Category: First Amendment

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The Power of Place

Michael Kimmelman, the architecture critic for The New York Times, has an interesting piece in this morning’s Sunday Review about the manner in which the Wall Street protesters are using and creating public space.  The piece picks up many of the themes examined in Speech Out of Doors — the connection between medium and message; the human and social connections people have to actual places; the role of technology in mass public demonstrations; the solidarity and communicative values associated with public places; and the manner in which public places are inscribed with messages and memories.

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Stolen Valor Act Discussion

In its Community forum, SCOTUSblog is hosting a discussion on the Stolen Valor Act, which criminalizes false statements regarding receipt of military decorations, medals, and awards.  The Supreme Court will dicsuss the cert. petition in United States v. Alvarez, which invalidated the Act on First Amendment grounds, at tomorrow’s conference.  I’ve posted a comment on the issues raised in Alvarez in the discussion thread.

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Public Protest 1.0

The “occupation” of wall street and other spaces across the country originated online, and the protesters have set up their own media camps to disseminate videos and other information to the public.  These are some of the unique features of contemporary protests.  But what has been striking so far is the extent to which these protesters have relied on older forms of contention and information dissemination. 

Like previous protests, this one has claimed public space in order to make a public statement — of discontent and dissatisfaction so far, and perhaps a more affirmative statement in the days to come.  (Interestingly, the most prominent space in lower Manhattan — Zucccotti Park — is privately owned, and thus not technically one of the quintessential public forums open for public assembly and debate.)  The occupation is  physical; like other demonstrations, a substantial part of its power derives from the visual solidarity of its participants and the disruption the occupation is creating (of course, these things may have downsides and costs in terms of the efficacy of protests).  The occupation is relying on traditional protest repertoires such as marches and sit-ins — indeed, the Wall Street occupation is in one sense an extended outdoor sit-in.  Many of the protesters, though tech-savvy, carry makeshift placards and signs.  Some dress in costumes.  Some sit in drum circles.  Some advocate anarchy.  They have trouble finding suitable bathrooms, and have clashed with merchants.  To this point, the protesters have sought to move by consensus — a method of organizing that has led to frustration in past movements.  They even have their own newspaper , which they circulate to passersby and others (who says the traditional press is dead?).  The press and police have dutifully played their roles too — the cops have used escalated force and the media have demonstrated conflict reporting biases. 

This reliance on traditional forms of public contention should not come as a complete suprise.  Technology is undeniably useful to protest movements.  It can facilitate organization and dissemination of information.  It can help protesters bypass media filters, at least to some extent.  It can even facilitate sousveillance, or surveillance from the bottom.  But as I argued in Speech Out of Doors, online protests simply do not have the same communicative impact as those that take place out of doors.  That impact derives from their physicality, their presence, their human dimension.  As one veteran journalist observed with respect to the fledgling newspaper:  “[N]ewspapers convey a sense of place, of actually being there, that digital media can’t. When is the last time somebody handed you a Web site?”  In a broad sense, that is what traditional protests provide — a sense of place.

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Reviewing The Oral Argument in Hosanna-Tabor (Part Three)

JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?

Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.

Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:

If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.

Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.

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Reviewing The Oral Argument in Hosanna-Tabor (Part Two)

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.

Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”

Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”

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Our Exceptional Constitution

Scholars have long debated the extent to which the U.S. Constitution has influenced constitution-making and constitutional interpretation abroad.  David Law (Washington University) and Mila Versteeg (Virginia) have recently posted an interesting empirical study of the extraterritorial influence of the U.S. Constitution, entitled “The Declining Influence of the United States Constitution.”   I recommend it to anyone interested in comparative constitutionalism and formal constitutional modeling.  

As the title suggests, the authors conclude that in recent decades (particularly since the 1990s), other nations have become increasingly unlikely to model their rights-related (or structural) constitutional provisions on the U.S. Constitution.  Their study, which is based on 60 years of data, offers a systematic analysis of the declining influence of U.S. constitutionalism abroad.  With regard to rights in particular, the authors conclude that the U.S. Constitution is increasingly far from the global mainstream, both in the sense that it contains provisions not found in most constitutions (i.e., a right to bear arms, a formal separation of church and state) and in the sense that its Bill of Rights does not contain what the authors refer to as a developing “generic component” of constitutional rights (the existence of which casts some doubt on the notion that constitutions are strongly expressive instruments).  Lack of formal modeling is only one datum concerning the declining influence of the Bill of Rights.  Many commentators have argued that the Supreme Court’s reluctance to cite or rely upon foreign legal and constitutional sources may be diminishing the global influence and appeal of American constitutional jurisprudence and norms.  

