First Amendment Law Prof Blog

First Amendment Scholarship Update – Religion

Here is this week’s collection of newly available articles on religion topics:

1. Steven Douglas Smith (University of San Diego School of Law), The Paralyzing Paradox of Religious Neutrality. The abstract states:

This short essay discusses why the ideal of governmental religious neutrality is regarded as essential and axiomatic in a pluralistic liberal democracy, and also why the ideal is unattainable and incoherent. Revisiting earlier arguments and addressing new defenses, the essay was written to order as a contribution to a project-in-progress (a Blackwell series volume on religious liberty).

2. Steven Douglas Smith (University of San Diego School of Law), The Plight of the Secular Paradigm. The abstract states:

For many it has been axiomatic that liberal democratic governments and the laws they impose must be “secular”; this assumption pervades both constitutional law and much political theory. But there are indications that this secular “paradigm of legitimacy” is losing its grip; thus, while urging a rehabilitation of secularism, Rajeev Bhargava suggests that “[o]nly someone with blinkered vision would deny the crisis of secularism.” This essay considers that crisis.

Part I of the essay discusses the nature of a “paradigm of legitimacy.” Part II outlines the strategies of assimilation and marginalization that historically have supported such paradigms and considers the paradigm shifts that can occur when these strategies prove ineffective. Part III illustrates these observations by reviewing the process by which, beginning in the fourth century, a Christian paradigm replaced an earlier Roman one and then in turn declined in favor of a more secular view. Part IV, the longest in the essay, discusses the rise of the secular paradigm, the strategies that have supported it, and the increasing futility of those strategies that have led to the present distress.

3. Steven Douglas Smith (University of San Diego School of Law), Freedom of Religion or Freedom of the Church?. The abstract states:

This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church- a campaign devoted to maintaining the church as a jurisdiction independent of the state-- developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church- both the institutional church and the inner church- came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.

4. Nelson Tebbe (Brooklyn Law School), Nonbelievers, Virginia Law Review, Vol. 97, 2011. The abstract states:

How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do. Nonbelievers and believers should receive comparable protection in some situations but not in others. The method I apply is polyvalent - it seeks to capture the full range of values that should matter, recognizing that the mix of relevant concerns may differ from doctrine to doctrine. Two arguments push against my piecemeal approach, however. First, scholars argue that the term religion should simply be defined to include (or exclude) nonbelievers in advance and for all purposes. Second, leading thinkers have recently criticized the special place of religion in American law. For them, even if nonbelief is not a religion, it should always be treated with similar solicitude. Rejecting both of these positions, I contend that definitional approaches are unlikely to be helpful, and that careful judges will determine the specialness of religion in a variegated way. Applying this method to several doctrines - including antidiscrimination, free exercise exemptions, church autonomy, government endorsement, and public funding - I propose protecting nonbelievers only in some of these areas. In conclusion, I suggest that adjudication of religious freedom claims generally is neither impossible nor senseless, despite the fears of some.

5. Alan E. Brownstein (University of California, Davis - School of Law), Continuing the Constitutional Dialogue: A Discussion of Justice Stevens’ Establishment Clause and Free Exercise Jurisprudence, forthcoming in Northwestern University Law Review, Vol. 106, 2012. The abstract states:

This article examines Justice John Paul Stevens’ religion clause jurisprudence from the perspective of a continuing dialogue about the meaning of the Free Exercise Clause and the Establishment Clause. The term continuing dialogue suggests that even for as formidable and long-tenured a jurist as Justice Stevens, important questions remain open and unresolved. The article identifies the values and concerns reflected in the many opinions Justice Stevens authored or joined. Then it moves beyond those writings to discuss unanswered questions about Justice Stevens’ understanding of the two religion clauses. In particular, the article explores potential dissonance between Justice Stevens’ contrasting interpretation of the Establishment Clause and Free Exercise Clause.

With regard to Establishment Clause challenges to religious displays, for example, Justice Stevens expressed substantial concern for the status and sensibilities of religious minorities confronted with state sponsored symbols reflecting majoritarian religious beliefs. These messages had the tendency to divide communities along religious lines by affirming the beliefs of larger faiths while disfavoring religious minorities and nonbelievers. Religious sensibilities, however, may be just as offended by regulations interfering with religious as they are by preferential displays. Minority faiths may suffer a similar sense of alienation and unequal treatment when government adopts general laws that avoid burdening the religious practices of majority faiths while denying exemptions to minority religions whose practices are burdened by comparable legislation. Yet these status and sensibility concerns are seldom discussed by Justice Stevens in free exercise cases.

Also, Justice Stevens joined the majority opinion in Employment Division v. Smith, a decision that sharply restricted free exercise rights and assigned the problem of providing religious accommodations to the political branches of government. One key argument supporting the holding in Smith was the Court’s concern that judicial protection of free exercise rights would require federal judges to engage in subjective, value-based, ad hoc balancing of free exercise rights and competing state interests, a task that exceeded their competence and judicial role. Justice Stevens also believed, however, that the Court must exercise vigilant oversight over discretionary religious accommodations. To satisfy Establishment Clause requirements, the Court must determine that accommodations do not unfairly favor certain faiths over others, and do not extend so far that they impose an unacceptable burden on others. The open question here is whether this Establishment Clause task can be accomplished by federal courts without undertaking the same kind of subjective, value-based, ad hoc analysis the Court rejected in free exercise cases.

