First Amendment Scholarship Update

Here is this week's collection of newly available scholarship addressing First Amendmet topics:    

1. Nicholas Quinn Rosenkranz (Georgetown University Law Center), The Objects of the Constitution, 63  Stan. L. Rev. 1005 (2011). The abstract states:

The Constitution empowers and restricts different officials differently. Because different government actors are vested with different powers and bound by different restrictions, one cannot determine whether the Constitution has been violated without knowing who has allegedly violated it. The predicates of judicial review inevitably depend upon the subjects of judicial review. Thus, every constitutional inquiry should begin with the subject of the constitutional claim. And the first question in any such inquiry should be the who question: who has allegedly violated the Constitution?

The who question establishes the two basic forms of judicial review. The dichotomy between judicial review of legislative action and judicial review of executive action is the organizing dichotomy of constitutional law. Judicial review of legislative action and judicial review of executive action are two fundamentally different enterprises - formally, structurally, temporally different. And these basic differences dictate both the structure and the substance of judicial review. Properly understood, a "facial challenge" is nothing more nor less than a challenge to legislative action, and an "as-applied challenge" is nothing more nor less than a challenge to executive action. Clear thinking about the who question thus solves deep jurisdictional riddles. And the solutions to these riddles, in turn, have profound feedback effects on the substantive scope of constitutional rights and powers.

This article begins with the intellectual primogenitor of this approach: Barron v. Baltimore. It then presses beyond Barron, using Chief Justice Marshall's method to address the questions that he left unanswered. It proceeds to analyze several clauses of the Bill of Rights, in the first systematic effort to identify their implied objects. As it turns out, these objects form a pattern, which amounts to a central, structural theme of the Bill of Rights that has long been overlooked. This Article then turns to the Fourteenth Amendment, to determine exactly who is bound by its most resonant clauses. Building on Akhil Amar's insight that the Bill of Rights underwent "refinement" when incorporated against the states by the Fourteenth Amendment, this article identifies perhaps the most important refinement of all: refinement of the actors bound by the Bill - refinement of its objects.

In short, this Article and its predecessor, The Subjects of the Constitution, amount to a new model of constitutional review, a new lens through which to read the Constitution. This approach begins with a grammatical exercise: identifying the subjects and objects of the Constitution. But this is hardly linguistic casuistry or grammatical fetishism. The subjects and objects of the Constitution are not merely features of constitutional text; they are the pillars of constitutional structure. The very words "federalism" and "separation of powers" are simply shorthand for the deep truth that the Constitution empowers and restricts different governmental actors in different ways. To elide the who question is to overlook the central feature of our constitutional structure. And it is this structure, above all, that is the object of the Constitution.

2. Barbara McDonald (University of Sydney-Faculty of Law), International Publications and Protection of Reputation: A Margin of Appreciation But Not Subservience?, 63 Ala. L. Rev. 477 (2011). The abstract states:

In the context of the increasingly global reach of media and communications, this article explores the modern phenomenon of libel proceedings in foreign courts by citizens of other countries, the approach of courts and legislators in dealing with so-called "libel tourists", and the international policies and principles which determine whether a court will accept jurisdiction over a libel action or enforce a foreign libel judgment. It argues that, in this context, not all foreign claimants are to be dismissed as opportunistic "tourists" and also that, sometimes, regardless of enforceability, there is a value to a claimant in a respected foreign court’s ruling on the libel. Defamation law is strongly reflective of attitudes and national values. While core constitutional law values drive U.S. courts to depart dramatically from the usual assumptions about enforcement of the judgments of civilized nations, the article argues that courts must recognise that universal values of freedom of speech and protection of reputation may play out differently in countries of different social and historical backgrounds. The concept of a margin of appreciation, a concept borrowed from modern European jurisprudence, may assist courts to respect the libel laws of other countries where they do not conform exactly to those of the forum.

3. Kate Kovarovic (American University-Washington College of Law), When the Nation Springs a [Wiki]Leak: The 'National Security' Attack on Free Speech, 14 Touro Intl. L. Rev. 273 (2011). The abstract states:

The WikiLeaks website has dominated global media headlines since June 2010, when it first released a series of documents speaking to national security issues. Since then, WikiLeaks administrators have overseen two further series of document releases, most recently in November 2010. Public condemnation of the website has only grown in this time, and both the website and its administrators have come under intense scrutiny in recent months. However, scholars and politicians have been far too quick to condemn the website for the illegality of its actions, often pushing for prior restraint of the documents under the national security exception to free speech. Although this exception has long been accepted under both domestic and international law, these politicians and scholars have improperly applied the standards of this principle. In more closely examining U.S. legal history relating to the national security exception, it is clear that the WikiLeaks website continues to function within its legal boundaries. This Article details the evolution of the national security exception in both national and international law, and later analyzes this principle in the context of the WikiLeaks releases. The Article then closes by exploring possible methods of inducing greater cooperation between government and media.

