First Amendment Law Prof Blog

First Amendment Scholarship Update

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

1. Daniel Augenstein (Tilburg University) Excluded Publics-Included Privates: The Janus-Headed Nature if the Liberal Public-Private Divide, published in The Public In Law, P. Charalampos, C. McCorkindale & C. Michelon, eds., Ashgate (2011). The abstract states:

The justification of the liberal public-private divide rests on two distinct claims that are often lumped together: first, that the distinction between a ‘public sphere’ and a ‘private sphere’ is a meaningful way to cognise and structure modern pluralistic societies; and secondly, that there is a meaningful way to distinguish what is or ought to be ‘public’ from what is or ought to be ‘private’. The paper critically scrutinises the plausibility of both claims in the context of European debates on the display of religious symbols in the public sphere. It argues that the distinction between the public sphere and the private sphere provides the framework for negotiating the ‘public’ and the ‘private’ between national majorities and religious minorities as members of the same national community: the exclusion qua public from the public sphere contains a simultaneous inclusion qua private in the private sphere that is premised upon the inclusion of the excluded in the polity as a whole. 

2. Salvador Santino Regilme Jr. (De La Salle University) Southeast Asia: A Sui Generis Case on the Study of Political Islam and Democratization, published in Taiwan Journal of Democracy, Vol. 6, No. 2, pp. 157-161, (December 2010). The abstract states:

Book Review: Johan Saravanamuttu, ed., Islam and Politics in Southeast Asia (London and New York: Routledge, 2010), 188 pages. 

3. Yossi Nehushtan (Haim Striks Law School, College of Management) The Links between Religion and Intolerance, published in Philosophy and Theology, Vol. 23, No. 1, pp. 91-132. (2011). The abstract states:

This paper explores two main arguments. The first argument is that religious persons - because they are religious persons - are likely to be more intolerant than non-religious persons. This argument is supported by decisive empirical evidence. The second argument is that there are meaningful, clear and unique theoretical links between religion, or, more precisely, certain types of religion, and intolerance. It is submitted that the special links between religion and intolerance are the result of seven characteristics of religion which are specified in the paper. Both arguments should encourage us to re-evaluate the proper place that religion should have in the legal and political sphere. 

4. Bernard M. Levinson (University of Minnesota) and Joshua A. Berman, The King James Bible at 400: Scripture, Statecraft, and the American Founding, published in The History Channel Magazine pp. 1-11, (November 2010). The abstract states:

This short article addressed to a broader readership investigates the impact of the King James Bible upon the American founding. In order to show that impact, the article's first half portrays the political context for the formation of the King James, charts the influence of the Bible upon early modern political thought, and then sketches the impact of the KJV upon the rhetoric and political thought of the Founders. The essay is accompanied by a timeline. 

5. David G. Yosifon (Santa Clara University-School of Law) The Public Choice Problem in Corporate Law: Corporate Social Responsibility after Citizen United, 89 N.C.L.Rev. 1197 (2011). The abstract states:

The Supreme Court held in Citizens United v. Federal Elections Commission (2010) that the First Amendment forbids Congress from restricting the political speech of corporations. While corporate theory did little to inform the Court’s thinking in Citizens United, this Article argues that the holding in Citizens United requires us to rethink corporate theory. The shareholder primacy norm in American corporate governance relies on the assumption that corporations can be restrained from influencing external governmental operations. We can enjoy the efficiencies generated by shareholder primacy in corporate governance, mainstream corporate theorists have long argued, because we can rely on external regulation to curb or cure the excesses that such a framework will predictably visit upon nonshareholding stakeholders, such as workers, consumers, and communities. Citizens United removes this lynchpin from canonical justifications for exclusive shareholder orientation in firm governance. This Article argues that if we cannot as a matter of constitutional law keep corporations out of our democracy, then we must as a matter of corporate law have more democracy in our corporations. After Citizens United, we must begin to restructure corporate law to require boards of directors to actively attend to the interests of multiple stakeholders at the level of firm governance. 

6. Jeremy Peterman, Note - Empowering the PAC: Improving Accountability and Equality in Elections Following Citizens United, forthcoming in New York University Law Review. The abstract states:

The modern campaign finance system is praised by few and maligned by many. Following Citizens United decision critics blamed the Court for further enabling unaccountable groups to run undesirable negative advertising campaigns and for reinforcing the perception that the political process is governed by corporate special interests. Taking the doctrinal changes in Citizens United as given, I argue that the Federal Election Campaign Act’s $5000 limitation on individual contributions to political committees should be removed for two reasons. First, in light of recent campaign finance decisions, the limitation appears to be unconstitutional as it imposes a limit on First Amendment rights without being tailored to the government interest in preventing quid pro quo corruption. Second, eliminating the contribution limitations will have previously unrecognized normative benefits. Specifically, removing the restriction will enable smaller, ideological, PACs to better compete with more established corporate PACs and it may lead to an increase in accountable political speech by putting more money into the hands of candidates. 

JFB
 

Do Ratings Websites Merit First Amendment Protection?

Gene Policinski of the First Amendment Center looks at how the comments that appear on websites such as Yelp and Angie’s List, sites that post ratings of professional services, should be treated as a matter of constitutional law.  

JFB

Without Faith Healing Exemption, Oregon Parents Face Criminal Charges for Failing to Seek Medical Care for Children

The New York Times examines the upcoming trial of Timothy and Rebecca Wyland, Oregon parents charged with criminal mistreatment of the infant daughter for whom they sought no medical care after she developed a large tumor behind her eye.  The child was removed from her parents’ home in June. The Wylands are members of the Followers of Christ Church, a denomination that relies on faith healing rather than conventional medicine.  In 1999 Oregon repealed its law exempting such believers from criminal prosecution when they failed to seek medical care for their children. The Times reports that this change was prompted at least in part by 1998 news reports that 21 of the 78 children buried in the Church’s graveyard could have lived if their parents had sought medical treatment for them.

JFB         
 

New York Times Reporter Subpoenaed in CIA Leak Case

NPR and the New York Times report on DOJ’s subpoena of Times reporter Jim Risen in leak case against former CIA operative Jeffrey Sterling. In the Times, Risen states: “I am going to fight this subpoena. I will always protect my sources, and I think this is a fight about the First Amendment and the freedom of the press.”

JFB

LAPD Asks Media Not to Publish Mugshot of Suspect in Dodger Stadium Fan Attack

A commentary from Ken Paulson of the First Amendment Center examines the ethical and constitutional questions presented by the LAPD’s request that media organizations not publish the mugshot of the man alleged to have violently attacked a fan at Dodger Stadium on opening day.  The police fear publication of the photo could create problems as they try to secure witness identifications of the suspect in future lineups. The LA Times has agreed not to publish the photo.  

JFB       

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

White House Releases New Partnership Guide for Faith-Based Organizations as Churches Lead Flood Relief Initiatives

The Religion Clause Blog notes that the White House last week released Partnerships for the Common Good: A Partnership Guide for Faith-Based and Neighborhood Organizations.  The release of the guide comes as churches are assuming a leadership role in the response to flooding in Memphis.  As NPR reports, Memphis area churches, rather than the Red Cross, are the principal providers of shelter, food, and other relief services needed by area flood victims.  NPR’s report indicated that  the director of the White House Office of Faith Based Initiatives had recently visited Memphis to observe the operation of Shelby Cares, the interfaith relief initiative set up respond to disaster needs in Shelby County, Tennessee. 

JFB

First Amendment Scholarship Update

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

1. Laura Underkuffler (Cornell University-School of Law), Odious Discrimination and the Religious Exemption Question, 32 Cardozo L. Rev. 2069 (2011). The abstract states:

Recently, claims have been asserted that religious exemptions should be afforded to individuals who object to providing public and commercial services to gay and lesbian individuals, as otherwise mandated by law (e.g., municipal clerks who must grant same-sex marriage licenses, or commercial vendors who are asked to serve at same-sex weddings). This article argues that just as religious exemptions of this sort are not granted for discrimination on the basis of race, religion, national origin, or gender, they should not be granted for discrimination on the basis of sexual orientation or transgender status. Discrimination on the basis of an individual's identity, biology, or other immutable characteristics has been labeled odious by our laws, whether motivated by religious beliefs or not. There is no reason why odious discrimination on the basis of sexual orientation or transgender status should be singled out for exemptions that no other civil rights permit. 

