First Amendment Law Prof Blog

Tea Party Protesters See Viewpoint Hostility in Richmond's Pursuit of Protest Fees and Taxes

As the Christian Science Monitor reports, Tea Party protesters recently sought a refund of $8,500 in fees charged when they used a park later used at no charge by Occupy protesters.  The city replied to the Tea Party refund request by notifying them that they would be audited to determine if the group failed to pay applicable local taxes on food and ticket sales relating to their event. Tea Party members allege that the differential fee assessment reflected viewpoint hostility and that the audit represents retaliation for their refund request.  The city denies that any improper motivation for the audit, saying that a routine review process identified that the Tea Party as well as 700 other groups and businesses paid no excise taxes for admissions, lodging, and meals in 2010.  

The constitutional implications of imposing or waiving charges and fees relating to protest activities remain murky for local governments, but this topic may be more carefully scrutinized as costs associated with recent Occupy events mount.  The Monitor cited an AP report that taxpayers have had to absorb $13 million in Occupy protest expenses since September 17. For example, Richmond has paid $7,000 for portable toilets and other services needed during a two week Occupy encampment in the city’s Kanawha Plaza.

JFB

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

Ultimate Fighting Championship Finds First Amendment Weapon in Battle Against NY Live Event Ban

Earlier this month Zuffa LLC, the owner of Ultimate Fighting Championship, the largest U.S. promoter of professional mixed martial arts (MMA) events, as well as UFC athletes and viewers filed suit in federal court to challenge New York state’s ban on MMA performances before live audiences. The ban was first instituted in 1997, and efforts to achieve a legislative repeal have thus far been unsuccessful.  In addition to challenging the ban on Equal Protection grounds given the different treatment of MMA events and other forms of professional fighting, such as wrestling and boxing, the UFC complaint characterizes mixed martial arts as an expressive activity that is being targeted by the New York legislature based on a perceived pro-violence message and likens the MMA ban to California’s recently invalidated violent video game law.  The complaint, however, goes on to argue that the NY legislature has misperceived the message of MMA. Presenting the accounts from both MMA fighters and avid MMA fans, the complaint asserts that the matches are not glorifications of brutality but represent demonstrations of theatricality, discipline, physical mastery, camaraderie, and respect for others.  As such, plaintiffs argue the match performances merit First Amendment protection, and the ban of live MMA events should not survive appropriately heightened constitutional scrutiny. 

The plaintiffs’ legal team includes NYU constitutional law professor Barry Friedman.  Newsday, the NY Times, and the Wall Street Journal provide coverage of the suit. 

JFB

Atheists Seek Greater Public Visibility, Recognition in Military

Modeled after the “It Gets Better” campaign, atheist students at the University of Kansas have created a “We Are Atheism” web video project which is garnering as many as 6,600 views per day. In a Religion New Service story, one of the “We Are Atheism” founders, Amanda Brown, explained the project’s objective: "The whole point of the website is to let younger atheists know you will face persecution. But through us knowing each other we can all help."

Non-believers in the military, facing career limiting hostility and social isolation, are now seeking military recognition of humanist lay leaders. Such lay leaders would perform the counseling and guidance roles performed by military chaplains.  As described in a recent LATimes report, military officials have thus far been resistant to recognizing a chaplain equivalent for atheists or non-believers. 

JFB

 

New Pew Survey: Primary Voters’ Views on Mormonism Affect Support for Romney But Would Not Play Role in General Election

The Pew Research Center has released a new poll on how Gov. Mitt Romney’s Mormon faith could affect voting in Republican primaries and in the general election.  The key findings include:

As Republican and Republican-leaning voters evaluate Romney, very few say his faith is a factor. A majority of Republican and Republican-leaning voters (56%) know that Romney is a Mormon. But just 8% say Romney’s religion makes them less likely to vote for him; 44% say it would not make a difference. Among white evangelical Republican voters, however, 15% say Romney’s religion would make them less likely to support him.

Opinions about the Mormon religion are a factor in how GOP voters view Romney. Roughly six-in-ten (61%) Republican and Republican-leaning voters who say that Mormonism is a Christian religion have a favorable opinion of Romney. That compares with 51% of those who say that it is not a Christian religion. And Republican voters who say Mormonism is not Christian are far less likely to support Romney for the GOP nomination.

But these same Republicans also are among the strongest critics of Obama. Nearly six-in-ten Republican voters (58%) who do not view Mormonism as Christian have a very unfavorable opinion of Obama; that compares with 44% of those who say it is Christian.

And support for Romney in a general election matchup with Obama is just as high among Republican voters who say Mormonism is not a Christian religion as among those who say it is (89% and 86%, respectively).

JFB

Journalists, Critics of Govt. Fear New S. African Protection of Information Bill

As reported by the Christian Science Monitor, the NY Times, and NPR, South Africa’s new Protection of Information bill has stirred fears that it could be used to silence investigative journalists and critics of the government.  The legislation criminalizes leaking information classified as state secrets, possessing such information, and harboring someone possessing classified material. Asked about the absence of significant whistleblower protection in the bill, South African Minister of State Information Siyabonga Cwele responded, "We have looked at the international best practices, and there is no country that follows such a reckless practice. ….It has been persistently rejected in the USA over a long period of time."  Passed by the National Assembly, the bill now goes to provincial governments for review and would become law if signed by President Zuma.  A challenge to the law’s constitutionality is expected.

Here in the U.S., the NYU Brennan Center recently published “Reducing Overclassification Through Accountability.” The report’s summary states:

[T]his report sets forth a reform proposal that would rebalance existing [overclassification] incentives, primarily by introducing accountability into the classification system. The proposal consists of six main parts:
• When classifying documents, officials would be required to complete short electronic forms in which they would provide explanations for their classification decisions.
• In each agency with classification authority, the Office of the Inspector General would conduct “spot audits” of classifiers, identifying those who exhibit serious tendencies to overclassify and subjecting them to periodic follow-up audits.
• Successive unsatisfactory audit results would result in mandatory escalating consequences for the individual classifier, agency management, and the agency itself.
• Agencies would be required to spend at least eight percent of their security classification budgets on training and to obtain approval of their training materials from the government office that oversees classification.
• Derivative classifiers (those who carry forward classification decisions made by others) would be “held harmless” if they failed to classify information whose status was ambiguous.
• Agencies would establish procedures to allow authorized holders of classified information to challenge classification decisions anonymously, and those who brought successful challenges would be given small cash awards.

JFB

New Pew Study Looks at D.C. Lobbying by Religious Groups

THE HILL spotlights a new study from the  Pew Forum on Religion & Public Life,  Lobbying for the Faithful - Religious Advocacy Groups in Washington, D.C.. Here are some key findings presented in the report’s Executive Summary:

The number of organizations engaged in religious lobbying or religion-related advocacy in Washington, D.C., has increased roughly fivefold in the past four decades, from fewer than 40 in 1970 to more than 200 today. These groups collectively employ at least 1,000 people in the greater Washington area and spend at least $390 million a year on efforts to influence national public policy. As a whole, religious advocacy organizations work on about 300 policy issues. For most of the past century, religious advocacy groups in Washington focused mainly on domestic affairs. Today, however, roughly as many groups work only on international issues as work only on domestic issues, and nearly two-thirds of the groups work on both.

