retrieval’ to legislation on public security, and create a new class of minor offences related to petitioning. Significant continuities with the past could be observed at each stage of this process. The eventual result was a severe limitation of the right to petition, and the beginning of a vicious circle of politicization.

This article begins by arguing that it would be useful to build on existing (and implicit) conceptualizations of the legal system as a complex adaptive system, to examine systemic properties that induce shifts away from the law, while of course not neglecting the study of virtuous circles of liberalization. In the second paragraph, I elaborate a concept to enable analyses of the legal system’s resilience to perturbations. In the remaining part of the article I outline the adaptive process born out of changes in the means to govern petitioners. It is not clear that current models of institutional transformation can fully account for this development, as the “birth” of retrieval involved features of antithetical models of change.

15. Fabiana Velasques de Paula Machado (Inter-American Development Bank), Carlos Scartascini  (Research Department - Inter-American Development Bank), and Mariano Tommasi ( Universidad de San Andres, Department of Economics), Political Institutions and Street Protests in Latin America. The abstract states:

This paper argues that where institutions are strong, actors are more likely to participate in the political process through institutionalized arenas, while where they are weak, protests and other unconventional means of participation become more appealing. This relationship is explored empirically by combining country-level measures of institutional strength with individual-level information on protest participation in 17 Latin American countries. Evidence is found that weaker political institutions are associated with a higher propensity to use alternative means for expressing preferences, that is, to protest. Also found are interesting interactions between country-level institutional strength and some individual-level determinants of participation in protests.

16. Luis Carlos Jemio, Fernando Candia, and Jose Luis Evia, Reforms and Counter-Reforms in Bolivia. The abstract states:

This paper analyzes reforms and counter-reforms in Bolivia in recent decades and their effects on the policymaking process (PMP) and productivity. Bolivia’s PMP has shifted from a formal representative democracy to a “participative and direct type of democracy” where street protest and other non-conventional forms of political participation have become dominant. While reforms have increased productivity, they have failed to secure the political support necessary to assure long-term sustainability. In contrast, counter-reforms have so far enjoyed extensive political support, but productivity has stagnated since this process started, with declining economic growth and job creation—developments likely to undermine support for the counter-reform process. The document stresses the need to rebuild a consensus around a PMP capable of increasing productivity and employment creation while restoring social cohesion.

JFB

First Amendment Scholarship Update

Here is this week’s collection of newly available First Amendment scholarship: 

1. John Witte Jr. (Emory University School of Law} and Joel A. Nichols (Univ. of St. Thomas School of Law (MN)), Faith-Based Family Laws in Western Democracies? , published in  Fides et Libertas: The Journal of the International Religious Liberty Association, pp. 119-132 (2010). The abstract states:

Anglican Archbishop Rowan Williams set off an international firestorm on February 7, 2008 by suggesting that some “accommodation” of Muslim family law was “unavoidable” in England. His critics charged that England will be beset by “licensed polygamy,” barbaric procedures, and brutal violence against women if official sanction is given to shari’a courts. Case closed.

This case won’t stay closed for long, however. The Archbishop was not calling for the establishment of a parallel system of independent Muslim courts in England, and certainly not the direct enforcement of shari’a by English civil courts. He was, instead, raising a whole series of hard but “unavoidable” questions about marital, cultural, and religious identity and practice in Western democratic societies committed to human rights for all.

This Essay discusses those hard questions, with a particular emphasis on Muslim communities and family law. It briefly reviews the history of the law of marriage and religion in the West, including many changes in the last half century. The Essay details responses to such recent changes, especially responses that call for some recognition or enforcement of religious law. The last section of the Essay suggests ways forward by comparing claims for accommodation for Muslim family law to earlier accommodation claims by Jewish communities, and by drawing analogies to compromises between the civil state and religion regarding education.

2. Nicholas Aroney (University of Queensland - TC Beirne School of Law) and Rex Ahdar (University of Otago - Faculty of Law),The Topography of Shari’a in the Western Political Landscape , published in SHARI'A IN THE WEST, Rex Ahdar and Nicholas Aroney (eds), Oxford: Oxford University Press (2010). The abstract states:

In February 2008, the Archbishop of Canterbury, Dr Rowan Williams, delivered a public lecture in which he stated that it ‘seem[ed] unavoidable’ that certain aspects of Islamic law (Shari’a) would be recognized and incorporated into British law. The comments provoked outrage from sections of the public who viewed any recognition of Shari’a law in Britain with alarm. In July 2008 Lord Phillips, Lord Chief Justice of England and Wales, weighed into the fray. He praised the Archbishop’s speech and gave qualified support for Shari’a principles to govern certain family and civil disputes.

This chapter is the introduction to a collection of essays written by distinguished and prominent scholars addressing the question of the accommodation of Shari’a within the legal systems of the liberal-democratic West. The matters raised in the two 2008 lectures provide a springboard for discussion, criticism, and debate on both the specific question of religious/cultural accommodation by the law and the wider issues of multiculturalism, equality before the law, and the desirability of parallel jurisdictions for particular faith communities.

Leading scholars from a range of countries and academic disciplines, and representing different political viewpoints and faith traditions, explore the complex issues surrounding the legal recognition of religious faith in a multicultural society.

The volume aims to stimulate further thought on a complex issue, and to open up new pathways for policymakers and civil society institutions grappling with the relationship between Shari’a and Western legal institutions.

3. Nathan B. Oman (William & Mary Law School),'I Will Give Unto You My Law': Section 42 as a Legal Text and the Paradoxes of Divine Law, forthcoming in EMBRACING THE LAW: ESSAYS ON DOCTRINE & COVENANTS SECTION, Jeremiah John, ed., p. 42, Salt Press. The abstract states:

The idea of divine law occupies an uneasy place in the modern world. In most modern legal systems, divine law is relegated to liminal spaces unoccupied by the authority of secular law. Hence, divine law is generally seen as legitimately speaking only to private, moral, or religious issues. For believers, however, this truncating of divine law's authority presents the problem of how to reconcile the primacy of God's authority with the practical dominance of secular over sacred law. This paper explores how Mormonism has responded to this problem by providing a close reading of section 42 of the Doctrine & Covenants, a passage of Mormon scripture written in the 1830s. It argues that ultimately Mormonism presents a paradoxical conception of divine law that both insists on its own ultimate authority while simultaneously sacralizing its own retreat before secular power. The resulting conception has proven spiritually unsatisfying for some, but has allowed Mormonism to successfully negotiate the tensions created by the idea of divine law in the modern world.

4. Richard E. Matland and Gunes Murat Tezcur (Loyola University Chicago),Women as Candidates: An Experimental Study in Turkey, forthcoming in Politics & Gender. The abstract states:

Patriarchal practices and understandings, especially based on religious teachings, are seen as serious hindrances to women’s access to political power. This obstacle often is seen as greatest in countries where Islam is the dominant religion. This study offers preliminary insights regarding how the gender of political candidates affects voting perceptions and behavior in Turkey, one of the few democratic countries with a Muslim majority population. We designed an experiment where university students read speeches by candidates from the two major parties (AKP and CHP). We randomly varied the sex of the candidates. Respondents report their perceptions of candidate’s characteristics and policy competencies and their willingness to vote for a candidate. We find candidate sex influences evaluations of areas of competence and perceptions of individual characteristics. It has almost no impact, however, on voting decisions. When it comes to voting, party support and policy stands are vastly more important than candidate sex, even for religiously observant voters.

5. William P. Umphres (University of Virginia - Woodrow Wilson Department of Politics), ‘Justice is a Bad Idea for Christians’: Religious Identity in Political Deliberation. 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.

