First Amendment Law Prof Blog

Cert. Grant in FCC v. Fox Sets Up Reconsideration of Broadcast Indecency Rules

Yesterday the Supreme Court agreed to review the Second Circuit’s ruling in F.C.C. v. Fox Television Stations, creating an opportunity of the Court to consider whether the First Amendment analysis presented in FCC v. Pacifica Foundation.  In Pacifica, the Court  upheld the FCC’s imposition of sanctions for a radio station’s afternoon broadcast of George Carlin’s “Seven Dirty Words” monologue. In 2010, the Second Circuit concluded that the FCC’s context-based approach to determining indecency in the form of expletives or nudity was unconstitutionally vague and therefore violated the First Amendment.  Yesterday’s grant identified the question to be considered as “[w]hether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States.”

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First Amendment Rulings Examined at Fourth Circuit Judicial Conference

The Fourth Circuit Judicial Conference this weekend featured a panel on the Supreme Court’s 2010-2011 term. Speakers included Heather Gerken, Michael McConnell, Neil Siegel, and Adrian Vermeule.  The panelists offered valuable commentary on Snyder v. Phelps, Borough of Duryea v. Guarnieri, Nevada Commn. on Ethics  v. Corrigan, Sorrell v. IMS, and the anticipated McCommish v. Bennett ruling. Video of the event is available on CSPAN.

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Reactions to Sorrell v. IMS Health, Inc.

Today’s New York Times presents an editorial criticizing the majority opinion for making it harder to governments to protect consumers. Nina Totenberg’ s NPR report on the ruling includes the prediction from First Amendment litigator Robert Corn-Revere of Davis Wright Tremaine LLP that Sorrell may energize the tobacco industry’s efforts to challenge the FDA’s new graphic image requirements for cigarettes labels.  On Scotusblog, Lyle Denniston examines Justice Kennedy’s and Justice Breyer’s differing perspectives on the Vermont law and on the implications of the Court’s ruling for economic regulation regimes that include efforts to regulate expression.  On Volokh Conspiracy, Eugene Volokh puts Sorrell in the broader context of the Court’s struggles with how to apply the First Amendment to commercial speech.     

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New Findings from Pew Forum on Religion and Public Life’s Global Survey of Evangelical Protestant Leaders

The Pew Forum on Religion and Public Life has just released its Global Survey of Evangelical Protestant Leaders. The following excerpts present notable findings from the survey’s Executive Summary:

U.S. evangelical leaders are especially downbeat about the prospects for evangelical Christianity in their society; 82% say evangelicals are losing influence in the United States today, while only 17% think evangelicals are gaining influence.

Overall, evangelical leaders around the world view secularism, consumerism and popular culture as the greatest threats they face today. More of the leaders express concern about these aspects of modern life than express concern about other religions, internal disagree-ments among evangelicals or government restrictions on religion.

Of the nearly 2,200 evangelical leaders surveyed by the Pew Forum, about seven-in-ten (71%) see the influence of secularism as a major threat to evangelical Christianity in the countries where they live. Two-thirds (67%) also cite “too much emphasis on consumerism and material goods” as a major threat to evangelicalism, and nearly six-in-ten (59%) put “sex and violence in popular culture” into the same category. In addition, nearly two-thirds of the global evangelical leaders (64%) say there is a “natural conflict” between being an evangelical and living in a modern society.

Conflict between religious groups, by contrast, does not loom as a particularly large concern for most of the evangelical leaders surveyed. A majority says that conflict between religious groups is either a small problem (41%) or not a problem at all (14%) in their countries – though a sizeable minority considers it either a moderately big problem (27%) or a very big problem (17%). Those who live in the Middle East and North Africa are especially inclined to see inter-religious conflict as a moderately big (37%) or very big problem (35%). Nine-in-ten evangelical leaders (90%) who live in Muslim-majority countries say the influence of Islam is a major threat, compared with 41% of leaders who live elsewhere.

On the whole, the evangelical Protestant leaders express favorable opinions of adherents of other faiths in the Judeo-Christian tradition, including Judaism, Catholicism and Eastern Orthodox Christianity. But of those who express an opinion, solid majorities express unfavorable views of Buddhists (65%), Hindus (65%), Muslims (67%) and atheists (70%). Interestingly, the leaders who live in Muslim-majority countries generally are more positive in their assessments of Muslims than are the evangelical leaders overall.

