Articles

The First Amendment’s Public Forum, 55 WM. & MARY L. REV. (forthcoming 2015)

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy.  The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations.  Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society.  The resulting mosaic is neither thematic nor tidy, but it is in at least one sense, beautiful: the deductions, like the city park, enact the aspirations of a democratic polity.  Organizations and ideas wither or thrive not by government fiat but based on the “values and choices of private givers.”

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a limited public forum.   Between these poles lie numerous other governmental arrangements with similar purposes and functions: sidewalks, parking lots, public schools, websites, public libraries, vanity license plates, and student activity funds, to name a few.  In each of these cases, private groups and individuals rely on government resources (financial or otherwise) to inculcate and express their ideas and their ways of life.  The ideal of the public forum represents one of the most important aspects of a healthy democracy.  It signifies a willingness to tolerate dissent, discomfort, and even instability.  The distortion of that ideal represents one of the greatest challenges to First Amendment jurisprudence today.  That distortion is partially attributable to two important doctrinal developments.  The first is increased judicial reliance on purportedly “content-neutral” time, place, and manner restrictions.   The second is the relationship between the public forum and the evolving government speech doctrine, under which the government characterizes messages advanced under the auspices of its financial and other resources as distinctively its own and not subject to First Amendment review.   This essay suggests that one factor facilitating these developments is a gradual but unmistakable shift in the moorings of the public forum doctrine from the Assembly Clause to the Speech Clause.  The public forum is a First Amendment doctrine, not a free speech doctrine.  And we will only comprehend its purposes and its possibilities when we rediscover the values underlying the rights of the First Amendment.

 

Re-Assembling Labor, 2015 ILL. L. REV. (forthcoming 2015) (with Marion Crain)

Organized labor’s judicial, political, and public image is often associated with violence and anarchy.  These descriptions are not spun out of whole cloth: violent uprisings that challenged the political and economic order were common in the early days of American labor unionism.  But the assumptions underlying early judicial rhetoric and labor law doctrine have outlived their original context.  Historical antecedents applied to modern protests like Fast Food Forward, OUR Walmart and the Occupy Movement yield troubling and inconsistent results.  Courts struggle to characterize protest activities by workers acting collectively as either “pure speech” protected by the First Amendment or coercive conduct subject to significant regulation.

Although these tensions have not gone unnoticed, scholarly commentary to date has overlooked the important connection between the collective, group-based nature of labor activism and the First Amendment’s assembly-based protections for relational as well as individual expressive activity.  We seek to draw the lessons of assembly squarely into contemporary labor law—to re-assemble labor law around the theory and doctrine of assembly that formed its early core.  We begin in Parts I and II by situating the historical relationship between labor and assembly. Part III develops three theoretical insights reinforced by the connections between assembly and labor.  First, the experience of collective expression represents more than simply an aggregation of individual voices; expressive activities constitute the group’s very identity. Second, groups are not one-dimensional but have many functions, purposes and messages, which are developed and negotiated through collective expression.  Third, expression depends on the context in which it unfolds, and current doctrine too easily obscures that context, with significant ramifications for both public perception and group efficacy.  Part IV applies the theoretical insights discussed in Part III to labor law, demonstrating how the gains of assembly might facilitate a richer understanding of labor unionism and its connections to the rest of our First Amendment jurisprudence.  We focus particularly upon doctrine relating to picketing, secondary boycotts, and other forms of concerted activity and collective expression. 

 

More is More: Strengthening Free Exercise, Speech, and Association, 99 MINN. L. REV. (forthcoming 2014)

Prominent scholars have suggested that one important means of strengthening the First Amendment is by limiting its protections to “core” interests.  Philip Hamburger has asserted the argument most forcefully.  His generalized worry is that expanding the coverage of First Amendment rights shifts absolute protection of a defined core to contingent “balancing” for all claims asserted under those rights.  In the context of religious liberty, he contends that “[t]he expansion of the First Amendment’s right of free exercise has undermined its core.”  In Hamburger’s words, “more is less.”  We can think of these cautions as arguments for rights confinement.  On this view, legal doctrine will be most resilient to cultural pressures when it is construed narrowly.  But the interplay between doctrine and cultural views suggests that rights confinement is an unproven, and indeed, unprovable, theory. Sometimes rights expansion will increase rights protection.  Sometimes “more is more.” The free speech right provides the clearest illustration, and the modern right of association may prove to be another example.