2. Chad G. Marzen (Engles, Ketcham, Olson & Keith, P.C.), Religion and the Alien Tort Statute, 1 Creighton Intl. & Comp. L. J. 1 (2011). The abstract states:

This paper examines the topic of religion generally and the Alien Tort Statute. 

3. Kevin Lee Brady (University of Chicago-School of Law), Comment - Religious Sincerity and Imperfection: Can Lapsing Prisoners Recover Under RFRA and RLUIPA , U. Chi. L. Rev. 1-35 (2011). The abstract states:

Congress recently passed the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). These Acts prevent federal and state officials from imposing a "substantial burden" on prisoners’ religious exercise, unless the burden advances "a compelling governmental interest... and is the least restrictive means of furthering that... interest."
 
In accordance with these Acts, prison officials often allow inmates to read scriptures, attend services, eat religious foods, and participate in fasts. But what happens if officials provide accommodations and inmates fail to take advantage of them? Must prison officials continue accommodating these so-called "backsliding" prisoner? Circuits are split over this question.
 
Specifically, courts have recently disagreed whether it is a "substantial burden" for prisons to withhold religious diets after prisoners fail to keep them. In Daly v Davis, the Seventh Circuit held that removing a violating prisoner from a kosher food program wasn’t a substantial burden under RFRA. On the other hand, in Lovelace v Lee, the Fourth Circuit held that removing one-time violators from a fasting program was a substantial burden under the equivalent RLUIPA standard, despite a lengthy dissent from Judge Harvie Wilkinson.
 
This Comment analyzes the current debate and suggests a novel solution - one that addresses these questions and overcomes the weaknesses of the current approaches. Part I summarizes the First Amendment jurisprudence that led to RFRA and RLUIPA and briefly explains how courts have interpreted these Acts. Part II describes courts’ attempts to determine if removing violating prisoners from dietary accommodation programs is a substantial burden.
 
Part III argues that courts are focusing on the wrong issue. Both sides rush to determine whether removing backsliding prisoners is a substantial burden, but both overlook the critical prior question: Is there even a burden on religious exercise? To answer this question, courts must know if prisoners hold sincere religious beliefs. I therefore argue that sincerity is the determinative inquiry when analyzing the claims of backsliding prisoners. Unfortunately, courts have not developed a formal sincerity test in RFRA and RLUIPA cases. Courts should remedy this problem by applying a modified version of the sincerity test developed for conscientious objectors to military service in Witmer v. United States. My approach allows sincere but imperfect prisoners to exercise their beliefs, but doesn’t force prison officials to accommodate mendacity.

4. Marci A. Hamilton (Cardozo Law School), Employment Division v. Smith at the Supreme Court: The Justices, the Litigants, and the Doctrinal Discourse , 32  Cardozo L.  Rev. 1671 (2011). The abstract states:

Since it was decided twenty years ago, many commentators, both scholarly and otherwise, have characterized Employment Division v. Smith as a dramatic, unjustified departure from previous free exercise cases. This interpretation of the case is so prevalent that it is treated by many within and outside the field as obvious truth. The oft-stated premise is that Smith was on all fours with previous, obviously controlling case law, which mandated that the plaintiffs should have won. This reading treats a very small number of cases as determinative of free exercise doctrine, ignores the facts in Smith that distinguished it from those earlier cases, and also suffers from a failure to take into account how the case was treated at the Supreme Court by the parties and the Justices.

5. William P. Marshall (University of North Carolina at Chapel Hill-School of Law), Smith, Christian Legal Society and Speech-Based Claims for Religious Exemptions from Neutral Laws of General Applicability , 32 Cardozo L. Rev.1937 (2011). The abstract states:

Does proscribing discrimination on the basis of religion itself discriminate against religion? In Christian Legal Society v. Martinez, the Supreme Court, in a 5-4 decision, recently dodged this question, holding instead that a Law School’s anti-discrimination policy that apparently required a student organization to admit or allow any student to participate in its activities (“an all-comers policy’) did not violate the first amendment rights of a student organization that sought to exclude students on the basis of religion and sexual orientation.
 
But, because there was some dispute as to whether the Law School actually had an “all-comers policy” or whether its anti-discrimination requirements were limited to prohibiting discrimination “on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation,” as set forth in the Law School’s written policy, the question of whether this latter type of anti-discrimination measure would survive constitutional scrutiny was very much on the minds of the Justices. Justice Alito, writing for the four dissenting Justices, in fact, opined that the Law School’s written policy violated the first amendment on grounds that it discriminated against religious expression. As Justice Alito argued, “the policy singled out one category of expressive associations for disfavored treatment: groups formed to express a religious message. Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming. An animal rights group was not obligated to accept students who supported the use of animals to test cosmetics. But CLS was required to admit avowed atheists. This was patent viewpoint discrimination.”
 
At one level, of course, Justice Alito’s observation is accurate. The Nondiscrimination Policy ostensibly allows secular groups to discriminate in favor of students who share their beliefs while it presumably prohibits religious organizations from doing the same. But Justice Alito’s solution exempting religious organizations from Nondiscrimination Policy requirements creates inequalities as well. After all, the Nondiscrimination policy also prevents secular groups from discriminating on the basis of religion - a pro-choice group for example could not deny membership to a person who held religious objections to abortion. Why should religious-based discrimination be allowed but secular-based discrimination prohibited? Similarly, the Nondiscrimination Policy prevents a race-based organization, for example, from excluding a person of a different race just as much as it bars a religious organization from discriminating on the basis of religion. Why should only religious-based discrimination be allowed? Seen in this light, then, Justice Alito’s argument is one for special exemption for religion and not one for equal treatment. As such, his opinion raises the question of whether an exemption for a religious organization from a neutral law of general applicability can be required under the Speech Clause, even as similar claims for exemption are no longer cognizable since Employment Division v. Smith under the Free Exercise Clause.
 
This article will attempt to unpack the claim for special exemption for religious organizations advanced in Justice Alito’s opinion. As noted, this claim, although advanced under free speech auspices, closely parallels the free exercise claim for exemption rejected in Smith. Accordingly, this article will also discuss the more general proposition of whether claims for religious exemptions from neutral laws, having been rejected in the Free Exercise context, should be recognized under the Speech Clause. 

6. Christopher C. Lund (Wayne State University Law School), Exploring Free Exercise Doctrine: Equal Liberty and Religious Exemptions, 77 Tenn. L. Rev. 351 (2010). The abstract states:

Commentators have long argued over the meaning of the Free Exercise Clause and the basic question it now poses: To what extent should society accommodate religious exercise by making exceptions to generally applicable governmental laws for religiously motivated behavior? It is rare to find an absolutist on these issues. Few believe that religious exemptions are always appropriate; few believe that they are always inappropriate. The difficult tasks have been in drawing the line between appropriate religious exemptions and inappropriate ones, figuring out what types of doctrinal arrangements can best approximate that line, and deciding which levels and branches of government are justly charged with deciding these issues.
 
Over the past fifteen years, Professors Christopher Eisgruber and Lawrence Sager have built up a comprehensive theory that addresses these questions—a theory they call Equal Liberty. Equal Liberty is not just a theory of religious exemptions; it addresses the full range of Religion Clause topics. But Equal Liberty has special importance for those concerned with the Free Exercise Clause. Eisgruber and Sager represent the best of a new wave of theorists who attack religious exemptions. They do so principally neither on grounds of federalism or judicial restraint, nor on grounds of manageability or originalism. Rather, they attack religious exemptions on the general premise that they are fundamentally unfair to nonreligious people.
 