The leaders are nearly evenly split on whether the Bible should become the “official law of the land” in their countries; 48% oppose making the Bible the law of the land, while 45% favor it. By a more than three-to-one margin (74% vs. 21%), however, evangelical leaders surveyed say it is acceptable to them if their country’s political leaders have a different religion than their own.

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Supreme Court: Vt. Prescription Drug Data-Mining Restrictions Violate First Amendment

Today the Supreme Court issued its ruling in Sorrell v. IMS Health Inc., which presented a First Amendment challenge to Vermont’s statute restricting data-mining of doctors’ prescription records.  Justice Kennedy, writing for a six Justice majority, began the opinion with this summary:  

Vermont law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors. Vt. Stat. Ann., Tit. 18, §4631 (Supp. 2010). Subject to certain exceptions, the information may not be sold, disclosed by pharmacies for marketing purposes, or used for marketing by pharmaceutical manufacturers. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that marketing will lead to prescription decisions not in the best interests of patients or the State. It can be assumed that these interests are significant. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard.

Justice Breyer dissented in an opinion joined by Ginsburg and Kagan.

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First Amendment Experts Assess the First Amendment in the Roberts Court

As noted by the Blog of the Legal Times, the First Amendment in the Roberts Court was the topic of a recent panel at the American Constitution Society's annual meeting. Panel participants included former Solicitior General Paul Clement, prominent First Amendment lawyer Floyd Abrams, Ninth Circuit Judge Marsha Berzon, Columbia University President Lee Bollinger, former ACLU President Nadine Strossen, and Monica Youn of NYU’s Brennan Center for Justice.

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Religion, Bias, and Political Debate

On the NY Times Bloggingheads, Jeff Sharlet of Dartmouth College and Amy Sullivan of Time Magazine examine anti-Muslim bias as a factor in American political culture with the recent N.H. Republican presidential candidate debate. The LA Times reports that a new Gallup poll demonstrates lingering bias toward Mormon candidates as former Utah governor and Ambassador to China John Huntsman is poised to join the Republican candidate pool.  The LA Times summarizes the poll’s findings:

 About one in five Republicans, or 18%, said they would not vote for a member of the Church of Jesus Christ of Latter-day Saints, the official name of the Mormon church. About the same proportion of independents said they would oppose a Mormon while a larger number of Democrats, about 27%, said they were opposed, according to the poll. 

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First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:
 
1. Radwa S. Elsaman (American University Washington College of Law), Corporate Social Responsibility in Islamic Law: Labor and Employment, published in Yonsel Law Journal, Vol. 2, No. 1, (May 2011).  The abstract states:

Islam is not only a way of worship; but also, an entire legal, economic, social, political, and commercial system. Hence, it affects every day behavior of its followers including business transactions. Also, Islamic law, almost, dominates most of the Muslim countries’ internal legal systems. Considering how Islamic business ethics affect corporate social responsibility can be useful to multinational corporations making their investment decisions in Muslim countries. This article discusses the general framework governing business ethics in Islamic law, giving perspective to labor standards.  

2. Peter W. Beauchamp, Note -Misinterpreted Justice: Problems with the Use of Islamic Legal Experts in U.S. Trial Courts, 55 N.Y. L. Rev. --- (2010/11). The abstract states:

This note argues that the inherently pluralistic nature of Islamic law makes it impossible for U.S. courts to legitimately rely upon the expert opinion of Islamic legal scholars in the same way that expert legal opinion has traditionally been applied in legal proceedings. Generally speaking, the purpose of admitting expert testimony in U.S. courts is to explain and to illuminate for the trier of fact certain theoretically immutable or “true” facts which the fact finder would otherwise fail to comprehend due to a lack of expertise. This premise does not fit when weighing issues of Islamic law. Islamic law has, since its inception, been a pluralistic field insofar as multiple, differing interpretations of a single legal issue can concurrently be “true,” depending upon the myriad of lenses and approaches available for properly engaging with the subject. However, a U.S. court’s need to concretely establish certain questions of fact and law in order to adjudicate a controversy arising under either U.S. or Islamic law will necessarily mean that one or another Islamic legal expert’s opinion will carry the day. This is problematic because the result of the trial can be either a decision lacking the familiarity and consistency of a traditional U.S. common law legal proceeding, or one which is not a nuanced or legitimate encapsulation of Islamic law (or sometimes both).