This Article explores the choice between rights expansion and rights confinement, and the influence of cultural views on that choice.  It focuses on the First Amendment rights of free exercise, speech, and association. Part I describes the preference for rights confinement in First Amendment scholarship.  Part II critiques one particular argument against rights expansion: Philip Hamburger’s “more is less” claim in the free exercise context.  I suggest that although Hamburger correctly diagnoses a weakening of the free exercise right, he fails to establish rights expansion as its cause.  Parts III and IV offer an alternative explanation for the weakening of the free exercise right: shifting cultural views about religious liberty and the government interests with which it intersects.  Part V discusses why these views may play differently for rights expansion of the rights of speech and association.  Part VI considers the implications of this argument for a current constitutional challenge: private, noncommercial groups that resist antidiscrimination norms.

 

The Four Freedoms and the Future of Religious Liberty, 92 N.C. L. REV. 101 (2014)

The First Amendment’s rights of speech, press, religion, and assembly were once “interwoven” but distinct.  Together, these freedoms advanced a pluralist skepticism of state orthodoxy that protected religious and other forms of liberty.  The connections among these rights were evident at the Framing.  They were also prominent during the 1930s and 1940s, when legal and political rhetoric recognized the “preferred position” of the “Four Freedoms.”  We have lost sight of the Four Freedoms, supplanting their unified distinctiveness with an undifferentiated free speech framework driven by unsatisfying concepts like content neutrality and public forum analysis.  It did not have to be this way, and it may not be too late to change course.  This Article seeks to renew the pluralist emphasis once represented by the Four Freedoms.

The consequences of losing the pluralist vision are nowhere more evident than in the diminishing constitutional protections for religious groups, which are paradigmatic of the expressive, dissenting, and culture-forming groups of civil society.  The Four Freedoms remind us that the boundaries of religious liberty have never rested solely in the First Amendment’s free exercise clause—religious liberty is best strengthened by ensuring robust protections of more general forms of liberty.  But the normative effort to reclaim pluralism is not without costs, and it confronts powerful objections from antidiscrimination norms pertaining to race, gender, and sexual orientation—objections that cannot go unanswered.

 

The Freedom of the Church (New Revised Standard Version), 21 J. CONTEMP. LEGAL ISSUES 335 (2013)

Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.”

The existing debate over the freedom of the church obscures these insights in two ways. First, its back-and-forth nature suggests that translation succeeds or fails on the level of individual arguments. Second, its current focus on a mostly Catholic argument neglects other theological voices. The kind of cultural views that affect constitutional doctrine are less linear and more textured than the existing debates suggest. This paper adds to the discussion a Protestant account of the freedom of the church: the New Revised Standard Version. Part I briefly sketches the process of translation that any theological concept encounters in the path to constitutional doctrine. Part II summarizes the current debate in legal scholarship about the freedom of the church. Part III introduces the New Revised Standard Version through three prominent twentieth-century theologians: Karl Barth, Dietrich Bonhoeffer, and Stanley Hauerwas. Part IV assesses the possibility of translation, and Part V warns of the theological limits to translating certain theological concepts. The New Revised Standard Version reinforces some of the normative claims underlying the Catholic story, but it does so through a Protestant lens that is somewhat more familiar to American political thought. It also differs from the Catholic account in two important ways: (1) by characterizing the church as a witnessing body rather than as a separate sovereign; and (2) by highlighting the church’s freedom in a post-Christian polity.

