Articles Posted in Speech and Religion

Justia columnist and U. Washington law professor Anita Ramasastry comments on legal issues regarding the “Yes Men”—a group that creates faux websites and events in order to take aim at corporations, and other entities, the actions of which they oppose. While parody is strongly protected under Supreme Court precedent, Ramasastry notes that the Yes Men’s work is somewhat different from traditional parody, which makes the difference between the parody and its target very clear, very quickly. Ramasastry suggests that in the future, the Yes Men’s strategy may be tested, for the Yes Men’s actions may cause more confusion—and for that reason, may not receive, in court, the full protection that clear, non-confusing parodies enjoy. Ramasastry concludes that even if that is the case, this will have little impact on the Yes Men’s strategies—beyond changing the corporate names on their parody sites.

Justia columnist and attorney Julie Hilden comments on the Supreme Court’s recent ruling striking down the Stolen Valor Act (SVA), a federal criminal statute that punishes lies about winning medals, including the Congressional Medal of Honor. Hilden covers the majority opinion striking down the SVA, Justice Breyer’s concurrence, and the adamant, fact-filled, and passionate dissent. Hilden contends that this case was not only interesting in its own right—because the SVA permitted criminal consequences simply for a proven lie, and nothing more than that—but also interesting as a political litmus test of sorts: Liberals, she suggests, will tend to worry about imposing harsh criminal penalties on mere bar-room braggadocio, while conservatives will tend to worry about the dilution, by false claims, of the significance of the medals that cost so much, and mean so much, to the recipients and their families.

Justia columnist and attorney Julie Hilden comments on a recent decision by the D.C. Court of Appeals—D.C.’s highest court—regarding the First Amendment and the “true threats” doctrine, which holds that true threats are not First Amendment-protected. Hilden notes that the case was unusual as it involved not just a statement, but a rap. After covering three key U.S. Supreme Court cases regarding the “true threats” doctrine, Hilden goes on to consider why the court ruled in favor of the speaker, and to agree with the court’s result. She also emphasizes the importance of context in the decision whether a given comment counts as a true threat or First-Amendment-protected speech, and notes a number of factors that might cut for or against a “true threat” finding in particular cases.

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on a recent Washington State controversy that raises the issue whether a pharmacy must provide the emergency contraceptive known as “Plan B” if the pharmacy’s owner objects to doing so, based on his or her own religious beliefs. (Such pharmacy owners believe that life begins at conception, meaning fertilization; Plan B prevents the implantation of a fertilized egg.) Amar and Brownstein note that the case is important and interesting not just in itself, but also because it illustrates many of the unanswered questions that concern the First Amendment’s Free Exercise Clause. The federal judge who heard the case ruled in favor of the pharmacy owners, but was he right to do so? Amar and Brownstein consider the arguments on both sides, focusing especially on the Supreme Court case of Church of Lukumi Babalu Aye v. Hialeah, in which a church sought to sacrifice animals in its rituals even though doing so was against the law. They also consider variations of the fact pattern in the Washington State case itself, and consider whether they might yield different results.

Justia columnist and Cardozo law professor Marci Hamilton comments on two child-sex-abuse trials related to two iconic Pennsylvania institutions: Penn State and the Philadelphia Roman Catholic Archdiocese. The upcoming Penn State-related trial arises out of widely reported allegations of child sex abuse by former assistant coach Jerry Sandusky, who served under Joe Paterno. The defendant in the ongoing trial relating to the Philadelphia Archdiocese is Monsignor William Lynn, who is charged with conspiracy and child endangerment. Hamilton’s report today comes after hearing testimony in the Lynn case. In addition to commenting on these two cases themselves, Hamilton makes a strong suggestion that Philadephia, home of both of the institutions involved in the scandals, should review its laws and practices regarding to allegations of child sex abuse, and should work toward the state’s now becoming a model when it comes to preventing and punishing child sex abuse.