Specifically, this note analyzes three different cases from three different fields of law decided by U.S. courts that illustrate this problem: United States v. Hayat, which deals with criminal prosecutions; Freeman v. Department of Highway Safety & Motor Vehicles, which deals with the free exercise of religion; and Saudi Basic Industries Corp. v. Mobil Yangbu Petrochemical Co., which deals with tort law. This note contends that, in each of these cases, decisive expert testimony relating to some facet of Islamic law was improperly applied or precluded, and concludes by suggesting a different way for U.S. courts to treat the testimony of Islamic legal experts.

3. John Witte Jr. (Emory University School of Law), Calvin the Lawyer, published in TRIBUTES TO JOHN CALVIN ON HIS 500TH BIRTHDAY, David Hall, Martin Padgett, eds. (2010). The abstract states:

For all his fame as a theologian and biblical commentator, John Calvin was first and foremost a jurist. Calvin’s attention to both theology and law would become a trademark of early Calvinism. Early modern Calvinists believed in law, as a deterrent against sin, an inducement to grace, a teacher of Christian virtue. It is this legal side of Calvin’s Reformation that this chapter probes. This chapter focuses on two main dialects at work in Calvin’s though - the first balancing liberty and law, the second balancing church and state. These two dialects intersected. For Calvin it was the responsibility of the church and state, separately and together, to protect and promote the law and liberty of Geneva. And, in turn, it was Geneva’s commitment to the rule of law and regime of liberty that allowed church and state to separate yet cooperate in the governance of a Christian republic.

4. Pamela Edwards (CUNY School of Law), Non-Mainstream Religions and the Law. The abstract states:

This essay analyzes how U.S. courts treat non-mainstream religions as compared to mainstream religions. Despite the commonalities shared by all religions, courts allow States to infringe upon the religious practices of adherents of non-mainstream religions more frequently than adherents of mainstream religions.

5. Meir Katz (Georgetown University Law Center), The State of Blaine: A Closer Look at the Blaine Amendments and Their Modern Application, published in Engage, Vol. 12, p. 111 (2011). The abstract states:

Governments aid religious organizations in a wide variety of ways. For example, governments provide vouchers that students can use to attend private schools, support religious organizations that provide social services to the needy, and provide funding to ensure that religious houses of worship are safe from attack by terrorists and accessible to the handicapped. All of these programs, and many more, are permissible under the Establishment Clause of the Federal Constitution. The Establishment Clause requires only that government programs have a predominant sececular purpose and do not improperly advance religion.

But many of these programs have been struck down under state “Blaine Amendments.” Written during the 1800s in a period of tremendous religious strife, Blaine Amendments appear in forty state constitutions. Although their scope and phraseology varies widely, they generally impose a per se bar against government funding to a “religious sect or denomination” or for any “sectarian” purpose. Some apply only in the context of education, barring all funding to religious schools even if the funding has a secular purpose and is provided on a religion-neutral basis. Many impose a bar against all funding to religious and faith-based organizations, again regardless of the secular purpose for the proposed arrangement. And despite the growing chorus of scholars who question their constitutionality, the Blaine Amendments are very much a part of the contemporary legal fabric.

6. Richard J. Moon (University of Windsor - Faculty of Law),The Attack on Human Rights Commissions and the Decline of Public Discourse,  published in Saskatchewan Law Journal, Vol. 73, pp. 93-129, 2011. The abstract states:

In June 2008, I was asked by the Canadian Human Rights Commission (CHRC) to write a report about the regulation of hate speech on the internet, focusing specifically on s. 13 of the Canadian Human Rights Act (CHRA). Section 13 prohibits the repeated communication on the phone system or the internet of any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination such as race, gender, or religion.

7. Joseph Blocher (Duke Law School), Viewpoint Neutrality and Government Speech, 52 B.C. L. Rev. 695  (2011). The abstract states:

Government speech creates a paradox at the heart of the First Amendment. To satisfy traditional First Amendment tests, the govern-ment must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids: viewpoint dis-crimination against private speech. This is both a theoretical puzzle and an increasingly important practical problem. In cases like Pleasant Grove City, Utah v. Summum, the city’s disagreement with a private message was the heart of its successful government speech argument. Why is viewpoint discrimination flatly forbidden in one area of First Amendment law and entirely exempt from scrutiny in another? This Article explores that ques-tion and why it matters, and suggests ways to reconcile these apparently incompatible principles.