 

Virtual Assembly, 98 CORNELL L. REV. 1093 (2013)

This Article provides one of the first scholarly considerations of the constitutional boundaries for online groups. It explores both why and how we should protect these groups by asking two related questions. The first question is theoretical: do online groups implicate the kinds of values that warrant elevated constitutional protection. The second question is doctrinal: what is the best framework for providing constitutional protection to these groups.

The Article argues that we should protect online groups because they advance important First Amendment values and because the line between our offline and our online groups is collapsing. Turning to the doctrinal question, the Article draws from both historical sources and analogies to free speech doctrine to show that the First Amendment’s right of assembly is capacious enough to protect online groups. The Article concludes with some tentative applications of virtual assembly to legal controversies: an online forum that excludes on the basis of gender, a state law that prohibits private Facebook communications between teachers and students, an online church that expels dissident members, and an online dating service that makes only opposite-sex matches.

Virtual Assembly makes four contributions to emerging scholarship at the nexus of constitutional law, cyberlaw, sociology, and political theory. First, it demonstrates the normative and prudential reasons for protecting online groups. Second, it shows how expression includes the acts of exclusion, embrace, expulsion, and establishment (an observation that calls into question the Supreme Court’s category of “expressive association”). Third, it explains how the right of assembly applies in online contexts. Finally, it introduces the concept of nested groups — online groups that exist within other structural frameworks, such as Facebook and Internet service providers.

 

Justice Ginsburg and Religious Liberty, 63 HASTINGS L.J. 1213 (2012)

Justice Ginsburg has left an important mark on many areas of the Supreme Court’s jurisprudence, but she has written relatively little in the area of religion. This relatively small footprint increased significantly in the opinion that she wrote in the Court’s 2010 decision in Christian Legal Society v. Martinez. In particular, Martinez’s dismissal of the religious association claim at the center of the case dealt a severe blow to religious liberty advocates who have struggled to find alternate means of protecting religious expression in the twenty years since the Court’s decision in Employment Division v. Smith (which relegated to rational basis review free exercise challenges to generally applicable, neutral laws).

This essay examines three strands of Justice Ginsburg’s jurisprudence leading up to the opinion that she authored in Martinez: religion, government funding of expression, and equality. It first traces Justice Ginsburg’s religious liberty views through four facets of her legal career: her role as an advocate, her opinions on the D.C. Circuit, her Supreme Court nomination testimony, and her opinions and votes on the Supreme Court. It turns next to her views about government funding of expression, relying principally upon her dissent in DKT Memorial Fund v. AID. It then examines Justice Ginsburg’s longstanding commitment to principles of liberal equality. Finally, it considers the interplay of these three strands in Martinez, and offers three observations. First, because Martinez pitted religious liberty against liberal equality, it forced Justice Ginsburg to make a choice that prioritized one over the other and may have caused her to overlook some of the religious dimensions of the case. Second, Justice Ginsburg’s previous views about government funding of speech should have caused her greater concern over the implications of unconstitutional conditions in this case. Third, Martinez ultimately failed to address the values clash directly, relying instead on doctrinal intricacies that detracted from the core issues raised in this case.

 

Stanley Hauerwas and the Law: Is There Anything to Say?, 75 LAW & CONTEMP. PROBS. i (2012)

This essay is the special editor’s introduction to a forthcoming symposium in Law & Contemporary Problems that explores the work of theologian Stanley Hauerwas and its implications for law and legal scholarship. Although not well-known in the legal academy, Hauerwas is an important scholar and public intellectual who has written scores of books and hundreds of articles, been named “America’s Best Theologian” by Time Magazine, and delivered the prestigious Gifford Lectures. He has arguably “articulated the most coherent and influential political theology in and for the North American context” and has been “at the forefront of major transformations in theology” including virtue ethics, the role of narrative and community, and understandings of medicine and illness. The inattention to Hauerwas in legal scholarship is particularly odd given that he has written for decades about issues central to the law: violence, liberalism, bioethics, theories of disability, theories of interpretation, capital punishment, just war theory, reconciliation, public reason, patriotism, euthanasia, abortion, and religious freedom, to name only a few of the more obvious connections. And the general lack of familiarity with Hauerwas by legal scholars (even among many of those who write in the area of “law and religion”) has contributed to a growing divide. As Princeton’s Jeffrey Stout has observed, “[t]he more thoroughly Rawlsian our law schools and ethics centers become, the more radically Hauerwasian the theological schools become.”