This piece examines certain questions that Equal Liberty raises that have gone relatively unexplored, focusing principally on matters of constitutional doctrine. It begins by raising questions about whether Equal Liberty can really be translated into a usable set of doctrinal principle. And from that initial point, it goes on to explore how, when it comes to Free Exercise, it is largely doctrine that divides us. We agree, for the most part, on how cases should be decided; we mostly agree on what the ideal state of religious liberty looks like. Our most intense disagreements, however, are about the doctrine we need to get us there. This review looks at those disagreements, to discover their roots, explore their significance, and examine their possible resolutions. 

7. Matthew L.M. Fletcher and Peter S. Vicaire (Michigan State University College of Law and Indigenous Law & Policy Center), Indian Wars: Old and New .The abstract states:

This short paper analyzes American history from the modern “wars” on poverty, drugs, and terror from the perspective of American Indians and Indian tribes. These domestic “wars” are aptly named (it turns out), as the United States often blindly pursues broad policy goals without input from tribal interests, and without consideration to the impacts on Indians and tribes. With the possible exception of the “war on poverty,” these domestic wars sweep aside tribal rights, rights that are frequently in conflict with the overarching federal policy goals.
 
This essay explores three declared domestic wars, and their impacts on American Indian tribes and individual Indians, in loose chronological order, starting with the war on poverty. As Part 1 demonstrates, the Johnson Administration’s Great Society programs helped to bring American Indian policy out of the dark ages of the era of termination, in which Congress had declared that national policy would be to terminate the trust relationship. Part 2 describes the war on drugs, declared by the Reagan Administration, which had unusually stark impacts on reservation communities both in terms of law enforcement, but also on American Indian religious freedom. Part 3 examines the ongoing war on terror, which Bush Administration officials opined has its legal justification grounded in part on the Indian wars of the 19th century. The war on terror marks America’s return to fighting a new Indian war, where the adversary is illusive and motivated, and where the rule of law is literally obliterated.
 
This is a paper prepared for the Journal of Gender, Race, and Justice's 15th Anniversary symposium, "War On ... The Fallout of Declaring War on Social Issues." 

8. Jessie Hill (Case Western Reserve University School of Law), Whose Body? Whose Soul? Medical Decision-Making on Behalf of Children and the Free Exercise Clause Before and After Employment Division v. Smith, 32 Cardozo L. Rev. 1857 (2011). The abstract states:

Within constitutional law, children’s rights have suffered from severe neglect. The issue of parents’ constitutional rights to deny children medical treatment based on religious belief is one area in desperate need of attention. Although the Supreme Court’s 1990 decision in Employment Division v. Smith seemingly set forth a relatively clear rule regarding the availability of exemptions from generally applicable laws - such as those requiring parents to ensure that their children receive appropriate medical care - Smith has changed little in this realm, and if anything, it has only confused matters, highlighting the intractable nature of the issue. While Smith emphasized the police power of the state over the individual’s religious motivations and revived the belief/conduct distinction, it also introduced the needlessly confusing concept of “hybrid rights,” which may encompass parental rights to control their children. This brief Essay argues that the Free Exercise Clause is in fact irrelevant to the issue of parents’ rights to make medical decisions for their children and that courts should begin to recognize this irrelevance. The cases involving such claims revolve almost entirely around issues that are largely unrelated to the parents’ religious exercise; in addition, it is unclear that they involve the sort of governmental coercion that is required in order to state a free exercise claim. This Essay concludes by exploring the possible implications of recognizing the irrelevance of parental free exercise in medical decision-making cases.

9. Ann Bartow (University of South Carolina-School of Law/Pace Law School ), Copyright Law and the Commodification of Sex.The abstract states:

Can the government constitutionally decline to provide copyright protections for creative works of pornography that cause harm? Yes, it can, and it should. Some pornographic works cannot reasonably be construed as promoting “progress” or “useful arts” either because people are harmed during their production, or as a consequence of their distribution and consumption. Withholding copyright protections would sharply reduce the economic value of these works without unconstitutionally preventing their authorship or precluding their publication or circulation. Government actors would have to make difficult assessments about which pornographic works belonged in the “non-progressive” and “non-useful” category, and their decisions wouldn’t always be consistent or even coherent. Nevertheless, depriving a work of the copyright protections it would otherwise automatically be vested with does not rise to the level of government censorship, because the consequences of a wrong decision are simply a reduction in the economic incentives provided by the government. Denying copyright protection to problematic works does not constitute censorship, and when the harms associated with non-useful works are severe enough, doing so is justifiable and important.
 
This Article proceeds in four parts:  
1. Copyright law has a structural role in the commoditization of sex. When a generally illegal act of buying and selling sex is fixed in a tangible medium of expression, it becomes an act of free speech that is protected by the First Amendment and an article of intellectual property that is protected by copyright laws.
2. Copyright is not a content neutral construct. Copyright laws facilitate the suppression of speech that is copyrighted, speech that is substantially similar to speech that is copyrighted, and speech that is an unauthorized derivative work of speech that is copyrighted. Injunctions premised on allegations of copyright infringement are acts of content based censorship by the government.
3. Some pornographic works may cause harms during production, or as a consequence of distribution, or both. These works are non-progressive and non-useful, and therefore beyond the purview of the Intellectual Property Clause of the U.S. Constitution. They include child pornography, crush pornography, “revenge” pornography, and pornography in which the performers are physically abused or endangered.
4. Withholding copyright protection from non-progressive and non-useful pornographic works would appropriately reduce the government’s role in creating economic incentives for their creation and distribution. Amending the Copyright Act to reduce the ways in which the economic value of harmful pornography can be exploited is a legitimate policy choice that Congress can and should make. The government should not continue to provide copyright incentives for the production and distribution of harmful works. Trademark law is instructive on this point in both positive and negative ways. The Lanham Act’s prohibition of the federal registration of scandalous and immoral marks provides an example of government promulgated content based restrictions that do not offend the Constitution. Admittedly, however, the unpredictable, inconsistent manner in which the prohibition is enforced is problematic and worrisome.

10. Irene M. Ten Cate (Columbia Law School), Speech, Truth, and Freedom: An Examination of John Stuart Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses, 35 Yale J. L. & Humanities 35 (2010). The abstract states:

This Article is the first in-depth comparison of two classic defenses of free speech that have profoundly influenced First Amendment law: John Stuart Mill's On Liberty and Justice Holmes's dissenting opinion in Abrams v. United States. Both defenses argue that dissenting speech plays a critical role in a collective truth-seeking endeavor, and they are often grouped together as advocating for a "marketplace of ideas," a metaphor that has become a fixture in American constitutional law.
 
However, this Article finds that, on closer examination, the two theories are grounded in fundamentally different views of the quest for truth and the role of speech in this undertaking. Mill envisions a process in which clashes between contrary opinions lead to progress in uncovering universal, unchangeable truths. Individuals who express unpopular views are indispensable, as their challenges to prevailing opinions keep the search for truth, and the meaning of already discovered truths, alive. The mentions of "truth " in the Abrams dissent, consistent with elaborations on the subject in Holmes's scholarly writings and correspondence, are best read as referring to choices made by majorities or dominant forces in response to internal and external challenges to the status quo. Holmes's commitment to free speech appears to be based primarily on its role in safeguarding a process by which decision-making factions can be formed This Article argues that a key to understanding the differences between the two defenses lies in the ideas about freedom that are at the heart of Mill and Holmes's world views. Mill believes that individuals are free in the sense that they have the ability to choose their beliefs, even if they frequently opt for the easier alternative of uncritically following the mainstream. At the same time, he believes that a society can create conditions that are conducive to individual flourishing. Mill's free speech defense is based not only on the argument that individuals are more likely to pick true beliefs if presented with several alternatives, but also on the notion that a society that prizes dissent promotes the development of character traits in its citizens that will in turn allow that society to prosper. Holmes, on the other hand, views individuals as constrained by firmly rooted preferences shaped by accidental circumstances, but regards society as constantly evolving and adjusting and, to a large extent, free to determine its future course. His defense is staked on a constitutional commitment to safeguarding the conditions for collective self-determination in an uncertain and perpetually changing world.  

