Utah governor vetoes video game bill

Various tech blogs are reporting that Utah Governor Jon Huntsman has vetoed a bill that purported to impose harsh penalties on retailers that sold M-rated video games to underage buyers. Among other penalties, the bill would have provided for seller liability in a civil suit. However, as critics of the bill have pointed out all through the legislative process, the proposed provision had a gaping loophole that would have allowed retailers to opt out of the ratings system altogether. In addition to ineffective problems, the bill likely would not have passed constitutional muster because the language was so imprecise and was not content-neutral. That was the reason cited by Governor Huntsman when he vetoed the bill yesterday. In his accompanying letter (PDF), Huntsman specifically stated his opinion that the bill violated the Dormant Commerce Clause and/or the First Amendment.

The video game bill, HB353, had very broad support in both the Utah House and Senate, so there is still a chance of a legislative override. However, I hope that isn’t the case. Legislation like this is often popular in conservative jurisdictions like Utah, but there’s no point in passing an unconstitutional law that won’t accomplish anything. Additionally, this bill has a strange pedigree, as it was purportedly drafted by Jack Thompson, a controversial disbarred Florida lawyer who has campaigned in several states for laws against video games.

Does the Mormon Church have a position on Internet filtering?

Over the weekend I ran across an article, awkwardly entitled “Mormons demand ICANN plugs net smut hole.” Curious, I clicked on the link, but I almost closed it again when I saw that the article was from The Register. Fortunately, I kept reading and found some interesting tidbits. The article talked about how ICANN, the non-profit organization that controls much of the structure of the Internet, has received a petition (PDF) from a group called CyberSafety Constituency. The organization hopes to be accepted as the newest constituency recognized by ICANN, with the purpose of representing the interests of “families, children, consumers, victims of cybercrime, religions, and cultures.” This is mostly a policy issue, but as is often the case, it is hard to separate law from policy. I realized that ICANN policies are not technically laws — they might even be illegal, since ICANN was not created to make policy decisions — but inasmuch as it controls the architecture of the Internet, ICANN’s word is law.

Kevin Murphy, the author of the article, doesn’t do a particularly good job explaining the situation. He apparently concludes that this is a Mormon initiative becuase the proposal is being led by Ralph Yarro III, a well known (and sometimes controversial) Internet and technology figure who is CEO of the Utah-based SCO Group, Inc. The proposal was authored by Cheryl Preston, attorney for CP80, a Utah-based group that proposes “zoning” online adult content to certain ports. Murphy further points out that many of the commenters in the public comment phase have cited their location as Utah. And as he points out, Utah is 58% Mormon. Boom! It must be a Mormon initiative. (Murphy also throws in a superfluous jab against the Mormon church, citing a recent study (PDF) that found that Utah led the nation in online adult content consumption.)

Kevin Murphy did not mention that Cheryl Preston, the CyberSafety Constituency petitioner, is also a BYU law professor. I think this is probably the strongest argument that this ICANN petition is Mormon-supported, although it still isn’t dispositive — individual Mormons are active in a broad array of organizations or causes. To my knowledge, the LDS Church has never taken a position on how the Internet should be governed, or what architecture mechanisms should be used. Even if the Mormon Church supported some sort of protocol that facilitated content filtering, it isn’t clear what level of filtering it would advocate. One the one hand, the Church generally opposes pornography, but it also has vested interest in maintaining strong First Amendment rights for its own free exercise of religion. I don’t believe there is an official Mormon position on how that balance should be maintained.

For my part, I am reluctant to alter current architecture in the way CP80 proposes. I can see the value in adopting mechanisms that would make it easier for parents to control the content or security threats exposed to their children. But all of these proposals run up against a definitional problem. Even if a functional filtering process is put into place, who decides what content belongs in what “channel”? It’s a problem reminiscent of Justice Potter Stewart’s famous concurrence in Jacobellis v. Ohio, calling it “trying to define what may be indefinable.” I also have some reservations about the proposed CyberSafety Constituency’s purpose and scope, because the purpose cited in the petition is colossally broad and potentially contradictory. But the bottom line is that this initiative is not supported by the Mormon Church. Not all Mormons would support it, and most Mormons have probably never heard of any of the proposed constituency or its supporting organizations.

