First Amendment Law Prof Blog

This Is Banned Books Week

The event has its own website that includes a map feature that allows you to see book challenges around the US.  The American Library Association’s resources related to the Week offer a list of the most frequently challenged books of the 21st century. Among the recurring titles on that list are:  And Tango Makes Three, by Peter Parnell and Justin Richardson, Twilight by Stephenie Meyer, the Harry Potter books  by J.K. Rowling, and Of Mice and Men by John Steinbeck.

JFB 

First Amendment Scholarship Update – Speech

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

1. A. Michael Froomkin (University of Miami), Lessons Learned Too Well. The abstract states:

This paper, prepared for a presentation Sept. 22, 2011 at the Oxford Internet Institute’s Conference, A Decade in Internet Time: Symposium on the Dynamics of the Internet and Society, examines, contextualizes, and critiques an international trend towards the regulation of anonymity.

The paper describes private incentives and initiatives during the past decade that resulted in the deployment of a variety of technologies and services each of which is unfriendly to anonymous communication. It then looks at three types of government regulation, relevant to anonymity: the general phenomenon of chokepoint regulation, and the more specific phenomena of online identification requirements and data retention (which can be understood as a special form of identification).

The concluding section takes a pessimistic view of the likelihood that given the rapid pace of technical and regulatory changes the fate of online anonymity in the next decade will be determined by human rights law rather than by the deployment of new technologies or, most likely, pragmatic political choices. It therefore offers normative and pragmatic arguments why anonymity is worth preserving and concludes with questions that proponents of further limits on anonymous online speech should be expected to answer.

The consequences of an anonymity ban are likely to be negative. This paper attempts to explain how we came to this pass, and what should be done to avoid making the problem worse.

2. Alon Harel (Hebrew University of Jerusalem), Freedom of Speech, published in the forthcoming COMPANION TO PHILOSOPHY OF LAW, Andrei Marmor, ed,. The abstract states:

Freedom of speech is among the most cherished constitutional rights in liberal democracies. The primary task of this survey is to examine why (and whether) speech ought to be protected more (or differently) than non-speech activities.

To address the normative question of why speech is protected as well as to identify what counts as speech we examine below in Part II four major liberal theories purporting to justify the protection of speech: the marketplace of ideas, the autonomy-based theory, the self-realization and the democratic justifications. We establish that none of these theories alone can justify the protection of speech as is currently practiced in contemporary liberal polities.

In recent years many feminists and ethnic or religious minorities have challenged the protection of certain forms of speech. More particularly it was claimed that certain forms of speech either conflict with other rights, e.g., equality, or even may deprive minorities of the capacity or ability to exercise effectively their own right to free speech (the silencing argument). It is the task of Part III to explore some of the minoritarian challenges to what constitutes speech and what constitutes protected speech.

Some radical critics of liberalism challenge the importance and significance of freedom of speech as such. They maintain that freedom of speech masks large-scale silencing and repression. “Repressive tolerance,” as it is sometimes labeled, is a radical position that rejects central, traditional, liberal political rights in the name of values such as autonomy and equality and regards the liberal protection of speech (independently of its content or merit) as a repressive mechanism designed to strangle rather than facilitate genuine public deliberation. These challenges will be examined in Part IV.

I conclude by pointing out that the three positions described below (liberalism, minoritarian critics of liberalism and radical critics of liberalism) share similar assumptions and values. To the extent that minoritarian and radical critics of liberalism advocate restrictions of speech, they do so by invoking the very same values advocated by liberals: autonomy, dignity and equality.

3. Joel M. Gora (Brooklyn Law School), Don't Feed the Alligators: Government Funding of Political Speech and the Unyielding Vigilance of the First Amendment , Cato Supreme Court Review, pp. 81-127(2010-2011). The abstract states:

This is an analysis of the Supreme Court’s recent decision in Arizona Free Enterprise Club’s Freedom Club Pac v. Bennet, 131 S. Ct. 2806 (2011), which struck down the Arizona program for providing government “triggered” matching funds in political campaigns. Under that scheme, a publicly funded candidate, whose campaign is almost wholly funded by government already, is given additional government funds for his campaign whenever a privately financed candidate (or independent groups supporting that candidate as well) raises or spends any money to campaign against the publicly funded opponent. The Supreme Court ruled that such government supported counter-speech deters and burdens the speech of the privately funded candidate, as well as of independent groups and individuals, without a sufficiently compelling First Amendment justification. The article analyzes the decision, sets it in the larger context of the whole question of public funding of political campaigns and then projects the impact the decision is likely to have in the future judicial and legislative engagements with public funding of political campaigns.

4. Alexandra Olson (Boston College Law Review), Note - Dilution by Tarnishment: An Unworkable Cause of Action in Cases of Artistic Expression, forthcoming in Boston College Law Review. The abstract states:

In response to the number of trademark and copyright infringement cases in the last ten years, and in the wake of the Trademark Dilution Revision Act (TDRA), scholarship has focused on ensuring adequate First Amendment protection for artists against infringement and dilution claims. This Note, however, seeks to push the debate in a new direction, by suggesting that First Amendment protection in the trademark dilution context has been stretched too far, leaving corporations unable to attain even injunctive relief against diluters. Unlike the more tailored and flexible free speech doctrines found in the laws of trademark infringement, copyright, and right of publicity, dilution by tarnishment effectively prevents companies from prevailing against artists who negatively depict the corporations' trademarks in their work, no matter how harmful the appropriation may be to the corporation’s mark.

