By Morgan Kleinhandler

There is no doubt that the advance of modern technology has allowed for an increase in the interconnected nature of American society.[1]  Specifically, the popularity of smartphones has allowed for a new level of immediate interconnectedness that was previously impossible. [2] With this rise in technology has come a new form of human interaction that can lead to dangerous and irreparable consequences[3]—for example, encouraging the suicide of another through text messaging.  A new legal precedent has been set in Massachusetts to deter this type of encouragement, making it a criminally punishable offense to encourage suicide through texting.[4]  In many states, it is illegal to assist in the suicide of another, and being found guilty of doing so will result in criminal liability.[5]  As technology has evolved, the state of Massachusetts has made national headlines for including the encouragement of suicide through text message as an illegal and punishable form of assisting in a suicide.[6]

In 2017, Michelle Carter was found guilty in Massachusetts state court for encouraging her boyfriend, Conrad Roy, to commit suicide through thousands of text messages.[7]  Similarly, this past month, on December 23, 2021, Inyoung You pleaded guilty in Massachusetts to assisting in the suicide of her boyfriend, Alexander Urtula, through about 47,000 text messages.[8]  Both cases have grabbed national attention[9] and have opened Americans’ eyes to the way that communication through technology can lead to dire consequences.

The Supreme Court has established that the right to suicide is not a fundamental or liberty interest protected by the Constitution, and governmental impairment to the right to suicide will receive the lowest level of scrutiny from the courts.[10]  However, the First Amendment establishes the right to free speech for all citizens,[11] which the Supreme Court has long interpreted.[12]  The Supreme Court has held that the First Amendment, which states that “Congress shall make no law . . . abridging the freedom of speech,”[13] establishes a “fundamental personal right[]”[14] to free speech which can only be impaired by the government if such impairment survives strict scrutiny.[15]  Because the right to suicide is not constitutionally protected and receives minimal scrutiny[16] whereas government impairment on freedom of speech receives the highest level,[17] some courts have held that encouraging another’s suicide will be punishable only if strict scrutiny for such punishment is met.[18]  For these reasons, the Minnesota Supreme Court held that verbal encouragement to another person before that person’s suicide is constitutionally protected speech that could not be criminally punishable because it does not survive strict scrutiny.[19]

The State of Massachusetts interpreted the situation differently, however, finding that when speech constitutes the crime of involuntary manslaughter, First Amendment rights are not affected.[20]  In the case of Michelle Carter, the court clarified that it was not simply Carter’s words that were being punished; it was “reckless or wanton words causing death” that constituted a crime.[21]  The court held that even though Carter committed the crime of involuntary manslaughter using just words, she could not “escape liability” through First Amendment protection.[22]  Thus, because Carter’s illegal conduct was being punished, and not Carter’s speech alone, her First Amendment right to free speech was not violated.[23] 

Massachusetts also concluded restriction of verbal encouragement of suicide could pass strict scrutiny even if the First Amendment applied because the state “has a compelling interest in deterring speech that has a direct, causal link to a specific victim’s suicide.”[24]  On appeal, the court affirmed that the state had a justifiable reason to restrict Carter’s speech, holding that the state has a “compelling interest in preserving life.”[25]  Through Massachusetts’s reasoning, because states have a compelling interest in deterring citizens from committing suicide, especially with the encouragement of others leading to the suicide,[26] the constitutional protections provided by the First Amendment may be overcome in cases like Michelle Carter and Inyoung You.

The Massachusetts court in Carter did point out, however, that the elements of involuntary manslaughter charges must be met on a case-by-case basis to rightfully prove that charge in the case of encouraging suicide through text message.[27]  In Massachusetts specifically, in order to prove involuntary manslaughter, the state must prove that the defendant caused the death of another through wanton or reckless behavior or failure to act.[28]  These elements align with many other states’ laws on involuntary manslaughter.[29] In Carter’s case, the court found that her text messages were enough to prove she committed involuntary manslaughter.[30]  The court reasoned that because Carter had such a close relationship with her boyfriend and because her text messages were so supportive and temporally close to Roy’s suicide that they were a probable cause of his suicide.[31]  Carter’s case was appealed to the United States Supreme Court, but the Court denied the petition for writ of certiorari,[32] suggesting that the Court may agree with Massachusetts’s analysis on the matter.

Michelle Carter’s sentence was the first time an American has been punished for encouraging the suicide of another using only text messaging.[33]  A few years later, Inyoung You’s sentencing following a guilty plea for a near-identical situation shows a trend in punishing text messages which explicitly encourage the suicide of another.[34]  Although both Carter and You’s cases occurred in Massachusetts, this trend of punishing those who actively encourage and contribute to the suicide of another using technological communication could very well become a trend throughout the states.


[1] Ray Zinn, The Interconnectedness of Things, Forbes (Dec. 15, 2017, 9:00 AM), https://www.forbes.com/sites/forbestechcouncil/2017/12/15/the-interconnectedness-of-things/?sh=18e1245865d1.

[2] Christian Jarrett, How Are Smartphones Affecting Our Relationships?, World Econ. Forum (Nov. 3, 2015), https://www.weforum.org/agenda/2015/11/how-are-smart-phones-affecting-our-relationships/.

[3] See generally Melissa Locker, Two Young Women Have Been Accused of Persuading Their Boyfriends to Kill Themselves—but Why?, Health (Jan. 24, 2020), https://www.health.com/mind-body/inyoung-you-case-commit-suicide (discussing how texting can lead to more detached feelings and judgments).

[4] Commonwealth v. Carter, 115 N.E.3d 559 (2019), cert. denied 140 S. Ct. 910 (2020).

[5] Sierra Taylor, Comment, Kill Me Through the Phone: The Legality of Encouraging Suicide in an Increasingly Digital World, 2019 BYU L. Rev. 613, 627 (2020).

[6] Locker, supra note 3.

[7] Carter, 115 N.E.3d at 561–62, 574.

[8] Marisa Sarnoff, Inyoung You Pleads Guilty in Boston Manslaughter-by-text Case, Can’t Profit from Story, Bos. Herald, https://www.bostonherald.com/2021/12/23/inyoung-you-pleads-guilty-in-boston-manslaughter-by-text-case-cant-profit-from-story/ (Dec. 23, 2021, 8:11 PM); Locker, supra note 3.

[9] Sarnoff, supra note 8; Locker, supra note 3.

[10] Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[11] U.S. Const. amend. I.

[12] See, e.g., Gitlow v. New York, 268 U.S. 652, 666–69 (1925); Cohen v. California, 403 U.S. 15, 23–26 (1971); Reno v. Am. C.L. Union, 521 U.S. 844, 870–74 (1997).

[13] U.S. Const. amend. I.

[14] Gitlow, 268 U.S. at 666.

[15] Id.

[16] Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[17] Gitlow, 268 U.S. at 666.

[18] State v. Melchert-Dinkel, 844 N.W.2d 13, 24 (Minn. 2014); cf. Commonwealth v. Carter, 115 N.E.3d 559, 572 (Mass. 2019), cert. denied 140 S. Ct. 910 (2020).

[19] Melchert-Dinkel, 844 N.W.2d at 24.

[20] Carter, 115 N.E.3d at 572.

[21] Id.

[22] Id. at 570.

[23] Id. at 571.

[24] Commonwealth v. Carter, 52 N.E.3d 1054, 1064 n.17 (Mass. 2016), aff’d, Carter, 115 N.E.3d 559.

[25] Carter, 115 N.E.3d at 572.

[26] Id.

[27] Carter, 52 N.E.3d at 1063.

[28] Carter, 115 N.E.3d at 569.

[29] See 40 C.J.S. Homicide § 127 (2021) (describing broad elements of involuntary manslaughter statutes).

[30] Id.at 568.

[31] Id.

[32] Carter v. Massachusetts, 140 S. Ct. 910 (2020).

[33] Locker, supra note 3.

[34] Id.


Post image by Helen Harrop on Flickr

By Kyle Brantley

It’s that time of day.  Your child is positioning the antenna just right in order to catch their favorite broadcast TV show.  No, that doesn’t sound quite right.  They are actually dialing up the old FM radio for their favorite weekly jamboree!  No, that’s definitely not happening.  Instead, kids today consume their entertainment through mobile devices—a recent study estimates that 90 percent of children have cell phones by the age of eleven and that on average they spend over three hours on that device per day.[1]

Given the realities of how today’s children access content, one would think that the legal doctrine for policing explicit TV/radio content would morph to accommodate the internet.  However, there is a double standard currently in place.  A high bar for obscene, indecent, and profane content exists on the broadcast airwaves.[2]  In contrast, there is no discernable regulation of expression on the internet.[3]

The lack of internet content policing stems from the First Amendment right to freedom of expression.[4]  While the First Amendment has a broad baseline standard,[5] the government limits what can be said in a few key areas including (but not limited to) fighting words,[6] incitement,[7] obscenity,[8] and indecent speech that invades the privacy of the home.[9]  The overarching authority for the latter still has its roots in FCC v. Pacifica Foundation.[10]  In Pacifica, a New York radio station aired a previously recorded skit by the comedian George Carlin entitled Dirty Words in which he expressed all of the curse words that he thought were disallowed on the public airwaves.[11]  The Supreme Court took issue with the airing of that slot in the middle of the afternoon and honed in on two overriding motivators for censoring the curse words used in the segment: (1) the unique pervasive access of the broadcast airwaves, and (2) the susceptibility of children to be exposed to the content.[12]  

Those overarching reasons delineated in Pacifica still form the basis for FCC guidance that broadcast providers must follow.[13]  The FCC currently prohibits indecent conduct that “portrays sexual or excretory organs” and profane conduct like “‘grossly offensive’ language that is considered a public nuisance.”[14]  Notably, these rules only apply to the major broadcast TV stations (e.g., ABC, NBC, FOX, PBS, etc.)[15] and FM/AM radio from 6:00 a.m. to 10:00 p.m.[16]  Cable and satellite TV are excluded since those are pay-for-service options.[17]

Twenty years later, the federal government saw a need to implement baseline measures for explicit content that children could access on the internet when it included specific protection provisions for “indecent and patently offensive communications” within the Communications Decency Act.[18]  The Supreme Court struck down that portion of the act in Reno v. ACLU[19] when it reasoned that, “[u]nlike communications received by radio or television, ‘the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial.  A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended.’”[20]  The Court then dug in its heels by saying “the Internet is not as ‘invasive’ as radio or television”[21] and that “users seldom encounter [sexually explicit] content accidentally.”[22] 

Times have changed since the Court decided Reno in 1997.  Today, internet access is often unabated, and one can easily stumble upon far more sexually explicit material than could be fathomed on the traditional broadcast airwaves.[23]  How many deliberative and affirmative steps does it take for a TikTok video to pop in front of your face?[24]  How about an Instagram post as you scroll down on your home page?  What about a tailored ad on the side of an otherwise mundane web page?  Apps like TikTok and Instagram present endless amounts of new revealing and potentially vulgar images and sounds automatically—the new videos will simply appear after the previous one ends.[25]  

Another example of a potential hazard that a child can stumble upon is pornography.  Porn’s online proliferation has been well documented; Pornhub, the world’s largest porn site, has 100 billion video views per year[26] and 130 million unique viewers per day. [27]  Twenty-five percent of those users are between the ages of eighteen and twenty-four.[28]  In contrast, only 4 percent of users are over the age of sixty-five.[29]  Its user traffic exceeds that of both Netflix and Yahoo.[30]  Eighty percent of that traffic comes from mobile devices.[31]  This pervasive medium can be accessed with as little as two clicks from Google’s homepage or an errant link from social media.[32]  

While the effects of easily accessible porn on children are still being studied, early experiments have shown that heavy porn consumption can lead to body shaming, eating disorders, and low self-esteem.[33]  There are many other issues with porn access beyond the mental effect on children that are actively being debated, including Pornhub’s lack of adequate age screening for its users and its blatantly illegal acts of profiting off children’s pornography.[34]  Big Tech is also finally getting the hint that they have skin in the game too as they begrudgingly start to put in age verification safeguards of their own.[35]  

When reevaluating the factors employed in Pacifica, it becomes clear that the two-prong test originally used for radio broadcasts is now satisfied on the internet.[36]  The ubiquitous access children have to the internet via smartphones demonstrates that the medium is pervasive.[37]  Children are susceptible to exposure to indecent content because of the ease of access through two quick clicks from Google,[38] automatic video recommendations on social media,[39] and the sheer popularity of porn content amongst their peers who are just a few years older than they are.[40]  The concern in Reno around the lack of a “series of affirmative steps” needed to access illicit content on the internet[41] is outdated because of the automatic content that will load on apps like TikTok and Instagram.[42]  Similarly, the majority of children as young as seven years old have both smartphones and the sophistication to seamlessly access the internet, even though they may not fully understand the ramifications of some of their content choices.[43]

Balancing the government’s interest in limiting children’s exposure to indecency and profanity with the right to express ideas freely online is no easy task.[44]  However, other countries have found ways to regulate the extreme ends of the porn industry and children’s access to such content.[45]  No matter where one stands on the issue, it is abundantly clear that the traditional view of mundane curse words encountered on broadcast television is not compatible with the endless explicit content that is so easily displayed on smartphones.  Both are uniquely pervasive and are accessible to children with minimal effort or “steps.”[46]  One of the two doctrines should evolve. 