11. William P. Marshall (University of North Carolina at Chapel Hill-School of Law), Judicial Takings, Judicial Speech, and Doctrinal Acceptance of the Model of the Judge as Political Actor, 6 Duke J. Const. L. & Pub. Pol’y 1 (2011). The abstract states:

The criticism that a judge has injected her policy preferences into her judicial decision making is just that - a criticism. But for years, academics from a variety of disciplines have set forth a rich literature asserting that judges’ policy preferences, rather than adhesion to neutral legal principles, determine legal results in close cases. Much of this writing, referred to here as Judicial Political Realism, has been based upon empirical studies which show that a judge’s ideology (usually determined by referencing the political party of the judge’s appointing president) significantly explains patterns of judicial votes.
 
Not surprisingly, the Judicial Political Realist literature generally has not been warmly received by the practicing bar, judges, and (most) legal academics because most lawyers, judges, and legal academics like to believe that legal rules, legal doctrine and legal reasoning matter even in close cases. Against this background, however, it is interesting to note two recent United States Supreme Court cases in which the Court, or at least some of its Justices, has implicitly appeared to allow the notion that judges are political actors to infiltrate constitutional doctrine. In the first, Republican Party of Minnesota v. White, a Court majority ruled that a state could not prohibit candidates for judicial office from announcing their views on issues that might come before them. For First Amendment purposes, judicial candidates were to be treated no differently than legislative candidates; the voters were entitled to know the candidates’ views on the issues and they would be expected to support or oppose a candidate on that basis. As such, the implicit suggestion in White mirrors the judges-as-political-actors critique-- judges, like legislators, bring political agendas to their service.
 
In the second, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, four Justices, in an opinion authored by Justice Scalia, again appeared to strongly embrace the Judicial Political Realist claim. In Stop the Beach, the four Justices argued that the Court should recognize a doctrine of ‘judicial takings,’ meaning that a change in property rights resulting from a judicial opinion should entitle the aggrieved property owner to the same sort of compensation that a property owner would receive if the change to her rights occurred as a result of legislative enactment. To these Justices, there was no constitutional difference between judicial and legislative action for purposes of the Takings Clause. As such, even more graphically than White, the judicial takings theory advanced in Stop the Beach sets forth the vision of judges as political actors. Judicial decisions are not to be treated as interpretations of law but as exercises of raw political power akin to legislative enactment.
 
The Court in neither White nor Stop the Beach, of course, stopped to discuss the vision of judges as political actors inherent in their opinions. This paper does so. After first canvassing the specifics of both the White and Stop the Beach opinions, it analyzes what both cases say about the nature of judging and judicial institutions. 

12. Helen L. Norton (University of Colorado-School of Law), Campaign Speech Law with a Twist: When the Government is the Speaker, Not the Regulator, 61  Emory L. J. 1 (2011). The abstract states:

Although government entities frequently engage in issue-related campaign speech on a variety of contested ballot and legislative measures, this fact has been entirely overlooked in contemporary First Amendment debates over campaign speech law specifically and over government speech more generally. The Court’s "campaign speech" and "government speech" dockets have focused to date on claims by private parties that the government has impermissibly restricted or silenced their speech. In contrast, disputes over what this Article calls "governmental campaign speech" involve free speech clause and other challenges by private parties who seek instead to silence the government’s speech on matters subject to vote by members of the public or their elected representatives.
 
This Article thus explores when, if ever, governmental campaign speech on contested ballot and legislature measures is sufficiently dangerous to justify a departure from the general rule that government’s own speech is insulated from free speech clause review. This inquiry invites important and challenging questions about both the nature of government and the nature of speech, valuably forcing us to think about how government does, and should, work - as well as how speech does, and should, work. To this end, this Article re-examines the constitutionality of governmental campaign speech by incorporating perspectives offered by the emerging - but so far entirely separate - constitutional debates over campaign finance reform and government speech.
 
This Article contends generally that the more government speech on issue campaigns, the better. Transparently governmental campaign speech often provides great value to the public: it enhances political accountability by informing voters of their governments’ priorities and preferences; it provides a valuable heuristic for those who do not have the time or inclination to evaluate the competing arguments for themselves; and it adds to the marketplace of available ideas and arguments, especially (but not only) as a counter to expression from powerful private sources.
 
The Article also identifies limits to its general proposition that government’s campaign speech furthers, rather than frustrates, key constitutional values. First, it emphasizes that the government should be permitted to assert the government speech defense to constitutional challenges to its campaign speech on contested ballot or legislative measures only when that speech is transparently governmental in origin - i.e., when the public can clearly identify the message’s governmental origins and thus hold the government politically accountable for its views. Second, it distinguishes government campaign speech that involves government’s endorsement of specific candidates, concluding that the use of official government resources to engage in campaign speech endorsing or opposing specific candidates raises greater constitutional threats to First Amendment interests in constraining incumbents’ self-perpetuation. Finally, it highlights the availability of statutory and other non-constitutional limits on government campaign speech, concluding that such constraints are constitutionally permissible yet often unwise as a policy matter in light of such expression’s great instrumental value to the public. It urges instead that policymakers carefully target such constraints to address specific instances of abusive government speech. 

13. Michael Potere, Who Will Watch the Watchers?: Citizens Recording Police Conduct, 106 Northwestern U. L. Rev. 1 (2012). The abstract states:

Ordinary citizens are being arrested and prosecuted for recording police conduct in several states. These arrests are being made pursuant to state wiretapping statutes that prohibit recording any communication without the consent of all parties. Some of those arrested have filed lawsuits under 42 U.S.C. § 1983, claiming the arrests violate the First Amendment. However, courts have tended to dismiss these suits, arguing that the right to record the police is not "clearly established." This Note argues that the right to monitor police and report misconduct is a clearly established, if not fundamental element, of American policing. It also argues that arresting and prosecuting individuals that record police conduct is an unconstitutional prior restraint on speech. 

14. Neomi Reo (George Mason University School of Law), Three Concepts of Dignity in Constitutional Law,86 Notre Dame L. Rev. 183 (2011). The abstract states:

The U.S. Supreme Court and constitutional courts around the world regularly use the term human dignity when deciding cases about freedom of speech, reproductive rights, racial equality, gay marriage, and bioethics. Judges and scholars treat dignity as an important legal value, but they usually do not explain what it means and often imply that it has one obvious core meaning. A close review of constitutional decisions, however, demonstrates that courts do not have a singular conception of dignity, but rather different conceptions based on how they balance individual rights with the demands of social policy and community values. Using the insights of political theory and philosophy, this Article identifies three concepts of dignity used by constitutional courts and demonstrates how these concepts are fundamentally different in ways that matter for constitutional law. In contentious cases, the concepts of dignity will often conflict. If constitutional courts continue to rely on human dignity, judges must choose between different understandings of dignity. This Article provides the groundwork for making these choices and defending a concept of dignity consistent with American constitutional traditions. 

15. Lars Noah (University of Florida-Fredric G. Levin College of Law), Truth or Consequences?: Commercial Free Speech vs. Public Health Promotion (at the FDA), 21 Health Matrix: Journal of Law-Medicine 1 (2011). The abstract states:

Fundamental tensions obviously exist between constitutional protections of commercial speech and efforts to safeguard the public's health. The First Amendment values autonomy, while public health promotion often reflects paternalistic impulses, not trusting citizens to make sensible lifestyle choices. In other domains where constitutional rights may conflict with public health efforts, the Supreme Court has shown a degree of flexibility. In commercial speech cases, however, it has become far less willing to find a middle ground; the Court's increasingly stringent application of Central Hudson's nexus prongs has effectively narrowed the range of substantial government interests that ultimately can pass muster. This symposium contribution focuses on efforts by the U.S. Food and Drug Administration to restrict the flow of information about medical technologies to physicians and patients. As it happens, the Supreme Court's first and last words on commercial speech protections have involved advertising by professionals who dispense prescription drugs, but the pharmacy compounding case Thompson v. Western States Medical Center, 535 U.S. 357 (2002), has received scant attention from commentators. Only after cutting through the majority's simplistic description of (or perhaps failure to comprehend) the FDA's complex regulatory regime can one appreciate the potentially far-reaching consequences of that decision, especially the Court's sub silentio application of the unconstitutional conditions doctrine in an intermediate scrutiny case. The robust version of commercial free speech doctrine that seems to prevail today could profoundly impinge upon the government's preferred methods for promoting the public's health. Insofar as it has gone beyond simply guarding against the dissemination of false or misleading information and seeks to promote broader public health goals (such as dampening excess demand for potentially hazardous products), the FDA must confront the Court's increasingly clear message that paternalistic speech regulation invariably offends the Constitution. 

