Lakier on Freedom of Speech beyond the First Amendment

Genevieve Lakier, University of Chicago Law School, has posted The Non-First Amendment Law of Freedom of Speech, which is forthcoming in volume 134 of the Harvard Law Review:

The First Amendment dominates popular and scholarly debate about freedom of speech in the United States. Yet it is not the only legal instrument that protects expressive freedom, the rights of the institutional press, or the democratic values that these rights facilitate. A rich body of local, state, and federal laws also does so, and does so in ways the First Amendment does not. This Article explores the history, and the present-day operation of what it calls the non-First Amendment law of freedom of speech. Doing so changes our understanding of both the past and the present of the American free speech tradition. It reveals that the nineteenth century was not a period in which there was little legal protection for freedom of speech, as scholars have long assumed. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires than the we commonly assume. Recognizing as much is important not only as a descriptive matter but as a doctrinal one. This is because in few other areas of constitutional law does the Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished. Missing from the Court’s understanding of freedom of speech is almost any recognition of the important non-constitutional mechanisms that legislators have traditionally used to promote it. The result is a deeply inconsistent body of First Amendment law that relies on a false view of both our regulatory present, and our regulatory past — and, as a result, is able to proclaim a commitment to laissez faire principles that, in reality, it has never been able to sustain.

--Dan Ernst

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A Symposium on Sullivan's "Church State Corporation"

The symposium Secularism, religion, and the public sphere has recently concluded over at The Immanent Frame, the blog of the Social Science Research Council.  It is devoted to Church State Corporation: Construing Religion in US Law (University of Chicago Press, 2020), by Winnifred Fallers Sullivan, Indian University-Bloomington.

First, here is the publisher’s copy and TOC for Professor Sullivan’s book:

Church and state: a simple phrase that reflects one of the most famous and fraught relationships in the history of the United States. But what exactly is “the church,” and how is it understood in US law today? In Church State Corporation, religion and law scholar Winnifred Fallers Sullivan uncovers the deeply ambiguous and often unacknowledged ways in which Christian theology remains alive and at work in the American legal imagination.

Through readings of the opinions of the US Supreme Court and other legal texts, Sullivan shows how “the church” as a religious collective is granted special privilege in US law. In-depth analyses of Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby reveal that the law tends to honor the religious rights of the group—whether in the form of a church, as in Hosanna-Tabor, or in corporate form, as in Hobby Lobby—over the rights of the individual, offering corporate religious entities an autonomy denied to their respective members. In discussing the various communities that construct the “church-shaped space” in American law, Sullivan also delves into disputes over church property, the legal exploitation of the black church in the criminal justice system, and the recent case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. Brimming with insight, Church State Corporation provocatively challenges our most basic beliefs about the ties between religion and law in ostensibly secular democracies.

Here’s the TOC:

Introduction. The Definite Article
Chapter 1. The Church Makes an Appearance: Hosanna-Tabor v. EEOC
Chapter 2. “The Mother of Religion”: The Church Property Cases
Chapter 3. Hobby Lobby: The Church, the State, and the Corporation
Chapter 4. The Body of Christ in Blackface
Conclusion. The Church-in-law Otherwise
 
And here is the SSRC symposium:

Introduction:  Mona Oraby (Amherst)
Leora Batnitzky (Princeton):  An American Political Theology?
Samuel Moyn (Yale): Jurisdictions of the Church
Nandini Chatterjee (Univ. of Exeter):  Imagining Community
Linda Greenhouse (Yale and the New York Times):  Why Not Just Abolish the Religion Clauses?
Julian Rivers (Univ. of Bristol Law): "... by law established": A transatlantic dialogue

--Dan Ernst.  H/t: FK

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Bowie on the Constitutional Right to Self-Government

 Nikolas Bowie, Harvard Law School, has posted The Constitutional Right of Local Self-Government, which is forthcoming in the Yale Law Journal:

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the Assembly Clause has been described even by its advocates as “forgotten,” a “historical footnote in American political theory and law.” The clause protects “the right of the people peaceably to assemble” — a phrase the Supreme Court has interpreted only once over the past fifty years despite issuing hundreds of opinions interpreting its First Amendment siblings. From the moment it was included in the proposed federal bill of rights, observers have questioned who would bother turning to the Assembly Clause for assistance given the First Amendment’s other protections of free expression.

This paper offers a surprising answer: local governments. After describing the historical context in which the “right to assemble” was first expressed, it argues that the right could be interpreted not as a narrow right of self-expression but rather as a broad right of self-government.

In the decade preceding the American Revolution, advocates of “the right to assemble” used the phrase in response to attempts by royal and parliamentary officials to subordinate their town meetings and colonial legislatures — or, in the language of the day, to subordinate their local and general “assemblies.” This subordination came in various forms: Parliament passed laws disempowering New York’s general assembly until it enacted certain legislation; Parliament censured and then banned town meetings in Massachusetts from debating international affairs; and governors up and down the continent dissolved, changed the location of, and otherwise coerced general and local assemblies into repealing legislation they regarded as seditious. In response, town officials and colonial representatives complained that all local governments have the inherent right to consult their constituents and seek a redress of their grievances, whether by enacting laws with their constituents’ consent or by petitioning other governments for their assistance. For example, in response to Parliament’s ban on town meetings in Massachusetts, a convention of town representatives resolved that “every people have an absolute right of meeting together to consult upon common grievances, and to petition, remonstrate, and use every legal method for their removal.” A representative of Pennsylvania’s general assembly proposed that the Continental Congress resolve “[t]hat for Redress of all Grievances, and for the amending, strengthening, and preserving of the Laws, Assemblies ought to be held in each of these Colonies frequently . . . . And, that every Dissolution of an Assembly within these Colonies . . . has been arbitrary, and oppressive.” Perhaps unsurprisingly, two of the first three states to adopt assembly clauses in their state constitutions were Pennsylvania in 1776 and Massachusetts in 1780.

The historical context of the assembly clause’s origins suggest that the clause has been interpreted far too narrowly. Once the clause is understood as protecting not only the informal expressions of conventions, marches, and gatherings but also the formal decisions of local governments, the state and federal assembly clauses look like an important, “forgotten" limit on one government’s power to subordinate another.

--Dan Ernst

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