[1] See Most Children Own Mobile Phone by Age of Seven, Study Finds, The Guardian (Jan. 29, 2020, 19:01 EST), https://www.theguardian.com/society/2020/jan/30/most-children-own-mobile-phone-by-age-of-seven-study-finds.

[2] See Obscene, Indecent and Profane Broadcasts, FCC, https://www.fcc.gov/consumers/guides/obscene-indecent-and-profane-broadcasts (Jan. 13, 2021) [hereinafter Obscene, Indecent and Profane Broadcasts].

[3] See Rebecca Jakubcin, Comment, Reno v. ACLU: Establishing a First Amendment Level of Protection for the Internet, 9 Univ. Fl. J.L. Pub. Pol’y 287, 292 (1998).

[4] See id.; U.S. Const. amend. I.

[5] See Jakubcin, supra note 3, at 288.

[6] See Cohen v. California, 403 U.S. 15, 20 (1971); Chaplinksy v. New Hampshire, 315 U.S. 568, 572, 574 (1942).

[7] See Brandenburg v. Ohio, 395 U.S. 444, 447, 449 (1969); Schenk v. United States, 249 U.S. 47, 52 (1919).

[8] See Miller v. California, 413 U.S. 15, 24 (1973).

[9] See 18 U.S.C. § 1464.

[10] 438 U.S. 726 (1978).

[11] Id. at 729–30.

[12] See id. at 748–50.

[13] Obscene, Indecent and Profane Broadcasts, supra note 2.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] See Am. C.L. Union v. Reno, 929 F. Supp. 824, 850 (E.D. Pa. 1996), aff’d, Reno v. Am. C.L. Union, 521 U.S. 844, 849 (1997).

[19] Reno, 521 U.S. at 854.

[20] Id. (emphasis added) (quoting Am. C.L. Union, 929 F. Supp. at 845).

[21] Id. at 869.

[22] Id. at 854.

[23] See Byrin Romney, Screens, Teens, and Porn Scenes: Legislative Approaches to Protecting Youth from Exposure to Pornography, 45 Vt. L. Rev. 43, 49 (2020).

[24] See generally Inside TikTok’s Algorithm: A WSJ Video Investigation, Wall St. J. (July 21, 2021, 10:26 AM), https://www.wsj.com/articles/tiktok-algorithm-video-investigation-11626877477 (demonstrating how TikTok’s algorithm pushes users towards more extreme content with recommendations that load automatically without any additional clicks).

[25] Id.

[26] Pornhub, https://www.pornhub.com/press (last visited Nov. 16, 2021).

[27] The Pornhub Tech Review, Pornhub: Insights (Apr. 8, 2021), https://www.pornhub.com/insights/tech-review.

[28] The 2019 Year in Review, Pornhub: Insights (Dec. 11, 2019), https://www.pornhub.com/insights/2019-year-in-review.

[29] Id.

[30] Joel Khalili, These Are the Most Popular Websites Right Now –  And They Might Just Surprise You, TechRadar (July 13, 2021), https://www.techradar.com/news/porn-sites-attract-more-visitors-than-netflix-and-amazon-youll-never-guess-how-many.

[31] The Pornhub Tech Review, supra note 27.

[32] See Gail Dines, What Kids Aren’t Telling Parents About Porn on Social Media, Thrive Global (July 15, 2019), https://thriveglobal.com/stories/what-kids-arent-telling-parents-about-porn-on-social-media/.

[33] Id.

[34] Nicholas Kristof, The Children of Pornhub, N.Y. Times (Dec 4, 2020), https://www.nytimes.com/2020/12/04/opinion/sunday/pornhub-rape-trafficking.html.

[35] See David McCabe, Anonymity No More? Age Checks Come to the Web, N.Y. Times (Oct. 27, 2021), https://www.nytimes.com/2021/10/27/technology/internet-age-check-proof.html.

[36] See FCC v. Pacifica Found., 438 U.S. 726, 748–50 (1978).

[37] See Most Children Own Mobile Phone by Age of Seven, Study Finds, supra note 1.

[38] Dines, supra note 32.

[39] See Inside TikTok’s Algorithm: A WSJ Video Investigation, supra note 24.

[40] See, e.g., The 2019 Year in Review, supra note 28.

[41] See Reno v. Am. C.L. Union, 521 U.S. 844, 854 (1997)

[42] See Inside TikTok’s Algorithm: A WSJ Video Investigation, supra note 24.

[43] See Most Children Own Mobile Phone by Age of Seven, Study Finds, supra note 1.

[44] See Romney, supra note 23, at 97.

[45] See Raphael Tsavkko Garcia, Anti-Porn Laws in Europe Bring Serious Privacy Issues, Yet They’re Fashionable As Ever, CyberNews (Nov. 30, 2020), https://cybernews.com/editorial/anti-porn-laws-in-europe-bring-serious-privacy-issues-yet-theyre-fashionable-as-ever/.

[46] Cf. Reno, 521 U.S. at 854; FCC v. Pacifica Found., 438 U.S. 726, 749–50 (1978).


Post image by ExpectGrain on Flickr.

By: Joseph C. Johnson

On May 5, 2019, Dillon Webb was pulled over by a sheriff’s deputy in Columbia County, Florida, for a sticker that read “I EAT A*S” on the rear window of his truck.[1]  Webb was arrested under a Florida obscenity statute after refusing to alter the sticker, and the officers that made the arrest were granted qualified immunity.[2]  Similarly, Paul Robert Cohen was convicted under a California obscenity statute in 1971 for wearing a jacket that read “F**k the Draft” in a California county courthouse.[3]  However, the Supreme Court of the United States held that a state may not criminalize the public display of an expletive without a specific, compelling reason.[4]  On the surface, these two cases appear to ask the same question–whether a state may prohibit the public display of an obscene word or phrase without violating the constitutional rights granted by the First Amendment.  So why were the officers in Webb’s case granted qualified immunity while the First Amendment protected Cohen’s jacket from a similar obscenity statute?

In Cohen’s case, the constitutional protection of his speech depended on the context in which he displayed the four-letter word.[5]  There, Cohen donned the jacket he had emblazoned with “F**k the Draft” in the Los Angeles County Courthouse corridor.[6]  He testified that he wore the jacket “as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.”[7]  In its analysis, the Supreme Court found that his jacket’s message was not erotic in nature–that it would not “conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket”–and thus, it was not truly a question of obscenity.[8]  The Court reversed Cohen’s conviction for several reasons, the most relevant of which here are (1) forbidding particular words creates a high risk of suppressing ideas, and (2) that “linguistic expression . . . conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.”[9]  This decision illuminated a specific area of speech that the First Amendment protects and warned against government bans on specific words to prevent the expression of unpopular views.[10]

To distinguish Webb’s case involving his window sticker, the United States District Court for the Middle District of Florida focused on the context of his arrest.[11]  Sheriff’s deputy English noticed Webb’s sticker at a stoplight and stopped Webb’s vehicle because he believed the sticker to violate Florida’s obscenity statute.[12]  Deputy English commanded Webb to remove a letter from the window sticker, but Webb refused to do so under the claim that the First Amendment protection of free speech included his window sticker.[13]  Deputy English contacted his supervisor and subsequently arrested Webb and had his vehicle towed.[14]  This case boiled down to Deputy English’s belief at the time that his actions were within the state’s power.[15]  The District Court found that a reasonable officer in Deputy English’s position could have reasonably believed that Webb’s sticker depicted a sexual act, thus potentially violating Florida’s obscenity statute.[16]  This reasonable belief, supported by Webb’s contention that the sticker was sexual in nature, granted qualified immunity to Deputy English and his supervisor.[17]  The Court put particular emphasis on the sexual nature of Webb’s sticker, citing this as the reason that it is distinct from similar cases–indeed, using it to distinguish the case from Cohen specifically.[18] 

The District Court for the Middle District of Florida held that an officer could have reasonably believed that the sticker was obscene per Florida’s obscenity laws, which was distinct from Cohen’s jacket.[19]  On the other hand, Cohen’s jacket was constitutionally protected because it was not erotic in nature despite the expletive on it.[20]  As such, a rule regarding public displays of expletives is further illuminated.  So long as the message cannot be reasonably interpreted to depict a sexual act or be otherwise erotic in nature, it will be constitutionally protected despite the expletives it includes.


[1] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist.  LEXIS 181927, at *2 (M.D. Fla. Sept. 23, 2021).

[2] Id. at *4, *19–21.

[3] Cohen v. Cal., 403 U.S. 15, 16 (1971).

[4] Id. at 26.

[5] Id. at 19–21.

[6] Id. at 16.

[7] Id. at 16 (citing 81 Cal. Rptr. 503, 505 (1969)).

[8] Id. at 20.

[9] Id. at 26. 

[10] Columbia University, Cohen v. California, Global Freedom of Expression (Oct. 9, 2021, 3:00 PM),  https://globalfreedomofexpression.columbia.edu/cases/cohen-v-california/.

[11] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist.  LEXIS 181927, at *2–7 (M.D. Fla. Sept. 23, 2021).

[12] Id. at *2.  See Fla. Stat. § 847.011.

[13] Webb v. English, 2021 U.S. Dist.  LEXIS 181927, at *3.

[14] Id. at *4.

[15] Id. at *14–21.

[16] Id. at *18.

[17] Id. at *19–22.

[18] Id. at *18–26.

[19] Id. at *26.

[20] Cohen v. Cal., 403 U.S. 15, 20 (1971).

By Grace Koppenheffer

When systems work as expected, people generally are content to let such systems work in the background—the shadows—without needing to know the details. When those same systems start producing different and unexpected results, however, people want to shine a light into the shadows to understand, diagnose, and if needed, fix the system.

The concept of the shadow docket has been around since the Supreme Court’s inception,[1] but the term itself was first coined in 2015 by William Baude to refer to the Court’s “range of orders and summary decisions that defy its normal procedural regularity.”[2] Unlike the more well-known process of the “merits docket,” where the Court writes an opinion after multiple rounds of briefing and oral arguments, rulings from the shadow docket almost always come as orders from either a single Justice or the Court.[3] These orders usually come after only one round, or less, of briefing, do not contain a majority opinion nor reasoning, and most of the time provide no record of voting.[4] Because these orders can be handed down at any time—even in the middle of the night—and lack transparency, “these rulings come both literally and figuratively in the shadows.”[5]

Although the Court issues thousands of orders via the shadow docket each year, until recently, many did not pay much attention to the shadow docket because it was meant to resolve “unremarkable scenarios.”[6] For example, the Court has utilized the shadow docket to issue uncontentious decisions such as denying uncontroversial petitions for certiorari, denying petitions that clearly did not meet the criteria for emergency relief, granting additional time for parties to file briefs, and other procedures related to the Court.[7] Recently, however, the shadow docket has faced increased scrutiny focusing on a relatively small subset of cases that employ the shadow docket to seek emergency relief.

Although the Supreme Court has the power to grant emergency relief through issuing injunctions, and issuing and lifting stays,[8] the Court recognizes that these are “drastic and extraordinary remedies,”[9] which should be granted only when “adequate relief cannot be obtained in any other form or from any other court.”[10] In order to circumvent the typical appeals process and petition the Court for emergency relief, petitioners must show that “irreparable harm [will] result from the denial of a stay.”[11]

Congress has begun investigating the Court’s emergency relief orders because of the increased number and variety of cases for such relief.[12] Between 2001 and 2017, the Department of Justice only filed eight applications for emergency relief.[13] During the four years of the Trump administration, however, the Department of Justice filed forty-one such petitions, twenty-four of which were granted in full, and four in part.[14]

Additionally, the types of cases on which the Court has rendered decisions through the shadow docket has not only broadened, but also has become more divisive.[15] Although there were some controversial rulings via the shadow docket in the past, most of these decisions concerned elections and the death penalty.[16] In the last few years, shadow docket decisions have expanded to include cases regarding the border wall,[17] gathering restrictions due to COVID-19,[18] federal executions,[19] abortion bans,[20] eviction moratoriums,[21] and immigration policy regarding asylum seekers.[22] The Justices, like the public, have also been divided on these controversial issues. Of the eight emergency relief applications filed by the Justice Department between 2001 and 2017, only one had a dissent.[23] Conversely, in twenty-seven of the thirty-six[24] orders regarding the emergency relief applications filed during the Trump administration, at least one Justice publicly dissented.[25] Moreover, during the October 2019 Term, the number of 5-4 decisions from the shadow docket was almost equal to the number of 5-4 decisions on the merits docket.[26]

A major criticism of the recent orders the Court has issued via the shadow docket is that they are inconsistent with one another and with past precedent, leading some to view the decisions as advancing policy rather than the law.[27] In some cases, the Court has changed substantive law through emergency relief orders, articulating new constitutional rules to support such relief.[28] For example, in Tandon v. Newsom,[29] the Court issued an emergency injunction against a California law that prohibited in-home gatherings, including Bible studies and prayer meetings.[30] In its order, the Court adopted an expansive view of the First Amendment’s Free Exercise Clause which “no prior majority opinion had ever adopted. . . .”[31]

Conversely, in other cases, the Court has refused to grant emergency relief for constitutional rights. For instance, in Whole Woman’s Health v. Jackson,[32] the Court denied injunctive relief regarding a Texas law banning abortions after a heartbeat is detected, which is usually around six weeks.[33] Although the Court explicitly stated the “order [was] not based on any conclusion about the constitutionality of Texas’s law,”[34] such a denial of injunction for “an obviously unconstitutional abortion regulation,”[35] defies precedent in such situations and led some to conclude that “the [C]ourt is advancing a partisan political agenda and not a legal one.”[36] When the Court uses the shadow docket to create a new interpretation of the First Amendment in one case but then refuses to utilize it to extend protection to an existing fundamental right in another, critics worry that such inconsistencies undermine the legitimacy of the Court.[37]

There are myriad problems with the recent shadow docket emergency relief cases. For one, the timing of these decisions, which can be handed down late at night,[38] and the usual absence of knowing which way Justices voted create opacity in the system.[39] Moreover, shadow docket orders often do not provide any reasoning for the decisions they hand down, making “it impossible to scrutinize the merits of the Court’s action in far too many of these cases.”[40] Due to this lack of reasoning, it is challenging for lower courts to know how to apply these decisions in subsequent cases, even though such orders are now meant to be treated as precedent.[41] Additionally, other interested parties do not provide input and the Court does not have the benefit of hearing oral arguments.[42] All of these issues ultimately culminate in reducing the Court’s legitimacy.[43]

In her dissent in Whole Woman’s Health, Justice Kagan denounced the majority’s decision stating, “[it] is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.”[44] The Court’s new approach to emergency relief petitions via the shadow docket has garnered greater scrutiny of this system, shining a light into the shadowy process. Whether this new light allows the shadow docket decision making to continue, or whether Congress or the Court itself will attempt to recalibrate the system, remains to be seen.


