Category: First Amendment


The Twentieth Anniversary of Employment Division v. Smith

I have just returned from an excellent conference at Cardozo on Employment Division v. Smith, decided 20 years ago. In that case, the Supreme Court held that, with a couple of exceptions, religious observers are not entitled to free exercise exemptions from laws that are both neutral and generally applicable. More particularly, even the sacramental use of peyote did not justify a free exercise exemption from the neutral, generally applicable drug laws banning its use. Previously, religious observers were entitled to a free exercise exemption from a law that imposed a substantial burden on their religious practice unless that law passed strict scrutiny.

The conference request was for short provocative arguments. Here’s mine: it would be perfectly constitutional for the government to condition tax breaks for nonprofit organizations on compliance with anti-discrimination law. In particular, it would not violate the free exercise clause to deny tax exempt status to churches or other religious institutions that argue that their religion requires them to discriminate on the basis of race and sex.

A law denying tax exempt status to nonprofits that invidiously discriminate would easily satisfy the Employment Division v. Smith standard. As long as the law did not target religion, as a law denying tax benefits to religious nonprofits might, and as long as it applies to all nonprofits without exception, so that it can be considered generally applicable, it should raise no free exercise problems.

In fact, the federal government already denies tax exempt status to religious organizations that invidiously discriminate on the basis of race. Indeed, even before Employment Division v. Smith was decided the Supreme Court rejected a free exercise challenge to the IRS’s revocation of tax exempt status of two religious schools, one of which banned interracial dating for religious reasons, and one of which refused to admit black students, also for religious reasons. In Bob Jones University v. United States, the Supreme Court held that the IRS regulation passed strict scrutiny. The policy has since been expanded to cover churches as well.

There is no good reason not to expand this policy to religious organizations that invidiously discriminate on the basis of sex. Just as the government does not subsidize religious institutions including churches that discriminate against blacks, nor should it subsidize those that discriminate against women.

This approach – which allows religious institutions to discriminate but denies them tax benefits – strikes a fair balance between religious freedom and equality. It respects religious liberty because it does not ban churches from fulfilling their religious requirements. But it also promotes equality by refusing to subsidize invidious discrimination, and by ensuring the state does not put its imprimatur on the message that is it acceptable to treat anyone as second class because of their race or sex.


The Slow Demise of Defamation and the Privacy Torts

The ABA Journal reports that the number of libel suits has been steadily dropping in the United States:

During his 30 years as a lawyer for the New York Times Co., George Freeman says, the “Gray Lady” faced four to five new libel suits per year, on average, and has had maybe eight pending against it at any one time. But that’s all changed.

Currently the New York Times is facing no libel suits, and the parent company faces just one in the U.S. “There’s been a fairly steep decline” in the last few years, he says. “The real question is whether it’s cyclical, as sometimes happens, although never quite to this degree, or whether there are other factors at play.”

The Times is definitely not alone, and the trend appears to have rolled out over two or three decades—not years—according to research from the Media Law Resource Center. The number of trials of libel, privacy and related claims against the media fell from 266 in the ’80s to 192 in the ’90s to 124 in the 2000s. In 2009, only nine such trials were held.

Why is this happening?  Is it because there’s much less defamation or invasion of privacy today?  I strongly doubt that’s the reason.  Instead, I can think of several reasons for the decline in defamation and privacy trials:

1. Defamation lawsuits are very hard to win.  Only about 13% are successful.  It is thus hard to find lawyers who will take the case.

2. Invasion of privacy lawsuits are also hard to win.  The privacy torts are fossilized into the forms they were in circa 1960, and they haven’t evolved to address modern privacy problems.  Moreover, courts cling to antiquated notions of privacy that make it hard for plaintiffs to prevail in a data-soaked world.

3. Focusing on trials might be the wrong thing to focus on.  Trials themselves are becoming a rarity.  Our legal system is overrun with costs, making it an extremely inefficient mechanism to resolve disputes.  It is ridiculous that in many cases, the costs of litigating the suit can be greater than the actual money at stake in the lawsuit.  Cases get settled just to avoid these costs.