The study finds that about one-in-five religious advocacy organizations in Washington have a Roman Catholic perspective (19%) and a similar proportion are evangelical Protestant in outlook (18%), while 12% are Jewish and 8% are mainline Protestant. But many smaller U.S. religious groups, including Baha’is, Buddhists, Hindus, Muslims and Sikhs, also have established advocacy organizations in the Washington area. In fact, the number of Muslim groups (17) is about the same as the number of mainline Protestant groups (16). And the largest category today is interreligious: One-quarter of the groups studied (54) either represent multiple faiths or advocate on religious issues without representing a specific religion.

Efforts by religious groups to influence U.S. public policy are a multimillion-dollar endeavor, with combined annual expenditures conservatively estimated at more than $390 million. The median annual advocacy expenditures by the 131 groups for which recent (2008 or 2009) financial data were available was nearly $1 million. More than one-third of the groups (46 groups, or 35%) reported annual advocacy expenditures between $1 million and $5 million per year, while about one-in-ten (18 groups, or 14%) reported spending more than $5 million a year.

More than eight-in-ten of the 212 religious advocacy groups in the study (82%) operate as nonprofit, tax-exempt organizations under Section 501(c)(3) of the Internal Revenue Code. This means they are not allowed to devote a substantial part of their activities to lobbying as defined by the Internal Revenue Service.

Only 10 groups (5%) are organized solely as 501(c)(4) organizations, which are permitted to conduct substantial amounts of lobbying as defined by the IRS. Twenty-six groups (12%) are 501(c)(3) organizations that have a sister group that is registered as a 501(c)(4), or vice versa.

[R]religious advocacy groups in Washington address about 300 policy issues, touching on a wide array of domestic and foreign policy concerns. A fifth of the groups focus just on domestic matters, while about one-in-six (17%) focus solely on international issues. Nearly two-thirds (64%), however, are engaged in both domestic and foreign issues.

On the domestic front, the most commonly addressed issues are the relationship between church and state, the defense of civil rights and liberties for religious and other minorities, bioethics and life issues (such as abortion, capital punishment and end-of-life issues) and family/marriage issues (such as the definition of marriage, domestic violence and fatherhood initiatives).

Internationally, the most commonly addressed concerns are human rights, debt relief and other economic issues, and the promotion of peace and democracy. Indeed, compared with past decades, religious advocacy today is increasingly globalized, connecting a multitude of diverse constituencies with policymakers in the United States and other countries.

JFB

C-SPAN, Sen. Grassley Seek Televised Supreme Court Argument in Health Care Case

C-SPAN Chairman and CEO Brian Lamb and Senator Charles Grassley (R. Iowa) have both submitted letters to Chief Justice John Roberts asking that cameras be permitted to record the historic five and half hours of oral argument on the constitutionality of the Patient Protection and Affordable Care Act.  
Grassley, who has sponsored bills to authorize broadcasting of federal court proceedings, wrote:

"[G]iven the nature of the topic, everyone in the country would benefit from following the proceedings in this threshold case. …Providing live audio and video coverage of the oral arguments will be of great benefit to the Court and to the public. Letting the world watch these historic and important proceedings will bolster confidence in our judicial system and the decisions of the Court."

As noted by Legal Times, among the current members of the Court, only Justices Sonia Sotomayor and Elena Kagan have expressed support for making video recordings of the Court’s arguments available to the public.

The Court has repeatedly re-affirmed the constitutional imperative to maintain public access to trial proceedings under the First and Sixth Amendment. See Presley v. Georgia. 130 S.Ct. 721 (2010) (Defendant's Sixth Amendment right to a public trial violated by exclusion of public from voir dire); Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U.S. 501 (1984)(holding public access to criminal trial rooted in First as well as Sixth Amendments); Waller v. Georgia, 467 U.S. 39 (1984)(finding pretrial suppression hearing must be open to the public because “there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.”).  However, the Court has not concluded that the public interest in its own work would be best served through the introduction of cameras. On TIME.com, Adam Cohen considers why the Court has continued to resist giving the public televised access to oral arguments.    

JFB

UC Davis Pepper Spray Incident: Protesters and the Limits of Police Authority

At UC Davis a task force has been formed to investigate campus police officers’ use of pepper spray to disband non-violent student protesters. The Washington Post looks at how the Davis incident and the police use of force at other Occupy protests around the country have prompted questions about how police officers should handle crowds of protesters and what the officers should understand to be the limits of a constitutionally acceptable crowd control response.

JFB 

First Amendment Scholarship Update

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

1. Mark Koyama (George Mason University - Department of Economics) and Jean Paul Carvalho (University of California, Irvine - Department of Economics), Development and Religious Polarization: The Emergence of Reform and Ultra-Orthodox Judaism. The abstract states:

Why do religious minorities respond in different ways to economic development? We develop a model of religious organizations based on a historical case study of Jewish emancipation in nineteenth century Europe. In Germany, a liberal Reform movement developed in response to emancipation, while ultra-Orthodox Judaism emerged in eastern Europe. Our explanation for this polarization contributes to an understanding of how economic development shapes the character of religion and sheds light on the conditions determining whether minority groups embrace or resist cultural integration. We show that rising levels of economic development can produce stricter forms of religiosity, religious polarization and cycles.

2. Gregory P. Magarian (Villanova University School of Law/Washington University in Saint Louis - School of Law),  Justice Stevens, Religion, and Civil Society, Wisconsin Law Review, Vol. 733, 2011. The abstract states:

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his thirty-five years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he opposed exempting religious believers from laws that interfered with religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with hostility toward religion. This Article debunks that conventional analysis and offers a new explanation of Justice Stevens‘s religion jurisprudence. The Article shows that Justice Stevens took the same approach to constitutional cases about churches that he took to constitutional cases about other powerful institutions of civil society, including the major political parties and voluntary membership associations. Justice Stevens resisted these varied civil society institutions‘ demands for increased constitutional autonomy, based on two persistent concerns. First, Justice Stevens sought to constrain civil society institutions‘ coercive power over individuals. Second, he viewed civil society institutions‘ tendencies toward factionalism as a threat to national unity. Justice Stevens did not consider religion a special object of constitutional concern, let alone a special object of disdain. This descriptive insight permits a fresh normative assessment of Justice Stevens‘s religion jurisprudence. Justice Stevens‘s anti-coercion principle provided the driving force behind his Establishment Clause opinions. The Article finds the anti-coercion principle normatively compelling in the abstract and well adapted to Establishment Clause disputes. In contrast, Justice Stevens‘s anti-factionalism principle drove his opinions about free exercise accommodations. The Article finds the anti-factionalism principle normatively problematic in general and particularly ill-suited to the problem of free exercise accommodations.