5. Rebecca Leah Zeidel (Boston College Law Review), Note - Forecasting Disruption, Forfeiting Speech: Restrictions on Student Speech in Extracurricular Activities , forthcoming in Boston College Law Review. The abstract states:

Student speech in extracurricular activities occupies a doctrinal position between curricular speech and individual speech. Outside the narrow factual situations governed by Bethel v. Fraser and Morse v. Frederick, courts tend to treat extracurricular student speech either as curriculum-like, school-sponsored speech under Hazelwood School District v. Kuhlmeier, when the activities are inherently expressive, or as individual speech under Tinker v. Des Moines Independent School District. Applying Tinker's "forecast" of disruption standard to student speech in extracurricular activities, particularly when supported by analogies to public employee speech, has a chilling effect that conditions student participation in extracurricular activities on a reduced speech right. This result contradicts the educational goals of extracurricular activities and public schools. This Note proposes requiring that school officials using a "forecast" of disruption to punish student speech must connect the speech restriction to the educational goal of the particular extracurricular activity.

6. R. Randall Kelso (South Texas College of Law) and Charles D. Kelso (University of the Pacific - McGeorge School of Law), The Constitutional Jurisprudence of Justice Kennedy on Speech. The abstract states:

Justice Kennedy’s basic principles in free speech cases are supporting political freedom, supporting individual autonomy, and protecting freedom to teach, learn and innovate. Given these principles, his opinions in free speech cases protect free speech from government regulation unless the government can provide strong reasons for any restrictive action and show that the means it has chosen to carry out its purposes are closely tailored to its goals. At a minimum, judicial review is by strict scrutiny for content-based regulations, and intermediate review for content neutral time, place, and manner regulations. In some cases, Justice Kennedy has indicated a preference for a stronger, absolute rule of unconstitutionality for content-based regulations which do not fall into one of the traditional exceptions of free speech doctrine, such as obscenity, defamation, words tantamount to an act otherwise criminal, impairing some other constitutional right, an incitement to lawless action, or speech calculated to bring about imminent harm that the state has substantive power to regulate. Given his entire body of decisions regarding the freedom of speech over his quarter century on the Court, no Justice on the modern Court has been more consistently protective of the First Amendment freedom of speech than Justice Kennedy.

7. Christopher J. Clements (Boston College Law Review), Note - Protecting Protected Speech: Why Schwarzenegger Must Terminate Violent Video Game Legislation , 53 B.C.L.Rev. ---- (2012). The abstract states:

This Note argues that current and future efforts to regulate violent video games should and will continue to fail constitutional scrutiny. Legislators should instead focus on mandating that video game developers and retailers participate in the exceedingly successful Entertainment Software Rating Board (“ESRB”) rating system. The upcoming Supreme Court decision Entertainment Merchants Association v. Schwarzenegger provides the Court with the opportunity to clarify the role of government in shielding children from objectionable media and where, if at all, violent video games fit into obscenity jurisprudence

8. Yoav Hammer (Academic Center of Law and Business), Advertisements and the Public Discourse in a Democracy, Journal of Law and Ethics of Human Rights, Vol. 5, 2011. The abstract states:

Modern advertisements contain little information and expose few arguments. They rarely describe the product and its usage or compare it to similar products. Yet, advertisements convey many messages—they attach meaning to products, suggest values, and spread a particular view of life. Advertisements create a failure in the democratic process; through advertising, commercial corporations intervene in the democratic discourse. Citizens are intensively exposed to the consumerist worldview while alternative points of view are scarcely presented in the communicative sphere. But commercial corporations are not legitimate participants in the public discourse in a democracy since they do not represent the political support of citizens. Presently, courts grant advertisements freedom of speech protection based on the importance of providing information for viewers. But by doing this, courts ignore the value-suggesting messages prevalent in modern advertisements.

For many years the law in the domain of campaign finance has restricted the speech of corporations in order to prevent distortion of the political discourse prior to elections. Similarly, we should allow the State to intervene to repair the failure in the public discourse created by advertisements. The law regarding informative messages and value-suggesting messages contained in advertisements should treat each separately, and advertisers should not be permitted to convey messages of the latter.

9. Junichi P. Semitsu (University of San Diego School of Law), Arresting Development: Facebook Searches and the Information Super Highway Patrol, forthcoming in Arkansas Law Review. The abstract states:

When people are arrested today, Facebook may be the farthest thing from their minds. But for those handcuffed with their smart phone or laptop closed at hand, the social networking site may seismically shift the balance between their privacy and the police.

As the most frequented stop today on the information super highway, Facebook deserves credit (or blame) for not only the boom in civilian traffic, but also the escalation of the information super highway patrol policing it. The increasingly heavy - but largely hidden - presence of law enforcement stems, in part, from company’s policies and philosophies, which marginalize personal privacy concerns. However, the true genesis of any seismic shift begins with the Court’s outdated Fourth Amendment jurisprudence and Congress’s failure to update federal privacy laws to consider methods of modern communication tools.

In this Article, I survey the ways government officials have justified (or could justify) a search of an arrestee’s Facebook account, as well as the potential flaws with those legal arguments. But even when such a search does not fall into the myriad holes in the Swiss cheese of Fourth Amendment jurisprudence, I demonstrate that the digital architecture of social networking and the weak policies of Facebook puncture any remaining expectations of privacy.