Justia columnist and former counsel to the president John Dean comments on a new proposed New York statute, the Internet Protection Act, which would provide a remedy for those who are the targets of anonymous Internet attacks—including the victims of cyberbullies, and businesses harmed by competitors’ fake reviews. Dean notes that the Act has drawn much criticism, but he argues that the focus of comments on the Act should not be to attack the Act, but rather to offer constructive criticism as to how the Act can be made consistent with the First Amendment. Dean summarizes the First Amendment arguments that have been raised regarding the Act; cites two key Supreme Court anonymous speech cases; notes that it is often possible to unmask cyberbullies without breaking the law, but it takes time and money to do so; and contends that a constitutional way to address cyberbullying would be through a law allowing the unmasking of the perpetrators of Internet harassment, and the issuance of a protective order against them. Even the deterrent effect of such a law, Dean predicts, could be powerful.

Justia columnist and Cardozo law professor Marci Hamilton comments on Notre Dame University’s and other Roman Catholic organizations’ recent suit against the federal government over federal executive regulations, promulgated through the Department of Health and Human Services (“HHS”), that require the University and the other organizations to include contraception, abortion, and sterilization in their healthcare plans. Hamilton focuses, in particular, on the federal court complaint filed by Notre Dame and the other plaintiffs, and the arguments they have made. Hamilton also describes a series of Supreme Court precedents in which various religious groups have failed to get exemptions from generally applicable laws, and argues that these precedents do not bode well for the plaintiffs’ success in this court challenge. Hamilton also discusses the role the Religious Freedom Restoration Act (RFRA) plays in the lawsuit.

Justia columnist and U.C. Davis law professor Vikram Amar comments on legal journalist Jeffrey Toobin’s recent article in The New Yorker regarding the highly controversial Citizens United case, holding that not just persons, but also corporations, have a First Amendment right to spend money to advocate for or against candidates for election. Amar respectfully raises questions about Toobin’s account of the case and how it was decided by the Court. In particular, he focuses on whether this was the rare case in which oral argument actually mattered to the case's outcome, as Toobin suggests.

Justia columnist and U. Washington law professor Anita Ramasastry comments on a recent First Amendment/Internet law ruling from a Utah-based federal judge. As Ramasastry explains, the ruling limited the scope of a a Utah law that (1) criminalized knowingly or intentionally disseminating harmful content to minors over the Internet, and (2) required website operators to tag or label such content in such a way that the tags or labels can be picked up by search engines. Ramasastry argues that the court struck the right balance by upholding but clarifying the first part of the law, and striking down the second part on First Amendment grounds. When it comes to screening content, she adds, the best solution is not a legal one. The better solution is, she argues, for parents to select screening software if they so choose; and for parents to have a serious talk with their kids to prepare them to deal psychologically with the kind of explicit material that they are likely to see, one way or another, even if parents do install screening software on all home computers.

Justia columnist and Cardozo law professor Marci Hamilton comments on recent events regarding the Philadelphia Archdiocese and clergy child sex abuse. She praises former Philadelphia D.A. Lynne Abraham and current Philadelphia D.A. Seth Williams for their courage and hard work in pursuing the matter, and establishing not only crimes, but also a cover-up. Hamilton notes that the trial of Msgr. William Lynn, who is charged with suppressing the identities of priest perpetrators, marks the first time a member of the Catholic Church’s hierarchy has been put on trial. Despite Pennsylvania’s short statute of limitations for child sex abuse, Hamilton explains, the prosecutors still found a way to make their case—finding two victims whose claims still fit within the statute of limitations, and successfully admitting evidence about 22 other victims whose claims are time-barred at trial. Hamilton faults the Philadelphia Archdiocese not just for the underlying crimes that are alleged, but also for the deficits of its own private investigation, which she argues has re-victimized the victims, given the insensitive way in which it has been conducted.