16. Daniel J. Solove (George Washington Law School), Nothing to Hide: The False Tradeoff between Privacy and Security. The abstract states:

"If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.
 
In addition to attacking the "Nothing-to Hide Argument," Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments - such as the "Luddite Argument,"the "War-Powers Argument," the "All-or-Nothing Argument," the "Suspicionless-Searches Argument," the "Deference Argument," and the "Pendulum Argument" - have skewed law and policy to favor security at the expense of privacy.
 
The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. But protecting privacy isn't fatal to security measures; it merely involves adequate oversight and regulation.
 
The primary focus of the book is on common pro-security arguments, but Solove also discusses concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.  

17. Rosalind Dixon and Richard Holden (University of Chicago-Law School and University of Chicago) Constitutional Amendment Rules: The Denominator Problem forthcoming in Comparative Constitutional Design, Tom Ginsburg ed. (2011).  The abstract states:

The difficulty of constitutional amendment, in most contexts, clearly depends on both the formal rules governing amendment and a variety of other factors. This chapter explores the significance one such non-textual factor: the size, or scale, of a polity. It, first, identifies a number of theoretical reasons to think that the “denominator” for constitutional amendment purposes may affect the difficulty of amendment in a jurisdiction; and second, uses an original dataset on constitutional amendments at a state-level in the US, and the size of state legislatures, to show a clear negative relationship between actual amendment denominators and the rate of constitutional amendment, in various US states. 

18. Graham Mayeda (University of Ottawa-Faculty of Law-Common Law Section), Access to Justice: The Impact of Injunctions, Contempt of Court Proceedings, and Costs Awards on Environmental Protestors and First Nations, 6 McGill J. of Sustainable Dev. L. & Pol’y 143 (2010). The abstract states:

The demonstrations against uranium mining exploration by aboriginal and non-aboriginal residents of Sharbot Lake, Ontario illustrate how three areas of law - the law of injunctions, contempt of court proceedings and the law of public interest costs - can have a negative impact on access to justice for protestors seeking to promote and protect environmental and human rights. Using these protests as a case study, the author suggests how the law in these three areas can be improved in order to make it more difficult for private individuals, corporations, and government to use the threat of imprisonment and crippling costs awards to dissuade aboriginal and environmental protestors from vindicating their rights. These suggestions range from strategic legal action to change legal rules on injunctions, contempt of court proceedings and costs awards, to anti-SLAPP suit legislation to facilitate access to justice for protestors. 

JFB
 

Enforcement Record Thus Far Under French Veil Ban

The New York Times reports that French police have charged 27 women out of the 46 stopped since the veil ban took effect in April. Those charged face a fine or may be required to take a citizenship course. According to Rachid Nekkaz, who leads a group challenging the ban, since April half of the women in France who had worn Islamic veils no longer do so. The French Interior Ministry had estimated that approximately 2,000 women wore facial veils before the ban was imposed.

An article in the Washington Post last month examined the experience of Muslim women in the U.S. who wear a niqab or full face veil, a choice made by a small minority of American Muslim women.  The women reported a variety of reactions, ranging from suspicion and hostility to sympathy and curiosity. However, the article notes that the Council for American-Islamic relations (CAIR) continues to receive complaints about veiled women being denied access to public and private locations.      
 
JFB

New Books Examine the Supreme Court and the Media and the Development of Civil Liberties Law

The Legal History Blog notes the publication of Justices and Journalists: The U.S. Supreme Court and the Media by Richard Davis and Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law by Ken Kersch.

JFB

Tenth Circuit Hears Oral Argument in Challenge to Stolen Valor Act

The Denver Post provides a glimpse into yesterday’s oral argument in U.S. v. Strandlof in which Rick Strandlof, a Colorado man who had falsely claimed he was a decorated Marine, challenges his prosecution under the Stolen Valor Act.  Strandlof prevailed below, and the government appealed. As recounted by the Post, the appellate panel wrestled with how the Constitution should be applied to this kind of false statement. The district court had found insufficient justification for such criminalization of speech given the absence of any specific victims harmed by Strandlof’s fraudulent claims. The government has argued that the Act “aims at preventing harm to the public from misappropriation of the benefits, reputation, and credibility properly accorded those who have earned military honors.”   The Ninth Circuit has ruled that the Act violates the First Amendment.  

JFB

 

Content Distinction in Florida Law Regulating Car Stereo Volume Violates First Amendment

Two motorists cited under a Florida statute regulating car radio volume have successfully asserted a First Amendment challenge to the law. The statute states:

Operation of radios or other mechanical soundmaking
devices or instruments in vehicles; exemptions—

(1) It is unlawful for any person operating or occupying a
motor vehicle on a street or highway to operate or amplify
the sound produced by a radio, tape player, or other
mechanical soundmaking device or instrument from within
the motor vehicle so that the sound is:
(a) Plainly audible at a distance of 25 feet or more from the
motor vehicle; or
(b) Louder than necessary for the convenient hearing by
persons inside the vehicle in areas adjoining churches,
schools, or hospitals.
(2) The provisions of this section shall not apply to any law
enforcement motor vehicle equipped with any
communication device necessary in the performance of law
enforcement duties or to any emergency vehicle equipped
with any communication device necessary in the
performance of any emergency procedures.
(3) The provisions of this section do not apply to motor
vehicles used for business or political purposes, which in the
normal course of conducting such business use
soundmaking devices. The provisions of this subsection
shall not be deemed to prevent local authorities, with respect
to streets and highways under their jurisdiction and within
the reasonable exercise of the police power, from regulating
the time and manner in which such business may be
operated.

In a ruling this week, the Florida Second District Court of Appeal found that the statute’s content-based differentiation between commercial and political speech and other kinds of speech was not justified by the required compelling state interest. In addition, the court certified the following question to the Florida Supreme Court:

Is the "plainly audible" language in Section 316.3045(1)(a), Florida Statutes, unconstitutionally vague, overbroad, arbitrarily enforceable, or impinging on free speech rights?

HT to How Appealing.

JFB

 

Sikh Paramedic Files Religious Discrimination Charge Against Hospital

KQRE in New Mexico reports that a Sikh paramedic has alleged that he was subject to harassment and discrimination because of his faith. Sahaj Khalsa asserts that his employer insisted that he shave his beard, which he is required to maintain as a tenet of his faith. The ACLU press release about the filing states:

[T]he American Civil Liberties Union (ACLU) of New Mexico filed charges with the New Mexico Equal Employment Opportunity Commission (EEOC) against Española Hospital and Presbyterian Health Services for fostering a work environment rife with religious discrimination and failing to take reasonable measures to rectify the situation. Plaintiff Sahaj Khalsa, an adherent to the Sikh religion, alleges that while employed as a paramedic at Española Hospital, coworkers and hospital administration actively discriminated against Khalsa because of his religion, making disparaging remarks, threats and, in one incident, physically assaulting him. He further alleges that hospital human resources staff made no meaningful attempt to curtail this religiously motivated harassment.

The affidavit filed with the EEOC provides further details about the case.  As reported in Stars and Stripes, in 2009 the U.S. Army granted a Sikh doctor’s request that he be allowed to wear a turban and beard while serving in the military. 

JFB

 

One Tennessee School System Ends Classroom Distribution of Gideon Bibles; Another Sued for Promoting Religion

The Tennessean reports that the White County, Tennessee school system will no longer allow the Gideons to distribute Bibles in classrooms.  The Tennessee ACLU had recently objected to a Gideon Bible distribution in a White County elementary school classroom during the school day.