But the ramification of these post-arrest searches extends far beyond privacy concerns. Post-arrest searches on social networking sites raise new and significant free speech concerns. In a matter of minutes, a search of Facebook could cast a net covering years of personal communications by the arrestee - as well as hundreds of others - while also ensnaring future communications that follow the arrest. The implications are just as staggering as the difficulties facing an arrestee who wishes to challenge these practices under existing law.

Thus, in this article, I propose the adoption of a First Amendment theory of privacy as a means to limit the warrantless surveillance of social networks. Regardless of whether post-arrest Facebook searches can be justified under the Fourth Amendment, I conclude that these arresting developments have the potential to chill so much speech that the First Amendment may be the more meaningful and promising lens through which to review such searches.

10. Shannon Gilreath (Wake Forest University), Gay/Straight: The Binary Ontology of the Gay Marriage Debate , published in  S. Gilreath, THE END OF STRAIGHT SUPREMACY: REALIZING GAY LIBERATION, Cambridge University Press (2011). The abstract states:

The following is a chapter from my recently released book, The End of Straight Supremacy: Realizing Gay Liberation. This chapter challenges the straight supremacist assumptions at the root of the gay movement’s marriage obsession.

Rooted in the politics and theories of early Gay liberation and Radical feminism, Shannon Gilreath’s The End of Straight Supremacy presents a cohesive theory of Gay life under straight domination. Beginning with a critique of formal equality law centered on the “like-straight” demands of liberal equality theory as highlighted in Lawrence v. Texas, Gilreath goes on to criticize the “gay rights” movement itself, challenging the assimilation politics behind the movement’s blithe acceptance of discrimination in the guise of free speech and pornography in the name of sexual liberation, as well as same-sex marriage and transsexuality as tools of straight hegemony. Ultimately, Gilreath rejects both the liberal demand for Gay erasure in exchange for meager legal progress and the gay establishment agenda. In so doing, he provides both the vocabulary and analysis necessary to understand and to resist straight supremacy in all its forms. In The End of Straight Supremacy, Gilreath calls Gays and their allies to the difficult task of rethinking what liberation and equality really mean.

The reader will quickly notice my use of irregular capitalization. I used “Gay,” capitalized, to refer to that which is Gay-identified. I use “gay,” lower-case, as in “gay pornography” or “gay establishment,” to distinguish that which is essentially straight supremacist in origin and operation.

11. David G. Robinson (Yale Law School), Following the Money: A Better Way Forward on the Protect IP Act . The abstract states:

The Internet addressing and filtering provisions of the proposed PROTECT IP Act should not become law. They cannot promise efficacy, and they threaten significant collateral harm.

However, the bill offers potentially useful new tools to reduce the revenue of sites dedicated to selling, or profiting from, infringing media or counterfeit goods. These financial provisions have earned much less controversy than the Internet addressing and filtering provisions.

One way to address many of the problems with the PROTECT IP Act would be to strip the Internet blocking provisions out of the bill, and pass a surgically focused law that will confer potentially important new powers on law enforcement (and possibly on private rightholders) to dry up revenue sources for “rogue” web sites. Such a revised bill would avoid a host of other harms: it would preserve the future value of the .com domain names in which American businesses have already invested. It would protect America’s role as a global leader and de facto standard setter in Internet governance, and the economic advantages that come with that role. It would avoid the significant First Amendment problems that make the present draft of the PROTECT IP Act—and the current domain name seizures under color of existing law—vulnerable to constitutional challenges. And last, it would avoid chilling future innovations in computing technology, online media, and broadband network design.

12. Laura A. Heymann (William & Mary Law School),The Law of Reputation and the Interest of the Audience , 52 B.C. L. Rev. 1341 (2011). The abstract states:

Although an individual has control over many of the statements, acts, and other biographical data points that are used to construct her reputation, she does not ultimately have control over the result of that reputational assessment, the pronouncement of which is a task re-served to others. Reputation is fundamentally a social concept; it does not exist until a community collectively forms a judgment about an individual or firm that has the potential to guide the community’s future interactions. Despite reputation’s relational nature, discussions of the law’s interest in reputation tend to focus on one of two parties: the individual or firm holding the reputation and the defendant accused of having unlawfully harmed that reputation. This framework leads to particular conceptions of the reputational interests, such as from a property or dignity perspective, and of the countervailing, often First Amendment–related, interests of the defendant. But the community that constructs one’s reputation also has an interest in the soundness of a reputation’s foundation so that future uses of others’ reputations will be effective. A more complete conception of reputation, therefore, should take such community interests into account.

JFB

AL District Agrees to End Pre-Game Prayers

Responding to a letter of complaint from the Freedom from Religion Foundation (FFRF), the Superintendent of the Arab, Alabama school system, John Mullins, has announced that football games will now begin with a moment of silence rather than the customary pre-game prayer. In a report by WAAY-TV, Mullins explained his decision as follows: “Yes in our personal lives in Arab we are Christian but our priority is to serve the students of this school system and provide them education....And we at this time can't commit the energy and time and financial resources to battle a case we most likely will not win ....We wish we could continue praying but we can't."  Pre-game prayer of this kind was recognized as an Establishment Clause violation in Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) but persists in a number of resitant communities.   

JFB

Chamber of Commerce Sues to Block NLRB Notice of Rights Rule

The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce have announced their filing a complaint against the National Labor Relations Board in the U.S  District Court of South Carolina. The suit  alleges that  NLRB’s final rule on Notification of Employee Rights Under the National Labor Relations Act exceeds the agency’s statutory authority and violates the First Amendment  by “compelling employers to post the NLRB’s ideological views on unionizing.”   The new rule requires employers to post an 11x17 inch notice that summarizes employee rights established under the NLRA. The notice will include the following text:

Under the NLRA, you have the right to:
• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees' own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing. Choose not to do any of these activities, including joining or remaining a member of a union.