6. Jerry Z. Park (Baylor University),'To Whom Much Has Been Given...' Religious Capital and Community Voluntarism Among Churchgoing Protestants. The abstract states:  ),

Research on volunteering behavior has consistently found a positive relationship between religion and volunteering. Using a sample of churchgoing Protestants (N=1,738) from the Religious Identity and Influence Survey we examine the specific influences of religiosity, religious identity, religious socialization, and religious social networks on local volunteer activity in church programs and non-church organizations, as well as general volunteering tendencies. These influences are presented within the theoretical framework of religious capital. Logistic regression techniques were applied to determine the strength of the contribution of these influences by all measures to some degree, but religiosity (specifically participation in church activities) remains the strongest influence. Significant religious influences overall are most pronounced with the context of church-related volunteering which suggests that churchgoing Protestant exhibit a strong sense of community identity through their local churches. A discussion of these results and their implications for volunteering follows.

7. Muhammad Akram Mehar (University of Aberdeen - College of Arts and Social Sciences),
Satisfaction Level of Religious Minorities About Government Policies of Pakistan. The abstract states:

The said study was conducted to evaluate the religious minority rights in the rural areas of Sheikhupura, Pakistan during 2009-10. The overall objective of the study was to explore the level of provision of basic human rights to religious minorities living in the rural areas of Pakistan and to know about the satisfaction level of religious minorities about the availability of their fundamental human rights. For this purpose, one hundred and twenty households from the rural areas of Sheikhupura which were representatives of the whole district's religious minorities were selected by using the simple random sampling technique. The analysis of the data revealed that religious minorities are not represented in different sectors of life (for example, employment sector) appropriately and adequately. So, the religious minorities in the area of study were satisfied to least extent to the government policies of Pakistan.

8. Steph Sterling (National Women's Law Center) and Jessica L. Waters (American University School of Public Affairs), Beyond Religious Refusals: The Case for Protecting Health Care Workers’ Provision of Abortion Care, Harvard Journal of Law and Gender, Vol. 34, 2011. The abstract states:

This article seeks to explore the question of whether and to what extent conscience-based employment protections available to those medical professionals opposed to the provision of abortion care should also be available to health care professionals who seek, based on their religious or moral beliefs, to affirmatively provide abortion care at religiously affiliated medical facilities. Part I examines the prevalence of religiously affiliated medical institutions that refuse to provide abortion care and the ways in which these prohibitions violate the consciences of some health care professionals who seek, as a matter of religious or moral conviction, to provide abortion care to their patients. Part II examines whether existing employee legal protections such as Title VII of the 1964 Civil Rights Act or the Church Amendment, both of which prohibit various forms of employment "discrimination" based on moral, ethical, or religious beliefs, can be used to protect health care providers’ affirmative right to provide, as a matter of conscience, abortion care. While both laws have been used to protect employees’ conscience-based refusals to provide reproductive health care, Part II explores whether and to what extent these same laws could also provide meaningful remedies for medical professionals who seek to provide conscience-based abortion care. Recognizing that existing employment conscience protections for employees seeking to provide abortion care are in some ways limited, Part III briefly concludes that policymakers and courts must begin to recognize that the conscience-based provision of abortion care can be rooted in beliefs held with a strength equal to the beliefs underlying the conscience-based refusal of such care, and as such must craft and enforce existing laws to provide parallel protection for both.

9. Barak D. Richman (Duke University - School of Law),Saving the First Amendment from Itself: Relief from the Sherman Act Against the Rabbinic Cartels. The abstract states:

America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do what the First Amendment was arguably designed to prevent. This essay evaluates this interesting intersection between the Sherman Act and the First Amendment, and it argues that the Sherman Act can, and must, be vigorously applied against the private rabbinic cartels.

10. Bradley E. Abruzzi (Berkman Center for Internet & Society), Copyright and the Vagueness Doctrine. The abstract states:

The Constitution’s void-for-vagueness doctrine is itself vaguely stated. The law does little to describe at what point vague laws - other than those that are entirely standardless - might be unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three "collateral factors" that affect its inclination to invalidate a law for vagueness, including (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Against this backdrop, it is fair to say that copyright law, in its current configuration, does not meet the vagueness doctrine’s minimum requirements of fair notice to the public. Copyright by its terms restricts free speech; the law’s prolixity frustrates ex ante assessment of what speech is lawful. The question whether speech infringes copyright requires reference to a multiplicity of top-level interlocking questions or doctrines - each with its own manifold of subsidiary legal issues. Still more troubling is the uncertainty that inheres in "substantial similarity" and fair use, the very copyright doctrines that are generally held to rescue copyright from charges of First Amendment overbreadth. This Article argues that although a case can be made that copyright is unconstitutionally vague, invalidation of all or any portion of the Copyright Act is unlikely and not constructive. Reforms undertaken specifically to cure copyright’s indeterminacy are not likely to be effective, either. However, a consideration of the vagueness doctrine’s collateral factors and how they apply to copyright suggests an appropriate reform of the law. For cases involving expressive use of copyrighted content, lawmakers should adopt a three-tiered system of civil infringement liability by which strict liability is preserved in cases brought for injunctive relief only, while suits for statutory and actual damages require proof of willful and negligent infringement, respectively.

11. Deana Pollard-Sacks (Texas Southern University - Thurgood Marshall School of Law),
Snyder v. Phelps: A Slice of the Facts and Half an Opinion, Cardozo Law Review De Novo, p. 64, 2011. The abstract states:

In Snyder v. Phelps, the Supreme Court reviewed only the picketing aspect of the case, and found that the First Amendment precluded tort liability. The Court declined to consider whether tort liability for the online "epic" that targeted the Snyders personally was constitutional. Snyder v. Phelps is a very narrow opinion and adds little to the debate about whether tort liability for invasion of privacy or intentional infliction of emotional distress arising from speech is constitutional.

12. Hannibal Travis (Florida International University College of Law), Postmodern Censorship of Pacifist Content on Television and the Internet, Notre Dame Journal of Law, Ethics and Public Policy, Vol. 25, No. 2, 2011. The abstract states:

This Essay, a contribution to a symposium on censorship and the media, explores the legal history of the censorship of antiwar speech. It devotes particular attention to postmodern techniques for chilling the production of pacifist content, or reducing the total output of it. Pacifist speech is defined broadly, as speech advocating peaceful alternatives to war or militarism, articulating doctrines or principles which urge forswearing war or violence in international disputes, or expressing reasons to oppose specific military episodes or entire wars

A fundamental assumption of democratic governance is that the public keeps informed of important news and points of view by exposure in the press, whether print or electronic. Yet the public is often denied complete information by governments and private media conglomerates acting in close concert. While legal scholars frequently condemn direct censorship by the federal government, they too often neglect the extent to which private parties may be mobilized by the government to foment false beliefs and propagate misleading portraits of vital public policy issues.

This Essay explores postmodern censorship of pacifist expression. Postmodern censorship is distinguishable from its pre-modern or modern counterparts by its immaterial, seemingly nonviolent ways of watching and influencing apparently private activity, in contrast to a modern way of censoring speech by using violence as an ostentatious tyrant would. While still sculpting citizens’ beliefs and behaviors, postmodern power applies itself to private technologies and the enjoyment of what seems to be leisure time or tools such as television or radio. Postmodern regulation directs itself at privatized implementation of governmental objectives, including the lies and crimes of governments. It simulates real events in spectacles of illusion and artifice. In the postmodern era, everything is increasingly artificial, real events are excluded from the public spectacle, and the meaning of words and concepts is lost.