3. Matthew Hood, John R. Nofsinger (Washington State University - Department of Finance) and Abhishek Varma (Illinois State University), Conservation, Discrimination, and Salvation: Investors' Social Concerns in the Stock Market. The abstract states:

Stocks appear to have investor clienteles based on their business practices and products. The variety in expressive benefits each individual receives from owning controversial stocks causes them to modify their portfolio to accommodate their beliefs. We examine the ownership of firms with social concerns and sin stocks (tobacco, alcohol and gambling). Women tilt their portfolios towards stocks with progressive labor policies for women and minorities. Younger investors avoid companies with poor environmental records but seek companies with progressive labor policies. Democratic voters favor stocks with progressive policies regarding women/minorities and gays/lesbians and are less likely to own sin stocks. Christian objections to homosexuality lead their members to invest less in stocks with progressive labor policies for gays and lesbians. The Christian denominations vary, though, in regard to sin stocks. Catholics are more likely while Mormons are less likely to own a sin stock relative to other investors. Socially responsible investors are clearly not all alike. Social characteristics that are important to one investor may not be important to another socially conscious investor.

4. Joel A. Nichols (University of St. Thomas School of Law (MN)),  Marriage and Divorce in a Multicultural Context: Table of Contents and Introduction, published in MARRIAGE AND DIVORCE IN A MULTICULTURAL CONTEXT: MULTI-TIERED MARRIAGE AND THE BOUNDARIES OF CIVIL LAW AND RELIGION, Joel A. Nichols, ed., Cambridge University Press, 2012. The abstract states:

American family law makes two key assumptions: first, that the civil state possesses sole authority over marriage and divorce; and second, that the civil law may contain only one regulatory regime for such matters. These assumptions run counter to the multicultural and religiously plural nature of our society. They are also wrong. This book elaborates how those assumptions are descriptively incorrect, and it begins an important conversation about whether more pluralism in family law is normatively desirable. For example, may couples rely on religious tribunals (Jewish, Muslim, or otherwise) to decide family law disputes? May couples opt into stricter divorce rules, either through premarital contracts or “covenant marriages”? How should the state respond when couples purport to do these things?

Intentionally interdisciplinary and international in scope, this volume contains contributions from fourteen leading scholars. The authors address the provocative question of whether the state must consider sharing its jurisdictional authority with other groups in family law.

Contributors include Brian H. Bix; Michael J. Broyde; Daniel Cere; Ann Laquer Estin; Mohammad H. Fadel; Werner Menski; Linda C. McClain; Joel A. Nichols; Stephen B. Presser; Ayelet Shachar; Katherine Shaw Spaht; Johan D. van der Vyver; Robin Fretwell Wilson; and John Witte Jr..

5. Abraham Drassinower (University of Toronto - Faculty of Law), Copyright Infringement as Compelled Speech, published in NEW FRONTIERS IN THE PHILOSOPHY OF INTELLECTUAL PROPERTY, Annabelle Lever, ed., Cambridge University Press, Forthcoming. The abstract states:

This paper offers a rights-based account of copyright law providing an expansive conception of the public domain. Its central proposition is that a "work" subject to copyright is a communicative act. This proposition grounds two further propositions. The first is that, because a work subject to copyright is a communicative act, infringement of the right attendant on the work is best grasped as a disposing of another's speech in the absence of her authorization. Copyright infringement is wrongful because it is compelled speech. The paper develops this view of copyright infringement through analyses of the doctrine of originality and the defence of independent creation; the distinction between copyright and patent protection as developed in the landmark U.S. Supreme Court decision in Baker v. Selden; and the wrongfulness of unauthorized publication of unpublished works. In this vein, the paper considers the distinction between a privacy focus and a copyright focus on unauthorized publication. The second proposition is that, because a work is a communicative act, rights attendant on it must (a) be confined to specifically communicative uses of the work, and (b) be consistent with the communicative rights of others, even - or especially - where such rights require unauthorized reproduction of a work for the purposes of responding to its author's communication. Copyright doctrine protects not an author's absolute rights over her work but only such rights as are consistent with nature of the work as speech and with the structure of the dialogue of which the work is but a part. The concept of the work as a communicative act thus traverses both the justification and the limitation of copyright. The paper concludes with some remarks on the implications of this construal of copyright law for our understanding of the public domain in particular and of copyright law generally. As distinct from a policy-driven incentive-based account, a rights-based account can help us broach the significance of copyright law as an effort to organize normatively an irreducible aspect of human interaction.

6. Vikram D. Amar (University of California, Davis - School of Law), and Alan E. Brownstein (University of California, Davis - School of Law), Death, Grief, and Freedom of Speech: Does the First Amendment Permit Protection Against the Harassment and Commandeering of Funeral Mourners?, Cardozo Law Review de novo, 2010. The abstract states:

It is often said, albeit sometimes for rhetorical effect, that the First Amendment protects the speech we hate just as rigorously as the speech we value. In some ways, Synder v. Phelps tests our commitment to this principle as severely as any case in recent memory. There is virtually unanimity among Americans of all religions or political persuasions that the expressive conduct of the defendants directed at the mourners attending a funeral of a soldier killed in Iraq was despicable and contemptible. Indeed, it is hard for us to keep our minds focused on the free speech issues raised by this case given our visceral instinct simply to vent about the defendants’ utter lack of human decency.

Yet the Phelps case does raise important questions about government’s ability, consistent with the First Amendment, to protect individuals who are uniquely vulnerable from hurtful speech at particular times and locations. In this article, we take up the question of whether certain kinds of speech directed at funeral mourners can be restricted without running afoul of constitutional guarantees and, assuming that some limitations on such speech are permissible, whether certain forms of restrictions on speech are more or less constitutionally appropriate ways of accomplishing this goal. Of particular significance, we analogize to and borrow from various lines of authority—residential picketing of abortion provider cases, abortion clinic access cases, hospital patient protection cases, tort cases dealing with the mishandling of human bodies, telephone and other harassment cases, and so-called “compelled speech” cases in which the First Amendment has been held not to permit individuals to be “used” as mere instruments for the speech of others—to suggest that categorical and doctrinal lines are and can be drawn to permit government to reach odious conduct of the kind at issue in Phelps. We point to two specific features of the Phelps scenario—the well-recognized vulnerability of the victims, and the distinctive way in which the speakers disregarded the victims’ essence as autonomous beings and misused the mourners’ torment as means to an end—that would justify some meaningful regulation under existing doctrine.