8. Timothy Zick (William & Mary Law School), The First Amendment In Trans-Border Perspective: Toward A More Cosmopolitan Orientation, 52 B.C. L. Rev. 941 (2011). The abstract states:

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

9. Francis Bingham, Note - Show Me The Money: Public Access And Accountability After Citizens United , 52 B.C. L. Rev. 1027 (2011). The abstract states:

The U.S. Supreme Court’s 2010 decision in Citizens United v. FEC has been called both a broadside assault on democracy and a victory for free speech. Both extremes exaggerate the importance of the case. On the one hand, the case denied Congress’s ongoing attempt to curtail corporate domination of elections. On the other hand, the very assumption that the pre-Citizens United campaign finance regime had accomplished its stated goals of reducing corruption or its appearance is flawed. As a result of judicially imposed limitations on the federal campaign finance laws, corporations have been allowed to engage in all but unfettered election-eering since the 1970s. Reform proponents should take advantage of a unique opportunity in history to marshal popular sentiment and create a new model of public access and accountability in the Internet age. This Note proposes a coding requirement in political advertisements that will allow viewers to easily identify a message’s funding source.

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Expression Against Repression: Saudi Women Take Wheel to End Driving Ban

Last week Saudi women risked arrest by simply getting behind the wheel.  The New York Times, Christian Science Monitor, and  the LA Times provide coverage of the courageous protest.  The Christian Science Monitor also presents an op-ed arguing that the Saudi ban is not consistent with Islamic teaching. 

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Review of Wellspring of Liberty: How Virginia's Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty

From the Legal History Blog:

On H-Net , Joan R. Gundersen (University of Pittsburgh) reviews John Ragosta, Wellspring of Liberty: How Virginia's Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty (Oxford University Press, 2010).

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In N.H. Debate, Republican Candidates Discuss Attitudes Toward Muslims and Views on Separation of Church and State

Prof. Howard Friedman of the Religion Clause Blog has culled the transcript of the recent Republican debate for the candidates’ discussions of church-state matters and of their receptivity to the participation of Muslim-Americans in their possible future Administrations.

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Citing Concerns About Impact on Religious Groups, Some Republican Legislators Press for Changes in N.Y. Marriage Equality Act

As the New York State Assembly inches closer to passing the Marriage Equality Act, the New York Times reports that some Republican legislators are urging Gov. Cuomo to amend his proposed bill to ease concerns some religious groups that oppose same sex unions have about the legislation’s consequences for them.  The Act already includes provisions designed to preserve the religious prerogatives of sects that would not sanction same sex marriages.  The Act as introduced states:

S 10-B. Application. 1. Notwithstanding any other provision of  law,  pursuant  to  subdivision  nine of section two hundred ninety-two of the    executive law, a corporation incorporated under the  benevolent  orders law or described in the benevolent orders law but formed under any other law  of  this  state  or  a religious corporation incorporated under the education law or the religious corporations laws shall be deemed  to  be in its nature distinctly private and therefore, shall not be required to provide  accommodations, advantages, facilities or privileges related to  the solemnization or celebration of a marriage.

   2. A refusal by a benevolent organization or a religious corporation, incorporated  under the education law or the religious corporations law,  to provide  accommodations,  advantages,  facilities  or  privileges  in connection  with  section ten-a of this article shall not create a civil claim or cause of action.

   3. Pursuant to subdivision eleven of section two hundred ninety-six of the executive law, nothing in this article shall be deemed or  construed to prohibit any religious or denominational institution or organization, or any organization  operated  for charitable or educational purposes, which is operated, supervised or controlled by or in connection  with  a religious organization  from  limiting employment or sales or rental of housing accommodations or admission to or giving preference  to  persons of  the  same  religion or denomination or from taking such action as is calculated by such organization to promote the religious principles  for which it is established or maintained.

S  5.  Subdivision  1  of section 11 of the domestic relations law, as amended by chapter 319 of the laws of 1959, is amended and a new  subdivision 1-a is added to read as follows:

    1.  A  clergyman or minister of any religion, or by the senior leader, or any of the other leaders, of the society for ethical culture  in  the city  of New York, having its principal office in the Borough of Manhattan, or by the leader of  the  Brooklyn  Society  For  Ethical  Culture, having  its  principal  office in the Borough of Brooklyn of The City of New York, or of the Westchester Ethical Society, having its  principal office  in Westchester County, or of the Ethical Culture Society of Long Island, having its principal office in Nassau County, or of the Riverdale-Yonkers  Ethical Society having its principal office in Bronx County, or by the leader of any other  Ethical  Culture  Society  affiliated with  the American Ethical Union; provided that no clergyman or minister as defined in section two of the religious corporations law, or  society for  ethical  culture leader shall be required to solemnize any marriage when acting in his or her capacity under this subdivision.