At the bottom, the notice states: “This is an official Government Notice and must not be defaced by anyone.”  The notice posting rule will go into effect November 14, 2011. Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act, but the agency describes its anticipated response to such a failure as follows:

The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

When the NLRB issued the rule on August 30, the agency addressed objections to the rule on First Amendment grounds:

[R]equiring a notice of employee rights to be posted does not violate the First Amendment, which protects the freedom of speech. Indeed, this rule does not involve employer speech at all. The government, not the employer, will produce and supply posters informing employees of their legal rights. The government has sole responsibility for the content of those posters, and the poster explicitly states that it is an “official Government Notice”; nothing in the poster is attributed to the employer. In fact, an employer has no obligation beyond putting up this government poster. These same considerations were present in Lake Butler Apparel Co. v. Secretary of Labor, 519 F.2d 84, 89 (5th Cir. 1975), where the Fifth Circuit rejected as “nonsensical” an employer's First Amendment challenge to the Occupational Safety and Health Act requirement that it post an “information sign” similar to the one at issue here. As in Lake Butler, an employer subject to the Board's rule retains the right to “differ with the wisdom of * * * this requirement even to the point * * * of challenging its validity. * * * But the First Amendment which gives him the full right to contest validity to the bitter end cannot justify his refusal to post a notice * * * thought to be essential.”Id.; see also Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309-10 (10th Cir. 1976) (dicta) (rejecting a constitutional challenge to a requirement that an employer post a copy of an OSHA citation).

 But even if the Board's notice-posting requirement is construed to compel employer speech, the Supreme Court has recognized that governments have “substantial leeway in determining appropriate information disclosure requirements for business corporations.”Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n, 475 U.S. 1, 15 n.12 (1985). This discretion is particularly wide when the government requires information disclosures relevant to the employment relationship.

JFB

 

New Baylor Religion Survey Explores How Religious Beliefs Shape Attitudes Toward Govt Role in Economy and Faith in US Economic System

Researchers from Baylor's Sociology Department and Business School presented new data from their 2011 Religion Survey to a meeting of the Religion Newswriters Association last week . A Baylor press release highlights these findings:

The American Dream. Most Americans believe that God has a plan for them. Still, Americans who believe strongly that God has something wonderful in store for them look very different from the rest of Americans. Although they tend to have lower levels of education and income, these respondents are the most likely to believe that the United States' economic system is fair, that the government is too intrusive, that healthy people should not receive unemployment benefits and that anything is possible through hard work. And, despite believing that success is based on hard work and ability, they are the strongest believers that some are meant to be rich and some to be poor.

Liberals are idealists? Conservatives are realists? Think again. Liberals have been historically and popularly thought of as idealists - individuals who have high ideals and believe they can be realized - while conservatives are often depicted as common-sense realists. But the latest Baylor Religion Survey analysis finds liberals are less likely than conservatives to believe in an ultimate meaning to life, that it is important to have a life philosophy, that "Ultimate Truth" exists or to seek eternal wisdom. Liberals also are more cynical about American society. They are more likely to report that some people are born lucky, that the world is controlled by a few wealthy, powerful elites, and that it is useless to try to find life's purpose. In contrast, conservatives tend to be less pessimistic about life and its options and more confident that there is "Truth" and that is it known to them.

Citizens United’s Disclosure Dividend

In a column in yesterday’s New York Times, Adam Liptak highlights how the Citizens United ruling’s endorsement of campaign finance disclosure requirements has been applied in a series of lower court rulings. These rulings include National Organization for Marriage v. McKee, --- F.3d ----, 2011 WL 3505544 (1st Cir. 2011)(upholding bulk of registration and reporting requirements of  Maine's ballot question statute) and National Organization For Marriage v. Daluz, --- F.3d ----, 2011 WL 3505549 (1st Cir.2011) (upholding Rhode Island election law's required reporting of  independent expenditures).

JFB

Petition Seeks SEC Rulemaking on Corporate Disclosure of Political Spending

Ten legal academics whose work focuses corporate law and securities regulation have filed a petition for rulemaking with the SEC seeking the action of by the agency in wake of Citizens United.  The contents of the petition is summarized in a Harvard Law School press release:  

The petition begins by explaining that the commission’s disclosure rules have evolved over time in response to changes in investor interests and needs as well as corporate practices. The petition then presents data indicating that public investors have become increasingly interested in receiving information about corporate political spending. It proceeds to explain that, in response to increased investor interest, many public companies have voluntarily adopted policies requiring disclosure of the company’s spending on politics, and these disclosure practices can provide a useful starting point for the SEC in designing disclosure rules in this area.

Finally, the petition explains that disclosure of information on corporate political spending is important for the operation of corporate accountability mechanisms, including those that the Supreme Court has relied upon in its analysis of corporate political speech. It also observes that the design of disclosure rules concerning political spending would involve choices similar to those presented by the disclosure rules previously developed by the commission, and thus that the commission has ample experience and expertise to make these choices. The petition concludes that the commission should promptly initiate a rulemaking project to make political spending by public companies more transparent to investors.