Earlier this month the Tennessee ACLU filed suit against the Sumner County school system in an effort to combat what was described as “egregious” official promotion of religion.  The ACLU press release announcing the suit summarized the complaint’s allegations as follows:

Filed on behalf of nine students from four families, the lawsuit alleges a pattern and practice of the promotion and endorsement of religious activity dating back as early as 2006. This pattern and practice includes teachers leading students in prayer and Bible study sessions; the opening of one school to a youth minister who proselytizes frequently at student lunch tables; the distribution of Bibles during instructional time; prayer over the loudspeaker; the display of a cross on a classroom wall; preferential treatment of religious organizations in their ability to  distribute materials to students; songs at school musical performances being predominantly religious; graduation and other school events being held at churches; and the opening of school board meetings with prayer.

JFB

First Amendment Scholarship Update

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

1. Steven D. Jamar (Howard University School of Law), Religious Use of Copyrighted Works after Smith, RFRA, and Eldred,32 Cardozo L. Rev.1879 (2011). The abstract states:

In this Article, I evaluate the copyright doctrine of fair use and the use of injunctions to enforce copyrights in the context of religion in light of the Supreme Court decisions in Employment Division v. Smith and Eldred v. Ashcroft, and in light of the Religious Freedom Restoration Act (RFRA), the Congressional response to Smith. I conclude that religion is a special category such that the religious nature of the work and the religious nature of the use of a work should affect fair use analysis and, where fair use does not protect the use, injunctions should be used sparingly in favor of using the remedy of compulsory license.
 
These conclusions are supported by and are indeed in part a consequence of the social utilitarian foundation of copyright law in the United States and the related social justice principles of inclusion and empowerment, combined with the special place religion has in our constitutional scheme. My proposal provides a balanced, principled means for treating religion specially in the copyright context while maintaining both the copyright incentivizing function and the aim of making appropriate space for religious exercise and discourse. 

2. Stuart Minor Benjamin,Transmitting, Editing, and Communicating: Determining What “The Freedom of Speech” Encompasses, 60 Duke L. J. 1673 (2011). The abstract states:

How much can one say with confidence about what constitutes “the freedom of speech” that Congress shall not abridge? In this Article, I address that question in the context of the transmission of speech—specifically, the regulation of Internet access known as net neutrality. This question has implications both for the future of economic regulation, as more and more activity involves the transmission of bits, and for First Amendment interpretation. As for the latter, the question is what a lawyer or judge can conclude without having to choose among competing conceptions of speech. How far can a basic legal toolkit go? Using that toolkit, I find that bare transmission is not speech under the First Amendment, and that most forms of manipulation of bits also would not qualify as speech.

Adopting any of the leading conceptions of the First Amendment would narrow the range of activities covered by the First Amendment.But even without choosing among those conceptions we can reach some meaningful conclusions about the limited application of the First Amendment to Internet access providers.

3.Christopher J. Eberle (United States Naval Academy), Basic Human Worth: Secular and Religious Perspectives, published in New Waves in Philosophy of Religion, Erik Weilenberg and Yujin Nagasawa (eds.) (2007). The abstract states:

In western liberal democracies (and perhaps more broadly), it’s a truism that each human being has a very special and desirable moral status - roughly, that each has a worth, dignity or sacredness that equals that of any other human being. But, if we assume, as I do, that this special moral status is not just a surd, inexplicable fact about human beings, we’ll want to articulate some plausible account of what it is about each and every human being by virtue of which each has that status. After clarifying the claim at issue, I articulate reason to reject the most plausible secular account of what makes it the case that each human being has basic worth and then articulate a theistic alternative. 

4. Sahar F. Azziz (Georgetown Law Center; Texas Wesleyan School of Law), Caught in a Preventive Dragnet 10 Years Later: Selective Counterterrorism Against Muslims, Arabs and South Asians, forthcoming in The Journal of Race/Ethnicity: Multidisciplinary Global Contexts. The abstract states: 

The United States government’s preventive counterterrorism strategy is no secret. Weeks after the 9/11 terrorist attacks, former Attorney General John Ashcroft declared, “Our single objective is to prevent terrorist attacks by taking suspected terrorists off the street. Let the terrorists among us be warned: If you overstay your visa – even by one day – we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage.”
 
As the U.S. government adopted a no-tolerance policy to apprehending the terrorists, a fear-stricken public watched as images of nefarious dark-skinned, bearded Muslims flashed across millions of television screens. The message was, if there had ever been any doubt, that the 9/11 attacks confirmed Muslims and Arabs are inherently violent and intent on destroying the American way of life. Heightened scrutiny of these communities was thus perceived as not only warranted, but a rational response to an existential threat to the country.
 
Ten years later, the 9/11 terrorist attacks appear to have succeeded in transforming the American way of life for the worse. In our hasty passage of the expansive PATRIOT Act, our fears gave way to the government’s demand for unfettered discretion to preserve national security at the expense of civil liberties for all Americans. As a consequence, America has come to resemble a police state where government surveillance extends into almost every aspect of life.
 
Body scans at every airport strip us of our privacy. Fusion centers have sprung up in states across the country gathering intelligence on average Americans to deposit into massive databases monitored by the government. Warrantless National Security Letters are used to obtain information about our financial and political lives absent evidence of criminal activity. Police departments have shifted resources from necessary crime fighting to mapping communities based on their religious faith and ethnic origins under the auspices of protecting national security. Overreaching enforcement of broad material support to terrorism laws has chilled religiously mandated charitable giving and humanitarian aid operations, eroding the independence of the American nonprofit sector and unduly politicizing humanitarian assistance. And fears of pervasive “homegrown terrorism,” fueled by irresponsible Congressional rhetoric, have legitimized bigoted discourse on Muslims in America to the extent that some Americans challenge the status of Islam as a bona fide religion deserving of constitutional protection.
 
At first blush the preventive paradigm appears facially legitimate. Few would contest the collective public safety interests in stopping terrorism before it occurs. Even so, at what point should the government be permitted to investigate individuals? Does mere political dissent, even if virulently anti-American, or unpopular orthodox religious practices suffice to subject individuals to heightened scrutiny or worse, loss of liberty? At what point does legitimate counterterrorism become political and religious persecution? The answers determine the type of country we want to live in – a free and just society consistent with the Founding Fathers’ vision or a paranoid society dislodged from fundamental principles of fairness and the rule of law.
 
While post-9/11 preventive counterterrorism policies have adversely impacted various groups of Americans, no group has been as deeply affected as the Muslim, Arab, and South Asian communities. Mosque infiltration has become so rampant that congregants assume they are under surveillance as they fulfill their spiritual and religious obligations. Government informants have ensnared numerous seemingly hapless and unsophisticated young men such that Muslims no longer know whom they can trust among each other. Aggressive prosecutions of Muslim charities and individuals across the country have embittered communities that feel under siege by their government and despised by their non-Muslim compatriots. As most clearly evinced in the vitriolic discourse surrounding the Park 51 Community Center in lower Manhattan in 2010, selective counterterrorism enforcement has fueled public bias against Muslims. As a consequence, the vibrancy and development of civil society within these communities has been significantly stunted.
This article focuses on three of the most damaging components of the counterterrorism preventive paradigm and the significant risks they pose to the civil rights and civil liberties of the communities most targeted by the policies. First, the current preventative paradigm for countering terrorism risks seriously infringing on First Amendment protected activities and misdirects limited law enforcement resources away from criminal activity. Second, the wide-reaching and devastating effects of broadly interpreted material support laws on American Muslim charities and Muslim donors, as well as the broader American nonprofit sector, effectively criminalize otherwise legitimate charitable giving, peacebuilding, and human rights advocacy. Finally, the current debate about “homegrown terrorism” facilitates selective and arbitrary enforcement of counterterrorism laws against Muslims, while many non-Muslims commit acts of terror undetected.
 
