By Michael VerMeulen

In a legal battle between qualified immunity and freedom of the press, which one will come out on top? In the eyes of the Fifth Circuit, the First Amendment bows down to qualified immunity for police officers. [1]

This fight has come to the legal forefront in Villarreal v. City of Laredo.[2] The case concerns independent Facebook-based investigator Priscilla Villarreal who is infamous amongst police officers in the City of Laredo, Texas for filming crime scenes and covering police misconduct.[3] In an apparent act of retaliation, the Laredo Police Department arrested and detained Villarreal for violating Texas Penal Code § 39.06(c), under which a person may not inquire about non-public information that a public official has access to by means of their employment if the person has an intent to “benefit” from the information.[4] The Department based its arrest on Villarreal’s procurement of a deceased Border Patrol officer’s name prior to the Department’s public disclosure of this information. [5] Six months after Villarreal obtained the officer’s name, the Department charged her with the Penal Code violation.[6]

After Villarreal’s release on bail, prosecutors dropped the charges following her successful habeas corpus petition.[7] Subsequently, Villarreal sued the City of Laredo, its police department, and numerous officers in federal district court for unlawful interference with her constitutional rights, most notably her “First Amendment rights as a citizen journalist.”[8]

The district court granted summary judgment to the defendants, and Villarreal appealed its decision to the Fifth Circuit. [9] There, a three-judge panel ruled 2-1 in Villarreal’s favor and held that detaining a journalist for simply asking a question was an “obvious violation of the Constitution.”[10] Citing the Supreme Court’s landmark 1971 decision in New York Times Co. v. United States, Judge Ho’s majority opinion rightfully pondered: “If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them?”[11] Nevertheless, the Fifth Circuit decided to convene and rehear the case en banc. [12]  And on January 23, 2024, the Court issued a 9-7 decision in favor of the defendants,[13] and four separate judges issued dissenting opinions. [14]

The Fifth Circuit reasoned that the facts of Villarreal’s case did not meet the standard for bypassing police officers’ qualified immunity for work-related behavior, as Villarreal’s asserted constitutional rights had not been “clearly established” at the time of the alleged violation.[15] There is a logic to the majority’s reasoning. Quoting the Supreme Court’s 2018 decision in Kisela v. Hughes, the court stated that “police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.”[16] To that end, the Texas Penal Code § 39.06(c) had not yet been ruled unconstitutional, and no case has previously held “that it is unconstitutional to arrest a person, even a journalist, upon probable cause for violating a statute that prohibits solicitation and receipt of nonpublic information from the government for personal benefit.”[17]

However, the Supreme Court’s reasoning in Kisela explicitly referred to officer immunity concerning potential Fourth Amendment violations–an area of the law “where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.”[18]

In contrast to situations involving excessive force, police officers interacting with reporters do not have to apply complex legal doctrines to specific, split-second situations. [19]  Rather, officers know that it is a “fundamental personal right” shared by every American.[20] Further, the Laredo officers in this case could not have believed in good faith that have Villarreal’s questions were “sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.[21] Indeed, no Texas jury had ever returned a guilty verdict for a 39.06(c), and the Laredo Police Department had never even charged a person with an offense under the statute despite having likely been asked questions about confidential matters countless times by journalists.[22]

Under the new standard set by the Fifth Circuit, police officers may arrest any journalist who asks a question about information that is not publicly available. [23] While journalists will almost never by found guilty of investigative crimes, the police can be harass them and take their liberties taken away without having to worry about any potential civil liability. [24]

In his dissenting opinion in Villarreal, Judge Willett stated in frank terms that “encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees.”[25] In his own dissent, Judge Graves criticized the Court’s opinion for the legal implications it may have on journalism as “the majority would limit journalists who work the government beat to publicly disclosed documents and official press conferences, meaning they will only be able to report information the government chooses to share.”[26] Graves also noted his concern over the potential chilling effects stemming from the court’s decision, as “it is not even clear whether the majority’s opinion would allow journalists to request information in good faith from official channels without fear of reprisal.”[27]

Villarreal has already expressed her desire to appeal the case to the Supreme Court[28], which will hopefully grant certiorari to clear up the extent to which qualified immunity overrules First Amendment violations. In the meantime, though, journalists will have to work with uncertainty as to whether they are entitled to their constitutional rights. With the possibility of a legal remedy removed, Texas journalists can only hope that they do not ask the wrong question to the wrong police officer.


[1] See Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024

[2] Id.

[3]Roxanna Asgarian, Appeals court to decide if First Amendment should have protected Laredo’s “big crazy lady” from arrest, The Texas Tribune (Jan. 6, 2023, 5:00 AM), https://www.texastribune.org/2023/01/06/first-amendment-laredo-journalist/.

[4] Tex. Penal Code Ann. § 39.06 (West); see also Id. § 1.07(a)(7) (“’Benefit’ means anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.”)

[5] Asgarian, supra note 3.

[6] Id.

[7] Villarreal, supra note 1.

[8] Villarreal v. City of Laredo, Texas, No. 5:19-CV-48, 2020 WL 13517246 (S.D. Tex. May 8, 2020), aff’d in part, rev’d in part and remanded, 17 F.4th 532 (5th Cir. 2021), withdrawn and superseded by 44 F.4th 363 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024), and aff’d in part, rev’d in part and remanded, 44 F.4th 363 (5th Cir. 2022), and reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024)).

[9] Villarreal v. City of Laredo, Texas, 44 F.4th 363 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024).

[10] Id.

[11] 44 F.4th 363, 371 (citing New York Times Co. v. U.S., 403 U.S. 713 (1971)).

[12] Villarreal v. City of Laredo, Texas, 52 F.4th 265 (5th Cir. 2022).

[13] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024).

[14] Grayson Clary, In Texas, a disastrous ruling for jounralists’ rights, Reporters Committee (Jan. 29, 2024), https://www.rcfp.org/fifth-circuit-qualified-immunity/.

[15] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (citing Rivas-Villegas v. Cortesluna, 595 U.S. 1 (2021))

[16] Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per curium).

[17] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024)

[18] Id. (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) .

[19] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Willett, J., dissenting).

[20] Branzburg v. Hayes, 408 U.S. 665 (1972).

[21] Brinegar v. United States, 338 U.S. 160, 175 (1949).

[22] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Higginson, J., dissenting).

[23] Billy Binion, This Court Case Could Make It a Crime to Be a Journalist in Texas, Reason (Nov. 4, 2022, 10:03 AM), https://reason.com/2022/11/04/this-court-case-could-make-it-a-crime-to-be-a-journalist-in-texas/.  

[24] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Willett, J., dissenting)

[25] Id. (Willett, J., dissenting).

[26] Id. (Graves, J., dissenting).

[27] Id.

[28] Lagordiloca News LaredoTx, Facebook (Jan. 27, 2024, 4:14PM),

 

 

 

13 Wake Forest L. Rev. Online 42

Brandon J. Johnson[1]

Introduction

The North Carolina Supreme Court’s recent decision to reverse course on partisan gerrymandering has garnered national attention.[2] In the court’s third opinion issued in Harper v. Hall,[3] (“Harper III”) a newly elected 5-2 conservative majority of the state supreme court overruled the first opinion[4] authored by the previous 4-3 liberal majority and declared partisan gerrymandering to be a nonjusticiable political question.[5] Election law and constitutional law scholars have produced reams of content questioning how the ruling would impact the U.S. Supreme Court’s pending consideration of the state court’s prior decision in the case.[6] Many questioned whether the state court’s decision would cause the Court to dismiss the initial appeal.[7]

As it turned out, the U.S. Supreme Court’s ruling in what would be known as Moore v. Harper[8] was a significant election law case that expanded the federal judiciary’s role in regulating federal and even state elections. The Supreme Court’s opinion in the case received significant national attention and was largely greeted with a sigh of relief by many scholars and commentators who worried that the Court would adopt an extreme version of a fringe theory known as the Independent State Legislature Theory.[9] Indeed, the importance of the U.S. Supreme Court’s decision regarding the Independent State Legislature Theory has been the primary focus of the commentary surrounding Harper v. Hall and Moore v. Harper, and rightly so.[10] If the Court had adopted the most extreme version of the theory, state legislatures—including (and perhaps especially) significantly gerrymandered legislatures—would have free rein to craft election regulations that entrenched partisan advantages with no constitutional guardrails. Though the Court rejected this approach, the Moore majority left the door open for the U.S. Supreme Court to act as the final arbiter of state election practices, which by itself has caused significant consternation among election law scholars.[11]

Given the national consequences of Moore v. Harper, however, the state court decision Harper III has been largely ignored. While this oversight is understandable, an examination of the North Carolina Supreme Court’s opinion in the case yields vital insight into the ways in which state courts can hide behind a veneer of judicial independence while actually using state politics and polarization to reshape state law. This insight may yield immediate practical consequences given that partisan gerrymandering litigation is currently ongoing in approximately one-third of the states.[12]

The dissent in Harper III provides a searing indictment of the majority’s reasoning and sets forth a cogent argument explaining why the opinion is an incorrect interpretation of the North Carolina constitution. The analysis that follows in this Essay will not rehearse the persuasive criticisms leveled by the dissent. Rather, it will focus on two ways in which the majority opinion may provide insight into how state courts can use the traditional tools of judicial review to reshape a state’s political culture. After providing a brief sketch of the procedural history of Harper I, II, and III in Part I, Part II of this Essay then explores the ways in which the opinion attempts to enshrine an exceptionally narrow vision of originalism as the only acceptable method of interpreting North Carolina’s constitution. Part III criticizes the way in which the Harper III majority further entrenches an incorrect understanding of political accountability.

While the examination below is limited to the rhetoric and reasoning employed by the North Carolina Supreme Court, it should serve as a case study for how easy it can be for state courts to affect a state’s political and policy landscape without attracting much notice.

I. The Procedural Path

A quick (and by no means exhaustive) recap of the procedural history of the Harper opinions will illuminate the unusual issues created by the state court’s recent ruling and facilitate the discussion that follows. The litigation began after the North Carolina General Assembly issued a new districting map after the 2020 census.[13] Multiple parties filed suit alleging inter alia that the map employed unconstitutional partisan gerrymanders in violation of the North Carolina Constitution’s guarantee of free elections and the state’s equal protection clause.[14] In January 2022, a three-judge panel of the Wake County Superior Court ruled that partisan gerrymandering claims “presen[t] nonjusticiable, political questions” under the state constitution.[15]

Less than a month later, the state supreme court heard the case directly and reversed the lower court’s ruling.[16] The 4-3 majority in what would become known as Harper I held that partisan gerrymandering claims are justiciable and the “extreme” gerrymanders in the challenged districting map violated the state constitution’s free elections clause, equal protection clause, free speech clause, and freedom of assembly clause.[17]

While the state legislature proceeded to draft new districting maps to comply with Harper I, the litigation continued, and the U.S. Supreme Court agreed to hear a challenge to this ruling under the name Moore v. Harper.[18] The Supreme Court case garnered national attention, in part, because the petitioners advanced arguments under the Independent State Legislature Theory. The Independent State Legislature Theory posits that only the state legislature has any say in federal elections[19] because the Elections Clause of the U.S. Constitution instructs that “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”[20] Put another way, the state constitution itself places no limits on the legislature’s ability to regulate federal elections leaving state courts with no authority to interpret state constitutional provisions in order to second guess election related legislation.