    1-a. a refusal by a clergyman or minister as defined in section two of  the religious corporations law, or society for ethical culture leader to solemnize any marriage under this subdivision shall not create  a  civil claim or cause of action.

It is not clear what specific additional protective provisions are now being sought.    

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FBI Raids on Peace Activists and Labor Organizers Prompt Calls for Investigation

A report in the Washington Post examines a series of FBI raids earlier this year on the homes of peace activists and labor organizers. The raids reportedly sought evidence of the targeted persons’ or organizations’ provision of “material support” for Colombian and Palestinian groups that have been classified as terrorist organizations by the federal government. The material support provisions of the Patriot Act were upheld against a First Amendment challenge during the last Supreme Court term in Holder v. Humanitarian Law Project. Critics fear the raids could signal an abuse of power aimed at suppressing opposition to American foreign policy.

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Fostering Interfaith Understanding Among College Students

Eboo Patel’s admirable and ambitious efforts to promote interfaith understanding among youth from different traditions through his Interfaith Youth Core is spotlighted by the New York Times. Patel has played a major role in organizing the Interfaith and Community Service Campus Challenge, a White House effort to launch a year of interfaith and community service programming on college campuses across the nation in the coming school year.

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House Hearings on Islamic Radicalization Resume with Prisons as Focus

Yesterday the House Homeland Security Committee held a hearing on whether Islamic radicalization is occurring in American prisons. Video and the text of witness testimony are available from the Committee’s webpage. CNN and the LA Times provide coverage of critical reaction to the hearing.

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Rep. Sherman of California to Introduce Bill to Block Proposed City Circumcision Bans

Religion News Service News Roundup notes an article from the Jewish Journal on Rep. Brad Sherman’s plan to introduce the Religious and Parental Rights Defense Act of 2011. The Journal quotes Sherman’s explanation of the need for the bill: “Religious freedom is a federal issue, and medical practice is a state issue, maybe a federal issue as well. …Neither of them is in the proper realm of cities.”

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Insurance Requirements for Ads Promoting God-Free Lifestyle Spark Suit in Little Rock

Reuters reports that the Central Arkansas Coalition of Reason has filed suit against Central Arkansas Transit Authority, which serves Little Rock, alleging that the bus system’s refusal to accept the group’s bus ads unless the would-be advertisers agree to pay fees for insurance against possible attacks on the buses by angry Christians violated the First Amendment.  The secularist group alleges that such insurance fees have not been imposed when other advertisers, including churches, have purchased ads. The proposed Central Arkansas Coalition of Reason ads read:  "Are you good without God? Millions are." An attorney for the transit authority cites vandalism incidents involving similar ads in other states as the justification for the fees.

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SCOTUS Rejects First Amendment Challenge to Nevada Ethics Provisions

Yesterday in Nevada Commission on Ethics v. Carrigan the Supreme Court upheld recusal provisions of Nevada’s Ethics in Government Law against a First Amendment challenge, reversing a decision by the Nevada Supreme Court which has held that an official’s vote was  protected speech and that that the  challenged recusal requirements were unconstitutionally overbroad. Justice Scalia’s opinion for the Court emphasized the longstanding traditions of imposing such recusal obligations, tracing such rules back to the founding era. The opinion rejected the argument that a legislator’s vote constituted protected personal political expression that would be unduly restricted under the challenged ethics rules.  Justice Scalia wrote:

But how can it be that restrictions upon legislators’ voting are not restrictions upon legislators’ protected speech? The answer is that a legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. As we said in Raines v. Byrd, 521 U. S. 811, 821 (1997), when denying Article III standing to legislators who claimed that their voting power had been diluted by a statute providing for a line-item veto, the legislator casts his vote “as trustee for his constituents, not as a prerogative of personal power.” In this respect,voting by a legislator is different from voting by a citizen. While “a voter’s franchise is a personal right,” “[t]he procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political representatives executing the legislative process.” Coleman v. Miller, 307 U. S. 433, 469–470 (1939) (opinion of Frankfurter, J.).

