First Amendment Scholarship Update

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

1. Jon Garon (NKU Chase College of Law), Beyond the First Amendment: Shaping the Contours of Commercial Speech in Video Games, Virtual Worlds and Social Media. The abstract states:

In Brown v. Entertainment Merchants Association (2011), the Supreme Court stated unequivocally that video games are entitled to the same broad First Amendment protections as those afforded to other media. But just as laws and regulations distinguish newspaper, magazine and television content from the advertising sold in those media, new policies are required to distinguish the communicative content of video games, virtual worlds and social media from the advertising and commercial purpose activity conducted in those media. Particularly in the area of publicity rights, states and courts have struggled to delineate those contours.

This article outlines the emerging contours of commercial speech under recent First Amendment jurisprudence, highlighting the free speech rights of publishers, participants and players while shielding individuals from unfair commercial exploitation and protecting the public from misleading advertising.

2. Vikram D. Amar and Alan E. Brownstein (University of California, Davis - School of Law), Afterthoughts on Snyder v. Phelps, Cardozo Law Review de novo, p. 43, 2011. The abstract states:

From a scholarly and professional perspective, the Supreme Court’s decision in Snyder v. Phelps added little to the development of free speech doctrine. As a normative matter, the Court’s role in the resolution of this case is hard to justify or explain.

In this short piece, we reflect on the normative costs of the Court’s decision and raise additional constitutional questions not addressed by the Court in its decision.

3. Sahar F. Aziz (Texas Wesleyan University School of Law), Terror(izing) the Muslim Veil,  pubished in THE RULE OF LAW AND THE RULE OF GOD, Simeon Elsanmi, ed., University of Virginia Press, Spring 2012. The abstract state:

The September 11th terrorist attacks transformed the meaning of the Muslim headscarf. No longer is the crux of the debate whether the “veil” is used to oppress women by controlling their sexuality, and by extension, their personal freedoms and life choices. Rather, a Muslim headscarf “marks” her as a representative of the suspicious, inherently violent, and forever foreign “Terrorist other” in our midst.

In the post-9/11 era, Muslim women donning a headscarf find themselves trapped at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women’s rights organizations, or civil liberties advocates. Amidst pervasive suspicion of Islam, continuing sexism, and bias against her particular race group, the Muslim woman is both a visible target and a silent victim.

Whether guilty by association through her marriage to a presumably terrorist husband, or an active accomplice in secret plots to terrorize Americans, the covered Muslim woman is rarely perceived as an individual capable of developing her own beliefs and protestations. Instead, she is a mere extension of her familial relationships with actual or prospective male terrorists. As national security prerogatives filter perceptions of Muslims through the prism of terrorism, the Muslim “veil” has become a symbol of terror. This critical shift results in palpable adverse consequences to a Muslim woman’s freedom of religion, freedom of individual expression, and safety interests.

The shift in meaning of the Muslim headscarf is due in large part to a recasting of Islam as a political ideology as opposed to a religion. Once this definitional shift occurs, acts that would otherwise qualify as actionable religious discrimination are accepted as legitimate, facially neutral national security law enforcement measures or protected political activity by private actors. The recasting serves as the basis for calls to deny Muslims of rights otherwise protected under the law.

The shift in symbolism of the headscarf results in two notable outcomes. First and foremost, Muslim women continue to be objectified within a larger conflict of ideas between predominantly male decision makers. Heated national security debates about the emergence of “homegrown terrorism,” now code for domestic Muslim terrorists, focus primarily on persecuting or defending male suspects. Sparse attention is paid to the impact of the post-9/11 national security era on Muslim women, and specifically those that wear the headscarf. Irrespective of their place of origin or the color of their skin, the headscarf “marks” Muslim women as sympathetic to the enemy, presumptively disloyal to this country, and forever foreign.

Second, any meaningful discourse surrounding a woman’s right to wear a headscarf in America cannot be disconnected from the racial subtext of the “Terrorist other” associated with the Muslim headscarf. Thus the label “Muslim” is both a religious and racial identifier. The shift in symbolism of the “veil” from subjugation to terrorism causes palpable discrimination against Muslim women. She now must worry about her and her families’ physical safety, her ability to obtain employment, and the government’s harsh prosecutorial tactics. That is in addition to the deprivation of her individual expressive and religious freedom rights.

Accordingly, this essay examines the implications of the shift in symbolism interpretation of the Muslim head scarf in America from gender subjugation to terror(ism). Specifically, this essay argues that the Muslim woman is a casualty of the post-9/11 “war on terror” in ways different than Muslim men. She is trapped in the crosshairs of national security conflicts that profoundly affect her life but have yet to be adequately addressed by advocacy groups focused solely on defending Muslims, women’s rights, or civil liberties post-9/11.

