Category: First Amendment


Arab Spring on Wall Street?

Although the mainstream media has given it little attention, this past week there has been a public protest near Wall Street in Manhattan.  Fueled largely by social media, “Occupy Wall Street” demonstrators have descended on Wall Street to protest corporate greed.  Who are the protesters?  According to the Occupy Wall Street Web page:   “Occupy Wall Street is [a] leaderless resistance movement with people of many colors, genders and political persuasions.  The one thing we all have in common is that We Are The 99% that will no longer tolerate the greed and corruption of the 1%.”  As the name implies, the group plans to “occupy” — i.e., remain in the vicinity of — Wall Street for some indefinite time.

As public protests go, this one seems to have all the usual elements.  (One of my former students has been at the protest site, and I’ve followed reports of the protest online.)  There’s been a heavy police presence.  Police have arrested several protesters for blocking access to sidewalks, wearing masks, and other public disorder offenses.  They’ve set up barricades and protest zones (which, in this case, demonstrators have largely refused to use).  The protesters have communicated their overarching message by various means — including, in the case of a few women, going topless and proclaiming that they cannot afford shirts.  Although it is not clear whether the police have actually attempted to block or interfere with wireless networks in the protest area, some on the scene have claimed that officers demanded that tarps and other items that facilitate social networking and digital transmissions be removed.   

It was only a matter of time before disgruntled, unemployed and financially insecure twenty-somethings did something to protest the state of the economy.  Their complaints are serious, and the protesters have thus far acted with restraint and demonstrated peacefully.  The protesters are drawing comparisons between their protests and the Arab Spring protests in Egypt, Tunisia, Yemen, and other countries.  Mayor Bloomberg drew the same comparison when he said of the protests:  “You have a lot of kids graduating college can’t find jobs,” he said in response to a question about the poverty rate. “That’s what happened in Cairo. That’s what happened in Madrid.  You don’t want those kinds of riots here.”  Read More


Cosmopolitanism and First Amendment Exceptionalism

In my last post, I discussed some of the ways in which First Amendment norms and standards might be exported beyond our shores.  Of course, in a globalized and digitized world, constitutional norms and standards flow in many directions.  The bending of territorial borders may result in importation of foreign expressive and religious norms.  This transmission may pose a threat to America’s exceptional protection for freedom of speech as well as national norms regarding religious liberty. 

Challenges to First Amendment exceptionalism and religious liberty norms will come from many sources and directions.  These include international treaties and multi-national agreements; transnational processes that bring American and foreign jurists and officials into more frequent contact with one another; judicial citation of and reliance upon foreign legal sources; enforcement of foreign judgments and religious principles in U.S. courts; and resolution of trans-national speech conflicts that will arise as digitized expression is distributed in multiple sovereign territories at once.  In these and other respects, First Amendment norms and values will be in more frequent conflict and tension with foreign norms and values.

I do not suggest that any of these forces or events will ultimately dilute free speech exceptionalism or religious liberty within the U.S.  As Mark Tushnet has observed, globalization is not likely to lead to uniformity or global constitutional norms (whether derived from the First Amendment or from foreign sources).  Even if foreign speech norms could constitutionally be imported by treaty, in negotiations with other nations the U.S. remains steadfastly committed to resisting foreign speech norms and standards (through reservations and other mechanisms).  Further, American courts are unlikely to adopt free speech or press principles that are at sharp variance with longstanding doctrines.  But this does not mean that the forces of globalization, digitization, and internationalism can or will have no domestic effects in terms of expressive and religious liberties.  It may be politically, diplomatically, and otherwise possible to maintain parochial resistance to foreign speech and religious norms.  But ought that to be our posture?    Read More


Exporting the First Amendment

One of the trans-border concerns I’ll address in my book, The Cosmopolitan First Amendment, relates to the exportation of First Amendment norms and standards.  Generally speaking, provincialism and cosmopolitanism both aspire to facilitate the spread of First Amendment norms and standards — although, as I will explain in the book, they differ in important respects with regard to the preferred means of exportation.     

