Analysis and Commentary on Speech and Religion

The Right Way to Accommodate Religious Objections to the Contraception Coverage Mandate

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the recent controversy regarding Department of Health and Human Services regulations regarding the extent to which employees of religious organizations must be provided with insurance coverage for contraceptive services, as part of the insurance they obtain through their employment; and on President Obama’s proposed compromise. With Obama’s proposal drawing fire from both sides, Amar and Brownstein describe the framework in which they contend that the issue should be analyzed. Acknowledging both the serious religious liberty interest here and the value to many women of insurance that provides contraceptive access, Amar and Brownstein note that often, acknowledging such an interest also confers a benefit on the religious organization or person. (For instance, a true conscientious objector gains the benefit of not having to go to war, despite his sincerity and despite his not seeking out that benefit.) Here, if a religious institution does not have to cover contraceptive services, it not only vindicates its beliefs, but also saves money. Amar and Brownstein contend that part of the ideal approach to such questions would minimize such secular benefits of religious observance. They also note that another part of the ideal approach would be mitigate or spread the costs of honoring religious liberty, so that they do not fall disproportionately or heavily on an individual or group. Finally, they apply their ideal approach to the controversy over the HHS regulations, suggesting that religious organizations that are exempted from the regulations be asked to provide some kind of alternative to compliance—just as a conscientious objector in wartime would.

How The Litigation Over California’s Anti-Same-Sex-Marriage Prop. 8 Gave Rise to a First Amendment Fight

Justia columnist and attorney Julie Hilden comments on a recent ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, regarding videotapes of witness testimony in the Prop. 8 trial. The facts were as follows: Chief Judge Walker of the U.S. District Court for the Northern District of California, who presided over the trial, promised witnesses who supported the anti-gay-marriage Prop. 8 that the videotapes of their testimony would not be used except by the judge himself, in chambers, and he accordingly placed the videotapes under seal. However, Chief Judge Walker himself used some of the tapes during public appearances, and his successor, Chief Judge Ware, attempted to unseal the tapes despite Judge Walker’s promise to witnesses that the tapes would be kept under seal. Hilden notes the crucial difference here between a ruling, which can often be reversed or amended, and a direct promise to witnesses, on which the witnesses may rely. Here, the promise was especially grave, as witnesses suggested that they feared for their safety if the videotapes were to be released.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court Embraces a Narrow Ministerial Exception to Federal Anti-Discrimination Laws

Justia columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court’s decision this week in a case that pitted First Amendment religious freedom rights against the rights set forth in federal anti-discrimination law. In the case, a woman who worked for a church as a teacher was fired after taking a medical leave, and sought to invoke her rights under the Americans with Disabilities Act (ADA). But because she was a “called” teacher, with some religious responsibilities, the church argued that her firing was within its discretion, under the First Amendment’s religion clauses. The Supreme Court ultimately agreed, but as Hamilton explains, the Court issued a narrow decision that still leaves a host of related questions unanswered. Hamilton covers the “parade of horribles” that was raised, but that the Court declined to address in its decision. She also identifies the decision’s bottom line: Courts cannot constitutionally establish selection criteria for clergy.

Is It a First Amendment Violation When A Prison Limits Inmates’ Ability to Solicit Pen-Pals? An Eleventh Circuit Decision Wrongly Says No

Justia columnist and attorney Julie Hilden comments on a recent decision from the U.S. Court of Appeals for the Eleventh Circuit, rejecting a First Amendment claim by the owner of two pen-pal services, which seek to circulate lists of inmates to persons interested in becoming their pen pals, and vice-versa; and of a website on which inmates may solicit pen-pals via advertisements. The case arose when the Florida Department of Corrections (FDOC) banned inmates from soliciting pen-pals, except through a process of one-to-one matching. Hilden argues that, even under the lax First Amendment test that applies to prison restrictions—under which only a rational relationship to penological purposes is required, for a regulation to be upheld—the prison’s rules still do not hold water. She contends that, without any specific evidence of problems within FDOC relating to inmate pen-pal-solicitation fraud, the Eleventh Circuit should—like the Ninth Circuit before it—have rejected the rule for lacking a proper evidentiary basis.

The Case of the Alleged Twitter Stalker: A Federal Judge Dismisses An Indictment on First Amendment Grounds

Justia columnist and attorney Julie Hilden comments on an interesting decision, issued this month by a federal judge from the U.S. District Court for the District of Maryland, regarding an indictment alleging the violation of a federal anti-harassment statute. Hilden first provides the factual background of the case—in which federal prosecutors alleged that a well-known Buddhist religious leader was being harassed, in violation of a federal stalking statute that is an amended version of part of the Violence Against Women Act (VAWA). She then discusses some of the key issues the case raises, such as whether blog posts or tweets can count as harassment in violation of the statute, even if it is the alleged victim who opts to view the posts or tweets, rather than merely receiving them. With the Electronic Frontier Foundation (EFF) as an amicus, and the federal government seeking to defend a statute that is meant to protect women from harm, Hilden predicts that we have not heard the last of this dispute. She also notes that, in the age of the search engine, the line between seeking out material and coming across it has been blurred substantially, and in turn, the definition of harassment may also be blurring.

