Recent Articles of Interest

From SSRN:

• Marc Spindelman, Stirrings of a Conservative Christian Rule of Law [in Alliance for Hippocratic Medicine v. FDA,  (The American Prospect (May 29, 2023)).
• Lucia Ann Silecchia, Property and Moral Responsibilities: Some Reflections on Modern Catholic Social Theory, (Texas A&M University Journal of Property Law, Vol. 9, Pp. 733-56, 2023).
• Adan Zulfiqar, Human Rights Norms from Below, (Yale Journal of International Law, Vol. 48, No. 1, 2023).
• J. Alex Touchet & Bradley J, Lingo, Failure to Accommodate: Assessing the Legacy of Trans World Airlines v. Hardison on Working-Class People of Faith, (George Mason Law Review Forum (Forthcoming)).
• Ajay Kumar, Two Different But Same Perspectives On Constitutional Morality, ((2022 Winter) ILI Law Review 258-275).
• Michael L. Smith, Idaho's Law of Constitutional Interpretation: Lessons from Planned Parenthood Great Northwest v. State, (Idaho Law Review, Vol. 59, Forthcoming).
• Linda C. McClain & James E. Fleming, Ordered Liberty after Dobbs, (Journal of the American Academy of Matrimonial Lawyers 623 (2023)).
• Qaz Irfan, Riba in Shariah, (May 14, 2023).

From SSRN (Articles & Book Introductions by John Witte, Emory Center for Study of Law & Religion);

• John Witte, The Protestant Reformation of Constitutionalism, (in Nicholas Aroney and Ian Leigh, eds., Christianity and Constitutionalism (Oxford: Oxford University Press, 2022), 126-48).
• John Witte, “Foreword” to Festschrift for Michael J. Perry,  (Emory Law Journal 71 (2022): i-iv).
• John Witte, “Foreword,” to Franciszek Longchamps de Bérier and Rafael Domingo, eds., Law and Christianity in Poland: The Legacy of the Great Jurists, (London: Routledge, 2022), ix-xii ).
• John Witte, Religious Freedom in Religious Education, (Advance (Fall, 2022), 1-10).
• John Witte, “Foreword,” to Zachary Calo, Joshua Neoh and Keith Thompson, eds.,Christianity, Ethics, and the Law: The Concept of Love in Christian Legal Thought,, (London: Routledge, 2023), xi-xiii).
• John Witte, “We Must Obey God Rather Than Men”: Lutheran Resistance Against Pope and Emperor in the Reformation Era, (in David Gides, ed., Uncivil Disobedience: Theological Perspectives (Minneapolis: Lexington Books, 2023), 75-92).
• John Witte, Introduction to In Defense of the Marital Family (Leiden: Brill, 2023), 1-5).
• John Witte, Biblical Foundations of Human Rights and Liberties, (Jahrbuch für biblische Theologie (with Eric Wang) , CSLR Research Paper No. __ Forthcoming).
• John Witte & Rafael Domingo Osle, Preface to Oxford Handbook on Christianity and Law, (Oxford: Oxford University Press, forthcoming).
• John Witte & Mathias Schmoeckel, Christianity and Procedural Law,  (in John Witte, Jr. and Rafael Domingo, eds., Oxford Handbook on Christianity and Law (Oxford: Oxford University Press, forthcoming)).

From SmartCILP:

• Philip A. Miscimarra, NLRA Coverage—The Search for Answers: Student Assistants, Religious Universities, Charter Schools, and Independent Contractors, 36 ABA Journal of Labor & Employment Law 25-74 (2022).
• Henry Amorosa, Paula Alexander Becker & Evan Weiss, A Social Contract: The Doctrine of Unconscionability and Its Relation to Social Progress, 28 Cardozo Journal of Equal Rights & Social Justice 51-78 (2021).
• R. George Wright, Free Speech and Antisemitism: Collin v. Smith Today, 20 First Amendment Law Review (2022).
• John M. Breen & Lee J. Strang, A Light Unseen: The History of Catholic Legal Education in the United States: A Response to Our Colleagues and Critics, 59 Journal of Catholic Legal Studies 1-50 (2020).
• David. A Dailge & Daniel V. Goff, Beyond Lawyer Assistance Programs: Applying the United States Marine Corps' Concepts and Principles of Spiritual Fitness as a Means towards Increasing the Health, Resiliency and Well-Being of Lawyers—While Restoring the Soul of the Profession, 59 Journal of Catholic Legal Studies 51-92 (2020).