6. Joni Hersch (Vanderbilt University - Law School), Characteristics of Color Discrimination Charges Filed with the EEOC. The abstract states:

Using detailed employment discrimination charge data from the EEOC, this paper provides unique information on the number of charges of color discrimination, the bases of the charges, the characteristics of individuals filing charges, and characteristics of the workplace. Claims of employment discrimination on the basis of color have been rising, from 1,424 in FY 2000 to 3,063 in FY 2009. Although many color discrimination claims are combined with race discrimination charges, 16 percent of color charges do not also include race as a basis. Color discrimination charges are filed by individuals of all races. Among color charges that do not include race as a basis, 15 percent are reported by Whites and 17 percent are reported by Asians. Color claims disproportionately include national origin and religion as additional bases.

7. Murat Akan, 'Religious' and 'Laik' Actors and the Question of Democracy in Turkey, APSA 2011 Annual Meeting Paper. The abstract states:

The rise of Justice and Development Party (AKP) has been taken by many scholars as an example of a religious actor furthering democratization. Such a conclusion rests on an insufficient attention to concrete policies, their politics and context, and overemphasizes the differences between religious and laik actors in Turkey. In particular, the rampant presentation of the post 1980-coup Islamist activism as a major contribution to civil society 1) misunderstands the nature of power in the socialization mechanisms deployed by religious communities on the youth, 2) misses the state support some “supposedly” grass roots religious movements received, and 3) ignores the embezzlement cases involving religious persuasion. The article closes with an examination of the religion policy of AKP through an analysis of parliamentary discussions, daily politics and high court decisions to show that AKP is pursuing anti-democratic religion policies which are of Kemalist heritage in general and of the 1980 military coup heritage in particular.

8. Susan B. Hansen(University of PittsburghDepartment of Political Science), The Political Mobilization of Seculars, 1980-2008, APSA 2011 Annual Meeting Paper. The abstract states:

This paper uses ANES data to analyze changes in religious political mobilization since the 1980s. Religious Traditionalists, Moderates, and Seculars will be defined in terms of church attendance, beliefs in Biblical inerrancy and the importance they attach to of religion. Both Secularists and Traditionalists have increased in number since 1980, and differ considerably in party identification, vote choice, and opinions on social issues. According to most recent research, secular perspectives are less likely to be articulated in mass political behavior than the views of more religious Americans. Yet while Seculars are still less partisan, and less likely to vote in primaries, their political involvement and interest have increased considerably. By 2004 and 2008 they were equally or more likely than Traditionalists or Moderates to register, vote, convince others how to vote, and be involved in campaigns. Church attendance has less independent impact on political involvement than in previous decades. While religious Traditionalists have become significantly more Republican, white Seculars are more likely now than in 1980 to vote for Democrats, despite their lack of strong partisanship. A pooled regression analysis, 1988-2008, will show that even with controls for other factors predicting political participation, antipathy to “Christian fundamentalists” (based on the ANES thermometer scores) is a significant predictor of political activism by Seculars as well as by religious Moderates. Demographic trends and survey data suggest what an increasingly secular America might look like.

9. Luis F. Mantilla (Georgetown University - Department of Government), Religious Parties in Secular States: Comparing Catholic and Sunni Political Activism in Mexico and Turkey, APSA 2011 Annual Meeting Paper. The abstract states:

Why do political parties engage in religious mobilization in some environments but not in others? This paper develops a cross-national comparison of patterns of religious mobilization in Sunni- and Catholic-majority countries, with an emphasis on the cases of Turkey and Mexico. In many Sunni-majority contexts, political parties maintain strong and explicit ties to religious communities, relying on their mobilization to compete in what are often hostile political environments. In Catholic environments, political parties generally avoid making claims about religious doctrine or forming entangling alliances with sectarian movements, with candidates seeking to court religious voters doing so primarily through generic appeals to religious values and identities. What explains these differences in religious mobilization in the political arena? I argue that the crucial factors that explain this historically contingent divergence are pattern of secular regulations, electoral laws, and religious communities. The paper uses both quantitative and qualitative research methods to explore and evaluate this argument. First, relying on an original dataset covering 198 elections in 65 countries from 1990-2002, I examine the current distribution of different forms of religious mobilization across Sunni-majority and Catholic-majority countries. Then, I compare the evolution of religious parties in two critical, most-similar cases: Turkey and Mexico. Despite their analogous patterns of religious mobilization early in the 20th century and their comparable socio-economic and geopolitical situations, crucial differences in the evolution of their religious communities and secularist institutions expanded sectarian mobilization in Turkey while depressing it in Mexico. By exploring the patterns of religious mobilization across two world religions and critical country-cases, this paper highlights the contingent quality of religion's impact on politics in general and electoral competition in particular.