Read More

Two Meanings of Corporate Governance

The Harvard Law School Program on Corporate Governance recently issued an important paper entitled “Corporate Political Speech: Who Decides?” Written in response to the Citizens United decision, the paper makes the case for requiring shareholder approval of corporate political expenditures:

Under existing corporate-law rules, corporate political speech decisions are subject to the same rules as ordinary business decisions. Consequently, political speech decisions can be made without input from shareholders, a role for independent directors, or detailed disclosure — the safeguards that corporate law rules establish for special corporate decisions. We argue that the interests of directors and executives may significantly diverge from those of shareholders with respect to political speech decisions, and that these decisions may carry special expressive significance from shareholders. Accordingly, we suggest, political speech decisions are fundamentally different from, and should not be subject to the same rules as, ordinary business decisions.

Meanwhile, as Marcy Murningham notes, “Congress faces a decision on the Shareholder Protection Act (HR 4790), which puts a [potential] check on the flood of corporate money into electoral campaigns.” Jennifer Taub makes a compelling case for passing the SPA. Ciara Torres-Spellicsy’s publication “Corporate Campaign Spending: Giving Shareholders A Voice” explains one way the process could work:

Congress should act to protect shareholders by giving them the power, under statute, to authorize political spending by corporations. The voting mechanics would work in the following way: At the annual meeting of shareholders, a corporation that wishes to make political expenditures in the coming year should propose a resolution on political spending which articulates how much the company wishes to spend on politics. If the resolution gains the vote of the majority of the outstanding shares (50% plus 1 share), then the resolution will be effective, and the company will be able to spend corporate treasury funds on political matters in the amount specified in the resolution. However, if the vote fails to garner the necessary majority, then the corporation must refrain from political spending until the shareholders affirmatively vote in favor of a political budget for the compan

Given the extant weakness of corporate governance mechanisms, I can’t guarantee that this will make a substantial difference for our public sphere. I reluctantly began to consider campaign finance reform a “lost cause” even before the opinion in Citizens United was issued. But I do think immediate and full disclosure of the ultimate source of contributions and expenditures is a sine qua non for a legitimate electoral process. New Jersey Senator Robert Menendez worries that “shadow groups [are] putting their thumbs on the scale with undisclosed, unlimited and unregulated donations.” It is deeply troubling to see entities like the US Chamber of Commerce promise “deniability” to donors. Proposals like the SPA and tougher disclosure rules would help put campaign finance back in the limelight it deserves, lest books like David C. Korten’s become the predominant social meaning of “corporate governance.”


Justice Breyer is Wrong

Today comes word of an interview that Justice Breyer did with ABC in which he suggested that burning a Koran in the age of YouTube is akin to shouting fire falsely in a crowded theater.  Frankly, I think this is an absurd analogy.  First of all, there is a difference in intent.  The liar in the theater wants to hurt people and has no other purpose.  The burner of a Koran might want to incite violence, but may also just want to express his or her views (no matter how wacky they may be).  That’s a big distinction.

Moreover, I don’t care for the trajectory of this argument.  Under Justice Breyer’s analogy, the entire world is supposed to be considered “the theater” that we are all sitting in?  And if anything is said in “the theater” that causes (or is likely to cause) others in “the theater” to riot, then the Government can prohibit that speech?  That’s not my idea of “Active Liberty.”


Future of the Internet Symposium: The Role of Infrastructure Management in Determining Internet Freedom

Last week, Facebook reportedly blocked users of Apple’s new Ping social networking service from reaching Facebook friends because the company was concerned about the prospect of massive amounts of traffic inundating its servers.  This is precisely the type of architectural lockdown Jonathan Zittrain brilliantly portends in The Future of the Internet and How to Stop It. Contemplating this service blockage and re-reading Jonathan’s book this weekend have me thinking about the role of private industry infrastructure management in shaping Internet freedom.

The Privatization of Internet Governance

I’m heading to the United Nations Internet Governance Forum in Vilnius, Lithuania, where I will be speaking on a panel with Vinton Cerf and members of the Youth Coalition on Internet Governance about “Core Internet Values and the Principles of Internet Governance Across Generations.” What role will “infrastructure management” values increasingly play as a private industry ordering of the flow of information on the Internet? The privatization of Internet governance is an area that has not received enough attention.  Internet scholars are often focused on content.  Internet governance debates often reduce into an exaggerated dichotomy, as Milton Mueller describes it, between the extremes of cyberlibertarianism and cyberconservativism. The former can resemble utopian technological determinism and the later is basically a state sovereignty model that wants to extend traditional forms of state control to the Internet.