Recent Articles of Interest

 From SSRN:

• Nicole Stelle Garnett, Religious Charter Schools: Legally Permissible? Constitutionally Required?, (Manhattan Institute Policy Report (December 2020)).
• Stijn Smet, Toleration and the Law, (AOV of chapter published in Mitja Sardoč (ed), The Palgrave Handbook of Toleration (Palgrave Macmillan, 2021)).
• Ram Rivlin, The Morality of “Get-Threats”: Withholding Divorce as Extortion, (I·CON - International Journal of Constitutional Law 18(3) 849–869 (2020)).
• Andrew R. DeLoach, What's the Use of Religious Freedom?,  (Journal of Christian Legal Thought, Vol. 10, No. 2 (2020).
• Barbara P. Billauer, Fundamentalism in Roman Catholic Diocese v. Cuomo: The Court’s Farrago of Religious Freedom, Public Health Law, and Scientific (Il)Literacy, (February 17, 2021).
• Christopher C. Lund, Sex Offenders and the Free Exercise of Religion, (Notre Dame Law Review, Vol. 96, p. 1025, 2021).
• Mark D. Martin, Bradley J. Lingo & Michael Schietzelt, A Center Dedicated to Preserving a Constitution Designed for a Moral and Religious People, (Regent University Law Review, Vol. 33, No. 1, p. 1 (2020)).
• Abigail Burman, Abortion Sanctuary Cities: A Local Response to The Criminalization of Self-Managed Abortion, (California Law Review, Vol. 108, No. 6, 2020).
• Kyle Velte, Mitigating the 'LGBT Disconnect': Title IX’s Protection of Transgender Students, Birth Certificate Correction Statutes, and the Transformative Potential of Connecting the Two, (American University Journal of Gender, Social Policy & the Law, Vol. 27, No. 29, 2019).

From SSRN (Non-U.S. Law):

• Hannibal Travis, Ethnic Cleansing and Genocidal Intent: Conceptualizing Destruction of Local Populations, (Global Studies Law Review, Vol. 19, No. 4).
• Virginia Beard, Demanding Democracy and Rejecting Autocracy in Africa: The Role of Religion and Regime Experience,  (February 5, 2021).
• Abdullahi Abdulquadir, An Examination of the Methods of Revenue Generation by Kwara State Internal Revenue Service (KWIRS) from Islamic Law Perspective, (August 14, 2019).
• Md Tasnimul Hassan, Is India Demonizing Muslims in the Name of Freedom of Speech and Expression?, (November 12, 2020).

From SmartCILP:

• Symposium on Catholic Legal Education, Journal of Catholic Legal Studies, Vol. 58, No. 1.
• Maja Munivrana Vajda, The Right to Mock, Ridicule and Criticize Religion—Exploring the Limits of Free Speech in a Democratic and Just Society, 55 Gonzaga Law Review 273-290 (2019-2020).
• Rodrigo Cespedes, A Comparative Case Law Analysis of Religious Speech, Academic Freedom, and Religious Institutions' Autonomy on a Global Scale, 55 Gonzaga Law Review 291-308 (2019-2020).
• Laura De Pasqual, Freedom of Religion in a Multicultural Europe: The Achbita and Bougnaoui Cases, 55 Gonzaga Law Review 309-330 (2019-2020).
• Charles Adside III, It's a Blowhorn, Not a Dog-Whistle: How President Trump's Travel Ban Orders, Not His Statements, Are Enough to Establish a Violation under the Religion Clauses, 47 Hastings Constitutional Law Quarterly 267-302 (2020).
• Gilad Abiri, Divisiveness, National Narratives, and the Establishment Clause, 40 Pace Law Review 399-457 (2019).
• Joseph J. Martins, Losing Liberty: A Biblical Defense for the Freedom of Speech on Campus, 32 Regent University Law Review 345-386 (2019-2020).

6th Circuit: Bus Ad Ban Is Unconstituitonal

In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation (SMART), (6th Cir., Oct. 23, 2020), the U.S. 6th Circuit Court of Appeals held unconstitutional a Detroit public transit authority's rejections of an ad aimed at Muslims considering leaving Islam. The ad read:

Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com.

The ads were rejected under rules banning political ads and ads that hold up a group of people to scorn or ridicule.  The court said in part:

SMART’s ban on “political” ads is unreasonable for the same reason that a state’s ban on “political” apparel at polling places is unreasonable: SMART offers no “sensible basis for distinguishing what may come in from what must stay out.” Mansky, 138 S. Ct. at 1888. Likewise, SMART’s ban on ads that engage in “scorn or ridicule” is not viewpoint neutral for the same reason that a ban on trademarks that disparage people is not viewpoint neutral: For any group, “an applicant may [display] a positive or benign [ad] but not a derogatory one.” Matal v. Tam, 137 S. Ct. 1744.