7. Robert A. Kahn (University of St. Thomas School of Law (MN)), The Acquittal of Geert Wilders and Dutch Political Culture. The abstract states:

The June 23, 2011 acquittal of Geert Wilders has been viewed as a victory for freedom of speech over multiculturalism. While containing an element of truth, this framing has limitations. First, even as Wilders’ “triumphed” over multiculturalism he still cast himself as a champion of Dutch tolerance. Second, Wilders’ victory was a narrow one. The court, while acquitting, noted that Wilders went right to the line of permissible speech. Wilders acquittal does not necessarily portend an end of Dutch exceptionalism or its hate speech laws. Instead, the trial was noteworthy for (i) its obsession with the Nazi past, (ii) its debate over the rights and duties of a politician, and (iii) the conflict that arose between one of Wilders’ witnesses and an appeals court judge who in 2009 ordered the prosecutor to bring charges against Wilders.

8. Carl F. Minzner(Fordham Law School), China -Country Report, published in Countries at the Crossroads 2011: A Survey of Democratic Governance, Rowman & Littlefield Publishers, 2011. The abstract states:

The People’s Republic of China has an authoritarian political system controlled by the Chinese Communist Party (CCP). Since 2007, Chinese authorities have tightened official controls over the media and civil society, and backtracked on legal reforms they enacted in the 1990s and early 2000s.

Following the 1949 revolution, party leaders led by Mao Zedong attempted to remold China. They imposed communist ideology, a state-run economy, and absolute party-state control over citizens’ lives. Such policies led to mass famine (the Great Leap Forward, 1958–60) and severe political turmoil (the Cultural Revolution, 1966–76).

In the late 1970s, the Chinese leadership under Deng Xiaoping launched the modern reform period. They relaxed economic and ideological controls, fueling an unprecedented 30-year long economic boom. China has experienced a ten-fold expansion in GDP, replaced Japan as the second-largest economy in the world, and emerged as a world power.

These reforms are transforming the country. Hundreds of millions of people have been lifted out of poverty. Urbanization is proceeding rapidly, with some 140 million migrants traveling annually between their rural hometowns to China’s booming cities in search of work. The freedom enjoyed by ordinary Chinese citizens with regard to core personal decisions such as where to live and work has greatly expanded. Commercialized media and new technologies have given rise to a cadre of activist journalists and bloggers who push against the boundaries of state censorship, often exposing corrupt or illegal behavior on the part of local officials.

Central government leaders, however, remain adamantly opposed to fundamental political reform. They reject free speech and representative democracy. They repress peaceful protests with brutal force, as with the Tiananmen student demonstrations in 1989 and the Falun Gong spiritual movement after 1999. Moderate calls for political reform are met with lengthy prison terms. For example, 2010 Nobel Peace Prize winner Liu Xiaobo is currently serving an 11-year sentence for his role in organizing Charter 08, a petition signed by thousands of Chinese citizens and intellectuals calling for greater political and civil rights.

Despite opposition to significant political change that might threaten their control, central government authorities have pursued a range of limited reforms to fight corruption and abuse of power in local government. Since the 1980s, Chinese authorities have adopted electoral reforms that allow a restricted level of citizen participation in the selection of local officials. Starting in the 1990s, Chinese authorities took steps towards professionalizing the judiciary and allowing citizens a degree of legal redress for grievances against officials. Some officials have called for deeper reforms. In a series of speeches given in 2010, Premier Wen Jiabao criticized the excessive centralization of political power, warning that “without the safeguard of political reform, the fruits of economic reform will be lost and the goal of modernization will not materialize.”

Other authorities, however, have blocked these calls. Propaganda officials censored some of Premier Wen’s remarks, while state-run media outlets parroted the official line regarding the need to avoid “Western” political reforms. Positive reform efforts have been undercut when they appear to be on the verge of generating substantial change. For example, authorities moved to exert tighter control over village elections in 1999, after local activists and officials attempted to extend such competitive polls up to township governments. In the last several years, central party authorities have made similar, increasingly concerted efforts to curtail the legal and judicial reforms of the prior decade.

As in the past, Chinese authorities have tightened their grip on dissent in advance of high-profile events, or in the wake of overseas developments. Officials engaged in widespread detentions of activists and petitioners prior to both the 2008 Beijing Olympics and the 2010 Shanghai World Expo. Following the 2011 Arab Spring, Chinese authorities commenced one of the most sustained and widespread crackdowns in decades. Authorities launched extrajudicial detentions of public interest activists and lawyers, increased harassment of journalists, and began interfering with virtual private network (VPN) services used by many citizens to evade extensive state internet controls.

However, tougher Chinese policies with regard to the media, civil society, and legal institutions are not simply the result of transitory state concerns with regard to specific, one-time events. Rather, they represent a more general effort, extending back several years, to curtail some of the limited reforms undertaken in recent decades.

China’s future remains uncertain. Central Chinese authorities have chosen to prioritize party control at the expense of building autonomous legal and political institutions. This carries real risks for social stability. Rapid economic development is generating increased demands by citizens to participate in the decisions that affect their lives, and for authorities to more fairly respond to their grievances. In the absence of gradual and substantive steps toward political reform, this pressure is instead being channeled into mass citizen petitions and protests, populist official rhetoric, and nationalistic internet forums—unruly and imperfect release valves that erupt periodically (and with increasing intensity), but that fail to address the roots of building social discontent.  

9. Timothy Liam Epstein (SmithAmundsen, LLC), Athletes Face Some Legal Risks with Social Networking, Chicago Daily Law Bulletin, Vol. 157, No. 194, 2011. The abstract states:

This article discusses the increasing use of social media among athletes at the professional, college and even high school level. It also details the ramifications of improper use at each level and what possible rights, specifically First and Fourth Amendment, athletes have when they use social media.

10. Alan Weinstein (Cleveland State University, Cleveland-Marshall College of Law) and Richard D. McCleary (University of California, Irvine), The Association of Adult Businesses with Secondary Effects: Legal Doctrine, Social Theory, and Empirical Evidence. The abstract states:  

In the decade since the U.S. Supreme Court’s decision in Alameda Books v. City of Los Angeles, 535 U.S. 425 (2002), the adult entertainment industry has attacked the legal rationale local governments rely upon as the justification for their regulation of adult businesses: that such businesses are associated with so-called negative secondary effects. These attacks have taken a variety of forms, including: trying to subject the studies of secondary effects relied upon by local governments to the Daubert standard for admission of scientific evidence in federal litigation; producing studies that purport to show no association between adult businesses and negative secondary effects in a given jurisdiction; and claims that distinct business models and/or specific local conditions are not associated with the secondary effects demonstrated in the studies relied on by many local governments. In this Article, we demonstrate that, contrary to the industry’s claims, methodologically appropriate studies confirm criminological theory’s prediction that adult businesses are associated with heightened incidences of crime regardless of jurisdiction, business model or location and thus, such studies should have legal and policy effects supporting regulation of adult businesses.