But while the U.S. Supreme Court litigation proceeded, various parties challenged the second districting map that the legislature drafted in response to Harper I and the case made its way back to the state supreme court.[21] In a December 2022 opinion, now known as Harper II[22], the same 4-3 majority that issued the Harper I opinion ruled that the map for the state house was constitutionally adequate but the maps for the state senate and the federal congressional districts still contained unconstitutional partisan gerrymanders.[23]

In between oral arguments in Harper II and the issuance of the opinion, the North Carlina midterm elections occurred.[24] North Carolina’s supreme court justices are elected in partisan contests, and two of the Democratic justices who had signed on to the Harper II majority were replaced by conservative challengers.[25] As a result of this change in personnel, the new 5-2 conservative majority expressed concern that the Harper II majority had “overlooked or misapprehended” a point “of fact or law,”[26] and granted a petition for rehearing.[27]

On April 28, 2023 this newly minted majority “withdrew” Harper II and “overruled” Harper I, finding that partisan gerrymandering claims presented a nonjusticiable political question.[28] The U.S. Supreme Court then issued its opinion in Moore v. Harper on June 27, 2023.[29] The majority opinion determined that the Court still had standing to decide the initial case but affirmed the Harper I decision.[30] In doing so, the Court rejected the state defendants’ primary legal argument regarding the Elections Clause and reaffirmed that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”[31] The Court did, however, reserve for itself the right to pass judgment on whether state courts correctly interpreted questions of state election law under state constitutions,[32] a significant increase in the Court’s review of state election laws.[33]

With this procedural sketch in place, this Essay now returns to its primary focus: an examination of the warning signs advocates, policymakers, and public law scholars should glean from the North Carolina Supreme Court’s opinion in Harper III. As discussed in the introduction, the focus of this examination will not be on the merits of the majority opinion as the dissent has already done an admirable job dissecting that on its own terms.[34] Instead, the remainder of this Essay delves into the more far-reaching consequences of the opinion. Though the ramifications of the majority’s opinion are limited to North Carolina, they provide a cautionary tale for the ways in which state courts—particularly those with elected judges—can involve the judiciary in the political fortunes of the state.

II. Regressive Originalism

Perhaps the most sweeping consequence of the opinion may be the majority’s efforts to enshrine originalism (and a crabbed version of originalism, at that) as the only acceptable methodology of constitutional interpretation.[35] From the first few pages, Harper III makes this view of constitutional interpretation clear. For example, on the second page of the opinion, the majority writes: “As the courts apply the constitutional text, judicial interpretations of that text should consistently reflect what the people agreed the text meant when they adopted it.”[36] This appeal to the original public meaning[37] of the state’s constitution returns time and again throughout the opinion, including the following concluding admonition: “Recently, this Court has strayed from this historic method of interpretation to one where the majority of justices insert their own opinions and effectively rewrite the constitution.”[38] This language makes clear that the current majority of the North Carolina Supreme Court views originalism as the only legitimate method of constitutional interpretation.

The current state court majority is not alone in its application of originalist methodology, nor unique in its attempts to privilege this school of constitutional interpretation above all others.[39] Nor is an originalist approach to interpreting the North Carolina constitution without precedent.[40] The version of originalist methodology operationalized in the Harper III opinion, however, is surprisingly (almost shockingly) pernicious.

As an initial matter, the majority seems to advocate for both original public meaning originalism and original intent originalism, despite the latter theory having been all but (though not entirely)[41] abandoned by originalism’s defenders.[42] In its introduction, for example, the majority insists that “judicial interpretations of [constitutional] text should consistently reflect what the people agreed the text meant when they adopted it”—a classic formulation of original public meaning originalism.[43] But when returning to a discussion of constitutional interpretation, the majority seems to urge an “original intent” approach, asserting that “courts determine the meaning of a constitutional provision by discerning the intent of its drafters when they adopted it.”[44]

The reliance on this largely abandoned[45] version of originalism is only one example of how the Harper III majority is attempting to mandate not just originalism, but a regressive vision of originalism. By focusing on the actual intent of the drafters of the document, a court limits the potential interpretations of a constitution to the world view of individuals at a fixed point in time—a world view that is in many ways incompatible with the present day. Additionally, by employing both original intent originalism and original public meaning originalism, the Harper III majority can switch back and forth between whichever methodology best supports its desired result, eliminating originalism’s supposed virtue of constraining judicial discretion.[46]

Nor does the majority escape the “law office historian” pitfalls that plague many originalist opinions.[47] For example, the court devotes several pages to recounting the history of the Glorious Revolution in a befuddling attempt to show that the state constitutional clauses cited by the plaintiffs in the underlying cases were directed at protecting North Carolinians from voting regulations designed to benefit the king.[48] As an initial matter, this history says nothing about the clauses’ relationship to gerrymandering—again, a phenomenon that was not even in the lexicon for more than a century.[49] But even taking the majority’s argument on its own terms, the historical narrative provided arguably supports applying the free elections clause to partisan gerrymandering rather than undermining such an interpretation.[50] The majority declares, for example, that one reason for the prohibition on dividing counties to make new districts comes in part from King James II’s practices of “adjusting a county’s or borough’s charter to embed the king’s agents and ensure a favorable outcome for the king in the 1685 election.”[51] The majority reiterates that “[i]n some instances these adjustments altered who could vote in order to limit the franchise to those most likely to support the king’s preferred candidates.”[52] But this type of result-oriented intervention is exactly the reason parties challenge partisan gerrymanders.

But beyond succumbing to these more common problems with originalist methodology, the majority also employs a particularly rigid approach to originalism that would severely inhibit applications of the state constitution to modern developments. The most plausible reading of the majority’s analysis of whether the constitution applies to partisan gerrymandering, for example, is that the state constitution is essentially irrelevant to any subject not explicitly discussed.[53] Because the constitution does not mention gerrymandering, the majority says, that document is irrelevant to evaluating any gerrymandering challenges.[54] But even staunch originalists like Ilan Wurman accept that applying the original meaning of the text does not mean that a constitution must anticipate and discuss every eventuality in order to apply to the subject at hand.[55] The fact that the U.S. Constitution makes no mention of the internet, for example, does not prevent originalists from agreeing that the protections of the First Amendment apply to this 21st century medium.[56]

In support of this tightly cabined interpretation of the state constitution, the majority highlights a case from the 1780s striking down a statute that directly conflicted with the then governing constitution by eliminating the right to a jury trial in cases where the state confiscated loyalist property.[57] The constitution at the time promised a jury trial “in all Controversies at Law respecting property.”[58] But simply because the first statute, which was deemed unconstitutional in the state, directly conflicted with express language in the constitution does not impose a lasting and immovable requirement that judicial review of a legislative act is permissible only if the constitution speaks directly to the subject at hand.[59]

The majority even attempts to graft on some version of this explicit language requirement to its discussion of the U.S. Constitution, asserting that the lack of any specific mention of partisan gerrymandering in that document demonstrates the framers’ intent to exclude the federal courts from any such oversight. The majority further claims that “[t]he framers could have limited partisan gerrymandering in the [U.S.] Constitution or assigned federal courts a role in policing it, but they did not.”[60] To take this statement at face value shows the absurdity that this explicit acknowledgement requirement would impose.[61] The term “gerrymander” did not even exist until more than two decades after the U.S. Constitution was ratified.[62] Nor did the U.S. Constitution make any mention of “partisanship” (or “factionalism” as this concept was more commonly called at the time) because one of the goals of the famers was to avoid factional divisions.[63]

The end result of this interpretative approach is that the majority seems far too comfortable with an interpretation of the North Carolina constitution that reflects a polity of exclusion. The opinion at one point even asserts that because the original understanding of the state constitution’s “free elections” clause still limited the franchise to land-holding “freemen,” the clause cannot be construed to prohibit limitations on voting rights beyond coercion and intimidation.[64] An application of such a regressive version of originalism is especially misplaced in deciding questions relating to elections based on a constitutional text ratified when the franchise was extremely limited. The majority, for example, argues that because the original North Carolina Constitution adopted in 1776 contained free elections and freedom of assembly clauses while still allowing the legislature to draw malapportioned districting maps, these same clauses should not be used to restrict legislative map drawing today.[65] But this rationale would also allow election regulations that discriminated on the basis of race, gender, sexual orientation, and even status as a property owner, as long as subsequent amendments did not address the specific types of discriminatory regulations employed. Indeed, the Harper III majority simply ignores fundamental developments in both federal and state constitutional law that took place after the ratification of the state’s first constitution—ignoring the fact that North Carolina adopted a new constitution in 1868 and again in 1971 and has significantly amended the document in the last two centuries.[66]

Even when the majority makes general assertions of law, it relies on authority that further illustrates the regressive results of the justices’ chosen interpretive methodology. The majority, for example, cites to a 1944 case, State v. Emery,[67] to support its assertion that “[constitutions] should receive a consistent and uniform construction . . . even though circumstances may have so changed as to render a different construction desirable.”[68] But the “consistent and uniform construction” urged by the court in Emery enshrined the barring of women from serving as jurors in the state based on language in the then governing constitution stating that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court.”[69] To be clear, the majority does not endorse (or even mention) the holding of Emery, but it is telling that the vision of originalism espoused by the Harper III opinion is the exact same reading of the state constitution that prohibited women from serving on juries as late as 1944.[70] The fact that this case would be used to support the majority’s preferred methodology when other options are readily available seems questionable.

In a similarly telling choice, the majority issues another generic statement regarding the nature of the state constitution, asserting that the document “‘is in no matter a grant of power.’”[71] This benign quote comes from McIntyre v. Clarkson,[72] but the opinion then traces the origins of this quote to Lassiter v. Northampton County Board of Elections,[73] a 1958 case that upheld North Carolina’s reading requirement at the polls, despite clear evidence that the requirement was used to impede the ability of black North Carolinians to vote.[74] Again, the choice to trace this general point of law to a case upholding racially discriminatory voting laws indicates that the majority is either unaware of, or indifferent to, the regressive results of its methodological approach.[75]

In fact, the majority opinion makes clear that the North Carolina constitution would not ban racial gerrymanders, or any other type of racially motivated voting restrictions, leaving such practices banned only by the U.S. Constitution.[76] The court’s emphasis on requiring an explicit, specific textual restriction in the Constitution leads to a listing of what the majority appears to consider the only permissible avenues for judicial review of legislative districting acts.[77] Notably absent from this list is any prohibition on district maps that discriminate based on race.[78] The opinion also quotes heavily from a prior state supreme court decision, Dickson v. Rucho,[79] to emphasize the difficulty in identifying a judicially manageable standard for evaluating partisan gerrymanders.[80] What goes unmentioned in this discussion, however, is that the U.S. Supreme Court vacated Dickson I because the districting map employed racial gerrymanders as well.[81]

Taken together, the majority’s vision for constitutional interpretation inescapably leads to a regressive application of the state’s constitution. Because the rhetoric here sounds in a traditional application of judicial review, however, the Harper III majority has laid out a blueprint for similarly inclined state court majorities to manipulate theories of constitutional interpretation to essentially control state electoral politics while shielding themselves from political accountability. With this concern in mind, the Essay now turns to an examination of the majority’s misleading invocation of political accountability as justification for its holding.

III. Manipulation of Political Accountability

The other rhetorical move made by the Harper III majority that is likely to have long reaching impact is the weaponization of political accountability. The majority relies on the time honored trope that the state legislature is the true “people’s branch” in state government, asserting from the beginning of the opinion that “[t]he people exercise [the political] power [granted to them by the state constitution] through the legislative branch, which is closest to the people and most accountable through the most frequent elections.”[82] The majority then implicitly ties this version of “accountability” to the state legislature’s ability to implement “the will of the people.”[83]

This lionization of state legislatures as the branch “closest to the people” has been effectively rebutted by legal scholars like Miriam Seifter.[84] As Seifter demonstrates, officials elected in statewide elections are often more representative of the whole people of a state than are state legislators.[85] In North Carolina, the very same justices who disclaim sufficient accountability are all elected statewide.[86] Indeed, it is because of the elected (and partisan) nature of these judicial offices that Harper II was granted a rehearing.[87] So, even from a threshold perspective, the democratic legitimacy foundation for the Harper III opinion is on shaky ground.

