Law school seminars dive deep in FOI, free press, film

RJ Peltz-Steele with Google Gemini CC0 1.0

Students in my spring seminars, in Freedom of Information Law and in Free Press and Film, did outstanding work, and I am indebted both to them and to colleagues who joined my classes for teaching me and enriching my intellectual life.

Recently I spoke on the telephone to a long-time friend in academics, a professor at another university, many miles away. We shared strikingly similar stories of well paid administrators, whose numbers on campus seems to grow faster than the wealth gap, even while they lament cuts of not-nearly-as-well-paid staff and faculty positions to keep us within budget.

Well, the similarity would be striking if we were not accustomed to it. Universities in the United States combating financial exigency now seem to me like the nation of Oceania in George Orwell's 1984. They are forever locked in conflict with one or another enemy that is not in fact the greatest existential threat. Rather, the government itself perpetuates a state of emergency so that apparatchiks (administrators) can consume the fruits of labor while the masses (faculty and students) abide oppressive regulation and a diminishing standard of living.

My friend suggested that I propose and apply for a new university office, perhaps a Vice Chancellor of Financial Exigency. That sounds ironically lucrative. As they say, "when in Rome"; if the empire is falling, grab all the grapes you can.

Our conversation devolved, as it invariably does, into why we put up with it all. Coming in a very close second to paying the mortgage is an answer that I fear is both cliché and self-condemnatory: We are gratified when our students learn and excel.

Faculty Seminar Contributors

In the spring, I had the privilege to teach two seminars, one my recurring offering in freedom-of-information (FOI) law, the other a one-off, a course on free press and film. The FOI class coincided with the conclusion of my term on the federal Freedom of Information Act (FOIA) Advisory Committee, which service afforded me an opportunity to expose my students to leading-edge issues in the field.

The free-press-and-film class allowed me and the class to sink our teeth into the captivating book, featured at The Savory Tort in 2024, Filming the First: Cinematic Portrayals of Freedom of the Press (Lexington Books 2025), by my friend and colleague Helen J. Knowles-Gardner, formerly a political science professor and now research director at the Institute for Free Speech (IFS), and co-authors Professor Emeritus Bruce E. Altschuler, retired from political science at SUNY Oswego, and Professor Brandon T. Metroka, faculty in political science at the University of the Incarnate Word (UIW). (Photos: Knowles-Gardner, from IFS; Altschuler, 2017, by Jim Russel, SUNY Oswego '83, Metroka, from UIW).

My classes were enriched by colleagues who gave generously of their time and energy. Professor Knowles-Gardner joined us in person in Free Press and Film to discuss the book's treatment of the films Denial (2016) and Deliberate Intent (2000) (and to give a campus lecture). Professor Altschuler joined us for three classes, discussing his first three chapters of the book and the films Citizen Kane (1941), RKO 281 (1999), All the President's Men (1976), The Post (2017), Network (1976), and The Social Network (2010). Attorney Dan Greenberg, of the Cato Institute, joined Free Press and Film to discuss his documentary film, American Libel (2025), featured at The Savory Tort last year. (Photo: Dan Greenberg, from Cato.)

My FOI class welcomed attorney and information practice Professor Jason Baron, University of Maryland (U. Md.), and a fellow member of the FOIA Advisory Committee; Arkansas investigative journalist Brandon Howard; independent filmmaker and journalism and mass communication Professor Natalie Pattillo, and a university student leader and student journalist; Professor Robert Steinbuch, featured recently here at The Savory Tort, Bowen Law School, University of Arkansas, Little Rock (UALR); attorney and adjunct professor Gregory V. Sullivan, president of Malloy & Sullivan and president of the New England First Amendment Coalition; and journalism and media studies Professor A.Jay Wagner, Diederich College of Communication, Marquette University, a past member of the FOIA Advisory Committee.

Professor Baron discussed the science of artificial intelligence and how advancements in the era will change the practice of FOI law for both requesters and record officers. Journalist Howard joined the class to talk about his past newspaper reporting and ongoing pro se FOI litigation to access a cold murder investigation case file in northwest Arkansas (see, e.g., The Weekly Vista; see also breaking news). Professor Steinbuch discussed his ongoing transparency advocacy in Arkansas and opinion writing for The Arkansas Democrat-Gazette. Attorney Sullivan discussed his remarkable record of high-profile access litigation and appellate argument on behalf of New England journalists. Professor Wagner discussed his recent work on statutory citizenship requirements to block state access to public records and the ongoing debate over the constitutionality of the laws.

Professor Pattillo and her student, whose identity I am protecting just in case, discussed contemporary challenges facing campus journalists, including recalcitrant administrators. Professor Pattillo's teaching contract at UMass Dartmouth was not renewed this academic year (e.g., LinkedIn, New Bedford Light, Boston Globe (paywall)). 

(Photos: Jason Baron, from U. Md.; Brandon Howard, from LinkedIn; Natalie Pattillo, from the Center for Independent Documentary; Robert Steinbuch, from UALR; Gregory V. Sullivan, from Malloy & Sullivan; A.Jay Wagner, from Marquette University.)

Student Seminar Contributors

Students in both seminars produced a range of thought-provoking papers built upon insightful research and analysis. I am here honored to share selected titles and abstract, with authors' permission. I thank these stars for their work and for their collaborative spirit in learning with and from each other, and I anticipate with great pleasure their shining future contributions to the legal profession.

—in Freedom of Information Law

Jeremy Aylward, Retaining Transparency in the Digital Age: Retention of Electronic Records Under Federal and State Freedom of Information Laws. The proliferation of electronic records and digital communications has fundamentally challenged the legal frameworks governing government transparency and public accountability. While the federal Freedom of Information Act (FOIA) and Federal Records Act (FRA) establish baseline obligations for the retention and disclosure of electronic records, the enforceability of those obligations remains structurally compromised. This paper analyzes and synthesizes the legal frameworks governing the retention and disclosure of electronic records and messages under federal law and the open records statutes of California, Colorado, and Virginia, with particular attention to how those frameworks can be meaningfully enforced. Drawing on statutory text, agency guidance, and judicial interpretation, this paper examines how each jurisdiction defines "electronic records," what retention schedules apply, how personal device and third-party platform use by public officials is treated, and critically, what mechanisms exist to compel compliance, sanction violations, and remedy the destruction or concealment of covered records. The paper argues that across all four jurisdictions, electronic records retention law suffers from a common structural deficiency: obligations are broad in theory but weak in enforcement. This leaves agencies largely self-policing in an environment where the incentives to retain records often conflict with the incentives to delete them. While California's content-focused judicial approach offers the most expansive access framework, and Colorado and Virginia provide more structured but still under-enforced retention regimes, none of the examined frameworks provides a reliably enforceable mechanism for preventing loss of electronic records at the point of creation or ensuring accountability after the fact. The paper concludes by identifying the enforcement gaps that most critically undermine the transparency purposes of freedom of information law and by synthesizing lessons across jurisdictions for legislative and judicial reform. (Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)

