First Amendment Scholarship Update

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

1. Michael Kent Curtis (Wake Forest University School of Law), The Fraying Fabric of Freedom: Crisis and Criminal Law in Struggles for Democracy and Freedom of Expression, forthcoming in Texas Tech Law Review, Volume 44, 2011. The abstract states:

The democratic ideal is one of the strongest justifications for robust protection of freedom of expression in America. In its English and early American origins, freedom of expression was anti-hierarchical. Far-flung commentary on the management of public affairs reinforces the conception of government officials as agents or trustees with a fiduciary duty to “the people.” Yet the democratic function of free speech is being eclipsed by a “market” for speech, in which wealth is increasingly concentrated in fewer hands, and speech in the most crucial political media of television and radio belongs predominantly to those who buy it. (The Internet, for now, remains an exception.)

A historical review of struggles for free expression demonstrates the original anti-hierarchical nature of freedom of expression, which technological advances initially galvanized. Earlier Supreme Court cases contain eloquent tributes to the values of free expression, the importance of diverse information from multiple perspectives, and of avenues for expression for the less wealthy. These ideals are being challenged by the modern reality of ever more concentrated economic power and Supreme Court decisions that further empower the powerful. Davis v. FEC, Citizens United v. FEC, and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett are landmarks of our new Gilded Age Court.

In short, great combinations of power (including private combinations) can threaten practical democracy and freedom of expression. All levels of government have abridged civil liberties, but the view that government power is oppressive and private or corporate power is benign has served to undermine freedom of expression for the non-wealthy. The anti-hierarchical purpose historically served by freedom of expression is fraying under a sustained and multi-pronged assault.

2. Aziz Z. Huq (University of Chicago Law School), Preserving Political Speech from Ourselves and Others, Forthcoming in Columbia Law Review Sidebar. The abstract states:

This Essay is a case study of how and why strict scrutiny varies between cases decided within a particular doctrinal category (political speech) by a given court (the Roberts Court). Two lines of Roberts Court jurisprudence implicate political speech: federal campaign finance cases and a challenge to the federal statute criminalizing “material support” to designated foreign terrorist organizations. My aim here is to examine the common doctrinal matrix of First Amendment strict scrutiny used in those cases to explore how divergent results emerge from a unified analytic framework. A secondary goal is to illustrate how post-9/11 national security concerns find expression inside familiar and seemingly durable doctrinal frameworks.

3. Aziz Z. Huq (University of Chicago Law School), Private Religious Discrimination, National Security, and the First Amendment. Harvard Law and Policy Review, Vol. 5, p. 347, 2011. The abstract states:

This essay identifies a negative feedback loop between private discrimination directed at American Muslims and security against terrorism. The first part of the loop is familiar: Concerns about terrorism animate greater antipathy toward outsiders. The second part is novel: social discrimination corrodes trust in the police and makes cooperation with police less likely. Insecurity thus creates discrimination, which deepens insecurity. The Religion Clauses of the First Amendment, now greatly weakened, still provide one tool to break this negative feedback loop.

4. Adam D. Moore (University of Washington – Department of Philosophy), Privacy, Speech, and the Law. The abstract states:

Part I will provide an overview of the moral foundations of privacy — while brief, the goal is to establish the claim that privacy more than a mere interest. Part II will consider several arguments — or strands of argument — purporting to justify free speech rights. While these arguments, taken together, establish that free speech is important, they do not support the view that speech should nearly always trump privacy. In Part III I will suggest a way to balance free speech and privacy claims in the law.

5. Puja Kapai (University of Hong Kong – Centre for Comparative and Public Law), Freedom of Conscience and Religious Belief, published in The Law of the Hong Kong Constitution, Johannes M. M. Chan, Lim Chin Leng, eds., Sweet & Maxwell, 2011. The abstract states:

Although the freedom of religion is a constitutionally guaranteed right in numerous jurisdictions around the world, ambiguities surrounding the content of the right continue to baffle courts as well as religious subjects seeking protection pursuant to the right the world over. The conceptual underpinnings of the right continue to prove elusive. This paper traces the journey of Hong Kong courts in the elaboration of various aspects of this right through an examination of local jurisprudence to determine the scope and limits of the protections as enshrined in the Basic Law of the Hong Kong Special Administrative Region (HKSAR). An examination of the jurisprudence indicates the need for a sophisticated approach towards the construction of religion. Given the limitations inherent in any attempt to comprehensively categorize social and psychological phenomena, particularly in light of the importance of the liberty of conscience, the task becomes increasingly challenging given the amorphous nature of the right and the likely ramifications if it is over-extended.