All the Justices joined in judgment rejecting the challenge, but Justice Kennedy’s concurrence sought to preserve the possibility that First Amendment rights of political association could create a viable basis for future challenges to restrictions on contact between legislators and constituents. Justice Alito’s separate opinion disagreed with the conclusion that a legislator’s vote was not speech and would have instead upheld the challenged provision because comparable legislative recusal rules were not viewed as impermissible restrictions on freedom of speech in the founding era.

How Appealing presents collected coverage of the ruling. On SCOTUSblog Lyle Denniston provides an analysis of the decision and Rick Hasen offers his take on Election Law Blog.

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First Amendment Scholarship Update

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

1. Thomas Berg (University of St. Thomas, St. Paul/Minneapolis, MN-School of Law), The Story of the School Prayer Decisions: Civil Religion Under Assault, published in First Amendment Stories, Richard Garrett, Andrew Koppelman, eds., Foundation Press (2011). The abstract states:

This chapter from Foundation Press' forthcoming "First Amendment Stories" volume, traces the background resolution, and impact of the Supreme Court's first school prayer decisions, Engle v. Vitale and Abington School District v. Schemmp. Among other things, the chapter traces the relation of the Regents' Prayer, struck down in Engel, to the nondenominational theistic civil religion of the 1950s, and the relation of constitutional attacks on the prayer to various criticisms of that civil religion from both religious and nonreligious quarters.

2. Nomi Stolzenberg(University of Southern California-Gould School of Law), Righting the Relationship between Race and Religion in Law, published in Oxford Journal of Legal Studies, (2011). The abstract states:

This review discusses the interrelationship of race and religion in law, the subject of Eve Darian-Smith's new book, which seeks to rectify the neglect of religion in the study of race and law and the parallel neglect of race in studies of law and religion. Concurring with the book’s basic propositions, that the segregation of race and religion into separate fields of legal studies needs to be overcome and the religious origins of fundamental liberal legal ideas need to be recognized, I tease out different ways in which race and religion can be “linked” and religion can “play a role” in the development of modern law that are not fully parsed out in Darian-Smith's analysis. Applauding her attempt to integrate recent challenges to the long regnant "secularization thesis" into the study of race and law, I point out some unresolved ambiguities in those challenges and their implications for law.

3. Marie A. Fallinger(Hamline University School of Law), Islam in the Minds of American Courts : 1800-1960, forthcoming in Boston College Third World Law Journal. The abstract states:

This article surveys references to Islam and Muslims in American court opinions from 1800 to 1960.. It argues that American judges as a group portray an ambivalent attitude toward Muslims, some treating Islam disparagingly or as an exotic and fanciful religion, and others emphasizing the religious equality that Muslims deserve.

4. Aviva Orenstein (Indiana University Mauer School of Law), Once We Were Slaves, Now We are Free: Legal, Administrative, and Psychosocial Issues Raised by Passover Celebrations in Prison. The abstract states:

Once we were slaves, now we are free” is a central line from the Passover Seder, a ritual meal celebrating the Jews’ exodus from Egypt. At the Seder, participants, including small children, sit around the table with extended family and guests to read from the Haggadah, the traditional textual guide, retelling the story of the freedom from Pharaoh’s oppression. The Jewish story of liberation from bondage has inspired many oppressed people and the Passover Seder has become a symbol for the transition from slavery to freedom. The central food of the holiday is matzah, unleavened bread that was the food of the slaves; the bread of affliction was hence transformed into a symbol of freedom.

Because of its ties to food, family, and tradition, Passover is the most observed Jewish holiday. In prison, many Jewish inmates request access to a Passover Seder and to kosher-for-Passover food. This paper examines the phenomenon of Seders in prison from a legal, social, and cultural perspective.

Seders in prison raise First-Amendment issues about free exercise and explore how such rights are qualified by administrative and safety needs of jailers. The request for a Seder or for matzah and other kosher-for-Passover items implicates interesting legal questions and highlights the complexity, harshness, and sometimes arbitrariness of prison regulations. It further raises the question of the degree to which jailers must accommodate Jewish religious practices and how those accommodations must be balanced against prison safety and orderly administration. Because the kosher-for-Passover rations are generally of higher quality than regular prison fare, the prison must decide who is genuinely eligible, and who is just in it for the eats. In essence, prison administrators are asked to determine the thorny issue of who qualifies as a Jew.