[1] The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Int. of the H. Comm. on the Judiciary, 117th Cong. 1 (2021) (statement of Stephen I. Vladeck, Charles Alan Wright Chair Fed. Cts., U. Tex. Sch. L.), https://www.justsecurity.org/wp-content/uploads/2021/02/Vladeck-Shadow-Docket-Testimony-02-18-2021.pdf.

[2] William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015).

[3] The Supreme Court’s Shadow Docket, supra note 1, at 1–2.

[4] Id. at 2.

[5] Id.

[6] Samantha O’Connell, Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives, Am. Bar Ass’n: Project Blog (Apr. 14, 2021), https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-shadow-docket-under-review-by-house-reps/.

[7] The Supreme Court’s Shadow Docket, supra note 1, at 2.

[8] See 28 U.S.C. § 1651; 28 U.S.C. § 2101(f).

[9] Ex parte Fahey, 332 U.S. 258, 259 (1947).

[10] Sup. Ct. R. 20(1) (2019).

[11] Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (quoting Rostker v. Goldberg, 448 U.S. 1306, 1308 (Brennan, J., in chambers)).

[12] Mark Joseph Stern, Congress Finally Scrutinizes One of SCOTUS’s Most Disturbing Practices, Slate (Feb. 18, 2021, 6:53 PM), https://slate.com/news-and-politics/2021/02/supreme-court-shadow-docket-house-hearing.html.

[13] The Supreme Court’s Shadow Docket, supra note 1, at 4.

[14] Id. at 4–5.

[15] Id. at 5–6.

[16] Id. at 2–3.

[17] Trump v. Sierra Club, 140 S. Ct. 2620, 2620 (2020) (mem.).

[18] South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021) (mem.).

[19] Montgomery v. Rosen, 141 S. Ct. 1144, 1144 (2021) (mem.).

[20] Whole Woman’s Health v. Jackson, No. 21A24, slip op. at 1 (2021) (mem).

[21] Ala. Ass’n Realtors v. Dep’t Health & Hum. Servs., No. 21A23, slip op. at 1 (2021) (per curiam) (mem.).

[22] Biden v. Texas, No. 21A21, slip op. at 1 (2021) (mem.).

[23] The Supreme Court’s Shadow Docket, supra note 1, at 5.

[24] Four of the total forty-one applications were withdrawn and one was held in abeyance. Id., at 4–5.

[25] Id. at 5.

[26] Id.

[27] Steve Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently., Wash. Post (Sept. 23, 2021, 10:43 AM), https://www.washingtonpost.com/outlook/2021/09/03/shadow-docket-elena-kagan-abortion/

[28] Stephen I. Vladeck, Opinion, The Supreme Court Is Making New Law in the Shadows, N.Y. Times (Apr. 15, 2021), https://www.nytimes.com/2021/04/15/opinion/supreme-court-religion-orders.html

[29] 141 S. Ct. 1294 (2021) (per curiam) (mem.).

[30] Stephen I. Vladeck, The Supreme Court Is Making New Law in the Shadows, supra note 28.

[31] Id.

[32] No. 21A24 (S. Ct. Sept. 1, 2021) (mem.).

[33] Id. at 1–2.

[34] Id. at 2.

[35] Id. at 1 (Kagan, J., dissenting).

[36] Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently, supra note 27.

[37] Id.

[38] In 2020, two orders allowing the first federal executions in seventeen years were handed down at 2:10 am EST and 2:46 am EST. Another shadow docket was been handed down at 11:56 pm the night before Thanksgiving.  The Supreme Court’s Shadow Docket, supra note 1, at 13–14.

[39] Id. at 13.

[40] Id.

[41] Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently, supra note 27.

[42] The Supreme Court’s Shadow Docket, supra note 1, at 14.

[43] Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently, supra note 27.

[44] Whole Woman’s Health, No. 21A24, slip op. at 1–2 (Kagan, J., dissenting).

100+ Free Lgbt & Gay Images - Pixabay

Jordan Peterson

It is no secret that federal policymakers usually propose a bill with no expectation that it will pass into law. In some cases, they do this because they want to start a conversation about an important topic.[1] One such topic that has been at the forefront of the American political thought for some time now (and where there has been a dearth of collaborative communication between political ideologies) is how to properly balance Constitutional guarantees of the free exercise of religion with the civil rights of the LGBTQ+ community.[2]

Now that President Biden and Vice-President Harris have been elected and the Democratic party controls both the house and the senate, we can look forward to a great deal more discussion about the proposed Equality Act which adds sex (including sexual orientation and gender identity) to the civil rights act of 1964.[3] This bill seeks to alleviate the discrimination leveled at members of the LGBTQ+ community,[4] but it carries its own poison pill in a clause that subordinates the 1993 Religious Freedom Restoration Act to the Equality Act.[5] This clause would deny religious exemptions from churches or religious non-profit employers.[6] And while it certainly guarantees unfettered civil rights to LGBTQ+ Americans, it raises issues of constitutionality by preventing some religious persons from freely exercising their religion.[7]

President Biden has promised members of the LGBTQ+ community to make the Equality Act a top legislative priority for his first 100 days in office,[8] but the bill may run into trouble in the form of filibusters and a conservative Supreme Court.[9] Remember, legislation is often proposed — in our system of checked and balanced governance — to spark conversation about an important topic. The realistic best-case scenario for LGBTQ+ rights advocates in this situation would be to begin negotiating with conservative legislators to find a constitutionally sound compromise.

One such collaboration has already been proposed as another bill: the Fairness for All Act.[10] This bill accomplishes some of the goals of the Equality Act by adding sexual orientation and gender identity to the Civil Rights Act, but it explicitly exempts religious institutions and non-profits from having to hire, lodge, or otherwise refrain from discriminating against members of the LGBTQ+ community.[11]

The Fairness for All Act was inspired by similar legislation passed by the Utah State Legislature in 2015, which guaranteed equal protection in employment and housing for all persons regardless of their sexual identity.[12] This bill, dubbed “The Utah Compromise,”[13] passed in a historically Republican state and preceded the recent Supreme Court ruling Bostock v. Clayton County, Georgia (which guaranteed equal protection in the workplace to homosexual and transgender individuals[14]) by five years.[15] It came about through the collaboration of religious institutions like the Church of Jesus Christ of Latter-day Saints and civil rights activists like the American Civil Liberties Union.[16]

The Utah Compromise was soundly criticized by Christian conservatives and liberal friends of the LGBTQ+ community who all worried that other states would follow the example of Utah.[17] Why? Because it was a true collaboration — one where neither party gets to have their cake and eat it too. Conservatives griped that it was unnecessary, that it restricted the religious freedom of small businesses, and that the only religious protection it offered was already guaranteed in the First Amendment.[18] On the other side, many LGBTQ+ advocates complained that it reserved the rights of religious institutions and non-profits to discriminate against people within their institutions and programs.[19] However, what Utah legislators and collaborating institutions realized was that “[i]t was much better for everybody to get 90 percent of what they needed, than for somebody to get zero and another side get 100 percent.”[20]

The Fairness for All Act may seem like a step in the wrong direction, but it represents the best possible victory for both sides of the debate. LGBTQ+ people would be guaranteed civil rights in a majority of situations while religious conservatives would not have to sacrifice their religious beliefs or undermine their own messages by employing representatives who do not exemplify their stated morals.

Perhaps the most important victory in this situation would be for leaders and followers on each side of a seemingly insurmountable ideological divide to openly talk with each other about their values, identities, and shared humanity. As President Biden said, “let’s give each other a chance. It’s time to put away the harsh rhetoric, lower the temperature, see each other again. Listen to each other again. And to make progress, we have to stop treating our opponents as our enemies. They are not our enemies. They are Americans.”[21]

[1] See Kelsey Dallas, Five Years Ago, Utah Passed Landmark Legislation on LGBTQ and Religious Rights. Why Didn’t Other States Follow Its Lead?, Deseret News (Mar. 11, 2020, 10:00 PM) https://www.deseret.com/indepth/2020/3/11/21163307/utah-lgbtq-rights-religious-freedom-lgbt-fairness-for-all-mormon-equality-act-congress.

[2] See e.g. Terry Mattingly, Waiting For a Judicial ‘Utah Compromise’ on Battles Between Religious Liberty and Gay Rights?, Times Record News (Jun. 27, 2020, 12:00 AM) https://www.timesrecordnews.com/story/entertainment/2020/06/27/waiting-judicial-utah-compromise-battles-between-religious-liberty-and-gay-rights/3250296001/.

[3] Equality Act, H.R. 5, 166th Cong. § 3(a)(1) (2019).

[4] Id. § 2(b).

[5] Id. § 1109.

[6] Id.

[7] See Alexander Dushku & R. Shawn Gunnarson, Symposium: LGBT Rights and Religious Freedom—Finding a Better Way, SCOTUSblog (Jun. 17, 2020, 9:19 AM), https://www.scotusblog.com/2020/06/symposium-lgbt-rights-and-religious-freedom-finding-a-better-way/.

[8] Daniel Trotta, Biden, in LGBTQ Interview, Vows to Pass Equality Act in First 100 Days, Reuters (Oct. 29, 2020, 1:13 AM) https://www.reuters.com/article/usa-election-biden-lgbtq/biden-in-lgbtq-interview-vows-to-pass-equality-act-in-first-100-days-idUSKBN27E0F9.

[9] See Dushku & Gunnarson, supra note 7.

[10] Fairness for All Act, H.R. 5331, 166th Cong. (2019).

[11] Id. § 2(2)(D).

[12] Dallas, supra note 1.

[13] Stuart Adams, The Utah Compromise, Law & Liberty (Apr. 14, 2015) https://lawliberty.org/the-utah-compromise/.

[14] Bostock v. Clayton County, Georgia, 140 S.Ct. 1731, 1737 (2020).

[15] See Adams, supra note 13.

[16] Nelson Tebbe et al., Utah “Compromise” to Protect LGBT Citizens From Discrimination Is No Model for the Nation, Slate (Mar. 18, 2015, 3:18 PM) https://slate.com/human-interest/2015/03/gay-rights-the-utah-compromise-is-no-model-for-the-nation.html.

[17] See Id.; Zach Ford, The ‘Utah Compromise’ Is A Dangerous LGBT Trojan Horse, ThinkProgress (Jan. 29, 2016, 1:00 PM) https://archive.thinkprogress.org/the-utah-compromise-is-a-dangerous-lgbt-trojan-horse-db790ad3b69e/; Alliance Defending Freedom, The Utah Compromise: Needlessly Surrendering Freedom 3 https://flfamily.org/wp-content/uploads/2016/02/Utah-Compromise-Needlessly-Surrendering-Freedom-ADF.pdf.

[18] Id. at 2–3.

[19] Ford, supra, note 17; Tebbe et al., supra, note 16.

[20] Mark Saal, One Year Later, Utah LGBT Anti-Discrimination Law Continues to Resonate, Standard-Examiner (Jun. 17, 2016) https://www.standard.net/news/one-year-later-utah-lgbt-anti-discrimination-law-continues-to-resonate/article_a69fb281-1757-52c7-97ba-a20e387fca07.html (quoting Sen. Stuart Adams).

[21] Amber Philips, Joe Biden’s Victory Speech, Annotated, The Washington Post (Nov. 7, 2020, 9:56 PM) https://www.washingtonpost.com/politics/2020/11/07/annotated-biden-victory-speech/.