This introductory essay is aimed at an audience largely unfamiliar with Hauerwas’s thought. It situates the symposium essays and suggests why legal scholars ought to pay greater attention to his work. Symposium contributors include Michael Moreland, Lisa Schiltz, James Logan, Brad Wendel, David Skeel, Cathy Kaveny, Charlton Copeland, John Inazu, Steve Macedo, and Stephen Carter. The Law & Contemporary Problems volume will also include a transcribed dialogue between Stanley Hauerwas and Jeff Powell (from a recent conference at Duke that brought together the symposium contributors), and Hauerwas’s written response to the symposium essays.

 

The Limits of Integrity, 75 LAW & CONTEMP. PROBS. 181 (2012)

This article draws upon the work of theologian Stanley Hauerwas to demonstrate how Ronald Dworkin’s theory of law as integrity relies upon secular liberal presuppositions. Dworkin’s constraint on “religious convictions or goals” not only inhibits theological argument in our discussions about law and legal interpretation, but also neutralizes what may be the strongest objections to Dworkin’s normative views. The juxtaposition of Hauerwas and Dworkin is particularly apt because both hold similar interpretive commitments that hang in the balance between a fixed textualism and an unbounded pragmatism. Both justify their epistemic practices by a kind of faith — they do not and cannot know what comes next in their interpretive traditions.

Part I sketches Dworkin’s interpretive theory, and Part II notes its limitations. Part III introduces Hauerwas’s views on interpretation and suggests commonalities between Dworkin and Hauerwas. Parts IV and V illustrate the exclusionary effects of Dworkin’s premises on Hauerwas’s arguments by comparing the ways in which both thinkers approach the abortion controversy. Hauerwas’s arguments show that Dworkin has either imported his own normative commitments into his interpretive premises or failed to distinguish law as integrity from the constraints of public reason. Put differently, either Law’s Empire or Life’s Dominion has overreached. Dworkin hasn’t told us which it is, but Hauerwas shows us why the question cannot go unanswered.

 

The Unsettling ‘Well-Settled’ Law of Freedom of Association, 43 CONN. L. REV. 149 (2010)

This article brings historical, theoretical, and doctrinal critiques to bear upon the current framework for the constitutional right of association. It argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. Intimate association and expressive association are indefensible categories, but they matter deeply. They matter to the Jaycees. They matter to the Chi Iota Colony of the Alpha Epsilon Pi fraternity, a now defunct Jewish social group at the College of Staten Island that had sought to limit its membership to men. They matter to the Christian Legal Society at Hastings Law School, a student group denied official recognition because of its desire to limit its membership to Christians who adhered to its moral code (which included a prohibition on homosexual conduct). Each of these groups sought to maintain an unpopular composition and message in the face of antidiscrimination laws. Each was denied associational protections. Each was forced to change its composition—and therefore its message. Each no longer exists in the form it once held and desired to maintain.

The demise of associational protections is at least partially attributable to the Roberts categories of intimate and expressive association. These categories set in place a framework in which courts sidestep the hard work of weighing the constitutional values that shape the law that binds us. This article exposes the problems inherent in these categories and calls for a meaningful constitutional inquiry into laws impinging upon associational freedom. It suggests that the Court eliminate the categories of intimate and expressive association and turn instead to the right of assembly, which emphasizes the centrality of dissent to associational freedom.