To the extent that Muslims, Arabs, and South Asians are the “miner’s canary” in forecasting the post-9/11 loss of civil rights and liberties for all Americans, their experiences demonstrate America’s downward progression away from the Founding Fathers’ vision of a society where individuals can speak, assemble, and practice their faith free of government intervention or persecution.  

5. Christopher J. Eberle  and Capt. Rick Rubel (United States Naval Academy), Religious Conviction in Professional Arms. The abstract states:

Many political theorists have argued that religious reasons should play a rather limited role in public or political settings. So, for example, according to the Doctrine of Religious Restraint, citizens and legislators ought not allow religious reasons to play a decisive role in justifying public policies. Many military professionals seem to believe that some version of that doctrine applies in military settings, that is, that military professionals should not allow their religious convictions to determine how they exercise command authority. We explain why the Doctrine of Religious Restraint should not apply to military professionals and articulate an alternative understanding of the justificatory role legitimately played by religious considerations in military settings. 

6. Gila Stopler (Academic Center of Law and Business), Women As the Bearers of the Nation: Between Liberal and Ethnic Citizenship, published in Democratic Citizenship and War, pp. 164-179, Yoav Peled, Noah Lewin-Epstein, Guy Mundlak and Jean Cohen, eds., Routledge, ( 2011). The abstract states:

The situation of women in Israel is a complex one. While in many respects women enjoy advanced liberal citizenship rights, in other respects, especially in the domain of personal status law, they suffer from serious restrictions on their rights and from discrimination. It is customary to attribute these flaws in women's citizenship rights in Israel to the political influence exercised by powerful religious political parties. However, I will suggest a different, more foundational, explanation, for this state of affairs; an explanation, which, despite its apparent plausibility, is, to a large extent, hidden from the public eye and seldom discussed. I will claim that these flaws in the generally liberal regime of women's citizenship rights in Israel are the result of two factors: First, the fact that the state of Israel, which defines itself as a Jewish and democratic state, is the home of two national communities – the Jewish community and the Palestinian Arab community; and second, the fact that the Jewish community is in a continuous conflict with the Arab world and perceives itself as being in the midst of a struggle for self determination and for continued existence. I will argue that from the perspective of the Jewish community the aforementioned facts create a foundational imperative that Israel maintain its character as a Jewish state through a preservation of a Jewish majority in Israel, an imperative which results in legal restrictions on the right to marry and on the right to have an abortion, both of which, as I will show, are strongly related to communal preservation.

7. Bernard Dickens and Rebecca J. Cook (University of Toronto), Conscientious Commitment to Women's Health, published in International Journal of Gynecology and Obstetrics, Vol. 113, No. 2, pp. 163-166, (2011). The abstract states:

Conscientious commitment, the reverse of conscientious objection, inspires healthcare providers to overcome barriers to delivery of reproductive services to protect and advance women’s health. History shows social reformers suffering religious condemnation and imprisonment to promote means of birth control, until access became popularly accepted. Voluntary sterilization generally followed this pattern to acceptance, but overcoming resistance to voluntary abortion calls for courage and remains challenging. The challenge is aggravated by religious doctrines that view treatment of ectopic pregnancy, spontaneous miscarriage and emergency contraception not by reference to women’s healthcare needs, but through the lens of abortion. However, modern legal systems increasingly reject this myopic approach. Providers’ conscientious commitment is to deliver treatments directed to women’s healthcare needs, giving priority to patient care over adherence to conservative religious doctrines or religious self-interest. The development of in vitro fertilization to address childlessness further illustrates the inspiration of conscientious commitment over conservative objections. 

8.  Linda C. McClain (Boston University-School of Law), Religious and Political Virtues in Congruence or Conflict?: On Smith, Bob Jones University, and Christian Legal Society, 32 Cardozo L. Rev. 1959 (2011). The abstract states:

A basic tension in the U.S. constitutional and political order exists between two important ideas about the relationship between civil society and the state: (1) families, religious institutions, voluntary associations, and other groups are foundational sources, or “seedbeds,” of virtues and values that undergird constitutional democracy, and (2) these same institutions guard against governmental orthodoxy and overweening governmental power by generating their own distinctive virtues and values and by being independent locations of power and authority. The first idea envisions a comfortable congruence between civil society and government: the values and virtues - and habits and skills - cultivated in each domain are in agreement. Civil society institutions enjoy recognition as prominent sites for sustaining democracy. Or, at least, they are “mediating associations,” cultivating moral dispositions supportive of the political order. What happens, as the second idea contemplates, when values and virtues generated by other nongovernmental institutions conflict with political values and virtues? What does pluralism mean or require in a healthy constitutional democracy with a commitment, on the one hand, to the free exercise of religion and freedom of association, on the one hand, and, on the other, to a principle that free and equal citizenship requires being free from discrimination on certain grounds? Government may afford religious institutions exemptions from certain laws in order to protect religious freedom, but is not constitutionally required to, according to the landmark case of Employment Division, Department of Human Resources of Oregon v. Smith (1990). There, the majority warned that unfettered freedom of religious practice would allow each person “to become a law unto himself,” exempt from all manner of “civic obligations,” while Justice Blackmun’s dissent stressed the basic congruence between the values and interests underlying Oregon’s anti-drug law at issue and those of the Native American Church. This article looks back at Smith as an instructive case about the political and constitutional dilemma over congruence, pluralism, and how to resolve the clash between distinct constitutional values. I offer a similar analysis of Bob Jones University v. United States (1983) in which the Court upheld the IRS’s revocation of the university’s tax exempt status because of its racially discriminatory policies. I then evaluate Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez (2010), as a significant case about congruence: the clash between a public university’s attempts to carry out its educative mission through enforcing norms of antidiscrimination and a student organization’s freedom to choose its members and promote a particular message about sexuality. The treatment, in the various opinions, of the relationship among race, sex, and sexual orientation discrimination and the requirements of toleration is illuminating for a new generation of cases about clashes between free exercise and antidiscrimination law. 

9. Mark Koyama (University of York UK-Department of Economics and Related Studies), Evading the Taint of Usury, published in Explorations in Economic History, Vol. 47, No. 4, (2010). The abstract states:

The development of capital markets in medieval Europe was shaped for centuries by the religious ban on lending money at interest. This paper examines how this prohibition developed as the outcome of strategic behavior by religious, commercial and political elites. A model is developed to analyze this hypothesis and to examine how the usury prohibition developed over time. It suggests that an important reason for the persistence of the ban was that it created a barrier to entry that enabled secular rulers, the Church, and a small number of merchant-bankers to earn monopoly rents.

10. Jasmine S. Wynton, Note -Myspace, Yourspace, But Not Theirspace: The Constitutionality of Banning Sex Offenders From Social Networking Sites, 60 Duke L. J. 1859 (2011). The abstract states:

In recent years there has been intense public pressure to enact increasingly restrictive and intrusive sex offender laws. The regulation of sex offenders has now moved online, where a growing amount of protected expression and activity occurs. The latest trend in sex offender policy has been the passage of state laws prohibiting sex offenders from visiting social networking sites, such as Myspace or Facebook. The use of these websites implicates the First Amendment right of expressive association. Broad social-networking-site bans threaten the First Amendment expressive association rights of sex offenders, who do not lose all of their constitutional rights by virtue of their conviction. Although social-networking-site bans are politically attractive on the surface, such prohibitions are fundamentally flawed because they are predicated on a number of widespread misconceptions about sex offenses and sex offender behavior. These misconceptions include the beliefs that all registered sex offenders are violent sexual predators who have extremely high recidivism rates and that Internet predators are increasing the incidence of sex crimes against minors. In fact, there is very little evidence to indicate that this type of legislation will help reduce sexual violence. This Note argues for empirically based and narrowly tailored sex offender policies that will strike the appropriate balance between protecting minors from sexual abuse and respecting sex offenders’ constitutional rights. Such an approach is more likely to help rehabilitate offenders and thus protect children and others from sexual predators.