4. Steven D. Jamar (Howard University School of Law),Challenges Presented to Law and Public Norms by Claims of Freedom of Religion Arising in Increasingly Diverse Societies, Journal of Law and Religion, Vol. 26, No. 595, 2011. The abstract states:

Because religion is a potent force for many people, it affects the content, structure, and function of law and the law's relationship to ordering society. The complexity and variability from state to state of the relationships of religion to social, governmental, and legal systems is remarkable. This variability and complexity stems from several major influences including in particular: (1) the diversity of religions and of people's understanding of and use of those religions; and (2) the mix of religions within a particular state. As predominantly secular countries become more ethnically and religiously diverse, particularly through immigration from regions religiously different from the host country (e.g., the Muslim emigration into Christian Europe), more free exercise and accommodationist demands are being made by those whose religions are not merely a variant of the dominant religion. These demands bring new challenges and require sensitive balancing of conflicting fundamental rights and liberties. This essay examines three books addressing these topics from various perspectives and uses them as a vehicle for some commentary on the nature of the problems encountered.

5. Alasdair S. Roberts (Suffolk University Law School), Containing the Outrage: How Police Power Tames the Occupy Movement, Boston Review (web), November 2011. The abstract states:

Published by Boston Review (web), November 2011. American protests about the economic crisis have been muted by comparison to those in Europe. The Occupy Wall Street protest that began in mid-September has inspired similar demonstrations throughout the country, and the movement as a whole may have helped to sharpen public opinion over the financial crisis and its consequences. But it has also demonstrated how hostile American politics has become to the very idea of mass, angry protest. After decades of increasingly sophisticated policing and changing notions about the boundaries of legitimate protest, public demonstration in the United States today is not only tamer than in Europe, but perhaps also tamer than at any time in the nation’s history.

6.  Harvey Gilmore (Monroe College), Has Garcetti Destroyed Academic Freedom? , University of Massachusetts Roundtable Symposium Law Journal, Vol. 6, 2011. The abstract states:

The case of Garcetti v. Ceballos, decided by the United States Supreme Court in 2006, established that a public employee‟s job related communications are not protected by the First Amendment. The Court also held that an employer has the right to impose disciplinary sanctions against that employee based on those job related communications.

Although the Court specifically did not address how its decision would affect public university professors in the future, Garcetti has already alarmed academicians who believe in the concept of academic freedom.

College professors, especially those who teach in research institutions, are now concerned that the Garcetti decision poses a serious threat to academic freedom. In academia, the perceived threat is that in the future, cases similar to Garcetti will lead to public university professors losing their First Amendment protection, and thus be subject to discipline for their on the job speech.

7.    Martin H. Belsky (University of Akron - School of Law), Electing Our Judges and Judicial Independence: The Supreme Court's 'Triple Whammy' , Akron Journal of Constitutional Law and Policy, Vol. 2, No. 147, 2011. The abstract states:

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the "triple whammy" of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, explicit statements as to their positions on issues; (2) the First Amendment right of entities to support with unlimited resources, judicial candidates, and often without disclosure of the real source of this campaign support; and (3) that any restrictive rules on judicial behavior are enforced by the involved judges themselves, or by the limited oversight that courts will exercise over their colleagues.

8    Elda de Waal (North-West University), Raj Mestry ( University of Johannesburg), and Charles J. Russo ( University of Dayton), Religious and Cultural Dress at School: A Comparative Perspective, Potchefstroom Electronic Law Journal, Vol. 14, No. 6, 2011. The abstract states:

This article investigates and compares the different approaches towards the dress code of learners in South Africa and the United States of America (US), as the US mainly base litigation concerning school dress code on their freedom of speech/expression clause, while similar South African court cases focus more on religious and cultural freedom.

In South Africa, school principals and School Governing Bodies are in dire need of clear guidelines on how to respect and honor the constitutionally entrenched right to all of the different religions and cultures. The crisis of values in education arises from the disparity between the value system espoused by the school and the community, and that expressed in the Constitution of the Republic of South Africa, which guarantees learners' fundamental rights, including those of freedom of religion, culture, expression and human dignity. On the one hand, the South African Schools Act requires of School Governing Bodies to develop and implement a Code of Conduct for learners, and on the other, that they strictly adhere to the Constitution of the country when drawing up their dress codes. The right of a religious group to practice its religion or of a cultural group to respect and sustain its culture must be consistent with the provisions of the Bill of Rights (which is entrenched in the Constitution) and this implies that other rights may not infringe on the right to freedom of religion and culture.

In the US, although there is no legislation that protects learners' freedom of religion and culture at schools, their First Amendment guides the way. Their Supreme Court respects the religious values of all citizens provided that they are manifested off public school premises. While we acknowledge the existence of religious and cultural diversity at South African schools, this paper focuses on the tension among and on the existence of different approaches towards the human rights of learners from different religious and cultural backgrounds in respect of dress codes.