The cyberlibertarian and cyberconservative perspectives are indistinguishable in that they both tend to disregard the infrastructure governance sinews already permeating the Internet’s technical architecture.  There is also too much attention to institutional governance battles and to the Internet Governance Forum itself, which is, in my opinion, a red herring because it has no policy-making authority and fails to address important controversies.

Where there is attention to the role of private sector network management and traffic shaping, much analysis has focused on “last mile” issues of interconnection rather than the Internet’s backbone architecture.  Network neutrality debates are a prime example of this.  Another genre of policy attention addresses corporate social responsibility at the content level, such as the Facebook Beacon controversy and the criticism Google initially took for complying with government requests to delete politically sensitive YouTube videos and filter content. These are critical issues, but equally important and less visible decisions occur at the architectural level of infrastructure management.  I’d like to briefly mention two examples of private sector infrastructure management functions that also have implications for Internet freedom and innovation: private sector Internet backbone peering agreements and the use of deep packet inspection for network management.

Private Sector Internet Backbone Peering Agreements

For the Internet to successfully operate, Internet backbones obviously must connect with one another.  These backbone networks are owned and operated primarily by private telecommunications companies such as British Telecom, Korea Telecom, Verizon, AT&T, Internet Initiative Japan and Comcast.  Independent commercial networks conjoin either at private Internet connection points between two companies or at multi-party Internet exchange points (IXPs).

IXPs are the physical junctures where different companies’ backbone trunks interconnect and exchange Internet packets and route them toward their appropriate destinations.  One of the largest IXPs (based on throughput of peak traffic) is the Deutscher Commercial Internet Exchange (DE-CIX) in Frankfurt, Germany.  This IXP connects hundreds of Internet providers, including content delivery networks and web hosting services as well as Internet service providers.  Google, Sprint, Level3, and Yahoo all connect through DE-CIX, as well as to many other IXPs.

Other interconnection points involve private contractual arrangements between two telecommunications companies to connect for the purpose of exchanging Internet traffic. Making this connection at private interconnection points requires physical interconnectivity and equipment but it also involves agreements about cost, responsibilities, and performance. There are generally two types of agreements – peering agreements and transit agreements. Peering agreements refer to mutually beneficial arrangements whereby no money is exchanged among companies agreeing to exchange traffic at interconnection points.  In a transit agreement, one telecommunications company agrees to pay a backbone provider for interconnection. There is no standard approach for the actual agreement to peer or transit, with some interconnections involving formal contracts and others based upon verbal agreements between companies’ technical personnel.

Interconnection agreements are an unseen regime.  They have few directly relevant statutes, almost no regulatory oversight, and little transparency in private contracts and agreements.  Yet these interconnection points have important economic and implications to the future of the Internet.  They certainly have critical infrastructure implications depending on whether they provide sufficient redundancy, capacity and security.  Disputes over peering and transit agreements, not just problems with physical architecture, have created network outages in the past.  The effect on free market competition is another concern, related to possible lack of competition in Internet backbones, dominance by a small number of companies, and peering agreements among large providers that could be detrimental to potential competitors. Global interconnection disputes have been numerous and developing countries have complained about transit costs to connect to dominant backbone providers.  The area of interconnection patents is another emerging concern with implications to innovation.  Interconnection points are also obvious potential points of government filtering and censorship.  Because of the possible implications to innovation and freedom, greater transparency and insight into the arrangements and configurations at these sites would be very helpful.

Network Management via Deep Packet Inspection

Another infrastructure management technique with implications to the future of the Internet is the use of deep packet inspection (DPI) for network management traffic shaping.  DPI is a capability manufactured into network devices (e.g. firewalls) that scrutinizes the entire contents of a packet, including the payload as well as the packet header.  This payload is the actual information content of the packet.  The bulk of Internet traffic is information payload, versus the small amount of administrative and routing information contained within packet headers.  ISPs and other information intermediaries have traditionally used packet headers to route packets, perform statistical analysis, and perform routine network management and traffic optimization.  Until recent years, it has not been technically viable to inspect the actual content of packets because of the enormous processing speeds and computing resources necessary to perform this function.