Uproar in Connecticut

The Mirror of Justice blog reports that the last week’s controversial Connecticut legislation aimed at the Catholic Church has been tabled. According to Archbishop Henry Mansell of Hartford, the bill would “force a radical reorganization of the legal, financial, and administrative structure of [Catholic] parishes.” In case you think that wasn’t descriptive enough, PrawfsBlawg’s Rick Hills called the measure “The Connecticut Legislature’s preposterously unconstitutional attack on Catholicism.” Sensational enough for you now?

Professor Hills points out that, among other things, the proposed Connecticut measure is patently unconstitutional under Church of Lukumi Babalu Aye v. City of Hialeah. (For a brief but excellent analysis of all the issues, see the open letter written by several prominent law professors to the Connecticut legislature.) For all the ugliness directed towards Mormons after Proposition 8 in California, there hasn’t been such an overt legislative assault on the LDS Church in any jurisdiction.

I certainly don’t see this as a Catholic or Mormon issue. Even with in a divisive political climate, I am utterly surprised that any legislator in the nation would sign his or her name to such a bill. In a Q&A on the National Review Online, Katheryn Jean Lopez asked Brian Brown (executive director of the National Organization for Marriage) “Why should anyone who’s not Catholic in Connecticut or Mormon in California care?” He responded:

All Americans, whatever their political leanings, should care when politicians propose to take out a specific religious group because partisans in one party don’t like its moral stands on important public issues.

Brown goes on to call for “a response that makes these partisans regret it.” I don’t support Brown’s vindictive approach, but I certainly agree that all Americans should be concerned that such a provision was ever contemplated.

Photo credit: Brent Danley

God in the courtroom

I recently was present for oral arguments where a pastor was representing himself pro se. The judge mentioned that a party associated with the case was absent due to family health reasons, and the pastor requested that the court observe a moment of silence for the family. Not knowing how to respond, the judge and the rest of the court awkwardly complied and bowed their heads until the pastor declared the moment over, while I looked on incredulously.

This episode with a pro se litigant was unusual, but Deity is regularly invoked in many courtrooms. Where I currently practice, it is common for a court to open with with an announcement such as “May God save the United States and this Honorable Court.” Many judges and members of the bar bow their heads as this invocation is proclaimed. In many jurisdictions the swearing of an oath ends in “so help me God,” a phrase that was recently challenged again with respect to the swearing-in of President Barack Obama. Religious references are also common in the legislative branch. Sessions of Congress and state legislatures are traditionally opened with a prayer.

The bizarre courtroom incident with the pastor made me consider my own position on religion in the courtoom and other government functions. Despite being a personally religious person, I have always felt somewhat uncomfortable with the institutionalization of religion. Perhaps this is due in part to having grown up in a region of the United States where Mormonism was a very small minority religion. I had a sense that whenever God was invoked in public, it was done in such a way and with language that was different from my own religious beliefs. I also identified at an early age that there was a certain amount of hostility or rejection associated with my denomination. I was a Mormon kid, and being Mormon was a little weird. I only encountered invocations or public religious observations occasionally, but whenever they occurred I was keenly aware that they represented a difference between everyone else and me.

But even though I’m not always comfortable with religious references in government, I don’t think that they should be done away with entirely. I think it’s important that the democratic process be a free marketplace of all ideas, religious or otherwise. Consequently, I generally think that the exclusion of all religious references in any branch of government is inappropriate, and contrary to the purpose and language of the First Amendment. My general rule of thumb is that personal statements of conviction should always be allowed.

Prayers before legislative sessions or “so help me God” oaths are usually called “de minimis” religious references by the Supreme Court, and the Court seems to take a fairly tolerant approach to these references, since they were common practices long before the United States was even formed. But this isn’t an opinion that is universally shared. In January, MichaelNewdow (the same litigant who challenged the phrase “under God” in the Pledge of Allegiance) sought to exclude a clergy invocation and benediction from the presidential inauguration and enjoin Chief Justice John Roberts from using the phrase “so help me God” in the presidential oath. Mr.Newdow had filed a similar lawsuit before at the second inauguration of President George W. Bush, and this most recent wasn’t likely to prevail because he made all the same arguments.

