First Amendment Scholarship Update

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

1. Randall P. Bezanson (University of Iowa College of Law), Whither Freedom of the Press?, forthcoming in the Iowa Law Review. The abstract states:

The essay is a critique of the treatment of the freedom of the press clause in the Supreme Court's opinion in Citizens United. It is a critique, also, of the decision's originalist underpinnings as recently elaborated by Professor Eugene Volokh.

2. Nick Gamse (Northwestern University School of Law), The Indecency of Indecency: How Technology Affects the Constitutionality of Content-Based Broadcast Regulation, published in Fordham Intellectual Property, Media & Entertainment Law Journal (Jan. 10, 2012). The abstract states:

In the thirty-plus years since FCC v. Pacifica Foundation revolutionized content-based broadcast regulation, much has changed. Although broadcast television was recognized as a dangerously pervasive medium in 1978, it is no longer the dominant force that it once was, with the vast majority of Americans now paying for subscription television services like cable or satellite. And while the Pacifica Court strove to support parents in their struggle to protect their children from pervasive inappropriate content by upholding the FCC’s content regulation, technological developments like the V-Chip, cable boxes, DVRs, and satellite boxes have afforded modern parents various self-help alternatives.

Many critics have argued that changes like these in the convergent media environment have obviated any need for the Supreme Court to evaluate the constitutionality of broadcast speech regulations with special deference, or so-called “intermediate scrutiny.” They contend that broadcast restrictions should instead be evaluated like all other content-based media regulation, with “strict scrutiny.” Some have suggested that no content-based television regulation could pass constitutional muster under a strict scrutiny test because new self-help media filters like the V-Chip necessarily present a less restrictive means to control indecent or profane speech. These arguments have found welcome ears in some courts, most notably the Second Circuit. Upon hearing Fox v. FCC on remand from the Supreme Court, the court pulled no punches in forcefully arguing that changes in the technology landscape should unravel any special First Amendment status for broadcast speech restrictions.

Unfortunately, both law review articles and judicial opinions that have lobbied against content-based broadcasting regulation have generally neglected to offer specific empirical evidence to support their positions. These critics tend to focus on how new technology might be used in theory rather than how it is actually used in practice. This approach is problematic. If the Supreme Court is to uproot three decades of its broadcast speech precedent (as it will have the opportunity to do when it rehears Fox v. FCC this term), it should do so on the basis of specific empirical data that directly address the status of the bedrock governmental interest from Pacifica: parental control over their children’s exposure to pervasive content. Thus, it is critical to understand precisely how the changes in media consumption and technology have affected these parents and their perceptions of control. It is equally important to empirically distinguish between the efficiencies of the alternatives that the Court would consider under a strict scrutiny analysis: one regime based on media filters and one based on regulation. Without such empirical considerations, it is impossible to accurately determine which alternative is the less restrictive method of protecting children (or whether the Federal Communications Commission (FCC) has less restrictive ways of accomplishing its mandate).

This study is the first to use actual survey data to examine how technology has changed the perspectives of parents. With generous funding from the Media Management Center at Northwestern University, I conducted an original survey of 575 American parents to better understand their perspectives on the intersection between television regulation and media filter technology. Parental views are fundamental to the indecency inquiry because they are at the core of the First Amendment carve-out for the content-based regulation of television broadcasting. The survey results offer clear empirical support for the argument that the FCC’s content-based regulation of indecent and profane content should be deemed unconstitutional.

Broadcast television is no longer a uniquely pervasive threat to parental control over what their children watch on television. The survey data reveal that there is no statistically significant difference in perceptions of control between parents who consume only broadcast television in their homes and those who receive their television through some other means of distribution (such as cable or satellite). Moreover, there is not a statistically significant difference between those two groups of parents in their perceptions of how much exposure their children have to inappropriate content on television. In other words, the data show that parents do not perceive an underlying practical need for regulations of broadcast speech to be measured with any less scrutiny than regulations on other media. It is not a uniquely pervasive medium.

Second, parents overwhelmingly report that media filter technology like the V-chip is at least an equally effective substitute for government regulation of inappropriate content. This is a significant finding that could justify the eradication of the FCC’s authority to regulate television content at all. Although most parents would like to rely on a multifaceted defense comprised of both technology and regulation, that position stands at odds with the Supreme Court’s strict scrutiny jurisprudence. If media filters are just as effective as regulation at achieving the government’s interest of helping parents control what their children see, then the regulations should be deemed unconstitutional abridgements of the First Amendment.

3. Jessie Hill (Case Western Reserve University School of Law), (Dis)Owning Religious Speech. The abstract states:

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality.

