Category: First Amendment


UCLA Law Review Vol. 58, Issue 4 (April 2011)

Volume 58, Issue 4 (April 2011)


Digital Exhaustion Aaron Perzanowski & Jason Schultz 889
Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law Craig Robert Senn 947
Awakening the Press Clause Sonja R. West 1025


Still Fair After All These Years? How Claim Preclusion and Issue Preclusion Should Be Modified in Cases of Copyright’s Fair Use Doctrine Karen L. Jones 1071
Patenting Everything Under the Sun: Invoking the First Amendment to Limit the Use of Gene Patents Krysta Kauble 1123

Rethinking Sorrell v. IMS Health: Privacy as a First Amendment Value

The Supreme Court will soon hear oral arguments in Sorrell v. IMS Health. The case pits medical data giant IMS Health (and some other plaintiffs) against the state of Vermont, which restricted the distribution of certain “physician-identified” medical data if the doctors who generated the data failed to affirmatively permit its distribution.* I have contributed to an amicus brief submitted on behalf of the New England Journal of Medicine regarding the case, and I agree with the views expressed by brief co-author David Orentlicher in his excellent article Prescription Data Mining and the Protection of Patients’ Interests. I think he, Sean Flynn, and Kevin Outterson have, in various venues, made a compelling case for Vermont’s restrictions. But I think it is easy to “miss the forest for the trees” in this complex case, and want to make some points below about its stakes.**

Privacy Promotes Freedom of Expression

Privacy has repeatedly been subordinated to other, competing values. Priscilla Regan chronicles how efficiency has trumped privacy in U.S. legislative contexts. In campaign finance and citizen petition cases, democracy has trumped the right of donors and signers to keep their identities secret. Numerous tech law commentators chronicle a tension between privacy and innovation. And now Sorrell is billed as a case pitting privacy against the First Amendment.
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Chemerinsky & Sample: Judicial Elections Are Different

I’ve often despaired about the state of election financing in the US. But it is good to see some stalwart reformers, like Ciara Torres-Spelliscy, advance creative proposals for improvement. The New York Times features another compelling proposal from Erwin Chemerinsky and James J. Sample, focusing on judicial elections. Analyzing recent debacles like the Massey intervention in the West Virginia Supreme Court election, they conclude that the legal system must “focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.” Some of their key points include:

[C]orporate and union officials must [now] engage in a perverse guessing game: they want to spend enough to get their candidate for the bench elected, but not so much as to require the judge’s disqualification if the campaign is successful. . . . [A] study of 29 campaigns in the 10 costliest judicial election states over the last decade revealed the extraordinary comparative power of “super spenders” in court races.

Rigorous recusal rules are an important step, but merely disqualifying a judge on occasion is insufficient. The most obvious solution is to limit spending in judicial races. States with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected. States should restrict contributions and expenditures in judicial races to preserve impartiality. Such restrictions are the only way to balance the right to spend to get candidates elected, and the due process right to fair trials.

Chemerinsky and Sample expertly highlight a conflict between First and Fifth Amendment rights. In Sheppard v. Maxwell, the Supreme Court suggested that the right to a fair trial can limit some rights of the press. It should also set some limits on the advocacy of moneyed speakers who aspire to undue influence in the halls of justice.


The Ministerial Exception Part III

In my previous blogs, I explained the basics of this judicially-created doctrine, and argued that the ministerial exception can’t really be justified by either the Free Exercise or the Establishment Clause. The main Establishment Clause justification for the ministerial exception is the fear that in adjudicating discrimination claims, courts will become entangled with theological questions or endorse one religious vision over another. In this last post, I want to argue that application of the ministerial exception can entangle a court in religious doctrine more than application of anti-discrimination law.

For the ministerial exception to apply, the plaintiff in a discrimination suit must be a “ministerial” employee. Who counts as a ministerial employee? That is the question before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: is a teacher at a religious school who mostly teaches secular subjects but also leads students in prayer and teaches a religion class a ministerial employee? Courts do not simply defer to a religious organization’s characterization of a position, as it could insist that all its employees were ministers. Instead, courts have taken a functional approach, looking at the main duties of the employee, and essentially asking whether plaintiff’s job “is important to the spiritual and pastoral mission of the church.”