JFB

Knight Foundation: Social Media Enhance Teens’ Appreciation of First Amendment

In a press release announcing the release of its 2011 Future of the First Amendment report, the Knight Foundation highlighted the following findings:

• Both social media use and First Amendment appreciation are growing among high school students. More than three-quarters of students use social media several times a week to get news and information. Meanwhile, the percentage of students who believe “the First Amendment goes too far” in protecting the rights of citizens has dropped to a quarter (24 percent) in 2011 from nearly half (45 percent) in 2006.
• There is a clear, positive relationship between social media use and appreciation of the First Amendment. Fully 91 percent of students who use social networking daily to get news and information agree that “people should be allowed to express unpopular opinions.” But only 77 percent of those who never use social networks to get news agree that unpopular opinions should be allowed.
• Still, many teachers believe social media harms education. Most teachers also do not support free expression for students. Only 35 percent, for example, agree that “high school students should be allowed to report controversial issues in their student newspapers without the approval of school authorities.” In addition, teachers are more inclined to think that the emergence of the newest forms of digital media have harmed (49 percent) rather than helped (39 percent) student learning.

JFB

Freedom From Religion Foundation Sues IRS to Halt Tax Exclusion for Clergy Housing Allowances

Arguing that income tax exclusions for housing allowances paid as part of ministers’ compensation amount to preferential tax treatment on the basis of religious belief and violate the Establishment Clause, the FFRF and several of its executive officers have filed a complaint challenging the constitutionality of IRC Section 107 in Wisconsin federal district court.   

JFB   

First Amendment Scholarship Update

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

1. Derek E. Bambauer (Brooklyn Law School /Harvard Law School), Orwell's Armchair, forthcoming in 
U. Chi. L. Rev. The abstract states:

America has begun to censor the Internet. Defying conventional scholarly wisdom that Supreme Court precedent bars Internet censorship, federal and state governments are increasingly using indirect methods to engage in “soft” blocking of on-line material. This Article assesses these methods and makes a controversial claim: hard censorship, such as the PROTECT IP Act, is normatively preferable to indirect restrictions. It introduces a taxonomy of five censorship strategies: direct control, deputizing intermediaries, payment, pretext, and persuasion. It next makes three core claims. First, only one strategy – deputizing intermediaries – is limited significantly by current law. Government retains considerable freedom of action to employ the other methods, and has begun to do so. Second, the Article employs a process-based methodology to argue that indirect censorship strategies are less legitimate than direct regulation. Lastly, it proposes using specialized legislation if the U.S. decides to conduct Internet censorship, and sets out key components that a statute must include to be legitimate, with the goal of aligning censorship with prior restraint doctrine. It concludes by assessing how soft Internet censorship affects current scholarly debates over the state’s role in shaping information on-line, sounding a skeptical note about government’s potential to balance communication.

2. Marilyn B. Cane (Nova Southeastern University - Shepard Broad Law Center), Adam Shamir and Tomas Jodar, Below Investment Grade and Above the Law: A Past, Present and Future Look at the Accountability of Credit Rating Agencies, forthcoming in Fordham Journal of Corporate and Financial Law. The abstract states:

“Below Investment Grade and Above the Law: A Past, Present and Future Look at the Accountability of Credit Rating Agencies” by Professor Marilyn Blumberg Cane, co-authored with Adam Shamir and Tomas Jodar is a timely and comprehensive article focusing on the responsibility, and lack thereof, of the credit rating agencies. The article is titled “below investment grade” due to the shoddy performance of the credit rating agencies (hereinafter “CRAs”) for their key role in the financial crisis of 2007-08. It is also titled “above the law” because of the CRAs’ lack of accountability due to regulatory sleight of hand and the CRAs’ almost totally successful defense against liability to bondholders through the invocation of the Freedom of Speech under the First Amendment.

This article covers the evolution of the credit rating industry, in particular, the noteworthy shift from purchaser-subscriber to issuer pay model. It then describes the history of SEC CRA regulatory measures, most notably the adoption of SEC Rule 436(g), adopted in 1982, which specifically eliminated liability for the big CRAs (Moody’s, Standard & Poor’s, Fitch’s and Duff and Phelps) as “experts” under Sections 7 and 11 of the Securities Act of 1933. The article then covers the Credit Rating Agency Reform Act of 2006 and the adoption of SEC Rule 17g-5 in an attempt to control conflicts of interest within CRAs. We next turn to the freedom of speech as a defense effectively used by CRAs, although the United States Supreme Court has yet to address this issue directly. The thrust of the CRAs’ argument is that their ratings are simply their expression of their opinion, akin to a review of a restaurant or editorial column. There is much irony in this as many regulated financial players, such as banks and insurance companies, are required to comply with governmental rules that mandate them to invest in “investment grade securities” a “blessing” conferred only by the privately owned CRAs.

We then dissect provisions regarding CRAs in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which among many other things, reads “Rule 436(g), promulgated by the Securities and Exchange Commission under the Securities Act of 1933 shall have no force or effect.” As the reader will see, this provision has not been enforced by the SEC in what could only be seen as a game of hard ball wherein the CRAs won notwithstanding the Act. For completeness, we then turn to the European approach of CRA regulation, including the creation of the European Securities and Markets Authority in January, 2011.

We conclude by suggesting, at a minimum, that CRAs be subject to accountability and that some formal, financially neutral body conduct a periodic assessment rating the performance of the CRAs.