13. Hannibal Travis (Florida International University College of Law),Youtube from Afghanistan to Zimbabwe: Tyrannize Locally, Censor Globally.  The abstract states:

This chapter in a forthcoming book attempts to map global patterns by which local tyrannies become sources of potentially global infringements on freedom of expression, particularly but not exclusively on the YouTube Web site. It illustrates certain parallels between the efforts to force copyright filters on YouTube and the Web in the West, and to harden the Great Firewalls of China, Arabia, and Persia in the East. The parallels include preemptive filtering, deep packet inspection, overbroad restrictions, and harms to user privacy.

Generally speaking, blasphemy and seditious libel are the dominant forms of censorship in the impoverished and/or dictatorial societies of Africa and central and southern Asia, with insulting the great leader similarly controversial at the fringes of Asia including China, Thailand, and Turkey, and in the South Atlantic including Colombia, Honduras, and Zimbabwe. By contrast, intellectual property is prompting many of the Web site takedowns for political and cultural speech in the North Atlantic including Europe and the United States. Resistance to censorship around the world employs both legal and extra-legal tactics. Internet freedom has worked its way into our constitutional and statutory law in the North Atlantic and Europe, and parts of Africa, Latin America, and Asia. Therefore, a judicial consensus is emerging that freedom of expression must rein in the enforcement of corporate catalogs of intellectual property rights.

In large swaths of Africa and Asia, however, constitutions often do not mandate robust judicial protection of freedom of expression, so public intolerance of censorship presents a more direct battle of forces. In these societies, self-help, surreptitious defense of new public spheres, trans-border cooperation, and voting with one’s feet are more likely to succeed than filing lawsuits or asserting constitutional rights. There, YouTube bans and shutdowns of the entire Internet vie with proxy servers and aid from foreign Web firms, sometimes enjoying explicit diplomatic support.

14. Helen L. Norton (University of Colorado School of Law), Imaginary Threats to Government's Expressive Interests, forthcoming in Case Western Reserve Law Review. The abstract states:

The Supreme Court’s emerging government speech doctrine permits the government to refuse to allow other parties to join, and thus change or distort, its own message. In this way, the government speech doctrine appropriately protects government’s legitimate – and valuable – expressive interests by providing a defense to free speech clause claims by private speakers who seek to compel the government to deliver their own views. Too often, however, governmental bodies are asserting their own expressive interests to claim – and some courts are permitting them to exercise – the power to punish private parties’ speech that does not threaten the government’s ability to express its own views. For example, some federal courts have relied on government speech interests to justify the exclusion of peaceful dissenters from attendance at the government’s public functions, and another has invoked government’s expressive interests to justify the punishment of student speech in public schools. These cases feature courts that are disturbingly quick to define government’s expressive interests broadly, and quicker still to perceive private speakers as threatening those interests. By identifying such troubling examples, this sessay urges attention to, and concern for, this trend’s potential trend.

15. Ari Ezra Waldman (California Western School of Law ), Hostile Educational Environments, forthcoming in Maryland Law Review. The abstract states:

This Article is one in a series about bullying and cyberbullying in schools. I argue that the proper analysis for a First Amendment challenge to school discipline for off-campus misuse of the Internet to harm or offend a member of the school community depends on the nature of the offending behavior. For students who are punished for a single incident – what I will call cyberattacking – a Tinker analysis makes sense. Except in extraordinary circumstances, the First Amendment should immunize these single-incident attackers from punishment. For students who engage in a pattern of repeated incidents of cyberattacking – what I will call cyberbullying – their creation of a hostile educational environment for their victims parallels the behavior of workplace harassers who may be lawfully disciplined pursuant to Title VII. Therefore, the relative merit of cyberbullies’ First Amendment defenses to lawful punishment should depend more on the interaction between free speech rights and harassment than on the interaction between free speech and a single incident of aggression. In this context, just like the state has a compelling interest in protecting a captive, victimized minority in the workplace form hostile sexual abuse, so too does the state have a compelling interest in protecting bullying and cyberbullying victims in schools. For these few egregious cases, a First Amendment defense to discipline should fail.

16. Jozsef Meszaros (University of Pennsylvania),The New Pornographers: How Should the Law Respond to Youths Raping and Taping?, The abstract states:

Gang rapes committed by teenage boys are on the rise: not only in the United States, but in at least eight other developed nations. These rapes are increasingly captured on cell phone cameras. Members of the communities affected, politicians, and researchers all express bemusement at the heinous nature of these acts. Yet, little has been done in the past two decades to curtail the uncanny expansion of hardcore pornography’s influence on the nation’s youth. Aside from the occasional obscenity prosecution or the toothless disclaimers that stand between adolescence and the visual world of debasing sexual violence, the United States has been remarkably passive in its treatment of hardcore pornography. Laws governing pornography have primarily addressed the impact, on adults, of pornographic portrayals of children. How pornographic portrayals of adults affect children, on the other hand, has been largely overlooked.

This article argues for the necessity of regulating a pornographer’s fundamental first amendment right. That the states and Congress both have police power in this space is undisputed. What should concern us is how this regulation will be justified and implemented. That young people are imitating sexual violence – filmed and consumed for adult pleasure – is a claim that can be supported using psychology, sociology and neurobiology. To support the claim that such imitation is traceable to the viewing of hardcore pornography, this article provides a synthesis of emerging work in neurobiology on mirror neurons and learned social behaviors. If the pernicious social costs imposed by a highly pervasive and well-funded hardcore pornography industry are to be successfully overcome, a multifaceted approach to regulation is necessary. Obscenity statutes are simply not sufficient. Rather than adopting an obstinate prohibitionist stance which is rapidly outmaneuvered by technology, the article suggests incorporating lessons from various regulatory frameworks that have been successful in reforming other forms of social behavior.

17. Frederick Schauer (University of Virginia School of Law), On the Relationship between Chapters One and Two of John Stuart Mill’s on Liberty , forthcoming in Capital University Law Review. The abstract states:

An important question in free speech theory and in Millian scholarship is the relationship between Chapters One and Two of Mill’s On Liberty. This essay, prepared on the occasion of and as a comment on Vincent Blasi’s Sullivan Lecture at the Capital University Law School, argues that Chapter Two, dealing with the “Liberty of Thought and Discussion,” is best understood as an exception to the general libertarian themes of Chapter One Iand, indeed, the balance of the book), rather than as an instantiation of them. Only by undervaluing Mill’s views about the potential harms of speech, by making Mill less of a utilitarian than he claimed to be, and by slighting the social epistemic claims in Chapter Two can that Chapter be made compatible with Mill’s presentation of the Harm Principle in Chapter One and the rest of the book. But if we take Mill’s epistemic claims seriously (which is decidedly not the same as believing that they are empirically sound), then Chapter One can be understood as largely about actions that do not cause harms to agents other than the actor, and Chapter Two can be seen as an argument for why some other-regarding and harm-producing speech acts may, in the aggregate, produce sufficient social epistemic benefits as to be deserving of a special immunity from state control. It is true, as Blasi argues, that a concern for the character-building nature of both autonomy and confrontation with harmful speech may render Chapters One and Two compatible with each other, but that compatibility requires relegating Mill’s famous epistemic arguments to a secondary role, and requires seeing Mill in less utilitarian and more individualistic terms than he himself professed.

18. Enrico Bonadio (City University London), File Sharing, Copyright and Freedom of Expression, European Intellectual Property Review, 2011. The abstract states:

The article explores the relationship between copyright and freedom of speech in the Internet environment. After highlighting the constitutional dimension of these conflicting rights, the phenomenon of file sharing and the role of Internet Service Providers (ISPs), the author analyzes the debate surrounding a particular sanction used in certain jurisdictions to punish unauthorized on line sharing of copyrighted material, i.e. the disconnection of Internet access. The increasingly important role played by private agreements between copyright holders and ISPs is also highlighted.