10. Karam Dana , Kassra Oskooii and Matt A. Barreto (Univ Washington, Seattle), Mosques as American Institutions: Muslim Incorporation in American Politics, APSA 2011 Annual Meeting Paper. The abstract states:

Religious institutions and places of worship have played a pivotal role in American Politics. What about the role of the mosque? Does the mosque, as an institution, play any different of a role than that of churches or synagogues in political participation? Some scholars have argued that Islam as a religion and a culture is incompatible with liberal, democratic American values; not only is Islam inconsistent with the West, but it poses a direct conflict. This viewpoint has likewise been popularized in American and European media and by some government officials who have labeled Muslims as enemies of freedom and democracy. Through the examination of the Muslim American Public Opinion Survey (MAPOS), which has a large sample size (N=1410), we argue that the mosque emerges as an important indictor for Muslim social and political integration into American society. We demonstrate that not only do those Muslims who attend the mosque regularly are more likely to identify as American Muslims rather than by national origin, they are also more likely to believe mosques encourage Muslims to integrate into U.S. society. Our analysis further exemplifies that mosque attendance and involvement, beyond creating a common identity among American Muslims, leads to more political participation in the U.S. In contrast to prevailing wisdom, we also find that more religiously devout Muslims are significantly more likely to support political participation. Based on our findings, we conclude that there is nothing inconsistent with the mosque and American democracy, and in fact, religiosity fosters support for American democratic values.

11. Claudia E. Haupt (George Washington University Law School), Transnational Nonestablishment, forthcoming in  George Washington Law Review. The  abstract states:

Over the past decade, significant changes have occurred in the religious freedom jurisprudence of the European Court of Human Rights. The most recent indicators of change are the conflicting opinions displayed in the 2009 Chamber decision finding the mandatory posting of crucifixes in public school classrooms in Italy impermissible, and its subsequent reversal by the Grand Chamber in 2011. Taking a broader perspective, this Article argues that an emerging trend toward a transnational nonestablishment principle seems to be developing in contemporary Europe. This Article first places the emerging principle into a larger multi-level religious policy framework, one of several such frameworks that also include the Post-Reformation model as well as the U.S. Establishment Clause model. After surveying the development of nonestablishment principles in the United States, under the European Convention, in the law of the European Union and in individual countries, this Article then traces the contours of nonestablishment. In doing so, this Article illustrates that several useful comparisons can be made between the evolving understanding of nonestablishment in the United States and current developments in Europe. Some of these comparative insights – particularly in the public school context – may prove helpful in anticipating the likely future effects of an emerging transnational nonestablishment principle. This Article then assesses possible implications of the emerging nonestablishment principle in Europe, both short-term and long-term, arguing that theories of convergence and subconstitutionalism best describe likely long-term effects. The discussion over disincorporation of the Establishment Clause and recent developments in recalibrating the scope of the Establishment Clause with respect to indirect funding of sectarian schools in the United States provide an opportunity to assess the reciprocal effects of multi-level nonestablishment. Finally, this Article turns to the question whether a shared transnational nonestablishment baseline is emerging, arguing that a nonestablishment baseline as a normative matter is necessary in western-style democratic systems.

12. Gregory C. Sisk  (University of St. Thomas School of Law (Minnesota)) and Michael Heise (Cornell Law School), Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts. The abstract states:

In our continuing empirical study of religious liberty decisions, we find that Muslims asserting free exercise or accommodation claims were at a distinct and substantial disadvantage in the lower federal courts for the period of 1996-2005. Holding other variables constant, the predicted likelihood for success for non-Muslim claimants in religious free exercise or accommodation claims was approximately 38 percent, while the predicted probability for success for Muslim claimants fell to approximately 22 percent (with the disparity being slightly higher among court of appeals judges). In sum, Muslim claimants had only about half the chance to achieve accommodation that was enjoyed by claimants from other religious communities.

Drawing on insights from legal studies, political science, and cognitive psychology, we discuss alternative explanations for this result, including (1) a cultural antipathy to Muslims as a minority religion outside the modern American religious triumvirate of Protestants, Catholics, and Jews; (2) growing secularism in certain sectors of society and opposition to groups with traditional religious values; (3) the possibility that claims made by Muslims are weaker and deserve to be rejected on the merits; and (4) the perception that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. Presenting a new threat to religious liberty, the persistent uneasiness of many Americans about our Muslim neighbors appears to have filtered into the attitudes of even such well-educated and independent elites as federal judges.

JFB

Post-9/11 NYPD Partnership with CIA to Conduct Surveillance, Infiltrate Mosques and Ethnic Communities Draws Calls for DOJ, Congressional Investigation

The Associated Press has published an extensive report on how the NYPD, working with the CIA, conducted extensive surveillance of ethnic neighborhoods and used informants, referred to as “mosque crawlers,” to report on sermons and other activities in Muslim religious communities even though no specific information about wrongdoing in such locations had been received.  The report notes that senior CIA officials expressed concerns to then CIA Director Tenet about whether cooperative arrangements created between the NYPD and the CIA violated legal restrictions on domestic spying.

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CA. Bill to Give State Govt. Exclusive Regulatory Authority over Circumcision Advances

The AP reports that the California Senate Judiciary Committee voted 5-0 to approve AB 768, which would preclude local governments from regulating circumcisions, making the state government exclusively responsible for the creation and enforcement of any rules governing the practice. The bill now moves on to the full state Senate for a vote.

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Mo. Teacher Files Suit Against Law Limiting Social Media Contact with Students

Represented by the ACLU, Christina Thomas, a Missouri teacher, has filed suit to enjoin the operation of the recently passed Ami Hestir Student Protection Act, which restricts teachers’ social media contact with students. (See prior post on law’s content.) Thomas asserts that because her own children attend her school she faces sanctions for Facebook communication with her own children. The Missouri Teachers Association is also challenging the law. The Christian Science Monitor and the Huffington Post provide coverage of the suit. 