But this unsupported trope of American democracy has even less to recommend it in the context of a gerrymandering challenge. The essence of a claim of gerrymandering is that the body elected by the gerrymandered map is unrepresentative of the people.[88] Even a majority of voters cannot effectively hold a gerrymandered legislature “accountable” if the gerrymander is extreme enough to consistently transform minority preference into majority representation.[89] But the Harper III majority ignores this reality, blithely asserting that “those whose power or influence is stripped away by shifting political winds cannot seek a remedy from courts of law, but they must find relief from courts of public opinion in future elections.”[90] Indeed, the majority’s assurances then that “opponents of a redistricting plan are free to vote their opposition,”[91] ring hollow when addressing claims that the redistricting process has effectively undermined the ability of even a majority of voters to hold their legislature “accountable” in the traditional sense.

The Harper III majority also recounts language from Rucho v. Common Cause[92] that reiterates a “long-standing … myth[] about the rational, policy-oriented voter.”[93] The majority faults the Harper I opinion for focusing too much on the role of partisan affiliation in elections.[94] The opinion confidently asserts, for example, that “voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations.”[95] But, as I have written previously, much of modern political science literature documenting voter behavior indicates that voters are not nearly this nuanced, and instead partisan affiliation is a far better predictor of voter behavior than any of the factors identified in Rucho and parroted in Harper III.[96]

The majority quotes freely from Rucho and incorporates much of that decision’s language cautioning against involving the “unaccountable” federal judiciary against involving itself in the inherently political redistricting process.[97] Regardless of one’s views on the correctness of Rucho, it is clear that the accountability concerns discussed in the case stem from the federal judiciary’s position as an unelected branch of government.[98] Indeed, the connection between political accountability and the unelected nature of the federal judiciary is quoted in full by the Harper III majority: “Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.”[99]

But recall that almost the entire North Carolina judiciary, including the justices of the state supreme court, are elected.[100] The Justices in particular, are elected statewide and are not subject to the gerrymandered districting maps.[101] As noted above, this makes them, arguably, more accountable to the people of North Carolina because the statewide election better reflects the full electorate than does a manipulated state legislature district.[102] Nor are these elected judges above the political fray because they are chosen in partisan elections appearing on the ballot with their party affiliation clearly identified.[103] The Harper III majority cautions against involving the judiciary in “[c]hoosing political winners and losers” because doing so “creates a perception that the courts are another political branch.”[104] But in North Carolina, the judiciary is, arguably, a political branch. The state’s justices owe their offices to a political election that is influenced, in part at least, by the partisan, political preferences of the voters.[105] This is not to say that there is no difference between a justice and a legislator. Rather, this criticism demonstrates why the Harper III majority’s reliance on the accountability justifications in Rucho are so misplaced.

The majority leans into this accountability narrative, despite eventually acknowledging the elected nature of the state’s judiciary.[106] Indeed, though still pushing its assertion that the state legislature is the “most accountable” branch of the state government, the majority does recognize that with the implementation of an elected judiciary “judges in North Carolina become directly accountable to the people through elections.”[107] And the Harper III majority itself seems to acknowledge that the judicial elections play (or should play) a role in shaping North Carolina law.[108] One of the criticisms levelled against the Harper II opinion is that the “four-justice majority issued its Harper II opinion on 16 December 2022 [after the most recent judicial election] when it knew that two members of its majority would complete their terms on this Court just fifteen days later.”[109] It is hard to read this statement as anything other than a concession that a change in the partisan makeup on the court would (and should) change the outcome of cases.

Yet the majority consistently focuses on the supposed dangers posed to the separation of powers by involving the judiciary in “policymaking.”[110] The majority insists, for example, that the lack of an explicit reference to gerrymandering means that any court exercising judicial review of a gerrymandered map is engaged in policymaking.[111] Such judicial policymaking, we are told, “usurps the role of the legislature by deferring to [the court’s] own preferences instead of the discretion of the people’s chosen representative.”[112]

But, in addition to the unsound political accountability foundation for this view of the role of an elected judiciary, the majority’s vision of “policymaking” ignores the reality that the decision to close the courthouse doors to partisan gerrymandering claims is also a policy choice.

In refusing to apply the state constitution’s equal protection clause to partisan gerrymandering claims, for example, the majority asserts that “the fundamental right to vote on equal terms simply means that each voter must have the same weight.”[113] The court dismisses any independent application of the clause to elections by claiming that any equal protection concerns raised by election procedures are fully addressed by the requirements in Article II that each state legislator “represent, as nearly as may be, an equal number of inhabitants.”[114] But, by insisting that the state constitution’s equal protection clause only addresses the “weight” of each individual vote, and by taking a step further and confining “weight” to only the number of voters represented by each representative, the majority is engaging in exactly the same type of policymaking it claims made the Harper I and Harper II decisions illegitimate.

The inconsistent, almost incoherent ways in which the Harper III majority has employed discredited myths about political accountability and the role of an elected judiciary will impact election law and constitutional interpretation in North Carolina far beyond the holding of the case. With more than three quarters of states employing at least some form of elections as part of their judicial selection process,[115] a failure to confront the realities of an elected judiciary will continue to leave open opportunities for state courts to employ fantasies of political accountability to reshape their state’s political processes. While acknowledging the political nature of an elected judiciary may not stop state courts from reaching their desired results, it will at least require state judiciaries to honestly assess their own political role in deciding separation of powers disputes.

Conclusion

While the U.S. Supreme Court’s opinion in Moore v. Harper captured national attention, the Harper III majority also rejected the broadest version of the Independent State Legislature Theory advanced in the Moore briefing. In doing so, the majority recognizes that the courts—and by implication the state constitution—do have some role to play in the districting process: “Under the North Carolina Constitution, redistricting is explicitly and exclusively committed to the General Assembly by the text of the constitution. The Executive branch has no role in the redistricting process, and the role of the judicial branch is limited by the principles of judicial review.”[116] But, as with the opinion in Moore, the majority opinion in Harper III will have a longer reach beyond a specific holding on partisan gerrymandering.

This Essay has specifically focused on the adoption of a regressive form of originalism, which ultimately results in a polity of exclusion and inhibits the court’s potential to employ the state constitution in addressing contemporary challenges. The Harper III majority’s reliance on a rigid and outdated version of originalism is deeply troubling. By adhering to a carefully crafted quasihistorical context that fails to account for societal evolution and progress, the state court disregards the dynamic nature of constitutional principles. And the majority’s willingness to interpret the state constitution in an intentionally exclusionary way will continue to echo through the court’s jurisprudence.

The Essay has also demonstrated the danger of relying on “mythical” notions of political accountability. The majority’s use of these largely unrealistic tropes to decry judicial policymaking, while conveniently overlooking the fact that the North Carolina judiciary is elected and therefore accountable to the public, highlights the ways in which state courts can weaponize accountability not just in North Carolina, but nationwide. As of July of this year, litigation around partisan gerrymandering is ongoing in at least seventeen states.[117] Because the Supreme Court has closed the door on such claims under federal law, state courts remain the only viable venue to address partisan gerrymanders.[118] Left unchecked, the Harper III opinion provides a dangerous blueprint—regressive originalism and unsubstantiated notions of political accountability—that state courts may apply to these claims in ways that will significantly influence state election processes (and likely results) for the foreseeable future.

Election law, constitutional law, and federalism scholars should take note of the jurisprudential tactics employed in the Harper III majority as they continue to work to protect American democracy.

  1. *. Assistant Professor of Law at University of Nebraska College of Law. Many thanks to Anna Arons, Eric Berger, Kristen Blankley, Tyler Rose Clemons, Haiyun Damon-Feng, Dorien Ediger-Soto, Danielle C. Jefferis, Kyle Langvardt, Elise Maizel, Matthew Schaefer, and the members of the University of Nebraska College of Law Faculty Workshop for their thoughts and comments.

  2. . See, e.g., Derek Muller, What happens to Moore v. Harper after the latest North Carolina Supreme Court decision in the partisan gerrymandering case?, Election Law Blog (Apr. 28, 2023, 10:04 AM), https://electionlawblog.org/?p=135865.

  3. . Harper v. Hall, 886 S.E.2d 393 (N.C. 2023) (hereinafter “Harper III”).

  4. . Harper v. Hall, 868 S.E.2d 499 (N.C. 2022) (hereinafter “Harper I”) (overruled by Harper III, 886 S.E.2d 393).

  5. . Harper III, 886 S.E.2d 393.

  6. . See, e.g., Muller, supra note 1.

  7. . See, e.g., Hansi Lo Wang, A North Carolina court overrules itself in a case tied to a disputed election theory, NPR (Apr. 28, 2023, 12:25 PM), https://www.npr.org/2023/04/28/1164942998/moore-v-harper-north-carolina-supreme-court.

  8. . 143 S. Ct. 2065 (2023).

  9. . See, e.g., Rick Hasen, Separating Spin from Reality in the Supreme Court’s Moore v. Harper Case: What Does It Really Mean for American Democracy and What Does It Say About the Supreme Court?, Election Law Blog (June 27, 2023, 3:29 PM), https://electionlawblog.org/?p=137129.

  10. . See e.g., id.

  11. . See e.g., id.

  12. . Redistricting Litigation Roundup, Brennan Center for Justice (updated July 7, 2023), https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0.

  13. . Harper III, 886 S.E.2d at 401.

  14. . Id.

  15. . Id. at 402.

  16. . Id. at 403.

  17. . Harper I, 868 S.E.2d at 559.

  18. . 142 S. Ct. 2901 (2022) (mem.).

  19. . See Brandon J. Johnson, The Accountability-Accessibility Disconnect, 58 Wake Forest L. Rev. 65, 90 (2023).

  20. . U.S. Const. art. I, § 4, cl. 1.

  21. . Harper III, 886 S.E.2d at 408.

  22. . 881 S.E.2d 156 (2022) (hereinafter “Harper II”).

  23. . Id. at 181.

  24. . See Ethan E. Horton & Eliza Benbow, Two Republicans Win Seats On The NC Supreme Court, Flipping Majority, The Daily Tar Heel (Nov. 9, 2022), https://www.dailytarheel.com/article/2022/11/city-nc-supreme-court-2022-election-results.

  25. . Id.

  26. . Harper III, 886 S.E.2d at 399–400 (quoting N.C. R. App. P. 31(a)).

  27. . Id. at 409.

  28. . Id. at 401.

  29. . 143 S.Ct. 2065 (2023).

  30. . Id. at 2079, 2081.

  31. . Id. at 2081.

  32. . Id. at 2088.

  33. . See Hasen, supra, note 8.

  34. . Harper III, 886 S.E.2d at 449–78 (Earls, J., dissenting).

  35. . Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 377 (2013) (“At its most basic, originalism argues that the discoverable public meaning of the Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation.”).

  36. . Harper III, 886 S.E.2d at 399.

  37. . Whittington, supra note 34, at 380 (“Originalist theory has now largely coalesced around original public meaning as the proper object of interpretive inquiry.”).

  38. . Harper III, 886 S.E.2d at 448.

  39. . See, e.g., New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022) (“[R]eliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.” (quoting McDonald v. Chicago, 561 U.S. 742, 790–91 (2010))).

  40. . See Harper III, 886 S.E.2d at 412–14 (collecting cases).

  41. . See, e.g., Scott A. Boykin, Original-Intent Originalism: A Reformulation and Defense, 60 Washburn L.J. 245 (2021).