 

The Forgotten Freedom of Assembly, 84 TUL. L. REV. 565 (2010)

The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women’s suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called ‘the right of the people peaceably to assemble’ part of ‘the Constitutional substitute for revolution’. In 1939, the popular press heralded it as one of the ‘four freedoms’ at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the ‘basic liberties’. But in the past thirty years, assembly has been reduced to a historical footnote in American law and political theory. Why has assembly so utterly disappeared from our democratic fabric? This article explores the history of the freedom of assembly and what we may have lost in losing sight of that history.

 

The Strange Origins of the Constitutional Right of Association, 77 TENN. L. REV. 485 (2010)

Although much has been written about the freedom of association and its ongoing importance to the American experiment, much recent scholarship mistakenly relies on a truncated history that begins with Roberts v. United States Jaycees, 468 U.S. 609 (1984), the case that divided constitutional association into intimate and expressive components and introduced the paradigm that continues today. Roberts’s doctrinal framework has been rightly criticized. But neither the right of association nor all of its doctrinal problems start with Roberts. The Court’s foray into the constitutional right of association began a generation earlier, in its 1958 decision,NAACP v. Alabama. This article offers a new look at the Court’s initial approach to the right of association. I highlight three factors that influenced the shaping of association: (1) the conflation of rampant anti-communist sentiment with the rise of the civil rights movement (a political factor); (2) infighting on the Court over the proper way to ground the right of association in the Constitution and the relationship between association and assembly (a jurisprudential factor); and (3) the pluralist political theory of mid-twentieth century liberalism that emphasized the importance of consensus, balance, and stability (a theoretical factor). I suggest how these factors shaped a right of association with an ambiguous constitutional anchor and an ill-defined doctrinal framework. Despite its shortcomings, the right of association quickly took hold in legal and political discourse and handed the Court a resource that has arguably become more responsive to political pressure than constitutional principle. Part of that whimsicality stems from the Court’s reformulation of the right of association in Roberts. But Roberts cannot bear all of the blame. If today’s freedom of association is less than we might like it to be, the roots of its problems may lie in the political, jurisprudential, and theoretical factors present at its inception.

 


Making Sense of Schaumburg: Seeking Coherence in First Amendment Charitable Solicitation Law, 92 MARQ. L. REV. 551 (2009)

I focus on the trilogy of cases in the 1980s in which the Supreme Court shaped its approach to charitable solicitation: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Munson(1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear rationale for the value of charitable solicitation and lower courts without a workable test for evaluating regulations affecting this form of speech: the Eighth and Tenth Circuits interpretSchaumburg as an intermediate scrutiny test, the Third and Eleventh Circuits view it as a strict scrutiny test, and the Fourth Circuit has simply noted that the Court has been “unclear” about the appropriate standard. After examining the Court’s approach to charitable solicitation, I propose a new test that incorporates current notions of content analysis and tiered scrutiny and better accounts for the speaker-based interests tied to charitable solicitation. My normative approach adopts a “civic conception of free speech” that is cognizant of the matters of public concern advanced both directly and indirectly through charitable solicitation. I conclude that a balancing of interests offers a more appropriate review of charitable solicitation regulation than the cumbersome formulations arising out of the Schaumburg trilogy.

 

No Future Without (Personal) Forgiveness: Reexamining the Role of Forgiveness in Transitional Justice, 10 HUM. RTS. REV. 309 (2009)

I explore the political possibilities of personal forgiveness in transitional justice. Personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. The victim forgives only that harm which has been done to him or her. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, it is my three-fold contention that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including legal forgiveness), while not without a normative function, cannot effectuate either personal or political forgiveness; and (3) personal forgiveness requires a shared narrative framework to lead to political forgiveness. These assertions lead to two further observations. First, because the state has a normative role in its (limited) capacity to forgive on its own behalf and a practical role in its ability to spread and transmit a shared narrative framework, the state is an important actor in political forgiveness. Second, because the primary historical example of political forgiveness in transitional justice is the South African Truth and Reconciliation Commission that unfolded within an explicitly Christian theological framework, it may be that the shared narrative framework need be religious or even Christian in nature.