By Alexander F. Magee

The internet has long been championed as a marketplace of ideas that fosters unprecedented access to different viewpoints and mass amounts of information and media. At least in the eyes of some, Section 230 of the Communications Decency Act (“CDA”)[1] is largely responsible for the internet gaining that reputation, and the Section has therefore become something of a beacon for free speech.[2] In recent years, however, the Section has received considerable negative attention from both sides of the political spectrum, including explicit denouncement from both President Donald Trump and the Democratic Presidential Nominee Joe Biden.[3] What started as dissatisfied grumblings about unfair censorship orchestrated by tech companies, culminated in President Trump enacting an Executive Order in May calling for changes in the Section that would create greater liability for companies such as Facebook, Twitter, and Google.[4]

The CDA was first enacted in 1996 as an attempt to prevent children from accessing indecent material on the internet.[5] The Act made it a crime to knowingly send obscene material to minors or publish the material in a way that facilitates it being seen by minors.[6] Section 230 was conceived in-part as a way to facilitate this prevention goal, by allowing websites to “self-regulate themselves” by removing indecent material at their discretion.[7] While certain parts of the Act were quickly declared unconstitutional in the Supreme Court decision Reno v. American Civil Liberties Union,[8] Section 230 survived to become arguably the most important law in the growth of the internet.

The relevant language in the Section itself is contained in a “Good Samaritan” provision that states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and that the provider shall not “be held liable on account of any action . . . taken in good faith to restrict access to or availability of material that the provider . . . considers to be obscene, lewd, lascivious . . . or otherwise objectionable, whether or not such material is constitutionally protected.”[9] This means Twitter, or a similar site, cannot be held liable for the objectionable material a third-party posts on their platform, subject to limited exceptions.[10] It also means that any action taken by Twitter to remove content they deem to be offensive or objectionable is protected as a way to encourage sites to remove offensive content by allowing them to do so without concern of liability.[11]

President Trump apparently takes issue with this “Good Samaritan” protection. In his May Executive Order, President Trump called social media’s moderation behavior “fundamentally un-American and anti-democratic,” and specifically accused Twitter of flagging and removing user content in a way that “clearly reflects political bias.”[12] President Trump also accused unspecified U.S. companies of “profiting from and promoting the aggression and disinformation spread by foreign governments like China.”[13] To address these concerns, the Executive Order calls for a narrowing of Section 230 protections, making it so that social media companies can be held liable for what their users post or for moderating those posts in a way that is “unfair and deceptive.”[14] Four months later, the Department of Justice proposed legislation aimed at weakening Section 230 protections.[15] The legislation is drafted in the spirit of the Executive Order, with special emphasis being paid to holding platforms accountable for hosting “egregious” and “criminal” content, while retaining immunity for defamation.[16]

Presidential Nominee Biden, for his part, seems to be more focused on holding tech companies liable for misinformation that is spread on their websites. In a January interview, Biden stated that tech companies should be liable for “propagating falsehoods they know to be false.”[17] Biden took particular umbrage with Facebook’s hosting of political ads that accused Biden of “blackmailing” the Ukrainian government, and he further stated that Mark Zuckerberg should be subject to civil liability for allowing such behavior.[18]

For a law that has garnered so much recent controversy, and one the public has taken for granted until relatively recently, it’s worth considering what the implications of removing Section 230 protections would be. Internet advocacy groups have vehemently criticized any Section 230 amendment proposals, and have generally painted a bleak picture of the ramifications of such changes.[19] These groups’ prognostications of the legal landscape without Section 230 protections generally predict social media sites will be facing a legal quagmire. Theoretically, sites would not only be exposed to liability for taking down certain third-party content, but also for not taking down other third-party material, which would effectively create a minefield of liability.[20] Internet Association, a trade association that represents preeminent tech companies such as Amazon, Facebook, and Google, has repeatedly attacked any threat to amend Section 230 as detrimental to the internet economy, and recently invoked the First Amendment as reason enough for social media companies to be able to “set and enforce rules for acceptable content on their services.”[21]

The latest serious threat to Section 230 has come from the FCC. On October 15, FCC Chairman Ajit Pai expressed his intention to move forward with a rulemaking request, stating that, while social media companies have a right to free speech, they do not have a “First Amendment right to special immunity denied to other outlets, such as newspapers and broadcasters.”[22] Several Democrats have challenged the FCC’s motives and overall authority to amend the Section.[23] The FCC, in response, asserts a fairly simple argument. The idea is that their authority rests in the language of the Communications Act of 1934, which in Section 201(b), gives the FCC explicit rulemaking power to carry out provisions of that Act.[24] In 1996, Congress added Section 230 to this Communications Act, therefore giving the FCC power to resolve any ambiguities in Section 230.[25] According to the FCC, two Supreme Court cases, AT&T v. Iowa Utilities Board[26] and City of Arlington v. FCC,[27] uphold their power to amend Section 230 pursuant to Section 201(b).[28]

The FCC’s push towards rulemaking came quickly after conservative-led criticisms of Section 230 reached a fever pitch following the circulation of a New York Post story containing potentially damaging pictures and information about Joe Biden’s son Hunter Biden.[29] Twitter and Facebook removed posts linking the story, on the basis that it contained hacked and private information.[30] The two sites have continuously denied suppressing conservative views[31] but, regardless, the Senate Judiciary Committee voted 12-0 to issue subpoenas to Jack Dorsey and Mark Zuckerberg, the sites’ respective CEOs, regarding their content moderation.[32] In anticipation of their hearings, Dorsey and Zuckerberg continued to passionately defend the Section, while Dorsey committed to making moderation changes at Twitter and Zuckerberg advocated for greater governmental regulation of tech companies in general.[33] Alphabet CEO Sundar Pichai, another tech leader subpoenaed, called Section 230 “foundational.”[34] The hearing took place on Wednesday and, according to early reports, was grueling.[35]

Lastly, on October 13, social media companies started to feel pressure from the Supreme Court. Justice Clarence Thomas voiced his concerns with the Section, stating that “extending §230 immunity beyond the natural reading of the text can have serious consequences,” and it would “behoove” the court to take up the issue in the future.[36] In the face of an impending election, uncertainties abound. However, one thing seems undeniable: Section 230 has never felt more heat that it does right now.


[1] 47 U.S.C § 230.

[2] See Section 230 of the Communications Decency Act, Elec. Frontier Found., https://www.eff.org/issues/cda230 (declaring Section 230 to be “The Most Important Law Protecting Internet Speech”).

[3] Cristiano Lima, Trump, Biden Both Want to Repeal Tech Legal Protections- For Opposite Reasons, Politico (May 29, 2020), https://www.politico.com/news/2020/05/29/trump-biden-tech-legal-protections-289306.

[4] Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020).

[5] See Robert Cannon, The Legislative History of Senator Exon’s Communications Decency Act, 49 Fed. Comm. L.J. 51, 57 (1996).

[6] See id. at 58.

[7] 141 Cong. Rec. H8,470 (daily ed. Aug. 4, 1995) (statement of Rep. Joe Barton), https://www.congress.gov/104/crec/1995/08/04/CREC-1995-08-04-pt1-PgH8460.pdf.

[8] 521 U.S. 844 (1997).

[9] 47 U.S.C. § 230(c)(1)–(2)(A).

[10] For instance, the protection is not available as a defense to sex trafficking offenses. 47 U.S.C. § 230(e)(5).

[11] See Content Moderation: Section 230 of the Communications Decency Act, Internet Assoc., https://internetassociation.org/positions/content-moderation/section-230-communications-decency-act/  (last visited Oct. 24, 2020) (providing explanation of “Good Samaritan” provision).

[12] Exec. Order 13,925, 85 Fed. Reg. at 34,079.

[13] Id.

[14] Id. at 34,081–82.

[15] The Justice Department Unveils Proposed Section 230 Legislation, Dep’t of Just., (Sept. 23, 2020), https://www.justice.gov/opa/pr/justice-department-unveils-proposed-section-230-legislation.

[16] Department of Justice’s Review of Section 230 of the Communications Decency Act of 1996, Dep’t of Just., https://www.justice.gov/ag/department-justice-s-review-section-230-communications-decency-act-1996 (last visited Oct. 23, 2020).

[17] The Times Editorial Board, Opinion: Joe Biden Says Age Is Just a Number, N.Y. Times (Jan. 17, 2020), https://www.nytimes.com/interactive/2020/01/17/opinion/joe-biden-nytimes-interview.html.

[18] Id.

[19] See New IA Survey Reveals Section 230 Enables Best Parts of the Internet, Internet Assoc. (June 26, 2019), https://internetassociation.org/news/new-ia-survey-reveals-section-230-enable-best-parts-of-the-internet/ (putting forth a survey to show that Americans rely on Section 230 protections to a significant degree in their day-to-day use of the internet). 

[20] See Derek E. Bambauer, Trump’s Section 230 Reform Is Repudiation in Disguise, Brookings: TechStream (Oct. 8, 2020), https://www.brookings.edu/techstream/trumps-section-230-reform-is-repudiation-in-disguise/.

[21] See Statement on Today’s Executive Order Concerning Social Media and CDA 230, Internet Assoc. (May 28, 2020), https://internetassociation.org/news/statement-on-todays-executive-order-concerning-social-media-and-cda-230/; Statement in Response to FCC Chairman Pai’s Interest in Opening a Section 230 Rulemaking, Internet Assoc. (Oct. 15, 2020), https://internetassociation.org/news/statement-in-response-to-fcc-chairman-pais-interest-in-opening-a-section-230-rulemaking/.

[22] Ajit Pai (@AjitPaiFCC), Twitter (Oct. 15, 2020, 2:30 PM), https://twitter.com/AjitPaiFCC/status/1316808733805236226.

[23] See Ron Wyden (@RonWyden), Twitter (Oct. 15, 2020, 3:40 PM), https://twitter.com/RonWyden/status/1316826228754538496; Pallone & Doyle on FCC Initiating Section 230 Rulemaking, House Comm. on Energy & Com. (Oct. 19, 2020), https://energycommerce.house.gov/newsroom/press-releases/pallone-doyle-on-fcc-initiating-section-230-rulemaking.

[24] 47 U.S.C. § 201(b); Thomas M. Johnson Jr., The FCC’s Authority to Interpret Section 230 of the Communications Decency Act, FCC (Oct. 21, 2020), https://www.fcc.gov/news-events/blog/2020/10/21/fccs-authority-interpret-section-230-communications-act.

[25] Johnson Jr., supra note 24.

[26] 525 U.S. 366 (1999).

[27] 569 U.S. 290 (2013).

[28] Johnson Jr., supra note 24.

[29] See Katie Glueck et al., Allegations on Biden Prompts Pushback From Social Media Companies, N.Y. Times (Oct. 14, 2020),  https://www.nytimes.com/2020/10/14/us/politics/hunter-biden-ukraine-facebook-twitter.html.

[30] See id.

[31] See id.

[32] Siobhan Hughes & Sarah E. Needleman, Senate Judiciary Committee Authorizes Subpoenas for Twitter and Facebook CEOs, Wall St. J. (Oct. 22, 2020), https://www.wsj.com/articles/senate-judiciary-committee-authorizes-subpoenas-for-twitter-and-facebook-ceos-11603374015.

[33] See Michelle Gao, Facebook, Google, Twitter CEOs to Tell Senators Changing Liability Law Will Destroy How We Communicate Online, CNBC (Oct. 28, 2020), https://www.cnbc.com/amp/2020/10/27/twitter-google-facebook-ceos-prepared-statements-defend-section-230.html.  

[34] Id.

[35] David McCabe & Cecilia Kang, Republicans Blast Social Media CEOs While Democrats Deride Hearing, N.Y. Times (Oct. 28, 2020), https://www.nytimes.com/2020/10/28/technology/senate-tech-hearing-section-230.html (stating that the hearing lasted for four hours and the CEOs were asked over 120 questions).

[36] Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 592 U.S. ____ (2020) (Thomas, J., in denial of certiorari), https://www.supremecourt.gov/orders/courtorders/101320zor_8m58.pdf.