Davis Preston, The Public Records Law Battles with State University Athletic Programs. Universities have taken advantage of state public record exemptions to skirt disclosures of their spending. To combat the skirting of disclosures and to provide more transparency, the NCAA mandates budget disclosures. Public records law exemptions still apply to the schools, but the NCAA mandates force the schools to disclose certain financial information anyway. These mandatory budget disclosures have their own limitations that allow schools to avoid full disclosure. They open the door to what money goes where, but withhold important information, such as who donates, how much they donate, and how the fundraising is organized. There are different structures for how athletic departments operate, but most use private or semi-private entities. Schools use privatization to avoid full disclosure after they meet the NCAA mandate. Different states have different laws that allow universities to avoid full disclosure. The University of Arkansas utilizes a private foundation, multiple universities in Florida utilize direct support organizations, and the University of Georgia utilizes disclosure time extensions. The laws are used to circumvent the public records law, which was enacted to hold public bodies accountable and provide transparency. The universities argue that they should have privacy on financials, as this allows them to keep a competitive advantage over other universities. This argument is met with the public interest in how the government spends money and whether this is done with transparency. There should be statutory change to prevent this circumvention of disclosure. Statutory change would entail eliminating exemption for direct support organizations, standardization of the function equivalent test, and the elimination of time extensions. (Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)

Natalie Whitt, Civil Enforcement, Criminal Secrecy: Exemption 7 and the Expansion of FOIA Withholding in Immigration. The Freedom of Information Act (FOIA) was enacted to promote accountability and transparency by providing public access to government records, which can be essential where state authority is most coercive. Public oversight of law enforcement depends heavily on access to government records, yet requests for information concerning police misconduct and officer discipline frequently encounter resistance under FOIA Exemption 7. This provision permits agencies to withhold records compiled for law enforcement purposes when disclosure could cause specified harms, including unwarranted invasions of personal privacy, interference with investigations, and safety risks. Although these protections serve legitimate interests, their application in the policing context often limits public access to information necessary to evaluate how coercive state authority is exercised. Courts typically afford a high level of deference to agencies in determining whether records qualify as law enforcement materials and in assessing claimed harms, while disclosure obligations such as segregability receive comparatively limited enforcement. The result can be a practical barrier to transparency in cases involving alleged misconduct, systemic failures, or patterns of negative behavior from law enforcement. This Article argues that the way courts apply Exemption 7 in the context of policing creates barriers to public oversight that are difficult to reconcile with FOIA’s central purpose of promoting accountability for government power. Law enforcement agencies have a unique authority to detain, search, and use force, while transparency regarding the exercise of that authority serves both individual and systemic public interests. However, courts do not consistently distinguish between personal privacy concerns and information reflecting official conduct, and agencies’ assertions of harm are often accepted without requiring narrowly tailored justifications. (Image: RJ Peltz-Steele with Google Gemini CC0 1.0.)

Tryon P. Woods, Prison Conditions and Public Access Or 1(st Am.) + 5(th Am.) + 8(th Am.) + 14(th Am.) < 0—Public Access Math. This paper examines the ongoing problem of prison conditions and the public’s access to information about what goes on inside prisons. I approach the topic as a twin problem in which access and conditions are opposite sides of the same coin. The correlation between access restrictions and the unconstitutional treatment of prisoners has a long history and nation-wide scope. Tracking the aftermath of the seminal case of the Attica Prison uprising in 1971 through several lawsuits arising from institutional failures in Arizona, California, Massachusetts, and NYC, this paper argues that in a "total institution" such as a prison or jail, visibility is the leverage on which control hinges. This relationship between the public’s access to information about prison conditions and the constitutional violations suffered by prisoners is refracted in the Court’s First, Fifth, Eighth, and Fourteenth Amendment jurisprudence on prisons since the passage of FOIA in 1966. Despite the Court’s best efforts, together with prison administrators, the relational reality of law remains undeniable: the undoing of legal personhood for people inside serves as the precondition for inventing the human outside. (When not appearing in class as a law student to sate his insatiable appetite for learning, Professor Woods also is a gifted faculty colleague in crime and justice studies at UMass Dartmouth.—RJPS) (Image: Attica Correctional Facility, 2007, by Bronayur via Wikimedia Commons CC BY-SA 3.0.)

—in Free Press and Film

Bryce Mayo, "A Victim of the Modern Age": Soft Law, Private Suppression, and the Gap in First Amendment Theory. Film: A Clockwork Orange (1971). The First Amendment limits government suppression of speech but does not restrict decisions by private actors. Constitutional doctrine therefore provides little guidance when expression is constrained through private pressures, market incentives, or self-censorship. These forms of non-governmental suppression rarely enter the public consciousness until controversy surrounding particular works expose gaps in the protection of free expression. Stanley Kubrick’s decision to withdraw A Clockwork Orange from circulation in the United Kingdom illustrates this limitation. Although the film was not subject to a nationwide legal prohibition, public controversy, media criticism, and local regulatory pressures preceded Kubrick’s nearly three-decade self-removal. The film thus remained legally protected yet practically inaccessible within the United Kingdom. This incident provides an example of how expressive works may be limited without formal government censorship. This paper examines Kubrick’s withdrawal through a United States constitutional framework. It focuses on the distinction between state restriction and private control over distribution and argues that the quasi-ban of A Clockwork Orange reveals a structural gap in First Amendment theory: while speech is protected from government censorship, it may nonetheless be suppressed through "soft law" mechanisms that operate outside formal doctrine. By separating the concept of legal protection from the reality of circulation, the paper clarifies how expression may be constrained outside traditional censorship models. Recognizing this distinction clarifies the practical limits of First Amendment protections and refines how free speech is understood in modern media environments shaped by market forces, rating systems, and distribution controls.