  42. . Id. at 246.

  43. . Harper III, 886 S.E.2d at 399.

  44. . Id. at 431.

  45. . See Whittington, supra note 34, at 382.

  46. . See, e.g., Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice (2019) (asserting that “constraint” is a virtue agreed upon by most strands of originalist scholarship); but see William Baude, Originalism as a Constraint on Judges, 84 U. Chi. L. Rev. 2213, 2214 (2018) (claiming that “originalist scholars today are much more equivocal about the importance and nature of constraining judges”).

  47. . See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: Meet the New Boss, Same as the Old Boss, 56 UCLA L. Rev. 1095 (2009).

  48. . Harper III, 886 S.E.2d.at 434–38.

  49. . See Erick Trickey, Where Did the Term “Gerrymander” Come From?, Smithsonian Mag. (July 20, 2017), https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/.

  50. . Harper III, 886 S.E. 2d at 434–38.

  51. . Id. at 435 (emphasis added).

  52. . Id. (emphasis added).

  53. . See Harper III, 886 S.E.2d at 415 (“When we cannot locate an express, textual limitation on the legislature, the issue at hand may involve a political question that is better suited for resolution by the policymaking branch.”).

  54. . See, e.g., Harper III, 886 S.E.2d at 400 (emphasis added) (“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text. Those limitations do not address partisan gerrymandering. It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch.”).

  55. . Ilan Wurman, What is originalism? Debunking the myths, The Conversation (Oct. 24, 2020, 12:03 PM), https://theconversation.com/what-is-originalism-debunking-the-myths-148488.

  56. . Neil M. Gorsuch, Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution, Time (Sept. 6, 2019, 8:00 AM), https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/.

  57. . Harper III, 886 S.E.2d. at 415 (citing Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787)).

  58. . Id. (quoting N.C. Const. of 1776, Declaration of Rights § XIV).

  59. . As the majority acknowledges, Bayard was the first exercise of judicial review of a statute in North Carolina, and may have been the first instance of a state court striking down a legislative act as contrary to the jurisdiction’s constitution. Id.

  60. . Id. at 410.

  61. . Id. at 415 (emphasis added) (“[T]he standard of review asks whether the redistricting plans drawn by the General Assembly, which are presumed constitutional, violate an express provision of the constitution beyond a reasonable doubt.”).

  62. . Trickey, supra note 48.

  63. . See, e.g., The Federalist No. 10 (James Madison).

  64. . See Harper III, 886 S.E.2d at 432–33.

  65. . Id. at 416–17.

  66. . Dr. Troy L. Kickler, North Carolina Constitution Is an Important Governing Document, N.C. Hist. Project, https://northcarolinahistory.org/encyclopedia/1573/ (last visited Sept. 17, 2023).

  67. . 31 S.E.2d 858 (N.C. 1944).

  68. . Harper III, 886 S.E.2d at 413 (alterations and omissions in Harper III) (quoting State v. Emery, 31 S.E.2d 858, 861 (N.C. 1944)). Notably, the omitted language from the quote would seem to caution against the majority’s decision to reverse a previous pronouncement of constitutional law. The full quote reads: “[Constitutions] should receive a consistent and uniform construction so as not to be given one meaning at one time and another meaning at another time even though circumstances may have so changed as to render a different construction desirable.” Emery, 31 S.E.2d at 861 (emphasized language was omitted from the quote in Harper III).

  69. . N.C. Const. art. I, § 13 (1868) (emphasis added).

  70. . Harper III, 886 S.E.2d at 413; Emery, 31 S.E.2d at 866.

  71. . Harper III, 886 S.E.2d at 414 (quoting McIntyre v. Clarkson, 119 S.E.2d 888, 891 (1961)).

  72. . 119 S.E.2d at 891.

  73. . 102 S.E.2d 853, 861 (N.C. 1958).

  74. . Paul Woolverton, Democrats in 1900 made the NC Constitution racist: Will voters today undo that?, Fayetteville Observer (Mar. 24, 2023, 5:06 AM), https://www.fayobserver.com/story/news/2023/03/24/ncs-constitution-has-a-racist-rule-will-voters-repeal-literacy-tests/70035467007/.

  75. . For further discussion of the morality of case citations—specifically in the context of citing to slave cases—see Alexander Walker III, On Taboos, Morality, and Bluebook Citations, Harv. L. Rev. Blog (June 10, 2023).

  76. . Compare Harper III, 886 S.E.2d at 449 (holding that “claims of partisan gerrymandering present nonjusticiable, political questions”), with Miller v. Johnson, 515 U.S. 900, 927–28 (holding that redistricting plans aiming to racially segregate voters are federally unconstitutional).

  77. . Harper III, 886 S.E.2d at 418 (quoting N.C. Const. art. II, § 3). The only restrictions on apportionment acknowledged by the majority are: (1) state senators must represent a (roughly) equal number of residents; (2) districts must be contiguous; (3); a prohibition on dividing counties to form a new district; and (4) a requirement that districts “remain unaltered” between censuses. Id.

  78. . See id.

  79. . 766 S.E.2d 238 (N.C. 2014).

  80. . See, e.g., Harper III, 886 S.E.2d at 402 (quoting Dickson, 766 S.E.2d at 260).

  81. . See Dickson v. Rucho, 137 S. Ct. 2186 (2017) (mem.). The Harper III opinion notes that the state court decision was vacated, but only using the euphemistic language “vacated on federal grounds.” See Harper III, 886 S.E.2d at 402.

  82. . Harper III, 886 S.E.2d at 398.

  83. . Id. at 398–99. The opinion returns to this theme of identifying the General Assembly as “the people’s branch” of state government. See, e.g., id. at 413 (“The legislative power is vested in the General Assembly, so called because all the people are present there in the persons of their representatives.” (quoting John V. Orth & Paul Martin Newby, The North Carolina State Constitution 95 (2d ed. 2013))); id. at 414 (citations omitted) (“Most accountable to the people, through the most frequent elections, “[t]he legislative branch of government is without question ‘the policy-making agency of our government[.]’” (quoting N.C. Const. art II)).

  84. . Miriam Seifter, Countermajoritarian Legislatures, 121 Colum. L. Rev. 1733, 1755–77 (2021); see also Johnson, supra note 18, at 101–02.

  85. . Seifter, supra note 83, at 1762–77.

  86. . N.C. Const. art IV, § 16.

  87. . See supra Part I.

  88. . See Kevin Wender, The “Whip Hand”: Congress’s Elections Clause Power as the Last Hope for Redistricting Reform After Rucho, 88 Fordham L. Rev. 2085, 2090 (2020).

  89. . For a discussion of the difficulty voters face in using the political process to change election laws, see Johnson, supra note 18, at 109.

  90. . Harper III, 886 S.E.2d 393, 423 (N.C. 2023) (quoting Dickson v. Rucho, Nos. 11-CVS-16896, 11-CVS-16940, 2013 WL 3376658, at *1–2 (N.C. Super. Ct. Wake Cnty. July 8, 2013)).

  91. . Id. at 443.

  92. . 139 S. Ct. 2484 (2019).

  93. . Johnson, supra note 18, at 103.

  94. . See Harper III, 886 S.E.2d at 428.

  95. . Harper III, 886 S.E.2d at 412 (quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2503–04 (2019)). The majority repeats these assertions, again without providing any empirical support for this view of voter behavior. Id. at 428–29.

  96. . Johnson, supra note 18, at 104–05.

  97. . See, e.g., Harper III, 886 S.E.2d at 413 (quoting Rucho, 139 S. Ct. at 2507).

  98. . See Rucho, 139 S. Ct. at 2507.

  99. . Harper III, 886 S.E.2d 393, 413 (N.C. 2023) (quoting Rucho, 139 S. Ct. at 2507); see also id. at 427 (alteration in original) (“A judicially discoverable and manageable standard is necessary for resolving a redistricting issue because such a standard ‘meaningfully constrain[s] the discretion of the courts[] and [] win[s] public acceptance for the court’s intrusion into a process that is the very foundation of democratic decision making.’” (quoting Rucho, 139 S. Ct. at 2500)).

  100. . N.C. Const. art IV, §16.

  101. . Id.

  102. . See Seifter, supra note 83, at 1734–41.

  103. . See, e.g., Judicial voter guide: 2022 primary election, North Carolina State Board of Elections, (last visited Sept. 17, 2023), https://www.ncsbe.gov/judicial-voter-guide-2022-primary-election.

  104. . Harper III, 886 S.E.2d at 399.

  105. . See Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Court, 21 U. Pa. J. Const. L. 153, 177–78 (2018) (observing that elected state court judges do not enjoy the same presumption of judicial independence that attaches to the federal judiciary).

  106. . Harper III, 886 S.E.2d at 418.

  107. . Id. (citing N.C. Const. of 1868, art IV, § 26).

  108. . Id. at 413–14.

  109. . Id. at 407 n.5.

  110. . See, e.g., Harper III, 886 S.E.2d at 399, 415, 431. The majority also ignores the differences between the ways in which power is separated at the state level instead of the federal level. For further discussion of these differences, see Robert F. Williams, The Law of American State Constitutions 238 (2009) and Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001).

  111. . See Harper III, 886 S.E.2d at 428 (“[S]ince the state constitution does not mention partisan gerrymandering, the four justices in Harper I first had to make a policy decision that the state constitution prohibits a certain level of partisan gerrymandering.”).

  112. . Id. at 431.

  113. . Id. at 440.

  114. . Id. at 442 (quoting N.C. Const. art. II, §§ 3(1), 5(1)).

  115. . Significant Figures in Judicial Selection, Brennan Ctr. for Just. (Apr. 14, 2023), https://www.brennancenter.org/our-work/research-reports/significant-figures-judicial-selection.

  116. . Harper III, 886 S.E.2d at 416.

  117. . Redistricting Litigation Roundup, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0 (July 7, 2023).

  118. . See generally Rucho v. Common Cause, 139 S. Ct. 2484 (2019) (holding that challenges to partisan gerrymandering are to be made under state statutes and state constitutions—not the U.S. Constitution); see also Alicia Bannon, North Carolina Supreme Court Unleashes Partisan Gerrymandering, Brennan Ctr. For Just. (May 10, 2023), https://www.brennancenter.org/our-work/analysis-opinion/north-carolina-supreme-court-unleashes-partisan-gerrymandering.