In order to decide whether a position is “important to the spiritual and pastoral mission of the church,” however, a court might have to delve into the religious beliefs of a particular religion. In ruling that a church’s music director was a minister, for example, the Fourth Circuit analyzed the religious significance of music. The plaintiff argued that she was not a ministerial employee because she merely taught people to sing and perform music. The court disagreed, noting that “music serves a unique function in worship” and concluding that the music director’s job was “an integral part of Catholic worship and belief.” In reaching this determination, the court did exactly what the Establishment Clause forbids: choose between competing religious visions. In the plaintiff’s vision of the Roman Catholic faith, music’s significance did not rise to the level of ministry, such that teaching it made her a minister. In the defendant’s vision, it did. The court essentially resolved a religious dispute about the role of music. Hosanna-Tabor potentially presents a similar risk. In determining whether Perich is a minister or not, the Supreme Court may end up resolving a religious dispute about the role of school teachers in Evangelical Lutheran Church schools.

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Ministerial Exception Part II

In my previous blog on the ministerial exception, I explained the basics of this judicially-created exception. In this blog, I take a more partisan view, and argue that the religion clauses do not justify the ministerial exception. To the extent that church-clergy relations are protected, they should be protected under the freedom of association guaranteed by the Free Speech Clause.

Does the Free Exercise Clause require the ministerial exception?

The simple answer is: not after Employment Division v. Smith. Employment Division v. Smith held that as long as a law is neutral and generally applicable, it does not violate the Free Exercise Clause even if it imposes a substantial burden on religion. Smith itself upheld a law that made illegal a religious sacrament. Since few would dispute that anti-discrimination laws such as the Americans with Disabilities Act are both neutral and generally applicable, Smith should defeat any free exercise justification.

Nonetheless, lower courts have uniformly argued that Smith only applies to individual free exercise claims and not institutional free exercise claims. The arguments for this distinction are not persuasive, and they can be understood as the lower courts’ attempt to limit the impact of the unpopular Smith decision. For example, courts cite to a line of Supreme Court cases addressing church property disputes as precedent for church autonomy. Yet they overlook the Supreme Court’s most recent church property case, Jones v. Wolf, which actually applies a “neutral principles of law” approach more in line with Smith than the older cases that deferred to church hierarchies.

Doesn’t the potential entanglement with religion mean the Establishment Clause requires the ministerial exception?

The Establishment Clause may be violated if a court were to independently evaluate a minister’s spiritual or theological qualifications. For example, the court would act beyond its competence if it were to hold that a church was wrong to fire a choir director for her choice of music because the music chosen was in fact perfectly suitable for Sunday services. However, it is a mistake to assume that resolving anti-discrimination cases will lead courts to substitute their judgment for that of the religious institution on spiritual and theological matters. To start, many discrimination suits do not present any religious questions. In addition, this fear overlooks a substantial body of anti-discrimination law that ensures that courts assess only matters well within their competence. In other words, when evaluating a claim that a professor was wrongfully denied tenure, courts will consider objective data, but they will not second-guess the employer about subjective professional qualifications.

Take the retaliation claim at issue in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In terminating Cheryl Perich, Hosanna-Tabor cited issues related to her health and its disability leave policy. No mention was made of any spiritual shortcomings. Therefore, as the Sixth Circuit concluded: “a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich.”

Are churches never immune from anti-discrimination suits?

Even though the religion clauses may not justify the ministerial exception, the freedom of association might shield religious organizations from some anti-discrimination claims brought by ministers. Proponents of the ministerial exception argue that religious organizations must be able to freely select their ministers and religious leaders. The freedom of association protects that choice: especially after Boy Scouts of American v. Dale, the freedom of association protects the right of all associations, religious and nonreligious, to choose leaders who will properly represent and convey the association’s message, even if it means violating anti-discrimination law. In Dale, the Supreme Court allowed the Boy Scouts to discriminate on the basis of sexual orientation on the grounds that gay Scoutmasters would undermine the Boy Scouts’ anti-homosexuality message.

At the same time, Dale makes clear that an association seeking immunity from a discrimination claim must have a message that would in some way be impaired by compliance with that anti-discrimination law. Thus, a church may assert immunity from a minister’s discrimination suit only if it first argues that its religious tenets require that discrimination. Religious organizations whose beliefs are consistent with anti-discrimination law cannot complain that compliance interferes with their expression. Unless Tabor-Hosanna argues that a disabled minister will undermine its religious message, Perich should be able to sue the religious school for violating the American with Disabilities Act.


Corbin on The Ministerial Exception, Part I

Professor Caroline Mala Corbin has kindly agreed to shed light on the ministerial exception raised by an upcoming Supreme Court case.  She brings significant expertise to the issue: see her excellent Fordham Law Review article Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law.  Her insights will appear in three parts; the first appears below.  Our readers know Professor Corbin from her enlightening guest visit, and we are grateful to her for sharing her thoughts with us.