Amanda McKim, Speech is Free, But Lies You (Should) Have to Pay For: Alex Jones as a Case Study for the Inefficacies of Defamation Remedies. Film: The Truth vs. Alex Jones (2024). The First Amendment to the United States Constitution protects against government-imposed limitations on freedom of speech and the press. However, the First Amendment does not protect false, defamatory statements. The intersection of these two areas of law has been analyzed at length, but changes in the way society communicates raises new and more dangerous problems regarding the ways in which courts address the impacts of defamation. With the continually expanding use of smart phones, access to endless perspectives in media, and few ways to definitively “fact-check” sources, misinformation is rampant, and defamation remedies provide increasingly less meaningful relief to victims. Alex Jones, a prominent radio show host, was sued in two states and has three judgments against him for defaming victims’ families in the 2012 Sandy Hook school shooting. The complaints were filed in 2018 and resulted in final judgements in 2022 of $1.5 billion dollars in damages. Jones has since filed for bankruptcy, has yet to pay the victims. He continues to disparage the proceedings to his audience of 30 million daily listeners. The plaintiffs’ inability to recover and Jones’s continuing perpetuation of harmful rhetoric exemplify the ineffectiveness of current remedies to meaningfully address serious speech-based harms. Despite legal scholars’ critiques of equitable remedies in defamation cases, equity might be the best way to address previous harm, prevent future harm, and provide victims with the most appropriate relief. (Image: Instagram post by WBRC-TV 6 News, 2025. With characteristic wisdom and compassion, Ms. McKim suggested that the visual element for this post might honor the victims of Sandy Hook, rather than draw further attention to Alex Jones, who doesn't need help with publicity. I could not agree more.—RJPS)

Sean Pillai, Embedded Reporting and Freedom of the Press in Contemporary U.S. Military Operations. Films: Restrepo (2010), Korengal (2014). Embedding journalists with U.S. military combat operations highlights the ongoing struggle to balance democratic transparency with the practical realities of fighting a war. The system of embed reporting was created to give the public a clearer view of what happens on the front lines, but it also has raised continuing legal and ethical questions about how independent reporters truly can be when the military controls their access and movement. This paper looks at those tensions through the perspectives offered in Restrepo (2010) and Korengal (2014), while examining the most recent policy behind U.S. military media policy. The embed system shows why some limits on access are required in combat zones and that journalists must continue to expose themselves to risk both in the legal realm and physically in combat to protect speech. 

Carson Powell, From Accessible Knowledge to Smoldering Ashes: How a 1953 Novel Reflects a Growing Current Reality. Film: Fahrenheit 451 (2018). A story created in 1953, in which books are outlawed, and "firemen" burn any that are found, illustrates the censorship of knowledge and literature. In Arkansas, on March 30, 2023, the legislature approved Act 372, which included new standards for individuals selling books, whether that be public libraries or small bookstores. Act 372 in theory was approved to protect minors from stumbling onto books and materials of mature topics, but many librarians disagreed with that sentiment. The librarians of Fayetteville Public Library, joined by many other librarians believed that the act forces libraries and bookstores to segregate novels with "mature subjects" into "adult only" areas, with a risk of criminal prosecution for failing to do so. The Fayetteville Public Library, American Civil Liberties Union of Arkansas, and others filed complaints alleging that Act 372, like outright book banning, violates the First Amendment as overbreadth, vague, and content based. The lawsuit further alleged that the Act was intended to limit access of books and media to individuals who have a constitutional right to the books in question. The Arkansas legislature follows a growing trend around the United States of State’s legislators introducing and implementing acts regarding content-based censorship. Increasing enactments of laws aimed at removing “obscene” materials to protect children effectively discriminates against people of color, underrepresented communities, and members of the LGBTQ+ community. The suppression of media, whether by segregating books in the library or bookstore, or by facilitating their removal smaller institutions having to take the books off the shelves at risk of prosecution, reflects the themes of Ray Bradbury’s Fahrenheit 451.

Jakob Resnik, Apocalypse When? Latent Power of 47 U.S.C. § 606. Film: Apocalypse Now (1979). 47 U.S.C. § 606 ("the Act"), "The War Powers of the President," is an unused emergency provision of the Telecommunications Act that threatens freedom of speech. Apocalypse Now contains a scene depicting a Time magazine article reporting inaccurately on the Vietnam War. The movie does not say whether Time published the article of its own volition or at the direction of the Government. In the "real world," the Act enables the President to seize and control certain media outlets during emergencies, possibly controlling public reception of the emergency. The Act lacks clear definitions or statutory guardrails, conferring power so broadly that it is easily abused. Apocalypse Now used a prop magazine article to illustrate dishonesty in the media without showing where the lie really came from. Under the Act, a censored message can easily be spread to deceive the public regardless of free speech objections that outlets may raise. This is a threat to free speech.

Corie Scott, Tried Inside a Story: Pretrial Narrative and the Fragility of the Presumption of Innocence. Film: When They See Us (2019). Ava DuVernay’s When They See Us documents what happens when narrative precedes adjudication. The prosecution of the Central Park Five—who now identify as the Exonerated Five—illustrates how media coverage, official statements, and public discourse can converge to construct a story of guilt before evidence is tested in court. That story proved more durable than the convictions it preceded and more resistant to correction than the exonerations that followed. The case is extraordinary in its consequences. The dynamic it reflects is not. This paper examines the tension between First Amendment press freedom and the Sixth Amendment guarantee of a fair trial through doctrinal analysis and a preliminary comparative study of contemporary criminal reporting. Drawing on a close reading of fifteen articles across local news outlets, national publications, tabloid media, and government press releases, the analysis examines patterns in headline labeling, suspect characterization, moral descriptor language, victim framing, contextual background, and the presence or absence of presumption-of-innocence language. The sample is illustrative rather than representative and is offered to surface patterns consistent with the doctrinal concerns the paper identifies. The findings identify patterns that warrant closer legal and empirical attention. Narrative intensity, humanizing context, and presumption-of-innocence framing vary consistently across source types – and, with regularity that raises due process and equal protection concerns, across defendants. White defendants were disproportionately introduced through professional identity and personal context. Black and Latino defendants were more frequently framed through criminal identity and categorical threat language, with government press releases producing the most authoritative and criminalized framing of any source category examined. These patterns point to a structural gap in existing doctrine. First Amendment protections permit the circulation of narratives that assign meaning to accusation. Sixth Amendment safeguards operate within the courtroom to mitigate identifiable prejudice. Neither framework fully addresses how pretrial narratives shape the ground on which guilt is adjudicated. This paper argues that the law’s current approach is incomplete—not because it fails on its own terms, but because it was not designed for an information environment in which narrative formation is rapid, self-reinforcing, and difficult to unwind. The presumption of innocence survives as a formal rule. Whether it survives as a lived condition of adjudication, for all defendants equally, is the question the paper raises—and the one it calls on doctrine and empirical scholarship to more fully answer.

