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.

Justia columnist and Cardozo law professor Marci Hamilton comments on the recent hearings regarding contraception coverage for employees of religiously-affiliated institutions. Hamilton starts by going back to the time of the Framers, and noting their concerns about the potential abuse of power by legislators. In the context of the contraception-coverage debate, Hamilton argues, Congress is being overly influenced by religious and religiously-affiliated institutions’ lobbyists. Those lobbyists’ religious arguments, she contends, lack any constitutional or statutory basis, especially now that the Obama Administration has offered a compromise, under which the institutions would not have pay for their employees’ contraception coverage; insurance companies would pay instead. Hamilton parallels this fight with an earlier Congressional controversy, regarding RLUIPA, the Religious Land Use and Institutionalized Persons Act. She argues that there, too, religious institutions’ lobbyists sought—and gained—more for such institutions than could possibly be justified, because legislators capitulated when they should have held firm.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.