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Tobacco Companies Challenge Graphic Ad Requirement as First Amendment Violation

Represented by Floyd Abrams, tobacco giants R.J. Reynolds Tobacco Co., Lorillard Inc., Commonwealth Brands, Inc., Liggett Group LLC, and Santa Fe Natural Tobacco Company Inc. have filed suit against the FDA, alleging that advertising regulations requiring warnings with accompanying graphic images force cigarette makers to “become mouthpiece for the Government’s emotionally charged anti-smoking message.”  Blog of the Legal Times reports that today the cigarette makers filed a motion for preliminary injunction to block the graphic ad rules from going into effect.  (See prior post noting predictions about IMS v. Sorrell’s potential utility for challenges to the graphic ads requirement.)
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St. Court Rules Illinois Has Authority to Stop Using Catholic Charities to Provide Foster Care and Adoption Services Based on Refusal to Place Children with Gay Couples in Civil Union Households

Reuters reports that Sangamon County Circuit Court Judge John Schmidt has ruled that the Illinois Department of Children and Family Services can refuse to renew annual contracts with Catholic child welfare groups in light of the groups’ announced refusal to place children with same sex couples who have entered into civil unions. The Catholic agencies have a longstanding policy of not placing children with unmarried couples and have refused to treat the recently authorized llinois civil union as the equivalent of marriage. Judge  Schmidt wrote: "No citizen has a legally recognized right to a contract with the government. The fact that the plaintiffs have contracted with the state to provide foster care and adoption services for over 40 years does not vest the plaintiffs with a protected property interest." Reacting to the ruling, Bishop Daniel Jenky of the Peoria diocese of Peoria issued a statement saying that "important elements of the political establishment in the state of Illinois are now basically at war with the Catholic community and seem to be destroying their institutions." Over 15,000 children are in foster care in Illinois and Cathoic Charities had been responsible for 2,000 of those children.

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Mo. Suit Asserts Viewpoint-based 'Sexuality' Web Filter Blocks Gay Rights Sites, Gives Access to Gay-Bashing Material

Courthouse News Service reports that four groups (Parents, Families, and Friends of Lesbians and Gays, Inc., DignityUSA, the Matthew Shepard Foundation, and Campus Pride, Inc.) have filed suit against the Camdenton R-III School District  in Camden County, Missouri. The complaint asserts that the school district’s “sexuality” filter “blocks websites supporting or advocating on behalf of lesbian, gay, bisexual, and transgender (“LGBT”) people but permits access to websites that condemn homosexuality or oppose legal protections for LGBT people, ” imposing a viewpoint discriminatory censorship regime. The complaint adds: “ Useful resources for LGBT and questioning youth are fairly scarce, especially in rural areas, even though the population in need of such resources is widely dispersed geographically.  ….[P]roviding these resources online is the only cost effective and geographically widespread approach that guarantees equal access opportunities." (See prior post examining ACLU’s launch of “Don’t Filter Me” initiative to end such discriminatory conduct by school districts.)

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Illinois Governor Signs Law Further Restricting Protests at Funerals

This week Illinois Governor Pat Quinn signed House Bill 180 into law. Prior law, the Let Them Rest in Peace Act, prohibited protests within 200 feet of the funeral site and barred protests during the period 30 minutes before and after a funeral or memorial service.  The new measure extends the restricted area to 300 feet.

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Applying First Amendment Precedents to 21st Century Communication Technology: The BART Controversy

On NPR this morning UCLA First Amendment scholar Eugene Volokh, the First Amendment Center’s Gene Policinski, and Lee Tien of the Electronic Frontier Foundation weighed on the First Amendment questions raised by the recent BART cellphone service shutoff in anticipation of a flash mob protest about the use of lethal force by BART police.  BART’s spokeman also provided a defense of the transit system’s action. Retaliating for the blocking of cell service, the “hacktivist” group Anonymous a cyberattck on BART, gaining access to system users’ personal data. (The Christian Science Monitor provides details on the attack.)

The The cell service shutdown scenario, which requires consideration of prior restraint, incitement, and forum doctrines, presents a very productive application exercise for students learning about the First Amendment.  

 JFB

 

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:
 
1. Timothy Zick (William & Mary Law School), Falsely Shouting Fire in a Global Theater: Emerging Complexities of Trans-Border Expression, forthcoming in Vanderbilt Law Review. The abstract states:

In Schenck v. United States (1919), Justice Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Owing to globalization, the digitization of expression, and other modern conditions a metaphorical global theater is emerging. In this theater, speakers’ voices and the physical and psychological effects of domestic expressive activities will frequently traverse or transcend territorial borders. This Article draws upon several recent events -- the Quran burning in Florida, the international reaction to an Internet posting calling for a “Draw Mohammed Day” event, the criminalization of the provision of expressive assistance to designated foreign terrorist organizations, the posting of potentially inciting speech on the Internet, and the WikiLeaks disclosures -- to examine how First Amendment doctrines relating to offensive expression, incitement, hostile audiences, treason, and the distribution of secret or potentially harmful information might apply in the global theater.
 
