First Amendment Law Prof Blog

Religion as Political Guidepost

In Room for Debate, the New York Times observes that politicians frequently invoke their religion as a source of guidance in their policy deliberations and asks, “What exactly would a Christian platform look like?”  Respondents include:

• Michael Novak, theologian
• Jim Wallis, Sojourners
• Richard Land, Southern Baptist Convention’s Ethics & Religious Liberty Commission
• Andrew Kohut, Pew Research Center
• Richard Cizik, New Evangelical Partnership for the Common Good
• Colleen Carroll Campbell, columnist and author
• M. A. Muqtedar Khan, University of Delaware
• Leith Anderson, National Association of Evangelicals
• Josef Sorett, Columbia University
• Jean Bethke Elshtain, University of Chicago
• Adam Brown, Brigham Young University

JFB

Bus Company Pledges to End Sex Segregation on NYC Route Serving Ultra-Orthodox Jewish RIders

The New York World and the New York Times recently reported that women boarding the B110 bus in Brooklyn were being told to go to the back of the bus in order to honor religious norms restricting contact between the sexes. New York City contracts with a private company to serve the route in question, and such a segregative practice would represent a violation of controlling anti-discrimination law.  In a letter to the city last week, the private operator characterized the observed incidents as inconsistent with the company’s policies. The operator has now pledged to confirm that all drivers are aware of and enforce anti-discrimination rules. The operator also stated it would post signs on the buses specifying that discriminatory conduct, such as sex segregated seating, is forbidden.

The Jewish Daily Forward notes that, although sex segregation in private areas within New York’s  ultra-Orthodox communities is a long-standing practice, the effort to extend such rules into public areas such as buses and streets is new.  According to The Forward, controversies over efforts to maintain sex segregation on public buses have been a source of recurrent controversy in Jerusalem.

JFB

Mehanna Prosecution Will Test Meaning of Incitement and Material Support in On-line Context

Last week the trial of Tarek Mehanna began in Boston. Mehanna is charged with providing material support for terrorists,   Mehanna traveled to Yemen in 2006, allegedly to obtain Al Qaeda training, but never actually participated in Al Qaeda programs while there.  Upon returning to the U.S., Mehanna  created a blog on which he discussed U.S. involvement in the Arab world, his beliefs about Islam, and the statements of Osama bin Laden.  Federal prosecutors contend that, through his blog posts, which included translations of  numerous Arabic texts and repostings of Al Qaeda videos with English subtitles he supplied, Mehanna became an American media wing of the terrorist group and engaged in calls to action that qualify as incitement of terrorism. Coverage of the case is provided by NPR, the Guardian, and the Boston Globe. 

On the Lawfare blog, Prof. Robert Chesney has posted the text of Mehanna’s Request for Preliminary Instruction to the Jury, to be given before trial proceedings began.The requested instructions present a general cautionary reminder of the right to hold offensive viewpoints and to speak on matters of public concern, and a statement of the Brandenburg incitement standard.  Mehanna also requested this instruction as to the application of the material support statute to his on-line speech:  

To constitute a crime, the material support must be provided at the direction of the terrorist group, or in coordination with the terrorist group, or as a service provided directly to the terrorist group at its request. The statute does not prohibit someone from vigorously promoting and supporting the political goals of the group. This is considered independent advocacy, and is protected by the First Amendment.

The only acts prohibited are ones where the individual is told by the terrorist group itself to do the specific act, or told to coordinate the specific act with the terrorist group, or is paid or hired to provide a specific service to the terrorist act. It is not a crime if a person independently does an act that he believes will be supportive of the terrorist group or will advance its goals and objectives. In other words, the person must have a direct connection to the group and be working directly with the group for it to be a violation of the statute. I emphasize that independent advocacy for the group is not a crime because it is protected by the First Amendment to the Constitution.

The Supreme Court’s Holder v. Humanitarian Law Project ruling emphasized the constitutional and statutory significance of the difference between wholly independent advocacy (there as to how to use international law and the humanitarian relief process), and speech (such as training by experts) done in coordination with or under the direction of a designated terrorist organization. As Prof. Chesney notes, the Mehanna prosecution presents a test of how that distinction can and should be brought to bear in assessing Mehanna’s on-line activities. In addition, the case raises interesting questions about how to calibrate the Brandenburg incitement standard when it is applied to on-line speech.

 JFB

Cert. Petitions Seek Review of Schools’ Authority to Discipline Students for On-line Speech

Last week’s filing of a cert. petition seeking consolidated review of the Third Circuit’s rulings in J.S. v.    Blue Mountain School District and Layshock v. Hermitage School District creates an important opportunity for the Court to confront the divide among the appellate courts that have weighed in thus far on whether a student can be punished for on-line speech hostile to school officials or fellow students. Cert. petitions have also been filed seeking review of the Fourth Circuit’s affirmation of such school authority in Kowalski v. Berkeley County Schools and the Second Circuit’s rulings in Doninger v. Niehoff that rejected a student’s challenge to disciplinary sanctions, finding obstacles to the student’s success as a matter of both First Amendment law and qualified immunity doctrine.  Unlike the Second and Fourth Circuits, the admittedly fractured rulings from the Third Circuit project great skepticism about the extension of a school's disciplinary reach to on-line, off-campus speech.  

JFB       

 

NY Town Clerk’s Refusal to Issue Marriage Licenses to Same Sex Couples Generates Opposition to Her Re-Election Bid

The Wall Street Journal notes that Rose Marie Belforti’s campaign for re-election to the part-time position of town clerk in Ledyard, New York has encountered opposition based on her response to the legalization of same sex marriage in the state. Citing her religious beliefs, Ms. Belforti has declined to participate in the issuance to marriage licenses to same sex couples, instead directiing a deputy to serve any same sex couples seeking the essential document.  This arrangement means that same sex couples can only obtain a license by appointment at a time when the deputy is available, a situation that create differentiated access to marriage despite the creation of a marriage equality rule under New York law. People for the American Way represents a couple that is now contemplating a lawsuit after being turned away when the deputy was not on duty. 

Write-in candidate Ed Easter is challenging Belforti.  A fellow Republican who identifies himself as a Christian, Easter explains his entry into the race this way: "It's not about attacking her beliefs….It's about her beliefs are not letting her do her job." As quoted  in the New York Times, Gov. Andrew M. Cuomo responded to Ms. Belforti’s position by saying, “When you enforce the laws of the state, you don’t get to pick and choose.” The New York State Health Department has issued a memorandum warning clerks that the refusal to issue marriage licenses to a same-sex couple would be a misdemeanor.  According to the Times article, the Alliance Defense Fund (ADF)  represents Ms. Belforti and plans to argue that her beliefs must be accommodated.  On their website, ADF presents a position statement entitled “The Homosexual Agenda: The Principal Threat to Your Religious Freedom.” 

As explained on the Constitutional Law Prof Blog, the religious exemption provisions of New York’s same sex marriage law do not extend to public employees, such as town clerks. Under Title VII, if Ms. Belforti were an employee, rather than the office supervisor, she would only receive such an accommodation of her beliefs is the requested staffing alteration did not unduly burden other employees and interfere with office operations. Requiring an effective suspension of service when she was alone in the clerk’s office during normal business hours would justify a refusal of such an accommodation of her request.

In an Opinionator piece in the NYTimes, Linda Greenhouse connects Ms. Belforti’s stance to a broader set of claims for religious exemptions from job duties, such as those pursued by pharmacists objecting to requests to provide the morning after pill, as well as the brewing controversy over the recently issued HHS rule requiring private insurance plans to cover “women’s preventive services,” including contraceptives.      

JFB   
 

First Amendment Scholarship Update

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

1. David S. Han (New York University School of Law), Autobiographical Lies and the First Amendment's Protection of Self-Defining Speech, New York University Law Review, Vol. 87, 2012. The abstract states:

This article explores, through the lens of speech I refer to as “autobiographical lies,” the extent to which the First Amendment protects one’s ability to craft one’s public persona. Thus far, courts and commentators have generally neglected to address the degree to which this particular autonomy-based value - the interest in individual self-definition - carries distinct weight under the First Amendment. This is unsurprising, since it is rare that an issue arises directly implicating this interest in a manner that isolates it from more traditional free speech principles.