Alayna Wageman, Accountability Gaps at The International Criminal Court: How States Get Away with Murder. Film: A Private War (2018). Women journalists operating in conflict zones are targeted not only because of their reporting, but because of their gender. Sexual violence, intimidation, and physical assault are deployed as deliberate tools to silence women in the press, yet international law has failed to translate its formal protections into meaningful, enforceable accountability. This paper investigates that failure through the legendary war correspondent Marie Colvin. In Colvin v. Syrian Arab Republic, the United States District Court for the District of Columbia granted a default judgment of $302,511,836.00 against Syria for the deliberate targeting and killing of Marie Colvin during her reporting in Homs in 2012. Syria has never paid. Additionally, the conduct that killed Colvin, a state-directed attack on civilian journalists in armed conflict, falls within the jurisdictional reach of the Rome Statute as a war crime under Article 8, yet no International Criminal Court (ICC) prosecution followed. Syria is not a signatory and the UN Security Council vetoed the referral. Thus, even when liability is established, the absence of enforceable international laws leaves victims without remedies and states without consequences. Colvin's case is not exceptional. It is representative of a systemic pattern in which gender-based violence suppresses journalistic work and states face no meaningful consequences. This paper highlights three structural deficiencies within the International Criminal Court framework revealed by the Colvin case. This paper contends that addressing these gaps necessitates structural reforms beyond the scope of the current system.

Rebecca Wood, A Relic of the Past: It’s Time To Deal With The Equal Time Rule. Film: Man of the Year (2006). This paper utilizes the 2006 film Man Of The Year to introduce and illustrate systemic inconsistencies in the Federal Communication Commission’s (FCC) enforcement of the equal time rule. The rule, Section 315(a) of the Communications Act of 1934, requires broadcast licensees providing airtime to a legally qualified candidate must also provide equal air time all opposing candidates. The rule is introduced by examining the absence of discussion and enforcement of it and its requirements throughout the film despite a talk-show host’s presidential campaign. This paper suggests that the omission is illustrative of the inconsistent and arbitrary application of the rule in the real world. Next, the history and origins of the rule are explored beginning with the rule’s origin in the Radio Act of 1927 through present day talk show challenges. Subsequently, the rule’s inconsistent implementation and the question of censorship are investigated with examples in media, case law, and FCC proceedings and notices from the rule’s beginning through present day. Finally, possible remedies such as further defining the rule, post-Chevron challenges, or repealing the rule are considered.

Comparative law students explore world with guests, online cohort, and enrich field with new research

Boasting about the accomplishments of my students is a rich indulgence I selfishly embrace. The Savory Tort hosts collections of student abstracts from past courses in Comparative Law and Freedom of Information Law.

This winter, I am happy to share abstracts from students who completed papers in Comparative Law in fall 2025. These might be the most scholarly capable set of papers I've yet seen in a seminar. Their work was a pleasure to read, and I am grateful for all that these students taught me.

Besides their research projects, these students participated vitally in the Global Law Classroom (GLC). They were leaders in their groups and exchanged knowledge and experiences with students from 13 countries over eight weeks of class sessions with contributing faculty.

The students also served as a gracious and inquisitive audience for several guests in the fall semester. I thank my colleagues who gave of their time and expertise to enrich our class:

• Anna Conley, Cliff Edwards Professor of Excellence in Trial Advocacy at the Alexander Blewett III School of Law, University of Montana, and also a member of the GLC faculty, joined us via Zoom to explore customary law and the rights of indigenous peoples.
• Bernard Freamon, professor of law at Roger Williams University Law School, and co-chair of the Bristol (R.I.) Middle Passage Port Marker Project, treated us to a thorough and thought-provoking introduction to Islamic law.
• Dan Greenberg, Cato Institute, shared with us a special screening of the documentary film he produced and directed, American Libel (2025), in relation to the disparate "actual malice" and "public interest" defenses to defamation in U.S. and UK law.
• Wojciech Jarosiński, founding partner of Peak Legal in Poland, and Stefanie Chiba, a corporate attorney and data privacy expert in Austria, led us via Zoom in exploration of differences between civil law and common law practice.
• Ferhat Pekin, attorney with Pekin Bayar Mizraha, and adjunct professor at UMass Law, led us in a study of Turkish law and exercises in the cross-cultural competence required for transnational law practice.
• A friend and colleague working in the international aid sector joined us via Zoom to talk about the challenges of delivering aid from western sources to conflict areas amid political and cultural challenges on the ground. His identity is not published here to protect his security while deployed in Asia.

Here are the fall's compelling student projects:

Jake Fruchter, Civil Rights in Extra-Ordinary Prosecutions: a Comparative Analysis of Ireland and the United States Trial Rights in Terrorism Prosecutions. The United States is witnessing a growth in domestic terrorism charges. As these cases make their way through state and federal courts, questions arise over what rights and procedures apply. One country with a well established history of prosecuting domestic terrorism is the Republic of Ireland. This history led the Republic to establish a Special Criminal Court with unique rules and procedures for terrorism and organized crime cases. This paper, using a comparative method, compares the Republic’s Special Criminal Court with procedures in the United States at the state and federal level. In particular, the rights this paper analyzes pertain to the right to silence as, protected by the Fifth Amendment to the U.S. Constitution, and the right to a trial by jury and to face your accuser, as protected by the Sixth Amendment to the U.S. Constitution.

Kyle LaMont, Belonging by Blood or Soil?: A Functionalist-Historical Comparison of Italian and American Citizenship Traditions. This paper examines how Italy and the United States have developed their jus sanguinis and jus soli citizenship traditions, respectively, over time. Using a functionalist and historical approach, it compares and analyzes the legal frameworks and the different legal consequences of citizenship for each country. Culturally, Italy has had a long-standing tradition of focusing on citizenship through lineage, which was a core part of Italy’s unification since 1861 and further reinforced with Law No. 91/1992. In stark contrast, the United States primarily uses jus soli and the territory approach of the Fourteenth Amendment to the Constitution. These different approaches to citizenship show how historical, cultural, and economic factors have molded the traditions that each country has embraced. By comparing these different systems, this paper reveals differing understandings of belonging and how both traditions survive in each country today. 

Kennis Levano, Language, Law, and Identity: A Functionalist Comparison of Indigenous Language Rights Protection in Bolivia and Peru. Focusing on the divergent political trajectories since the 1980s, this paper conducts a functionalist microcomparison of the frameworks for indigenous language rights in Bolivia and Peru. The research first establishes the historical and political contexts of both countries. It then provides a detailed examination of the Bolivia legal framework, highlighting recent legislative advancements, key provisions, and their successful implementation and impact in the country. In contrast, I discuss Peru's evolving legal framework, identifying differences and significant challenges in implementation. The analysis uses a functionalist approach to compare legal frameworks, identifying successful elements in the Bolivian model that are absent or underdeveloped in the Peruvian. The study culminates in the proposal of a solution designed to catalyze a significant leap forward in Peru's constitutional recognition of indigenous language rights, mirroring the progress achieved in Bolivia.