The most publicized instances of DPI have involved the ad-serving practices of service providers wishing to provide highly targeted marketing based on what a customer views or does on the Internet.  Other attention to DPI focuses on concerns about state use of deep packet inspection for Internet censorship. One of the originally intended uses of DPI, and still an important use, is for network security. DPI can help identify viruses, worms, and other unwanted programs embedded within legitimate information and help prevent denial of service attacks. What will be the implications of increasingly using DPI for network management functions, legitimately concerned with network performance, latency, and other important technical criterion?

Zittrain discusses how the value of trust was designed into the Internet’s original architecture.  The new reality is that the end-to-end architectural principle historically imbued in Internet design has waned considerably over the years with the introduction of Network Address Translation (NATs), firewalls, and other networks intermediaries. Deep packet inspection capability, engineered into routers, will further erode the end-to-end principle, an architectural development which will have implications to the future of the Internet’s architecture as well as to the future of individual privacy and network neutrality.

As I head to the Internet Governance Forum in Vilnius, Lithuania, Zittrain’s book is a reminder of what is at stake at the intersection of technical expediency and Internet freedom and how private ordering, rather than governments or new Internet governance institutions, will continue to shape the future of the Internet.


Future of the Internet Symposium: Re-Intermediation

I am happy to start the blog-a-thon in which a number of us are taking up topics related to Jonathan Zittrain’s The Future of the Internet and How to Stop It, a masterful analysis of the forces at work to control the Internet. I am moved to take up the topic of CDA Section 230, that friend of bloggers and newspaper web sites which protects them from legal liability for stuff that other people post. As Zittrain says on page 195, “No one fully owns today’s problems of copyright infringement and defamation online”–and, he might have said, the problem of web-facilitated crime more generally. “But,” he continues, “the solution is not to conscript intermediaries to become the Net police.”

The Internet disintermediates. It breaks the grip of the middlemen we used to rely on for a variety of services. I don’t need a publisher for my ruminations about the digital world; I can self-publish on my blog. I don’t need a travel agent, or a stock broker; I can make my own travel reservations and buy my own stock picks. Whether I do a better job now at these tasks than I used to have done for me, and who is getting the financial benefit of my doing the work that I used to hire someone to do for me, are nice questions, but the power shift is the important thing.

Which brings us to the interesting story of Craigslist and its Adult Services (née Erotic) section. After a horrible murder here in Boston in which a woman was killed after setting up shop in a hotel and receiving paying visitors there, Martha Coakley of MA, Richard Blumenthal of NY, and a number of other Attorneys General started pressuring Craigslist to remove the Adult category. This weekend, Craigslist did exactly that, replacing it with the word CENSORED. (Only in the U.S.) The AGs had, in essence, cast Craigslist in the role of an intermediary capable of policing the disintermediated commerce it was enabling.

A number of good stories appeared about this. I thought the Boston Globe had the money quote, from Harvey Silverglate, a noted defense attorney and civil libertarian. “They do not have the legal power [to shut down adult services on the site], so instead they’re abusing their office by intimidating private citizens,’’ he said. ’’I think it’s cowardly.’’ David Fahrenthold of theWashington Post got a good quote from Blumenthal, who may have a hard time remembering his athletic career at Harvard, but sure knows right from wrong. “They lack either the will or the wherewithal to effectively screen for prostitution ads. Which is why we [said] to them, ‘Shut down the site.’” (Fahrenthold also quotes Zittrain. Full disclosure: David Fahrenthold is my son-in-law.)

What is going on here is CDA Section 230 in action. “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The same law that protects the Globe and the Post if one of their online commenters says something libelous also protects Craigslist. As law professor M. Ryan Calo told the New York Times, “What’s happened here is the states’ attorneys general, having failed to win in court and in litigation, have decided to revisit this in the court of public opinion, and in the court of public opinion, they have been much more successful.”