Earlier this week, the Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case involving the ministerial exception (also known as the ministerial exemption).   In this blog, I thought I would answer some basic questions about the ministerial exemption.  In later blogs, I want to suggest that the religion clauses don’t really justify it, and that furthermore, application of the ministerial exception can cause more Establishment Clause problems than resolution of a discrimination claim.

What is the ministerial exception?

The ministerial exception is a judicially-created doctrine that grants religious employers immunity from discrimination claims brought by their ministers.  While anti-discrimination laws like Title VII and the Americans with Disabilities Act allow religious employers to discriminate on the basis of religion in employment decisions, these statutes make it illegal for religious employers to discriminate on the basis of race, sex (Title VII), or disability (ADA).  In other words, under these statutes, a Lutheran school may refuse to hire someone because she is not Lutheran, but it cannot refuse to hire her because of her disability.

Lower courts, however, have held that it would violate the religion clauses to allow ministers to sue their religious employers, and therefore created the “ministerial exception” to antidiscrimination laws.  Notably, the ministerial exception applies regardless of whether or not the alleged discrimination was religiously motivated.  As a result, a minister cannot sue for race, sex, or disability discrimination even if her employers’ own religious tenets forbid discrimination on these grounds.

When does it apply?

The ministerial exception does not preclude all employees of religious organizations from bring employment discrimination claims, only employees who are considered “ministers.”   “Ministers” are not limited to ordained clergy.  Instead, the courts have taken a functional approach to determining who counts as a minister. If an employee’s “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered clergy.” Under this test, courts have found that school principals, schoolteachers, music teachers, choir directors and press secretaries, among others, are ministers.

The plaintiff in Hosanna-Tabor Evangelical Church and School v. EEOC was a teacher at a religious school who brought an ADA retaliation claim. At issue in the case is whether she should be considered a minister or not.  While she spent most of her day teaching secular subjects, including math, language arts, social studies, science, gym, art, and music, she also taught a religious class and led her class in daily prayers.

What justifies the ministerial exception?

Courts have variously identified the Free Exercise Clause, the Establishment Clause, church autonomy or the religion clauses together as necessitating the ministerial exception.  In deciding EEOC v. Hosanna-Tabor Evangelical Church and School, for example, the Sixth Circuit wrote that “the ministerial exception is rooted in the First Amendment’s guarantees of religious freedom.” Read More


Hellman on Confusing Restrictions with Incentives in McComish v. Bennett

My colleague Deborah Hellman has kindly offered to share her thoughts on McComish v. Bennett.  Our CoOp readers will remember our all-star symposium on Hellman’s important work Money Talks But It Isn’t Speech.  Here is her post:

Imagine you are an advisor to Presidential candidate Sarah Palin in the next election.  As you think about what she should say and when, you will no doubt consider the Tina Fey factor.  How will Fey respond?  Will a Fey sketch of Palin be too damaging?  Fey’s impersonation of Palin could even cause Palin to self-censor or even speak less.  Can we therefore conclude that Fey restricts Palin’s speech?  Of course Fey herself has a right to speak, so Palin has no grounds to complain but still the claim that Fey is restricting Palin’s speech is patently ridiculous.   But that is essentially the argument made by the Petitioners in McComish v. Bennett, the Arizona matching funds case argued yesterday in the Supreme Court.  The Petitioners argued that the Arizona law at issue unconstitutionally restricts the speech of candidates who do not avail themselves of public financing because, for example, “Arizona Taxpayers (one of the PACs challenging the law) chose not to speak in opposition to a publicly financed candidate to avoid triggering matching funds to that candidate.” Surely it isn’t enough that the law creates incentives for the petitioners not to spend money and speak, otherwise there would be a good argument for the claim that Fey’s comedy restricts Palin’s speech, and there is not!

Consider another example: suppose that the Arizona legislature, alarmed by high rates of childhood obesity in the state, adopts the following policy.  If snack foods are advertised during children’s programming, money is allocated to run ads for comparable amounts of time touting the delicious taste of fruit.  Could the snack food makers complain that their speech is restricted because this policy causes them to make strategic decisions about whether to advertise during children’s programs?

Of course, commercial speech is not political speech, but that’s beside the point.  The speech of snack food makers isn’t abridged by the fact that their decision about whether to speak is influenced by other speech.

The mistake of the petitioners in McComish is to focus on the effect that the law produces (chilling their speech) rather than the means by which this effect is produced.  Chilling speech through sanctions is problematic; chilling speech by more speech is not. Read More

Energy & Transparency

I have earlier blogged on troubling practices of secrecy among US energy giants. But it appears that what is going on in Japan may be worse:

In a newly released diplomatic cable obtained by WikiLeaks, politician Taro Kono, a high-profile member of Japan’s lower house, tells US diplomats that the Ministry of Economy, Trade and Industry – the Japanese government department responsible for nuclear energy – has been “covering up nuclear accidents and obscuring the true costs and problems associated with the nuclear industry”.