Comparison of Jack Daniels bottle and Bad Spaniels dog toy

Comparison of Jack Daniels bottle and Bad Spaniels dog toy

By Cameron Bray

On March 22, 2023, the Supreme Court will hear oral arguments[1] in the case of Jack Daniel’s Properties, Inc. v. VIP Products LLC,[2] which will determine the fate of the controversial “Bad Spaniels”[3] rubber dog toy.[4] The Bad Spaniels dog toy was created in 2013 by the Respondent, an Arizona limited liability company in the business of designing and selling dog toys for retail,[5] known commonly as “VIP.”[6]

Besides “Bad Spaniels,”[7] VIP also sells the Tuffy or “Tuffy’s Dog Toy” brand[8] and the “Mighty” line for stronger dogs.[9] The Petitioner, Jack Daniel’s Properties, Inc. is a Delaware corporation, with its principal place of business in California, that owns and licenses the trademarks and trade dress used for wholesale of Jack Daniel’s whiskey.[10]

The Tennessee corn mash whiskey for which Jack Daniel’s is known has been sold domestically since 1875[11] and was halted briefly by Prohibition.[12] At the trial court level, Senior Judge McNamee of the United States District Court for the District of Arizona granted partial summary judgment upon cross-motions of the parties[13] and the court also entered a permanent injunction, enjoining VIP from commercialization (marketing), distribution, or sale of “Bad Spaniels” after a four-day trial without a jury.[14]

Reviewing VIP’s appeal[15] and the trial record for legal conclusions de novo,[16] the United States Court of Appeals for the Ninth Circuit unanimously[17] found that “Like the greeting cards in [Gordon v. Drape Creative, Inc.],[18] the [‘Bad Spaniels’] dog toy, although surely not the equivalent of the Mona Lisa, is an expressive work.”[19] It applied the well-known Rogers[20] test for expressive works under the Lanham Act[21] and held that the Bad Spaniels dog toy was indeed entitled to First Amendment protection.[22]

In terms of First Amendment law[23] and intellectual property (“IP”),[24] Jack Daniel’s Properties, Inc. v. VIP Products LLC is the most important constitutional IP case that the Supreme Court has reviewed since Matal v. Tam[25] six terms ago.[26] It has the power to abrogate Rogers and decide what parodies may be protected under the Free Speech Clause of the First Amendment, which is now in conflict with the two commonly claimed trademark actions under the Lanham Act.[27] If the Court is divided in its opinion, over two dozen amicus briefs have been filed in the case,[28] including from the United States and from corporations such as Nike, Inc., and from nonprofits such as the Foundation for Individual Rights and Expression.[29]

  1. See Adam Liptak, May “Bad Spaniels” Mock Jack Daniel’s? The Supreme Court Will Decide, N.Y. Times (Dec. 5, 2022), https://www.nytimes.com/2022/12/05/us/politics/bad-spaniels-jack-daniels-dog-toy.html; see also Supreme Court of the United States, Docket for 22-148, Jack Daniel’s Props., Inc., Petitioner v. VIP Prods. LLC, https://www.supremecourt.gov/docket/docketfiles/html/public/22-148.html (last visited Mar. 8, 2023).

  2. 143 S. Ct. 476 (2022) (granting certiorari to the United States Court of Appeals for the Ninth Circuit). Jack Daniel’s Properties, Inc. v. VIP Products, LLC has been docketed as case number 22-148 by the Supreme Court. See supra note 1.

  3. “In July of 2013, VIP [Products, LLC] introduced the Bad Spaniels squeaker toy. The toy is roughly in the shape of a Jack Daniel’s bottle and has an image of a spaniel over the words ‘Bad Spaniels.’ The Jack Daniel’s label says, ‘Old No. 7 Brand Tennessee Sour Mash Whiskey’; the label on the Bad Spaniels toy instead has the phrase ‘the Old No. 2, on your Tennessee Carpet.’ A tag affixed to the Bad Spaniels toy states that the ‘product is not affiliated with Jack Daniel Distillery.’” VIP Prods. LLC v. Jack Daniel’s Props., Inc., 953 F.3d 1170, 1172 (9th Cir. 2020) (reviewing the United States District for the District of Arizona’s grant of summary judgment).

  4. “In 2014, [Jack Daniel’s Properties, Inc., or “JDPI”] ‘demand[ed] that VIP [Products LLC] cease all further sales of the Bad Spaniels toy.’ VIP responded by filing this action, seeking a declaration that the Bad Spaniels toy ‘does not infringe or dilute any claimed trademark rights’ of JDPI and that Jack Daniel’s trade dress and bottle design are not entitled to trademark protection. The complaint also sought cancellation of the Patent and Trademark Office registration for Jack Daniel’s bottle design. JDPI counterclaimed, alleging state and federal claims for infringement of JDPI’s trademarks and trade dress, and dilution by tarnishment of the trademarks and trade dress.” Id. at 1172–1173 (internal citations omitted).

  5. Complaint, VIP Prods. LLC v. Jack Daniel’s Props., Inc., 2014 WL 4913256 (D. Ariz. Sept. 16, 2014) (No. 2:14CV02057).

  6. “VIP Products sells the ‘Bad Spaniels Silly Squeaker’ dog toy, which resembles a bottle of Jack Daniel’s Old No. 7 Black Label Tennessee Whiskey, but has light-hearted, dog-related alterations. For example, the name ‘Jack Daniel’s’ is replaced with ‘Bad Spaniels,’ ‘Old No. 7’ with ‘Old No. 2,’ and alcohol content descriptions with ‘43% POO BY VOL.’ and ‘100% SMELLY.’ After Jack Daniel’s Properties, Inc. (‘JDPI’’) demanded that VIP cease selling the toy, VIP filed this action, seeking a declaration that the toy did not infringe JDPI’s trademark rights or, in the alternative, that Jack Daniel’s trade dress and bottle design were not entitled to trademark protection. JDPI counterclaimed, asserting trademark infringement and dilution.” VIP Prods. LLC v. Jack Daniel’s Props., Inc., 953 F.3d 1170, 1172 (9th Cir. 2020) (reversing judgment on the dilution claim, ordering vacatur on trademark infringement, and remanding for further proceedings in light of the First Amendment interests owed to “Bad Spaniels”).

  7. See supra notes 3–5.

  8. See, e.g., VIP Products LLC, Tuffy® Aliens: Alien Green, MyDogToy.com, https://mydogtoy.com/p/Tuffy-Alien-Green (last visited Mar. 8, 2023).

  9. See, e.g., Vip Products, MIGHTY – Safari Elephant – Squeaker-Multiple Layers, Amazon.com, Inc., https://www.amazon.com/MIGHTY-MT-S-Elephant-OR-Mighty-Safari-Elephant/dp/B01AT2OTTQ/ref=sr_1_5?crid=3E1V1W9PE4R4E&keywords=mighty%2Bdog%2Btoy&qid=1678294288&sprefix=mighty%2Bdog%2Btoy%2Caps%2C122&sr=8-5&th=1 (last visited Mar. 8, 2023). “Mighty dog toys rethink durability and approach it from a new angle.  Durability is created for each toy with multiple layers of flexible materials that move with the dog’s teeth instead of tearing . . .  These toys may seem plush on the outside, but all the durability features are internal making these toys soft, yet MIGHTY strong.  Please be a responsible dog owner and only allow your dog to play with the toy under supervision.” Id.

  10. Answer and Counterclaims of Defendant and Counterclaimant, VIP Prods. LLC v. Jack Daniel’s Props., Inc., 2014 WL 12936100 (D. Ariz. Dec. 3, 2014) (No. CV 14-02057). See also Jack Daniel’s Properties, Inc., Born to Make Whiskey, Our Story, https://www.jackdaniels.com/en-us/our-story (last visited Mar. 8, 2023).

  11. “Since 1875, Jack Daniel’s Tennessee whiskey has borne the registered trademarks JACK DANIEL’S and OLD NO. 7. Jack Daniel’s also has a registered trademark for its three-dimensional configuration of a square-shaped bottle with the embossed signature of ‘Jack Daniel’ . . . Approximately 98% of consumers expressed awareness of the Jack Daniel’s Brand.” Petition for a Writ of Certiorari at 9, Jack Daniel’s Props., Inc. v. VIP Prods. LLC, 2022 WL 3561781 (S. Ct. Aug. 5, 2022) (No. 22-148).

  12. See U.S. Const. amend. XVIII (repealed by the Twenty-first Amendment, effective Dec. 5, 1933).

  13. VIP Prods. LLC v. Jack Daniel’s Props., Inc., 2016 WL 5408313, at *1–2 (D. Ariz. Sept. 27, 2016) (No. CV-14-2057).

  14. See VIP Prods. LLC v. Jack Daniel’s Props., Inc., 953 F.3d 1170, 1173, 1176 (9th Cir. 2020) (vacating the permanent injunction against appellant, inter alia).

  15. Id. at 1173 (citing 28 U.S.C. § 1291).

  16. Id. at 1173–75 (citations omitted).

  17. Judge Hurwitz delivered the opinion of the court, and Judges Miller and Tashima concurred. See id. at 1171–72.

  18. 909 F.3d 257 (9th Cir. 2020). There was no petition or order for a rehearing en banc in the Ninth Circuit, and the Court granted Jack Daniel’s petition for a writ of certiorari after the Ninth Circuit affirmed the lower court’s grant of summary judgment. See supra note 2; VIP Prods. LLC v. Jack Daniel’s Props., Inc., 2021 WL 5710730 (D. Ariz. Oct. 8, 2021) (No. CV-14-020507) (reviewing the matter on remand and granting summary judgment to VIP), aff’d, VIP Prods. LLC v. Jack Daniel’s Props., Inc., 2022 WL 1654040 (9th Cir. Mar. 18, 2022) (No. 21-16969).

  19. VIP Prods. LLC, 953 F.3d at 1175.

  20. See Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989) (“We believe that in general the [Lanham] Act should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. In the context of allegedly misleading titles using a celebrity’s name, that balance will normally not support application of the Act unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.”).

    The Rogers test was adopted by the Ninth Circuit in the case of Mattel, Inc. v. MCA Records, Inc., 296 F.3d 849 (9th Cir. 2022). “[The Rogers court] concluded that literary titles do not violate the Lanham Act ‘unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.’ We agree with the Second Circuit’s analysis and adopt the Rogers standard as our own.” Id. at 902 (internal citations omitted) (opinion of Kozinski, J.) (finding that MCA Records, Inc.’s use of BARBIE in its song “Barbie Girl” was a parody entitled to First Amendment rights).

  21. 15 U.S.C. § 1051 et seq. Trademark infringement is a cause of action under 15 U.S.C. § 1114. Trademark dilution (by tarnishment or “blurring” a mark) is an additional cause of action under 15 U.S.C. § 1125. Fair use is codified as a legal defense under 15 U.S.C. § 1115 for when a trademark is registered nationally. See id. § 1115(b)(4).

  22. “We affirm the district court’s summary judgment in favor of JDPI on the issues of aesthetic functionality and distinctiveness. However, because the Bad Spaniels dog toy is an expressive work entitled to First Amendment protection, we reverse the district court’s judgment on the dilution claim, vacate the judgment on trademark infringement, and remand for further proceedings.” VIP Prods. LLC v. Jack Daniel’s Props., Inc., 953 F.3d 1170, 1172 (9th Cir. 2020).

  23. The Free Speech Clause is included in the First Amendment to the United States Constitution and generally protects commercial speech from abridgement or censorship: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I; see David Schultz, Commercial Speech, The First Amendment Encyclopedia, https://www.mtsu.edu/first-amendment/article/900/commercial-speech (last visited Mar. 8, 2023).

  24. Trademark is classified as “intellectual property,” but it draws its constitutional power from the Commerce Clause. See U.S. Const. art. I, § 8, cl. 3; The Trade-Mark Cases, 100 U.S. 82 (1879) (holding that Congress lacked power under the “Intellectual Property Clause” of Article I, § 8, cl. 8 to provide for trademark protection). “[The Congress shall have power . . .] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3 (emphasis added).

  25. 582 U.S. 218 (2017).

  26. The Matal Court invalidated a provision of the Lanham Act that prohibited the registration of “disparaging” or offensive trademarks. See id. at 223 (holding unconstitutional 15 U.S.C. § 1052(a)). Matal concerned an Asian-American rock band called “The Slants,” who were denied federal trademark registration because their mark was a derogatory term. Id. “But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force . . . We now hold that [§ 1052(a)] violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” Id.

  27. See Petition for a Writ of Certiorari at I, Jack Daniel’s Props., Inc. v. VIP Prods. LLC, 2022 WL 3561781 (S. Ct. Aug. 5, 2022) (No. 22-148) (Questions Presented: “1. Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims. 2. Whether humorous use of another’s mark as one’s own on a commercial product is ‘noncommercial’ under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act.”); see also Dorsney & Whitney LLP, So, Nine Justices Walk into a Bar . . . SCOTUS to Consider Role of Humor in Infringement and Dilution Claims, JDSUPRA (Jan. 9, 2023), https://www.jdsupra.com/legalnews/so-nine-justices-walk-into-a-bar-scotus-9208322/.