By Gabriel L. Marx

Donald Trump is once again at the center of a legal dispute. The Forty-Fifth President of the United States has been no stranger to legal controversies during and before his presidency,[1] but the latest update in Knight First Amendment Institute at Columbia University v. Trump[2] has President Trump petitioning for a writ of certiorari to the Supreme Court after more than three years of litigation.[3]  

The case began in July 2017 when the Knight First Amendment Institute at Columbia University (“Knight Institute”) filed a lawsuit against President Trump in federal court alleging that he violated the First Amendment by blocking Twitter users from his @realDonaldTrump account after they criticized his policies and presidency.[4] The U.S. District Court for the Southern District of New York found that Donald Trump, as President, exercised sufficient control over the Twitter account such that the @realDonald Trump account was “susceptible to analysis under the Supreme Court’s [First Amendment] forum doctrines, and is properly characterized as a designated public forum.”[5] The District Court then held that President Trump’s blocking of these Twitter users was discrimination based on the users’ viewpoints and impermissible under the First Amendment.[6] In July 2019, a three-judge panel for the U.S. Court of Appeals for the Second Circuit unanimously affirmed the district court’s decision[7] and subsequently denied rehearing, sitting en banc, in March of this year.[8] Despite his lack of success so far, the administration has continued his fight against the Knight Institute as Acting Solicitor General Jefferey Wall submitted a petition for a writ of certiorari to the Supreme Court at the end of August.[9]

The petition includes both legal and policy-based arguments about the importance of the case.[10] In terms of legal arguments, Solicitor General Wall argues that the Second Circuit wrongly concluded that (1) President Trump’s blocking of the Twitter users was a state action susceptible to the First Amendment rather than an act of a private citizen; (2) the @realDonaldTrump account was a designated public forum; and (3) the governmental-speech doctrine, which would exempt President Trump’s account from a First Amendment challenge, did not apply to President Trump’s actions.[11] Putting the legal arguments aside, Solicitor General Wall also argues, “the court of appeals’ decision . . . has important legal and practical implications that reach beyond the circumstances of this case.”[12] That is, public officials are “increasingly likely to maintain social media accounts to communicate their views, both personal and official,”[13] so if the Second Circuit’s decision were allowed to stand, it would significantly hinder the ability of these public officials to choose who they want to interact with on their own accounts: a choice afforded to every other social media user.[14] According to the petition, this choice—or lack thereof—takes on an even greater significance when the public official in question in the President of the United States.[15]

In response, the Knight Institute filed its brief in opposition on Sept. 21.[16] The Knight Institute first argues that there is no reason for the Court to hear the case because amongst the various lower courts that have dealt with this issue, all agree that public officials blocking critics from their social media accounts violates the First Amendment.[17] It additionally argues that the second circuit properly concluded that blocking users from the @realDonaldTrump account was state action, was not government speech, and that the account itself is a public forum.[18] The Knight Institute also counters Solicitor General Wall’s policy-based arguments, asserting that the impact of the Second Circuit’s decision has not and will not hinder the President’s or other public officials’ use of social media to communicate to the general public.[19] Finally, the Knight Institute maintains that the only cases where the Court has granted certiorari solely due to presidential implications, and absent a circuit split, are those that deal with “fundamental issues of executive power” (such as separation-of-power concerns), unlike the case at hand, which only deals with whether President Trump can block Twitter users from his @realDonaldTrump account.[20]

Given the procedural history, the above arguments, and the fact that the Court usually only hears cases that have “national significance, might harmonize conflicting decisions in the federal circuit courts, and/or could have precedential value,”[21] it seems unlikely that the Court will grant certiorari. Looking at the procedural history, the two lower courts were in agreement that President Trump violated the First Amendment (with one panel holding that unanimously).[22] Therefore, the Court has little incentive to rehear a case that has already been decided so clearly, unless, as Solicitor General Wall argues, the court of appeals erred in its conclusions. The petition for rehearing was denied by the Second Circuit en banc, [23] however, so the decision has already been affirmed in some sense. Along similar lines, there is no conflict among federal circuit or district courts on the issue of public officials blocking users from their social media accounts, as the Knight Institute points out.[24] On the other hand, there has been an influx of cases dealing with this issue as of late,[25] so the Court might want to decide the issue once and for all to deter future litigation. Nevertheless, given, again, that so many lower courts are all in agreement on the issue, the Court probably will not wish to devote time and resources on a well-settled area of the law simply to deter future litigation—particularly as the issue does not reach an issue of traditional significance in executive authority, such as a separation-of-powers issue. As a final matter, neither the Court’s current make-up of Justices nor the projected addition of Amy Coney Barrett should have much effect on the decision-making process in light of the above factors weighing so heavily against granting certiorari.

While it is unlikely that the Court will grant President Trump’s petition, if it does grant certiorari, the case would be interesting to watch unfold at the nation’s highest court. If heard, Knight First Amendment Institute at Columbia University could set the precedent for the ever-prevalent issue of freedom of speech in social media, so it is certainly worth keeping an eye out for the Court’s decision on the petition for writ of certiorari in the coming weeks.


[1] See Peter Baker, Trump Is Fighting So Many Legal Battles, It’s Hard to Keep Track, N.Y. Times (Nov. 6, 2019), https://www.nytimes.com/2019/11/06/us/politics/donald-trump-lawsuits-investigations.html.

[2] 302 F. Supp. 3d 541 (S.D.N.Y. 2018), aff’d, 928 F.3d 226 (2d Cir. 2019).

[3] See Tucker Higgins, White House Asks Supreme Court to Let Trump Block Critics on Twitter, CNBC (Aug. 20, 2020, 12:00 PM), https://www.cnbc.com/2020/08/20/white-house-asks-supreme-court-to-let-trump-block-critics-on-twitter.html.

[4] See Knight Institute v. Trump, Knight First Amendment Inst. at Colum. Univ., https://knightcolumbia.org/cases/knight-institute-v-trump (last visited Oct. 8, 2020).

[5] Knight Inst., 302 F. Supp. 3d at 580.

[6] Id.

[7] See Knight First Amendment Inst. at Colum. Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019);Knight First Amendment Inst. at Colum. Univ., supra note 4.

[8] See Knight First Amendment Inst. at Colum. Univ. v. Trump, 953 F.3d 216 (2d Cir. 2020) (en banc); Knight First Amendment Inst. at Colum. Univ., supra note 4.

[9] See Petition for Writ of Certiorari, Knight First Amendment Inst. at Colum. Univ. v. Trump, No. 20-197 (Aug. 20, 2020), https://www.supremecourt.gov/DocketPDF/20/20-197/150726/20200820102824291_Knight%20First%20Amendment%20Inst.pdf.

[10] See id.

[11] Id. at 11–27.

[12] See id. at 27.

[13] See id. at 27–28.

[14] Id. at 28–29.

[15] See id. at 29.

[16] See Brief in Opposition, Knight Inst., No. 20-197 (Sept. 21, 2020), https://www.supremecourt.gov/DocketPDF/20/20-197/154505/20200921141934655_20-197%20BIO.pdf.

[17] See id. at 11–15.

[18] See id. at 15–28.

[19] See id. at 29.

[20] See id. at 30.

[21] Supreme Court Procedures,U.S. Cts., https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (last visited Oct. 8, 2020).

[22] See supra notes 5–8 and accompanying text.

[23] See supra note 8 and accompanying text.

[24] See supra note 17 and accompanying text.

[25] See Petition for Writ of Certiorari, supra note 9, at 28 n.2 (noting six recent cases from around the country concerning public officials’ blocking social media users on their personal accounts).

image by skeeze from Pixabay

By Laura Jordan

A few years ago, the federal government dissected a certain four-letter word.[1] It was prodded to see if it would “shock . . . the sense of truth, decency, or propriety” of the American public.[2] It was weighed to determine if it would “giv[e] offense to the conscience or moral feelings.”[3] And it was placed under the microscope to judge its “disgraceful[ness]” and “offensive[ness].”[4] That four-letter word survived the scrutiny and is alive and kicking today.[5] In fact, it was the scrutiny measures themselves that ultimately received the knife, cut out as unconstitutional by the Supreme Court over the summer.[6]

The four-letter word under debate was not one of the typical variety tossed around in casual settings, but it was close enough.[7] Plaintiff Erik Brunetti was trying to trademark the name “FUCT” as the title of his clothing brand.[8] He claimed that the four letters were to be pronounced individually, as in “F-U-C-T.”[9] However, as Justice Kagan pointed out in the majority opinion, “[Y]ou might read it differently and, if so, you would hardly be alone.”[10] The U.S. Patent and Trademark Office (PTO) certainly did, and they rejected Brunetti’s application.[11]

The PTO’s statutory authority to govern the trademark registration process is found in the Lanham Act, which is codified in 15 U.S.C. §§ 1051 et seq.[12] Under § 1051, the PTO is allowed to subject the proposed trademark to scrutiny under the “factors set forth in subsections (a) through (e)” within § 1052.[13] In particular, § 1052(a) allowed the PTO to scrutinize whether the proposed trademark “comprise[d] immoral . . . or scandalous matter.”[14] If so, the trademark could be rejected.[15] The PTO decided that FUCT fit squarely within the proscribed category, deploring it as “highly offensive,” “vulgar,” and sexually reprehensible.[16] Brunetti pushed back against the rejection and won in the Court of Appeals for the Federal Circuit. The circuit court found that the PTO’s ban against “immoral, deceptive, or scandalous matter” was not in line with the First Amendment.[17]

The Supreme Court then took the statutory phrase under consideration, turning to its 2017 decision in Matal v. Tam[18] for guidance.[19] In Matal, the Court examined whether the PTO could refuse registration to trademarks that “‘disparage’ any ‘person[], living or dead’” within § 1052(a).[20] Simon Tam, of the band “The Slants,” had fought a lengthy battle to trademark the band’s name in order “to ‘reclaim’ and ‘take ownership’ of stereotypes about people of Asian ethnicity.”[21] However, the PTO rejected the trademark, reasoning that “the fact that an applicant may be a member of that group or has good intentions underlying its use of a term does not obviate the fact that a substantial composite of the reference group would find the term objectionable.”[22] Ultimately, the Court decided that “if a trademark registration bar is viewpoint-based, it is unconstitutional” and that the PTO’s “disparagement bar was viewpoint-based.”[23]

With that holding in mind, the Court reasoned that “if the ‘immoral or scandalous’ bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine.”[24] Looking to dictionary definitions of “immoral” and finding results such as “inconsistent with rectitude, purity, or good morals,” the majority found that this statutory language is entirely viewpoint-based.[25] It upholds “conventional moral standards” while rejecting as impure other ideas that may not be as mainstream.[26] The Court lightheartedly pointed out that a mark such as “ALWAYS BE CRUEL” would not survive this scrutiny.[27] In the past, the PTO has taken the traditional side of morally-contested arguments, rejecting drug-positive trademarks such as “YOU CAN’T SPELL HEALTHCARE WITHOUT THC” and “BONG HITS 4 JESUS” while registering “SAY NO TO DRUGS—REALITY IS THE BEST TRIP IN LIFE.”[28] Thus, the immoral-or-scandalous bar, as written, allowed the government to approve some viewpoints over others.[29]

In arguing that the immoral-or-scandalous bar is constitutionally sound, the Government attempted to narrow the phrase to only “marks that are ‘vulgar’—meaning ‘lewd,’ ‘sexually explicit or profane.’”[30] If it were so narrow, then it would be constitutionally sound.[31] But the majority rejected this reasoning and found that the phrase encompasses much more:

It covers the universe of immoral or scandalous—or (to use some PTO synonyms) offensive or disreputable—material. Whether or not lewd or profane. Whether the scandal and immorality comes from mode or instead from viewpoint. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.[32]

In striking down the statutory phrase, the majority therefore paved the way for the “FUCT” trademark.[33]

So, with this decision, can Americans now trademark whatever the FUCT they want to? Justice Sotomayor seemed to worry about that perhaps unintended consequence.[34] In her concurrence in part and dissent in part, she wrote,

The Court’s decision today will beget unfortunate results. With the Lanham Act’s scandalous-marks provision, 15 U.S.C. § 1052(a), struck down as unconstitutional viewpoint discrimination, the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.[35]

However, Justice Alito stood up in his concurrence for the sanctity of free speech, arguing that “[a]t a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination.”[36]

Whichever side you are on, now might be the best time to go get that trademark registered.


[1] See Iancu v. Brunetti, 139 S. Ct. 2294, 2297 (2019).

[2] Id. at 2298.

[3] Id.

[4] Id.

[5] Id. at 2302.

[6] Id.

[7] Id. at 2297.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] 15 U.S.C. § 1051(d)(1) (2012).

[14] § 1052(a).

[15] § 1051(d)(1).

[16] Brunetti, 139 S. Ct. at 2298.

[17] Id.

[18] See generally 137 S. Ct. 1744 (2017).

[19] Brunetti, 139 S. Ct. at 2298.

[20] Id.

[21] Matal, 137 S. Ct. at 1754.

[22] Id.

[23] Brunetti, 139 S. Ct. at 2299.

[24] Id.

[25] Id.

[26] Id. at 2300.

[27] Id.

[28] Id.

[29] Id. at 2301.

[30] Id.

[31] Id.

[32] Id. at 2301–02.

[33] Id.

[34] Id. at 2308 (Sotomayor, J., concurring in part and dissenting in part).

[35] Id.

[36] Id. at 2303–04 (Alito, J., concurring).