Courthouse News Service reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Supreme Court Denies Cert In Challenge To Bus Ad Restrictions

The U.S. Supreme Court today denied review in American Freedom Defense Initiative v. Washington Metropolitan Transit Authority, (Docket No. 18-1000, certiorari denied 6/3/2019) (Order List).  In the case, the D.C. Circuit Court of Appeals remanded  a challenge to WMATA's guidelines on advertising that may be displayed on buses and in rail stations.  At issue is the constitutionality of a ban on "advertisements intended to influence members of the public regarding an issue on which there are varying opinions." AFDI wanted to rent space to display ads that decry supposed Sharia adherent Islamists who want to enforce Islamic blasphemy laws in the United States. (See prior posting.)

DC Circuit Remands Suit On Anti-Sharia Bus Ads

In American Freedom Defense Initiative v. Washington Metropolitan Area Transit Authority, (DC Cir., Aug. 17, 2018), the D.C. Circuit Court of Appeals remanded for further development of an argument based on a intervening Supreme Court decision a challenge to WMATA's guidelines on advertising that may be displayed on buses and in rail stations.  At issue is the constitutionality of a ban on "advertisements intended to influence members of the public regarding an issue on which there are varying opinions." AFDI wanted to rent space to display ads that

make the point that the First Amendment will not yield to Sharia adherent Islamists who want to enforce so-called blasphemy laws here in the United States, whether through threats of violence or through the actions of complicit government officials. 

In a 2-1 decision, the majority held that WMATA did not engage in viewpoint discrimination in rejecting the ad. However, the U.S. Supreme Court's June 2018 decision in Minnesota Voters Alliance v. Mansky , according to the majority, raised an additional issue that the parties should have the opportunity to brief:

whether the discretion vested in a government official to permit or prohibit speech is “guided by objective, workable standards.” Mansky, 138 S. Ct. at 1891.... We must determine whether Guideline 9 is so broad as to provide WMATA with no meaningful constraint upon its exercise of the power to squelch.....

The parties’ briefs predate the decision in Mansky. Yet Mansky invites arguments about whether Guideline 9 is capable of reasoned application.

Judge Henderson dissented, arguing that the suit should be dismissed on mootness grounds. WTOP reports on the decision.

Advocacy Groups Say Military Is Imposing Religious Participation On Cadets

The Freedom From Religion Foundation and American Atheists announced this week that they have sent a joint letter (full text) to Secretary of Defense James Mattis complaining about an increased incidence of military members and their families being forced to participate in religious observances at military training facilities. The letter says in part:

By scheduling prayer in graduation ceremonies, and by leading cadets in prayer prior to examinations, our military training facilities are violating the Establishment Clause of the First Amendment. By assigning menial or labor-intensive tasks to cadets who elect not to participate in worship services, these facilities are violating the equal protection principles enshrined in the Due Process Clause of the Fifth Amendment.

Friendly Atheist Blog reports on the letter.

Recent Articles of Interest

From SSRN:

• Andrew Koppelman, If Liberals Knew Themselves Better, Conservatives Might Like Them Better, (20 Lewis & Clark L. Rev. 1201 (2017))
• Graham Polando, Restraining Free Exercise: Protection Orders and Church Attendance, (February 5, 2017).
• B. Jessie Hill, Kingdom Without End? The Inevitable Expansion of Religious Sovereignty Claims, (Lewis & Clark Law Review, Vol. 20, 2017).
• Robin Fretwell Wilson, Unpacking the Relationship between Conscience and Access, (Forthcoming, Law, Religion, and Health in the United States, Holly Fernandez Lynch, I. Glenn Cohen, Elizabeth Sepper, eds. Cambridge U. Press 2017).
• Sahar F. Aziz, Losing the 'War of Ideas': A Critique of Countering Violent Extremism Programs, (Texas International Law Journal, Forthcoming).
• Christian Turner, Submarine Statutes, (February 8, 2017).
• Mary Anne Case, Forms of Patriarchy in Amoris Laetitia and in the Papacy of Francis, (U of Chicago, Public Law Working Paper No. 613 (2017)).
• Claudia E. Haupt, Antidiscrimination in the Legal Profession and the First Amendment: A Partial Defense of Model Rule 8.4(g), (19 University of Pennsylvania Journal of Constitutional Law Online (2017 Forthcoming)).
• Gertrude N. Levine & Samuel J. Levine, Internet Ethics, American Law, and Jewish Law: A Comparative Overview (21 J. Tech. L. & Pol’y 37 (2016)).