3. Kathryn Smith (Boston College Law Review), Note - Hey! That’s My Valor: The Stolen Valor Act and Government Regulation of Speech Under the First Amendment. The abstract states:

The Stolen Valor Act makes it a criminal offense to lie about receiving military decorations. Through the Stolen Valor Act, the government seeks to protect the honor associated with receiving military decorations. The Stolen Valor Act raises several First Amendment issues and recently has been held unconstitutional by several courts, including the Ninth Circuit in the 2010 decision United States v. Alvarez. This Note argues that in light of the First Amendment framework and false speech in other contexts, the Stolen Valor Act unconstitutionally restricts First Amendment freedoms.

4. Jacob Gardener, Sunlight Without Sunburns: Balancing Public Access and Privacy in Ballot Measure Disclosure Laws. The abstract states:

Today, record sums of money are being spent in highly polarizing ballot measure elections. Disclosure laws, which require the sources of campaign funding to be publicized on the Internet, are exposing ballot measure donors to an unprecedented loss of privacy and harassment. As a result, a growing number of individuals are challenging these laws in court and pressing state legislatures to raise disclosure thresholds. On the other side, however, public access advocates are insisting that states continue to publish all campaign finance data in order to promote voter competence, preserve election transparency and maintain donor accountability. These two sides are debating the issue as if the only available options are disclosure according to current law or no disclosure at all. This Article mines the vast, unexplored middle ground between these options and offers three innovative solutions that would protect donor privacy without undermining the goals of disclosure. These solutions, which require states to revise the information they disclose about certain donors and the means by which they disclose it, are modeled on the public access policies federal courts have adopted for plea agreements.

5. Noah Hampson (Boston College Law School), Hacktivism, Anonymous & a New Breed of Protest in a Networked World, forthcoming in Boston College International and Comparative Law Review. The abstract states:

This paper explores the existing legal regimes in the US and the UK governing hacktivism,. It argues for First Amendment protection for a narrow subset of certain forms of hacktivism.

6. Alison Powell (London School of Economics & Political Science) and Victoria Nash (University of Oxford - Oxford Internet Institute),The Dissenting Values at the Heart of the Internet: How Child Protection and Freedom of Expression Advocates Negotiate Shared Values and Shape the Future Internet . The abstract states:

In much of the world, the internet is now an expected everywhere-always-on utility used for information gathering, communication and social networking. Yet along with its incredible power to increase access to knowledge and opportunities for expression, the same characteristics that make the internet so unique as a tool for freedom, including the openness of its architecture, its facilitation of anonymity, and the proliferation of content across its platforms also create concerns that undesirable and even illegal content is ever-more available. Particular concern is raised in regard to children and vulnerable users and their potential exposure to specific risks (content, interactions) that may prove harmful.

This paper explores these issues by examining the debate between two long-established strands of digital advocacy: child protection and freedom of expression. It provides a new descriptive and analytic framework that acknowledges how values contribute to the negotiations of different perspectives within a policy development ecology. This builds upon and nuances the sensitizing concept of 'ecologies of games' revealing that in this policy field, winnable regulatory games are less important than relational negotiations based on values.

7. Mehrdad Payandeh (Heinrich-Heine Universitaet Duesseldorf),The Limits of Freedom of Expression in the Wunsiedel Decision of the German Federal Constitutional Court, German Law Journal, Vol. 11, No. 8, 2010. The abstract states:

On 4 November 2009, the First Senate of the German Federal Constitutional Court (Bundesverfassungsgericht) handed down its decision in the Wunsiedel case. In this decision, the Court held that 130(4) of the Criminal Code does not violate the fundamental right of freedom of expression as it is protected by Article 5 of the Basic Law. 130(4) of the Criminal Code- in concordance with § 15(1) of the Assembly Act- provides the legal basis for prohibiting certain National Socialist assemblies, particularly those taking place on dates and at locations with a high symbolic meaning for supporters of National Socialism. Therefore, the decision is of the highest importance for the fight against neo-Nazism and other supporters of National Socialist ideologies. Beyond this specific context, the decision has a significant impact on the doctrine of freedom of expression in general.

8. Nelson Tebbe (Brooklyn Law School), Witchcraft and the Constitution, published in 
TRADITIONAL AFRICAN RELIGIONS IN SOUTH AFRICAN LAW, p. 156, T.W. Bennett, eds., UTC Press, 2011. The abstract states:

Witchcraft beliefs and related practices are complex social phenomena that present difficult challenges for South African lawmakers who are bound by their constitution and committed to upholding its values. In this chapter of an edited volume from the University of Cape Town Press, I focus on certain constitutional questions raised by existing policies and current proposals. In some respects, the constitutional issues are easier than might be supposed. For example, Parliament may punish violence against suspected witches, even with laws that specifically address religiously motivated murder and assault. Also, citizens may believe that occult forces exist, and that those forces are being manipulated by jealous or malevolent neighbors. More constitutionally problematic are calls for educational campaigns that would "demystify" witchcraft beliefs, or proposals for laws that would prohibit certain rituals related to witch naming. Regardless of the resolutions, these sorts of constitutional issues deserve a place in the public debate.

9. Tokufumi Joshua Noda (Boston College Law Review),  Note - The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use, Boston College Law Review, Vol.1, 2011. The abstract states:

Courts have been divided over the proper application of the substantial burden and equal terms provisions of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) to religious land-use cases. In particular, courts and scholars have had trouble balancing the competing concerns between municipalities and religious institutions regarding control over land-use regulations. The basic question remains, how to provide religious institutions with protection against discrimination without conceding too much control over land-use regulations. This Note observes the use of economic principles in Judge Posner’s opinions, which can help guide a balanced, fact-sensitive application of RLUIPA’s provisions. Using this approach, courts can balance competing concerns by weighing them against relevant facts that are specific to each community. Nevertheless, although the economic approach sheds light on the application of RLUIPA, it also reveals new tensions both within RLUIPA’s application and the economic approach generally.