  28. Supreme Court of the United States, Docket for 22-148, Jack Daniel’s Props., Inc., Petitioner v. VIP Prods. LLC, https://www.supremecourt.gov/docket/docketfiles/html/public/22-148.html (last visited Mar. 8, 2023).

  29. See SCOTUSBlog, Jack Daniel’s Properties, Inc. v. VIP Products LLC, Cases, https://www.scotusblog.com/case-files/cases/jack-daniels-properties-inc-v-vip-products-llc-2 (last visited Mar. 8, 2023) (listing amici briefs).

12 Wake Forest L. Rev. Online 111

INTRODUCTION

No one wonders about the strength of the First Amendment’s speech protections with the same level of intensity as someone who has just uttered an unpopular opinion or statement. Growing up, school children often defend their words by alleging that in the United States, we can say whatever we want because of the First Amendment’s right to freedom of speech. Unsurprisingly, the extent of First Amendment protections is much more complicated than that simple phrase of “freedom of speech.” First Amendment jurisprudence “has been called labyrinthine for good reason. It consists of overlapping doctrines, maddeningly inconsistent rulings and an uncertain future.”[1]

This Comment will examine the scope of the First Amendment for higher education, particularly for professors at public colleges and universities. Can professors insist on calling students pronouns contrary to the students’ stated preferred pronouns despite policies and high-ranking administrators requiring professor to comply? Should the answer to that question depend on the jurisdiction in which the professor is teaching?

In Meriwether v. Hartop,[2] the Sixth Circuit joined the circuit split regarding which freedom of speech test applies to higher-level teacher speech for First Amendment purposes.[3] The breadth of freedom of speech on campuses is a recurring issue and a highly litigated matter.[4] Until there is a consistent test that courts can apply, and that professors can rely upon, the confusion surrounding professors’ protections and academic freedom will continue.

As discussed in Part III, the Supreme Court has determined that Garcetti vs. Ceballos[5] is the controlling test in public employment settings.[6] However, the Supreme Court refused to confirm which test would apply for higher education by merely referencing that Garcetti may not be the adequate test for professors.[7] Since that opinion, there has been confusion and inconsistency among the appellate courts, as some interpreted Garcetti to apply to all employment sectors, including professors at colleges and universities,[8] and some circuits interpreted Garcetti not to apply to professors and therefore apply a different standard instead.[9]

While freedom of speech on campus is commonly analyzed, the focal point is typically on the students’ freedom of speech rights in the classroom or on campus property when engaging in speech such as protests.[10] In contrast, this Comment looks at the extent of public university professors’ rights rather than the rights of students. Specifically, this Comment focuses on higher education, as opposed to teachers at or below secondary education. Given the United States’ tense and ever-changing sociopolitical climate over the last two years, the breadth of the First Amendment is once again at the forefront of people’s minds.[11] Are our First Amendment rights in jeopardy? How far does this protection reach? How much protection is too much?

This Comment consists of six parts. Part I offers a brief overview of the First Amendment and its protections. Part II discusses the public policy of professors holding broad freedom of speech rights and the importance of academic freedom. In Part III, this Comment reviews the controlling cases that embody the freedom of speech tests in public employment. Next, Part IV reviews the inconsistencies in how different circuits are applying these cases to develop freedom of speech tests for higher education at colleges and universities. Further, Part V discusses why the gaps in Garcetti make Pickering the more appropriate standard for professors’ speech and why courts must adopt an academic freedom exception if they are going to apply Garcetti to all employment sectors. Finally, Part VI utilizes the Sixth Circuit’s application of the Garcetti test in its case Meriwether v. Hartop to demonstrate why the Pickering test is preferable and why the Supreme Court must step in to clarify the appropriate standard.

I. Background: First Amendment

The First Amendment not only guarantees freedom of speech, press, and religion, but also, it is a symbol of independence in the United States.[12] When the United States achieved independence from England, the Bill of Rights deliberately included the freedom of speech as the “first constitutional guarantee” and was later “ratified as part of the Constitution” along with the rest of the Bill of Rights on December 15, 1791.[13]

Freedom of speech has rich roots in the United States, and this constitutional provision has been “widely copied and admired” in other countries and served as a catalyst for “the subsequent progress towards freedom of speech” elsewhere.[14] The freedom of speech was at the forefront of the founding fathers’ minds at the time of independence because there was no such guarantee in Britain and the founders were framing a democratic government for the United States.[15] Under English law, which governed the United States prior to independence, there were exceptions to the freedom of speech, and there was no “positive guarantee of freedom of speech” except under the parliamentary privilege.[16]

After Gitlow v. New York,[17] a milestone case for American jurisprudence, the First Amendment’s protection extended to all fifty states through the incorporation doctrine of the Fourteenth Amendment, which “protects the citizen against the State itself and all of its creatures.”[18] Not only is the First Amendment symbolic of the United States independence from Britain, but also, it is crucial to this country’s democratic form of government. Without the explicit guarantee of the freedom of speech, no other fundamental human right can be advocated for, no democratic system of government or constitutional system of government would function properly, and “no potential for exposure of wrongdoing, particularly in high places,” would be permitted.[19]

Freedom of speech protects the political debate on which a democracy survives.[20] Without the freedom of speech and resulting political debate, “there can be no check on potential tyrants and, so, no guarantee of constitutional government and no guarantee of maintenance of freedom of speech.”[21] In a well-known Supreme Court First Amendment case, the Court stated that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, or other matters of opinion or force citizens to confess by word or act their faith therein.”[22]

Aside from applying in all fifty states, the First Amendment has wide coverage in other senses as well. The First Amendment protects more than just verbal speech; it also protects symbolic speech, which is “nonverbal, nonwritten forms of communication.”[23] Importantly, the First Amendment protects against content discrimination, which prohibits restrictions on people speaking on certain subject matter.[24] While content discrimination is disfavored, viewpoint discrimination is disfavored even more because it restricts particular ideas and opinions within certain subject matter.[25]

II. The Intersection of the Freedom of Speech and Academic Freedom–Public Policy Requires Significant Speech Protections for Professors

Since education and academia contribute significantly to public debate, a lack of academic freedom threatens citizens’ ability to debate controversial issues.[26] Professors hold a unique role in society because they are responsible for encouraging introspection and disseminating information, ideas, and knowledge upon citizens so that the public can benefit from the wealth of knowledge and progress as a country. Notably,

teaching, scholarship and most, if not all, research, involves the comparatively wide dissemination of information, it is inextricably bound up with speech. Since the pursuit of truth itself involves discussion, any restriction on freedom of speech is a restriction on the pursuit of truth. Consequently, restriction of freedom of speech automatically involves a restriction of academic freedom, except where academics are given some special freedom of speech, not available to members of society in general.[27]

Appropriately, teaching, scholarship, and research are identified as the core duties of professors,[28] and these are the core duties that academic freedom seeks to protect. The unique role of professors, and the unique difficulties and situations professors face, require safeguards; this concept led to what is commonly referred to as “academic freedom.” Academic freedom is premised “on the idea that the free exchange of ideas on campus is essential to good education.”[29] It has been defined as the “freedom of a teacher to discuss or investigate any controversial social, economic, or political problems without interference or penalty from officials, organized groups, etc.”[30]

In 1915, the American Association of University Professors (AAUP) drafted the Declaration of Principles on Academic Freedom and Academic Tenure.[31] In this Declaration, academic freedom was “divided into ‘freedom of inquiry and research; freedom of teaching within the university or college; and freedom of [extramural] utterance and action.’”[32] A fourth principle was later added: freedom of intermural utterance and action, which entails the freedom to participate in and comment on how a school is administered.[33] However, the AAUP “did not advocate for unlimited faculty rights.” Instead, “academic freedom was tied to professional duties and responsibilities.”[34]

Because academia is “disproportionately concerned with new ideas and innovations, all of which inevitably challenge existing views,” education and academia are particularly and significantly “vulnerable to any lack of freedom of speech.”[35] This vulnerability arises because pre-existing “entrenched interests” are threatened by, and therefore resist, “the challenge posed by new ideas.”[36] In the United States, our public education system, “if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.”[37]

The United States’ prohibition on content and viewpoint discrimination is essential to the academic setting because professors must be able to lecture on a variety of different viewpoints and ideologies, even if the viewpoints and opinions are not the most popular or if the majority of the students in the classroom do not agree. That is the essence of a debate and a democratic form of government. Freedom of speech and academic freedom are necessary to a “proper political debate.”[38]

Beyond the importance of a proper political debate, the intersection of freedom of speech and professors’ academic freedom is important for a plethora of other developments, progressions, and civic functions. For example, until the seventeenth century, it was commonly taught in schools that the Sun revolved around the Earth.[39] Without the freedom to challenge viewpoints and lecture on alternative theories and ideologies, societies would make little progress.[40] This was shown to be true during the “anti-revolution movement of the 1920s” and the Scopes trial.[41]

Professors’ speech protections must be closely guarded given the unique role that professors hold, which can only be properly performed if professors know that they are protected by the First Amendment. Removing professors’ freedom of speech rights runs the risk of professors switching occupations if they are subjected to lawsuits or employment termination each time they lecture to students or publish an academic article as encouraged by universities. Aside from the United States recognizing the inherent value of education, education leads to progress and development, which benefits society.[42] However, this cannot come to fruition if professors are changing careers out of fear.

Without the freedom of speech, thoughts would be stagnant and cease to progress in many areas, including academically, scientifically, politically, and even socially. However, academic freedom is not absolute protection for professors. Following the thought process of the AAUP, professors must “act professionally in their scholarly research, their teaching, and their interactions with students and other faculty.”[43] This is ensured by universities’ policies and procedures that “safeguard both students and the academic integrity of the institutions and disciplines.”[44] Acting professionally has benefits for the reputation and integrity of the larger college or university, and it also contributes to the professor’s reliability, authority, and believability from the perspective of the student. This concept that academic freedom is not absolute will be addressed later when analyzing the facts of Meriwether.

III. Pickering, Connick, and Garcetti–The Focal Cases That Have Developed the Freedom of Speech Test

While the contours of the freedom of speech have been developed through a number of influential cases, this Comment will focus on three main cases that lay the foundation for the freedom of speech, especially in the public employment context. It is largely from these three cases that the different appellate circuit courts derive the test that they apply to professor speech in higher education.

In Pickering v. Board of Education,[45] a high school teacher was fired for submitting a letter to a local newspaper that criticized the school.[46] The Supreme Court found that the teacher’s freedom of speech rights were violated because “teachers and other public employees do not relinquish their First Amendment rights to comment as citizens on matters of public interests.”[47] Thus, Pickering established a right to comment on matters of public interest, and it further created a balancing test between the teacher’s freedom of speech interests and the employer’s interest in regulating its employees.[48] The Court reasoned that “teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of schools should be spent.”[49] While Pickering established the governing test, the opinion did not clearly specify what constituted a matter of public concern.

Fifteen years later, the Supreme Court elaborated on the test for whether speech was on a matter of public concern in Connick v. Myers.[50] In Connick, an assistant district attorney was fired for distributing a questionnaire around the office regarding morale within the office.[51] The Supreme Court established that when determining whether “an employee’s speech addresses a matter of public concern,” the courts must look at the “content, form, and context of a given statement.”[52] In Connick, the content, form, and context were unrelated to “any matter of political, social, or other concern to the community.”[53] The speech was on a matter of personal interest, not public interest, and was not protected by the First Amendment.[54] Thus, Connick provided clarity to the freedom of speech test given in Pickering: courts must look at the content, form, and context for a concern to the community, and the interest must not be personal.