4. Anne Sy Cheung (University of Hong King-Faculty of Law), Exercising Freedom of Speech Behind the Great Firewall: A Study of Judge's and Lawyer's Blogs in China, 52 Harv. Intl L. J. Online  --- (2011). The abstract states:

In order to better understand the relationship between the power of the Internet and the exercise of free speech in China, this study has chosen to examine the blogs of 42 judges and 13 public interest lawyers in the period between January 1, 2007 and December 31, 2008. Both judges and lawyers represent two unique groups of professionals, where the former are often perceived to be government representatives while the latter are seen as guardians of people’s welfare. The focus of the study, therefore, is on an analysis of these two groups of legal elites and how they have made use of their unique roles to open up a professional public sphere on the Internet and to act as a go-between in coordinating a match between the state and the people. Through passing on messages of contention and dissatisfaction from the people to the ruler, and in reminding both of them of the significance of law, the legal and political boundaries set by the authorities are being pushed, challenged, and renegotiated.

Drawing on existing literature on boundary contention and the Chinese cultural norm of fencun (decorum), this study highlights the paradox of how one has to fight within boundaries so as to expand the contours of the latter for one’s ultimate freedom. Judging from the content of the collected postings, one finds that, in various degrees, critical voices can be tolerated. What emerges is a responsive and engaging form of justice which endeavors to address grievances in society, and to resolve them in unique ways both online and offline.

5. Perry Dane (Rutgers School of Law-Camden), Review of 'Islam and the Secular State: Negotiating the Future of Shari 'a' by Abduallahi Ahmed An-Na'im , published in Ancient Traditions, New Conversations (2011). The abstract states:

This is a review of “Islam and the Secular State: Negotiating the Future of Shari‛a” by Abduallahi Ahmed An-Na‛im. An-Na‛im’s book is an important and interesting effort to build a case, grounded in Islam itself, for why Islamic societies need to establish “secular” states that are “neutral regarding religious doctrine” and do “not claim or pretend to enforce … the religious law of Islam.” An-Na‛im’s multi-faceted discussion draws on a variety of arguments, but is most compelling in its account of the distinct discursive demands of the state and the religious legal community. The analysis has some distinct weaknesses and leaves open some important questions. But it does prompt the thought that there might be a larger underlying religious logic to something like the separation of religion and state. Particularly in the context of the modern state, this is a logic to which all faith traditions might be wise to pay heed.

6. Yuval Merin (The College of Management Academic Studies), Anglo-American Choice of Law and the Recognition of Foreign Same Sex Marriages in Israel-On Religious Norms and Social Reforms, 36 Brooklyn J.  Intl. L. 509 (2011). The abstract states:

Israeli same-sex couples who marry abroad may register as "married" in the Population Registry and may enjoy a few of the rights associated with the institution, but their marriages are unrecognized for most other purposes. Since the field of marriage recognition is not regulated under Israeli positive law, the courts will have to decide whether to apply the English personal law system or the American principle of lex loci celebrationis. A critical comparison between the two competing systems reveals that the American rule is preferable since it best promotes the policy objectives which choice of law rules in the field of marriage recognition should seek to achieve. It is also preferable since it best corresponds to the unique social and legal conditions prevalent in the State of Israel. Foreign marriages performed by Israeli same-sex couples (valid in the place of celebration) should thus be recognized, subject to the public policy exception. Religious norms, which are exclusively applied in matters of marriage and divorce within Israel, should not be considered in the framing of the public policy exception, which should be interpreted narrowly, as protecting only democratic, secular, rational and liberal values. Thus, and based on the scope and interpretation of the public policy doctrine in Anglo-American law, the prohibition on same-sex marriages within Israel does not reflect a strong enough public policy for the invalidation of such marriages when contracted abroad.

7. Nelson Tebbe (Brooklyn Law School), Smith in Theory and Practice, 32 Cardozo L. Rev. 2055 (2011).  The abstract states:

Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and other mechanisms for circumventing its main rule. While this brief piece does not attempt to prove the empirical claim that Smith has had a limited real-world impact, it gives reasons to think that it might be accurate. Moreover, it tests a similar argument with respect to scholarship, suggesting that even theorists who are sympathetic to Smith nevertheless are more willing to agree to exemptions in particular scenarios than is commonly realized, although important differences of degree and kind still separate them from opponents of the decision and from each other. The Conclusion offers one reason to celebrate this Essay’s depiction of how Smith actually operates, assuming it is correct: Raising awareness of its flexibility in the real world could lower the stakes of the ongoing national conflict over the proper place of religion in American public life.

JFB