Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

“The Four Freedoms” (ed. Engel)

This month, the Oxford University Press releases “The Four Freedoms: Franklin D. Roosevelt and the Evolution of an American Idea,” edited by Jeffrey A. Engel (Southern Methodist University).  The publisher’s description follows:

The specter of global war loomed large in President Franklin Roosevelt’s mind as he prepared to present his 1941 State of the Union9780199376216 address. He believed the United States had a role to play in the battle against Nazi and fascist aggression already underway in Europe, yet his rallying cry to the nation was about more than just national security or why Americans should care about a fight still far overseas. He instead identified how Americans defined themselves as a people, with words that resonated and defined the parameters of American politics and foreign policy for generations. Roosevelt framed America’s role in the conflict, and ultimately its role in forging the post-war world to come, as a fight for freedom. Four freedoms, to be exact: freedom of speech, freedom from want, freedom of religion, and freedom from fear.

In this new look at one of the most influential presidential addresses ever delivered, historian Jeffrey A. Engel joins together with five other leading scholars to explore how each of Roosevelt’s freedoms evolved over time, for Americans and for the wider world. They examine the ways in which the word “freedom” has been used by Americans and others, across decades and the political spectrum. However, they are careful to note that acceptance of the freedoms has been far from universal — even within the United States. Freedom from want, especially, has provoked clashes between those in favor of an expanded welfare state and proponents of limited government from the 1940s to the present day.

In this sweeping look at the way American conceptions of freedom have evolved over time,The Four Freedoms brings to light a new portrait of who Americans were in 1941 and who they have become today in their own eyes-and in the eyes of the entire world.

Inazu on the Idea of the Public Forum

John Inazu has posted a very thoughtful and interesting piece, The First Amendment’s Public Forum. The abstract and some rapid reactions to the piece follow:

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.

This piece continues and amplifies on John’s important work on the freedom of assembly. I have often wondered (and I suspect John may also wonder) whether the increasing muscularity of speech doctrine–verging, in my own view, on what might reasonably called absolutism–has contributed (or is contributing) to the weakening of the other freedoms guaranteed by the First Amendment. One need not hold Robert Bork’s view of the speech clause to suspect that this is happening. One can see the phenomenon with respect to the religion clauses–for example, in the claim that corporations cannot “exercise” religion because corporations cannot “believe” anything, or have no “consciences” (that very claim about corporations was rejected by the Court as to speech itself, though Justice John Paul Stevens as well as most of the rest of the legal academy are still up in arms about it). John’s own relational account of the freedom of assembly emphasizes the value of congregation and consociation–of the act of gathering together for a social purpose–which is rather a distinct good than whatever speech concerns are at issue. One might add that the value of place–of having a place, and perhaps even (and more controversially?) of knowing one’s place–are important First Amendment considerations.

Horwitz, “First Amendment Institutions”

This November, Harvard University Press will publish First Amendment Institutions by Paul Horwitz (University of Alabama School of Law). The publisher’s description follows.

Addressing a host of hot-button issues, from the barring of Christian student groups and military recruiters from law schools and universities to churches’ immunity from civil rights legislation in hiring and firing ministers, Paul Horwitz proposes a radical reformation of First Amendment law. Arguing that rigidly doctrinal approaches can’t account for messy, real-world situations, he suggests that the courts loosen their reins and let those institutions with a stake in First Amendment freedoms do more of the work of enforcing them. Continue reading

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