Recently, however, litigation has arisen surrounding the constitutionality of the Stolen Valor Act, a federal statute that criminalizes lying about having received military honors. The Act’s regulation of a particular subset of speech - knowing, factual falsehoods about oneself - uniquely crystallizes the question of whether, and to what extent, the self-definition interest merits protection under the First Amendment. By and large, there is no strong reason rooted in traditional First Amendment interests to protect these sorts of autobiographical lies. But if the self-definition interest has any meaningful constitutional force, then circumstances would surely exist under which such speech merits First Amendment protection, since freely choosing what to tell others about oneself - whether truth, half-truth, or falsehood - is a vital means of controlling how one defines oneself to the world.

After reviewing the Stolen Valor Act litigation (which has thus far divided the courts), this article outlines the doctrinal origins and basic characteristics of the self-definition interest. I argue that if one takes seriously the Supreme Court’s repeated assertions that the First Amendment is designed, at least in part, to preserve individual autonomy, then courts should accord at least some distinct constitutional weight to this interest. I then explore some of the practical implications of recognizing a constitutionally protected self-definition interest and apply these observations to the Stolen Valor Act, concluding that the Act, as currently constituted, should be deemed unconstitutional. Finally, I observe that a constitutionally protected right to define one’s public persona via one’s speech fits comfortably within the Constitution’s general protection of interests deemed essential to individual “personhood.”

2. Dan Weddle (University of Missouri at Kansas City - School of Law ),  You’re on Your Own, Kid... But You Shouldn’t Be, The Valparaiso University Law Review Vol. 44, No. 1083, 2010. The abstract states: 

This article addresses the question: Should courts recognize a duty on the part of schools to implement proven strategies to reduce and prevent bullying? Nothing influences the answer to that question as understanding the nature of bullying in schools. Once understood, bullying seems less a rite of passage or builder of character and more like child abuse perpetuated by peers. The realization that many school children suffer such abuse that inflicts long-lasting and severe damage shifts the analysis from whether the problem is serious enough for courts to engage to how they might most effectively engage it. This article addresses what educational researchers mean by “bullying in schools,” its effects as well as what has long been known about proven strategies to reduce bullying. It then articulates two bases upon which courts might act to impose a duty on school officials to reduce the problem and protect students. The first theory is based on the second prong of the Tinker standard governing private student speech. The “Right of other students to be secure and to be let alone” is perfectly suited to recognition of a constitutional right of reasonable protection from peer-on-peer abuse in public schools. The second theory is based on a seldom cited comment to §320 of the Restatement of Torts where the duty of school officials to prevent bullying has been recognized for seventy years. The article concludes that both federal constitutional law and state common law require what common sense and professional competence plainly require – that school officials become serious and proactive against bullying in their schools and use proven methods for doing so.

3.  Zephyr Teachout (Fordham University - School of Law), The Historical Roots of Citizens United v. FEC: How Anarchists and Academics Accidentally Created Corporate Speech Rights. The abstract states:

This paper looks at how the early rhetoric around the First Amendment enabled later development of corporate political speech rights.

4 . Stephen R. McAllister (University of Kansas - School of Law), Would Other Countries Protect the Phelpses’ Funeral Picketing?, Cardozo Law Review, Vol. 2010, p. 409, 2010. The abstract states:

This essay makes four comparative observations regarding the issues raised in Snyder v. Phelps. These observations are derived from the author’s experience teaching comparative freedom of speech and privacy principles in summer study abroad programs. In particular, the four observations are as follows: (1) many countries recognize individual privacy as a right of co-equal stature with freedom of speech; (2) the courts of many countries explicitly balance competing privacy and free speech interests when there is a conflict between the two; (3) many countries provide greater protection of individual privacy and reputational interests than the Supreme Court recognizes under First Amendment doctrine; and (4) many countries regulate or even criminalize hateful speech.

5.  Jude A. Thomas, Fifteen Years of Fame: The Declining Relevance of Domain Names in the Enduring Conflict between Trademark and Free Speech Rights, John Marshall Review of Intellectual Property Law, Vol. 11, p. 1, 2011. The abstract states:

Domain name disputes have been the subject of substantial litigation, legislative action, and scholarly debate over the course of the past fifteen years. Much of the debate is the product of disagreement concerning whether trademark rights naturally extend into the domain name space and to what extent those rights are limited by principles of free speech. Gripe sites are paradigmatic examples of this debate. Society’s investment in defining these rights continues to grow, even as the relevance of domain names may be declining, due to: (1) changes in the way users locate content on the Internet; (2) the growth of social media and its consequent de-emphasis on top level domain names; and (3) the dilution of the domain name space.

6 . David Howarth, Libel: Its Purpose and Reform, Modern Law Review, Vol. 74, No. 6, November 2011. The abstract states:

Discussion of libel often fails to define defamation law's purpose and thus properly to assess its value. This article argues that defamation's purpose relates to fundamental human interests in sociality, directly linked to important aspects of human health and well‐being. Protecting such interests is arguably required by the right to private life under ECHR article 8 and should not count as a violation of the right to freedom of speech. Some current reform proposals are criticised as failing to appreciate the importance of protecting sociality. ‘Business’ libel, however, often protects not sociality but purely economic interests. The article therefore argues that the protection of libel law, as opposed to that offered by malicious falsehood and the economic torts, should be withdrawn from purely economic reputation, starting with removing the rights of corporations to sue in defamation, a position compatible with the ECtHR's decision in Karako v Hungary.

7. Anjali Dalal (Yale University - Yale Information Society Project), Protecting Hyperlinks and Preserving First Amendment Values on the Internet, University of Pennsylvania Journal of Constitutional Law, Vol. 13, No. 4, May 2011. The abstract states:

Hyperlinks are critical to communication in part because they facilitate access to information. They provide visitors on one website a way to navigate to internally referenced words, phrases, arguments, and ideas. In addition to being vehicles for communication, this article contends that hyperlinks are communicative in and of themselves. They signal user preferences, democratize the national dialogue, indicate credibility, function as a signature on a virtual petition and help establish virtual associations. This Article presents the first comprehensive examination of First Amendment concerns related to hyperlinks and argues that any judicial or legislative regulation of hyperlinks should be reviewed under a strict scrutiny standard. Nearly 50 years ago, the Supreme Court recognized a constitutional privilege to disseminate information in New York Times v. Sullivan. In Sullivan, the Court extended a constitutional privilege to newspapers because of their role as an incredibly important, unique medium of communication. The same sentiment should extend to protect new media as they emerge. This Article concludes by discussing how a strict scrutiny standard should be applied to claims alleging trademark infringement, e-trespass, copyright infringement, contributory infringement, and contract violation as a result of hyperlink use.

8. Jeffrey Shulman (Georgetown University Law Center), The Siren Song of History: Originalism and the Religion Clauses, Journal of Law and Religion, Vol. 27, p. 101 (2011). The abstract states:

This essay reviews the following works: The Forgotten Founders on Religion and Public Life. Edited by Daniel L. Dreisbach, Mark David Hall and Jeffrey H. Morrison. Foreword by Mark A. Noll. University of Notre Dame Press 2009. Pp. 316. ISBN: 0-268-02602-5; Church, State, and Original Intent. By Donald L. Drakeman. Cambridge University Press 2010. Pp. 371. ISBN: 0-521-11918-9; and God and the Founders: Madison, Washington, and Jefferson. By Vincent Phillip Muñoz. Cambridge University Press 2009. Pp. 242. ISBN: 0-521-51515-7.

9. Zoe Robinson (DePaul University College of Law), Rationalizing Religious Exemptions: A Legislative Process Theory of Statutory Exemptions for Religion, William & Mary Bill of Rights, Forthcoming. The abstract states:

This Article proposes a new theory of religious liberty in the United States: it hypothesizes that a person’s religious freedom is dependent on their political power. Following the Supreme Court’s 1990 decision of Employment Division v. Smith, the legislature has sole control over the enactment of accommodations and exemptions from laws of general application for religious adherents. This Article argues that post-Smith accounts of religious liberty and pluralism fail to systematically analyze the relationship between religious liberty and legislative exemptions. To this end, the Article proposes a unique public choice model that hypothesizes that legislative accommodations and exemptions may result from a complex process in which legislators weigh the gains derived from the prospective exemption or accommodation - in terms of constituent voting support - against the costs borne. By modeling legislative accommodations as the result of benefit-maximizing behavior, the Article is proposing a significant paradigm shift that postulates a new, and unasked, question: whether the legislature is overly responsive to majoritarian interests at the expense of minority religious liberty.