I have a question for the Attorneys General: Why don’t they go after the prostitutes for prostitution, rather than, lacking any legal basis to go after the web site on which they advertise, bullying the site? It’s not like the prostitutes are hard to find. Have one of your gumshoes answer the ads and make a few arrests. Not rocket science–and also not headline stuff, I suppose. No election bounce for arresting women you are simultaneously portraying as victims. But before you start lobbying Congress to change the law about what people can say online, why not make some arrests for the act you are actually supposed to be worried about and which already is a crime? You are being paid to enforce the laws that exist, not the laws you wish existed but don’t, or even the laws your constituents wish existed.

The story of the day on this issue is in Boston’s “other” newspaper, the Boston Herald, whose reporters seem to have no law professors in their little black books but do have some other professional contacts. “Hub Escort Service Cheers Craigslist Ad Shutdown,” reads the headline. “With Craigslist, there’s no middleman,” says the madam, who expects her business to surge if it becomes harder for willing customers and willing service providers to connect to each other directly. Now there is a businesswoman who understands the Internet. This story isn’t over yet — some of those adult ads are reappearing under other rubrics — but I can’t help feeling we are seeing world-historical forces clashing over information control right before our eyes.

(Cross-posted, in large part, from the Blown to Bits blog.)


On the Colloquy: The Credit Crisis, Refusal-to-Deal, Procreation & the Constitution, and Open Records vs. Death-Related Privacy Rights


This summer started off with a three part series from Professor Olufunmilayo B. Arewa looking at the credit crisis and possible changes that would focus on averting future market failures, rather than continuing to create regulations that only address past ones.  Part I of Prof. Arewa’s looks at the failure of risk management within the financial industry.  Part II analyzes the regulatory failures that contributed to the credit crisis as well as potential reforms.  Part III concludes by addressing recent legislation and whether it will actually help solve these very real problems.

Next, Professors Alan Devlin and Michael Jacobs take on an issue at the “heart of a highly divisive, international debate over the proper application of antitrust laws” – what should be done when a dominant firm refuses to share its intellectual property, even at monopoly prices.

Professor Carter Dillard then discussed the circumstances in which it may be morally permissible, and possibly even legally permissible, for a state to intervene and prohibit procreation.

Rounding out the summer was Professor Clay Calvert’s article looking at journalists’ use of open record laws and death-related privacy rights.  Calvert questions whether journalists have a responsibility beyond simply reporting dying words and graphic images.  He concludes that, at the very least, journalists should listen to the impact their reporting has on surviving family members.


Book Review: The National Security Presidency – A Primer with Provocation (Reviewing Denvir’s Freeing Speech: The Constitutional War Over National Security)

Freeing Speech: The Constitutional War Over National Security, by John Denvir. New York University Press, 2010, Pp. 189 pp., $45 (cloth).

If the volume of political dissent alone were the measure of a healthy democracy, then America has been thriving since 9/11.  The roaring avalanche of critical perspectives on the “war on terrorism”— propelled by thousands of books, law review and political journal essays, and newspaper and magazine articles – might suggest that the state of our political discourse and of the constitutional order that it supports is fundamentally sound.  Ironically, of course, this outpouring aims largely to prove the opposite: that unfounded claims of inherent executive authority to preserve national security imperil our free-speech system and tip the delicate balance of our tri-partite federal governmental powers.

To this resounding chorus of critique, John Denvir, the Research Professor of Constitutional Policy at the University of San Francisco School of Law, now adds his voice.  Freeing Speech introduces Denvir’s concept of a “National Security Presidency” (NSP), explores several interrelated factors that have given rise to the phenomenon, and suggests political and judicial reforms as counter-forces to the excesses of the NSP.  In all of this, Denvir hopes to contribute to a revitalization of democratic debate, a reanimation of political activism, a reaffirmation of constitutional safeguards – and, ultimately, to the reactivation of legislative and judicial checks on presidential overreaching in the name of national security.

Freeing Speech organizes its arguments by way of a triadic structure.  After an introduction that discusses competing notions of the term “constitution,” the first three chapters of the book address the “problem” – that is, the complex of policies, practices, and pressures that have enabled Executive claims of extraordinary powers in the realm of national security.  The final three chapters of the book then present the “solution” – that is, the reconfiguration of legislative and judicial responsibilities to secure the limitation of presidential power and the expansion of democratic discourse.  As Denvir succinctly puts it: “The primary problem is the president’s ability to dominate debate on national security; the solution is a First Amendment that makes sure that opposition voices are heard.”