JFB

First Amendment Scholarship Update

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

1. Jonathan David Shaub (Northwestern University - School of Law), Children's Freedom of Speech and Expressive Paternalism in a Liberal Democracy, forthcoming in Law & Psycology Review. The abstract states:

Increasingly, the Court is facing the question of how the Constitution and the Bill of Rights apply to children. The Court has recently encountered cases asking it to determine how the First, Fourth, Fifth, and Eighth Amendments apply to children, and other cases relating to children’s rights are likely to reach the Court soon. The intuitive approach is to advocate for a principled, consistent framework for approaching the interaction between children and constitutional rights. However, to adopt such an approach is to ignore the fundamental distinction our democracy makes between speech and conduct. Obviously, the treatment of children under any constitutional provision implicates similar concerns about children’s capacity, immaturity, and vulnerability. But the potential harms and benefits of adopting certain ex ante presumptions about children in applying these rights are vastly different when expression is concerned. Furthermore, an all-inclusive generalization about children disregards the diverse abilities and needs of the different ages of children. While many children are obviously different than many adults, the question is with what presumptions should a court begin in order to account for these differences and to which children should those presumptions apply. A more principled analysis, distinguishing speech from conduct and distinguishing among different developmental ages of children, demonstrates that a graduated scale based on expressive maturity would better account for the variation among minors and force states to more narrowly tailor their laws and regulations.

The recent decision in Brown v. Entertainment Merchants Ass’n , resulting in four vastly different opinions and unique ideological combinations, illustrated the lack of clarity regarding the appropriate way to apply the First Amendment’s protection of speech to children. The Court has never articulated a coherent theory of children’s expressive rights, instead issuing either opinions confined to a specific category or context of speech or opinions that evade the issue altogether by focusing on adult free speech rights. Further, numerous opinions in cases involving expressive rights cite statements from cases involving other constitutional rights without discussing the importance of the distinction between speech and conduct in the context of the First Amendment. The framers of the First Amendment specifically protected “speech” and did not protect “conduct” or a general right to develop one’s personality. This “rough distinction” between speech and conduct represents a judgment that speech, as a general matter, leads to less harm than conduct. Thus, the First Amendment sets up a presumption that speech is protected, choosing to place the burden on those individuals who would seek to restrict it. However, this rough distinction between speech and conduct and its accompanying presumption have not been rigorously applied to the state’s paternalistic suppression of children’s expression.

In order to create a comprehensive framework by which the courts and society should treat children’s expressive rights, this Article draws on democratic theory, free speech principles, psychological research, and case law. First, the values and principles underlying our liberal democracy’s protection of the freedom of speech and presumption against the state exercise of expressive paternalism must be identified and systematically applied to children. Second, the specific ways in which various ages of children are different from adults must be examined in light of these values in order to determine the extent to which these specific ages of children should be treated differently. Based on the values of the First Amendment in a liberal democracy and the developing capacities of different ages of children, this Article proposes a graduated scale of expressive maturity by which courts should evaluate children’s expressive rights.

In this vein, Part I demonstrates that the instrumental and intrinsic values underlying the protection of speech are no less applicable to children, especially older children, than they are applicable to adults. Part II addresses the counterarguments in favor of the common presumption that children are categorically different than adults. Part III discusses the complex relationship between children, their parents, and the state in our modern pluralistic democracy, demonstrating the fundamental problem with the idea of the government as the expressive parent of all children. Part IV sets forth the principles necessary to adopt guiding presumptions for children’s expressive rights, and Part V establishes a set of presumptions to guide the courts’ inquiry - a graduated scale of expressive maturity - based on current psychological research into children’s capacity and vulnerability. Finally, Part VI explores the impact of the regulation of children’s expressive rights on adults.

2. Owen M. Fiss (Yale University - Law School), The World We Live in, 63 Temple L. Rev.295 (2011). The abstract states:

This Essay focuses on a threat to our constitutional order — the curtailment of freedom of speech in the name of fighting terrorism. Specifically, my subject is the Supreme Court’s decision last June in Holder v. Humanitarian Law Project, which upheld the authority of Congress to criminalize political advocacy on behalf of foreign terrorist organizations. Like warrantless wiretapping, the risk of a criminal prosecution for political advocacy — for example, an utterance by an American citizen in an American forum that a foreign terrorist organization has a just cause — poses a threat to our democracy, but the danger is greater. The risk of warrantless wiretapping inhibits speech; the risk of a criminal prosecution stops it altogether.

3. Frederick Mark Gedicks (Brigham Young University - J. Reuben Clark Law School), Lynch v. Donnelly and the Terminal Silliness of Secularized Religious Symbols, forthcoming in Nevada Law Review, 2011. The abstract states:

Prepared for a symposium, this essay argues that Lynch v. Donnelly (1983) belongs in the pantheon of anti-canonical bad Supreme Court decisions. Widely viewed as a victory for conservative Christians in their long-running battle against the secularization of public life, Lynch held that a state-sponsored Christmas nativity depicting the traditional biblical account of Jesus’s birth did not violate the Establishment Clause because it was surrounded by candy canes, Santa Clause, reindeer, and other secular symbols of the Christmas holiday.