John McCauley, The Merchant: The Object of Economic Legislation & Regulation. This paper is focused on the differences and similarities between the U.S. Uniform Commercial Code Article 2 definition of “merchant” and the Egyptian Commercial Code definition of “Trader,” and how those definitions work into other statutes when a dispute arises. The UCC is analyzed according to different jurisdictions within the United States, with jurisdictional splits being noted, particularly around farmers. The topic is introduced with a brief history of each codification effort, how disputes of trade are handled procedurally, and how the courts of each respective jurisdiction interpret their definitions of those who conduct trade. This paper seeks to adhere to critical comparative methodologies and be mindful of the different cultural contexts that lead to the expression and subsequent regulation of one who conducts trade and said merchant’s explicit duties. In essence, this paper seeks to unravel choices of law with policies in mind which lead to the defined terms of “merchant” and “trader,” and who or what is interpreted as falling within and without that category, and what are some of the obligations attached to the merchant status. This paper looks at global market dynamics, and interpretive and legislative fiats, as well as statutory language to conclude who or what is defined as a merchant in the United States and Egypt and why. A commercial code is an expression of what a government believes is the proper way of doing business and thus regulates it, and the merchant or trader is the one who is to adhere to that regulation. With those premises in mind, it is key to look at the similarities and differences in these systems and cultural contexts to examine potential policy goals in enacting such legislation.

Hannah Patalsky, Comparing Mechanisms for Artist Compensation in the United States and the European Union (Taylor’s Version). This paper compares two distinct legal frameworks: the Living Wage for Musicians Act (2024) (LWMA), a bill recently reintroduced in the U.S. House Judiciary Committee, and Articles 18 through 22 of the EU Digital Single Market Directive (DSM Directive). Both of these mechanisms are designed to address the persistent issue of inadequate artist compensatory rights in the era of online streaming. The LWMA aims to establish an “Artist Compensation Royalty Fund” as an economic intervention, which would guarantee artists near-immediate payment through a statutory framework and additional stream of revenue flowing from listener to musician. In contrast, the DSM Directive focuses on member-state involvement in a contractual approach, seeking to balance the relationship between artists, on one side, and labels and agents, on the other. The primary DSM Directive articles of focus in this paper are Articles 18 through 22, which are designed to counteract the power dynamics and inequalities between these groups. This paper examines the benefits of each approach, as well as the limitations and drawbacks. The paper demonstratively applies each framework to the well-known ownership dispute between Taylor Swift and Scooter Braun, demonstrating how outcomes may differ under each mechanism to showcase the practical, real-world applications of these compensatory mechanisms. Fundamentally, this paper compares a statutory and contractual framework to find the best approach to artist compensation. Ultimately, this paper argues that each framework seeks to remedy a different issue in the modern digital and stream-based economy, and that understanding the differences among these remedies is essential to evaluating how legal systems can meaningfully address inherent inequalities and imbalances across the music industry. The LWMA aims to address the problem of insufficient streams of revenue for artists. At the same time, the DSM Directive directly targets any inequalities that may have arisen during the contracting phase that may lead to long-term exploitation of artists. In comparing these legal mechanisms that are addressing the same issue, this comparison reveals not only the strengths and weaknesses of each approach, but also the potential benefits of creating a hybrid model, including fair revenue and fair contracting conditions.

Tamar Shimon, Hate Speech: Overprotected or Undervalued? A Comparative Analysis Between U.S. and German Student Speech on College and University Campuses Post October 7. This paper analyzes the impact of protecting hate speech, particularly antisemitic speech, on post-secondary institutions within the United States and Germany. The world is no stranger to antisemitism. This type of hate has existed for millennia. However, with the events of October 7, 2023, a new wave of antisemitism found a home amongst a new generation of people: young university and college students. For months, U.S. college and university officials allowed for antisemitism to take hold on their campuses, subjugating Jewish students to abuse from their fellow students. But this was not the same response in Germany. Rather than allow the “protests” to become rampant and violent, German university and college officials quickly placed bans and restrictions for fears of antisemitism reemerging at such a drastic rate that was last seen in the 1920s. Free speech is a fundamental right within the United States and Germany; however, both countries take different approaches when it comes to protecting hate speech. This paper explores the differentiations in each country’s free speech rule, specifically focusing on the way in which each country sees the importance of hate speech to its society. To understand this differentiation, the events on and post October 7, 2023, on college and university campuses across the United States and Germany will be analyzed to determine whether the United States can somehow implement Germany’s model but still uphold the values of free speech.

Tryon P. Woods, Indigenous Fishing Rights, Comparative Settler Colonialism, and the Problem of Modern Law. This paper is a comparative legal analysis of United States v. Washington (W.D. Wash. 1974), known as the “Boldt decision” after the presiding judge’s opinion, and the 2024 ruling in Sapporo District Court on the Raporo Ainu Nation fishing rights lawsuit in Japan. Regarded as a legal landmark in indigenous rights and land use management in North America, the Boldt decision recognized the treaty rights of Native tribes to off-reservation inland fishing.  It held that such Native fishing was not subject to State regulation.  The recent Ainu lawsuit in Japan similarly sought to assert indigenous rights to fish Japanese inland waters but was rejected by the court. Comparative analysis of the two cases reveals distinct national histories regarding indigenous rights in law, which in turn, are indicative of differing forms of racialization in the national development of the United States and Japan that align with distinct histories of settler colonialism. This discrete legal comparison raises further questions regarding law’s mutability in the face of dynamic culture; how dominance is reworked as rule of law; and the problems stemming from shared ecology.

Ellie Zhang, Fair Use vs. Second Creation: A Comparative Study of Short-Video Law Between the United States and China. This paper examines how U.S. and Chinese copyright law treat short-video “second creations,” focusing on two common formats: (1) reaction and review videos that intersperse short excerpts and (2) parody. After setting out the U.S. open-ended, fair-use framework under 17 U.S.C. § 107 and China’s rights-first, enumerated “reasonable use” approach under Article 24, the paper asks when these videos amount to protected commentary and when they become unlicensed, market-substituting derivatives. For interspersed-clip reactions, U.S. doctrine tends to credit transformation and lack of substitution, whereas Chinese courts emphasize “reasonable use” and substitution risks; both systems disfavor compilation-style recaps. For parody, U.S. law treats targeted critique as paradigmatic transformative use so long as the borrowing is reasonably necessary and does not usurp cognizable licensing markets. By contrast, Chinese law lacks an explicit parody exception, channeling analysis through “appropriate quotation,” the two-step constraints, and moral-rights concerns, producing a narrower space for unlicensed parody. The paper closes with practical guidance for creators and a policy recommendation: clearer, semi-open exceptions in China and more attention in U.S. cases to audiovisual modes of critique when judging transformation and necessity.