9.Roxana Alina Petraru (Petre Andrei University of Iasi ), The Reflection of the National Minorities Term in International Covenants, Treaties and Agreements. The abstract states:

There are thousands of minority groups in the world, different from the majorities by race, colour or religion, including hundreds of millions of people. In Europe different documents refer to over 60 minorities. In the countries from Africa and Asia the number of the minority populations, of the linguistic or tribal communities with distinct ethnic characteristics is much higher. In this context, the issue of defining “the national minorities” seems like the first step in investigating the fundamental rights of this category of people.

In this study we have tried to analyze the main international treaties, declarations and agreements in order to try to find a definition of the “national minority” term.

10.  Michele R. Pistone (Villanova University School of Law),  Unsettling Developments: Terrorism and the New Case for Enhancing Protection and Humanitarian Assistance for Refugees and Internally Displaced Persons, Including Victims of Natural Disasters, Columbia Human Rights Law Review, Vol. 42, No. 613, 2011. The abstract states:

Terrorism significantly threatens the United States and other countries. The threat is new. We should not be surprised that a new threat of terrorism would arise at this time. Driven by the phenomenon of globalization, the dominant constitutional order of the society of states is currently undergoing a major change, as it has done about every century for the past 500 years. In every prior case, such a change was always accompanied by corresponding changes in the nature of terrorism. This time is no different, except that the threat is greater now, due to the growing accessibility of weapons of mass destruction. The greater peril that we now face can effectively be addressed only by policies rooted in a deep understanding of the newness of our age, and the terrible novelty of its terror threat. Al Qaeda is the first example of the new type of terror group that will prove endemic to the coming age, but those groups will not be limited to the adherents of any particular religion or ideology.

These ideas, which are controversial, have been developed at length over the last decade by Columbia University law professor Philip Bobbitt. Bobbitt’s theories about the changing nature of the state and the concomitant change in the nature of terrorism have profound implications for U.S. policy toward refugees and other displaced people. These implications are not yet appreciably understood.

This Article provides the first extended application of Bobbitt’s ideas to displaced people, a group of almost 80 million that we call “the global homeless.” A large part of the battle to establish the legitimacy of the new constitutional order will be waged among this group. If we proceed as if the status quo were an acceptable way forward, we will heighten the risk that we will suffer grave consequences. We accordingly propose the adoption of a number of new principles, programs and laws aimed at drawing the global homeless and their communities into the new constitutional order of states. Absent the rationale provided by Bobbitt’s theories, the policies we prescribe would have little hope of advancement; once grasped, however, that rationale makes action along the lines we advise imperative and urgent.

11. Wendy S. Goffe (Graham & Dunn PC),  Should I Stay or Should I Go? What Religion Says About Pulling the Plug, Forbes.com, November 2011.  The abstract states:

Religion can play a large role in an individual’s end-of-life decisions under a living will (also known as an advanced directive or healthcare directive). Many religions emphasize the right to die with dignity, while others advocate for the preservation of human life under almost all circumstances.

Religious beliefs not only affect a person’s end-of-life decisions, but they can also affect an individual’s decision concerning life-sustaining procedures. For instance, when a pregnant woman is injured, some religions generally give preference to the mother while others treat the lives of the baby and the mother equally. Religion can also affect decisions about organ donation, disposition of remains, and the handling of the body after death.

Unless an individual signs a living will, loved ones will have to guess about his or her wishes in the event of incapacitation. Under state laws, unless a living will exists stating otherwise, a doctor can refuse to end life-support. Most large hospitals and state departments of health provide living will forms on-line, but these forms do not express any specific religious beliefs or wishes concerning end-of-life decisions or care.

12. Jason Kuznicki  (Cato Institute), Marriage Against the State: Toward a New View of Civil Marriage. The abstract states:

As U.S. courts have repeatedly declared, marriage is fundamentally a private, individual right. One implication of this view, clear but not always consistently applied, is that the federal role in marriage should be to get out of the way. When it cannot, it should behave in predictable, orderly, and low-cost ways so that individuals may conduct their family and private lives as they think best. When the federal government must act in this area, it should do so only with a view toward preserving individual rights. This paper considers federal marriage policy in a new light by suggesting that some, though far from all, of the federal provisions governing marriage may be understood as protections of this kind, or as guarantees of individual responsibility, as in the case of children. When marriage acts in such a way, it merits federal recognition, but not otherwise.

Although privatizing all aspects of marriage may well be appealing, such an approach would result, at both state and federal levels, in much greater government interference in family life, higher taxes for married couples, invasions of privacy, difficulties related to child custody, and other negative consequences. In some areas, marriage is a defense against state power, and such a defense should not be lightly discarded. However, marriage should be decoupled from the tax code by adopting a flat tax; the Defense of Marriage Act should be repealed; and Congress should adopt language making it clear that civil and religious marriage are not the same institution, and that the existence of marriage as a legal category is neutral with respect to religion. Wherever possible, marriage penalties and bonuses in the tax code and welfare system should be eliminated.

JFB