The essay argues that the Lynch majority failed to explain why this was not a violation of the Establishment Clause, and also failed to articulate any principle that could be applied with even modest predictability in subsequent religious symbol cases, resulting in a line of decisions whose unifying rationale remains obscure.

Lynch and its progeny suggest that government may appropriate religious symbols for its own uses only if the context in which the symbol is displayed empties it of contemporary religious significance. Lynch is thus a pyrrhic victory for religious conservatives, an ironic dismissal of the relevance of faith to American public life that permits the government to use religious symbols only if it communicates that they are not religiously meaningful.

4. Adeline Delavande (New University of Lisbon - Faculdade de Economia) and Basit Zafar ( Federal Reserve Bank of New York), Stereotypes and Madrassas: Experimental Evidence from Pakistan. The abstract states:

Madrassas (Islamic religious seminaries) have been alleged to be responsible for fostering Islamic extremism and violence, and for indoctrinating their students in narrow worldviews. However, very little is known about the behavior of Madrassa students, and how other groups in their communities interact with them. To investigate this, the authors use unique experimental and survey data that they collected in Madrassas and other educational institutions in Pakistan. They randomly match male students from institutions of three distinct religious tendencies and socioeconomic background – Madrassas, Islamic Universities, and Liberal Universities – and observe their actions in several experiments of economic decision-making. First, they find a high level of trust among all groups, with students enrolled at Madrassas being the most trusting and exhibiting the highest level of unconditional other-regarding behavior. Second, within each group, they fail to find evidence of in-group bias or systematic out-group bias either in trust or tastes. These findings cast doubt on the general perception that Madrassas teach hatred and narrow worldviews. Third, they find that students of Liberal Universities underestimate the trustworthiness of Madrassa students, suggesting that an important segment of the society has mistaken stereotypes about students in religious seminaries.

5. Kenneth Lasson (University of Baltimore School of Law), Antisemitism in the Academic Voice: Confronting Bigotry Under the First Amendment, forthcoming in  "GLOBAL ANTISEMITISM: A CRISIS OF  MODERNITY" (2012). The abstract states:

The romanticized vision of life in the Ivory Tower - a peaceful haven where learned professors ponder higher thoughts and where students roam orderly quadrangles in quest of truth and other pleasures - has long been relegated to yesteryear. While universities like to nurture the perception that they are protectors of reasoned discourse, and indeed often perceive themselves as sacrosanct places of culture in a chaotic world, the modern campus, of course, is not quite so wonderful.

The academic enterprise in America was besmirched by racism early on: until the latter part of the Twentieth Century, segregation and ethnic quotas were the norm, not the exception. But what was once accepted prejudicial policy has now given way to an aberrational form of political correctness, which still vividly illustrates failures of scholarly rigor - the abandonment of reliance on facts, common sense, and logic in the pursuit of narrow political agendas - and which are all too often presented in the academic voice.

Among the abuses of intellectual honesty that have been taking place in American universities over the past decade is the loud and strident opposition to Israel. Nowadays a disturbing number of campuses are witnessing widespread protests against the Jewish State, which are frequently camouflaged as righteous protests against the “apartheid” policies of an “oppressive” regime. But modern anti-Zionism and antisemitism are virtually confluent and ultimately impossible to distinguish in any way but semantically.

This chapter examines the relationship between antisemitic and anti-Zionist speech and conduct, how they both play out on contemporary university campuses - and suggests ways by which such rhetoric and conduct can be Constitutionally confronted.

6. Victor M. Muniz-Fraticelli (McGill University - Department of Political Science), The Distinctiveness of Religious Liberty. The abstract states:

The model of religious freedom in diverse liberal-democracies has been mistakenly incorporated into the multicultural paradigm. The wholesale incorporation of the religious liberty paradigm into the multicultural paradigm is an institutional, historical, and conceptual mistake, and it distorts our understanding of the institutions that enshrine religious liberty and underlie our justification of them. The Western paradigm of religious liberty is a complex product of diverse historical conflicts and political traditions, and only contingently overlaps the multicultural argument. The purpose of this essay is to differentiate religious liberty from multiculturalism as theoretical categories, and to at least identify some of the consequences of this differentiation.

7. Ricardo Perez Truglia (Harvard University - Department of Economics) and Nicolas Luis Bottan (University of Illinois at Urbana-Champaign - Department of Economics), Does Religion Create Social Capital? Lessons from an Event Study of the Catholic Clergy Sexual Abuse Scandals in the US . The abstract states:

Many studies have documented a strong positive correlation between the degree of religious participation and the extent of pro-social behavior. However, there is no conclusive evidence on whether that relationship is causal. In order to learn more about the relation between religiosity and social capital, we exploit an event study using the Catholic Clergy Sexual Abuse Scandals in the US during the last 30 years as a Natural Experiment. We created a unique dataset with the exact geo-location of each parish involved in a scandal, and the exact date when it first became public. Firstly, we show that a local community suffers a sharp permanent decline in religiosity (e.g. Catholic adherence) after being exposed to a scandal. Secondly, we show that the local community also suffers a sharp permanent decline in social capital (e.g. number and size of charities) in the aftermath of the scandal. We exploit the fine distribution of the events over space and time in order to show that the effects of the scandals on religion and pro-social behavior are indeed causal. Finally, we show that sexual abuse scandals in lay organizations do not have a similar effect on pro-social behavior. In summary, the evidence suggests that religion plays an important role in the creation of social capital.