A set of proposals aiming at identifying possible areas of freedom for unauthorized file sharers are then analyzed.

In particular, the author believes that file sharing technologies may boost the exchange of information, opinions and ideas amongst Internet users and foster a number of values underpinning the very protection of free speech. It is for this reason - the author argues - that copyright rules might be relaxed when it comes to file sharing technologies, e.g. by transforming copyright from a “proprietary” to a “compensation” right.

19. Neil Vidmar and Regina Schuller (Duke University - School of Law), The Canadian Criminal Jury, forthcoming in Chicago-Kent Law Review. The abstract states:

The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values .Jury selection procedure in most trials is similar to that of England: jurors are assumed to be “impartial between the Queen and the accused” and are selected without a voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a “challenge for cause” process in which members of the jury pool itself, selected as “triers,” determine which prospective jurors are impartial. Another totally unique aspect of the Canadian system is that special rules apply to juries in Canada’s arctic regions. In addition to the official English and French languages, unilingual aboriginal persons who speak one of two Inuit dialects or one of seven Dene (Indian) dialects are eligible to serve on the jury. The purpose of this language provision is to provide for cultural perspective in jury verdicts and to increase community acceptance of Canadian law.

20. Jonathan Peters (Frank Martin Fellow, University of Missouri School of Journalism), WikiLeaks, the First Amendment, and the Press, published in Harvard Law & Policy Review (2011).

JFB

Va. AG Opinion Finds State Law Allows Carrying Firearm Into Place of Worship to Protect Personal Safety

A Virginia code provision makes it a misdemeanor to carry a firearm into "a place of worship while a meeting for religious purposes is being held at such place" unless carrying the firearm is justifed by a "good and sufficient reason.” State AG Cuccinelli has concluded that seeking to protect personal safety constitutes satisfies the statutory justification standard.  However, the AG opinion goes on to affirm that places of worship can restrict or ban firearms from their premises as an exercise of their property rights. 

JFB

First Amendment Scholarship Update

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

1. Elijah L. Milne (Columbia University - Law School), Marriage and the Religion Clauses, 85 St. John's L. Rev. ---- (2011).  The abstract states:

Both marriage and religion have commonly given rise to differing degrees of conflict and controversy in various settings. Indeed, many conflicts in marriages are sometimes over religion, and many controversies in religions are sometimes about marriage. It should come as no surprise then that the contemporary debate over same-sex marriage and religious liberty has effectually divided households and sanctuaries throughout the nation.

While it is not the purpose of this article to stoke the flames of controversy, this article does attempt to explain and clarify a handful of narrow topics in the modern debate over same-sex marriage which concern the intersection of religion with marriage. Due to the vast array of issues involved in this debate, however, the topics addressed in this article are only considered in the context of the Religion Clauses of the First Amendment to the United States Constitution. These topics include such things as the historical relationship of marriage and religion, the legality of defining marriage as the union of one man and one woman, the propriety of religious leaders solemnizing civil marriages, the possible effects on religious liberty of either legalizing or prohibiting same-sex marriage, and the continuing significance of marriage for families and religions of all stripes.

2. Winnifred Fallers Sullivan (SUNY Buffalo Law School), Religion, Land, and Rights, published in Berkeley Journal of Middle Eastern & Islamic Law, Spring 2011. The abstract states:

This essay makes the argument that the controversy about the Park51 mosque is better understood when it is seen as a problem of religious establishment than when it is seen as a problem of religious tolerance. The religious and legal history of the property originally granted to Trinity Church Wall Street is used to illustrate two contemporary forms of American religion now occupying Trinity land, the proposed Park51 Muslim center and the former World Trade Center site.

3. Nicholas Walter (Yale University), The Status of Religious Arbitration in the United States and Canada.  The abstract states:

This paper discusses, and challenges, the status of religious arbitration in the United States and Canada. Religious arbitration - defined as the settling of disputes through the intermediation of religious authorities, rather than having recourse to the courts - has been written about considerably in recent years. All writers to date have considered ways in which rights guaranteed by secular courts can be maintained before religious tribunals. This paper is the first to consider the problem caused by religious tribunals for the rights of free exercise of religion for those using religious tribunals. It argues that the enforcement of awards made by religious tribunals, and agreements to arbitrate before religious tribunals, by secular courts is an unconstitutional infringement of parties’ rights of free exercise of religion in both the United States and Canada. This is true even though the United States Supreme Court and the Canadian Supreme Court have different jurisprudence on freedom of religion. Although the United States and Canada may still encourage parties to mediate their disputes through religious means, statutes should be enacted in both countries providing that no party may enter a contract to enter a binding arbitration process based on religious principles. Furthermore, the discussion in the paper has implications for debates about the status of religious tribunals in other countries, such as the United Kingdom.

4. Richard Schragger (University of Virginia School of Law), The Politics of Free Exercise After Employment Division v. Smith: Same-Sex Marriage, the 'War on Terror,' and Religious Freedom. The abstract states:

This Essay, written for a symposium commemorating the twentieth anniversary of Employment Division v. Smith, examines the politics of free exercise as it has changed since Smith was decided. It focuses on two historical developments that have and will continue to shape the doctrine of free exercise going forward. The first development is the gay and lesbian civil rights movement and its pursuit of marriage equality in the courts. The second development is the "war on terror" that followed the attacks of 9/11 and the nation’s subsequent cultural and political response to fundamentalist Islam. This Essay describes how these historical developments are putting doctrinal and legislative pressure on the post-Smith free exercise equilibrium. The Essay also speculates about the continuing political and legal viability of Smith in light of these pressures.

5. Diane Webber, Education as a Counterterrorism Tool and the Curious Case of the Texas School Book Resolution, forthcoming in Maryland Law Journal of Race, Religion, Gender and Class. The abstract states:

As a case study, this paper reviews a resolution passed by the Texas State Board of Education on September 24, 2010. The resolution rejects certain Social Studies texts that contain what the Board determined were pro-Islamic/anti-Christian distortions…The resolution is itself doing what it complains about – it is showing “chronic partiality to one of the world’s great religions and animus against another.”…At a time when “reciprocal negative perceptions between the Western and Muslim worlds continue to escalate”, it is essential to acknowledge the important role of education to promote tolerance… The knowledge gained from religious tolerance education can then be used to help reduce feelings of alienation within minority communities, and to counter “radicalization”. Thus education becomes an effective and essential counterterrorism tool.

6. John D. Inazu (Duke University School of Law), Between Liberalism and Theocracy, forthcoming in Campbell Law Review (2011), The abstract states:

Our symposium conveners have focused us on “the relationship between liberalism and Christianity and their influence on American constitutionalism.” My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for the relationship between church and state. By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are prone to do) nor appropriated in the service of arguments that collapse the distinction between church and state (as some on the right are prone to do).

I have in mind the political practices of Roger Williams and William Penn. Both are important figures in American political thought, both were known to many of the Founders, and both have drawn increased attention in recent scholarship. Both were also deeply theological thinkers — and their political practices cannot be given sense outside of the theological narratives within which those practices arose.