The students' research was well supported by ace Law Librarian Katelyn Golesby, who updated and reconstructed a superb library guide in foreign, comparative, and international legal research.

Lead image by Google Gemini. Guest images from respective biographical pages, as linked; no claim to rights. Flags by Flagpedia.

Law students test-screen 'actual malice' documentary

Yesterday, my students in Comparative Law and in Torts got to be test-screen audiences for American Libel, a new documentary written and produced by my friend and colleague Dan Greenberg (TST), a senior research fellow at the Cato Institute.

American Libel challenges the policy wisdom of the "actual malice" rule in U.S. First Amendment law. The rule requires, in key part, that public-figure and public-official defamation plaintiffs prove by clear and convincing evidence that the defendant wrote with actual knowledge of falsity or in reckless disregard of the truth. The rule originated in the landmark case New York Times Co. v. Sullivan (U.S. 1964), and subsequently was rejected by other liberal-democratic jurisdictions, such as Canada and the United Kingdom, as insufficiently protective of personal reputation. The film assigns blame in part to Sullivan for our present misinformation epidemic and the collapse of public confidence in journalism.

Greenberg garnered student feedback and led fruitful discussions with students after two showings, morning and night. I am grateful to Greenberg for taking the time to visit us in Dartmouth, Mass., and share his work. And I am grateful for my students who devoted three hours to screening and discussion, asked informed questions, and offered full-hearted and thoughtful critique.

The screenings were a tremendous learning experience for all of us. It's fair to say that everyone looks forward to American Libel reaching general audiences.

You can read more about American Libel at the film's website. My students prepared by reading my "Reconsidering Sullivan" in 2 Tortz (2025 ed.) (free download at SSRN), pp. 516-535. Comparative Law students also read excerpts on Australian and Canadian law from Marie-France Major, Comparative Analogies: Sullivan Visits the Commonwealth, 10 Ind. Int'l & Comp. L. 17 (1999), and Jessica Lovell for INFORRM (2019) on the UK "public interest" defense.

Greenberg: 'Why American Libel Law Is a Disaster'

My friend and colleague Dan Greenberg, a senior research fellow at the Cato Institute, has penned an editorial in which he explains "Why American Libel Law Is a Disaster" (free sign-up).  

The Eleventh Circuit affirmed dismissal of Alan Dershowitz's libel suit against CNN at the end of August for lack of evidence of "actual malice," the extraordinary standard of U.S. First Amendment law that requires public-figure plaintiffs to prove defendants' intent, knowledge, or smoking-gun recklessness as to the falsity of what they utter.

I don't disagree with the outcome in Dershowitz. But like concurring Judge Barbara Lagoa, I have serious reservations about the "actual malice" rule. The standard, calcified in constitutional law by New York Times v. Sullivan (U.S. 1964), is unique in the world in its broad application in tort litigation in purported protection of the freedom of expression.

Brigitte and Emmanuel Macron, 2019
PICRYL public domain

Though I am a free speech and press advocate six days out of seven, I have long been persona non grata in media defense circles when the subject of Sullivan rolls around. As a torts teacher, I understand that under-compensating victims of genuine harm, and of letting tortfeasors off the hook for socially intolerable conduct, have far-reaching adverse consequences for the social order. And I daresay that our present epidemic of misinformation has a direct lineage to Sullivan.

Dan Greenberg, who bears scars similar to mine as a plaintiff-survivor of formally unsuccessful defamation litigation, has written an op-ed for The Dispatch, "Why American Libel Law Is a Disaster."  He uses as case in point the libel suit (CNN) of French President Emmanuel Macron and his wife Brigitte against "self-styled independent journalist" Candace Owens—and the fact that the Macrons almost surely will lose, despite the absurd and damaging assertions of the defendant.

Here are the opening paragraphs. 

Did you know that the president of France and his wife Brigitte are actually blood relatives in an incestuous marriage? Or that Brigitte is a transgender woman? Or that President Emmanuel Macron was manipulated into becoming the president of France through a CIA mind control program? Or that the Macrons conducted an extensive campaign of violence, fraud, and identity theft to cover all of this up?

Well, you probably didn’t know this, because nothing would lead a reasonable person to believe any of it is true. But this didn’t stop Candace Owens, a self-styled independent journalist, from propagating that delusional narrative. Over the last year, Owens produced an eight-part podcast, Becoming Brigitte, that placed the Macrons at the center of a vast and incredible conspiracy. In July, the Macrons sued Owens for libel in Delaware.

Professor Eugene Volokh at Reason has key excerpts from Dershowitz v. CNN, Inc. (11th Cir. Aug. 29, 2025), from Judge Lagoa's concurrence, and from the contrary concurrence of Judge Charles Wilson.

There is more on the Sullivan debate, including an edited version of the complaint in Greenberg's 2013 defamation suit against an Arkansas newspaper, in my textbook, 2 Tortz, ch. 15(B)(5)(c), "Reconsidering Sullivan," from page 516.

Judge chides attorney for not wearing coat

An Arkansas Supreme Court justice earlier this month called out a professor-attorney for not wearing a coat in a Zoom argument.

Associate Justice Courtney Rae Hudson took to task attorney and Professor Robert Steinbuch, Arkansas Little Rock, my colleague and past co-author on freedom-of-information works (book, essay), first, for not wearing a coat over his button-down shirt in the Zoom argument on February 2, and then for not having asked advance permission to use a demonstrative exhibit. She had the court and counsel wait painfully while Steinbuch and his attorney-client fetched coats.

Steinbuch probably should've worn a coat. He told Justice Hudson he had not because it interfered with his handling of the exhibit, a statutory text, within the small space of the camera view. Good excuse, bad excuse; either way, Justice Hudson's handling of the matter was condescending and, coming as it did after Steinbuch's argument, felt more personal than professional. My impression as a viewer was that Hudson was the one who came off looking worse for the exchange.

Being an aggressive advocate for transparency and accountability in Arkansas, Steinbuch has many allies in mass media, and they were not as gentlemanly about what went down as Steinbuch was. The aptly named Snarky Media Report made a YouTube video highlighting the exchange.  As Snarky told it, "Justice Hudson pulled out her Karen Card." Snarky also observed, with captured image in evidence, that "[s]everal times during the hearing Hudson appeared to be spitting into a cup."

More seriously, Snarky took the occasion to highlight past instances in which Hudson's ethics were called into question. Hudson (formerly Goodson), who was elected to the court in 2010, and her now ex-husband, a class action attorney, took two vacations abroad, valued together at $62,000, at the expense of Arkansas litigator W.H. Taylor (Legal Newsline). Hudson did report the gifts, and she said she would recuse from any case in which Taylor was involved.