The “Problem”

The most potent vision of the NSP, as Denvir outlines it in Chapter 1, holds that the Executive has an inherent and largely unchecked constitutional duty to protect American lives and interests.  Whether or not Congress sanctions his conduct either ex ante or ex post facto, the president may discharge his constitutional duty by acting on his own authority, given that time may be of the essence or secret information may not be disclosed.  Moreover, neither legislative mandates nor individual constitutional rights should stand in his way.  This NSP vision evolved through both Republican and Democratic administrations, beginning with Abraham Lincoln’s exercise of “emergency war powers” in the wake of the firing on Fort Sumter and continuing through the decades until its fullest blossoming in George W. Bush’s initiation of the current “war on terrorism.”  Assured by the Justice Department’s Office of Legal Counsel that Congress cannot “place any limits on the President’s determinations as to any terrorist threat, the amount of force to be used in response, or the method, timing, and nature of the response,” Bush claimed powers to singlehandedly terminate treaty obligations, to employ “aggressive” interrogation techniques on suspected terrorists, and to issue “signing statements” authorizing underenforcement of legislative provisions that infringed on his constitutional authority, among other actions.

Read More


BRIGHT IDEAS: Collins on Justice Holmes and Free Speech

In his new book, The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010), Ronald Collins guides us through the free speech writings of Justice Oliver Wendell Holmes, Jr.   Ron is the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the Washington, D.C., office of the First Amendment Center.

Ron’s book contains numerous excerpts from Holmes’s great judicial opinions, correspondence, essays, and books.  Far from composing the book mainly of excerpts, Ron has provided very extensive commentary and background throughout.  Ron is steeped in the history of his subject and has a rich understanding of the law and theory of the First Amendment.  There is no better guide to help us understand Holmes’s work and thought as it relates to free speech.

I recently had a chance to talk with Ron about the book.

SOLOVE: What inspired you to write this book?

COLLINS: Long story.  It began when I was in law school and read Holmes’s 1919 free speech opinions.  And then, not long afterwards, I read Max Lerner’s The Mind and Faith of Justice Holmes (1943), which fascinated me though it was quite dated by that time.  This was in the 1970s when I was an impressionable law student.  Several years later I met Max – incredible Renaissance man! – and befriended him and then helped him, in 1988-89, with a new and expanded edition of his Holmes book.  That combined with my work in the First Amendment made this latest book a natural for me, though I don’t worship Holmes.  True, he challenged my mind, and I like that sort of thing even when I disagree with someone.

SOLOVE: During the course of immersing yourself in Holmes’s writings, what is the most surprising thing you learned?

COLLINS: There are so many things; Holmes was such a complex man.  Long before I began my book, I knew quite a bit about his First Amendment work, including his pre-1919 Supreme Court opinions.  So, not much surprise there.  I guess I would say I was quite taken by his Civil War experience and how that had such a remarkable impact on his life, jurisprudence, and view of free speech, too. It was the dye that colored everything in the beaker of his thought.

SOLOVE: Personally, what would you consider to be the five most significant writings by Justice Holmes?

COLLINS: Hard call.  But here they are, in no special order:

Read More


No For Sale Signs Allowed IV

With summer at an end, I have a final post about the ban on for sale signs in a Chicago suburb.  (You can read the others here, here and here.)  In this last post, I offer some observations about how community norms and identity play a role in perpetuating the ban.

In prior posts, I’ve written that many in the Village are unaware of how problematic the ordinance is under the First Amendment.  But some residents undoubtedly know, either because of their own familiarity with constitutional law or because the issue is occasionally raised in the opinion section of the local paper or on local blogs.  Political will to change the ordinance, however, seems close to non-existent. 

This lack of will may partly reflect the political reality within the Village.  The same political organization has been in control for more than thirty years and its candidates almost invariably support the Village’s integration policies, which include the ban.  Some residents probably also appreciate the aesthetic effects of the ordinance, because the lack of signage makes the Village prettier than it otherwise would be.  Other residents may feel that the issue doesn’t warrant action, either because they are already inclined to use a realtor to sell their house or because the inability to use a sign does not deter them from entering the for-sale-by-owner market.  I also suspect, however, that some residents who are aware of the constitutional issue would describe themselves as trading freedom of speech for integration. Read More