JFB

Court Grants Cert in Stolen Valor Case

Yesterday the Supreme Court granted the federal government’s cert. petition seeking review of the Ninth Circuit’s determination that the criminalization of lying about receiving  military medals violated the First Amendment.  SCOTUSblog presents Lyle Denniston’s post on the case and collects media reports about the grant.   

The Ninth Circuit’s opinion offers this summary of the issue presented and the rationale for invalidating the statute:

Defendant-Appellant Xavier Alvarez conditionally pleaded guilty to one count of falsely verbally claiming to have received the Congressional Medal of Honor, in violation of the Stolen Valor Act (the Act), 18 U.S.C. § 704(b), (c), reserving his right to appeal the Act’s constitutionality.

The Act, as presently drafted, applies to pure speech; it imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or may be perceived as, a false statement of fact—without anything more.

The Act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. While we agree with the dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech. See Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 UCLA L. Rev. 1107, 1109 (2006) (“[A]ccepting unlimited government power to prohibit all deception in all circumstances would invade our rights of free expression and belief to an intolerable degree, including most notably—and however counterintuitively—our rights to personal and political self rule.”). Rather we hold that regulations of false factual speech must, like other content-based speech restrictions, be subjected to strict scrutiny unless the statute is narrowly crafted to target the type of false factual speech previously held proscribable because it is not protected by the First Amendment.

The rule the government and dissent urge us to apply in order to uphold the Act would, if adopted, significantly enlarge the scope of existing categorical exceptions to First Amendment protection. All previous circumstances in which lies have been found proscribable involve not just knowing falsity, but additional elements that serve to narrow what speech may be punished. Indeed, if the Act is constitutional under the analysis proffered by Judge Bybee, then there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time. Perhaps, in context, many of these lies are within the government’s legitimate reach. But the government cannot decide that some lies may not be told without a reviewing court’s undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech.

Finding no appropriate way to avoid the First Amendment question Alvarez poses, we hold that the speech proscribed by the Act is not sufficiently confined to fit among the narrow categories of false speech previously held to be beyond the First Amendment’s protective sweep. We then apply strict scrutiny review to the Act, and hold it unconstitutional because it is not narrowly tailored to achieving a compelling governmental interest.

JFB

First Amendment Scholarship Update

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

1. Stephen R. McAllister (University of Kansas - School of Law), Would Other Countries Protect the Phelpses’ Funeral Picketing?, Cardozo Law Review, Vol. 2010, p. 409, 2010.  The abstract states:

This essay makes four comparative observations regarding the issues raised in Snyder v. Phelps. These observations are derived from the author’s experience teaching comparative freedom of speech and privacy principles in summer study abroad programs. In particular, the four observations are as follows: (1) many countries recognize individual privacy as a right of co-equal stature with freedom of speech; (2) the courts of many countries explicitly balance competing privacy and free speech interests when there is a conflict between the two; (3) many countries provide greater protection of individual privacy and reputational interests than the Supreme Court recognizes under First Amendment doctrine; and (4) many countries regulate or even criminalize hateful speech.

2. Hal Roberts , Ethan Zuckerman , John G. Palfrey Jr. , Jillian York and Robert Faris (Harvard University - Berkman Center for Internet & Society), The Evolving Landscape of Internet Control: A Summary of Our Recent Research and Recommendations. The abstract states:

Over the past two years, we have undertaken several studies at the Berkman Center designed to better understand the control of the Internet in less open societies. During the years we’ve been engaged in this research, we have seen many incidents that have highlighted the role of the Internet as a battleground for political control, including partial or total Internet shutdowns in China, Iran, Egypt, Libya, and Syria; many hundreds of documented DDoS, hacking, and other cyber attacks against political sites; continued growth in the number of countries that filter the Internet; and dozens of well documented cases of on- and offline persecution of online dissidents. The energy dedicated to these battles for control of the Internet on both the government and dissident sides indicated, if nothing else, that both sides think that the Internet is a critical space for political action. In this paper, we offer an overview of our research in the context of these changes in the methods used to control online speech, and some thoughts on the challenges to online speech in the immediate future.

3. Nat Stern (Florida State University - College of Law),Implications of Libel Doctrine for Nondefamatory Falsehoods under the First Amendment, First Amendment Law Review, Vol. 10, 2012. The abstract states:

While law bans particular types of false speech, the broader status of factually false expression under the First Amendment has not been settled. The Supreme Court, however, has frequently addressed the power to forbid a specific type of untrue statement: viz., defamatory falsehoods. The Court’s approach to libel reflects principles and analyses that shed light on government authority to restrict other kinds of false statements. Coupled with recent Court pronouncements of reluctance to expand the list of unprotected classes of speech, these themes indicate that factually false expression does not constitute a wholly proscribable category under the First Amendment. Thus, the ban imposed by the federal Stolen Valor Act on falsely stating receipt of certain military honors is not justified by plenary power to prohibit falsehoods. Nor does the asserted harm from such misrepresentation sufficiently resemble the impact caused by other forms of properly prohibited factual falsity to sustain the Act.

4. Jeffery Barnum (University of Washington - School of Law), Protecting the Public by Protecting Valor: The Case for Amending the Stolen Valor Act to Be an Anti-Fraud Measure, Washington Law Review, Vol. 86, No. 4, 2011. The abstract states:

The Stolen Valor Act, enacted to protect against 'fraudulent claims' of receipt of military honors or decorations by criminalizing false verbal or written claims of receipt of military awards. However, the Act failed to include all of the elements of an anti-fraud measure required by the First Amendment. Most critically, the SVA fails to require actual reliance on the part of the defrauded. Although fraud is generally unprotected by the First Amendment, courts cannot construe the SVA as an anti-fraud measure if the statute does not require actual reliance. Therefore, the SVA as written has been subject to strict scrutiny when challenged on First Amendment grounds.

However, this oversight is easily remedied. Congress should amend the SVA to require that the target of the fraudulent claim alter his or her behavior based upon the false representation of military honors without necessarily suffering an economic injury. By modifying the SVA in this limited fashion, Congress will enable courts to construe the SVA as an anti-Fraud measure while protecting against most of the harm caused by false claims of military honors.

5. Erica A. Holzer,Case Note Torts: Striking a Balance: Minnesota's Minority Stance on the Privilege to Defame- Zutz V. Nelson, 788 N.W.2d 58 (Minn. 2010),  William Mitchell Law Review, Vol. 38, 2011. The abstract states:

Society has long considered one's reputation an interest worth protecting. At the same time, the law protects an equally important interest in free, uninhibited political speech. At the intersection of these two competing interests lies the doctrine of privilege: the freedom, enjoyed by certain public officials, under certain circumstances, to defame others with impunity.

Because absolute privilege comes at the cost of denying relief to victims of intentionally malicious defamatory statements, absolute privilege was historically limited to members of the United States Congress and the highest legislative bodies of a state. In the last thirty years, however, a growing trend has evolved in favor of expanding absolute privilege to subordinate government officials. During this period, Minnesota has consistently declined to adopt this broad application of privilege.

Recently, in Zutz v. Nelson, the Minnesota Supreme Court was faced with the decision to maintain its minority stance or join the growing majority. Ultimately, the Minnesota Supreme Court declined to adopt the majority position on the issue, holding that qualified, rather than absolute, privilege is appropriate for subordinate government officials.

This case note first outlines the origin and development of absolute privilege. It then details the Minnesota Supreme Court's holding in Zutz, followed by an analysis of the decision. Finally, the note concludes by asserting that the Minnesota Supreme Court continues to strike the right balance between two important, competing public interests by maintaining its minority stance on privilege.