After Pickering and Connick, the prevailing First Amendment test was still the two-part Pickering test, which requires that (1) an employee speak about a matter of public concern, and (2) a balancing of the employee’s and employer’s interests.[55] Connick supplemented the first requirement by adding that when determining whether a matter is of public concern, the court should look at the content, form, and context of the statement and whether it was related to any political, social, or other concern to the community.[56] A personal interest would not suffice. While Pickering was bolstered by Connick and other First Amendment cases, this progressing foundation was rattled by the Garcetti opinion.

In Garcetti v. Ceballos, the Supreme Court added an additional, third step to the freedom of speech analysis in Pickering for employment contexts, namely that the public employee must be speaking outside of her official, professional duties for the speech to be protected.[57] Official duties include those that the employee is “paid to perform.”[58] When one speaks outside of one’s official duties, they are speaking as citizens and the speech is protected.[59] This additional third step is where the circuits diverge for the freedom of speech test that is applied at the university level.[60]

In Garcetti, a deputy district attorney wrote a memorandum to his supervisors regarding a legal issue.[61] The Supreme Court held that this speech was not protected because Garcetti was acting within his duties as deputy district attorney and was not speaking as a citizen.[62] By requiring this third prong for employees, “the Supreme Court suggested that First Amendment protections do not attach insofar as individuals are speaking as employees rather than as citizens.”[63] Importantly, the Garcetti Court expressly reserved judgment as to whether the newly espoused third prong would apply in a public university setting.[64] This was in response to Justice Souter’s dissenting opinion that the “official duties” rule would “imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to . . . official duties.’”[65] Justice Souter’s dissent recognized that “universities occupy a special niche in our constitutional tradition” given the importance of public education and the “expansive freedoms of speech and thought associated with the university environment.”[66] Thus, the Court left the underlying question unanswered—does Garcetti apply to public universities? Is there an academic freedom exception? If Garcetti doesn’t apply, is Pickering the appropriate standard? Given this gray area, circuits have applied different First Amendment tests to university professors’ speech.

IV. Current Circuit Split—Inconsistent Freedom of Speech Test Applied to Professors Depending on the Jurisdiction

The Sixth Circuit has joined the circuit split surrounding the prevailing test for professor speech, which puts pressure on the Supreme Court to clarify the confusion and establish a consistent test across the United States for this Constitutional guarantee. The Fourteenth Amendment incorporates the First Amendment so that it applies to the states, and it should apply evenly to the states.[67] The constitutional guarantees should not be more protective in one state than another state. The United States operates on the premise that “all men are created equal”;[68] this should mean that citizens in New York are entitled to the same protections as the citizens in Texas, Maryland, or any other state. Since the First Amendment for professors has not yet achieved that level of consistency, this Comment will now turn to the different approaches that the circuits have adopted for professor speech at public universities and colleges.

In Weintraub v. Board of Education,[69] the Second Circuit adopted the Garcetti test, which adds the third prong to Pickering and requires one to speak as a citizen outside of one’s official job duties to be protected by the First Amendment. Similarly, the Seventh Circuit in Renken v. Gregory[70] hesitantly applied the Garcetti test and determined that a professor was acting within his “teaching, research and service responsibilities” when he “took issue” with the way the funds from a grant were to be allocated by the university.[71]

Alternatively, the Ninth and Tenth Circuits have taken approaches similar to one another and have chosen Pickering as the appropriate standard for professors. In Demers v. Austin,[72] the Ninth Circuit held that “Garcetti does not apply to ‘speech related to scholarship or teaching’” and rather Pickering is the test that applies.[73] Similarly, the Tenth Circuit held that the appropriate standard is the test articulated in Pickering for when “a professor was claiming his academic freedom was violated.”[74]

V. Why Pickering is the Superior Freedom of Speech Test Over Garcetti for Securing and Maintaining Academic Freedom

While speaking as a citizen and outside of an employee’s official duties may be an appropriate standard for other employment settings, it directly contradicts the values of the public education system. Teaching, scholarship, and research are official duties of a professor,[75] which means that while exercising these functions, professors would not be speaking as citizens. These are the functions professors exercise that we want to protect as a society.[76] The Garcetti third prong would heavily favor college and university administrations, while leaving professors to wonder about the extent of their speech rights.

Given our country’s history and tradition of valuing not only the freedom of speech, but also our public-school system, Pickering is a better test for public universities. Pickering does not require that the professors prove that they were speaking as citizens, so the core functions of teaching, scholarship, and research would still be protected by the First Amendment.

If Garcetti is to be the appropriate standard, then there must be an academic freedom exception. Otherwise, professors at public universities will fear each lecture.[77] Further, if our nation does not protect professors from either losing their job or from facing litigation, then professors will actively seek out jobs at private universities, or jobs outside of higher education altogether, and our public education system will deteriorate. “The professor must be assured beforehand that she is free to speak, and heightened First Amendment scrutiny gives her that assurance.”[78]

When creating an exception to the third prong of the Garcetti test, it is often hard to decide where to draw the line. What is academic freedom? Would the academic freedom exception apply to all university employees, or just those who teach doctrinal courses? What about employees at trade schools? Would this exception apply to an individual who gives a guest lecture? Does the audience of the speech matter in determining whether the exception would apply?

Pickering is a more desirable test for professors at colleges and universities because these ambiguous questions do not need to be answered since there is no third prong and thus no need for an exception. Given the confusion and inconsistencies surrounding the circuit courts regarding university speech already, there is a need for clarity. Creating a Garcetti exception would likely create more confusion and leave these questions unanswered, leading to even more division between the circuit courts. The Pickering framework is clear—the professor must speak on a matter of public importance and pass the balancing test.

However, for the courts that recognize the Garcetti test for all public employment sectors, including higher education, it is essential that those courts recognize the public policy of academic freedom and subject professors at colleges and universities to a different freedom of speech test than is used for other employment sectors. It is essential to have a system that protects professors. Not only are professors speaking daily for lectures but they also are required to publish a large quantity of material to advance their career and be considered for tenure.[79] While academic freedom is “broad and permissive,” the existing case precedent, including Pickering, Connick, and Garcetti, “do not adequately protect academic freedom.”[80]

At the university level, tenure creates even more academic freedom and job security for professors, yet it is difficult to achieve given the amount of scholarship that professors are required to produce in order to achieve tenure status.[81] Despite the pros and cons of the tenure system, tenure is another means by which academic freedom can be provided. Tenure “does not grant a teacher a job for life but simply protection from arbitrary firing and retribution; it safeguards academic freedom; it decreases turnover and creates a more stable learning environment for students.”[82] Since the First Amendment is needed to protect the untenured professor who is publishing the amount of material that is required to achieve tenure—without the fear of retribution for the words published—the First Amendment and the protections from tenure go hand in hand for academic freedom.

VI. The Sixth Circuit Case Meriwether v. Hartop Highlights the Issue of Defining the Breadth of an Academic Freedom Exception & Which Functions Must be Protected as Unique Roles of a Professor

Meriwether provides further insight on why Pickering is the more appropriate test for professors’ speech. Looking at the current circuit split regarding whether Pickering or Garcetti applies, the Sixth Circuit is one which turns to the academic freedom exception to Garcetti, and therefore, the concept of “academic freedom” must be analyzed closer. Attempting to pinpoint—and then apply—exactly what encompasses academic freedom creates more ambiguity. The issue of what constitutes academic freedom, the scope of that freedom, and which academic duties we are trying to protect is essential. It is no surprise that the circuits have varied in the way that they consider different roles and duties of university professors.

The core duties of a professor, such as research, scholarship, and teaching, should be included in academic freedom because these duties directly involve the dissemination of ideas and the passing on of knowledge and viewpoints to students. These have been the core duties of professors for generations. The Meriwether case has, however, sparked a debate over whether administrative duties such as classroom management should receive special First Amendment rights under the academic freedom ideal as the other core duties enjoy. Are administrative duties in the classroom unique to academia? Does a professor’s method for roll call at the beginning of class impact the dissemination of information? How does a teacher’s administrative duties differ from the administrative duties of other professions? These questions direct one to look at the Sixth Circuit’s decision in Meriwether and the implications that the scope of the academic freedom can have.

A. Review of the Sixth Circuit Case, Meriwether v. Hartop

In Meriwether, the plaintiff Nicholas Meriwether, a philosophy professor at the public college Shawnee State University (“Shawnee State”), was terminated from employment for refusing to call a transgender student by the student’s preferred pronouns given the professor’s conflicting religious beliefs.[83] Shawnee State had a standing policy that required professors to call students by their preferred pronouns.[84] The student was enrolled in Meriwether’s Political Philosophy course.[85] Meriwether addressed students in class by “Mr.” or “Ms.” and improperly called the student “sir.”[86] The student corrected Meriwether after class and requested to be called by female pronouns.[87]

Since Meriwether refused to comply with Shawnee State’s policy regarding pronouns, the Dean of the College of Arts and Sciences told Meriwether to eliminate sex-based references for all of the students in the class, not just the one transgender student.[88] Meriwether resumed calling all of the other students by “Mr.” or “Ms.” but singled out the transgender student and called the student by her last name.[89] Soon after, Meriwether accidentally called the student “Mr.” and then proceeded to call the student by her last name for the remainder of the semester.[90] Meriwether received multiple warnings and visits throughout the semester demanding that he follow the school policy and call the student by female pronouns or stop using gender-related titles for all students, thus treating the students in the class equally.[91]

B. Garcetti Academic Freedom Exception Applied to the Facts of Meriwether

The Sixth Circuit joined the Fourth,[92] Fifth,[93] and Ninth[94] Circuits and determined that there is an academic freedom exception to Garcetti; therefore, the third prong, which was developed in Garcetti, does not apply to higher-level education in the Sixth Circuit.[95] As previously mentioned, without an exception, professors’ speech would not be protected because their lectures and other core functions of teaching, scholarship, and research are directly within their ordinary, official duties and therefore would not be citizen speech. For that reason, the Sixth Circuit incorporates an academic freedom exception to award professors the guarantees of the First Amendment. The breadth of academic freedom and what actions contribute to the core functions of teaching, scholarship, and research are at debate.

Shawnee State argued that a professor’s use of titles and pronouns is not protected under the academic freedom exception to Garcetti because it is unrelated to the “substance of classroom instruction.”[96] The use of pronouns and titles was not the subject of the course, nor was this speech used for an academic purpose. The Meriwether court, however, stated that gender identity is a “matter of public concern that ‘often’ comes up during class discussion in Meriwether’s” courses.[97] Despite this fact, there was no showing that pronouns and titles are a substantive topic of discussion for the current course that the transgender student was taking.[98] The Meriwether court held that the exception to Garcetti for academic freedom “covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not.”[99]

Therefore, the Sixth Circuit answered the scope of the academic exception question with a broad answer: it covers almost everything, regardless whether the questioned speech was contents of a lecture. This broad approach gives professors a degree of immunity that is unwarranted for functions outside of teaching, scholarship, and research. In Meriwether, the way that the professor called roll or addressed the students was not the subject of his class or a lecture, and professors are no different from other employees in other employment sectors in how they address colleagues, co-workers, or clients.

Professors deserve special attention given their unique role in society—that is why either Pickering or Garcetti with an academic freedom exception is an appropriate test. If the professor is not performing tasks required by this unique role, however, such as when the professor is not performing his or her core duties, then the professor is no different than an employee or worker in a different employment sector. There should not be special treatment. If the professor’s speech is not unique to a function that academic freedom seeks to protect, then the professor should be subject to the third prong in Garcetti, like the Supreme Court ruled was the appropriate test for all other public employees.