Very well, but my suspicions of bias run a bit deeper. Hudson's vacation-mate ex, John Goodson, is chairman of the board of the University of Arkansas. (Correction, May 9, 2023: I'm told that Goodson ended his service on the board a year or so ago; I've not been able to ascertain the date.) One of Steinbuch's tireless transparency causes has been for Arkansas Freedom of Information Act access to the foundation funding of the university system in Arkansas, especially the flagship University of Arkansas, Fayetteville. Indeed, Steinbuch wrote just last week (and on January 29), in his weekly column for The Arkansas Democrat-Gazette, about that very issue in connection with secret spending at Arkansas State University. University System counsel have fought ferociously and successfully for decades to stop any lawsuit or legislative bill that would open foundation books to public scrutiny.

Goodson also has what the Democrat-Gazette characterized in 2019 as "deep political and legal connections around the state" with disgraced former state Senator Jeremy Hutchinson. Hutchinson is a nemesis of former Arkansas politician Dan Greenberg (a longtime friend of mine). After Greenberg lost the senate race to Hutchinson in 2010, Greenberg sued a local newspaper, alleging a deliberate campaign of misinformation. Steinbuch supported Greenberg in the suit. Though Greenberg was unable to demonstrate actual malice to the satisfaction of the courts, discovery in the suit revealed a problematically cozy relationship between the newspaper editor and Hutchinson.

The day after the oral argument in Steinbuch's case, Hutchinson was sentenced to 46 months in prison on federal charges of bribery and tax fraud—ironic, given that a false report of ethical misconduct was a rumor that Hutchinson had sewn about Greenberg in 2010. 

I don't know; maybe Justice Hudson just gets really hung up on men's attire.  She does hail from a conservative corner of Arkansas.

But a wise friend once told me, "Nothing in Arkansas happens for the reason you think it happens."

The case is Corbitt v. Pulaski County Jail, No. CV-22-204 (Ark. oral arg. Feb. 2, 2023).

Remembering journalist Paul Greenberg, 1937-2021

pxhere CC0 1.0

In April, our world lost a great American writer: Paul Greenberg died at age 84.

Long a nationally syndicated columnist writing from "small town" Arkansas, Greenberg won the Pulitzer Prize in 1969 for editorials on civil rights.  In D.C. Beltway circles, he is maybe best known for having given Bill Clinton the moniker "Slick Willie."  But Greenberg was no dogmatic partisan.  He described himself aptly as an "ideologically unreliable conservative."

Greenberg's politics were difficult to pin down, because he resisted labels and simply called the world as he saw it.  His parents immigrated from eastern Europe early in the 20th century, and their experience infused his morality and writing with a libertarian savor.  The same 20th-century-immigrant experience forged me, so I identify with the motivation.  An embrace of liberal immigration policy alongside a relentless insistence on conservative work ethic strikes some in America as a vulgar inconsistency, but, to me, strikes a sonorous chord.

Notwithstanding his famous wariness of Clinton politics, Greenberg was so much more than a political pundit.  A Jew from Shreveport, Louisiana (near my wife's home town), growing up during and after World War II, he was stocked with ample source material to inform comment on the American condition from a peculiar perch of simultaneous detachment and investment.  His writing exuded cultural fluency, from ancient wisdom to contemporary "fadtalk," as he termed it.  A Greenberg column could invoke the prophet Isaiah, philosopher Foucault, and Leonardo the mutant ninja turtle in one incisive analysis and scarce recognition of any juxtaposition.  Greenberg lionized early 20th-century editorialist William Allen White, whom he credited as having said, "A great editorial is one that says something everybody knows but nobody has said before."

A writer's writer, Greenberg wrote thoughtfully and lovingly, but always with profound humility, about the craft of editorializing.  In a column on the legacy of H.L. Mencken, Greenberg wrote of writing:

The first steps in the writing process may be painful as one watches what seemed a great idea fail the test of words, or turn into something entirely different.  But it is satisfying to watch something of form and substance emerge from the inchoate mass.  When it's well done, the writer feels like a sculptor chiseling away deftly at a block of stone.  If done poorly day after day, stroke after stroke, the effect on both writer and reader is more like that of the Chinese water torture.

Library of Congress Gottscho-Schleisner Collection (1950)

Greenberg lamented the gradual disintegration of journalism in the late 20th century and, as a student of Marshall McLuhan, fretted irascibly about the corrosive effects of ephemeral television.  He railed against the anti-intellectual condescension of the bullet point.  He wrote columns to a thousand-plus-word length that felt cordially readable, though a blog adviser today would animadvert as excessive.  (You're 450 words into this blog now; am I not tiresome?)  He insisted, "I remain convinced that anyone will read an editorial if it's irresistibly written."

I knew Paul Greenberg only by reputation and a degree of separation.  To me, mostly, he was a visage of halftone dots gazing into the world from the top of a broadsheet.  Greenberg's son, Dan, is a friend of mine, and a lawyer with whom I've been privileged to collaborate on many projects over the years.  Dan is possessed of obstinate integrity, humble yet profuse intellect, and earnest devotion to family.  So I always have appraised him as an apple that fell close to the tree.

When the news came that Paul Greenberg had died, I had a yearning to read more of his work, especially work that was not tied to the messy milieu of politics.  So I borrowed from the library a 1992 collection aptly titled, Entirely Personal.  The book compiled some of Greenberg's more intimate writings in chapters such as "family," "religion," "the writer," and "the small town."  These works predated my familiarity with Greenberg, so they were all new to me.  They were a treasure to unwrap.

I asked for, and Dan gave me, permission to share one his father's works from the book.  I had trouble choosing which.  I've read Entirely Personal twice now, and I've been struck time and again by how prescient the writings were, and how salient they remain.  There are superficial tells of their place in time—Ronald Reagan, Russians in Afghanistan, and appointment TV—yet, from these circumstances, Greenberg derived timeless observations that are equally meaningful in a world of Donald Trump, Americans in Afghanistan, and mass media overload.  There are surprisingly poignant pieces on family that speak eternal truths.  But, at this time of loss, they make me sad and seem intrusive—too personal. 

I was captivated especially by Greenberg's chapter on religion.  In the introduction, he recounted, "Someone once asked me how much of my writing was influenced by my being Jewish.  The immediate, spontaneous response that formed in my mind was: 'Every word, including and and the.'"  Besides his Jewish heritage and parents' immigrant experience, Greenberg grew up contemporaneously with the Holocaust.  Consistently with his proclivity for self-definition, his views were shaped invariably by witness.  He was, at once, spiritually conscious in his personal life and fervidly committed to the exclusion of religion from public life.