JFB

Law Stories Series Adds First Amendment Volume

Edited by Professors Richard Garnett and Andrew Koppelman, First Amendment Stories is a new and valuable addition to the Foundation Press Law Stories Series. Via Balkinization, here is the book’s Table of Contents: 

Introduction
The Many Paths to Neutrality
Richard W. Garnett and Andrew Koppelman

Chapter 1
The Story of the Sedition Act of 1798: “The Reign of Witches”
Geoffrey R. Stone

Chapter 2
Schism, Plague, and Last Rites in the French Quarter: The Strange Story Behind the Supreme Court’s First Free Exercise Case
Michael W. McConnell

Chapter 3
The Story of Masses Publishing Co. v. Patten: Judge Learned Hand, First Amendment Prophet
James Weinstein

Chapter 4
The Story of West Virginia State Board of Education v. Barnette: The Pledge of Allegiance and the Freedom of Thought
Vincent Blasi and Seana V. Shiffrin

Chapter 5
The Story of Burstyn v. Wilson
Gerard V. Bradley

Chapter 6
“Things That Are Not Caesar’s”: The Story of Kedroff v. St. Nicholas Cathedral
Richard W. Garnett

Chapter 7
The Story of the School Prayer Decisions: Civil Religion Under Assault
Thomas C. Berg

Chapter 8
The Story of New York Times Co. v. Sullivan
Mary–Rose Papandrea

Chapter 9
The Story of Pickering v. Bd. of Education: Unconstitutional Conditions and Public Employment
Paul M. Secunda

Chapter 10
The Story of Welsh v. United States: Elliott Welsh’s Two Religious Tests
Andrew Koppelman

Chapter 11
Red Lion Broadcasting Co. v. FCC: A Different Perspective on the First Amendment Cathedral
Lillian R. BeVier

Chapter 12
The Nine Lives of Buckley v. Valeo
Richard L. Hasen

Chapter 13
The Story of FCC v. Pacifica Foundation (and Its Second Life)
Adam M. Samaha

Chapter 14
The Story of Tinker v. Des Moines to Morse v. Frederick: Similar Stories of Different Student Speech with Different Results
Scott A. Moss

Chapter 15
The Stories in Lukumi: Of Sacrifice and Rebirth
Kenneth L. Karst

Chapter 16
Of Football, “Footnote One,” and the Counter– Jurisdictional Establishment Clause: The Story of Santa Fe Independent School District v. Doe
Paul Horwitz

Chapter 17
The Story of the Ten Commandments Cases: Van Orden v. Perry and McCreary County v. ACLU
Jesse H. Choper

JFB

Occupy Cal Protesters Draw Inspiration from Mario Savio and the 1964 Berkeley Free Speech Movement

As OWS protesters were being cleared from Zuccotti Park, at least 3500 participants gathered on the UC Berkeley campus to convene a General Assembly ( or “GA” as the Occupy Movement’s direct democracy meeting is called).   TheAtlantic.com offers this description of the Occupy Cal GA:

The sea of students was tutored in the now identifiable consensus hand signs used by the movement. The facilitators laid out the ground rules: They were going to vote on whether or not to bring back the tents and set up an Occupation on campus. Yes, it was against the rules. Would they all (80 percent anyway) agree this was the right course of action? The GA attendees broke up into groups of 20 to discuss. That's right: 4,000 people broke up into groups of 20 with at least three helicopters hovering just above to discuss the merits of the action. And then the facilitators clarified: just because you vote "yes" doesn't mean you're obligated to sleep there.

The GA participants voted to re-establish an encampment. 

Last week police had broken up the Occupy Cal protest, hitting some students with batons on the Mario Savio Steps of Sproul Hall, steps named to honor one of the Berkeley Free Speech Movement’s most influential members and the voice of the "put your bodies upon the gears" speech.  Last night as Occupy Cal participants reconvened, they listened to Prof. Robert Reich deliver the Mario Savio Memorial Lecture. The Daily Californian provides coverage(including a video) of Reich’s speech. 

 

New Reality Series Explores Lives of American Muslim Families

The Learning Channel (TLC) has launched a new eight part series, All American Muslim, which examines the lives of Muslim families living in Dearborn, Michigan.  The New York Times and LA Times offer reviews.  

JFB

Judge Affirms NYC Authority to Temporarily Remove Occupy Wall Street Protesters and Bar Installation of Tents and Other Structures

Yesterday Justice Michael Stallman rejected Occupy Wall Street protesters’ application for a TRO to block police from removing protesters as well as their tents, generators, and other installations at the Zuccotti Park encampment. The City had previously abandoned an announced plan to remove the the protesters, but, citing health and sanitation concerns, Mayor Michael Bloomberg this week authorized police to temporarily clear out the protesters and to permanently move the tents and other equipment used for long-term occupation of the Park. Zuccotti Park is a “privately owned public access plaza” operating pursuant to a special permit that granted “bonus” development rights for adjoining properties if the owner agreed to offer a parcel for public use despite retained private ownership.  

The trial court opinion presents this analysis to support the TRO denial:                     

The owner of Zuccotti Park has represented that, after cleaning and restoration of Zuccotti Park, it will permit the Occupy Wall Street demonstrators to reenter the Park and to resume using it, in conformity with law and with the owner's rules. Petitioners contend that, under the First Amendment, Brookfield's [the owner of Zuccotti Park] rules are not valid. Petitioners assert that, given the enactment of the rules after the demonstrations began, the rules targeted Occupy Wall Street.

It is apparently undisputed that the owner is responsible for improving, maintaining, and cleaning the property, and correcting hazards and violations of law. It appears that, unlike owners of many other such development bonuses, privately owned spaces made available for the use of the public, the owner of Zuccotti Park had not previously published rules regulating its use by the public.

The parties dispute whether the First Amendment applies to the actions of the owner in enacting the rules. For purposes of this application, the Court assumes that the First Amendment applies to the owner of Zuccotti Park, thus obviating petitioners' request for a hearing as to whether Zuccotti Park is traditional public forum, or a limited public forum. Assuming arguendo, that the owner's maintenance of the space must not violate the First Amendment, the owner has the right to adopt reasonable rules that permit iUo maintain a clean, safe, publicly accessible space consonant with the responsibility it assumed to provide public access according to law.

The Court is mindful of movants' First Amendment rights of freedom of speech and peaceable assembly. However, "[e]ven protected speech is not equally permissible in all places and at all times." (Snyder v Phelps, 131 S Ct 1207, 1218 [2011], quoting Cornelius v NAACP Legal Defense & Ed. Fund, Inc., 473 US 788, 799 [1985].) Here, movants have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment.

To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner's rules appears reasonable to permit the owner to maintain  tts space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus.

The movants have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner's reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely. Neither have the applicants shown a right to a emporary restraining order that would restrict the City's enforcement of law so as to promote public health and safety.

Mayor Bloomberg issued a statement explaining why he concluded that the balance between the city’s obligations to ensure public health and safety and the protesters’ First Amendment rights had tilted toward an imperative for removal:

Unfortunately, the park was becoming a place where people came not to protest, but rather to break laws, and in some cases, to harm others. There have been reports of businesses being threatened and complaints about noise and unsanitary conditions that have seriously impacted the quality of life for residents and businesses in this now-thriving neighbourhood. The majority of protesters have been peaceful and responsible. But an unfortunate minority have not been – and as the number of protesters has grown, this has created an intolerable situation.

