Category: First Amendment


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


Off-Campus Cyberbullying and the First Amendment

The U.S. Court of Appeals for the Fourth Circuit recently upheld a school’s discipline of a student for engaging in off-campus cyberbullying of another student.  In Kowalski v. Berkeley County Schools, — F.3d — (4th Cir. July 27, 2011), a student (Kara Kowalski) created a MySpace profile called “S.A.S.H.,” which she said was short for “Students Against Sluts Herpes.” Another student, however, claimed it really stood for “Students Against Shay’s Herpes,” referring to a student named Shay N.  Kowalski invited about 100 people to join the page, and about 24 people joined. Students posted comments and images making fun of Shay N.  One student posted a picture of Shay N. and put “red red dots on Shay N.’s face to simulate herpes and added a sign near her pelvic region, that read, ‘Warning: Enter at your own risk.’ In the second photograph, he captioned Shay N.’s face with a sign that read, ‘portrait of a whore.'”

After a complaint by Shay N. and an investigation, school officials determined that Kowalski created a “hate website” that violated school policy.  Kowalski was suspended for 5 days and received a “socail suspension” for 90 days, unable to participate in various social events at the school.

Kowalski sued, claiming that the discipline violated her free speech rights under the First Amendment to the U.S. Constitution.

Under the “substantial disruption” test, as defined by the U.S. Supreme Court in Tinker v. Des Moines School District, 393 U.S. 503 (1969), the school must demonstrate “facts which might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities.”

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When We Say “Stop Cyberbullying,” What Are Our Goals?

Being laid up for a week with a nasty tonsil infection gave me the opportunity to catch up on some Sunday NY Times crosswords (Side Note: I refuse to accept that we’re now spelling the word “epilogue” as “epilog,” Mr. Will Shortz), some nerdy SciFi television and some law review articles on cyberharassment. Many esteemed colleagues, not to mention countless law students, are writing about this or related topics in some way. There is indeed much to talk about. But, what does not get as much play are the assumptions upon which much of the results-oriented scholarship is based.

The face-to-face and online harassment of young people, of any sexual orientation, of any gender, of any race, of any socio-economic status, is a bad thing. For the moment, let us put aside those who cling to the antiquated “this is all part of growing up” meme and assume that we all think harassing, attacking and emotionally abusing young people is bad. But, when we are asked to evaluate potential ameliorative responses — harsh punishments, tolerance education, increasing the role of government and a host of other possibilities — it is not enough to simply assume that a problem exists. In order to compare one response against another, we must first engage in a discussion about the values we’re trying to protect over and above solving the problem.

For example, let us assume for the moment that cyberharassment raises only two issues: the speech rights of harassers and the speech rights of victims. If we have to factor into any solution concerns about these stakeholders’ free speech, must we weigh them equally? No. But, then how do we weigh them? Does it matter whose rights? Sure. Those mean harassing kids don’t deserve their rights, only victims do. But, we all know what that kind of reasoning implies. Does it matter that in our example both the perpetrators and victims are students? Do minors even have speech rights (ask Justice Thomas for a resounding “Pfft. Surely you jest!“).

Do we have an adequate basis for finding an answer other than our own personal prejudices? I think we do, but our Internet speech law misses the mark. The legislative history of Section 230 of the Communications Decency Act (the immunity clause) and judicial opinions in cases like Reno v. ACLU, Ashcroft v. ACLU and Zeran v. AmericaOnline suggest that we determine what to value based on our vision of the Internet user as a modern day “pamphleteer” who can reach out “to a world-wide audience,” and do so “anonymous[ly].” A person like that in an environment like that would value individual autonomy and autonomy-based free speech values more than anything else, devaluing other First Amendment values. That vision of the Internet user and his online experience, however, is simply incorrect. Anonymity as a technical matter does not really exist and social networking platforms like Facebook are making anonymity a thing of the past. And, being a pamphleteer that can reach anyone is a little difficult when all content goes through and can be arranged and censored by intermediaries. This Internet user with this online experience would not only be concerned with individual autonomy above all other things. He would be concerned with his reputation, which can be irreparably damaged by online defamation and misbehavior. And, he would be concerned with getting his voice out there, especially since he is completely dependent upon third parties for access.