From SSRN (Focus on individuals):

• Andrew Koppelman, Kent Greenawalt, Defender of the Faith, (Texas Law Review, Forthcoming).
• Michael John DeBoer, Justice Brent E. Dickson, State Constitutional Interpretation, and the Religion Provisions of the Indiana Constitution, (Indiana Law Review, Vol. 50, No. 1, 2016).

From SSRN (Non-U.S. Law):

• Shital Prakash Kharat, Effect of the Hindu Succession (Amendment) Act 2005 – Judicial Response, (February 6, 2017).
• Grant Robert Hooper, From the Magna Carta to Bentham to Modern Australian Judicial Review: Themes of Practicality and Spirituality, (Australian Institute of Administrative Law (AIAL) Forum, Vol. 84, pp. 22-44, 2016).

From SSRN (LGBT Rights):

• Reva Siegel, Same-Sex Marriage and Backlash: Consensus, Conflict, and Constitutional Culture, (February 9, 2017).
• Susan Frelich Appleton, Obergefell's Liberties: All in the Family, (Ohio State Law Journal, Vol. 77, No. 5, 2016).
• Malcolm Langford, Revisiting Joslin v. New Zealand: Same-Sex Marriage in Polarised Times, (E. Brems and E. Desmet, Integrated Human Rights in Practice: Rewriting Human Rights Decisions (Edward Elgar, 2017)).
• Katherine Pratt, The Tax Definition of 'Medical Care': A Critique of the Startling IRS Arguments in O'Donnabhain v. Commissioner, (23 Michigan Journal of Gender & Law 313 (2016)).
• Robin Fretwell Wilson, Squaring Faith and Sexuality: Religious Institutions and the Unique Challenge of Sports, (Law and Inequality: A Journal of Theory and Practice, Vol. 34, No. 385, 2016).
• Robin Fretwell Wilson, The Nonsense About Bathrooms: How Purported Concerns over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns, (Lewis & Clark Law Review, Vol. 20, No. 4, 2017).

From SmartCILP and elsewhere:

• Michael J. Churgin, Is Religion Different? Is There a Thumb on the Scale in Refugee Convention Appellate Court Adjudication in the United States? Some Preliminary Thoughts, [Abstract], 51 Texas International Law Journal 213-228 (2016).
• David L. Hudson, Jr. & Emily H. Harvey, Dissecting The Hybrid Rights Exception: Should It Be Expanded or Rejected?, [Abstract], 38 University of Arkansas Little Rock Law Review 449-475 (2016).
• Hon. Gail T. Kulick, Tadd M. Johnson, Rebecca St. George, & Emily Segar-Johnson, From Dysfunction and Polarization to Legislation: Native American Religious Freedom Rights and Minnesota Autopsy Law, 42 Mitchell Hamline Law Reveiw 1699-1721 (2016).
• Law, Religion and the Family Unit After Hobby Lobby: A Tribute to Professor Harry Krause, 2016 University of Illinois Law Review 1227-1808.
• Symposium: Law and Religion In an Increasingly Polarized America,(Lewis & Clark Law Review, Vo. 20, No. 4, 2017).
• Symposium on Religious Liberty and Christian Higher Education, (Two Kingdoms Network, Concordia University, 2017). The Symposium, among others, includes Howard M. Friedman, The Future of Religious Liberty.

Recent Articles of Interest

From SSRN:

• Benjamin Schonthal & Tom Ginsburg, Setting an Agenda for the Socio-Legal Study of Contemporary Buddhism (Introduction), (Asian Journal of Law and Society 3:1-16 (2016)).
• Levi Cooper, Culpability for Curses in Jewish Law and Mystical Lore, (Wizards vs. Muggles: Essays on Identity and the Harry Potter Universe, ed. Christopher E. Bell (Jefferson, NC: McFarland, 2016), 168-193).
• Netta Barak Corren, Beyond Dissent and Compliance, (Oxford Journal of Law and Religion, Forthcoming).
• Dimitry Gegenava, Some Technical and Legal Problems of the Constitutional Agreement, (Journal of Law, No. 1, 2016).
• Nelson Tebbe, Religious Freedom in an Egalitarian Age (Introduction), (N. Tebbe, Religious Freedom in an Egalitarian Age, Harvard University Press, 2017).
• Helge Årsheim, Religion and International Organizations, (In Ian Hurd, Ian Johnstone, and Jacob Katz Cogan (eds), The Oxford Handbook of International Organizations. Oxford: Oxford University Press, pp. 490-507 (2016)).
• Ioana Cismas, The Child's Best Interests and Religion: A Case Study of the Holy See's Best Interests Obligations and Clerical Child Sexual Abuse, (Elaine E. Sutherland and Lesley-Anne Barnes Macfarlane (eds.) Implementing Article 3 of the United Nations Convention on the Rights of the Child: Best Interests, Welfare and Well-Being (Cambridge University Press, 2016), pp. 310-325).
• Dipayan Chowdhury & Atmaja Tripathy, Recognizing the Right of the Third Gender to Marriage and Inheritance Under Hindu Personal Law in India, (Chowdhury D., Tripathy A. Recognizing the Right of the Third Gender to Marriage and Inheritance under Hindu Personal Law in India. BRICS Law Journal. 2016;3(3):43-60).
• Michael Boucai, Is Assisted Procreation an LGBT Right?, (Wisconsin Law Review, Vol. 2016, No. 6, 2016).
• Jud Campbell, Republicanism and Natural Rights at the Founding, (32 Constitutional Commentary 85 (2017)).
• Mohamed A. Arafa & Ahmed El-Ashry, Gender Equality in the Arab and Muslim World: Whither Post-Revolutionary Egypt?, (Gender Equality in a Global Perspective (Routledge Advances in Management and Business Studies, Chapter 3, London & New York, 2017)).

From SmartCILP and elsewhere:

• Justice Barbara A. Jackson, Called to Duty: Justice William J. Gaston, 94 North Carolina Law Review 2051-2096 (2016).
• Gregory A. Mark, Hobby Lobby and Corporate Personhood: Taking the U.S. Supreme Court's Reasoning at Face Value, 65 DePaul Law Review 535-558 (2016).
• Sukhsimranjit Singh, Religious Arbitration and Its Struggles with American Law & Judicial Review, 16 Pepperdine Dispute Resolution Law Journal 360-406 (2016).
• Dr. Isha Ann Emhoff, Ellen Fugate & Nir Eyal, Is There a Moral Right to Nonmedical Vaccine Exemption?, 42 American Journal of Law & Medicine 598-620 (2016).
• Lidiya Mishchenko, In Defense of Churches: Can the IRS Limit Tax Abuse by “Church” Impostors?, 84 George Washington Law Review 1361 (2016).

Suit Challenging Social Media Policing of Anti-Islamist Posts Is Dismissed

In American Freedom Defense Initiative v. Lynch, (D DC, Nov. 9, 2016), the DC. federal district court dismissed a suit against the federal government by two anti-Islamist organizations and their leaders, including well-known activist Pamela Geller.  The groups complain that Facebook, YouTube, and Twitter have repeatedly removed their postings.  They sue the U.S. Attorney General seeking a declaratory judgment that Sec. 230 of the Communications Decency Act is unconstitutional.  That section protects social media sites from liability for policing content to remove objectionable material.  Plaintiffs contend that if Sec. 230 were held unconstitutional, the sites would no longer censor their posts.  The court dismissed for lack of standing, holding that any impact of a declaratory judgment here is speculative, and at most would only indirectly affect the behavior of social media companies.

2016 Republican Platform on Religious Liberty

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the first in a series of posts that will focus on Platform provisions dealing with moral values and religious liberty. Note that the excerpt continues after the jump. Here is the Platform's lengthy section on Religious Liberty:

The Bill of Rights lists religious liberty, with its rights of conscience, as the first freedom to be protected. Religious freedom in the Bill of Rights protects the right of the people to practice their faith in their everyday lives. As George Washington taught, “religion and morality are indispensable supports” to a free society. Similarly, Thomas Jefferson declared that “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Ongoing attempts to compel individuals, businesses, and institutions of faith to transgress their beliefs are part of a misguided effort to undermine religion and drive it from the public square. As a result, many charitable religious institutions that have demonstrated great success in helping the needy have been barred from receiving government grants and contracts.