6. Edward Pekarek and Genavieve Shingle (Pace Law School ), The Make Believe of Janus - A Brief Case Comment Examining Janus Capital Group, Inc. v. First Derivative Traders. The abstract states:

Rule 10b-5 prohibits 'making any untrue statement of a material fact' in connection with the purchase or sale of securities. The critical question considered by the Janus Court was how the term 'make' in Rule 10b-5 should be construed. The SEC contended that 'make' is synonymous with 'create,' which would allow it (and private plaintiffs) to assert a claim against one who provides false or misleading material information to another, who later includes it in a statement. However, the Court rejected this definition and found the phrase at issue in Rule 10b-5, 'to make . . . any statement,' to be the approximate equivalent of 'to state.'

7. David S. Olson (Boston College Law School), A Legitimate Interest in Promoting the Progress of Science: Constitutional Constraints on Copyright Laws, Vanderbilt Law Review En Banc, Vol. 64, pp. 185-198, 2011. The abstract states:

The Supreme Court certified two questions in Golan v. Holder: (1) Does section 514 of the Uruguay Round Agreements Act (“URAA”) violate the Progress Clause of the Constitution? (2) Does the URAA violate the First Amendment? This Essay argues that section 514 violates the Progress Clause’s requirement that copyright laws “promote the Progress of Science.” This is because the statute bequeaths copyright status without in return achieving any net increase in the creation or dissemination of creative works. Even if the Government relies on other constitutional authorities to justify section 514 - such as the Commerce Clause or the Treaty Power - the limitations of the Progress Clause still must apply. Since First Amendment analysis turns, in part, on whether the speech restriction in question violates any constitutional limitations on the federal power under which the law is passed, this Essay argues that the URAA must fail. Any law that violates constitutional restrictions on federal power cannot, by definition, serve a legitimate government interest.

8. Scott Gaylord (Elon University School of Law), Unconventional Wisdom: The Roberts Court's Proper Support of Judicial Elections. The abstract states:

Conventional wisdom holds that the Roberts Court’s recent First Amendment decisions have created a crisis for the 22 states that use contested elections to select the members of their state judiciaries. As Justice Sandra Day O’Connor, who has become a leading critic of judicial elections since retiring from the Supreme Court, has stated, “[l]eft unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.” Accordingly, to preserve the independence and integrity of their judiciaries, critics contend that states should adopt the “Missouri Plan” (or some similar form of merit selection) to take the money, and therefore the “politics,” out of judicial selection.

This paper contends that the conventional wisdom is wrong — there is no crisis regarding the independence of state judiciaries, and judicial elections, in conjunction with the Roberts Court’s recent decisions, actually promote the independence, accountability, and quality of state court judges. As a result, states need not — and should not — feel compelled to adopt or retain so-called Missouri Plans. Contrary to the conventional wisdom of Justice O’Connor and others, these “merit-based” appointment systems have failed to provide the politics-free judiciary that their advocates promised. In fact, this year 26 states are considering legislation to change or replace their judicial merit selection systems. Thus, this paper concludes that, while there may be no perfect way to select judges, judicial elections ensure that the judiciary remains independent of the other branches of government and that judges remain directly accountable to the people, providing the only meaningful check on the not-so-least dangerous branch.

9. Mark Bartholomew (State University of New York at Buffalo Law School) and John Tehranian (Southwestern Law School), An Intersystemic View of Intellectual Property and Free Speech. The abstract states:

Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Interestingly, each intellectual property regime strikes the balance between ownership rights and free speech in a dramatically different way. Despite a large volume of scholarship on intellectual property rights and free speech considerations, this Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, and right of publicity jurisprudence.

The first part of this Article carefully details the disparate treatment of First Amendment defenses in the three intellectual property regimes. On one side of the spectrum is copyright law. An increasingly broad interpretation of commercial use, a narrow construction of transformative use, and a myopic focus on market harm, combined with a refusal to engage in any sort of independent First Amendment review, have rendered copyright law a feeble protector of free expression. On the other side of the spectrum is recent right of publicity jurisprudence, which routinely invokes the First Amendment and features robust defenses based on “transformativeness” and “newsworthiness.” Somewhere in the middle stands trademark law, offering its own judge-made defenses to immunize expressive conduct but simultaneously closing off those defenses for defendants engaging in commercial or potentially confusing activity.

The next part tries to explain why these three regimes accommodate the First Amendment in such different ways. We conclude that the divergence is not the result of careful deliberation, but rather the inadvertent product of different methods and histories of lawmaking. If the divergence does not represent a logical or deliberate choice, reforms are needed. By bringing these different approaches to the First Amendment into relief, we hope to demonstrate how some free speech interests are being shortchanged and we aim to place all three regimes on a stronger theoretical footing.

10. Christopher C. Lund (Wayne State University Law School),The New Victims of the Old Anti-Catholicism, forthcoming in Connecticut Law Review, 2012. The abstract states:

Santayana once wrote that those who cannot remember the past are condemned to repeat it, the implication being that we can avoid committing errors in the future by paying better attention to those of the past. Perhaps this is so. But perhaps it is not. Perhaps it is, in fact, as George Bernard Shaw once said — that we learn from history only that we learn nothing from history. Yet one thing is surely clear. To the extent that modern injustices have identifiable historical antecedents, we rightly stand doubly condemned for them.

This short piece examines four modern church-state cases which span the First Amendment spectrum. The plaintiffs are religiously diverse — one is a Wiccan, one is a Muslim, one is an evangelical Protestant, and one is an atheist. Unsurprisingly, their claims find support in very different political communities. But the plaintiffs in these cases all have certain things in common. They are all, in their own ways, religious minorities. All of their legal cases were ultimately lost. And most importantly for our purposes, each of their cases connects deeply with the nineteenth century history of anti-Catholicism in this country.

In various ways, Catholics of that century were mistreated by the Protestant majority. The injustices they faced were sanctioned by courts as well as legislatures, and legal rules were created to render their injuries both judicially noncognizable and socially invisible. Our four modern plaintiffs are, in some ways, latter-day Catholics. They suffer some of the same injustices; indeed, they are often inhibited by the some of the very same legal doctrines created to repress the Catholic minority over a century ago. We can think of these four plaintiffs as the new Catholics — or, to put it more accurately, as the new victims of the old anti-Catholicism. As we struggle with our twenty-first century challenges of religious pluralism, it helps to realize how much our struggles have in common with earlier ones. Perhaps, armed with this knowledge, we can do a bit better now than our forefathers did then.

11. Tamar Hostovsky Brandes (Ono Academic College - Faculty of Law),Human Dignity as a Central Pillar in Constitutional Rights Jurisprudence in Israel: Definitions and Parameters. The abstract states:

This paper examines the role the concept of Human Dignity has played in constitutional rights jurisprudence in Israel since the enactment of Basic Law: Human Dignity and Liberty, in particular with regard to the recognition of rights not explicitly included in the Basic Law.

The right to Human Dignity has served as the primary source of recognition of unenumerated rights in Israel. This paper examines the methods employed by the Supreme Court in determining which unenumerated rights fall within the scope of the Basic Law. It examines the theories of interpretation applied by the Court when recognizing unenumerated rights and the judicial rhetoric used throughout the years to justify recognition of unenumerated rights.

The paper examines the historical background for the enactment of the Basic Law and argues that use of the term Human Dignity was a result of an inability to reach political agreement on rights perceived as controversial such as the right to equality, freedom of expression and freedom of religion. The use of the term Human Dignity, however, did not solve the controversy but merely passed it on to the Court. The paper argues that that while discrepancies between judges regarding recognition of particular unnamed rights are presented as deriving from different theories of interpretation, such discrepancies are actually rooted in different value-based worldviews regarding the essence of Human Dignity. While some judges view the right to Human Dignity as protecting personal autonomy, others perceive the right to Human Dignity as protection against humiliation. The paper argues that a legal concept of Human Dignity should be based not on a particular world view of what the essence of humanity is but rather on a list of acts and treatments that amount to disrespect to such essence according to different worldviews. That being said, clearer tests should be developed for identification of such treatments. While the suggested concept of Human Dignity still supports recognition of unnamed rights where such rights are justified as means of ensuring that certain acts and treatments do not take place, unnamed rights are, under the suggested model, secondary, instrumental rights, rather than intrinsic components of the right to human dignity.