In a broad sense, exportation can take many forms.  For example, refusal to recognize foreign libel judgments may indirectly result in the exportation of American libel standards.  Extraterritorial application of some U.S. laws may effectively export U.S. free speech principles to foreign countries.  Voluntary, or court-ordered, compliance with First Amendment standards in cases where aliens’ expressive or religious liberties are affected abroad would also constitute a form of exportation.  Conditional spending measures could prohibit American companies working abroad from assisting repressive foreign regimes.  Federal legislation might commit the U.S., at least in principle, to facilitating and protecting religious and expressive liberties throughout the world.  Exportation through legislation may be somewhat effective in terms of expanding the domain of First Amendment norms.  These and other measures may result in expansion of the First Amendment’s actual domain, or at least signal an intent to facilitate expressive and religious liberties regardless of location.  In truth, however, these measures are not likely to produce substantial exportation of First Amendment norms and standards.    Read More


First Amendment Cosmopolitanism

In my last post, I posited the existence of three distinct First Amendments and focused on a number of issues relating to the First Amendment’s trans-border dimension.  In this post, I will sketch a conception or orientation regarding the First Amendment that I contend ought to be applied in considering and resolving those and related issues.  Although my theory or conception may have certain local, domestic implications it is applicable primarily to and in the trans-border dimension.         

My book will advance a First Amendment conception that I call “cosmopolitan.”  I use this term recognizing the sometimes misleading and distracting nature of labels.  In this case, the label is descriptively and normatively pertinent.  To be clear, I am using the label “cosmopolitan” more in the ordinary dictionary than in the philosophical sense.  In that more limited sense, I will offer a conception of the First Amendment that is (a) free from local prejudices or attachments, (b) widely distributed in terms of geographic domain, (c) to some extent a product of influences beyond our borders, and (d) part of an international system of human rights.  I will compare this cosmopolitan orientation with its antonym — the “provincial” First Amendment.  Here, too, I think the label is descriptively and normatively apt.  Some have suggested that I use “democratic” instead.  However, for reasons that will become apparent, I critique the conceptions of “democracy” and self-government adopted under the traditional, provincial approach to trans-border First Amendment concerns.  A summary of the provincial and cosmopolitan approaches follows after the break.  Read More


New Faces of the First Amendment: The Philosopher, the Pastor, and the Publisher

My new book project focuses on the First Amendment’s trans-border dimension.  I’ll explain in more precise terms what this dimension includes in a subsequent post.  Briefly, I will be examining and hope to clarify the relationship or intersection between First Amedment liberties and territorial borders. 

To be sure, in years to come domestic or intra-territorial First Amendment issues will continue to be prominently debated and litigated.  But owing to globalization, digitization, and other twenty-first century phenomena, we will be forced to pay greater attention to trans-border First Amendment concerns.  One way to demonstrate the change in focus is to think about some of the contemporary figures or personalities whose expressive activities implicate the First Amendment’s trans-border dimension. Three contemporary First Amendment figures – a Swiss philosopher, a Florida pastor, and an Australian Internet publisher –symbolize and demonstrate some of the emerging complexities of trans-border expressionRead More


Hot Summer Flashes, Black Urban Mobs

Like Professor Zick, I am grateful for the invitation to share my view of the world with Concurring Opinions. I’d like to pick up where his post on strange expressive acts left off and, along the way, perhaps answer his question.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on the one hand and, on the other, anxious and unprepared law enforcement officials. A fateful mix.

In North London in early August, mobile online social networking and messaging probably helped outrage over the police shooting of a young black man morph into misanthropic madness.  Race-inflected flash mob mischief hit the U.S. this summer, too. Most major metropolitan newspapers and cable news channels this summer have run stories about young black people across the country using their idle time and fleet thumbs to organize shoplifting, beatings, and general indiscipline. This is not the first time the U.S. has seen the flash mob or something like it. (Remember the 2000 recount in Florida?) But the demographic and commercial politics of these events in particular ought to raise eyebrows.
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Revolt of the Elites

Bernard Harcourt has analyzed new forms of radicalism adopted by the most and least privileged. Umair Haque at the Harvard Business Review has also identified dispositions shared by street looters and certain elites. As the chief political commentator at London’s Daily Telegraph has observed, “The moral decay of our society is as bad at the top as the bottom.” Yet there are very different consequences for each group’s transgressions.

The more disruptive the disenfranchised become, the more they provoke harsh responses from authorities, thus worsening their already marginal position. By contrast, finance and government elites have positioned themselves to gain from whatever risks they shift onto society at large, via bailouts, emergency powers, and the revolving door. As Ross Douthat observed, “The economic crisis is producing consolidation rather than revolution, the entrenchment of authority rather than its diffusion, and the concentration of power in the hands of the same elite that presided over the disasters in the first place.”
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The Summer of Discontent: Creative Repertoires of Public Protest

Thanks to Danielle and the full-timers here at Concurring Opinions for inviting me for another visit. As Danielle’s introduction indicated, my recent publications have focused primarily on freedom of speech. I want to use part of my guest stint to discuss some of the subjects of my second book, tenatively entitled The Cosmopolitan First Amendment. But I thought I would start with a post related to the subject of my first book, Speech Out of Doors.