Beyond formal legal issues of prisoners’ rights and administrative protocol is the deep personal and symbolic meaning that the Passover Seder has for those who are incarcerated. The irony of the situation –celebrating a ritual of freedom inside prison –is not lost on the prisoners. The power of the ceremony arises in part from that tension, as prisoners affirm their individual commitment to Judaism, and their collective affiliation with other Jews and all who are not free. They probe what or who constitutes the Pharaoh in their lives. Poignantly and insightfully, they look within their personal histories to find what has served as their oppressors –including bad choices, addictions, and deep-seated anger. They seek spiritual freedom even –especially–in prison, and the Passover Seder is an important vehicle for that search.

5. Meir Katz(Georgetown University Law Center), The State of Blaine: A Closer Look at the Blaine Amendments and Their Modern Application, published in Engage, Vol. 12, p. 111(2011). The abstract states:

Governments aid religious organizations in a wide variety of ways. For example, governments provide vouchers that students can use to attend private schools, support religious organizations that provide social services to the needy, and provide funding to ensure that religious houses of worship are safe from attack by terrorists and accessible to the handicapped. All of these programs, and many more, are permissible under the Establishment Clause of the Federal Constitution. The Establishment Clause requires only that government programs have a predominant secular purpose and do not improperly advance religion.

But many of these programs have been struck down under state “Blaine Amendments.” Written during the 1800s in a period of tremendous religious strife, Blaine Amendments appear in forty state constitutions. Although their scope and phraseology varies widely, they generally impose a per se bar against government funding to a “religious sect or denomination” or for any “sectarian” purpose. Some apply only in the context of education, barring all funding to religious schools even if the funding has a secular purpose and is provided on a religion-neutral basis. Many impose a bar against all funding to religious and faith-based organizations, again regardless of the secular purpose for the proposed arrangement. And despite the growing chorus of scholars who question their constitutionality, the Blaine Amendments are very much a part of the contemporary legal fabric.

This article explores the important role that the Blaine Amendments play in deciding modern church-state legal questions.

6. Maria Linda Ontiveros (University of San Francisco-School of Law), Building a Movement with Immigrant Workers: The 1972-74 Strike and Boycott at Farah Manufacturing, forthcoming in Employee Rights and Employment Policy Journal. The abstract states:

Between May 1972 and February 1974, thousands of Chicana workers struck Farah Manufacturing plants throughout Texas. They were joined in their efforts by the Amalgamated Clothing Workers of America who orchestrated nationwide pickets calling for a boycott of Farah slacks. The strike and boycott were supported by various civil rights groups, politicians and religious organizations. Working together, they caused a dramatic drop in sales, large operating losses and a substantial drop in the company's share price. After several victories before the National Labor Relations Board, the strikers settled with the company rehiring 3,000 strikers and recognizing the union. The company, workers and union movement were all strongly affected by the experience. This article uses newspaper stories, magazine articles, oral histories and case opinions to provide the first comprehensive retelling of the Farah story.

This article discusses the successful organizing campaign, strike and boycott of Farah Manufacturing, in the context of the conclusions and recommendations made by Julius Getman in his book, Restoring the Power of Unions. The article argues that the Farah campaign succeeded because of the linkage between the labor movement and the civil rights movement and also because of the successful use of labor law. It argues that a successful comprehensive campaign requires the Union to find a values-based message which resonates with the workers and reflects their experiences. The techniques used by the union and the organizational structure of the campaign must be democratic and serve to empower the workers. Finally unions must be poised to use the legal system to support their campaign, but the law could be improved if permanent strike replacements were prohibited, the NLRB strengthened their remedies, and the law of secondary boycotts was revised.

7. Eldar Haber(Tel Aviv University-Buchmann Faculty of Law), The French Revolution 2.0: Copyright and the Three Strikes Policy, published in Harvard Journal of Sports & Entertainment Law, Vol. 2, Issue 2, p. 297, (2011). The abstract states:

Internet file-sharing of copyrighted materials created a struggle between right holders, Internet Service Providers (ISPs), and file-sharers. After several different attempts to resolve the struggle, many countries began to debate the possibility of a Three Strikes Policy (3SP), which includes, inter alia, providing for the termination of subscriptions and accounts of repeat infringers in appropriate circumstances. This policy has thus far been implemented by way of legislation in Taiwan (2009), South Korea (2009), France (2010), the United Kingdom (2010) and New Zealand (2011), and by means of private ordering in Ireland (2010). It is still under consideration elsewhere. The 3SP is portrayed as a panacea for Internet-related infringements.