JFB

Kazakhstan Enacts Religious Registration Law

Time reports that Kazakhstan has enacted a law requiring all religious groups to dissolve and register with the government. Backers of the law assert it is needed to fight dangerous religious extremism in the country. Critics charge that the registration procedure will harm small groups of believers, including minority Christian sects, in the heavily Muslim nation. Under the registration process, groups must apply separately for recognition at the local, regional, and national level. A group will be required to document that it has a minimum of 50 members for local recognition and 5,000 to qualify at the national  level.  The law also prohibits prayer in the workplace.  

JFB

Around the Globe Protests Mark ”Day of Rage”

Slate gathers reports from multiple news outlets on protests held yesterday in over 900 cities around the world. Protesters gathered, largely peacefully, to express their outrage against corporate greed, income inequality, and governments’ inability to address the global economic downturn.  Violence did mar protests in Rome. Here in the U.S., 88 protesters were arrested in New York and 175 in Chicago.   

JFB 

Suit re: Illinois DIstrict's Refusal to Grant Teacher Leave for Hajj Settled

Last week DOJ and the EEOC announced that Berkeley School District 87 will, subject to court approval, enter into a consent decree to resolve teacher Safoorah Khan’s suit alleging that the district violated TitleVII by refusing to reasonably accommodate her religious beliefs.  The teacher had sought an unpaid leave in 2008 in order to undertake the Islamic religious pilgrimage to Mecca, the hajj.  Announcing the settlement, Thomas Perez, Assistant AG in charge of the Civil Rights Division, stated:

Employees should not have to choose between practicing their religion and their jobs. The facts of this case show the consequences of an employer refusing to engage in any interactive process to understand and work with an employee to find an accommodation of the employee’s religious beliefs that will not cause undue hardship to the employer.  We are pleased that Berkeley School District has agreed to implement a training program that puts into place an interactive process to ensure that each request for a religious accommodation will be considered on a case-by-case basis and granted if it poses no undue hardship on the school district.

In addition to instituting the training program as part of tits implementation of a religious accommodation policy consistent with Title VII’s requirements, the school district will pay the teacher $75,000 for back pay, compensatory damages and attorneys’ fees. 

JFB

Golan v. Holder: Can Copyright Revival Be Reconciled with First Amendment?

Scotusblog presents Georgetown Law prof Rebecca Tushnet’s short essay “The Constitutionality of Zombie Copyrights,” recapping the last week’s oral argument in Golan v. Holder.  Also on Scotusblog Georgetown Law prof Marty Lederman had previously discussed how Chief Justice Roberts used a Jimi Hendrix hypothetical to press the SG on the potential expressive predicament of the artist who finds that Congress’s restoration of copyright protection makes what he was free to perform yesterday off limits today.  Last week in a NYT op-ed, Peter Decherney, Penn film studies professor and author of the forthcoming book “Hollywood’s Copyright Wars,” considered Golan’s potential effect on Hollywood filmmakers. Tiffany Villager, director of First Amendment studies at the First Amendment Center, also recently offered a commentary on the case’s First Amendment implications on the Center’s website. 

JFB

 

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship[ on speech and religion topics:
 
1. David G. Post (Temple University School of Law), Sex, Lies, and Videogames: Brown V. Entertainment Merchants Association , Cato Supreme Court Review, Vol. 27, 2011. The abstract states:

In Brown v. Entertainment Merchants Association, a decision that veteran Supreme Court watcher Linda Greenhouse called ‘‘the most surprising decision’’ of the 2010 Term (and the one that also received Greenhouse’s ‘‘most unusual judicial performance’’ award, for Justice Stephen Breyer’s dissenting opinion), the Supreme Court (7-2) struck down California’s prohibition on the sale of violent video- games to minors on the grounds that it offended First Amendment protections for the freedom of speech. In this article, I look at the doctrinal underpinnings of the majority opinion, the oddities in the two dissenting opinions (Thomas and Breyer), and offer some thoughts on the implications of the decision for First Amendment law going forward.

2. Shannon Gilreath (Wake Forest University - School of Law),The Problem of Gay Pornography in a Straight Supremacist System, published in S. Gilreath, THE END OF STRAIGHT SUPREMACY REALIZING GAY LIBERATION, p. 169, 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 interrogates the legal, political, and social implications of gay (specifically male) pornography for Gay citizenship and equality.

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.

3.  J. Benton Heath (New York University (NYU) - School of Law), Expansive Uses of Human Dignity in International Criminal Law, forthcoming in THE 'ETHICALIZATION' OF LAW: FUNDAMENTAL QUESTIONS, DANGERS AND OPPORTUNITIES FROM AN INTERDISCIPLINARY PERSPECTIVE. The abstract states:

The history of contemporary international criminal law (ICL) is punctuated by a small number of cases that employ the concept of human dignity to expand the reach of international criminal norms. These expansive uses are conceptually distinct from the references to dignity in provisions outlawing torture or humiliation, evoking instead the broad language of the Universal Declaration of Human Rights, and the preambles to other human rights instruments. Human dignity has thus been invoked to justify the punishment of hate speech as a crime against humanity, to expansively interpret other substantive norms, to widen the category of "other inhumane acts," and to justify departures from the principle of legality.

This paper argues that invocations of human dignity have helped courts identify and respond to novel forms of cruelty, but that they do so at the cost of introducing destabilizing and unpredictable elements into the structure of ICL. Specifically, human dignity challenges the principle of legality as understood in international criminal law, and it tends to short-circuit legitimate inter-jurisdictional contests between varying conceptions of human rights, justice, and other values.

A final section begins the work of sketching a concept of dignity as "re-stratification." Drawing on theories of dignity as a kind of rank or social status, I argue here for a view of dignity that focuses on attempts to "re-stratify" formally equal societies.

4. Leslie C. Griffin (University of Houston Law Center), Ordained Discrimination: The Cases Against the Ministerial Exception.  The abstract states:

On October 5, 2011 the Supreme Court will hear oral arguments in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Hosanna-Tabor involves the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Fifth Circuit created the ministerial exception in 1972 when it dismissed Mrs. Billie McClure’s equal pay lawsuit against the Salvation Army. Since then, the federal and state courts have repeatedly expanded the exception to reject lawsuits by elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, and communications managers alleging violations of the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers’ Compensation laws and numerous state tort and contract laws.

Both sides base their arguments upon the Free Exercise Clause, the Establishment Clause, and First Amendment freedom of association. Defenders of the exception argue that religious organizations need the exception to protect their free exercise of religion, that the Establishment Clause prevents courts from getting entangled in religious employment decisions, and that religious employers have expressive association rights to choose their ministers. Opponents of the exception insist that the Free Exercise Clause requires religious employers to obey neutral laws of general applicability, that courts can review employment decisions without entangling themselves in religious issues, and that the right of expressive association is narrower than the ministerial exception.

Instead of beginning with those First Amendment arguments, this essay surveys the field of the forty-year-old ministerial exception in order to identify its numerous weaknesses and demonstrate its superfluity. When the actual decisions are reviewed in detail, it becomes apparent that the numerous justifications for the exception are all a restatement of one foundational argument: that religious groups are entitled to disobey the law. It is that argument that the Court needs to rebut most forcefully when it decides Hosanna-Tabor.

5. Richard W. Garnett  (Notre Dame Law School), Thomas Berg (University of St. Thomas, St. Paul/Minneapolis, MN - School of Law), Kimberlee W Colby, and Carl H. Esbeck (University of Missouri School of Law), Religious Freedom, Church-State Separation, and the Ministerial Exception,  Northwestern University Law Review Colloquy (2011). The abstract states:

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious authority is one in which the fundamental rights of all are more secure. A government that acknowledges this distinction, and the limits to its own reach, is one that will more consistently protect and vindicate the liberties of both individuals and institutions.

The “ministerial exception,” at issue in Hosanna-Tabor, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Because any worthwhile account of religious freedom would respect the authority of religious communities to select freely their own clergy, ministers, teachers, and doctrines, any such account must include something like the ministerial-exception rule. Reasonably constructed and applied, this rule helps civil decision-makers to avoid deciding essentially religious questions. In addition, and more importantly, it protects the fundamental freedom of religious communities to educate and form their members. Although the exception may, in some cases, block lawsuits against religious institutions and communities for discrimination, it rests on the overriding and foundational premise that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law’s corrective reach. The civil authority - that is, the authority of a constitutional government - lacks “competence” to intervene in such questions, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdiction.