The Article makes four general claims or observations regarding these doctrines. First, although in rare instances the government could punish domestic incitement that causes harmful extraterritorial effects, in general expression that breaches global peace or order by producing distant offense and other harms ought to remain fully protected in the global theater. Second, owing to the instantaneous trans-border flow of offensive and incendiary expression, speakers will frequently have to assess in advance whether they are willing to risk the possibility of harm from distant threats, while officials will need to consider whether to offer some protection to domestic speakers in response to explicit threats from foreign hecklers. Third, the expanding category of proscribed enemy-aiding expression, which now includes the provision of “material support” (including otherwise lawful expression) to terrorists and may include a form of cyber-treason, must be defined as narrowly as possible in the global theater. In general, laws ought to be drafted and enforced such that only intentional enemy-aiding conduct, rather than speech or expressive association, is proscribed. Fourth, with regard to the trans-border exposure of governmental secrets, the United States ought to focus primarily upon improving its processes for protecting secrecy rather than on prosecuting the publishers, whether foreign or domestic, of such information.
 
The Article also draws some broader free speech, association, and press lessons from recent events and controversies in the emerging global theater. Public officials, courts, and commentators must begin to think more systematically about trans-border speech, association, and press concerns. The First Amendment’s trans-border dimension must be defined and incorporated into political, legal, and constitutional discussions regarding global information flow in the twenty-first century. In the global theater, America’s exceptional regard for offensive expression will be vigorously challenged both at home and abroad. We must be prepared to explain and defend our exceptional First Amendment norms, principles, and values to both domestic and global audiences. Recent episodes confirm that core First Amendment principles, including marketplace justifications for protecting offensive speech, will retain considerable force in the global theater. The Article also discusses various lessons for the press, as it continues its transformation from a domestic information hub and local watchdog to a loosely bound international distribution network. As this transformation occurs, the press will need to be more circumspect in its reporting on matters of global concern, such as religion, and with regard to the nature and character of its relationships with some foreign sources. Moreover, the press’s own commitment to the free flow of information will be tested, as new sources and publishers, operating on different models and in pursuit of different missions, continue to materialize.
 
Finally, new threats to free speech and information flow will arise in the global theater. We ought to be paying more attention to the influence of private intermediaries on the trans-border flow of information, and to new forms of governmental information control such as prosecution of information distributors and extra-judicial means of punishing speakers (including targeted executions).

2. Wibren van der Burg (Erasmus University Rotterdam-Erasmus School of Law), Inclusive Neutrality in the Classroom, published in Yearbook of the European Association for Education Law and Policy (2011).  The abstract states:

Both in law and in political philosophy, the idea of a neutral state is an important principle. It is rarely noticed, however, that there are important differences in how the principle is interpreted in each of the two disciplines. I argue that legal doctrines on neutrality can be clarified and improved with the help of philosophical insights (and vice versa). I make three interrelated points, first about the domain of application of neutrality, second about the various versions of neutrality and finally about the implications for public education. First, state neutrality should be broadly interpreted to refer not only to religion and belief, but to views of the good life, which also includes culture- and identity-connected lifestyles. Second, there are two basic versions of state neutrality: inclusive and exclusive. Inclusive neutrality can be subdivided into proportional and compensatory neutrality. Third, there are good reasons why, in general, public education should be inclusive. Public education should only be based on exclusive neutrality for issues where inclusive neutrality is not possible, for example with regard to religious symbols in the classroom. The Dutch ideal of active pluralism for public education should be interpreted broadly, including religion, belief, cultural diversity and diversity with regard to sexual orientation. It is a public duty as well as a right of children to be educated in light of this broad interpretation of neutrality; the ideal of active pluralism should be guiding in education about different religions, cultures and life styles in a neutral way. This ideal also holds for publicly funded private schools. 

3. Jean-Francois Gaudreault-DesBiens (University of Montreal-Centre de Recherche en Droit Public), Religion, Expression and Freedom: Offense as Weak Reason for Legal Regulation, published in Cahiers de Recherche sur les Droits Fondamentaux, No. 8, pp. 53-66, (2010).  The abstract states:

Some forms of religious expression tend to stir controversy among citizens who share a secular conception of public morality, whether or not they are themselves religious in the 'private sphere.' As well, religious individuals are often shocked by expression criticizing their beliefs or desacralizing the religious figures that they worship.
 
This paper examines some difficult questions raised by the interplay of freedom of expression and freedom of religion. Drawing on Raymond Boudon’s distinction between strong and good reasons, it offers a reflection on the quality of reasons invoked in support of claims demanding the censorship of either public manifestations of religious belief or anti-religious expression, observing that several of them, being neither strong nor good, are more often than not rather weak. It defends the thesis that the equilibrium between the two freedoms cannot be judged in the abstract but must instead be resituated within the particular historical and legal context within which it is established. However, it warns against the creation of double standards between religious expression and anti-religious expression, arguing that if the former is strongly protected, the other should be protected as strongly, irrespective of believers’ offended sensitivities. Secular moralities are no more, but no less, important, than religious ones. 

4. Ronald D. Rotunda (Chapman University-School of Law), The Intellectual Forebears of Citizens United, published in NEXUS, Vol. 16, p. 113, (2010-2011).  The abstract states:

Before Citizens United v. Federal Election Commission (2010), federal law banned “political speech” that aired too close to the election. The Court invalidated that stature in Citizens United, holding that the Federal Election Commission cannot constitutionally ban political speech just because it is close to an election and the speaker is incorporated. In the first oral argument before the Court, the Deputy Solicitor General argued that the statute authorized the government to ban corporations from publishing books that supported the election or rejection of a political candidate. In the second oral argument, Solicitor General Kagan argued that it was not constitutional for the government to ban books but it could ban pamphlets!
 