The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as its own speech a facially religious monument of the Ten Commandments. The second, Salazar v. Buono, which dealt with an establishment clause challenge to a Latin cross in the middle of the Mojave Desert National Preserve, was resolved primarily on the basis of the literal ownership of the religious speech at issue in the case. What both cases have in common is a claim, on one side, that the government has improperly and unconstitutionally excluded one religious group, both literally and metaphorically, and a response, on the other side, that is formulated in the language of ownership, property, and sovereignty.

This Article explores the possible causes and implications of the Court’s recent embrace of property concepts and property rhetoric. It argues that the Court has turned to the language and even the law of property partly as a way of avoiding knotty First Amendment questions. But the rhetoric of property functions on another level, as well. Property rhetoric legitimates and naturalizes the acts of exclusion and subordination inherent in the Court’s decisions. It also gives the appearance of a concrete stake held by some in the religious majority - and a material loss that is incurred - when dominant religious symbols are removed. Ultimately, this article concludes that, for all their flaws, the endorsement test and public forum doctrine, which the Court appears to have temporarily marginalized, are superior approaches to the problem of public displays of religious symbolism.

4. David A. Skeel, Jr. (University of Pennsylvania Law School; European Corporate Governance Institute), Hauerwasian Christian Legal Theory, forthcoming in Law & Contemporary Problems. The abstract states:

This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like.

After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy.

5. Sahar F. Aziz (Texas Wesleyan University School of Law), From the Oppressed to the Terrorist: American Muslim Women Caught in the Crosshairs of Intersectionality, published in Hastings Race & Poverty Law Journal (2012). The abstract states:

In the post-9/11 era, Muslim women donning a headscarf in America 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.

The paper argues that the Muslim woman is a casualty of the post-9/11 “war on terror” in ways different from Muslim men. Not only are her religious freedoms under attack in ways different from men because the headscarf is unique to women, but she is objectified in ideological and corporal domestic conflicts that profoundly affect her life. Perhaps worse than the gender rights debates of the 1990s when Muslim women were talked about rather than talked to, their experiences post-9/11 are completely neglected by Western feminists or used by Muslim male spokespersons to implement a civil rights agenda tailored to the Muslim male experience. Consequently, Muslim women are trapped in the crosshairs of national security conflicts that profoundly affect their lives but not yet adequately addressed by advocacy groups focused solely on defending Muslims, women’s rights, or civil liberties post-9/11.

Section I of this paper prefaces the paper’s thesis by highlighting Islam’s transition from obscurity to notoriety in the American public’s psyche as a result of the September 11th attacks. Section II highlights how the recasting of Islam from a bona fide religion to a political ideology is a necessary precursor for accepting otherwise discriminatory acts as legitimate national security practices. The reclassification is most glaring in the nationwide campaigns opposing mosque constructions because of the public’s fixation on mosques as hotbeds of extremism. Likewise, as Islam becomes defined as an expression of politics instead of religion, demands for religious accommodation by Muslims are deemed stealth Islamic imperialism not protected by law. Against this backdrop, Section III demonstrates how the meaning of the Muslim headscarf has transformed from a symbol of female subjugation to a symbol of terror(ism). Through an analysis of employment discrimination, racial violence, political marginalization, and exclusion from the courthouse, this article demonstrates how the transition in meaning of the headscarf has resulted in palpable and widespread discrimination against Muslim women donning the headscarf. Yet, discourse on civil liberties in the national security context are woefully lacking due to the glaring absence of the Muslim woman’s voice. Section IV calls for a prescriptive rethinking of strategies aimed at redressing anti-Muslim bias and civil liberties infringements that take into account the gender component of post-9/11 discrimination.

By developing a more accurate and in-depth analysis of their complicated circumstances post-9/11, this article aims to include “headscarved Muslim women” in the relevant debates among legal theorists.

6. Candan Turkkan, Secularisation of the Politics of Law: On Roots of Liberal Democracy, published in CEU Political Science Journal (2011). The abstract states:

This paper offers a theoretical analysis of the interplays of secularization in the sphere of law and the sources of legality in liberal democracies. First section focuses on the sphere of law, and argues that not only its form and content, but also its enforcement has become secular. These surely happen simultaneously with secularization in a different yet related aspect of governance – namely, the practices of law-making. The following section argues that secularization in this particular area of who makes the law has taken place in conjunction with the rise of liberal, parliamentary, constitutional democracy that attributes the constituent power of the politico-legal system to the people. A direct effect of this is observable in the ways people identify (identity) with the politico-legal system and how the system represents (representation) the people have changed; this is extensively discussed in the last section.

JFB