6. Kathryn A. Sabbeth (University of North Carolina at Chapel Hill),Towards an Understanding of Litigation as Expression: Lessons from Guantánamo, UC Davis Law Review, Vol. 44, No. 5, 2011. The abstract states:

Civil rights litigation has been recognized for over fifty years as core First Amendment activity, but governments often censor indirectly that which they cannot censor outright. In the War on Terrorism, the U.S. government has imposed indirect burdens on First Amendment freedoms and access to courts. This Article explores prior Supreme Court jurisprudence interpreting litigation as political expression and asks to what extent this doctrine can survive today. The Article focuses on the chilling effects of the Terrorist Surveillance Program (“TSP”), a warrantless wiretapping program imposed shortly after 9/11. Prior literature on the TSP has focused largely on individual rights protected by the Fourth, Fifth, and Sixth Amendments, but this Article highlights the First Amendment values at stake and, in particular, examines the First Amendment implications of wiretapping lawyers. Rather than utilize existing First Amendment theory to interpret the effects of the TSP, however, this Article turns the inquiry around. Drawing on a case study of twenty-three Guantánamo lawyers who believe they were targeted for surveillance, the Article explores the First Amendment theory of litigation as expression. The Article concludes that attorneys’ communications in support of litigation reflect fundamental First Amendment values tied to political expression, but implementing protection for lawyers’ communications presents significant doctrinal challenges, particularly with respect to defining the scope of litigation to be recognized as political and the type of communications to be included within the constitutional protection. The Article proposes a five-factor test to assist courts with identifying litigation that qualifies as political expression and proposes future research on the implications of recognizing First Amendment values in lawyers’ work.

7. Thomas W. Hazlett (George Mason University and George Mason University Dept. of Economics and School of Law) and Joshua D. Wright (George Mason University School of Law, The Law and Economics of Network Neutrality. The abstract states: 

The Federal Communications Commission‘s Network Neutrality Order regulates how broadband networks explain their services to customers, mandates that subscribers be permitted to deploy whatever computers, mobile devices, or applications they like for use with the network access service they purchase, imposes a prohibition upon unreasonable discrimination in network management such that Internet Service Provider efforts to maintain service quality (e.g. mitigation congestion) or to price and package their services do not burden rival applications.

This paper offers legal and economic critique of the new Network Neutrality policy and particularly the no blocking and no discrimination rules. While we argue the FCC‘s rules are likely to be declared beyond the scope of the agency‘s charter, we focus upon the economic impact of net neutrality regulations. It is beyond paradoxical that the FCC argues that it is imposing new regulations so as to preserve the Internet‘s current economic structure; that structure has developed in an unregulated environment where firms are free to experiment with business models - and vertical integration - at will. We demonstrate that Network Neutrality goes far further than existing law, categorically prohibiting various forms of economic integration in a manner equivalent to antitrust's per se rule, properly reserved for conduct that is so likely to cause competitive harm that the marginal benefit of a fact-intensive analysis cannot be justified. Economic analysis demonstrates that Network Neutrality cannot be justified upon consumer welfare grounds. Further, the Commission‘s attempt to justify its new policy simply ignores compelling evidence that “open access” regulations have distorted broadband build-out in the United States, visibly reducing subscriber growth when imposed and visibly increasing subscriber growth when repealed. On the other, the FCC manages to cite just one study - not of the broadband market - to support its claims of widespread foreclosure threats. This empirical study, upon closer scrutiny than the Commission appears to have given it, actually shows no evidence of anti-competitive foreclosure. This fatal analytical flaw constitutes a smoking gun in the FCC‘s economic analysis of net neutrality.

8. Ashutosh Avinash Bhagwat (UC Davis School of Law), Details: Specific Facts and the First Amendment. The abstract states:

First Amendment theory and judicial decisions have traditionally focused their analysis primarily on the regulation and suppression of ideas, opinions, and advocacy. The great free speech disputes of the Twentieth Century have produced a robust body of law which, at least in the political sphere, gives very strong protection to such speech. But ideas and opinions are not the only sorts of information conveyed by speech. What about facts, and in particular, what about specific facts, what I call details? Cases such as New York Times v. Sullivan and its progeny discuss the proper treatment of false facts, but what of true, accurate details? Here, both the courts and the commentators have been almost entirely silent. An examination of recent cases reveals, however, that factual speech has been at the center of in a number of important First Amendment disputes, and that with the rise of the Internet such disputes are increasing in number. Such cases arise in a wide variety of contexts, including privacy disputes over disclosure of personal details, attempts to regulate dangerous speech, disputes over technical and scientific speech, and disclosure of military or diplomatic secrets. Furthermore, the judicial decisions in this area are in utter disarray. Courts apply inconsistent doctrinal rules to essentially identical cases, and reach wildly varying results. Some reconsideration is clearly needed here.

Turning to First Amendment theory, I argue that if one accepts (as I do) the view that the primary, albeit not necessarily the only, purpose of the First Amendment is to protect the process of democratic self-governance, then it will often be true that specific, factual speech is less central to First Amendment values than ideas or opinions, because it contributes little to self-governance. On the other hand, sometimes details can play a central role in self-governance, and furthermore details may also have some, albeit reduced, value because of their contribution to other goals relevant to free speech such as the search for truth. As such, no categorical denial or even reduction of constitutional protection for details is warranted. Instead, I propose a two-tiered approach. In a case where the government seeks to regulate or suppress details (or punish the disclosure of details), courts must first evaluate the relationship between the specific details at issue and the process of self-governance (defined with sufficient breadth). If a direct such relationship exists, then courts should continue to apply the extremely protective doctrine it has developed in cases involving advocacy and ideas, including the strict scrutiny test and the highly stringent incitement test of Brandenburg v. Ohio. However, if the details at issue are only peripherally connected to self-governance or are unrelated altogether, then a more permissive approach is called for. My solution is to apply, in such cases, a version of the intermediate scrutiny test developed in the Supreme Court’s commercial speech jurisprudence. This test is sufficiently robust to permit significant protection for such details, but sufficiently flexible to permit courts to consider both the constitutional value of the relevant speech, and scale of the social harm threatened by disclosure of the details, in drawing a proper balance. I conclude the article by considering how this approach would have altered the analysis in a number of litigated cases.

JFB

Gunfire and Brimstone? Georgia Ban on Carrying Guns in Place of Worship Examined by 11th Circuit

Last week the Eleventh Circuit heard argument in a challenge to a Georgia law that makes it a misdemeanor to carry a gun into a place of worship. The law also prohibits carrying a gun into a courthouse, government building, jail  or prison, mental health facility, nuclear power plant, and polling place. Several gun owners asserted that they would otherwise bring a gun to church services or to work in church offices and sought to enjoin the law.  In January, U.S. District Judge C. Ashley  Royal dismissed the suit, finding that the ban did not violated the First or Second Amendments.  In the AP report on last week’s argument,  one Georgia pastor stressed his view that the ban served Free Exercise interests, offering appropriate protection for houses of worship that did not want to face firearms in “places of peace.”   

JFB

Cellphone Companies Press First Amendment Challenge to S.F. Right to Know Ordinance

Via Law.com, the Recorder reports on a suit filed by cellphone companies seeking to enjoin San Francisco’s ordinance requiring cellphone retailers to post signs and provide information identifying potential health risks associated with using the devices.  This suit is the latest in a series of challenges to informational requirements imposed as part of local health and safety regimes aimed at restaurants, tobacco sellers, and “crisis pregnancy centers.”  The Supreme Court’s recent decision in Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011), has breathed new life into efforts to use compelled speech arguments to strike down some forms of commercial speech regulation. (See prior post.)       

JFB

Rev. Fred Shuttlesworth: Civil Rights Advocate Advanced First Amendment by Fighting Prior Restraint of Peaceful Protesters

David Hudson of the First Amendment Center offers a tribute to the First Amendment legacy of Rev. Fred Shuttlesworth, who died last week. In his NYTimes obituary, Rev. Shuttlesworth was described as follows by Diane McWhorter, author of “Carry Me Home,” the Pulitzer winning account of Birminingham, Alabama’s civil rights struggles:

Among the youthful ‘elders’ of the movement, he was Martin Luther King’s most effective and insistent foil: blunt where King was soothing, driven where King was leisurely, and most important, confrontational where King was conciliatory — meaning, critically, that he was more upsetting than King in the eyes of the white public.