My   engagement with Williams and Penn is not confined to their arguments. Both men lived out their political practices in an era much different than our own. For this reason, identifying the theological context of Williams and Penn is only a first step. An equally important objective of this essay is to frame the ongoing relevance of their contributions. To this end, I link the theological politics of Williams and Penn to two contemporary theologians, John Howard Yoder and Stanley Hauerwas. I then suggest a way to connect the theological insights of Yoder and Hauerwas back to Williams and Penn through the work of constitutional scholar H. Jefferson Powell. This essay sketches these connections as a roadmap to future work. It is offered as an opening round of what I hope will evolve into an extended discussion about the contribution of these five theological thinkers to our understanding of religious freedom and the intersection of theology, political theory, and law.

7. Tom Pyszczynski and Pelin Kesebir  (University of Colorado at Colorado Springs),Culture, Ideology, Morality, and Religion: Death Changes Everything, published in THE SOCIAL PSYCHOLOGY OF MEANING, MORTALITY, AND CHOICE, M. Mikulincer, P. R. Shaver, eds., Washington, D.C.: APA Press, 2011. The abstract states:

In this chapter, we consider how the reality of death changes the way human psychological motives operate. Relying on terror management theory (TMT; Greenberg, Pyszczynski, & Solomon, 1986; Solomon, Greenberg, & Pyszczynski, 1991), we argue that humanly constructed meaning systems, such as culture, ideology, morality, and religion serve important death-denying functions. Clearly, these systems also function to solve practical problems and help with survival and reproduction. Yet TMT posits that the human awareness of death added urgency to the way humans hold on to these sources of meaning, and changed the sorts of meanings that people sought to attain. We start with a brief overview of TMT and a discussion of how culture, ideology, morality, and religion are affected by awareness of mortality. The second part of the chapter addresses recent conceptualizations that have been proposed as alternatives to TMT, that argue that the problem of death is a specific case of a more general threat. We explain why we consider awareness of death a unique force for the human psyche that is responsible for changing the pursuit of meaning, value, and security in ways that affect the functioning of culture, ideology, and religion.

8.  Christoph Engel (Max Planck Institute for Research on Collective Goods), Law as a Precondition for Religious Freedom . The abstract states:

Throughout history, people have suffered for the sake of their religion. Religious organisations have been forbidden or governments have tightly controlled them. The constitutional protection of freedom of religion is a necessity. In a religiously pluralistic world, granting the guarantee is also in the state’s best interest. Yet religions have been hesitant to embrace the guarantee. It implies secularism. Religious freedom is balanced against other freedoms, and against legitimate state interests. Government is faced with social forces that are grounded in eternity and that cannot be proven to be wrong. Seemingly the constitutional protection is a threatening for religions and the state as it is beneficial. Yet the essentially pragmatic nature of law overcomes the tragic dilemma – albeit only at the price of acknowledging that jurisprudence is policy-making.

9. Eugene Volokh (University of California, Los Angeles (UCLA) - School of Law), 'The Freedom...Of the Press,' from 1791 to 1868 to Now - Freedom for the Press as an Industry, or the Press as a Technology? The abstract states:

Both Justices and scholars have long debated whether the “freedom...of the press” was historically understood as securing special constitutional rights for the institutional press (newspapers, magazines, and broadcasters). This issue comes up in many fields: campaign finance law, libel law, the news gatherer’s privilege, access to government facilities for news gathering purposes, and more. Most recently, last year’s Citizens United v. FEC decision split 5-4 on this very question, and not just in relation to corporate speech rights.

This article discusses what the “freedom of the press” has likely meant with regard to this question, during (1) the decades surrounding the ratification of the First Amendment, (2) the decades surrounding the ratification of the Fourteenth Amendment, and (3) the modern First Amendment era. The article focuses solely on the history, and leaves the First Amendment theory questions to others. And, with regard to the history, it offers evidence that the “freedom...of the press” has long been understood as meaning freedom for all who used the printing press as technology - and, by extension, mass communication technology more broadly - and has generally not been limited to those who belonged to the institutional press as an industry.

10. Josh M. Parker (University of Chicago - Law School), Comment - The Stolen Valor Act as Constitutional: Bringing Coherence to First Amendment Analysis of False Factual Speech Restrictions Outside of the Defamation Context , published in 78 U. Chi. L. Rev. ---- (2011). The abstract states:

The Stolen Valor Act of 2006 makes it a crime for an individual to falsely represent that he has been awarded a military honor. Whether the Stolen Valor Act violates the First Amendment as an impermissible content-based restriction of speech is a legally contentious issue. The Ninth Circuit struck down the Act as unconstitutional, with Judge Bybee authoring an extensive dissent and seven judges dissenting from the denial to rehear the case en banc. And district courts are split on the Stolen Valor Act’s constitutionality.

This split is largely due to the absence of any systematic approach for assessing the First Amendment status of false factual speech restrictions outside of the context of defamation law. This Comment argues that Supreme Court and lower court precedent support a four-factor test for determining whether such restrictions comply with the First Amendment, namely a test that examines whether the speech restriction 1) leads to excessive false positives; 2) risks chilling other protected speech; 3) is justified by a legitimate government interest; and 4) may be successfully corrected in the marketplace of ideas. While all factors should be considered, for the speech restriction to pass constitutional muster, it must not chill other protected speech and must be justified by a legitimate government interest. In other words, factors two and three are necessary, while factors one and four are not.

This Comment shows that this test has substantial precedential support, but it also argues that the test has two additional advantages over the approaches taken by courts that have found the Stolen Valor Act constitutional: it neither constitutionally condones the criminalization of trivial lies nor paves the way for judicial invalidation of frequently litigated statutes restricting false factual statements, such as 18 USC § 1001, which makes it a crime to knowingly and willfully make false or fraudulent statement to the federal government.

This Comment applies this four-factor test to the Stolen Valor Act, finding that the Stolen Valor Act does not violate the First Amendment given the high verifiability of false claims about military honors, the fact that there is no significant risk of the SVA chilling speech that matters, and the existence of a legitimate government interest in preventing the misappropriation of its property, while considering the countervailing factor of the speech restricted by the SVA being correctable.

11. Renee Newman Knake (Michigan State University College of Law), Democratizing the Delivery of Legal Services: On the First Amendment Rights of Corporations and Individuals, forthcoming in Ohio State Law Journal. The abstract states:

One of the most significant problems faced by the legal profession in the twenty-first century is the ineffective delivery of legal services. Millions in need of legal representation are unable to afford a lawyer and thousands of lawyers are unemployed. We are desperate for a solution to democratize access to the law through efficient and affordable delivery of legal services.

Noted law scholars and economists have argued over the years that corporate ownership of law firms can offer a solution to this problem. For example, corporations like Wal-Mart or Google are especially adept at disseminating services and information to the mass public. These kinds of corporations are also financially situated to make substantial capital outlays and await a later return on the investment. Both of these attributes make corporate ownership of law firms an appealing avenue for increasing access to legal services. Yet professional conduct rules in all fifty states ban corporations from owning or investing in law firms.

This Article identifies a First Amendment jurisprudential thread that establishes important constitutional interests in corporate ownership of law firms, interests held by both corporations and individuals. The Supreme Court initially recognized First Amendment protection for the delivery of legal services by a corporate entity in NAACP v. Button and most recently confirmed in Citizens United v. Federal Election Commission that a corporation, whether non-profit or for-profit, enjoys the same free speech rights as an individual. Under this precedent, blanket bans on corporate ownership of law firms cannot survive. This expanded understanding of First Amendment rights for corporations parallels the economic realities of modern law practice and the regulatory changes underway in the United Kingdom and Australia. Now is the time for regulators to embrace the benefits that can accrue from corporate ownership, in particular the democratization of law through the delivery of more accessible and affordable legal services.