Insofar as countries still look to the U.S. as an example, Law and Versteeg conclude that it is likely not to imitate but rather to avoid the Constitution’s perceived flaws.  Although there is no emergent global model, the authors conclude that at least with respect to nations sharing an Anglo-American legal tradition, Canada’s constitution has become far more influential than the U.S. Constitution.  The causes for the decline of U.S. constitutionalism are varied.  The authors point to several possible factors, including the rise of a superior model, a “general decline of American hegemony,” “judicial parochialism,” the “obsolescence” of the U.S. Constitution, and America’s exceptionalist creed.   

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Reviewing the Oral Argument in Hosanna-Tabor (Part One)

Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?

The contested issue in Hosanna-Tabor is whether Lutheran elementary schoolteacher Cheryl Perich can sue her former employer, Hosanna-Tabor Evangelical Lutheran Church and School, for retaliation under the Americans With Disabilities Act. The school fired Perich after she threatened to report the school’s disabilities discrimination against her to the EEOC. The specific legal question is whether the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers, applies to schoolteacher Perich because the church considers her to be a minister.

Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, “doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?” That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?

Justice Sotomayor was concerned about “a church whose religious beliefs centered around sexually exploiting women and children,” which Laycock did not defend. But how can courts determine which laws must be obeyed and which may be flouted? In the past, lower courts have held that Baptist churches’ religious, Scripture-based belief that men are heads of households and therefore entitled to higher pay than women did not allow them to violate the equal pay laws; that the Shiloh True Light Church of Christ’s religious belief in children’s vocational training did not permit it to violate the child labor laws; and that the Quaker tradition of hospitality to the stranger did not allow Quakers to ignore the alien worker requirements of the immigration laws. Those cases focused on how strong the government’s interest was in enforcing the laws. The courts concluded that the government’s interest in enforcing the equal pay, child labor and immigration laws was strong enough to overcome important religious beliefs.

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Trans-Border Exclusion and Execution

Two trans-border First Amendment issues I plan to address in my book-in-progress are ideological immigration exclusions and the challenges posed by harmful expression in the emerging global theater.  Both issues have been in the news recently.

Civil liberties groups continue to complain that the Obama Administration is excluding aliens based on speech or associational concerns.  In the most recent case, the visa of Kerim Yildiz, a Kurdish human rights activist, was delayed.  According to the ACLU, teh delay was owing to his advocacy and criticism of American foreign policy.  (The visa has recently been granted, without explanation for the delay.)  Cases like this will continue to arise.  Whether the executive has the constitutional authority to exclude aliens on ideological grounds has never been definitively resolved.  Kleindienst v. Mandel (1972) held that the government must have a “facially legitmate and bona fide” reason for exclusion and strongly implied that courts were not empowered to look behind the government’s explanation.  The Obama Administration has lifted previous exclusion orders that appeared to be based at least in part on ideological concerns.  However, the Administration has refused to disclaim the constitutional authority to exclude aliens who espouse terrorism or whose advocacy otherwise threatens national security.  Other countries openly engage in, and even tout, ideological exclusion of aliens.  As I’ll argue in the book, this is one area in which I think the First Amendment ought to be exceptional.   