No right is absolute and with every right comes responsibilities. The First Amendment gives every New Yorker the right to speak out – but it does not give anyone the right to sleep in a park or otherwise take it over to the exclusion of others – nor does it permit anyone in our society to live outside the law. There is no ambiguity in the law here – the First Amendment protects speech – it does not protect the use of tents and sleeping bags to take over a public space.\

Protesters have had two months to occupy the park with tents and sleeping bags. Now they will have to occupy the space with the power of their arguments.

In a SLATE Jurisprudence column, attorney Raymond Vasvari, identified as practicing First Amendment law in Cleveland, offers an assessment of “[w]hat the actions over Zuccotti Park teach us about public spaces and citizen protest.”  

JFB

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on speech and religion topics:
 
1. Gillian Douglas (Cardiff University - Cardiff Law School), Norman Doe , Sophie Gilliat-Ray , Russell Sandberg and Asma Khan, Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts. The abstract states:

This is the report of the project, Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts, funded by the Arts and Humanities Research Council, which explored how religious law functions alongside civil law in the area of marriage and divorce. It examines the workings of three religious courts in detail: a Jewish Beth Din; a matrimonial tribunal of the Roman Catholic Church; and a Muslim “Shariah Council”). It finds that these tribunals provide an important service for their users in enabling them to remarry within their faith, which serves both to enable them to remain within their faith community and to regularize their position with the religious authorities. None of the tribunals sought greater autonomy and all recognized the supremacy of state law.

2. Bruce MacDougall  (UBC Faculty of Law) and Donn Short (University of Manitoba - Faculty of Law), Religion-Based Claims for Impinging on Queer Citizenship, Dalhousie Law Journal, Vol. 32, No. 2, pp. 133-160, Fall 2010). The abstract states:

Competing claims for legal protection based on religion and on sexual orientation have arisen fairly frequently in Canada in the past decade or so. The authors place such competitions into five categories based on the nature of who is making the claim and who is impacted, the site of the competition, and the extent to which the usual legal and constitutional norms applicable are affected. Three of the five categories identified involve a claim that a religion operate in some form in the public area so as to impinge on the usual protection of equality on the basis of sexual orientation. The authors examine the basis of claims for such religion based exceptionalism and argue that acceptance of the religion claim in these three public-area categories would involve unjustifiable curtailment of citizenship for queer people and could undermine the equality gains that have been made by this group.

3. 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 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.

4. Susana Mancini (University of Bologna; Johns Hopkins University - Bologna Center), Patriarchy as the Exclusive Domain of the Other: The Veil Controversy, False Projection and Cultural Racism  forthcoming in International Journal of Constitutional Law (I•CON), 2012. The abstract states:

This article critically analyzes the (mis)use of feminist language and rhetoric in measures restricting the right to wear traditional female Muslim clothing in various European jurisdictions. It posits that this mobilization of female symbols is, in the first place, part of a strategy of exclusion and of cultural homogenization which aims at anchoring European identity in secularized Christianity, while at the same time reinforcing the systemic nature of gender oppression. The use of feminist language in the struggle against the veil moreover, can be interpreted according to the pattern of false projection. In the Dialectic of Enlightenment Adorno and Horkheimer describe false projection as the phenomenon which enables majority cultures to project on minorities some features of their own which they seek to hide from themselves. In this light, Muslim women come to embody the projected visions of Islam as “the” patriarchal Other, which is a particularly useful device for purpose of hiding an unresolved conflict within Western civilization.

5. Ruth E. Gavison (Hebrew University of Jerusalem - Faculty of Law), The Law of Return at Sixty Years: History, Ideology, Justification. The abstract states:

The Law of Return, passed unanimously by the Knesset with much excitement and elation in 1950 on the day commemorating Theodor Herzl, establishes the principle that 'every Jew is entitled to come to this country as an Oleh' and lays the foundation for the preference given to Jews in Aliyah and in the acquisition of citizenship in Israel. The law is considered one of the primary expressions of Israel as a Jewish state. In this position paper the author rejects the principal claim of the law's opponents, that the preference given to Jews in Aliyah to Israel is either unjustified or needs to be limited in time. The author surveys the development of the specific arrangements stipulated by the Law of Return. She points to difficulties arising in three basic areas: the quasi-halachic definition of a 'Jew' established by the 1970 amendment to law, according to which a 'Jew' is one who was born to a Jewish mother or who converted to Judaism and is not a member of another religion; the extension of Aliyah eligibility to include the family members of a Jew up to the third generation even if they themselves have no connection to the Jewish people; the fact that individuals who are eligible for Aliyah acquire citizenship immediately and automatically upon making Aliyah.

The author recommends preserving the principle and even raising it to a constitutional level, while re-examining the specific arrangements included in the Law of Return and the level of their regulation. As long as there is no such constitutional change the author does not support any alteration in the Law of Return itself, but rather recommends achieving the desired results through forming appropriate Aliyah and absorption policies.

6. William J. Haun, A Standard for Salvation: Evaluating 'Hybrid Rights' Free-Exercise Claims. The abstract states:

In Employment Division v. Smith, the United States Supreme Court defined the only exception to its rule that an individual may not obtain, under the Free Exercise of religion Clause, an exemption from a facially neutral, generally applicable, law: so-called "hybrid claims" where the free exercise interest acts in conjunction with another constitutionally protected claim. While the Smith Court confirmed the existence of such claims, neither the Congress nor the Court explicitly developed the contours of such a claim. Without guidance, lower courts continue to question the existence of such claims, and deny the victims of subtle religious discrimination a vibrant avenue of constitutional relief. The recent U.S. Supreme Court case Christian Legal Society v. Martinez is an example of the Court's disinterest in explaining the doctrine, and the consequences of such disinterest. This article argues that the Smith Court created a bona fide hybrid exception to its free-exercise rule, and works with earlier free-exercise cases to establish a standard to evaluate hybrid claims. The article applies that standard to the Martinez case, refutes critics of hybrid rights, and recommends a strategy for religious liberty plaintiffs to employ the standard in order for courts to affirmatively develop it.

7. Sophie Bava (Institut de Recherche pour le Developpement ), Migration-Religion Studies in France: Evolving Toward a Religious Anthropology of Movement , Annual Review of Anthropology, Vol. 40, pp. 493-507, 2011. The abstract states:

The emergence and visibility of the religious on the African and European migratory scenes are generating much debate; thus this article explores how scientific thought and analysis of the subject of ?religion-migration? has gradually been built up in France. Over three decades, the developing academic debate about issues of migration, identity, then religion within migration, and migrants' religion has revealed many tensions, especially about the question of Islam and/or religious minorities within migration. Through selective review of these debates, I attempt to comprehend perceptions and research about the religion-migration scene since the 1980s. From an anthropologist's viewpoint, I also explore whether studies of African migration in France have opened the door to a new research field in terms of method and inquiry. Thus, as we observe, anthropologists studying African migrations have enabled us to reexamine the object of religion within migration and to remove it from an ethnicizing, identity-based approach.