The Court disagreed and, in so doing, followed in the footsteps of a long line of commentators. President Truman, in vetoing the Labor Management Act of 1947, said it was unconstitutional to prohibit corporations and labor unions from engaging in independent expenditures in political campaigns. He warned, this ban was a “dangerous intrusion on free speech.” Later, in United States v. CIO (1948), Justices Black, Douglas, and Murphy joined Justice Rutledge, concurring in the result, argued that a ban on independent expenditures by individuals or groups violated free speech. And, in United States v. Automobile Workers (1957), Justice Douglas, joined by Chief Justice Warren and Justice Black, specifically objected to the argument that the Government can restrict the independent expenditures or speech of any group, “labor or corporate,” because the group is too powerful.
 
It in inevitable that money will flow into political campaigns: indeed, economic studies wonder why the major players do not invest more in campaigns, given that so much money rides on the outcome. Politicians routinely enact laws that take money from the pocket of Peter and put it into the pocket of Paul. As long as Government has such sway over our pocketbooks, unions, business, tort lawyers, and other interest groups will spend money to get their friends elected. Political campaigns engage in rent-seeking in spades. Citizens United will not change that. 

5. Nat Stern (Florida State University-School of Law),  The Subordinate Status of Negative Speech Rights, published in Buffalo Law Review, Vol. 59, No. 4, (August 2011).  The abstract states:

The Supreme Court has long acknowledged negative First Amendment rights of freedom from compulsion to engage in speech or association that impairs expressive activities. The idea of a unitary right to refrain from speaking, however, ignores the existence of discrete forms of compelled speech posing distinctive considerations. This Article contends that the notion of a single animating principle of negative speech rights has fostered and obscured their vulnerability. Just as affirmative speech rights are not treated as an undifferentiated whole, proper protection of negative speech rights rests largely in recognizing the distinctive nature of each. 

6. Margaret Gilhooley (Seton Hall University-School of Law),  Commercial Speech, Drugs, Promotion and a Tailored Television Advertisement Moratorium, published in Health Matrix: Journal of Law-Medicine, Vol. 21 (2011).  The abstract states:

The commercial speech doctrine has already had a major impact on drug regulation. This article examines the justification in two areas for limiting the information that drug companies provide to consumers or doctors about drugs with a high risk potential. The paper will first discuss the constitutionality of a tailored safety moratorium on television advertisements for drugs with a high risk potential. The article will then examine the constitutionality of imposing limitations on the ability of a drug manufacturer to initiate giving or mailing to doctors reprints of medical journal articles that discuss new but unapproved uses for drugs. The Obama Administration objects only to "promotional" distributions under a narrow test. While the constitutionality of restrictions is a contentious issue, this paper maintains that the safety risks to the public rightly deserve great weight under the commercial speech doctrine. 
 
JFB

Ammori on BART Cell Service Shutoff and the First Amendment

On Balkinization, Marvin Ammori assesses whether BART’s cell service shutoff should be considered a violation of the First Amendment and whether courts would be likely to treat it as such. 

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What are the Boundaries of a Government Employee’s Speech Rights?

On Volokh Conspiracy, Eugene Volokh provides a helpful brief overview of the scope of a government employer’s prerogatives to take action against an employee on the basis of his or her speech or expressive activity. Volokh then questions the analysis of the Kentucky Court of Appeals in its recent ruling in Mendez v. Univ. of Kentucky Bd. of Trustees. In Mendez a government worker alleged he was fired in response to expressing views about whether Danish papers should have published cartoons of Mohammed, and the court did not accept that such a discussion addressed a matter of public interest.  

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BART Shuts Down Cell Service in System to Block Planned Protest

As England grapples with how to deal with how social media communication could fuel violent rioting and looting (see prior post), the Christian Science Monitor reports the Bay Area Transit authority (BART) shut down cellphone service last week after learning of a planned flash protest against BART police shootings.  Citing public safety concerns to justify its action, BART did not use jamming technology but instead asked the cell service providers with whom it had contracted to provide service to transit riders to suspend service. Such moves by government actors raise important questions about how to apply existing incitement precedents.

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Is S&P Facing Govt Retaliation for Speech in Form of Credit Rating?

On Concurring Opinions, Lawrence Cunningham sees a form a retaliation for protected political speech in congressional announcement of plans to investigate Standard & Poor’s U.S. credit rating downgrade announcement, which cited political dysfunction as part of predicate for the move.

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British PM Weighs Social Media Restrictions in Wake of Riots

The Daily Mail is reporting that British PM David Cameron is exploring ways to halt use of Twitter and other forms of social media in wake of violent rioting facilitated by new media communication between participants. According to the Mail, “turning off mobile phone masts in riot areas or shutting down the accounts of known suspects when trouble starts” are among the options under consideration.  However, technology experts see such initiatives as unlikely to be effective.