12. Jeffrey Shulman (Georgetown University Law Center), Epic Considerations: The Speech that the Supreme Court Would Not Hear in Snyder v. Phelps, published in Cardozo Law Review de Novo, pp. 35-42(2011).  The abstract states:

In declining to consider the “epic” posted by the Westboro Baptist Church on its web site, the Supreme Court took most (but not quite all) of the good constitutional stuff out of Snyder v. Phelps. The Court may have sought to make this an easy case by considering only the contents of the church’s picketing placards. For the Court, the placards highlighted such issues of public import as “the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy.” On grounds that we might charitably call dubious, the Court chose not to “hear” those parts of the church’s speech that most clearly and most viciously attacked the Snyders—speech, that is, on matters of purely private concern. In deciding whether speech is on a matter of public or private concern, the Court is required “to examine the ‘content, form, and context’ of that speech, ‘as revealed by the whole record.’” Having determined the “content, form, and context” of Westboro’s speech without reference to half of the record, Justice Roberts was able to describe the church’s speech as “fairly characterized as constituting speech on a matter of public concern”—speech, that is, worthy of special protection under the First Amendment.

What the Court apparently did not want to do was to tackle the question left unaddressed in Hustler v. Falwell: whether speech on a matter of public concern directed at a private figure may be actionable. Part public, part private, Westboro’s speech placed before the Court the difficult question of what protection to afford speakers who make a private party the unwilling instrument of their public message. The Court limited its holding to the facts of the case—the facts absent the epic; and on these facts the Court was content to characterize the church’s speech, fairly or not, as a public concern, thus avoiding the hard work of constitutionally culling wheat from chaff. The Court’s “central thrust” language effectively accommodates, for now, the concerns of those who, like Justice Breyer, worry that the Court’s conflation of public and private speech “unreasonably limits liability for intentional infliction of emotional distress.” Had the epic been before the Court, this accommodation may not have been possible.

Snyder v. Phelps was not an easy case. When personal invective is delivered in the milieu of public discourse, it is no simple task to balance competing constitutional and common-law interests. No doubt, there is a point where speech purportedly on a matter of public concern is so personal in content and form that it loses public import, and if the personal attacks in Westboro’s epic, which addressed the Snyder family directly, do not reach this point, it is hard to imagine what would. But like many important legal boundary lines, this one is more often than not going to be difficult to draw.

JFB

 

State Department Issues 2010 Country Reports on Human Rights Practices

In her remarks announcing the release of the Human Rights Country Reports, Secretary of State Clinton described three particularly alarming trends: 

We were particularly disturbed by three growing trends in 2010. The first is a widespread crackdown on civil society activists. For countries to progress toward truly democratic governance, they need free and vibrant civil societies that can help governments understand and meet the needs of their people. But we’ve seen in Venezuela, for example, the government using the courts to intimidate and persecute civil society activists. The Venezuelan Government imposed new restrictions on the independent media, the internet, political parties, and NGOs. In Russia, we’ve seen crackdowns on civil society groups turn violent with numerous attacks and murders of journalists and activists. In China, we’ve seen negative trends that are appearing to worsen in the first part of 2011.

As we have said repeatedly, the United States welcomes the rise of a strong and prosperous China, and we look forward to our upcoming Strategic and Economic Dialogue with Beijing and to our continued cooperation to address common global challenges. However, we remain deeply concerned about reports that, since February, dozens of people, including public interest lawyers, writers, artists, intellectuals, and activists have been arbitrarily detained and arrested. Among them most recently was the prominent artist, Ai Weiwei, who was taken into custody just this past Sunday. Such detention is contrary to the rule of law, and we urge China to release all of those who have been detained for exercising their internationally recognized right to free expression and to respect the fundamental freedoms and human rights of all of the citizens of China.

Beyond a widespread crackdown on civil society activists, we saw a second trend in 2010 – countries violating the fundamental freedoms of expression, assembly, and association by curtailing internet freedom. More than 40 governments now restrict the internet through various means. Some censored websites for political reasons. And in a number of countries, democracy and human rights activists and independent bloggers found their emails hacked or their computers infected with spyware that reported back on their every keystroke. Digital activists have been tortured so they would reveal their passwords and implicate their colleagues. In Burma and in Cuba, government policies preempted online dissent by keeping most ordinary people from accessing the internet at all.

The third disturbing trend of 2010 was the repression of vulnerable minorities, including racial and ethnic and religious minorities along with lesbian, gay, bisexual, and transgender people. In Pakistan, for example, blasphemy remains a crime punishable by death. And the blasphemy law has been enforced against Muslims who do not share the beliefs of other Muslims, and also against non-Muslims who worship differently.

In the first two months of 2011, two government officials in Pakistan who sought to reform the law, Governor Taseer and Minister Bhatti, were targeted by a fatwa and assassinated. Also, in Iraq, Egypt, and Nigeria, violent attacks by extremists have killed dozens of people who have been peacefully practicing their religions, Christians and Muslims alike. In Iran, we have multiple reports that the government summarily executed more than 300 people in 2010. Many of them were ethnic minorities. For example, in May, four Kurdish men were hanged in Evin Prison. They had been arrested in 2006 for advocating that Iran should respect human rights. They were reported to have confessed to terrorism under torture. And because I believe, and our government believes, that gay rights are human rights, we remain extremely concerned about state-sanctioned homophobia. In Uganda, for example, homosexuality remains illegal, and people are being harassed, discriminated against, threatened, and intimidated.

In 2010 Country Reports on Human Rights Practices are available from the State Department website.

JFB

The First Amendment and the “Freedom to Inflame”

In the wake of deadly Afghanistan protests reacting to Florida pastor Terry Jones’  burning of a Koran, Peter Catapano of the New York Times collects reactions to calls to reconsider the scope of First Amendment protection for acts like that of Rev. Jones.

JFB

March Madness Inspired Video Games: Does First Amendment Protect Uncompensated Use of College Players' Likenesses?

As March Madness draws to a close, the way the NCAA treats its student athletes has come under scrutiny in a recent Frontline documentary.  Among the ways the NCAA profits from the work of amateur athletes is the organization’s licensing of images to video game makers such as Electronic Arts. In Keller v. Electronic Arts, former players are challenging such use as a violation of their rights to publicity, and the games maker is asserting a First Amendment defense. As described in a prior post, a federal district judge has rejected Electronic Arts’ effort to have players’ claims dismissed on First Amendment grounds. That ruling is on appeal to the Ninth Circuit, which held oral argument in the case in February.  

JFB      

 

Florida Pastor’s Burning of Koran Continues to Fuel Afghanistan Violence

As reported by the New York Times, angry mobs in Afghanistan have killed twenty four people in ongoing violent protests. Last Friday seven UN staff members were killed when UN offices in Mazar-i-Sharif were overrun as protests erupted in response to the burning of a Koran by Florida pastor Terry Jones. Jones had been dissuaded from a prior planned banning of a Koran in conjunction with the tenth anniversary of the September 11 terrorism tragedy.  In March, however, Jones conducted a mock trial of Islam. The “trial” ended with the burning a Koran.  USA Today’s Faith and Reason blog examines whether US media should have publicized the Koran burning.

In an interview with the Times, Jones expressed no regrets about what has transpired since the burning, saying:

It was intended to stir the pot; if you don’t shake the boat, everyone will stay in their complacency. People have tried to make us responsible for the people who are killed. It’s unfair and somewhat damaging. …Did our action provoke them? Of course. Is it a provocation that can be justified? Is it a provocation that should lead to death? When lawyers provoke me, when banks provoke me, when reporters provoke me, I can’t kill them. That would not fly.

The Christian Science Monitor and Washington Post provide further coverage of these recent events.