Justia columnist and Cornell law professor Sherry Colb comments on “ag-gag” laws, which prohibit people from gaining entry into, or employment in, an agricultural production facility, including an animal agriculture facility, under false pretenses. Colb notes that Iowa recently passed such a law, and that North Dakota, Montana, and Kansas also have such laws. Colb argues that the laws are aimed at concealing the true facts about how animals are treated in such facilities, because of the fear that if consumers knew the truth of the cruelty that is perpetrated there, they might change their eating habits. Supporters of that view see those who enter these facilities knowing they will convey information about them to the outside world as undercover reporters and whistleblowers, while the animal industries see them merely as trespassers. Colb details ways in which consumers are misled or misinformed about animal agriculture, suggesting that there is a need for undercover reportage so that the truth can be known. For instance, she explains how milk production entails slaughter, contrary to popular opinion, and not just on factory farms. Colb questions, though, whether consumers really want to know a truth that could complicate their lives with new ethical questions leading to possible dietary changes, and whether if consumers do learn that truth, they will really change their behavior. Colb also examines why humans may not feel empathy for animals, citing the coping strategies that often accompany humans’ acceptance of systematic violence, including violence toward other humans.

Justia columnist and attorney Julie Hilden comments on a recent decision from an Eastern District of Virginia federal judge, who effectively held that the use of the “Like” icon on Facebook is not protected by the First Amendment. The case arose when the employees of a sheriff who was up for re-election decided to “Like” his opponent’s Facebook page. Once the sheriff was re-elected, he fired those employees (as well as others). But the fired employees who had used the “Like” icon sued, arguing that the sheriff had illegally fired them for the exercise of their First Amendment rights. Hilden takes issue with both the judge’s decision to rule against the fired employees, and his approach to the case, which caused him to refuse to interpret what the Facebook “Likes” meant. Citing Supreme Court precedent, Hilden notes that the High Court has often protected and interpreted symbolic speech, and that the Court, in the recent case of Morse v. Frederick, has interpreted the meaning of ambiguous speech as well. She thus concludes that the judge should have both interpreted the “Likes,” and also held that they were First Amendment-protected.

Justia columnist and Cardozo law professor Marci Hamilton comments on past and recent developments regarding Religious Freedom Restoration Acts (RFRAs) on both the state and federal levels. As she explains, a RFRA functions as follows: If a religious believer carries his burden to prove that a given law places a “substantial burden” on his right to religious exercise, then the government must prove that the law it is seeking to enforce serves a compelling interest and is the least restrictive means to accomplish that interest, or the law will not be applied. Hamilton describes a typical RFRA, chronicles the history of RFRAs, and describes a kindred federal statute, RLUIPA, the Religious Land Use and Institutionalized Persons Act. She focuses especially on a recently proposed North Dakota RFRA, which is being introduced through the initiative process. In addition, Hamilton considers how RFRAs, if enacted into law, might affect school-voucher programs.

Justia columnist and Cornell law professor Sherry Colb comments on instances in which the criminal law punishes people’s thoughts and/or words instead of—or in addition to—their acts, despite the First Amendment’s protections for speech and thought. Colb analyzes the uneasy relationship between criminal and civil litigation, on one hand, and guarantees of free speech, on the other. She also covers the categories of speech that the Supreme Court has deemed unprotected by the First Amendment. Moreover, Colb notes that it is perfectly constitutional to use a person’s words as evidence of what he or she has done, or is planning. In addition, Colb describes the subtle answer to the question of whether limits on free thought can constitutionally be imposed, for thought is the essence of culpability. Finally, she concludes by describing the permissible use of evidence of thoughts in determining what may be deemed a hate crime (as well as what may be deemed a violation of discrimination law).