JFB

First Amendment Scholarship Update

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

1. Michael Heise (Cornell Law School) and Gregory C. Sisk (University of St. Thomas School of Law - Minnesota), Religion, Schools, and Judicial Decision Making: An Empirical Perspective. The abstract states:    

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service of education reform. Our analyses include all digested Establishment and Free Exercise Clause decisions by federal court of appeals and district court judges from 1996 through 2005 that involved elementary and secondary schools. As it relates to differences between school and other (or non-school) cases, our main finding is that both measures of judicial ideology correlate with the likelihood of a pro-religion decision. That is, Republican-appointed judges were more likely than their Democratic-appointed counterparts to reach a pro-religion decision in school cases, and ideology did not correlate with a pro-religion outcome in non-school cases. Results using common space scores as a proxy for ideology were similar. Although these results dilute the strength of the “legal model” of judicial decision making, this type of case (religion) in this particular context (schools) are particularly amenable to ideological influence.

2. Nathan Cortez (Southern Methodist University-Dedman School of Law), Can Speech by FDA-Regulated Firms Ever be Noncommercial? , published in American Journal of Law and Medicine, Vol. 37, No. 2, p. 399, (2011).  The abstract states:

This Article considers whether speech by pharmaceutical, medical device, and other FDA-regulated companies can ever be noncommercial and thus subject to heightened protection under the First Amendment. Since the U.S. Supreme Court first recognized a right to commercial speech in 1976, there have been 24 published federal judicial opinions in which an FDA-regulated firm has argued that its speech was protected. Courts have categorized the speech as commercial in all but two cases, neither of which involved FDA rules or enforcement. 
 
I examine the tests and factors courts claim they use when making this threshold distinction, then identify the various factors and indicia of commercial speech that they actually use. I find that courts often use the speaker's commercial identity as a proxy for commercial intent, which otherwise is the most salient factor. The Article then considers various forms of speech by FDA-regulated companies that blur the distinction between commercial and noncommercial speech, including publicity, statements via new media, speech through experts and intermediaries, and scientific speech, including speech about off-label uses for their products. 
 
The Article concludes that each of the various factors courts use to distinguish commercial from noncommercial speech would have to align perfectly for courts to give it heightened First Amendment protection. 

3. David G. Yosifon (Santa Clara University-School of Law), Discourse Norms as Default Rules: Structuring Corporate Speech to Multiple Stakeholders, published in Health Matrix: Journal of Law-Medicine, Vol. 21, No. 89, (2011).  The abstract states:

This Article analyzes corporate speech problems through the framework of corporate law. The focus here is on the “discourse norms” that regulate corporate speech to various corporate stakeholders, including shareholders, workers, and consumers. I argue that these “discourse norms” should be understood as default terms in the “nexus-of-contracts” that comprises the corporation. Having reviewed the failure of corporate law as it bears on the interests of non-shareholding stakeholders such as workers and consumers, I urge the adoption of prescriptive discourse norms as an approach to reforming corporate governance in a socially useful manner.  

4. Patrick Parkinson (University of Sydney Law School), Accommodating Religious Beliefs in a Secular Age: The Issue of Conscientious Objection in the Workplace, published in University of New South Wales Law Journal, Vol. 34, No. 1, pp. 281-299 (2011).  The abstract states:

This article explores the scope for freedom of conscience in the workplace when people of faith dissent from the values of the majority. In particular, it examines the issues in two English cases, Ladele v London Borough of Islington and McFarlane v Relate Avon Ltd, in which professionals lost their jobs because they had a conscientious, and faith-based, objection to providing a particular kind of service to gay and lesbian couples. In the first case, a local government employee whose work involved celebrating marriages sought to be excused from performing ceremonies involving civil partnerships. In the second case, a relationships counselor qualified in sex therapy asked not to be rostered on to provide sex counseling to same-sex couples, although he was willing to provide general relationship counseling. Both were members of a disadvantaged minority ethnic group. The appeal courts rejected their claims for a remedy based upon religious freedom in both cases.
 
The argument of the article is that with more sensitivity to the human rights of everyone involved, conflict in these cases could have been avoided in a way that was principled and which involved equal respect for all. Furthermore, the courts should have provided a broader interpretation of religious freedom. Tolerance for different views in a multicultural society requires that there be some accommodation of moral dissenters, within reasonable limits, at least where their moral positions are based upon genuinely held religious belief. In these cases, the result of the decisions taken by the employers and the courts was that these workplaces became less diverse than they would otherwise have been if the pathways to peace had been properly explored. 

5. Yusef Malik, Comment - The Religious Land Use and Institutionalized Persons Act: A Perspective on the Unreasonable Limitations Provision ,published in Tennessee Law Review, Vol. 78, p. 531, (2011).  The abstract states:

This Comment first briefly recounts the history of RLUIPA. Part II addresses the terms of the unreasonable limitations provision, its legislative history, and applicable cases. Part III analyzes the provision's application when a religious claimant is trying to expand its facilities. Part IV assesses the implications of the unreasonable limitations provision and RLUIPA on land use regulations. Part V provides a brief conclusion.  

6. Rita Marie Cain (University of Missouri-Kansas City-Bloch School of Management), Embedded Advertising on Television: Disclosure, Deception and Free Speech Rights, published in Journal of Public Policy and Marketing, Vol. 30 (November 2011).  The abstract states: 

In 2008, the FCC initiated a docket to determine if existing TV sponsorship regulations need to be revised to address embedded advertising. This paper first discusses current embedded advertising practices on television and the alleged problems with those practices. Then the paper explains the current legal framework applicable to the practices. Next, the paper analyzes the major reform positions that were articulated in comments to the FCC. This analysis includes a discussion of the first amendment protections for advertising as well as the creative works in which the integrated marketing is embedded, since the advertising is difficult to separate from its entertainment platform. The paper concludes with recommendations for next steps by the FCC and industry.  