JFB

First Amendment Scholarship Update

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

1. Dawinder S. Sidhu (University of New Mexico School of Law), Interpreting and Revising Title VII to Prohibit Workplace Segregation Premised on Religion. The abstract states:

A business’s success is generally tied to its ability to appeal to customers and establish a compelling brand. In response to actual or perceived customer preferences or in efforts to preserve its corporate image, some employers have denied employment to individuals with conspicuous religious appearances (e.g., Muslims with headscarves, Rastafarians with dreadlocks, or turbaned Sikhs) or have placed these individuals out of public view, in back areas, once hired. This Article explores whether, for these customer- or brand-based reasons, employers may either refuse to hire or place out of public view individuals with visible religious identities under Title VII of the Civil Rights Act of 1964, the statute governing employment discrimination.

Federal court rulings suggest that Title VII does not forbid this employer conduct. In this Article, I argue that these courts have it wrong – specifically, I contend that these courts’ interpretation of Title VII enables employers to reinforce majoritarian norms and perpetuate stereotypes regarding the proper place in American society of individuals who look “different” on account of their religion, particularly those belonging to minority faiths. In effect, these courts have brought within the law the functional segregation of overtly religious individuals both in the workplace (i.e., those who are situated away from the public’s gaze) and from the workforce (i.e., those who are not hired altogether).

I make my case in the following manner: in Part I, I present an overview of Title VII as it relates to individuals with conspicuous religious appearances. In Part II, I discuss two federal cases that demonstrate the courts’ willingness to side with employers who attempt to deny employment to or put in the back individuals with religiously-mandated appearances. Finally, in Part III, I examine the legal arguments made by courts and commentators in justifying this prevailing, “pro-employer” interpretation of Title VII. I argue that the text and purpose of Title VII, as well as caselaw from historical and other civil rights contexts, support an opposite, more “rights-centric” reading of Title VII.

This Article aims to not only correct a flaw in legal reasoning that has adverse practical and social consequences, but to restore the rights of individuals who happen to subscribe to faiths that require a distinct, visible identity.

2. Steven Menashi (Georgetown University Law Center), Cain as His Brother's Keeper: Property Rights and Christian Ethics in Locke's Two Treatises of Government, 42 Seton Hall L. Rev. --- (2012). The abstract states:

Those scholars who regard Locke’s theory of property as a reflection of conventional Christian views pay insufficient attention to the deliberate rhetorical method of his Two Treatises of Government. Close attention to the text reveals profound criticisms of prevailing Christian doctrine. In fact, Locke’s theory of property forms the core of a moral theory that aims to supplant traditional religious teaching with an ethic of human industry and individual autonomy. Understanding Locke’s intention illuminates the foundations of American constitutionalism and of modern liberalism.

3. Caroline Mala Corbin (University of Miami School of Law), Nonbelievers and Government Religious Speech, 97  Iowa L. Rev. --- (2011). The abstract states:

In the past few years, nonbelievers have become much more prominent in the United States. But while their visibility has increased, they are still a small minority, and they remain disliked, distrusted, and not truly American in the eyes of many. As a result, many nonbelievers are hesitant about disclosing their views, and those who do often face hostility and discrimination.

This Article argues that government religious speech such as “In God We Trust” or a Latin cross war memorial violates the Establishment Clause in part because it exacerbates the precarious position of nonbelievers in this country. One of the main goals of the Establishment Clause is to protect religious minorities like nonbelievers. Contrary to claims that government religious speech is essentially harmless, and that any offense it causes should not be considered of constitutional dimension, government religious speech harms both the equality and liberty of nonbelievers. It undermines the equality of nonbelievers by sending the message that they are not worthy of equal regard and by reinforcing stereotypes - in particular, that atheists are immoral and unpatriotic - which lead to discrimination against them. The perpetuation of these stereotypes also undermines the liberty of nonbelievers by making them less willing, or even afraid, to follow the dictates of their conscience. In short, the claim that government religious speech does not violate the Establishment Clause because it only offends nonbelievers misunderstands exactly what is at stake.

4. Sheldon H. Nahmod (Chicago-Kent College of Law - Institute for Law and the Humanities), Justice Souter on Government Speech, 2010 BYU L. Rev. 2097 (2010). The abstract states:

Justice David Souter, who replaced Justice William Brennan, was seated on October 3, 1990, and retired on June 29, 2009. As it turns out, Justice Souter’s tenure coincided exactly with the birth and development of the government speech doctrine in the Supreme Court. Rust v. Sullivan was handed down in 1991, and the most recent case, Pleasant Grove City v. Summum, was handed down in 2009.

This Article is modest in scope and primarily descriptive. I propose to address each of the nine Supreme Court decisions in which government speech is discussed either by the Court or by Justice Souter, with an emphasis on Justice Souter’s often differing and cautionary observations about the doctrine. I do not engage here at a normative level with the government speech doctrine, even though I am worried about the Court’s increasing use of the doctrine to avoid difficult First Amendment issues.

5. Heather Kennedy, Intolerance in the Name of Tolerance: Will the United States Supreme Court’s Circular Reasoning in its Decision of Christian Legal Society v. Martinez be the Downfall of Student Organizations as We Know Them?, The abstract states:

In recent decades, the United States Supreme Court has worked toward providing a clear standard dictating that a public school may not exclude a student organization from its limited public forum based on a group’s expression of a religious viewpoint. The Supreme Court’s decision in Christian Legal Society v. Martinez, though, may have significantly changed the tides for these organizations. This Comment will initially provide the background of relevant First Amendment freedoms in general, and then attend to those freedoms as applied to the rights of religious student organizations. Turning next to the Supreme Court’s decision in Martinez, this Comment will discuss that opinion as well as its implications. By addressing these points, the Author seeks to bring to light the profound impact Martinez could have on the previously-existing and expanding trend of protecting the rights of religious student organizations.

6. Rev. John J. Coughlin, O.F.M. (Notre Dame Law School), Constitutional Law and Canon Law: The Impact of Neutral Rules on Hierarchical Churches, published in CONTEMPORARY ISSUES IN CANON LAW, Patricia M. Dugan, ed., Gratianus Series, Wilson & Lafleur, 2011. The abstract states:

In this paper, I discuss on the relation between United States constitutional law and the Roman Catholic Church’s canon law. Specifically, I explore the impact of neutral rules on hierarchical churches. The Catholic Church is clearly a hierarchical church. For those of who accept the Catholic faith, the hierarchical structure of the Catholic Church is no mere human invention but a necessary part of God’s plan for the salvation of souls. In this paper, I ask how United States constitutional law interacts with this central facet of Catholic faith. The paper consists of four major parts. First, I describe several traditional assumptions about the relation between church and state and the modern shift from these traditional assumptions. Second, I uncover the anthropologies that underpin the original intent of the framers of the religion clauses of the First Amendment of the United States Constitution. Third, I examine the United States Supreme Court’s so-called "neutral rules" approach to inter-church property disputes. Finally, I pose two fundamental questions about neutral rules and their impact on the government of hierarchical churches. This paper was the second of two talks give at the Conference for Civil and Canon Lawyers held at La Crosse, WI, in August 2010.

