First Amendment Scholarship Update

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

1. John D. Inazu (Washington University in Saint Louis - School of Law), Justice Ginsburg and Religious Liberty, forthcoming in Hastings Law Journal. The abstract states:

Justice Ginsburg has left an important mark on many areas of the Supreme Court’s jurisprudence, but she has written relatively little in the area of religion. This relatively small footprint increased significantly in the opinion that she wrote in the Court's 2010 decision in Christian Legal Society v. Martinez. In particular, Martinez's dismissal of the religious association claim at the center of the case dealt a severe blow to religious liberty advocates who have struggled to find alternate means of protecting religious expression in the twenty years since the Court’s decision in Employment Division v. Smith (which relegated to rational basis review free exercise challenges to generally applicable, neutral laws).

This essay examines three strands of Justice Ginsburg’s jurisprudence leading up to the opinion that she authored in Martinez: religion, government funding of expression, and equality. It first traces Justice Ginsburg’s religious liberty views through four facets of her legal career: her role as an advocate, her opinions on the D.C. Circuit, her Supreme Court nomination testimony, and her opinions and votes on the Supreme Court. It turns next to her views about government funding of expression, relying principally upon her dissent in DKT Memorial Fund v. AID. It then examines Justice Ginsburg’s longstanding commitment to principles of liberal equality. Finally, it considers the interplay of these three strands in Martinez, and offers three observations. First, because Martinez pitted religious liberty against liberal equality, it forced Justice Ginsburg to make a choice that prioritized one over the other and may have caused her to overlook some of the religious dimensions of the case. Second, Justice Ginsburg’s previous views about government funding of speech should have caused her greater concern over the implications of unconstitutional conditions in this case. Third, Martinez ultimately failed to address the values clash directly, relying instead on doctrinal intricacies that detracted from the core issues raised in this case.

2. Andrew Koppelman (Northwestern University School of Law), Justice Stevens, Religious Enthusiast, forthcoming in Northwestern University Law Review. The abstract states:

It is sometimes alleged that Justice John Paul Stevens is hostile to religion. In fact, however, Justice Stevens espouses a position with religious roots and enthusiastically embraces a distinct conception of religion. This casts doubt on the claim, made in different ways by Eduardo Peñalver and Christopher Eisgruber, that the fundamental concern of his religion clause jurisprudence is equality. At least as important to him is protecting religion from corruption by the state.

Stevens’s position, in order to be consistent, ought to acknowledge, more forthrightly than he does, that it treats religion as a distinctive human good. Any notion of corruption implies a norm or ideal state from which the corruption is a falling off. An invocation of the corruption rationale presupposes that religion is a good thing deserving of protection. To call this view hostile to religion is confused to the point of perversity.

3. Emir Crowne (University of Windsor - Faculty of Law) and Fiorina Santelli, Veiled Prejudice - Caught in the Cross-Examination: The Niqab and Witness Testimony, forthcoming in Constitutional Forum, Centre for Constitutional Studies. The abstract states:

In R. v. N.S., 2010 ONCA 670, a unanimous Court of Appeal for Ontario ruled that preliminary inquiry judges can consider Charter values in evaluating matters relating to the preliminary inquiry and established a framework for establishing and reconciling competing rights claims. The matter is now under appeal to the Supreme Court of Canada, with oral arguments heard on December 8th, 2011.

4.Benoit Frydman (Perelman Centre for Legal Philosophy) and Isabelle Rorive, Fighting Nazi and Anti-Semitic Material on the Internet: The Yahoo! Case and It's Global Implications. The abstract states:

The paper provides an analysis of the French Yahoo! case, a landmark case in global internet law, which led to the removal of Nazi paraphernalia from Yahoo! auction website and was the starting point of a fierce and spectacular transatlantic judicial battle about freedom of speech and content monitoring on the Internet.

5. Mark A. Lemley (Stanford Law School) , David S. Levine (Elon University School of Law) and David G. Post (Temple University School of Law), Don't Break the Internet , Stanford Law Review Online, Vol. 64, p. 34, December 2011. The abstract states:

Two bills now pending in Congress – the “Protect IP Act” (“Protect IP”) in the Senate, the “Stop Online Piracy Act” (“SOPA”) in the House – represent the latest legislative attempts to address online copyright and trademark infringement. Although the bills differ in certain respects, they share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet's addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.

6. Adam D. Moore (University of Washington - Department of Philosophy), Ethical Challenges for Technology Managers: Privacy, Consent, and Security . The abstract states:

In this essay, several of the most prominent ethical challenges that confront technology managers will be presented. After an overview of privacy theory a case based analysis will be offered. Issues to be discussed include: workplace monitoring; video voyeurism; free speech; and security.

7. Matthew J. Wilson (University of Wyoming - College of Law), E-Elections: Law in Asia & Online Political Activities, Wyoming Law Review, Vol. 12, No. 1, p. 237, 2012. The abstract states:

The Internet has had a profound influence on our global society. Widespread and affordable access to the Internet has facilitated a proliferation of “netizens” around the world. The Internet is accessible through a broad range of conduits including desktop computers, laptops, mobile phones, smart phones, televisions, and even game consoles. Easy access to the Internet and World Wide Web has generated a wide-sweeping societal transformation across the globe. In fact, the Internet has altered the way people exchange information, communicate, socially network, transact business, and seek entertainment. Electronic mail, texting, instant messaging, and online chatting have become staples in the realm of societal interaction. In addition, technological innovation increasingly focuses on new and useful applications of the Internet and World Wide Web.

The impact of online interaction, however, extends beyond social functions. Increased reliance upon the Internet has given rise to a plethora of legal and ethical issues in both domestic and international contexts as well. Legal issues in the online world involve commercial relationships, personal rights, criminal acts, and nearly every area of the law. This essay focuses on one particular important legal issue involving the Internet — namely, the clash between online electioneering restrictions and freedom of expression in select countries in Asia, particularly in China, Taiwan, Singapore, South Korea, and Japan. It also suggests that the democratic countries of South Korea and Japan need to relax their strict restrictions regarding online campaigning activities and fully recognize the importance of freedom of expression.

This essay is an edited version of a speech given by Professor Matthew J. Wilson at the Second East Asian Law and Society Conference, Dialects and Dialectics: East Asian Dialogues in Law and Society, at Yonsei University in Seoul, South Korea on October 1, 2011.