8. Alon Harel (Hebrew University of Jerusalem - Faculty of Law),Is Pornography a Speech or an Act and does it Matter? , Jerusalem Review of Legal Studies, Vol. 3, p. 5, 2011. The abstract states:

This is Alon Harel's contribution to the symposium on Rae Langton’s 'Sexual Solipsism: Philosophical Essays on Pornography and Objectification'.

9. Michael D. Gilbert (University of Virginia School of Law), Disclosure, Credibility, and Speech, Journal of Law and Politics, Forthcoming. The abstract states:

Conventional wisdom, embraced by judges and scholars alike, holds that mandatory disclosure chills political speech. That must be right for some actors. Disclosure imposes costs on speech, and that will lead some speakers on the cost-benefit margin to remain silent. However, the conventional wisdom may be wrong at the aggregate level. If you raise the price of a lottery ticket and increase the odds of winning, you might sell more tickets. By the same logic, if disclosure raises the price of speech and also reveals – or induces – better odds of getting a favorable outcome, speakers might engage in more speech. Disclosure might reveal or induce those better odds by uncovering information about politicians’ credibility. I explain why and consider legal implications.

10. Felix T. Wu (Yeshiva University - Benjamin N. Cardozo School of Law), Collateral Censorship and the Limits of Intermediary Immunity, Notre Dame Law Review, Vol. 87, p. 101, 2011. The abstract states:

The law often limits the liability of an intermediary for the speech it carries. And rightly so, because imposing liability on intermediaries can induce them to filter out questionable content and this “collateral censorship” risks suppressing much lawful, even highly beneficial, speech. The “collateral censorship” rationale has its limits, though, and correspondingly, so should the applicability of intermediary immunity. The worry with collateral censorship is not just that intermediaries censor, but that they censor more than an original speaker would in the face of potential liability. Increased censorship, in turn, is the product of applying liability targeted at original speakers to entities whose interests diverge from original speakers. Where the “intermediary” has the interests of an original speaker, and so should be regarded as one, or where the form of liability already takes into account the intermediary’s interests, collateral censorship is not the problem, and immunity is not the right response. This understanding should, in particular, inform the interpretation of section 230 of the Communications Decency Act of 1996, a federal statute that broadly immunizes Internet intermediaries from speech torts and many other forms of liability. In cases involving the republication of e-mails, questionnaires, member screening, and contract claims, among others, courts have begun to explore the limits of this immunity, but have done so haphazardly and inconsistently, having largely lost sight of the underlying rationale for immunity. Focusing on the conditions that generate problematic collateral censorship provides a principled basis upon which to define the limits of intermediary immunity generally, and section 230 in particular.

11. Lyrissa Barnett Lidsky (University of Florida - Levin College of Law), Incendiary Speech and Social Media,  Texas Tech Law Review, Vol. 44, No. 1, 2011. The abstract states:

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An examination of both incidents reveals flaws in existing First Amendment doctrines. In particular, this examination raises questions about whether underlying assumptions made by current doctrine concerning how audiences respond to incitement, threats, or fighting words are confounded by the new reality social media create.

12. John Tehranian (Southwestern Law School),The Copyright Wars, INTRODUCTION TO INFRINGEMENT NATION: COPYRIGHT 2.0 AND YOU, Oxford University Press, 2011. The abstract states:

In the twenty-first century, copyright impacts us all. Written on the occasion of copyright’s 300th anniversary, Infringement Nation: Copyright 2.0 and You (Oxford University Press, 2011) analyzes the history and evolution of copyright law and assesses its vitality in the digital age. This Introduction, The Copyright Wars, provides an overview of the book and its central themes.

The Copyright Wars begins by highlighting three key trends: copyright law's increasing relevance to the daily lives of average Americans, the heightened public consciousness over copyright issues precipitated by this reality, and the way in which both legal and technological changes have called into question the growing disparity between copyright law and copyright norms. This law/norm gap has created a policy stalemate, and new theaters of operation for the copyright wars have debuted as skirmishes have moved outside of their traditional venues (Congress and the federal courthouses) into some basic American institutions previously removed from the fray. From the misadventures of Captain Copyright – the Canadian Copyright Counsel's educational superhero dedicated to the fight against infringement – to the the MPAA's "Respect Copyrights" merit badge, both classrooms and key youth-oriented institutions such as the Boys Scouts have emerged as battlegrounds where interested parties have sought to mold the views of future generations toward copyright law.

The Copyright Wars then provides a synoptic review of Infringement Nation, which is organized around the trope of the individual in five different copyright-related contexts – as an infringer, transformer, consumer, creator and reformer. Using an array of examples – from the unusual origins of Nirvana's Smells Like Teen Spirit, the history of stand-offs at papal nunciatures, and the tradition of judicial plagiarism to contemplations on Slash's criminal record, Captain Kirk's reincarnation and Holden Caulfield's maturation – the book questions some of our most basic assumptions about copyright law. In the process, Infringement Nation presents a balanced critique of both the troubling overextension of the copyright monopoly in many contexts and the inadequacies of current law in vindicating the rightful property interests of many American content creators.

Chapter One (The Individual as Infringer) highlights the unseemly amount of potential liability an average person could ring up in a single day if rightsholders were to prosecute infringements to the maximum extent allowed under law. Chapter Two (The Individual as Transformer) documents the counterintuitive role of the fair use doctrine in radically expanding, rather than limiting, the copyright monopoly. Chapter Three (The Individual as Consumer) weighs the important expressive interests at play in even the unauthorized use of copyright works. Chapter Four (The Individual as Creator) critiques the surprising failure of American copyright law to provide sufficient legal protection for the vast majority of content creators, despite our rhetorical support for strong intellectual property protections and our international treaty commitments. Finally, Chapter Five (The Individual as Reformer) concludes by advancing concrete policy proposals aimed at achieving three goals: (1) restoring the balance between users of and rightsholders to copyrighted content; (2) tempering the disparity between copyright law’s treatment of sophisticated and unsophisticated parties; and (3) recalibrating the relationship between transformative users and original creators of copyrighted content. All told, the book makes a case for reform of existing doctrine and the development of a copyright 2.0.

JFB

Despite Publicized Controversies, More New Mosques Opening After Successful Navigation of Zoning Process

Yesterday NPR reported on a recent study by Professor Paul Numrich of the Methodist Theological School in Ohio. Numrich, the author of The Faith Next Door: American Christians and Their New Religious Neighbors, had used a sabbatical year to examine the proliferation of new mosques in a six county area around Chicago. Presented on the website of Harvard University’s Pluralism Project, his findings include:  

91 verified mosques operated in the six-county region (Cook, DuPage, Kane, Lake, McHenry, Will).

23% of the mosques (21 of 91) were predominantly African American.