Shuttleworth was at the center of an important Supreme Court ruling rejecting the use of an effectively standardless Birmingham parade permit ordinance to suppress civil rights protests. Shuttleworth was arrested over 30 times for participating in civil rights demonstrations, courageously facing jail and physical attacks.  

JFB  

Today’s Oral Arguments Focus on First Amendment Questions

Today the Court hears oral argument in Golan v. Holder, which presents the following questions:

(1) Does the Progress Clause of the United States Constitution, Article I, § 8, cl. 8, prohibit Congress from taking works out of the public domain? (2) Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?

The case will explore whether the First Amendment limits congressional authority to restore copyright protection after creative works have entered the public domain. The petitioners in the case describe themselves as “orchestra conductors, educators, performers, film archivists, and motion picture distributors who depend upon the public domain for their livelihood.”

The Court also hears oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a much anticipated test of how anti-discrimination law, here the ADA, should be applied to the claims of employees of religious enterprises. The Court will be asked to examine whether the First Amendment should be interpreted to mandate recognition of the so-called “ministerial exception,” precluding regulation of the employment of particular figures in such an enterprise. If such an exemption is deemed constitutionally required, the Court must then consider the scope of such an exemption’s application and the consequent reach of civil rights protections in religiously affiliated workplaces. In the case, Cheryl Perich was hired to teach secular subjects at a religious elementary school but was later designated a “called teacher” by the church school. In that role, she sometimes led children in devotional exercises, taught a religion class, and attended weekly chapel with her students. Perich alleges that she was later fired in retaliation for seeking ADA protection. UVA professor and First Amendment scholar Douglas Laycock will argue on behalf of the school and church.

Monday the Court declined to grant cert. to review Spencer et al v. World Vision, Inc., 619 F.3d 1109 (9th Cir. 2010). In Spencer, three employees invoked Title VII’s prohibition of discrimination on the basis of religion to challenge their firing. World Vision had asserted the firings stemmed from the discovery that the workers did not adhere to the organization’s doctrinal beliefs regarding the Trinity. Finding World Vision to be “primarily” a religious organization rather than a humanitarian group, the Ninth Circuit majority concluded that the employer could invoke Title VII’s provision, 42 U.S. C § 2000e-1(a), exempting “a religious corporation, association, educational institution, or society” from claims of religious discrimination in circumstances where the religious organization “seeks to only employ individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities.”

JFB

Pulpit Freedom Sunday 2011

Yesterday was "Pulpit Freedom Sunday," an event in which participating pastors around the country defy Internal Revenue Code provisions that bar tax exempt entities from participating in or intervening in any political campaign on behalf of – or in opposition to – any candidate for public office. Such pastors endorse candidates and direct followers to vote in accordance with clergy instructions. Casting the restriction as an unjustified limitation on clergy members' Free Exercise rights to address their congregations on matters relevant to their faith, oponents have observed Pulpit Freedom Sunday annually since 2008 in an effort to goad the IRS into an emforcement action. As reported in the New York Times, some participating clergy even send tapes of sermons delivered in defiance of the restriction to IRS offices. Although the IRS continues to conduct audits of churches as part of civil and criminal fraud ionvestigations, it is unclear whether the agency is currently investigating any violations of the Johnson Amendment, the no-electioneering provision.

JFB           
 

First Amendment Scholarship Update – Religion

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

1. Caroline Mala Corbin (University of Miami School of Law), The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, forthcoming in Northwestern University Law Review Colloquy. The abstract states:

The question presented in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC is whether or not a school teacher named Cheryl Perich should be considered a minister. The success of Perich’s Americans with Disabilities Act retaliation claim turns on the answer. If she is not a minister, she would probably win. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.

In fact, neither the Free Exercise Clause nor the Establishment Clause necessitates the ministerial exception. To start, as announced in Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the Americans with Disabilities Act is a neutral law of general applicability. Arguments that the “church autonomy” cases require courts to defer to church hierarchy and that these cases control instead of Smith ignore Jones v. Wolf, the last church property dispute decided by the Supreme Court. Jones v. Wolf explicitly rejects blanket deference to religious institutions in matters of internal governance. It further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether Perich is a minister will entangle courts in religious doctrine more than simply adjudicating her retaliation claim.

2. Paul Horwitz (University of Alabama School of Law), Act III of the Ministerial Exception, forthcoming in Northwestern University Law Review Colloquy. The abstract states:

On October 5, 2011, the Supreme Court will hear oral arguments in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case in which the Court will consider the existence and nature of the so-called "ministerial exception": the judicial doctrine that gives churches legal immunity in employment discrimination cases brought by "ministerial" employees. The case promises to be one of the more important church-state decisions in recent years. In conjunction with the second Annual Law and Religion Roundtable, the Northwestern University Law Review Colloquy will be publishing several pieces on the case.

In this contribution to the Colloquy, I argue strongly in favor of the ministerial exception, concluding that it is a necessary part of a principle fundamental not only to the Religion Clauses, but to the Western church-state settlement more broadly: that, in an important sense, church and state each represent separate distinct sovereigns or jurisdictions. Whatever else that settlement means, it requires at a minimum that the state cannot involve itself in questions related to the selection and status of church leaders or members.

I argue, however, that our focus on the question of power is inadequate. More important, perhaps, than the question whether the ministerial exception ought to exist is how we ought to behave if it does. Supporters of the ministerial exception – and I count myself among them – are morally obliged to give thought to how churches ought to behave toward their employees in cases in which those employees may be entitled to no legal remedy. I argue that the ministerial exception should be thought of as a responsibility or burden for churches, not just a license to act without legal consequence. Furthermore, where the law treats churches and other "First Amendment institutions" as entitled to a substantial degree of legal autonomy, we ought to think carefully about the role of both debate within the institution and public criticism of that institution in encouraging sound and responsible conduct by those actors. There are good reasons to champion the kind of institutional autonomy and pluralism represented by the ministerial exception, and to avoid thinking of the state as the font of all power and the solution to all problems; but taking that step requires us to think much more carefully about institutional responsibility, and about the civic duty of citizens to monitor and critique our key non-state institutions. Hosanna-Tabor should mark the beginning of an important conversation, not the end.

3. Brian Leiter (University of Chicago Law School), The Boundaries of the Moral (and Legal) Community. The abstract states:

Over the last 250 years both moral philosophy and ordinary moral opinion have witnessed a remarkable expansion of their conception of the “moral” community, that is, the community of creatures that are thought entitled to basic moral (and ultimately legal) consideration – whatever the precise details of what such consideration requires. “Being human” is what matters now in terms of membership in the moral community, not race, gender, religion, or, increasingly, sexual orientation. (Species membership – hence the “being human” – remains a barrier to entry, however.) How to explain these developments? According to “Whig Histories,” this is really a story of expanding moral knowledge. Just as we discovered that the movement of mid-size physical objects is governed by the laws of Newtonian mechanics, and that those same laws do not describe the behavior of quantum particles, so too we have discovered that chattel slavery is a grave moral wrong and that women have as much moral claim on the electoral vote as men. I argue against the Whig Histories in favor of non-Whig Histories that explain the expanding moral community in terms of biological, psychological, and economic developments, not increased moral knowledge. If the non-Whig Histories are correct, should we expect the “species barrier” to membership in the moral community to fall? I argue for a skeptical answer.

4. Rebecca J. Cook, Modern Day Inquisitions, University of Miami Law Review, Vol. 65, No. 3, pp. 767-796, 2011. The abstract states:

Like the Inquisitions in the 1600s, the modern day inquisitions are attempts to secure the supremacy of religious hierarchies in matters of gender, sexuality, and reproduction. The modern day inquisitions jeopardize academic freedoms, particularly of scholars who focus on reproductive health law and ethics, and use hostile stereotypes and social condemnation, among other mechanisms, to control sexuality and reproduction, and to privilege male dominance. In this sense, the overarching barriers to achieving gender justice in this hemisphere are the modern day inquisitions.