By Greg Berman

Controversy erupted last week after a George Washington University professor, Dave Karpf, tweeted a joke at New York Times columnist Bret Stephens’s expense.  Quoting an 8-word post about a bedbug infestation in the Times’ newsroom, Karpf joked that “[t]he bedbugs are a metaphor.  The bedbugs are Bret Stephens.”[1]  Although this tweet did not initially gain much traction, it later went viral when Stephens personally emailed Karpf, as well as the George Washington University provost, demanding an apology for the insult.[2]  After several more tweets and an off-scheduled column post by Stephens with visible references to the controversy, both sides of the feud seem to be slowing down.[3]  Although this back and forth is just one isolated incident between two individuals, it highlights a growing trend in our discourse.  With the growing usage of social media in our society, these sorts of ideological clashes have seemingly become more prevalent than ever.[4]  And even though these virtual arguments tend to be more of an annoyance than a liability, reputation-damaging attacks (even those made on the internet) still can run the risk of triggering a costly libel lawsuit.[5] 

The tort of libel is defined by Black’s Law Dictionary as “[a] defamatory statement expressed in a fixed medium, esp[ecially] writing but also a picture, sign, or electronic broadcast.”[6]  The enforcement of libel laws in the United States dates predates the ratification of the Constitution, most notably with the trial of John Peter Zenger, whose 1735 jury acquittal established the idea that someone cannot be charged with libel if the remark is true.[7]  Even today, the accuracy of the allegedly libelous statements continues to be one of key factors for courts to consider in libel cases, with each state setting their own standards for liability.[8]  Another key consideration for courts comes from New York Times v. Sullivan, where the Supreme Court differentiated defamation claims involving public figures and private individuals, holding that any libel suit against a public figure requires the inaccurate statement to be made with “actual malice.”[9]  Actual malice has been defined by the Court as “knowledge that (the statement) was false or with reckless disregard of whether it was false or not.”[10]  Additional protections against libel claims were enacted nine years later, when the Supreme Court limited libel laws to apply only to intentionally false statements of fact, even if a trial court is presented with baseless opinions that are similarly incorrect.[11]

Our ever-increasing move toward a digitalized world raises the question of how these libel laws can be applied to internet publications.  To start, no claim for libel can be made against any social media site, such as Facebook or Twitter, for content posted by a user of that social media site.[12]  This is primarily due to the expansive legal protections given to these “interactive computer services” by Section 230 of the Communications Decency Act of 1996.[13]  That being said, individuals may still be held liable for content that they post on the internet, with each state continuing to apply its own standards for libelous conduct even as information crosses state lines.[14]  When it comes to the question of jurisdiction, the Supreme Court clarified in Keeton v. Hustler Magazine, Inc. that a state can claim jurisdiction over a non-resident when injurious information is intentionally disseminated to its citizens.[15]  Specifically, the Court cited each state’s interest in protecting its citizens from intentional falsehoods as a key consideration in its decision.[16] While online information is disseminated in a different manner than the magazines from Keeton, courts have begun allow jurisdiction for internet libel cases when the online post directly targets one or more residents of the state.[17]

When applying libel laws to online statements, courts have used similar substantive principles to those used for print publications.  In 2009, former musician Courtney Love was sued by her former attorney after tweeting allegedly libelous remarks.[18]  As this was the first reported case to go to a jury decision for remarks made over Twitter, the trial court was left with a case of first impression.[19]  In a landmark decision, the court opted to apply traditional libel laws.  A jury found that Love did not know that the statements were false at the time they were made; she therefore lacked the actual malice required to be considered libel.[20]  

There have also been other cases involving libelous comments made over Twitter.[21]  For example, one such case took place after a tenant complained on her personal Twitter account about her “moldy apartment.”[22]  After seeing the post, the landlord sued the tenant under Illinois libel laws; the case was later dismissed with prejudice because the tweet was too vague to meet the requisite legal standards for libel.[23]  Another lawsuit took place after a mid-game conversation between an NBA coach and a referee was overheard and tweeted out by an AP reporter.[24]  The referee insisted that the reported conversation never took place, and the subsequent lawsuit ultimately resulted in a $20,000 settlement.[25]  Each of these cases present factually unique scenarios, but all together indicate a growing trend: even as the medium for public discourse has been rapidly shifting towards the digital sphere, traditional libel laws still continue to apply.

In addition to substantive treatment, there also remain unresolved legal questions stemming from courts’ application of the single publication rule.  The single publication rule provides that “any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication” and therefore “only one action for damages can be maintained.”[26]  The justification behind this rule is simple: by aggregating all damages allegedly caused by a publication to a single action, a party would not be perpetually bombarded with litigation long after their active role in publication has ended.[27]  This rule has already been adopted in “the great majority of states” and was implemented within the 4th Circuit in Morrissey v. William Morrow & Co.[28]  However, some academics have proposed that the single publication rule should not always be applied to social media posts, citing the possibility that a publisher could personally solicit shares or retweets and thereby maintain an active role in republishing libelous information.[29]  The issue of continual dissemination by means of retweeting seems primed to be raised in later litigation, but thus far has not been brought before any court.[30]  Still, many circuits have already begun the process of implementing the single publication rule to online posts in general (so far these cases have been litigated over personal blogs rather than Facebook or Twitter posts), so it will be interesting to see how courts handle the issue if eventually raised by litigants down the road.[31]

As the social media presence in our society grows stronger each day, only time will tell if courts will craft separate libel principles for online publications.  There are arguments to be made on both sides, especially now that online mediums are increasingly taking over many of the informational functions previously held by their print counterparts.[32]  For now, at least, courts are continuing to use the same traditional libel laws that have been evolving and changing since John Peter Zenger’s 1735 acquittal. [33]  And while the jury is still out on whether Dave Karpf actually thinks Bret Stephens is a metaphorical bedbug, he can likely rest easy knowing that current libel laws will protect his joke from any future legal trouble.


1. Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 5:07 PM), https://twitter.com/davekarpf/status/1166094950024515584.

[2] See Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 9:22 PM), https://twitter.com/davekarpf/status/1166159027589570566; Dave Korpf (@davekorpf), Twitter (Aug. 26, 2019, 10:13 PM) https://twitter.com/davekarpf/status/1166171837082079232; see also Tim Efrink & Morgan Krakow, A Professor Called Bret Stephens a ‘Bedbug.’ The New York Times Columnist Complained to the Professor’s Boss, Wash. Post (Aug. 27, 2019), https://www.washingtonpost.com/nation/2019/08/27/bret-stephens-bedbug-david-karpf-twitter/ (summarizing the context of Korpf’s tweet and the resulting controversy).

[3] See Dave Korpf (@davekorpf), Twitter (Aug. 30, 2019, 7:58 PM), https://twitter.com/davekarpf/status/1167587392292892672; Bret Stephens, Opinion, World War II and the Ingredients of Slaughter, N.Y. Times (Aug. 30, 2019), https://www.nytimes.com/2019/08/30/opinion/world-war-ii-anniversary.html.

[4] Jasmine Garsd, In An Increasingly Polarized America, Is It Possible To Be Civil On Social Media?, NPR (Mar. 31, 2019) https://www.npr.org/2019/03/31/708039892/in-an-increasingly-polarized-america-is-it-possible-to-be-civil-on-social-media.

[5] See id.; Adeline A. Allen, Twibel Retweeted: Twitter Libel and the Single Publication Rule,15 J. High Tech. L. 63, 81 n.99 (2014).

[6]  Libel, Black’s Law Dictionary (11th ed. 2019).

[7] Michael Kent Curtis, J. Wilson Parker, William G. Ross, Davison M. Douglas & Paul Finkelman, Constitutional Law in Context 1038 (4th ed. 2018).

[8] James L. Pielemeier, Constitutional Limitations on Choice of Law: The Special Case of Multistate Defamation, 133 U. Pa. L. Rev. 381, 384 (1985).

[9] 376 U.S. 254, 279–80 (1964); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974) (defining a public figure as either “an individual achiev[ing] such pervasive fame or notoriety” or an individual who “voluntarily injects himself or is drawn into a particular public controversy”).

[10] Sullivan, 376 U.S. at 280.

[11] See Gertz, 418 U.S. at 339 (“[u]nder the First Amendment, there is no such thing as a false idea.”).

[12] See Allen, supra note 5, at 82.  Of course, Facebook and Twitter are not immunized against suits for content that they post on their own platforms.  Cf. Force v. Facebook, Inc., ___ F.3d ___, No. 18-397, 2019 WL 3432818, slip op. at 41 (2d Cir. July 31, 2019), http://www.ca2.uscourts.gov/decisions/isysquery/a9011811-1969-4f97-bef7-7eb025d7d66c/1/doc/18-397_complete_opn.pdf (“If Facebook was a creator or developer, even ‘in part,’ of the terrorism-related content upon which plaintiffs’ claims rely, then Facebook is an ‘information content provider’ of that content and is not protected by Section 230(c)(1) immunity.”).

[13] 47 U.S.C. §230(c)(1) (2017) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).  “Interactive computer service” is defined by the act as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server”). Id. at §230(f)(2); see also Allen, supra note 5, at 82 n.100 (describing additional protections provided by the Communications Decency Act, including how Twitter falls under its definition of “interactive computer service”).

[14] See Allen, supra note 5, at 84; Pielemeier, supra note 8, at 384.

[15] 465 U.S. 770, 777 (1984); see also Calder v. Jones, 465 U.S. 783, 791 (1984) (holding that personal jurisdiction is proper over defendants who purposefully directed libelous information at the plaintiff’s home state with the intent of causing harm).

[16] Keeton, 465 U.S. at 777.

[17] See, e.g.,Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997); Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002); Tamburo v. Dworkin, 601 F.3d 693, 707 (7th Cir. 2010) (each applying traditional libel tests for personal jurisdiction to online publications, requiring the publication to be intentionally targeted towards citizens of the state). 

[18] Gordon v. Love, No. B256367, 2016 WL 374950, at *2 (Cal. Ct. App. Feb. 1, 2016). The exact language of the tweet in question was “I was fucking devastated when Rhonda J. Holmes, Esquire, of San Diego was bought off @FairNewsSpears perhaps you can get a quote.”  Id.  The tweet was deleted five to seven minutes after it was posted.  Id. at *3.  This was Love’s second time being sued for defamation over comments made on her Twitter account, although the first lawsuit resulted in a $430,000 settlement before trial. Matthew Belloni, Courtney Love to Pay $430,000 in Twitter Case, Reuters (Mar. 3, 2011), https://www.reuters.com/article/us-courtneylove/courtney-love-to-pay-430000-in-twitter-case-idUSTRE7230F820110304.

[19] See Allen, supra note 5, at 81 n.99.

[20] Love, 2016 WL 374950, at *3.  The reason actual malice was required in the case is because Love’s attorney had gained public figure status, which was not disputed at trial. Id.

[21] See Joe Trevino, From Tweets to Twibel*: Why the Current Defamation Law Does Not Provide for Jay Cutler’s Feelings, 19 Sports Law J. 49, 61–63 (2012) (describing a series of libel lawsuits stemming from social media posts).

[22] Id. at 61.

[23] Andrew L. Wang, Twitter Apartment Mold Libel Suit Dismissed, Chi. Trib. (Jan. 22, 2010), https://www.chicagotribune.com/news/ct-xpm-2010-01-22-1001210830-story.html.

[24] Trevino, supra note 21, at 63. 

[25] Lauren Dugan, The AP Settles Over NBA Twitter Lawsuit, Pays $20,000 Fine, Adweek (Dec. 8, 2011), https://www.adweek.com/digital/the-ap-settles-over-nba-twitter-lawsuit-pays-20000-fine/.

[26] Restatement (Second) of Torts § 577A(3–4) (Am. Law Inst. 1977).

[27] Id. at § 577A cmt. b.

[28] 739 F.2d 962, 967 (4th Cir. 1984) (quoting Keeton, 465 U.S. at 777 n.8).

[29] Allen, supra note 5, at 87–88.

[30] See Lori A. Wood, Cyber-Defamation and the Single Publication Rule, 81 B.U. L. Rev. 895, 915 (2001) (calling for courts to define “republication” in the context of internet publications).

[31] See, e.g., Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002); Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 90 (2d Cir. 2003); Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1130–31 (9th Cir. 2006); Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 144 (5th Cir. 2007).  But see Swafford v. Memphis Individual Prac. Ass’n, 1998 Tenn. App. LEXIS 361, at *38 (Tenn. App. 1998).

[32] See Allen, supra note 5, at 91 n.157.

[33] See Trevino, supra note 19, at 69.

By Michael Johnston

When Shawn Ellis extended his middle finger while riding in the passenger seat of a vehicle on U.S. Highway 52, he likely did not know that he would become involved in the latest of a string of appellate cases on the First Amendment.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech . . . .”[1] Freedom of speech under the First Amendment was incorporated against the states via the Fourteenth Amendment, limiting the ability of the states to restrict freedom of speech under the United States Constitution.[2] Expressive conduct outside of verbal speech can also merit First Amendment protections if there is an intent to convey a particularized message and there is a great likelihood that the message will be understood by those who view it in the surrounding circumstances.[3]

The extension of one’s middle finger, colloquially known as shooting or flipping the bird,[4] has a long history of being used to express emotions ranging from anger and protest to comfort and familiarity.[5] While this gesture can be used to express contempt, several courts have been reluctant to conclude that the middle finger gesture falls into a category of unprotected speech that can be prosecuted.[6] For example, the Sixth Circuit recently determined that a police officer did not have reasonable suspicion or probable cause of criminal activity to stop plaintiff a second time simply because she extended her middle finger after the first stop.[7] The court reasoned that the plaintiff violated no identified law and that “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”[8]

Fighting words, however, are one exception to the First Amendment; they are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[9] The Supreme Court further explained that fighting words are not essential to the discussion of ideas, and any benefit to the social discourse derived from them is outweighed by society’s interest in morality and order.[10] Despite the expressive value of extending one’s middle finger, courts are more willing to conclude that the gesture can support a disorderly conduct charge if there are other disruptive circumstances or if a third party can testify that they felt offended or threatened.[11] For example, the Third Circuit held that a police officer had probable cause to charge plaintiff with disorderly conduct under the totality of the circumstances, namely the plaintiff’s display of his middle finger and aggressive driving directed at another driver on the road.[12] With additional disruptive circumstances, a court is more likely to conclude that the speech constitutes fighting words and that the person using such speech can be charged with disorderly conduct.[13] For expressive purposes, disorderly conduct statutes have been limited by the Supreme Court to the proscription of fighting words.[14]