77% of the mosques (70 of 91) had adapted their facilities for use as a mosque. (Adapted facilities included former Christian churches.)

Nearly two-thirds of the mosques (58 of 91) have some exterior indication of their Islamic identity that would be recognizable to the average American passerby, such as domes, minarets, Islamic symbols, or English signage.

Numrich writes:

[n]ew mosque construction has continued – even accelerated in Chicago – since the watershed of September 11, 2001. This has occurred in spite of – perhaps because of, in some sense – growing anti-Muslim sentiment in the country. This is no trivial fact as it bespeaks the civic maturity of American Islam. Building a new mosque requires interaction with government authorities, neighbors, local community interests, contractors, vendors, and others. In today’s hypertense atmosphere, the lesser known story is that of the successful construction of new mosques across the country.

Considering how ongoing controversies could create opportunities for communities to strengthen their capabilities for civil discourse, Numrich then observes:

As I write this essay, DuPage County has denied a height variance for a 69-foot dome and a 79-foot minaret on the proposed new facility of Muslim Educational Cultural Center of America or MECCA. Domes and minarets are the most recognizable recurring elements of classical mosque architecture and often appear on newly built mosques in the United States. Public conversation about what these symbolize for Muslims can reveal analogies to Christian churches.

Without a dome and a minaret, the new mosque would look like “any other building,” says MECCA’s president. “It wouldn’t look like a mosque. It’s like building a church without a steeple.”

Whether or not DuPage County reverses its decision and allows a variance, whether or not MECCA settles for a scaled-down dome and/or minaret, public conversation would benefit from exploring the significance of sacred architecture across America’s religions.

The NPR report highlights how Muslim groups seeking land use approval for mosque projects  have become politically savvy and have capitalized on their significance as a growing constituency in local communities.  However, the success of mosque proposals may also reflect local decision-makers’ recognition of the availability of  legal remedies via the  Religious Land Use and Institutionalized Persons Act (RLUIPA) if such projects are not evaluated fairly.  The NPR story notes that the Chicago’s Muslim federation is now recruiting lawyers to serve as a zoning task force.

JFB

Ky. Ct. of Appeals Rejects Challenge to St. Homeland Security Statute’s Mandate to Post Plaque Stating that Security “Cannot Be Achieved Apart from Reliance upon Almighty God”

 The Kentucky legislature enacted KRS 39A.285, which states:

The General Assembly hereby finds that:
(1) No government by itself can guarantee perfect security from acts of war or terrorism.
(2) The security and well-being of the public depend not just on government, but rest in large measure upon individual citizens of the
Commonwealth and their level of understanding, preparation, and vigilance.
(3) The safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God as set forth in the public speeches
and proclamations of American Presidents, including Abraham Lincoln’s historic March 30, 1863, Presidential Proclamation urging Americans to pray and fast during one of the most dangerous hours in American history, and the text of President John F. Kennedy’s November 22, 1963, national security speech which concluded: “For as was written long ago: ‘Except the Lord keep the city, the watchman waketh but in vain.’”

KRS 39G.010(2)(a)  then prescribes that the executive director of the state Homeland Security Office:

Publicize the findings of the General Assembly stressing the dependence on Almighty God as being vital to the security of the Commonwealth by including the provisions of KRS 39A.285(3) in its agency training and educational materials. The executive director shall also be responsible for prominently displaying a permanent  plaque at the entrance to the state’s Emergency Operations Center stating the text of KRS 39A.285(3)[.]

A state trial court had invalidated the challenged provisions as violating the Establishment Clause, finding they had been enacted for a predominantly religious purpose and conveyed a message of mandatory religious belief. The trial court also read  KRS 39A.285  as imposing “ an affirmative duty to rely on Almighty God for the protection of the Commonwealth” and thereby pronounced “an official government position on God.”

In a ruling last week the Court of Appeals majority disagreed, writing that the Kentucky statute’s requirements were analogous to Ohio’s law making “With God, All Things Are Possible” the state motto. The Ohio motto law was upheld in ACLU of Ohio v. Capitol Square Review and Advisory Bd., 243 F.3d 289 (6th Cir. 2001) (en banc), as an acknowledgment of the role of religion in American life. The Sixth Circuit concluded that no Establisment Clause violation existed because the Ohio law compelled no religious participation and indicated no denominational preference. The Kentucky Court of Appeals characterized the requirements of the state Homeland Security law as similarly unobjectionable, imposing no affirmative duty upon the Commonwealth’s citizenry to rely on Almighty God for protection, instead only "pay[ing] lip service to a commonly held belief in the puissance of God.“ The state appellate panel added that the Preamble to the Kentucky Constitution offers a similar generalized recognition of religious belief:   “We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution.”

Senior Judge Ann O’Malley Shake dissented, concluding that the challenged provisions had the “impermissible effect of endorsing religion because it was enacted for a predominantly religious purpose and conveyed a message of mandatory religious belief.”

JFB

House to Take Up Resolution Reaffirming Importance of Use of “In God We Trust” as Motto

As reported in the LATimes, Rep. Randy Forbes (R-Va.) has introduced a resolution to encourage the  display of the motto in all public buildings, public schools, and other government institutions in an effort to underscore the importance of the motto’s message.  The explanatory preamble to  H. CON. RES. 13 states:

Whereas ‘‘In God We Trust’’ is the official motto of the United States;
Whereas the sentiment, ‘‘In God We Trust’’, has been an integral part of United States society since its founding;
Whereas in times of national challenge or tragedy, the people of the United States have turned to God as their source for sustenance, protection, wisdom, strength, and direction;
Whereas the Declaration of Independence recognizes God, our Creator, as the source of our rights, ‘‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and
the pursuit of happiness.’’;
Whereas the national anthem of the United States says ‘‘praise the power that hath made and preserved us a nation . . . and this be our motto: in God is our trust.’’;
Whereas the words ‘‘In God We Trust’’ appear over the entrance to the Senate Chamber and above the Speaker’s rostrum in the House Chamber;
Whereas the oath taken by all Federal employees, except the President, states ‘‘I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.’’;
Whereas John Adams said, ‘‘Statesmen may plan and speculate for Liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand.’’;
Whereas if religion and morality are taken out of the marketplace of ideas, the very freedom on which the United States was founded cannot be secured;
Whereas as President Eisenhower said and President Ford later repeated, ‘‘Without God, there could be no American form of government, nor, an American way of life.’’; and
Whereas President John F. Kennedy said, ‘‘The guiding principle and prayer of this Nation has been, is now, and ever shall be ‘In God We Trust.’ ’’

In 1956 Congress adopted a resolution replacing the nation's original motto, "E Pluribus Unum", with "In God We Trust."  

Rep. Forbes also introduced H.RES.253, which “affirm[s]the rich spiritual and religious history of our Nation's founding and subsequent history and expressing support for designation of the first week in May as "America's Spiritual Heritage Week" for the appreciation of and education on America's history of religious faith).

JFB