Anti-Islamic Group Sues Claiming Federal Law Shields Social Media Censorship

Yesterday the American Freedom Defense Initiative, its President Pamela Geller, its Vice President and the organization Jihad Watch sued the federal government contending that Section 230 of the Communications Decency Act shields Facebook, Twitter and YouTube when they censor anti-Islamic postings by plaintiffs.  The complaint (full text) in American Freedom Defense Initiative v. Lynch, (D DC, filed 7/13/2016), alleges that censorship and discrimination by social media outlets violate California anti-discrimination laws, but the CDA section on "Protection for 'Good Samaritan' blocking and screening of offensive material" allows Facebook, Twitter and YouTube to engage in discriminatory conduct. Among the allegations in the complaint against the social media sites are:

The discriminatory way in which Facebook applies its restrictions is evidenced by the fact that Facebook allows vicious posts and pages against Israel to stand, but when Plaintiff Geller and others expose the truth behind that Islamic hatred, the speech is prohibited.,,,

The Twitter policy, in effect, mirrors Islamic blasphemy standards as applied to censor speech critical of Islam, such as Plaintiffs’ speech.

The Center for Security Policy issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Cert. In Bus Ad Case; Thomas Dissents

Yesterday the U.S. Supreme Court denied certiorari in American Freedom Defense Initiative v. King County, Washington, (Docket No. 15-584, cert. denied 3/7/2016). However Justice Thomas wrote an 8-page dissent to the denial of cert.  Justice Alito joined the dissent. (Order List at pg. 59).  They urged the Court to use the case to resolve the split among Circuits on whether advertising space on public buses should be categorized for First Amendment purposes as designated public forums or limited public forums.  Transit authorities have greater control over content in limited public forums.  AFDI, the appellant in this case, has been involved in a number of the other cases raising the same issue, and some of its ads in other cases have been attacked as anti-Muslim. (See prior posting.)

Meanwhile Reuters reported yesterday:

Humorous ads for a documentary film that aims to promote understanding and tolerance of Muslims went up in New York subways on Monday after the movie's production company won a legal battle with the city's transit authority....

The advertisements debuted after a federal court in Manhattan ruled in October that being Muslim was a religious, not a political, identity. The Metropolitan Transportation Authority has a policy prohibiting political speech in ads on public transportation.

2nd Circuit: MTA Rule Change Makes Challenge To Rejection of Anti-Muslim Ad Moot

In American Freedom Defense Initiative v. Metropolitan Transit Authority, (2d Cir., March 3, 2016), the U.S. 2nd Circuit Court of Appeals upheld the dismissal on mootness grounds of a suit against the New York Metropolitan Transit Authority challenging the MTA's refusal to accept an anti-Islamic ad that a pro-Israel group wished to run on the back of MTA buses.  The ad which portrayed a menacing‐looking man with his face mostly covered by a head scarf included the quote:  "Killing Jews is Worship that draws us close to Allah." Then beneath the quote, the ad stated:  "That’s His Jihad.  What’s yours?"  While the case was pending, the MTA changed its property from a designated public forum
to a limited public forum and barred any ad that is "political in nature." (See prior related posting.) New York Post reports on the decision.

New York Subways Must Run Satiric Ads For Film Portraying Muslim Comedians

In Vaguely Qualified Productions LLC v. Metropolitan Transportation Authority, (SD NY, Oct. 7, 2015), a New York federal district court issued a preliminary injunction requiring the Metropolitan Transportation Authority to display plaintiff's advertising campaign for its film The Muslims Are Coming! in the New York City subway system. The film is the story of a group of American Muslim comedians who travel across the country performing stand-up comedy.  The advertising posters use comedic satire to attract the reader's attention and refer the reader to the film's website.  For example, one ad reads: "The Ugly Truth About Muslims: Muslims have great frittata recipes."

After initially accepting the ads, the MTA later refused them under a revised policy that barred ads which are political in nature.  The policy change came in response to a court order requiring the MTA to accept an anti-Muslim ad from the American Freedom Defense Initiative. (See prior posting.) In yesterday's decision, the district court held that VQP's proposed ads are commercial, and not political in nature:

...[T]o "prominently or predominately" advocate or express a political viewpoint, an advertisement must do far more than refer to a subject about which there is a lack of national consensus.

The court went on to hold that the MTA's determination that VQP's ads were political is not a viewpoint neutral decision:

To suggest, as the MTA's actions do, that an advertisement for the Republican presidential debate with photographs and quotes from candidates is somehow less "political" than humorous statements about the Muslim population's dislike of both terrorism and insufficient bagel schmear is, quite clearly, not viewpoint neutral.

Wall Street Journal reports on the decision. Muslim Advocates' press release on the decision also includes a link to the original complaint in the case.