The recent drone attack that claimed the lives of two American citizens in Yemen involves a potentially more troubling practice.  The target of the drone strike was Anwar Al-Awlaki, an American citizen who, according to the government, was a principal propagandist for Al Queda and an organizer of terrorist attacks in the U.S. and abroad.  A companion, Samir Khan, also an American citizen, was killed in the strike.  Khan was reported to be an editor of a pro-jihadi publication.  The legality of the drone program in general is beyond my scope here.  I am interested in the free speech implications of this practice.  No court had ever heard evidence of the allegations against Al-Awlaki (a lawsuit brought by his father was dismissed on justiciability grounds), or Khan.  Insofar as the targeting of a citizen is based in part on his speech or associational activities, the First Amendment is at least implicated ( the Supreme Court has assumed, but never actually decided, that the First Amendment applies to citizens extraterritorially).  Could a citizen be executed in this fashion solely for expressive activities?  Even accepting the CIA’s allegations against Al-Awlaki, Khan’s death would seem to raise this uncomfortable question.  If, as the Supreme Court recently held in Holder v. HLP, speech that is “coordinated” with foreign terrorist organizations can be criminalized, then it may not be a giant leap to target a citizen for execution based solely on his propagandist activities.  The answer may depend, as it does in the detention area, on the propagandist’s status as an enemy combatant or as an agent of the enemy.  (Some old cases suggest that enemy-aiding speech might support a treason conviction.)  Al-Awlaki and others have demonstrated that remotely located speakers can pose real threats to American interests and security.  Determining whether targeted execution is a constitutional response to that threat may require in some cases that we consider not only due process concerns, but free speech ones as well.

Recommended Reading on #OccupyWallStreet

In previous posts, I’ve worried that a large-scale effort to protest inequality in the US would spark a backlash. But the Occupy Wall Street movement has carefully and skillfully built up a network of alliances (from local community groups and unions). As news outlets and citizens consider how to react to the hundreds of arrests made yesterday, they should be aware of these sources:

Mark Engler, Five Things That #OccupyWallStreet Has Done Right

Micah Sifry, #OccupyWallStreet: There’s Something Happening Here, Mr. Jones.

Mike Konczal, Understanding the Theory Behind Occupy Wall Street’s Approach

Doug Henwood, The Occupy Wall Street non-agenda

Glenn Greenwald, What’s behind the scorn for the Wall Street protests?

Not surprisingly, the mainstream media has been condescending and dismissive. I recommend the alternative sources above because of the people I met on Thursday evening when I went to see the protest for myself.
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More on the Wall Street Protest

The Occupy Wall Street protest is now in its second week.  As I mentioned in my last post, this social-network inspired demonstration faces several obstacles.  Among these, two deserve special attention.  One obstacle is short term and the other is a more long-term concern. 

As the protesters have recently learned, the police do not have unlimited tolerance for occupation of public spaces and permit-less demonstrations.  It is illegal to march in the streets of New York City without a valid permit.  Protesters typically work in advance with police officials to map routes and even to arrange for peaceful arrests.  This ensures a space for protest.  But it diminishes the disruptive impact and symbolism of public dissent.  In this instance, the Wall Street protesters declined to negotiate the terms of their demonstrations.   Although they were initially allowed to peacefully occupy park space and were tolerated so long as they did not obstruct traffic, the police have turned up the heat.  The orange mesh netting first used at the 2004 Republican National Convention has been taken out of storage and put to use.  Pepper spray has been used on several protesters — including some who claim that they were peacefully protesting and in compliance with police demands.  The protesters’ determination and resolve will be tested as conditions on the ground intensify.  They will have to endure escalated uses of force by police.  In addition to the sacrifices of time and physical comfort, some will have to be willing to risk arrest and jail time.  These challenges are in addition to the usual problems of message control, rogue violence within the movement, and negative press accounts that focus more on violence and conflict than the substance of protesters’ grievances.

All nascent social movements face these sorts of short-term challenges as they vie for public attention and attempt to take root in public consciousness.  But there is a bigger challenge, one I alluded to at the end of my last post.  The challenge is broader and more deeply ideological than day-to-day street politics on Wall Street or the protests in Madison, Wisconsin (a more appropriate analog than the Arab Spring for what is happening on Wall Street today).  As Michael Kazin, a history professor at Georgetown University, observed in a recent op-ed, “unionists and other stern critics of corporate power and government cutbacks have failed to organize a serious movement against the people and policies that bungled the United States into recession.”  As Kazin notes, the successes of earlier populist movements (of the left and the right) depended on decades of organizing, institution-building, funding, and articulation of populist platforms.  For Wall Street’s putative occupiers, the reality of corportate greed and economic mismanagement is evident.  But as Kazin points out: “If activists on the left want to alter this reality, they will have to figure out how to redefine the old ideal of economic justice for the age of the Internet and relentless geographic mobility.”  That serious long-term challenge cannot be met on the streets of Manhattan or in the Capitol building in Madison.