7. Roseann B. Termini, Thomas A. Roberto and Shelby G. Hostetter (Widener University-School of Law),  Food Advertising and Childhood Obesity: A Call to Action for Proactive Solutions, published in Minnesota Journal of Law, Science & Technology, Vol. 12, pp. 619-651 (2011).  The abstract states:

Unquestionably, advertising has been recognized as a form of commercial speech entitled to constitutional protection. Yet the debate rages on as to the legality and impact of food advertising directed at children. As the rate of obesity continues to escalate in the United States, children are increasingly becoming victims of health complications attributable to weight gain. The percentage of children labeled obese or overweight has risen steadily over the past decade with no sign of a decrease in sight. Although research has not proven a definitive link between food advertisements and childhood obesity, current research indicates a strong correlation between what children view in the media and their dietary habits.
 
Pediatricians and child development experts have theorized that food advertising contributes to childhood obesity in the following ways: (1) Time spent using media detracts from time that could be spent engaged in physical activity; (2) Food advertisements on television encourage children to make unhealthy food choices; (3) Cross-promotion of food products and television and movie characters encourages children to acquire and consume low-nutrient, high-calorie foods; and (4) Children snack excessively while accessing various forms of media and eat less healthy when watching television specifically. While none of these theories have been proven to cause childhood obesity, the available evidence overwhelmingly suggests a causal relationship exists between food advertisements and a child’s overall nutritional awareness.
 
Several solutions remain available to counteract this influence, including (1) a ban on fast food advertising on television; (2) government regulation of food advertisements directed at children; (3) elimination of food advertising as an ordinary business expense that reduces taxable corporate income; and (4) parental education and involvement. Although there is no guarantee that any or all of these solutions would definitively lead to positive changes in children’s eating habits, the startling figures on consumption in relation to the viewing of food advertisements indicate that some form of government regulation is critical. 
 
JFB
 
  

Three Judge Ct. Rejects First Amendment Challenge to Ban on Campaign Donations by Foreign Nationals

In Bluman v. FEC, a three judge panel granted the government’s motion to dismiss a suit filed by non-citizens who challenged the constitutionality of 2. U.S.C. 441(e)(a), which bars campaign contributions and expenditures by non-citizens.  The opinion states:

The Supreme Court has long held that the government (federal, state, local) may exclude foreign citizens from activities that are part of democratic governance in the United States. For example, the Supreme Court has ruled that the government may bar aliens from voting, serving as jurors, working as police or probation officers, or teaching at public schools. Under those precedents, the federal ban at issue here readily passes constitutional muster. 

How Appealing provides links to coverage of the ruling.

JFB

Mormon Defense League Formed

Last week the Deseret News reported the creation of the Mormon Defense League, which seeks to counter false information presented by the media about The Church of Jesus Christ of Latter-day Saints. The group’s website identifies that  its mission is “to assist journalists, authors, bloggers, producers, and others in the media in getting their stories right, and to correct misinformation and distortions about Mormons, Mormonism, and other faith communities.” The MDL is not formally affiliated with The Church of Jesus Christ of Latter-day Saints and was created by the Foundation for Apologetic Information & Research, which describes itself as “a non-profit organization dedicated to providing well-documented answers to criticisms of LDS (Mormon) doctrine, belief and practice.”

JFB

Gov. Perry’s Frequent Fusion of Faith and Politics

As the controversial “The Response” prayer rally is set to convene today and as speculation mounts about a possible bid for the Republican presidential nomination, the New York Times scrutinizes Texas Governor Rick Perry’s proclivity to infuse a particular narrowly framed religious rhetoric into political argument and to promote political initiatives by invoking faith-based justifications.   

JFB
     

Ninth Circuit Upholds University Non-Discrimination Policy But Allows Selective Enforcement Claim to Proceed

This week the Ninth Circuit released its opinion in Alpha Delta Chi-Delta Chapter v. Reed in which student organizations challenged university anti-discrimination rules for student groups, rules framed not as requiring groups to be open to all but instead prohibiting membership restrictions based on identified characteristics, such as  race, gender, religion, and sexual orientation.  The opinion summarizes  its holding as follows:

The Supreme Court held in Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez that a public law school does not violate the Constitution when it “condition[s] its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students.” 130 S. Ct. 2971, 2978 (2010). The Court referred to the open membership requirement as an “all-comers policy” and concluded that such a policy was a “reasonable, viewpoint-neutral condition on access to the student-organization forum.” Id. The Court further held that the all-comers policy did not violate the Free Exercise Clause of the First Amendment. Id. at 2995 n.27.

The Court expressly declined to address whether these holdings would extend to a narrower nondiscrimination policy that, instead of prohibiting all membership restrictions, prohibited membership restrictions only on certain specified bases, for example, race, gender, religion, and sexual orientation. See id. at 2982, 2984. The constitutionality of such a policy is the issue before us in this case. We conclude that the narrower policy is constitutional. We hold, however, that Plaintiffs have raised a triable issue of fact as to whether the narrower policy was selectively enforced in this particular case, thereby violating Plaintiffs’ rights under the First and Fourteenth Amendments. We affirm in part and reverse in part, and remand to the district court for further proceedings.

JFB