I noticed that U.C. Berkley Law professor Eugene Volokh had an interesting thought about the prayers at the inauguration. He suggested that “a President’s inviting a particular clergyman to say things at the President’s inauguration might well be treated as an extension of the President’s own right to express whatever views — including denominationally specific views — he wants to express as part of his own speech.” This seems like it touches on my rule of thumb regarding personal expression of speech, although it may not be applicable to courtroom oaths or legislative prayers because the courts and the legislatures are not embodied in one person.

As you likely know, Mr. Newdow’s lawsuit was again rejected and both the oath and the prayers went forward as planned. And thanks to a slip of the tongue by the Chief Justice and racial rhymes in the inaugural benediction, the references to Deity became the least controversial parts of the day.

Unpopular religions at home and abroad

John F. of the popular Mormon blog By Common Consent wrote earlier this week on the German government’s treatment of certain religious denominations as dangerous or extremist groups. The main target currently seems to be Scientologists, which corresponds with similar hostility in the U.S. and other countries. John F. quotes statements by German officials calling Scientology a “dangerous” and “antidemocratic organisation” that pursues “totalitarian goals.”

Like John F., I get a little nervous when groups like Scientology come under fire. It is all to easy to imagine the same rhetoric and tactics turned on other minority religions. (I realize there are good arguments that Scientology doesn’t constitute a religion, but for the purposes of the First Amendment it does.) Last year when the group “Anonymous” began its campaign against Scientologists worldwide, I couldn’t help cringing. Most of the criticisms aimed at Scientology could also apply to Jehova’s Witnesses, Seventh-Day Adventists, Mormons, and any other minority religion. And because Scientologists weren’t popular with the press or mainstream Christians, this campaign of intimidation, cyber-crime, and copyright infringement was tacitly condoned by most people.

Jeff F. points out that the only reason Mormons in Germany haven’t been subject to the same treatment as Scientolgists and Jehova’s Witnesses is because they are marginally less unpopular. I think the same could be said of campaigns like Anonymous — they haven’t targeted Mormons only because other groups are less popular. And in the wake of Proposition 8, I see the fortunes of the Church of Jesus Christ of Latter-day Saints growing worse rather than better in the near future.

I should note that the Anonymous campaign is significantly different from the actions of the German government, in that it is private action rather than state action. The First Amendment is designed to protect religious groups and their beliefs, even unpopular ones, from governmental interference. But religious groups are supposed to enjoy similar protections in Germany under the German Constitution and Article 10 of the European Charter of Fundamental Rights. Other countries such as Canada have also treated religious and political minorities unequally despite constitutional and governmental laws to the contrary. The protections afforded to religious groups in America have been on the decline ever since the 1990 Supreme Court Case Employment Division v. Smith . It isn’t hard to imagine the U.S. government engaging in similar discrimination under the guise of national security or equality.

Prop 8 Maps and NAACP v. Alabama

California Proposition 8 is the news event that keeps on giving. The latest bit of news that has caught my attention was a rather clever mash-up of Google Maps and the California political contribution disclosure information. Under the California Political Reform Act of 1974, all political contributions over $100 require public disclosure of the donor’s name, address, occupation, and other personal information. Prop 8 Maps is a website that plots all of that information on Google Maps, making it searchable by city name or zip code.

As you might imagine, this has made many donors nervous. One group of Proposition 8 supporters already filed suit in Indiana federal court seeking an injunction. The lawsuits alleges that Proposition 8 supporters have experienced “death threats, acts of domestic terrorism, physical violence, threats of physical violence, vandalism of personal property, harassing phone calls, harassing e-mails, blacklisting and boycotts,” and that an the donor information should not be disclosed.

Ironically, there are a couple Ninth Circuit cases that might have protected this disclosure if the supporters of Proposition 8 had been fewer. But because the referendum passed, those cases would not apply. Thus, there doesn’t appear to be any case law that would allow withholding donor information of a large political group, even in the face of a hypothetically strident or threatening minority. Eugene Volokh has more discussion here, including whether technological changes (like Prop 8 Maps) should alter the calculus.