11. Jonathan Peters (Missouri School of Journalism), WikiLeaks Would Not Qualify to Claim Federal Reporter's Privilege in Any Form, 63 Federal Communications Law Journal 667 (2011).  The abstract states:

This Article addresses whether WikiLeaks could claim a federal reporter’s privilege if the U.S. government or a U.S. entity tried to compel one of the site’s staff members to disclose the source(s) of any documents it has released. After exploring the origins of the First Amendment-based privilege, the Author argues that WikiLeaks would not be able to claim it. First, the website does not engage in investigative reporting. Second, it has not taken steps consistently to minimize harm. He also discusses congressional attempts to pass a federal shield law, paying special attention to H.R. 985 and S. 448, the two most recent shield bills. The Author argues that WikiLeaks was an ill fit for their definitions of "covered person." For these reasons, the Author concludes that WikiLeaks would not qualify to claim a federal reporter’s privilege in any form.

12. Ian S. Speir (Georgetown University Law Center), Corporations, the Original Understanding and the Problem with Power. The abstract states:

How did Americans of the late eighteenth century conceive of the corporation and of its role in society? And how did that understanding square with the original, publicly understood meaning of the Constitution and Bill of Rights? More to the point, in the wake of the Supreme Court’s controversial decision in Citizens United, would late-eighteenth-century Americans have thought that a corporation enjoyed the "freedom of speech" that the First Amendment guarantees? This paper wrestles with those questions. It attempts, first, to articulate the "original understanding of the corporation," arguing that for Americans of this period the corporation presented what might be called a problem of power. There was a recognized need both to delimit legislative authority over the creation and subsequent regulation of corporations and to limit corporate influence in private and public life. The solutions that emerged in this period were aimed at curtailing the risks of special-interest laws, legislative partisanship, and corruption.
 
Understanding the corporation in this way is important because it supplies a critical link to original meaning. In drafting the Constitution and Bill of Rights, the Framers were animated by concerns similar to those possessed by participants in the early corporation debates. On the one hand, they recognized that the federal legislature would be comprised of self-interested actors whose powers had to be restrained, and one solution was the First Amendment, phrased and understood as an express limitation on congressional authority. Because the amendment aimed specifically at the powers of Congress, and not at the rights of speakers as such, text and contemporary understanding strongly suggest that the identity of the speaker was irrelevant for constitutional purposes. So understood, the First Amendment limits the ability of Congress to restrict "speech," regardless of its source. Lending support to this view is the nation’s first free speech controversy in 1794, involving politically active groups whose "self-created, permanent" status was unsuccessfully urged as grounds for denying them First Amendment protections. On the other hand, the Framers were also aware that powerful interest groups (“factions”) might exercise an outsized influence in public affairs. Importantly, however, they did not lodge a power in Congress to regulate and restrict these groups’ participation in the political process. Rather, the solution was institutional, a series of structural safeguards in the Constitution designed to limit possibilities for rent-seeking and corruption. Juxtaposition of these two solutions - the First Amendment’s limitations and the Constitution’s institutional controls - make out a strong case that, for the founding generation, a corporation would have enjoyed the First Amendment’s protections for "freedom of speech."

13. Alfredo Call and Sergio Doncel. (Columbia University and Universidad Complutense de Madrid), Freedom of Speech in American & Spanish Law: A Comparative Perspective. The abstract states:

The US Supreme Court has handed down a series of sentences, mainly in the area of obscenity, which have determined a series of very strict requirements with regard to the procedure that governments may take to control the exercise of rights guaranteed by the First Amendment. In this paper, we set to undertake the task of comparing how the Spanish legal system has dealt with similar problems in the past and in the present in comparison with the American legal system.

14. Tyler J. Buller, Subtle Censorship: The Problem of Retaliation Against High School Journalism Advisers and Three Ways to Stop It, forthcoming in Journal of Law and Education.. The abstract states:

This Article explores whether the problem of retaliation against high school journalism advisers is best addressed through courts, local school boards or state legislatures. Student journalists across the United States are threatened by a new, more-subtle form of censorship. Instead of principals cutting articles out of student newspapers or threatening expulsion for controversial editorials, student journalists’ most-trusted confidant and ally – their journalism adviser – is under fire, facing retaliation by school officials through discipline, reassignment, and even termination. This retaliation exploits a loophole in student journalists’ protections, resulting in indirect censorship and the chilling of student speech. After comparing the alternatives, this Article advocates that the best path to ending retaliation against journalism advisers is through state legislatures adopting statutes that prohibit adviser-retaliation, grant students a cause of action, and require local school districts to adopt consistent policies protecting student publications. 

15. James J. Woodruff II (Florida Costal School of Law),Where the Wild Things Are: The Polling Place and Voter Intimidation. The abstract states:

This article explores the use of current and proposed regulations to control voter intimidation at the polling place on Election Day. Section I of this article examines the definition of voter intimidation through the federal laws currently regulating such conduct. Section II outlines the various groups that regularly appear on Election Day and how they may engage in conduct that may be viewed by some as voter intimidation. Section III reviews the prosecution of voter intimidation since 2000. And section IV examines the current and proposed regulatory framework that has developed to reduce voter intimidation at the polling place. 

JFB

Judicial Watch Files FOIA Requests for Bin Laden Death Photos

This week Judicial Watch filed FOIA requests with the Defense Department and with the CIA seeking photos and videos of bin Laden taken during the raid on the Al Qaeda leader’s Abbottabad compound.  The Freedom of Information Act gives the government 20 days to respond to such a request.  After exhausting the administrative appeals process once the request is denied, the group will file suit to try to obtain the material. In an interview with The Hill, Judicial Watch  president Tom Fitton stated: “We are prepared to sue if they don’t respond as they are supposed to under the law. I have not heard anything from the president that would provide a lawful basis for not providing the photos. Not wanting to be seen as ‘spiking the football’ is not a lawful reason to withhold documents under FOIA.”

JFB

“Predators of Press Freedom” List Published by Reporters Without Borders

The advocacy group Reporters Without Borders has released its list of 38 heads of state who have consistently demonstrated hostility to civil liberties and have launched violent campaigns against journalists  Repressive leaders on the list include Yemen’s Ali Abdallah Saleh, Bahrain’s King Ben Aissa Al-Khalifa, Libya’s Muammar Gaddafi, Syria’s President Bashar Al-Assad as well as China’s President Hu Jintao, and Iranian President Mahmoud Ahmadinejad and Iranian Supreme Leader and Ali Khamenei.

JFB

 

Podcast: Chief Judge Kozinski Examines Technology’s Potential to Reshape First Amendment Law

A podcast from Legal Talk Network features Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals speaking as part of Golden Gate University School of Law’s third annual Intellectual Property Distinguished Speaker Program.

JFB

Report on Anti-Semitic Incidents Around the Globe

From CNN:

Today is Israel's annual Holocaust Remembrance Day. A new report from Tel Aviv University's Steven Roth Institute for the Study of Contemporary Anti-Semitism and Racism and the Kantor Center for the Study of European Jewry finds that anti-Semitic incidents worldwide have declined 46 per cent between 2009 and 2010 but continue to occur at rates significantly higher than a decade ago. The report notes that there were 614 physical injuries, acts of vandalism, and direct threats attributed to anti-Semitic motives in 2010 compared to 1,129 such events recorded in 2009. Britain, France, and Canada accounted for 60 per cent of all incidents, but the report notes an alarming increase of anti-Semitic activity in Latin America. The report also highlighted what it described as "countless anti-Semitic diatribes, speeches, press articles and especially the electronic posts in almost every possible form on the internet ... the central themes were the Jewish - Zionist world power and conspiracy, the demonization and the delegitimization of Israel mainly by comparing it to Nazi Germany and labeling it an apartheid state." 

JFB
   

Military Blogging Catches On

Today’s New York Times covers this weekend’s Sixth Annual Milblog Conference in Arlington, Virginia. Many servicemembers and their families now blog.  The Times notes: 

..the Pentagon, which once tried to control or even shut down bloggers, has now joined the social media craze. Generals blog, the armed services all have Twitter accounts, and scores of company and battalion commanders maintain Facebook pages.

JFB