An Illinois Court Weighs in on the Protection of Anonymous Internet Message Board Speech

When you post an anonymous message on an Internet message board, how anonymous is it, really? Justia columnist and attorney Julie Hilden comments on a recent Illinois state court appellate decision regarding the First Amendment right to speak anonymously. The dispute at issue arose from a number of anonymous comments posted on a newspaper website's message board, and relating in part to a local election. The target of the comments sued for defamation (via his parent, as he was a minor). However, the Illinois court—after clarifying Illinois law pertaining to defamation cases involving an anonymous defendant—found that the statements at issue were not necessarily defamatory, but rather could, and should, be subject to an innocent interpretation. Hilden argues that while the court’s invocation of the innocent-construction rule here was dubious, the court was right to protect the anonymity of the message-board-poster defendant.

Justice Thomas Takes Aim at the Court’s Church-State Jurisprudence but Hits the Constitution Instead

Justia columnist and Cornell law professor Michael Dorf comments on Justice Thomas’s views on the proper approach to cases raising issues regarding the Constitution’s separation of church and state. Dorf contends that Justice Thomas is correct to observe that the Court’s current test for when the government is unconstitutionally endorsing religion, in violation of the Establishment Clause, is so vague that the way that lower courts and even the Supreme Court will rule, when applying the test, is highly unpredictable. Justice Thomas has accurately pointed out, for example, that a crèche displayed on government property violates the Establishment Clause, except when it doesn’t; a menorah displayed on government property violates the Establishment Clause, except when it doesn’t; and a cross displayed on government property violates the Establishment Clause, except when it doesn’t. Nevertheless, Dorf contends that Thomas, while mounting a biting critique of the Court’s current endorsement test, does not offer a superior alternative—and points out that, given the numerous Justices who’ve tried to solve this thorny problem over the years, there may actually be no superior alternative.

Last Week’s Congressional Hearing on Religious Liberty: A Disturbing Presentation by a Catholic Bishop Raises Questions About the Separation of Church and State

Justia columnist and Cardozo law professor Marci Hamilton comments on a presentation given last week to a Subcommittee on the Constitution of the Judiciary Committee of the United States House of Representatives, by the Rev. William C. Lori, the Catholic Bishop of Bridgeport, CT, and the Chair of the United States Conference of Catholic Bishops’ newly-instituted “Ad Hoc Committee on Religious Liberty.” Hamilton argues that Lori’s remarks displayed insufficient respect for the Constitution’s separation of church and state. In particular, Hamilton discusses Lori’s remarks and the role of church/state separation as it relates to the availability of contraception and sterilization, and particularly the requirement that they be covered by private health insurance companies except insofar as certain employers’ religion forbids it. In addition, she discusses Lori’s position on government services relating to human-trafficking victims, which holds that religious service providers would not have to offer contraception and abortion—even to a trafficking victim who suffered a rape. In addition, Hamilton takes strong issue with Lori’s opposition to the federal government's decision to require that AIDS programs offer contraception (both condoms and other birth control) due to their proven efficacy in stopping the spread of disease. Hamilton acknowledges that, of course, religious institutions and institutions may act in these areas, but emphasizes that if they receive government funds, they must also follow government policy. Overall, Hamilton argues, the Church should focus on genuine religious liberty violations, and not issues like these.

Kara Kowalski Seeks U.S. Supreme Court Review in Her First Amendment Student Speech Case, But Should the High Court Take the Case?

Justia columnist and attorney Julie Hilden comments on a bid for U.S. Supreme Court review in a case regarding the First Amendment rights of public school students. The case raises a question that, Hilden contends, the Court will need to answer sooner or later: Under what circumstances, if any, can public schools punish students for off-campus, online speech that occurs outside of school hours? Hilden suggests that the Court should not choose the bullying case on which review has recently been sought as its vehicle for answering this question. Instead, she argues that the Court should focus on some future, simpler case in which a school punishes off-campus, online speech that is not targeted at other students. Hilden suggests that, just as the Court’s seminal school speech precedent Tinker v. Des Moines Indep. Comm. Sch. Dist., had simple facts—involving students peaceably wearing war-protest armbands—so too should the Court’s next school speech case. In particular, she notes that the Court’s taking a case that mixes bullying and off-campus speech would likely lead to a result that slights First Amendment rights even in future cases where no bullying is present.