This article based on a keynote speech of the Conference on Gender Justice in the Americas, graciously hosted by the University of Miami School of Law, February 23-25, 2011, attempts: to take stock of some of the past achievements in applying human rights and constitutional provisions to protect the dignity of different sexualities, reduce violence, and promote reproductive and sexual health, to explore some of the lessons learned in applying human rights and constitutional provisions to these issues, and finally, to think about how best to face challenges ahead and to strengthen networks to create better synergies in our research, teaching, and advocacy to improve gender justice in the Americas.

5. John T. Parry (Lewis & Clark Law School), Oklahoma's Save Our State Amendment: Two Issues for the Appeal, forthcoming in Oklahoma Law Review. The abstract states:

This short essay discusses two issues relating to the pending appeal in the litigation over Oklahoma's Save Our State Amendment.

First, the district court enjoined certification of the election results, with the result that none of the amendment can go into effect, not even the portions that have nothing to do with "Sharia Law" (which is the focus of the litigation). This essay suggests that the 10th circuit must consider whether the portions of the amendment that are unconstitutional can be severed from the rest (an issue that is not raised in any of the briefs), and I argue that the court should certify this issue to the Oklahoma Supreme Court.

Second, the district court made a finding of fact that "Sharia Law" -- which the amendment equates with "Islamic Law" -- is not really law. This finding is not necessary to support the district court's religion clauses ruling. It is also (1) incorrect and (2) ultimately supportive of the arguments made by supporters of the amendment. I suggest that the 10th circuit reject this finding.

6. Howard Kislowicz (Faculty of Law, University of Toronto), Judging the Rules of Belonging, U.B.C. Law Review, Vol. 44, No. 2, p. 287. The abstract states:

Though it is generally thought that judges are not well suited to make determinations about an individual’s membership in a particular community, in some cases the court’s decision will inevitably involve a cultural community’s rules of membership. These cases raise multi-layered constitutional questions, as issues of religious and associative freedom must sometimes be considered alongside issues of discrimination. In this article, I identify patterns in the judicial strategies for dealing with the double-edged problems sometimes posed by group membership rules and practices. I will canvas three such strategies (1) Group-based Autonomy, (2) Group-based Autonomy with Procedural Conditions, and (3) Substantive Engagement with Membership Norms. Analyzing judicial decisions in this fashion inspires the search for alternative strategies where the existing approaches are unsatisfying. I argue that when courts are able to stay more closely within the limits of the “procedural conditions” approach, they can generally avoid the difficult position of deliberating on a cultural or religious norm, for which judges have neither the appropriate expertise nor the proper status in the relevant community. When this approach proves unworkable because of the particular membership rules in issue, I argue for an alternative strategy, inspired by the writings of Ayelet Shachar, that re-imagines state-community relationships as power-sharing arrangements.

7. Jill I. Goldenziel (Harvard Law School),Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts. The abstract states:

This article explains the development of judicial independence in regimes that are not fully democratic. Conventional wisdom holds that a strong legislature and political parties are necessary for the emergence of an independent judiciary. This article challenges conventional wisdom by explaining how judicial independence may arise in regimes where these conditions are not present. It presents a theory of how judicial independence emerges and why and when other political actors will respect it. The article also explains why courts may be better poised than legislatures to counter executive power in non-democracies. The theory is developed through a discussion of cases involving Islamic headscarves and veils in Middle Eastern courts. These cases have broad political implications because of their significance to Islamists, who pose the biggest challenge to the power of traditional elites in majority-Muslim countries; and their broad legal ramifications with respect to judicial power, individual rights, constitutional convergence, religious freedom, and the relationship between shari’a and state law. The article also explains how national courts have interpreted Islamic law and challenges the notion that courts function to secularize state-sponsored religion. To the author’s knowledge, this article contributes the first complete discussion in the English-language academic literature of recent high court cases in Egypt, Kuwait, and Turkey that are unavailable in translation, thus contributing to the body of foreign constitutional case law available for comparative study.

8. Charles J. Reid Jr. (University of St. Thomas School of Law -Minnesota),The Devil Comes to Kansas: A Story of Free Love and the Law. The abstract states:

State v. Walker (1887) is an important but hitherto neglected landmark case in the development of the right of privacy. The case involved the "autonomistic" or "free-love" marriage of Edwin C. Walker and Lillian Harman, daughter of Moses Harman, the radical newspaperman.

Edwin and Lillian, who rejected state control over marriage, proclaimed themselves married in the fall of 1887, although they declared that their union was neither permanent or exclusive. Prosecuted for illegal cohabitation because of their refusal to obtain a marriage license, they and their defenders developed a vocabulary that would profoundly influence the future path of American law.

Their supporters in the radical press began to speak of the right of women to control their own bodies, woman's right to reproductive autonomy, and a right of sexual privacy. Indeed, it was in the midst of this controversy that the expression "freedom of choice" was used, probably for the first time, in its modern meaning by Lillian Harman writing from prison.

The Kansas Supreme Court, which ruled on the appeal of their convictions, was, in contrast, a deeply conservative and Christian group of men who were publicly known for their religious fidelity and who brought their religious feelings to bear in the case.

Thanks to the survival of both a substantial body of newspapers and the personal papers of the three justices who ruled on the appeal, it is possible to reconstruct a vivid account of this first skirmish in the American culture wars.

9. Shannon Gilreath (Wake Forest University - School of Law), Patriarchal Religion, Sexuality, and Gender: An Introductory Essay, Wake Forest Journal of Law and Policy, Vol. 1, No. 2, 2011. The abstract states:

This essay introduces the inaugural symposium of the Wake Forest Journal of Law & Policy, on the topic of Patriarchal Religion, Sexuality, and Gender, held at the Wake Forest University School of Law on September 17, 2010.

10. Elizabeth Oldmixon  (University of North Texas - Department of Political Science), Brian Calfano (Missouri State University – Department of Political Science) and Jane Suiter (University College Cork), Clergy as Political Elites. The abstract states: 

Clergy are political elites. This much is clear. However, direct evidence linking clergy behavior to political belief and action by religious publics has been elusive. This is actually not surprising given that clergy are often situated in complex institutional contexts with myriad group and interpersonal pressures to navigate on a regular basis. As the clergy politics literature moves away from reliance on the overly broad religious tradition framework, new opportunities to gain unprecedented insight on how previously under-emphasized causal factors and research methods may enhance our understanding of clergy as political elites become apparent. We use this paper to advance three familiar, but underutilized, tools to explain clergy political opinion formation. The first is application of the clergy professional fatigue literature to an inherently political outcome. The second is the use of experimental design in the study of clergy politics. The third is the location of our investigation among clergy in the Republic of Ireland and Northern Ireland. Our results confirm findings from a growing trend of clergy scholarship that emphasizes the influence of personal and institutional factors beyond political preferences in explaining clergy political opinion.

11. J. Patrick Dobel (University of Washington - Daniel J. Evans School of Public Affairs), Holy Evil. The abstract states: 

Religious experience lies at the core of the human journey for many people. Individuals discover meaning and direction through an experience that they believe links them to a truth or presence that lies beyond the boundaries of nature. The experience of the holy divides the world into sacred and profane. This division can become the foundation of notions of good and evil that drive organizations. At this point notions of good and evil grounded in holiness transcend the secular and traditional understanding of evil as the infliction of harm on innocent people, beings and the world. The division of the world between sacred and profane and believers and nonbelievers also impacts the notion of state and religion where the two exist as separate but related estates. Evil as a concept unites worldly wrong with spiritual transgression, and the privilege to define it carries immense organizational and political import for the idea of organizational evil.

When the holy domain bonds with organizational governing, this bond transforms law and authority. To violate a law not only becomes disobedience, but a sin. To disrespect the state not only becomes disrespect, but a sacrilege. To disagree not only becomes dissent, but blasphemy. Clerics and government apply different rules to people and places that fall outside the halo of their divine institutions. Drawing upon etymology, social psychology and organizational culture and history, the paper examines how religiously formed meaning profoundly influences the capacity of people and organizations to do evil. The paper maps out the internal moral and religious logic of organizations that are anchored in the experience of holiness for their legitimacy. The role of clerics becomes extremely important since they become the group that stabilizes the relationship with the divine source and uses ritual and interpretation to control the direction of organizations and define the nature of good and evil for its members. The organizational logic illuminates how holy organizations both control definitions of evil in the world and helps their members evade indictment as evil by annulling such external claims in their internal moral world.

JFB