In State v. Ellis,[15] the defendant was stopped by a police officer after the officer observed the defendant extending his middle finger in the officer’s general direction.[16] The defendant was initially using a waving gesture as his vehicle drove past the stopped officer, but after the defendant’s vehicle passed the officer, the defendant changed his gesture to an extended middle finger.[17] There were other vehicles moving down the highway near the defendant’s vehicle.[18] In its initial opinion, the North Carolina Court of Appeals concluded that this conduct was sufficient for an officer to have reasonable suspicion of disorderly conduct.[19] The panel then withdrew its initial opinion and substituted it with another opinion; the panel majority clarified that the officer had reasonable suspicion of disorderly conduct because there was an objective basis to believe that the defendant’s gesture could have been directed at a third party and that the changing gestures suggested that the potential disorderly conduct was escalating.[20] While the court noted cases concluding that giving a middle finger to law enforcement is protected by the First Amendment, the court distinguished them by concluding that the possibility that defendant’s middle finger could have been directed at a third party was a sufficient basis for reasonable suspicion for disorderly conduct.[21] According to the court, this reasonable suspicion justified the stop and later justified the defendant’s charge and conviction of resisting, delaying, or obstructing a public officer for failing to provide his identification.[22]

The standard for a police officer to conduct a traffic stop is reasonable suspicion of criminal activity,[23] which is a lower standard than probable cause of criminal activity.[24] For reasonable suspicion, the police officer must, under the totality of the circumstances, have specific and articulable facts supporting a suspicion of criminal activity.[25] An innocent explanation for suspicious conduct does not defeat reasonable suspicion,[26] and innocent conduct can contribute to reasonable suspicion under the totality of the circumstances.[27]

However, as the dissenting opinion notes, the majority’s opinion in Ellis seems to disregard the First Amendment protections for defendant’s speech.[28] There is a sizeable amount of authority from around the United States concluding that extending one’s middle finger in the presence of third parties does not constitute disorderly conduct under the First Amendment.[29] Furthermore, there is also authority concluding that simply displaying one’s middle finger is insufficient for reasonable suspicion of criminal activity under the First Amendment.[30] In both Cruise-Gulyas v. Minard[31] and Ellis, for example, an officer stopped someone after they displayed their middle finger in the direction of the officer.[32] While the Sixth Circuit concluded that the officer in Cruise-Gulyas lacked reasonable suspicion to stop the plaintiff in response to the gesture under the First Amendment, the court of appeals in Ellis distinguished Cruise-Gulyas on the basis that it was unclear whom the gesture was directed at in Ellis, even though it seems unlikely that there were no other drivers on the street who might have seen the gesture in Cruise-Gulyas.[33] Just as there was no reasonable suspicion of criminal activity and “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment” in Cruise-Gulyas,[34] the same should be true in Ellis. Furthermore, other courts have viewed the middle finger as sufficient for reasonable suspicion or probable cause of criminal activity only when there are other disruptive circumstances associated with the conduct or a third party can testify that they felt offended or threatened.[35] Unlike in Favata v. Seidel,[36] there were no other disruptive circumstances in Ellis, such as reckless driving, to justify reasonable suspicion or probable cause of disorderly conduct.[37] The Ellis opinion does find some support in North Carolina case law, but one of the more helpful cases for the Ellis opinion is also likely inconsistent with other authorities interpreting the First Amendment.[38]

On a practical note, the Ellis opinion will give law enforcement broader discretion to stop people, even if the stops are only motivated by personal animus. While the motivation of an officer might not be legally relevant when determining whether the officer had reasonable suspicion,[39] such stops can undermine community faith in law enforcement.[40] To justify such a stop, an officer would only need to claim that the offensive conduct of the defendant occurred in the presence of a third party. As in Ellis, the State would not need to provide evidence that the third party was actually offended by the gesture or even observed the gesture.[41] If the analysis of this question focused purely on reasonable suspicion standards under North Carolina law, this outcome might be logical due to the lower standard required for reasonable suspicion. However, in light of the protections for expressive conduct under the First Amendment, law enforcement officers stopping someone simply for using expressive, albeit distasteful, conduct in the presence of others is inconsistent with our constitutional freedoms and history.[42] Given our nation’s long history of protecting dissident speech under the First Amendment even when it happens to be offensive, extending a middle finger should not be a criminal offense, and it should not be treated as reasonable suspicion of a criminal offense simply because a third party might have seen it.

Mr. Ellis is in the process of appealing the panel’s decision.[43] In light of this appeal, the North Carolina Supreme Court should establish that the First Amendment protects expressive conduct in the form of extending a middle finger in public.


[1] U.S. Const. amend. I.

[2] U.S. Const. amend XIV, § 1; see Stromberg v. California, 283 U.S. 359, 368–70 (1931); Gitlow v. New York, 268 U.S. 652, 666 (1925).

[3] See Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 411–12 (1974)).

[4] See Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403, 1405–06 (2008).

[5] See id. at 1407–10.

[6] See Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Swartz v. Insogna, 704 F.3d 105, 110 (2d Cir. 2013) (holding that traffic stop was not lawful because plaintiff giving officer middle finger while riding in vehicle did not create a reasonable suspicion of criminal activity); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) (holding that vehicle passenger’s use of profanity and display of middle finger to police officer protected by the First Amendment); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); Brown v. Wilson, No. 1:12-CV-1122-DAE, 2015 U.S. Dist. LEXIS 88871, at *8–14 (W.D. Tex. July 9, 2015) (holding that plaintiff’s middle finger to police officer while driving was not in violation of Texas’s disorderly conduct statute and did not fall under the fighting words exception to the First Amendment because there was no indication of actual or threatened violence tending to incite an immediate breach of the peace); Corey v. Nassan, No. 05-114, 2006 U.S. Dist. LEXIS 68521, at *23–37 (W.D. Pa. Sept. 25, 2006) (holding that plaintiff’s alleged raising of his middle finger to police officer while driving was protected by the First Amendment in part because of the absence of “some particularized showing that the gesture in the specific factual context constitutes ‘fighting words’ or is otherwise illegal”); Perkins v. City of Gahanna, No. C2-99-533, 2000 U.S. Dist. LEXIS 23209, at *5–11 (S.D. Ohio Sept. 21, 2000) (holding that plaintiff’s display of middle finger to police officer as he was leaving a police station was protected by the First Amendment and not disorderly conduct); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1101, 1110 (W.D. Ark. 2000) (holding that officer improperly charged plaintiff with disorderly conduct after officer observed plaintiff display his middle finger while driving because the disorderly conduct statute, Ark. Code Ann. § 5-71-207(a)(3), was limited to fighting words and the display of one’s middle finger did not constitute fighting words); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Cook v. Bd. of the Cty. Comm’rs, 966 F. Supp. 1049, 1052 (D. Kan. 1997) (holding that “the Court cannot infer that a reasonable police officer would necessarily believe that plaintiff was engaged in disorderly conduct or that — in light of clearly established law and the information known to Officer Drake — a reasonable police officer would have had probable cause to arrest plaintiff and charge him with disorderly conduct in violation of Kansas Law” when plaintiff displayed his middle finger while driving past officer’s parked patrol car); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct under the First Amendment, only criminalized fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); In re Fechuch, No. 2005 AP 02 0012, 2005 Ohio App. LEXIS 3941, at *3–9 (Ohio Ct. App. Aug. 16, 2005) (holding that there was insufficient evidence to support defendant’s conviction for disorderly conduct because defendant’s use of profanity and her middle finger did not constitute fighting words under the First Amendment as they were not inherently likely to provoke a violent reaction from the ordinary citizen); Coggin v. State, 123 S.W.3d 82, 87–88, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[7] See Cruise-Gulyas, 918 F.3d at 497.

[8] See id.

[9] See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (footnote omitted).

[10] See id.

[11] See Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); City of Akron v. Lorenzo, No. 20475, 2001 Ohio App. LEXIS 4327, at *8 (Ohio Ct. App. Sept. 26, 2001) (holding that it was not a manifest miscarriage of justice for a trial court to find defendant guilty of disorderly conduct under fighting words exception because defendant repeatedly shouted profanities at officers and displayed his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words); In re S.J.N-K., 647 N.W.2d 707, 711–13 (S.D. 2002) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct under the fighting words exception after defendant repeatedly displayed middle finger and mouthed profanity to school principal while following principal in car); Estes v. State, 660 S.W.2d 873, 874–75 (Tex. App. 1983) (holding that there was sufficient evidence to justify a guilty jury verdict for disorderly conduct after defendant displayed his middle finger to high school principal and principal resisted “animal instinct to retaliate” because the gesture could have constituted fighting words to an average person).

[12] See Favata, 511 F. App’x at 156–57, 159–60.

[13] See, e.g., Wood, 679 N.E.2d at 739–40 (holding that defendant’s conviction for disorderly conduct proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[14] See Gooding v. Wilson, 405 U.S. 518, 527–28 (1972); State v. Summrell, 192 S.E.2d 569, 574–76 (N.C. 1972), overruled in part on other grounds in State v. Barnes, 380 S.E.2d 118, 119 (N.C. 1989).

[15] No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019) petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019). While this case was officially filed for publication by the North Carolina Court of Appeals on August 20, 2019, it has not been given an official reporter designation at the time of this publication.

[16] Id. at *7–8.

[17] Id.

[18] Id. at *6.

[19] N.C. Gen. Stat. § 14-288.4(a)(2) (2017); State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 628, at *6–8 (N.C. Ct. App. Aug. 6, 2019), withdrawn (Aug. 13, 2019), modified, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[20] Ellis, 2019 N.C. App. LEXIS 713, at *9–11.

[21] Id.

[22] See id. at *9–12.

[23] See State v. Barnard, 658 S.E.2d 643, 645 (N.C. 2008).

[24] See State v. Johnson, 803 S.E.2d 137, 139 (N.C. 2017).

[25] See Terry v. Ohio, 392 U.S. 1, 20–22 (1968); State v. Styles, 665 S.E.2d 438, 443–40 (N.C. 2008).

[26] See United States v. Arvizu, 534 U.S. 266, 277 (2002); State v. Williams, 726 S.E.2d 161, 167 (N.C. Ct. App. 2012).

[27] See United States v. Sokolow, 490 U.S. 1, 9–11 (1989); Terry, 392 U.S. at 22.

[28] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *22 (N.C. Ct. App. Aug. 20, 2019) (Arrowood, J., dissenting), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

[29] See Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding that, despite defendant directing his middle finger and profane language at protestors while driving, “a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech” because they were not likely to incite an immediate breach of the peace when Sandul’s vehicle was traveling quickly on the opposite side of the street from the protestors, the incident only lasted a few seconds, there was no evidence that any protestor was offended or even acknowledged the conduct except for the officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Youngblood v. Qualls, 308 F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display of middle finger and use of profanity directed at neighbor’s house was insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First Amendment); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only officers and two other people present insufficient for fighting words exception under disorderly conduct statute); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as applied to expressive conduct, only criminalizes fighting words and there was no evidence that defendant engaged in any other threatening conduct or intended anything other than protest against secular education); Coggin v. State, 123 S.W.3d 82, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally insufficient to uphold defendant’s conviction of disorderly conduct after defendant in car displayed his middle finger to driver of another car because the interaction was brief, there was no actual or threatened violence, and the interaction was not face-to-face).

[30] See, e.g., Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019) (holding that plaintiff’s extension of middle finger did not justify officer stopping her a second time because the gesture was protected under the First Amendment and the gesture itself did not create probable cause or any reasonable suspicion of any criminal act); Sandul, 119 F.3d at 1255.

[31] 918 F.3d 494 (6th Cir. 2019).

[32] See id. at 497; Ellis, 2019 N.C. App. LEXIS 713, at * 7–8.

[33] See Cruise-Gulyas, 918 F.3d at 495–97; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[34] See Cruise-Gulyas, 918 F.3d at 497.

[35] See, e.g., Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013) (holding that there was probable cause for disorderly conduct because plaintiff was driving recklessly in addition to displaying his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper after concluding that defendant’s actions, namely approaching university police officers and then repeatedly using profanities against them and displaying his middle finger to them, constituted fighting words).

[36] 511 F. App’x. 155 (3d Cir. 2013).

[37] See id. at 156–57, 159–60; Ellis, 2019 N.C. App. LEXIS 713, at *6–10.

[38] See In re V.C.R., 742 S.E.2d 566, 568, 570–71 (N.C. Ct. App. 2013) (holding that officer had reasonable suspicion to seize teenage defendant for disorderly conduct under N.C. Gen. Stat. § 14-288.4(a)(2) after officer began driving away and defendant said, “What the fuck, man?”). It is unlikely that a reasonable person would sincerely believe that a teenager’s use of what was likely rhetorical profanity amongst friends would be plainly likely to provoke violent retaliation and thereby cause a breach of the peace. Furthermore, such speech is likely protected by the First Amendment. Compare id., with Cruise-Gulyas, 918 F.3d at 497 (holding that officer’s second stop of plaintiff after plaintiff extended her middle finger was not based on reasonable suspicion of any criminal act and that plaintiff’s gesture was protected under the First Amendment).

[39] See Whren v. United States, 517 U.S. 806, 813 (1996); State v. Nicholson, 813 S.E.2d 840, 846 (N.C. 2018).

[40] See Albert J. Reiss, Jr., The Police and the Public 175–76 (1971).

[41] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *2–3 (N.C. Ct. App. Aug. 20, 2019); id. at *22 (Arrowood, J., dissenting).

[42] See, e.g., Texas v. Johnson, 491 U.S. 397, 414 (1989); Cohen v. California, 403 U.S. 15, 25–26 (1971).

[43] See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C. Ct. App. Aug. 20, 2019), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29, 2019).