Recent Articles of Interest

From SSRN:

• Thomas C. Berg, Agape, Gift, and Intellectual Property, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-19 (2015)).
• Russell Powell, Does Shari'a Play a Role in Turkey?, (Pepperdine Law Review, Vol. 41, No. Special Issue, 2014).
• Robin L. West, Hobby Lobby, Birth Control and Our Ongoing Cultural Wars: Pleasure and Desire in the Crossfires, (2015).
• Cheryl L. Daytec, Till the Judge Do Them Part: The Prospect of Absolute Divorce in the Philippines, (August 19, 2015).
• Shai Stern, When One's Right to Marry Makes Others 'Unmerry', (Albany Law Review, Forthcoming).
• Alan E. Garfield, And the Wall Comes Tumbling Down: How the Supreme Court Is Striking the Wrong Balance between Majority and Minority Rights in Church and State Cases, Arkansas Law Review, Forthcoming.
• Mark Rahdert, Exceptionalism Unbound: Appraising American Resistance to Foreign Law, (Catholic University Law Review, (Forthcoming)).
• Tessa McKeown, Hate Speech and Holocaust Denial: The Prohibition of False Historical Discourse in Modern Society, (2014).
• Kit Kinports, The Supreme Court's Quiet Expansion of the Qualified Immunity Defense, (Minnesota Law Review Headnotes, Forthcoming).
• Rebecca Eaton, The Legitimacy of Spectral Evidence During the Salem Witchcraft Trials, (2013).

From SmartCILP:

• Winston Bowman, A Civil Death: Mormon Disenfranchisement in the Inter-Mountain West, 27 Western Legal History 1-29 (2014).
• Inna Nam Brady, Religious Freedom in Kazakhstan: Facing the Kazakhstani Law on Religious Activities and Religious Associations, 1 Journal of Global Justice & Public Policy 227-246 (2015).
• Joshua Neoh, The Name of God On Trial: Narratives of Law, Religion and State in Malaysia, 18 Law Text Culture 198-220 (2014).
• Tilhamer Toth,, Is There a Vatican School for Competition Policy?, 46 Loyola University Chicago Law Journal 583-616 (2015).
• James M. Oleske, Jr., The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages, 50 Harvard Civil Rights-Civil Liberties Law Review 99-152 (2015).
• Sahar F Aziz, Coercive Assimilationism: The Perils of Muslim Women's Identity Performance in the Workplace, 20 Michigan Journal of  Race & Law 1-64 (2014). 

After Policy Change, Court Dissolves Injunction Forcing Carrying of Anti-Islam Bus Ads

As previously reported, in April a New York federal district court granted a preliminary injunction to a pro-Israel advocacy group requiring the New York Metropolitan Transit Authority to accept the group's anti-Islam ad for display on the back of New York City buses. The controversial ad declared that "killing Jews" draws Muslims closer to Allah. The MTA responded to the court order by changing its policy and barring all ads of a political nature.  Now in American Freedom Defense Initiative v. Metropolitan Transit Authority, (SD NY, June 19, 2015), the federal district court granted the MTA's motion to vacate the preliminary injunction, finding that the new policy has rendered the preliminary injunction moot.  The court said in part:

In this case, the only conduct that the Court previously enjoined as unconstitutional was the defendants’ exclusion of the Killing Jews ad under the “incitement of violence” standard.  The defendants are now only excluding the Killing Jews ad under the New Policy banning political ads, a policy they assert that they have no plans of revising.... Thus, the defendants have ceased the conduct that the Court identified as unconstitutional....

[I]t is likely that the MTA’s exclusion of all political ads has converted its advertising space from a designated public forum to a limited public forum or a nonpublic forum.

Raw Story reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Muhammad Drawing Exhibit In Texas Ends As 2 Gunmen Attempt Attack and Are Killed

In Garland, Texas Sunday night, a controversial Muhammad Art Exhibit and Contest sponsored by Pamela Geller's American Freedom Defense Initiative ended in violence as two gunmen opened fire outside the event venue, wounded a security guard, and were killed in return fire by police.  According to the Dallas Morning News, the guard who was shot was released from the hospital after being treated for a leg wound. The identities of the two gunmen had not yet been made public late Sunday. According to an earlier report by the Dallas Morning News, the Exhibit was booked at Garland's Curtis Cultural Center after the Center hosted Sound Vision Foundation’s Stand With the Prophet in Honor and Respect event.  The contest offered a top prize of $10,000 for the best drawing, and received around 350 entries. (Depicting Muhammad is seen as offensive by some schools of Muslim thought.) The winner of AFDI's contest was cartoonist Basch Fawstin who has posted his winning cartoon on his website. The keynote speaker at the event was right-wing Dutch politician  Geert Wilders who told the audience: "We are here in defiance of Islam to stand for our rights and freedom of speech."

