Sekulow & Zimmerman on Jews for Jesus, 25 years later

Jay Alan Sekulow and Erik M. Zimmerman (both from American Center for Law and Justice) have posted Reflections on Jews for Jesus: Twenty-five Years Later. The abstract follows.

This Article marks the twenty-fifth anniversary of the Supreme Court’s decision in Board of Airport Commissioners v. Jews for Jesus, Inc. The Court held, in a unanimous decision, that LAX Resolution No. 13787 declaring that Los Angeles International Airport’s  central terminal area “is not open for First Amendment activities by any individual and/or entity”—which airport officials interpreted to allow “airport-related” expression and forbid other expression, such as religious leafleting—violated the Free Speech Clause of the First Amendment. More broadly, Jews for Jesus contributed to the fight to provide equal footing for religious speech in the free speech arena, a development that has become all the more important since the Supreme Court abandoned the application of strict scrutiny in free exercise cases in 1990.

This Article discusses the Jews for Jesus litigation and the Supreme Court decision’s impact on First Amendment jurisprudence. Part I provides legal background for the case, discussing various Supreme Court cases decided before Jews for Jesus that addressed restrictions on leafleting or assembly, laws that provided government officials with unfettered discretion, or claims of a free speech right to access various types of public property for expressive activities. Part II discusses the Jews for Jesus litigation, from the enactment of the Resolution to the issuance of the Supreme Court’s decision. Part III discusses the impact and continued legal relevance of Jews for Jesus. Part IV describes the effect of Jews for Jesus over the past twenty-five years from a legal, practical, and personal perspective, as well as the developments in the law of religious speech since the 1987 decision.

Clark on What Legal Teachers Can Learn From Preachers

Sherman J. Clark (U. of Mich. Law School) has posted To Teach and Persuade. The abstract follows.

Legal speech and religious speech inevitably do some of the same work. Both are vehicles through which we both talk about and become the kind of people we are. Granted, those of us who teach and argue about the law do not often conceive of our work in this way. That is part of what I hope to begin to remedy in this essay. While the construction of character is a more obvious aspect of religious than legal thought, law, including legal argument, can be constitutive in similar ways. If so–if our ways of talking about the law serve some of the same ends as do our ways of talking about religion–then we may be able to learn how better to talk about the law by thinking about how we talk about religion. I do not mean things like paragraph structure or argument organization or the proper use of headings, but rather something more subtle and more fundamental. One way to put it is this: legal speech can learn from religious speech how to be less small, and perhaps more ennobling.
More specifically, those of us who speak and teach about the law may be able to learn from religious ways of speaking and preaching how better to Continue reading

Hill on Religious Speech

Jessie Hill (Case Western Reserve University School of Law) has posted (Dis)Owning Religious Speech. The abstract follows.

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality.

The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as its own speech a facially religious monument of the Ten Commandments. The second, Salazar v. Buono, which dealt with an establishment clause challenge to a Latin cross in the middle of the Mojave Desert National Preserve, was resolved primarily on the basis of the literal ownership of the religious speech at issue in the case. What both cases have in common is a claim, on one side, that the government has improperly and unconstitutionally excluded one religious group, both literally and metaphorically, and a response, on the other side, that is formulated in the language of ownership, property, and sovereignty.

This Article explores the possible causes and implications of the Court’s recent embrace of property concepts and property rhetoric. It argues that the Court has turned to the language and even the law of property partly as a way of avoiding knotty First Amendment questions. But the rhetoric of property functions on another level, as well. Property rhetoric legitimates and naturalizes the acts of exclusion and subordination inherent in the Court’s decisions. It also gives the appearance of a concrete stake held by some in the religious majority – and a material loss that is incurred – when dominant religious symbols are removed. Ultimately, this article concludes that, for all their flaws, the endorsement test and public forum doctrine, which the Court appears to have temporarily marginalized, are superior approaches to the problem of public displays of religious symbolism.

Volokh on Austrian Freedom of Expression—Are Austria’s Restrictions Legitimate?

Recently, Professor Volokh criticized an Austrian ruling that affirmed a criminal conviction for “denigrating religious beliefs.”  Professor Movsesian then discussed  Professor Volokh’s criticism here at CLR.

Elisabeth Sabaditsch-Wolff

The Austrian ruling is virtually unthinkable in the United States, where we enjoy broad freedom of expression.  (The defendant is Elisabeth Sabaditsch-Wolff, an outspoken “anti-jihad” Austrian activist who, among other causes, also opposes what she understands to be the treatment of women under Islam.)  But, in a nation with Austria’s Second World War history, criminalizing such expression may not, as Professor Volokh asserts, be an instance of the “disappoint[ing] . . . intoleran[ce] of condemnation of religion” by “a European democracy such as Austria.”  Rather, it may be an appropriate way to remedy a truly reprehensible period in Austrian history.

Americans nurtured on grade-school civics may find prosecuting someone for “denigrating” a religious belief very difficult to accept; however, Austria’s social tapestry, which includes some of the worst atrocities of WWII, is not readily comparable to America’s constitutional framework and historical experience.  As Americans, we frequently pride ourselves for allowing—protecting, even—very ugly speech.  That is to say, as a constitutional ideal, the great weight we accord freedom of expression outweighs any abhorrence we might feel toward the belief expressed.  So that, as a legal matter, mere expression is rarely punishable (exceptions, such as those for obscenity and incitement, or, on the civil side, defamation, are judicially disfavored and strictly curtailed).  But our ability to maintain this moral and legal regard for free expression on religious matters may be a result of the deviating historical experiences that make our and Austria’s socio-criminal needs so different.  For more elaboration, please follow the jump. Continue reading

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