This article examines the legal, social, and economic implications of implementing the 3SP as a solution to copyright infringements through file-sharing. I discuss the potential impact on the right to privacy, due process rights and free speech. I locate the 3SP within the emerging framework of Users' Rights and criticize it. I argue that the 3SP is an inappropriate attempt to strengthen right holders' power over users and might reshuffle and jeopardize the balance set in the copyright regime between the interests of authors and those of the public. I therefore propose an alternative version of the 3SP. Furthermore, I argue that the 3SP is yet another link in a chain of a criminal paradigm set in copyrights, meaning that some copyright law policies will probably continue to shape in accordance with criminal law, despite copyright’s civil law rationales. I claim that this paradigm shift in copyright law will continue through global legislation. Finally, I conclude that the 3SP is not the proper means for resolving illegal file-sharing issues. Rather, it is an inappropriate attempt to fight copyright infringements and should not be implemented anywhere, at least not yet.

8. Neil M. Richards(Washington University School of Law), The Limits of Tort Privacy, forthcoming in Journal of Telecommunications and High Technology Law, (2011). The abstract states:

The conception of tort privacy developed by Warren, Brandeis and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury, and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict with First Amendment values. And when First Amendment values and tort privacy conflict, First Amendment values should prevail virtually all of the time. The disclosure tort will retain limited utility in the electronic environment, but privacy in the age of information and social media requires new strategies and new legal tools. Some of these strategies might include tort privacy as presently understood, but others require new approaches. These approaches can take either a broader look at tort privacy, including new torts and new theories of injury beyond emotional harm, or they can include new conceptions of privacy altogether, such as confidentiality law.

9. Girjesh Shukla(NUSRL, Ranchi), Hate Crime: Politico-Legal Dimensions of Hate Speech in India, forthcoming in Journal of Parliamentary and Constitutional Studies. The abstract states:

Hate Speech has been designed as new type of hate crime in those countries where speeches are protected as part of speech and expression liberty but at the same time creating threat to the law and order.

This paper is an exploration of the various issues relating to hate crime and hate speech on one hand and related violence on other. This paper is based on legal discourse on political, social and constitutional context of India.

 
10.  Robert A. Sedler(Wayne State University School of Law), Self-Censorship and the First Amendment, published in Norte Dame Journal of Law, Ethics, and Public Policy, Vol. 25 , No. 1, (2011). The abstract states:

Self-censorship refers to the decision by an individual or group to refrain from speaking and to the decision by a media organization to refrain from publishing information. Whenever an individual or group or the media engages in self-censorship, the values of the First Amendment are compromised, because the public is denied information or the expression of ideas that the public would have received were it not for the self-censorship. It should not be surprising, therefore, that the principles, doctrines and precedents of what I have referred to as “the law of the First Amendment” are designed to prevent self-censorship due to the fear of governmental sanctions against expression. Self-censorship due to the fear of governmental sanctions against expression may be denominated “self-censorship bad.”

At the same time, the First Amendment also embodies a right to silence, and the right to remain silent is also a value of the First Amendment. The values embodied in the First Amendment right to silence support self-censorship in the sense that an individual or group may decide to refrain from speaking and the media may decide to refrain from publishing, because they believe that the public interest is better served by the decision to refrain from speaking than by the decision to speak and by the decision to refrain from publishing than by the decision to publish. This form of self-censorship may be denominated “self-censorship good.”

In this writing, we will first discuss “self-censorship bad.” Here we will discuss the principles, doctrines and precedents of the First Amendment that are designed to prevent self-censorship due to the fear of governmental sanctions against expression. We will see that in their totality, these principles, doctrines and precedents comprise a major part of the “law of the First Amendment,” and stand as a bulwark against “self-censorship bad.” We will then discuss “self-censorship good” in the context of media organizations exercising their editorial discretion to refuse to publish certain information. Here will use two examples. The first is the refusal of the media to identify victims of rape and other sexual offenses. The second is the refusal of the media to disclose certain information on ground that the disclosure of the information would cause serious harm to the national security. In this connection, we will review at length the process by which the media makes the decision to refuse to disclose information on national security grounds. We will conclude by relating “self-censorship bad” and “self-censorship good” to the values of the First Amendment and the function of the First Amendment in the Nation’s constitutional system.

U.S. Seeks to Help Break Down Repressive Barriers to Internet Around the Globe

A detailed article in today’s New York Times describes the Obama administration’s efforts to subvert the attempts of repressive regimes around the world to block dissidents’ access to the Internet and mobile phone communication. (See prior post on State Department plan to promote Internet freedom.)  

JFB