Court Requires NY Transit Authority To Accept Anti-Islam Ads

In American Freedom Defense Initiative v. Metropolitan Transportation Authority, (SD NY, April 21, 2015), a New York federal district court granted a preliminary injunction to a pro-Israel advocacy group requiring the New York Metropolitan Transit Authority to accept the group's anti-Islam ad for display on the back of New York City buses. The ad included a picture of a man with his face largely covered by a keffiyeh and the language "Killing Jews is worship that draws us closer to Allah.  That's his jihad.  What's yours?"  The court found a likely infringement of plaintiff's free speech rights in a designated public forum.  It rejected the MTA's argument that the ad could be refused under its standards barring ads that will incite or provoke violence, saying that the MTA had not produced evidence that it would incite imminent violence. Reuters reports on the decision.  Last month, a Pennsylvania federal district court reached a similar conclusion regarding a different anti-Islamic ad from AFDI. (See prior posting.)

Philadelphia Transit System Must Accept Anti-Muslim Ad

In American Freedom Defense Initiative ("AFDI") v. Southeastern Pennsylvania Transportation Authority, (ED PA, March 11, 2015), a Pennsylvania federal district court granted a preliminary injunction requiring Philadelphia's transit system to accept a controversial anti-Muslim ad on its buses.  AFDI sought to purchase space for an ad that reads in part: "Islamic Jew-Hatred: It’s in the Quran." The ad pictures Adolph Hitler meeting with an Arab leader.  SEPTA had rejected the ad under its policy to prohibit: "Advertising that tends to disparage or ridicule any person or group of persons on the basis of race, religious belief, age, sex, alienage, national origin, sickness or disability." The court held, however, that this is an unconstitutional content-based restriction on speech in a designated public forum. It added:

[I]t is clear that the anti-disparagement standard promulgated by SEPTA was a principled attempt to limit hurtful, disparaging advertisements. While certainly laudable, such aspirations do not, unfortunately, cure First Amendment violations.

AP reports on the decision.

Recent Articles of Interest

From SSRN:

• Jordan Mathews, State RFRAs: Trust Judges to Strike the Proper Balance Between Religious Freedom and Anti-Discrimination Law, (February 1, 2015).
• Leah Achor, A Historical Defense of State Protection of Private Conscience, (December 13, 2014).
• Douglas NeJaime & Reva Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, (Yale Law Journal, Vol. 124, 2015 Forthcoming).
• Brandon Harvard Riches, Codifying Commonsense: Religious Viewpoint Antidiscrimination Acts and the Free Speech Rights They Protect, (February 3, 2015).
• Howard Kislowicz, Law, Religion, and Feeling Included/Excluded: Case Studies in Canadian Religious Freedom Litigation, (Canadian Journal of Law and Society (Forthcoming 2015)).
• Nelson Tebbe, The End of Religious Freedom: What Is at Stake?, (Pepperdine Law Review, Vol. 41, No. 963, 2014).
• Clayton Douglas Adams, Personal Foul, Roughing the Speaker: The Illusory War between the Establishment Clause & College Football, (February 4, 2015).
• Jennifer Ann Drobac & Jill L. Wesley, Religion and Employment Antidiscrimination Law: Past, Present, and Post Hosanna-Tabor, (NYU Annual Survey of American Law, Vol. 69, p. 761, 2014).
• Khaled A. Beydoun, Facing Mecca from Prison: Religious Accommodation of Muslim Prisoners Before Holt v. Hobbs, (February 7, 2015).
• Derek Joseph Goff, New Life in the First Amendment: Funeral Protest Statutes after McCullen v. Coakley, (January 31, 2015).
• Ellis Goldberg, Territorial States: Monopolies in the Market for Justice, (January 30, 2015).
• Alice Ristroph, Just Violence, (Arizona Law Review, Vol. 56, 2014).

From SmartCILP:

• Antony Barone Kolenc. Not "For God and Country": Atheist Military Chaplains and the Free Exercise Clause, 48 University of San Francisco Law Review 395-456 (2014).
• Inaugural Themed Issue: Faith-Based Legal Systems. Articles by Mohamed A. Arafa and David L. Johnston. 24 Indiana International & Comparative Law Review 859-920 (2014).