By Caroline Hamilton and Alex Prunka

During the 2014­–15 school year, Caleigh Wood was an eleventh grade student at La Plata High School in Charles County, Maryland.[1]  Wood was required to take a world history course as a part of the school’s curriculum, featuring a small, five-day unit entitled “The Muslim World.”[2]  This unit was designed to “explore, among other things, formation of Middle Eastern empires including the basic concepts of the Islamic faith and how it along with politics, culture, economics, and geography contributed to the development of those empires.”[3]  Wood took issue with two aspects of the Muslim World unit: (1) the PowerPoint slide which stated “most Muslim’s [sic] faith is stronger than the average Christian [sic]” and (2) a worksheet summarizing the lesson that required her to complete certain information about the Islamic faith.[4]

Wood sued the defendants Evelyn Arnold, Shannon Davis, the Board of Education of Charles County, and the Charles County Public Schools.  In Wood v. Arnold,[5] she asserted two claims: (1) the defendants violated the Establishment Clause by “impermissibly endors[ing] and advanc[ing] the Islamic religion;” and (2) that defendants violated the Free Speech Clause of the First Amendment by requiring her to complete the shahada assignment thereby depriving her “of the right to be free from government compelled speech.”[6]  The United States District Court for the District of Maryland granted summary judgment to the defendants on all claims, and Wood appealed.

Plaintiff’s Arguments

Wood’s first claim was based on the Establishment Clause. She argued that the defendants endorsed a view of Islam over Christianity, which violates the Establishment Clause[7] based on the comparative faith statement that read “Most Muslim’s faith is stronger than the average Christian.”[8]  Wood also believed that the assignment which required to fill in the blanks regarding the lesson plan impermissibly advanced Islam and compelled Wood to deny the existence of her God.[9]  Wood argued that the religious endorsement could not be overcome by the secular purposes alleged by the defendants.[10]

Regarding Wood’s Free Speech Clause challenge, she contended that the defendants violated her right to free speech by requiring her to fill in the sentence “There is no god but Allah and Muhammad is the messenger of Allah”[11] on the after lesson worksheet.  From her position, Wood believed that this worksheet forced her to confess, by written word and deed, her faith in Allah.[12]  Having been raised in a strong Christian household, Wood took offense to what she and her parents perceived as forced proclamation of Islamic beliefs.[13]

Defendant’s Arguments

In response to Wood’s Establishment Clause claim, defendants argued the unit satisfied the first prong of the Lemon test because the purpose of the Muslim unit was primarily secular and that the single statement made on the power point rose to a level of promoting Islam.[14]  In regards to the second prong of the Lemon test, the defendants emphasized the importance of analyzing whether the school was acting to promote a particular religion from an objective standpoint and that the District Court was correct in not taking into account specific, subjective statements made by certain school officials.[15]  Finally, the defendants patently rejected the theory that the comparative faith statement and the fill in the blank worksheet could lead a reasonable juror to find excessive entanglement between the school and religion.[16]  It simply does not rise to the level of requiring Wood to profess Islam or denounce Christianity, nor does it in any way bear resemblance to a statement made by an evangelical.

In response to Wood’s Free Speech Clause challenge, the defendants argue that the classroom is not a public forum worthy of the full battery of First Amendment protections.[17]  Additionally, defendants argue that Wood was never asked to profess her belief in Islam but rather, was asked to showcase her understanding of the Islamic religion in the context of a world history class.  Thus, the forum of the classroom in conjunction with the type of “compelled” speech indicate that the fill in the blank worksheet does not violated her First Amendment rights.[18]

The Court’s Opinion

The Court affirmed the District Court’s granting of summary judgement in favor of the defendants on both counts.  The court acknowledged that the proper analysis for an Establishment Clause issue is the Lemon test,[19] which asks (1) whether the challenged material has some secular purpose; (2) whether the principal effect of government action is to suggest government preference for a particular religious view or for religion in general; and (3) whether the government action created an excessive entanglement between government and religion.[20]  However, the court first had to decide the relevant scope of inquiry—whether the challenged materials should be considered in isolation or whether they should be considered within the broader context of the world history class.  Following circuit court precedent, the court held that it was proper to consider the challenged content in the context of the world history class.[21]  Here, the court found that the challenged religious content did not offend any of the three Lemon test prongs.

The first prong imposes a “fairly low hurdle,” merely requiring the government to show that it had a plausibly secular purpose.[22]  So long as the proffered secular purpose is genuine and not a sham, the purpose will satisfy the first prong of the Lemon test.  Here, the court determined that the purpose of the two pieces of challenged content did have a primarily secular purpose.  The court noted that the Supreme Court has recognized the value in studying religion on a comparative basis.[23]  Neither the comparative faith statement being challenged or the shahada worksheet indicate a religious purpose; rather, the school had a predominantly secular purpose in teaching world history, and the subsequent shahada worksheet was in line with the academic work to be expected after a lesson plan.[24]  Thus, the court was quickly satisfied that the school was acting with a predominantly secular purpose.

Turning to the second prong of the Lemon test, the court asked whether a reasonable, informed observer would conclude that by its actions, the government has endorsed a particular religion.[25]  In analyzing this prong, courts assume that the reasonable observer is aware of the context surrounding the government action.  The court found that neither of the challenged statements indicated that the school endorsed Islam or that the school was forcing its students to endorse and participate in Islamic practices.  It distinguished the challenged content from a situation in which a school forces students to pray, which would offend the Lemon test.[26]  In fact, the challenged content was integrated into the secular curriculum and only constituted a minor part of the Muslim unit, which was only a minor part of the world history class.  Thus, the court concluded that “common sense” indicates that the school was not endorsing any religious beliefs through either of the challenged content.[27]

In dealing with the third prong, the court examined whether the government action led to an excessive entanglement between government and religion.  The court determined that they “need not dwell long on the entanglement prong” because the comparative faith statement and shahada assignment neither advanced nor inhibited religion.[28]  The secular nature of the content, in conjunction with the minor role it played in the context of the world history class, led the court to quickly find there was no entanglement issues caused by the comparative faith statement or the shahada assignment. 

The court then turned to Wood’s Free Speech Clause challenge.  Although the court acknowledged that compelled speech usually gets rigorous scrutiny,[29] this presumption needs to be balanced with the reality that students’ rights in public schools are not “automatically coextensive with the rights of adults in other settings.”[30]  The court here agreed with the Third Circuit’s approach, which stated that, in the educational context, students sometimes are forced to speak when they would rather not and that does not offend the First Amendment.[31]  From this basis, the court went on to find that the shahada assignment did not require Wood to profess or accept the tenants of Islam or take part in any devotion practice related to Islam.  Therefore, Wood’s right against compelled speech was not violated.

Conclusion

The Court of Appeals for the Fourth Circuit, in a relatively short opinion, affirmed the granting of summary judgment in favor of the defendants.  The court did not find merit on either of Wood’s assertions that the comparative faith statement or the shahada worksheet violated the Establishment Clause or the Free Speech Clause.  The content in question was a minor part of a small unit about the Muslim world in the context of a world history class.  The purpose for this content is clearly secular in nature and would not have led a reasonable juror to find that Wood’s rights were violated.


[1] Wood v. Arnold, 915 F.3d 308, 312 (4th Cir. 2019).

[2] Id.

[3] Id.

[4] Id. at 312–13.

[5] 915 F.3d 308 (4th Cir. 2019).

[6] Id. at 313.

[7] The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I, cl. 1.

[8] Wood, 919 F.3d at 313.

[9] Id.

[10] Id.

[11] Id. at 318.

[12] Id. at 319.

[13] Plaintiff’s Amended Complaint ¶¶ 34–40, Wood v. Arnold, (No. 8:16-cv-00239-GJH), 2016 WL 6136525 (D. Md. Oct. 11, 2016).

[14] Corrected Brief for Defendants-Appellants at 13, Wood v. Arnold, 915 F.3d 308 (No. 18-1430) (4th Cir. 2019).

[15] Id. at 19–21.

[16] Id. at 22–24.

[17] Id. at 25–26.

[18] See id. at 31.

[19] Wood v. Arnold, 915 F.3d 308, 314 (4th Cir. 2019).

[20] Lemon v. Kurtzman, 403 U.S. 602 (1971).

[21] Wood, 915 F.3d at 314–15 (citingLambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266, 271 (4th Cir. 2005)). 

[22] Id. at 315 (citing Glassman v. Arlington Cty., 628 F. 3d 140, 146 (4th Cir. 2010)).  

[23] Id. at 315 (citing Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 255 (1963)).

[24] Id. at 317.

[25] Id. at 316 (citing Cty. of Alleghany v. ACLU, 492 U.S. 573, 592–94 (1989)).

[26] Id. at 317 (citingLee v. Weisman, 505 U.S. 577, 598–99 (1992)).

[27] Id. at 317–18.

[28] Id. at 318.

[29] Id. at 319 (citingGreater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 879 F. 3d 101, 107 (4th Cir. 2018)).

[30] Id. (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)).

[31] Id. (citing C.N. v. Ridgewood Bd. of Educ., 430 F. 3d 159, 187 (3d Cir. 2005)).

By: Jason Wiener

Francis Dominic Murnaghan, Jr. was born in Baltimore, Maryland on June 20, 1920.[1]  After he received an undergraduate degree from Johns Hopkins University in 1941, he served his country during World War II as a U.S. Naval Reserve Lieutenant from 1942 to 1946.[2]  Upon graduating from Harvard Law School in 1948, he went into private practice in Pennsylvania until 1950 and then served as a staff attorney for the U.S. Department of State’s High Commission on Germany from 1950 to 1952.[3]  Before taking the bench, Judge Murnaghan was a partner at Venable, Baetjer and Howard and served as the Assistant Attorney General for the State of Maryland.[4]

From 1967 to 1970, Judge Murnaghan was president of the Baltimore City School Board.[5]  He served as president and then chairman of the Walters Art Gallery from 1963 until being named chairman emeritus in 1985.[6]  Known for his participation in the public and political spheres in Baltimore, he assisted in the successful campaigns of Senator Paul Sarbanes in 1976 and Governor Harry Hughes in 1978.[7]

On May 8, 1979, he was nominated to the U.S. Court of Appeals for the Fourth Circuit by Jimmy Carter.[8]  While on the bench, Judge Murnaghan wrote over 500 opinions and more than half as many concurrences and dissents.[9]  Known for his compassion and professionalism, his opinions had great impacts in the areas of civil rights, labor, First Amendment law.[10]

Although it is rare for a circuit to reverse a district court finding on a clearly erroneous standard of review, in United States v. Gregory, Judge Murnaghan reversed the lower court’s finding that the Sheriff of Patrick County, Virginia, was not discriminating against women in the hiring of deputies.[11]  Judge Murnaghan stated that the district court erred in its factual findings and found that the record indicated that Sheriff Gregory routinely engaged in discriminatory practices against women in violation of Title VII.[12]

In a notable dissent, Judge Murnaghan alone argued against the constitutionality of a Virginia statute that allowed the Commonwealth to collect the DNA of all convicted felons for a law enforcement data bank.[13]  Judge Murnaghan believed that the Commonwealth did not justify the statute with an important state interest that outweighed non-violent felons’ reasonable expectations of privacy.[14]  He went on to warn of his “deep, disturbing, and overriding concern that, without a proper and compelling justification, the Commonwealth may be successful in taking significant strides towards the establishment of a future police state, in which broad and vague concerns for administrative efficiency will serve to support substantial intrusions into the privacy of citizens.”[15]

Judge Murnaghan’s contributions helped strengthen the foundations of democracy and equality, and he will be remembered for his devotion to civil rights.[16]  On August 31, 2000, the Honorable Francis Dominic Murnaghan, Jr. died at the age of 80.[17]  Upon his death, the Baltimore Sun avowed, “Judge Murnaghan was one of the most admired figures in the legal establishment for his urbane scholarship, legal knowledge, and public spirit.”[18]

 

[1] Francis Dominic Murnaghan, Jr., Fed. Jud. Ctr., https://www.fjc.gov/node/1385506 (last visited Oct. 14, 2018).

[2] Id.

[3] Id.

[4] Biography of Judge Murnaghan, Francis D. Murnaghan Appellate Advocacy Fellowship, http://www.murnaghanfellowship.org/judge_murnaghan (last visited Oct. 14, 2018).

[5] Longtime Federal Appellate Judge Francis D. Murnaghan Dies at 80, Wash. Post (Sept. 1, 2000),  https://www.washingtonpost.com/archive/local/2000/09/01/longtime-federal-appellate-judge-francis-d-murnaghan-dies-at-80/d1be1771-8f0b-4d10-b094-77d7ac3820ba/?noredirect=on&utm_term=.1823226946fb.

[6] Id.

[7] Id.

[8] Fed. Jud. Ctr., supra note 1.

[9] Biography of Judge Murnaghan, supra note 4.

[10] Id.

[11] United States v. Gregory, 871 F.2d 1239, 1241 (4th Cir. 1989).

[12] Id. at 1247.

[13] Jones v. Murray, 962 F.2d 302, 311 (4th Cir. 1992).

[14] Id. at 312.

[15] Id. at 315.

[16] Biography of Judge Murnaghan, supra note 4.

[17] Fed. Jud. Ctr., supra note 1.

[18] Confirmation Hearing on the Nomination of Claude A. Allen, of Virginia, to be Circuit Judge for the Fourth Circuit; and Mark R. Filip, of Illinois, to be District Judge for the Northern District of Illinois Before the S. Comm. on the Judiciary, 108th Cong. 5 (2003) (statement of Sen. Paul S. Sarbanes).