Across the globe, it has been an active and tumultuous summer of protests. Public protests in Tunisia, Syria, and Belarus have been most publicized. In Belarus, citizens demonstrated their creativity in the face of official crackdowns, first by engaging in clapping protests and then, when those were met with repressive measures (including imprisonment), synchronized cellphone ringing or buzzing.  The New York Times reported on the diversity of worldwide public demonstrations during the crackdown in Belarus:

Russia has the “blue buckets,” activists who affix plastic sand toys to their cars (or their heads) in a protest against the traffic privileges accorded to government officials, whose cars are equipped with flashing blue lights. In Azerbaijan, where protesters are hustled away so quickly that even gathering is nearly impossible, small flash mobs have appeared out of nowhere to perform sword fights or folk dances.

The more permissive political atmosphere of Ukraine has spawned Femen, a group of young women who address such nonsexy issues as pension reform by baring their breasts in public. A woman was arrested in April for walking up to a World War II memorial in Kiev, Ukraine’s capital, and frying eggs and sausages over the eternal flame.

These and other reports prompted me to think about the most creative forms of public contention. The man pictured above is Ahn Sang-gyu, a/k/a The Bee Man. Ahn, a bee farmer, covered himself with 187,000 bees to protest Japan’s territorial claim to the Korean-occupied Liancourt Rocks. The 187,000 bees apparently represent the 187,000 square meter dimensions of these islets. As it turns out (and this was news to me), South Koreans are among the most creative when it comes to demonstrating public discontent with official policies. No mere marchers or chanters are they. For example, as this photo array shows (warning: some graphic images), South Koreans have been known to drop trou in the street, eat the flags of rival nations, dismember pigs, chop off their own fingers, and behead dummies.  But the South Koreans have global competition in this regard. Read More


Thank you and Goodnight (and Some Thoughts on Anti-Gay Discrimination in Schools)

It has been an honor and a pleasure to be a small part of the Co-Op community these past two months. I learned a lot and had fun doing it! I’d like to thank everyone for their indulgence and comments, with special thanks to Danielle for inviting me in the first place.

For my final post, I would like to follow up on what is going on the Anoka-Hennepin School District in Minnesota.

In the mid-1990s, the District adopted a health curriculum policy prohibiting teachers from teaching that homosexuality is “normal” or a “valid lifestyle.” According to the anti-gay organization that lobbied the District to adopt that rule, “[t]he homosexual lifestyle does not reflect the community standards of District #11, nor is it regarded as a norm in society.” That policy was extended beyond the health curriculum in 2009, when the District adopted a so-called “no promo homo” rule and a neutrality policy that stated that “[t]eaching about sexual orientation is not a part of the District adopted curriculum; rather, such matters are best addressed within individual family homes, churches, or community organizations. Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student led discussions.”

In a Complaint from the Southern Poverty Law Center (SPLC) representing several students, the SPLC notes that the policies act “as a gag policy that prevents school officials from complying with their legal obligations to keep safe students like Plaintiffs who are perceived as LGBT or gender non-conforming. This gag policy requires District officials to enforce anti-harassment policies in the case of anti-LGBT bullying differently from other types of bullying. Teachers have understood the [policy] as inhibiting them from aggressively responding to anti-gay harassment, inside or outside the classroom. The gag policy also prohibits school staff from countering anti-gay stereotypes or presenting basic factual information about LGBT people, even when necessary to address anti-gay hostility within the student body. For example, pursuant to District guidance, the [policy] prohibits staff from even mentioning the fact that it is the position of the American Psychological Association that being gay is not a choice— a position that is the consensus of all major accredited and professional mental health organizations. The [policy] severely limits or outright bars any discussion by school officials of issues related to LGBT people in or out of the classroom, a limitation
that is not placed on any other category of persons.”

The SPLC raises Equal Protection, Title IX and Minnesota Human Rights Act arguments. The full Complaint is available here.

There are also free speech arguments. Do you think SPLC should have emphasized the ways in which Anoka-Hennepin’s policies infringe on the free speech rights of teachers?

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The Ministerial Exception, Amicus Brief

Caroline Mala Corbin, our terrific guest blogger, and Leslie C. Griffin are drafting an amicus brief on behalf of law professors in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case up for argument before the Supreme Court.  It concerns the ministerial exception, a judicially created doctrine which grants religious organization immunity from anti-discrimination suits brought by their “ministerial” employees.  (Corbin has an excellent series of posts on the exception at CoOp).  They are seeking law professors to join them on the brief.  After the jump is a general summary of the facts and their argument. Read More