In most cases the court is ready to find violation if there is discrimination. However, the courts are yet to develop an analytical framework within which competing interests between religious freedom and the interests of the public are properly and rigorously assessed. There is also a need for greater sensitivity in the consideration of claims based on religious freedom. In many cases concerning substantive rights of manifestation, for example, the courts have found the defense based on religion as lacking in genuineness to warrant serious treatment. On the other hand, the court’s unfamiliarity with some religious ideas may also have contributed to its reluctance in pronouncing definitively on issues of doctrinal religion. The difficulty however, lies in identifying the extent to which the framework of belief motivates a particular way of life or percolates into various spheres of existence and activity to have a deep impact on matters of conscience. The bifurcation of religious practice into beliefs and actions motivated by such beliefs may be artificial and modeled on established religions and their common expression. Care must be taken to avoid holding beliefs to standards that are common to the established religions and their traditional spheres of activity. If we are to be flexible, there must be further probing of the criteria which elevate mere thoughts or beliefs to a realm beyond legitimate state intervention. A more nuanced approach would serve to increase the confidence of people in the robustness of the courts and their protection of fundamental rights.

6. Douaa Hussein (American University in Cairo – Department of Law), Legal Reform as a Way to Women’s Rights: The Case of Personal Status Law in Yemen. OIDA International Journal of Sustainable Development, Vol. 3, No. 1, pp. 21-46, 2012. The abstract states:

In this paper, the researcher argues that the legal reform of the Personal Status Law is not sufficient to ensure gender equality within the Yemeni context where the religiousand cultural value systems of rights remain untouched. Narrow and conservative interpretation of sharia forms the main conceptualization of the rights in the current law. The tribal value system and conceptualization of rights and its practices on the ground has affected the equitable marital rights. The researcher further claims that the current law which is premised mainly on sharia, consolidates the concept of 'Wrong Rights', obstructing women’s efforts to ensure equality in the Personal Status Law.

In this respect, there are several conclusions that can be drawn. First, there are three drivers for the conceptualization of rights that affect the formulation of Personal Status Law namely, guardianship (Sharia), sisterhood (constitution), and the weak and dependent (tribal customary norms). The three of them articulate and reflect the narrow interpretation of Sharia and patriarchal policies advanced by the state and the community. Thus the current Personal Status Law consolidates a number of wrong rights which paradoxically, constitute the basic human rights such as the denial of the freedom of choice and full consent, the freedom of movement and the right to terminate the marital relationship. In addition, the right to inheritance is the wrong right for women in practice.

Thus, the realization of gender justice in the area of Personal Status Law and the effective application of the law need a multi-dimensional approach namely an enlightened interpretation of Sharia, adopting the principle of reciprocity and the consequences-based approach. Societal reform suggests a four-pronged approach. One deals with the gender sensitive institutional reform while the second addresses education and the third adopts an Islamic feminist approach. The fourth is geared towards demolishing the dual legal systems.

7. Eric Easton (University of Baltimore School of Law), Ten Years After: Bartnicki v. Vopper as a Laboratory for First Amendment Advocacy and Analysis. University of Louisville Law Review, Vol. 50, No. 2, pp. 287-335, 2011. The abstract states:

How many ways can one approach a First Amendment analysis? What influences a lawyer or a judge to select one analytical approach over another? And what is the long-term effect of a court's choice of one over another? In Bartnicki v. Vopper, a 2001 case in which the U.S. Supreme Court considered federal and state statutes prohibiting the disclosure of illegally intercepted telephone conversations, we are privileged to have a small laboratory through which to study the first two questions. And, from the vantage point of ten years, we ought to be able to make some informed predictions as to the third.

In Bartnicki, the US Supreme' Court held that the First Amendment gave the news media a right to publish truthful information on matters of public concern, even if unlawfully acquired, provided the publisher did not participate in the unlawful conduct. How the Court ultimately reached that conclusion is one principal focus of this Article, precisely because the story of this litigation reveals so much about alternative First Amendment analyses and the process of influencing the courts' choices among them.

Part II of this Article recounts the underlying facts of the Bartnicki case and its procedural posture up to certiorari. Part III examines the two contending precedents initially asserted by the parties and accepted as the basis for analysis in the district court. Part IV looks at the shift to doctrinal analysis in the court of appeals, prompted at least in part by the federal government's entry into the case. Part V studies the proceedings before the U.S. Supreme Court, with emphasis on the participation and analytical approach of prominent media lawyers. Part VI dissects the opinion and the shift to an ad hoc balancing approach, particularly in light of the press arguments, while Part VII ventures some predictions about the significance of the decision with the WikiLeaks.com controversy as a backdrop.

JFB