Can a City Broadly Ban People From Soliciting Work, Business, or Contributions on Its Streets and Highways? A Ninth Circuit En Banc Majority Says No

Justia columnist and attorney Julie Hilden comments on a recent First Amendment decision from an en banc panel of the U.S. Court of Appeals for the Ninth Circuit. Hilden explains why nine of the eleven judges voted to strike down an ordinance passed by the city of Redondo Beach, California, that had barred people from standing on the city’s streets or highways and soliciting employment, business, or contributions from drivers or their passengers. She also covers the adamant dissenting opinion of the well-respected Ninth Circuit Judge Alex Kozinski in the case (also joined by Judge Bea), which some observers have found quite puzzling. Hilden contends that the majority’s opinion was very persuasive, but takes issues with the dissent by the typically brilliant and incisive Judge Kozinski.

Regulating Adult Businesses Based on Their Secondary Effects on the Community: An Ohio Case Raises First Amendment Concerns

Justia columnist and attorney Julie Hilden comments on a recent decision by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit. The decision upheld two regulations that were imposed upon sexually oriented businesses in Ohio. The first regulation restricted a business’s hours if it allowed nudity; the second regulation forbade a business’s nude performers from touching each other, and from touching its customers. Hilden explains the Supreme Court nude-dancing decision, Barnes v. Glen Theatre Inc., that formed the backdrop for this case, and examines two of what she argues are the strongest First Amendment concerns that the Sixth Circuit panel’s decision raises.

A Closer Look At The Defamation Lawsuits Against Eliot Spitzer: Why They Seem Quite Weak

Justia columnist and former counsel to the president John W. Dean discusses a set of interesting defamation lawsuits that were filed, earlier this month, in New York federal and state courts, against former New York Attorney General (and, later, New York Governor) Eliot Spitzer. The suits are based on an opinion piece that Spitzer wrote for Slate.com, about a year ago, which concerned past criminal charges that had been brought against employees of insurance/finance powerhouse Marsh & McLennan. Dean covers the background law on public-figure defamation suits; explains why the plaintiffs in the suits against Spitzer may have trouble meeting the basic defamation-law requirement that the statements at issue must be “of and concerning” them; and notes that if New York had a stronger anti-SLAPP statute, Spitzer might have been able to file a countersuit against the two plaintiffs who are suing him.

An Indiana Federal District Judge Holds That Teens Have a First Amendment Right Not to Be Punished by Their School for Posting Saucy Photos Online

Justia columnist and attorney Julie Hilden comments on a recent decision by the Chief Judge of the U.S. District Court of the Northern District of Indiana, concerning students’ First Amendment rights. The case arose after two public-high-school students were suspended based on lascivious (but not nude) photos that they had taken of each other during a series of slumber parties, and posted for their Facebook and MySpace “friends” and for password-holders on a photo website. Their school argued that the girls had violated school policy, but the judge held that they had a right to take and post the photos at home. Important in the judge’s analysis was that the girls themselves did not bring the photos to school; a parent made a copy and brought the copy in. Hilden argues that the case—while rightly decided—underlines the need for Supreme Court clarification in this muddy area of law.

Can Public School Students Constitutionally Be Punished for Their Off-Campus Comments on Social-Networking Sites or Blogs?

Justia columnist and attorney Julie Hilden comments on a case in which a young woman, Avery Doninger, sued her former high school for punishing her when she was a student there based on derogatory comments about school administrators that she posted while at home, on her home computer, after school hours, on a publicly accessible blog. Hilden notes that Doninger is now seeking Supreme Court review, based on a split among the federal circuit courts regarding cases similar to her own. Hilden explains two key Supreme Court precedents on school speech, and contends that the Court would have to truly make new First Amendment law if it were to allow schools to punish students for online comments that, like Doninger’s, were made after school hours, at home, on home computers—even if the subject of the comments relates to other students or to school administrators.

When Do Message-Board Rants Count as Illegal Threats Against a Presidential Candidate? The Issue That Caused a Ninth Circuit Panel to Split, 2-1

Justia columnist, attorney, and author Julie Hilden comments on a recent, split decision from a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. As Hilden explains, the case involved the “true threats” doctrine, which determines when a statement is an illegal threat, and when it is protected by the First Amendment. The defendant’s message-board postings about then-candidate Obama were ominous, but were they full-fledged threats under the legal test? Hilden explains why two Ninth Circuit judges said no, but one said yes.

The Supreme Court’s Ruling on “Violent” Video Games: The Majority Opinion, and the Dissents

Justia columnist, attorney, and author Julie Hilden comments on the Supreme Court's decision yesterday, June 27, in the "violent" video games case. The Court decided, 7-2, to strike down California's law restricting minors' access to such games. Hilden explains the logic behind the opinion of the Court, written by Justice Scalia; contends that California made a mistake in framing its video-game law the way it did; and explains why Justice Breyer saw the case as more about the protection of children than about First Amendment rights, and accordingly dissented.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more