Justia columnist and attorney Julie Hilden argues that the defamation suit that was recently brought by conservative preacher and metal rocker Bradlee Dean against television commentator Rachel Maddow and NBC and MSNBC should be dismissed. Hilden contends that each of Maddow’s comments regarding Dean either was sufficiently accurate for libel-law purposes or fell into libel law’s protection for “rhetorical hyperbole.” Hilden also notes that the fact that Maddow read Dean’s reply to her reportage on the air—although he did not like her tone of voice when she read it—should mitigate some of the damages Dean claims to have suffered from her reportage. Carefully parsing what Dean said on the radio, and what Maddow said about him on television, Hilden contends that Maddow has the better of the legal argument, and ought to prevail.

Justia columnist and U.C., Davis law professor Vikram Amar separates First Amendment fact from First Amendment fiction when it comes to college demonstrations and protests. With campus protest activity highly likely in the Fall, Amar’s guidelines could prove invaluable in keeping protestors from inadvertently courting jail time. In the column, Amar debunks a series of myths about protests—including (1) that the protester’s intent or motive is the most important legal factor; (2) that content-neutral time, place and manner restrictions are pretextual, and need not be enforced; (3) that expressive conduct is treated exactly the same way as pure speech, under the law; (4) that government authorities could constitutionally opt to cut protestors a break when the protestors’ cause is just; and (5) that university campuses are allowed to follow their own special free-speech rules.

Justia columnist and Cardozo law professor Marci Hamilton takes strong issue with the position of the California Catholic Conference, the lobbyist for the California bishops, on issues relating to child sex abuse. As Hamilton explains, the Conference sent a one-page letter opposing AB1628, a California bill that would effect a short extension of the child-sex-abuse statutes of limitations, and require more rigorous background checks for employees and volunteers who work closely with children. Hamilton argues that the bill should be passed, details the Conference’s objections to the bill, and concludes that those objections are meritless. She also notes that this is just one instance in which the bishops are seeking to block child-sex-abuse statute-of-limitations reform; similar efforts are being made in other states as well.

Justia columnist and attorney Julie Hilden discusses the types of complaints that libraries have received about the books in the Hunger Games trilogy, and argues that libraries should nevertheless keep the books on the shelves. The complaints that Hilden discusses claim that the books contain sex, are anti-ethnic, are anti-family, contain material that is “occult/satanic,” and are too violent. Except for the claim about violence, Hilden argues, these claims are inaccurate on the facts—they either do not accurately describe the books’ content, or they fail to put material from the books in proper context. Finally, regarding the claim about violence, Hilden notes that a number of classic works that are commonly taught in schools contain violent acts—and even, in cases like Lord of the Flies, acts of violence among children.

Justia columnist and attorney Julie Hilden comments on a student-speech case that was recently decided by a three-judge panel of the U.S. Court of Appeals for the Second Circuit. As Hilden explains, the case raised the question whether a 10-year-old student’s First Amendment rights were violated when he was suspended for six days based on arguably threatening—but possibly merely joking—words that he had written during a classroom assignment. The Second Circuit panel split 2-1, with the majority siding with the school. However, Judge Rosemary Pooler, in dissent, contended that under the central school-speech precedent of Tinker v. Des Moines Indep. Cmty. Sch. Dist., the student should have won. Judge Pooler argued that the young student's words were much more innocuous than the majority seemed to think, and emphasized that the Tinker test focuses on foreseeable disruption—of which, she concluded, there was little evidence in this case.

Justia columnist and Cornell law professor Michael Dorf comments on a recent Israeli Supreme Court decision that held that a law exempting ultra-Orthodox Jews from military service unconstitutionally denies equality of treatment to other Israelis, who either must serve in the military, or—if they are conscientious objectors—must perform alternative service. Dorf notes that the Israeli decision is not only interesting in its own right, but also sheds light on two questions that U.S. courts must frequently face: How should courts evaluate laws that confer special benefits on certain minorities within society? And, when should people and institutions be exempted from legal requirements based on religious objections? In particular, Dorf points out that the Israeli decision has interesting comparative-law implications for American debates about affirmative action, and about the granting of religious exemptions to otherwise-applicable laws.