I was interested in the case because it reminded me of the situation in NAACP v. Alabama, a civil rights-era case that challenged a somewhat similar law in Alabama that required all corporations to disclose their membership or shareholders. In 1956 the State of Alabama sought to obtain a list of all the members of the NAACP in the state, and the organization refused. The resulting lawsuit was appealed up to the Supreme Court, where the Court recognized a high likelihood of a substantial restraint on the NAACP members’ exercise of their right to freedom of association. Justice Harlan wrote:

We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment.


The Alabama law was similar to laws in many states, and there was no evidence shown that it was recently passed or specifically tailored to apply to the NAACP. Any resulting infringement of free speech was, therefore, an accidental interference. Accidental interferences with free speech should be resolved by balancing the degree of interference with the state’s regulatory interest. In the case of the Alabama law the state had a valid interest in knowing the personal information of corporation members/shareholders, but it was vastly outweighed by the enormous interference with the free speech of organizations such as the NAACP. This was particularly important because there are few alternatives to organized political speech.

Now consider the California law that requires disclosure of political donors’ personal information if the donors contribute more than $100. At the outset, it is important to courts recognize a free speech insterest in engaging in anonymous speech, so the compelled disclosure of donor information does constitute a restriction on free speech. But almost all courts have upheld disclosure requirements on political contributions. Like the Alabama law, the California law doesn’t appear to have been enacted or amended to specifically apply to the supporters of Proposition 8, so any interference with free speech is probably accidental rather than intentional.

Once again the analysis requires a balancing of the free speech interests and government regulatory interests, but the outcome should be different in the current situation. The threats, vandalism, and harassment experienced by Proposition 8 supporters so far don’t come close to the widespread, institutional persecution and prejudice experience by civil rights supporters in Alabama in 1956. Additionally, the California law does not require disclosure of all members of groups favoring the passage of Proposition 8, or even all donors to the cause. The $100 donor threshold is admittedly quite low, but it still represents a lesser infringement on free speech interests than the Alabama law. The California law also presents stronger regulatory interests, since the disclosure of political contributors can help prevent fraud and illegal donations. These interests are designed to ensure the successful operation of the democratic system, and therefore serve some of the same goals as the First Amendment itself.

The bottom line is that the California disclosure law and any initiative using that data are almost certainly legal and permissible under the First Amendment. Projects like Prop 8 Maps are definitely creepy, and as many same-sex marriage supporters have observed, they are the “perfect tool for backlash.” I would consider it unconscionable to participate in a similar project. But this is part of the price we pay for maintaining free speech in America.

Religious Freedom Day 2009

By presidential decree, today is Religious Freedom Day. President Bush issued a proclamation three days ago to create this day of observance. The date was apparently chosen to honor the passage of the Virginia Statute for Religious Freedom, passed on this day in 1786. I’m sure the fact that President Bush has less than a week left in office had nothing to do with the date.

I’m embarrassed to say that I was unfamiliar with the Virginia Statute for Religious Freedom, but I’m very happy to have it called to my attention. Thomas Jefferson apparently proposed the law in 1779, but it wasn’t passed until 1786. The document is a bit difficult to read, with more than 700 words crammed into two colossal sentences, but it is worth the effort. I find three things particularly interesting about the Statute. The first is how familiar it sounds:

. . . Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.

I think the Virginia Statute for Religious Freedom articulates the same American ideals that found home in the Eleventh Article of Faith. It certainly seems to be in harmony with the Mormon Church’s teachings on the matter.

The second thing I noticed was how the concept of agency was referenced throughout the text. The Statute begins:

Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as was in his Almighty power to do . . .

 The Virginia legislators essentially explained the necessity of free agency in the Plan of Salvation. I think this is fascinating, and I wonder if this was a commonly held belief at the time.

The third and final observation I have is how the drafters of the Virginia Statute for Religious Freedom weren’t reluctant to invoke Deity in their legislation. Presumably the legislators subscribed to different denominations or ways of thought — Jefferson himself apparently subscribed to a deist philosophy — but that didn’t preclude any references to God in the Statute. This sort of language also makes it fairly clear that the concept of freedom of religion held by the so-called Founding Fathers was distinct from the views of many today.

I occasionally hear members of the Mormon Church (often around the 4th of July) express the patriotic notion that American was founded on “just and holy principles.” If you were to argue, as many have done before, that America was founded by inspired men, the Virginia Statute for Religions Freedom would be a good starting point.