In 2008, Kono told them: “The ministries were trapped in their policies, as officials inherited policies from people more senior to them, which they could then not challenge.” He mentioned the dangers of natural disasters in the context of nuclear waste disposal, citing Japan’s “extensive seismic activity, and abundant groundwater, and [he] questioned if there really was a safe place to store nuclear waste in the ‘land of volcanoes’.”

There are conflicting reports about the level of danger involved, especially given the MOX fuel.

In terms of “lessons learned,” I have little to say about the relative danger of nuclear vs. other forms of fuel, other than the usual points about the necessity of conservation. But the story of Kono means we should newly value both whistleblowers and dissenting voices in government. Unfortunately, official Washington is abandoning both in important ways.

Vaidhyanathan’s Googlization: A Must-Read on Where “Knowing” is Going

Google’s been in the news a lot the past month. Concerned about the quality of their search results, they’re imposing new penalties on “content farms” and certain firms, including JC Penney and Accusations are flying fast and furious; the “antichrist of Silicon Valley” has flatly told the Googlers to “stop cheating.”

As the debate heats up and accelerates in internet time, it’s a pleasure to turn to Siva Vaidhyanathan’s The Googlization of Everything, a carefully considered take on the company composed over the past five years. After this week is over, no one is going to really care whether Google properly punished JC Penney for scheming its way to the top non-paid search slot for “grommet top curtains.” But our culture will be influenced in ways large and small by Google’s years of dominance, whatever happens in coming years. I don’t have time to write a full review now, but I do want to highlight some key concepts in Googlization, since they will have lasting relevance for studies of technology, law, and media for years to come.


Dan Solove helped shift the privacy conversation from “Orwell to Kafka” in a number of works over the past decade. Other scholars of surveillance have first used, and then criticized, the concept of the “Panopticon” as a master metaphor for the conformity-inducing pressures of ubiquitous monitoring. Vaidhyanathan observes that monitoring is now so ubiquitous, most people have given up trying to conform. As he observes,

[T]he forces at work in Europe, North America, and much of the rest of the world are the opposite of a Panopticon: they involve not the subjection of the individual to the gaze of a single, centralized authority, but the surveillance of the individual, potentially by all, always by many. We have a “cryptopticon” (for lack of a better word). Unlike Bentham’s prisoners, we don’t know all the ways in which we are being watched or profiled—we simply know that we are. And we don’t regulate our behavior under the gaze of surveillance: instead, we don’t seem to care.

Of course, that final “we” is a bit overinclusive, for as Vaidhyanathan later shows in a wonderful section on the diverging cultural responses to Google Street View, there are bastions of resistance to the technology:
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For the Love of Hate: Why We Have Little to Fear from the Westboro Baptist Church

The “marketplace of ideas” conception of free speech is deeply flawed, not least because it unjustifiably presumes a level playing field and equal access. It also gives rise to the notion that there is no harm in giving false ideas free run because the truth will win out in the end. This myth was debunked by none other than John Stuart Mill, often credited as the father of the marketplace model of free speech: “[T]he dictum that truth always triumphs over persecution is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces, but which all experience refutes. History teems with instances of truth put down by persecution.”

However, as the saying goes, even a stopped clock is right twice a day.  The naive – often disingenuously so – belief that “the true and sound will survive” while “the false and unsound will be vanquished” is occasionally vindicated, as it is in the case of the Westboro Baptist Church. The Church may have “won” in Snyder v. Phelps, but in a much more important sense, it has lost as spectacularly as any hateful group in recent history. One is hard pressed to find a group more universally hated across the ideological spectrum than the Westboro Baptist Church. Vocal critics of the Church include Bill O’Reilly, Sarah Palin, Michael Moore, and Jon Stewart. Numerous Christian organizations have condemned Westboro, as has the Ku Klux Klan (that’s right – the Ku Klux Klan finds Westboro’s practices too extreme). As of today, none of Westboro’s charmingly-named sites (,,, etc.) is accessible online, thanks to the efforts of either the hacking collective Anonymous or a self-proclaimed adversary of Anonymous who calls himself The Jester. Anonymous is currently under investigation for attacking MasterCard and Amazon on behalf of Wikileaks; The Jester claims responsibility for the cyber attack on Wikileaks last November. In other words, perhaps the most extraordinary thing about the Westboro Baptist Church is its ability to serve as a common target for groups who passionately disagree with and even hate each other.

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