Thus, though it might be an unconventional choice, I found my favorite writing in the book in a column imitative in style.  In 1990, the Supreme Court issued a pair of key decisions on the religion clauses of the First Amendment.  In a case on the Establishment Clause, the Court permitted a Christian student club to meet in a public school over the objection of the school board.  One might expect a "conservative" and staunch advocate for the freedom of religion to applaud the decision.  To the contrary, Greenberg saw the decision as a threat to religion, specifically, to the freedom of church from state, an underlying theory of the Anti-Establishment Clause.  With devilish ingenuity, he wrote a cheeky retort as an addendum to The Screwtape Letters.

In memory of Paul Greenberg, great American writer, here is, "Letter from Below (With Apologies to C.S. Lewis)," published in June of 1990, and reprinted in Entirely Personal in 1992.  I'm not certain I agree entirely with Greenberg's absolutist stance on separationism.  But I understand and deeply appreciate the reckoning of his conviction.  Just as importantly, and characteristically, his witty observations speak also generally, and still today saliently, to the danger of majoritarian usurpation of individual self-determination.

Please note that this republication is made possible by special permission of Dan Greenberg.  The work is copyrighted by Paul Greenberg and is not covered by the Creative Commons license to this blog.

Enjoy.

---

Letter from Below

(With Apologies to C.S. Lewis)

June 4, 1990

My dear Wormwood,

The best of news. On the first anniversary of another of our great victories, the one in Tiananmen Square, your affectionate uncle happened to be glancing through the public prints, which are second only to television in promoting our cause, when my eye fell on the latest decision of the U.S. Supreme Court concerning church and state, both of which have been our province from time to time. It seems the distinguished justices have been busying themselves blurring the distinction between the two—a work that would be most dear to my heart if I had one.

This time the justices aren't deciding just when a religious symbol has become sufficiently irreligious to be displayed on public property (may they never tire of such work!) but rather how to make religion an extracurricular activity, which of course is what it should have been all along. What better way to keep it from being essential?

It shouldn't be long before the happy impression spreads that religion requires the support of the state, or at least the occasional use of a classroom. It's a start. Experience has shown that the more official a creed, the less appealing. See the paltry interest in the established churches of Western Europe. Or note the disaster that has befallen that most established of pseudo-religions, Communism, in the eastern part of the continent. It's enough to make you weep. 

I loved Sandra Day O'Connor's formulation for the majority of the court: "A school that permits a student-initiated and student-led religious club to meet after school, just as it permits any other student group to do, does not convey a message of state approval or endorsement of the particular religion." Do you think she has any inkling of what it does convey—namely, state approval of religion in general? And a state that can approve religion can disapprove it, too. Indeed, I think approval is much the more effective way to stifle the thing.

Religion-in-general, my dear Wormwood, is our great ally. It should be encouraged at every turn. I can just see the kiddies sitting around homeroom now, deciding which after-school clubs to join. ("I just can't make a choice, can you, Rebecca Jo? Chess, scuba diving or religion, they all sound like fun. Maybe I'll take religion. They say it improves your communications skills. ") It shouldn't be long before faith is treated as a nice, constructive after-school activity.

Religion, the real thing, can't be practiced in general—any more than language can be spoken in general. You have to choose a specific one. Religion-in-general has all the moral authority and emotional impact of Esperanto. Our mission is to replace belief with some safe, state-approved substitute. Once we extend a veneer of religiosity over the schools, the genuine article can be expected to fade away. Better to have the little suckers pray in school than in church or, even more dangerous, at home. Civil religion, that's the ticket, my dear nephew.

John Paul Stevens may represent something of a problem. Thank hell, he was the only dissenter from this lovely little ruling. Only he recognized that it comes "perilously close to an outright command to allow organized prayer … on school premises." Do you think he's on to our game, namely more and more organization, less and less personal prayer? We have to reduce prayer to something else—an extra-curricular activity, another government benefit, an opening ceremony, a public convenience … anything but an intimate experience. That's when it's dangerous.

Only when prayer and Bible study are officially recognized as wholesome activities conducive to better grades and order in the halls will we have defanged the saving thing. The trick is to make it an instrument—a technique, an extra-curricular activity, never a state of being, or all our subjects will be left open to the Enemy. We'll know we're succeeding when school Prayer Clubs start having their own letter jackets. What a great day it'll be when we make religion utterly dependent on peer pressure.

Justice O'Connor says a school can still ban disruptive groups. That's precisely the kind of prayer we want to encourage, Wormwood, the kind that doesn't disrupt anything, especially not our stock in trade: ordinary, routinely accepted, unnoticeable evil. Real prayer can be a powerfully disruptive influence. It can revolutionize the most stable society; never forget what befell poor Nineveh when its people unaccountably listened to that Jonah person against all reason. Yet prayer can also be the one thing that holds people together when everything else has collapsed around them. Perverse, unpredictable thing, prayer. It needs to be put in the care of the proper authorities, namely the state.

Isn't the name of the law that the court upheld perfect? The Equal Access Act of 1984. I love it. The great problem with the First Amendment, which so long has stood in our way, is precisely that it does not provide equal access to religion. Government is explicitly barred from passing any law having to do with its establishment. Religion is set apart, as if it were something holy. Government is told not to touch it or even come close to it. This is intolerable, Wormwood. Only by bringing religion under the state's authority, by rendering unto Caesar what isn't his, can we blur the essence of religion, which is the separation of the holy and the profane. This decision should help.

The great challenge facing religion is not equal access to the world but how to retain enough integrity to stay distinguishable from the world. My fellow demon Glittercut did a good night's work when he invented Success Theology. Our job, my young protege, is to make religion indistinguishable from the world, one more extra-curricular activity. The last temptation—mastery of the powers and principalities—is still the most effective. As the world giveth, so give we.

What we've got to do is get people thinking of religion as something educational, beneficial, a means to some greater social end, an institution wholly worthy of a little government support—a tuition grant here and there, or a place to meet in the schools. We've got to get it on the dole. That way it won't go off on its own with unpredictable results. It needs to be woven smoothly into the social fabric so it can be corrupted with everything else. Left alone, there's no telling where it may spread. The Enemy can be dangerous when left to His own strange devices. Be warned, young demon, He is never stronger than when He appears weak in the eyes of the world.

Have you noticed the enthusiasm this ruling has kindled among many of the faithful? It's an inspiring sight. They've been handed a stone and think it's bread. Delicious.

That's about all the news from down under. I'm still vying with my old rival Gallclaws for the next GS-16 rating in the bureaucracy. The competition here is, of course, hellish. But news like this cheers me.

Your affectionate uncle,

Screwtape

© 1992 Paul Greenberg

---

Read more from Paul Greenberg at Jewish World Review, in one of his books, or in your preferred news archive.  The Greenberg family plans to archive his papers.