7.  Mark Fenster (University of Florida - Fredric G. Levin College of Law), Disclosure’s Effects: Wikileaks and Transparency. The abstract states:

Constitutional, criminal, and administrative laws regulating government transparency, and the theories that support them, rest on the assumption that the disclosure of information has transformative effects: disclosure can inform, enlighten, and energize the public, or it can create great harm or stymie government operations. To resolve disputes over difficult cases, transparency laws and theories typically balance disclosure’s beneficial effects against its harmful ones. WikiLeaks and its vigilante approach to massive document leaks challenge the underlying assumption about disclosure’s effects in two ways. First, WikiLeaks’s ability to receive and distribute leaked information cheaply, quickly, and seemingly unstoppably enables it to bypass the legal framework that would otherwise allow courts and officials to consider and balance disclosures’ effects. For this reason, WikiLeaks threatens to make transparency’s balance irrelevant. Second, its recent massive disclosures of U.S. military and diplomatic documents allow us to reconsider and test the assumption that disclosure produces effects that can serve as the basis for judicial and administrative prediction, calculation, and balancing. For this reason, WikiLeaks threatens transparency’s balance by disproving its assumption that disclosure necessarily has predictable, identifiable consequences that can be estimated ex ante or even ex post.

This article studies WikiLeaks in order to question and evaluate prevailing laws and theories of transparency that build on the assumption that disclosure’s effects are predictable, calculable, and capable of serving as the basis for adjudicating difficult cases. Tracing WikiLeaks’s development, operations, theories, and effects, it demonstrates the incoherence and conceptual poverty of an effects model for evaluating and understanding transparency.

8. Coleen Klasmeier (Sidley Austin LLP) and Martin H. Redish (Northwestern University - School of Law), Off-Label Prescription Advertising, the FDA and the First Amendment: A Study in the Values of Commercial Speech Protection, forthcoming in American Journal of Law and Medicine. The abstract states:

When the Food and Drug Administration (FDA) authorizes the marketing of a new drug or medical device, the license reflects the FDA’s review of data and information relating to uses specified by the manufacturer and set forth in agency-approved labeling. Authorized products are often used “off-label,” i.e., for purposes other than those for which they are labeled. However, such uses are legal. Indeed, “off-label” use can be standard medical practice. Despite this undisputed fact, in most instances the FDA prohibits manufacturers from promoting such off-label uses, even to members of the medical profession. In short, the FDA prohibits the speech, even though the activity promoted is perfectly legal and the speech is neither false nor misleading.

In this article, we seek to accomplish two goals: (1) to explore the political and administrative dynamics underlying the evolution of the FDA’s policy towards off-label promotion, and (2) to test that policy by reference to both controlling commercial speech jurisprudence and the underlying values of the First Amendment’s guarantee of free expression. We conclude that the FDA’s prohibition of off-label promotion is the product of a complex set of political factors. We further conclude that not only is the FDA’s policy towards manufacturers’ promotion of off-label use unambiguously inconsistent with well established Supreme Court doctrine on commercial speech, it also contravenes core precepts of democratic theory that provide the normative foundation for the constitutional protection of free expression.

9. Eric R. Nitz (Georgetown University Law Center), Note - Comparing Apples to Apples: A Federalism-Based Theory for the Use of Founding-Era State Constitutions to Interpret the Constitution , 100 Geo. L. J. --- (2011). The abstract states:

Originalists - who interpret the Constitution historically by referencing the founding era - have often looked toward founding-era state constitutional provisions for interpretive guidance. Because these state provisions contain similar wording to the text of the Constitution, the argument goes, the Constitution’s words must have a similar meaning. Few judges and commentators, however, have examined how the Framers’ other great innovation - federalism - influences this interpretive practice. Most originalist interpreters simply assume the relevance of similarly worded state provisions.

This Note challenges that assumption. It argues that judges and scholars should consider the principles of federalism and state sovereignty when using state constitutions to determine the original meaning of the federal constitution. By failing to consider the federalist division of governmental authority when looking toward state constitutions, courts might 'import' into the Constitution reserved powers exercised in the state constitutional provisions. While most cases using state constitutions as interpretive tools have not examined the source of authority underlying the state provision, the Supreme Court has employed precisely this approach when determining the extent to which English law illuminates the meaning of the Constitution.

When considering the interpretive value of a founding-era state constitution, courts should determine if the state provision involves the exercise of a power reserved to the states or prohibited to the national government. If not, the state provision may be freely compared to the federal constitution. If, however, the state provision implicates a reserved or prohibited power, then the Court must interpret the federal provision in a manner consistent with the vertical division of governmental authority in America’s federalist system, even if such an interpretation requires applying different meanings to similar language in the state and national constitutions. Failure to consider the interpretive implications of federalism when consulting state constitutions is not merely an academic concern. In at least two instances - the exceptions carved from the First Amendment’s free speech protection and the recognition of self-defense as the primary purpose of the Second Amendment right to bear arms - the Court has given meaning to the constitutional text that undermines federalism and insults the concept of reserved powers.

10. Sherry Capps Cannon, OMG! 'Sexting': First Amendment Right or Felony?. The abstract states:

The age old practice of "show me yours and I’ll show you mine" has taken on a new meaning in the modern era of cell phones and computers. The social networking opportunities afforded teenagers by texting has morphed into "sexting," a recent phenomenon involving the sending of nude or semi-nude pictures, often taken by the sender or a friend of the sender, via cell phone or other electronic device to another individual. As minors deal in "self-exploitation" through this activity, they create a difficult dilemma for society struggling to respond in an appropriate manner to children as they self-generate their own brand of child pornography.

The historical treatment of freedom of speech and pornography by the US Supreme Court is reviewed in this article. The first case on sexting to make its way through the federal courts, Miller v. Skumanick, is also examined to explore the legal implications of this modern day dilemma along with possible solutions for addressing this issue.

11. Musetta Caruso Durkee (University of California, Berkeley - School of Law), Note - The Truth Can Catch the Lie: The Flawed Understanding of Online Speech in In Re Anonymous Online Speakers , 26 Berkeley Tech. L. J. --- (2011). The abstract states:

Recently, the Ninth Circuit was the first circuit court to address a discovery request to un-mask anonymous speakers in a case involving online speech. Many hoped, given the competing standards developed by courts over the past decade, that In re Anonymous Online Speakers would provide a singular standard to guide the lower courts in anonymous online speech cases. However, not only did the Ninth Circuit decline to clarify competing standards, it mistakenly characterized the online nature of the defendant’s speech as a separate factor in the aforementioned balancing test, finding that the allegedly harmful speech occurred on the Internet inherently weighed against the anonymous speaker. In making this assumption, the Ninth Circuit failed to accurately understand the effect of various online spaces on the accuracy, verifiability, and correct-ability of anonymous online speech. In light of the Ninth Circuit’s decision, this Note argues that regardless of the standard employed in balancing the rights of the anonymous online speakers with the rights of allegedly harmed plaintiffs, courts cannot afford to misunderstand the nature of the Internet nor, by extension, the nature of speech occurring in online contexts.

This Note shows that highlighting the online context of the speech is not only necessary for combating the misconception of the Internet as a wild, undifferentiated frontier, but is also in line with established precedent in both anonymous speech cases and cases involving online speech. Furthermore, this Note summarizes recent efforts of a number of district and state courts to take the context of online speech into account when balancing the rights of anonymous speakers with the rights of harmed plaintiffs. These cases reveal that, though good efforts at capturing the nature of speech in a variety of online spaces, courts fail to understand the particularly malleable and fast-changing characteristics of specific online sites. As such, this Note will show that online speech cases occur in situations of a peculiarly malleable nature for two main reasons, and that both reasons must be taken into account in anonymous online speech cases. Not only are the different categories of online spaces themselves constantly developing, but the user norms and technological codes governing speech, actions, and communications within and between these spaces are also constantly (and sometimes abruptly) changing. Thus, courts’ investigations of the meaning and effect of online speech require a nuanced understanding of both the heterogeneity of online spaces as well as the malleable nature of particular sites and services within different categories of online spaces.

JFB