For example, simple administrative tasks that are not meant to communicate a lesson, ideology, or knowledge are not unique to a professor. All employment sectors deal with administrative functions; this is not unique to higher education. Therefore, if a professor is performing an administrative task rather than a task that furthers education or academia, then Garcetti is the more appropriate test.

Interestingly, the Meriwether court addresses some instances where the professor’s classroom speech falls outside of the Garcetti exception because it is a “non-ideological ministerial task” not protected by the First Amendment.[100] One example that the Sixth Circuit includes as a ministerial task is a professor calling roll before class begins.[101] The court says that the facts of Meriwether differ from calling roll because pronouns “carry a message.”[102]

However, it is highly questionable whether there is any difference between calling on individual students during the class period and calling roll at the beginning of class—a task that the court agreed is not protected speech. A professor could call roll at the beginning of the class by using pronouns as well, such as calling the students “Mr.” or “Ms.” while calling roll. However, under the Sixth Circuit’s reasoning, only calling roll is speech not protected by the First Amendment.[103] Whether using pronouns at the beginning of class or during class, these are administrative functions. To hold otherwise is splitting hairs. Many, if not all, employment sectors require communication between colleagues which implicates the use of pronouns or titles. This is not unique to a professor.

Further, the court differentiates the use of pronouns during the class from calling roll at the beginning of class because the use of pronouns “carr[ies] a message.”[104] It is questionable whether the use of pronouns during the class when calling on a student carries a message. If the professor was intentionally using pronouns or titles to further teaching, scholarship, or research, then pronouns can certainly carry a message. To provide one example, this may be the case in a gender studies course. To qualify for the academic freedom exception, the speech should convey an academic message, not just a message in general. Arguably all speech conveys a message—that does not mean that a professor can get away with uttering anything.

While pronouns can certainly convey an academic message, they can also be a mundane part of life and way that people communicate. There is not necessarily an academic message conveyed every time pronouns are uttered. The academic freedom exception is meant to shield professors so that they can adequately contribute to our public education system. It is not to serve as an absolute shield for tasks and functions that do not serve the goal of academia.

While the Sixth Circuit joins the Ninth Circuit in creating an academic freedom exception to Garcetti, it does not necessarily join the Ninth Circuit in what activities constitute academic freedom. The Ninth Circuit affirmed Hong v. Grant,[105] which held that the administrative functions of a professor were subject to the third prong of Garcetti—whether the professor was acting within his official duties—and therefore found that the professor’s administrative concerns were not protected by the First Amendment because they were in the course of his official duties.[106] The court reasoned that to hold otherwise for administrative functions “would require endless judicial supervision of the decisions university administrators must make on a daily basis to ensure the efficient and effective management of their institution.”[107] The Ninth Circuit therefore recognizes that administrative acts and speech do not carry the same public interest as the core duties of professors—teaching, scholarship, and research—and that universities and colleges have the right to oversee other functions for the sake of efficiency and effectiveness.

As previously mentioned, academic freedom is not an absolute protection. Michael LeRoy conducted research that shows that many professors may believe that “all speech in their classrooms, publications, and public announcements is constitutionally protected”; however, academic freedom is narrower than that.[108] Even if one is protected by the freedom of speech, the degree of protection “has not been specified and the First Amendment protection may be overridden if the speech causes disruption.”[109] It is difficult to decide where to draw the line for an academic freedom exception to the Garcetti test, but nonetheless, a line must be drawn.

C. Speech on a Matter of Public Concern Applied to the Facts of Meriwether

Without the ambiguous academic freedom exception to Garcetti, which adds an additional, unsettled step to the analysis, the test for whether professor speech is protected is a lot more straightforward. Regardless of whether a court is applying Pickering or Garcetti, the other steps from Pickering must still be satisfied, including that the speech be on a matter of public concern. Regarding whether the professor spoke on a matter of public concern, the Sixth Circuit says that the “pronoun debate is a hot issue” and when Meriwether “waded into the pronoun debate, he waded into a matter of public concern.”[110] Although gender identity and the use of conforming pronouns are matters of public concern, that was not the subject matter of Meriwether’s lecture nor was Meriwether intending to enter that particular debate on some of the occasions, as he admitted that he used the wrong pronouns by accident.[111] This shows that Meriwether was not intending to speak on an ideological matter at all but rather was exercising a nonideological administrative function, which as mentioned above should not be included in the academic freedom exception.

Further, looking at the Connick addition to the Pickering rule, the content of the speech must be on a matter of a public concern and not a private concern. The Sixth Circuit recognized this rule in Hardy v. Jefferson Community College,[112] when the court provided that when determining whether the speech was a matter of public concern, it must “determine ‘the point of the speech in question . . . [because] [c]ontroversial parts of speech advancing only private interest do not necessarily invoke First Amendment protection.’”[113]

Meriwether was speaking on a matter of private concern. He was not advocating for the general population nor on behalf of the school or any entity larger than himself. Meriwether had a private religious objection to a student’s preferred pronouns. This was a private belief held by the professor and was unrelated to the course curriculum or any teaching, scholarship, or research for that matter. Given the Supreme Court rule from Connick, Meriwether’s private religious objection was not a matter of public concern.

D. Balancing Test – Applied to the Facts of Meriwether

Lastly, under either the Garcetti or Pickering freedom of speech test, the final step to the analysis is a balancing test between the professor’s freedom of speech interests and the university’s interest in regulating its employees. There are often strong arguments on both sides. Here, the professor argues that he has interests given the history of protecting teacher speech and sharing different viewpoints in the classroom.[114] Alternatively, Shawnee State argued that it has an interest in stopping discrimination against transgender students.[115] The Sixth Circuit determined that the balancing test weighed in favor of Meriwether.[116]

The Sixth Circuit reasoned in the opinion that

[i]f professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.”[117]

The Sixth Circuit’s reasoning is arguably an alarmist approach and exaggerates the effect that university policies and procedures have on the content of a professor’s lecture or the ideologies that the professor is allowed to share with the students.

First, the court’s hypothetical is premised on a professor losing First Amendment rights when teaching. It is arguable whether Meriwether’s use of pronouns during the class constitute “teaching.” Second, this reasoning confuses the difference between restricting speech and compelling speech. Here, Shawnee State merely restricted speech that was not related to the content of the lecture due to conflicting university policies. Shawnee State further gave Meriwether the option to call all of the students a gender-neutral option. It did not even require Meriwether to use the student’s preferred pronouns, merely that he did not single out the one student.

While acknowledging that the First Amendment is a bedrock principle of our Constitution and an important guarantee to protect, Shawnee State was not compelling speech. This is evidenced by the numerous options that the professor was given to avoid compelling his speech or compelling him to conform to a particular ideology or viewpoint. Here, Shawnee State was attempting to forbid certain speech, which is different than attempting to compel certain speech. As mentioned above, academic freedom is not an absolute right for professors, and it yields to the responsibility of the professor to act professionally and abide by university policies and protocols.

1. Balancing Test—Common Arguments for the Professors

As the arguments are looked at in further detail, the task of weighing the interests becomes more difficult. Professors commonly argue in freedom of speech cases that their constitutional guarantees and protections in the academic setting are crucial for the marketplace of ideas and for various ideologies to be discussed, learned, and fostered.[118] The United States strongly prohibits viewpoint discrimination, which prohibits only certain viewpoints to be discussed about a certain topic.[119]

University professors hold a unique role that must be protected given their task of educating not only their students but also the general public on “their area of expertise.”[120] Professors “directly contribute to ‘free and open debate’ on a myriad of scientific, political, religious, sociological, and philosophical matters” so that the public can make informed decisions on important matters.[121]  This civic and humanitarian duty to educate the public depends on the guarantees of the First Amendment “to protect the teaching and scholarship that makes this education possible.”[122] It is for this reason that some believe the First Amendment, which protects freedom of thought and expression for all, is most important for those who accept the role as a professor.[123] In addition to the importance of protecting the professors from adverse actions or retaliation in the workplace due to their speech, it is equally important for education and academia that professors are free to utter uncensored words to their students.

Some argue that the Pickering balancing test should “weigh decidedly” for the professor because the universities’ interests are “so minimal” in comparison to the strong First Amendment interests of the professors.[124] However, universities have strong corresponding interests as they must manage a large group of people and create an environment that is conducive to learning and education in the first place. Further, it is an overgeneralization to say that the universities’ interests are “so minimal.” Universities are responsible for the well-being of other students and faculty, which is hardly a minimal task. Therefore, a balancing test that weighs decidedly for the professors would essentially eliminate the balancing test for freedom of speech in the upper-level educational setting, despite the strong interests that universities have as well.

2. Balancing Test—Common Arguments for Colleges and Universities

Universities must ensure that their classrooms welcome the marketplace of ideas in a way that is conducive to learning. While our court system has a preference to rule in favor of the professor in freedom of speech cases,[125] this is not a blind analysis. There are instances where the school’s interests will outweigh the professor’s interests, such as where a professor violates the student’s constitutional rights or unlawfully discriminates against students.

One such instance where a professor may lose on the balancing-test prong of the analysis is when the professor’s speech creates a hostile environment in the classroom. Professors do not differ from other employment sectors in that they are not immune from the universities’ policies that protect the students and other co-workers.

Additionally, a hostile environment in the classroom and academic setting “disrupts the learning process itself.”[126] The Seventh Circuit recognized this reasoning in Piggee v. Carl Sandburg College[127] after a professor gave a gay student in the class “religious pamphlets on the sinfulness of homosexuality.”[128] The Piggee court reasoned that the professor’s speech “was not only not relevant to her job but in fact might have impeded her ability to work with students.”[129] The First Amendment is not a protective shield that permits “professors to use profane, racist, or sexist language without any legitimate academic justification.”[130] Piggee shows that professors must maintain their ability to work with students and other faculty, and they cannot say things that will impede that ability. In other words, the First Amendment does not protect all speech at all times.

Applied to an educational fact scenario, a public university or college has the right “to protect its academic integrity by disciplining professors who disregard professional standards, ignore the curriculum, or violate students’ rights.”[131] This discipline and restriction on speech is permissible by the university “assuming [the discipline] is pursuant to precisely tailored regulations . . . because the university has overriding interests in preventing such behavior.”[132]

Additionally, universities and colleges have an interest in harmony and positive working relationships between various faculty and administrators. The Sixth Circuit recognized this interest in Hardy when it admitted that the speech at issue in Hardy had “the effect of creating disharmony between Hardy and the College administrators.”[133] Additionally, the Sixth Circuit has considered factors such as federal funding and the effect that retaining a professor would have on enrollment.[134] In Bonnell v. Lorenzo,[135] the Sixth Circuit suggested that “a fear of a loss of federal funding was a legitimate consideration” for overriding a professor’s First Amendment rights.[136] While concerns over enrollment at the college due to retaining a professor is another common argument for schools, the Sixth Circuit dismissed that argument in Hardy.[137]

Professors must adhere to accepted professional standards. These standards and restrictions on speech apply in settings broader than just the professor’s interaction with students in the classroom. Professors who plagiarize academic and scholarly papers “may be disciplined for a gross violation of professional ethics.”[138]  Similarly, “grossly inaccurate speech about the Holocaust, for example, could be cause for dismissing a historian for incompetence.”[139]

Further, universities have an interest in protecting the students who attend their program, many of whom live on campus.[140] There is an increased risk of suicide associated with transgender students.[141]

CONCLUSION

As displayed above by the circuit splits over (1) the differing tests for professors’ freedom of speech rights and (2) the various ideas regarding what is encompassed in an academic freedom exception, there is a need for uniformity and consistency. Universities and professors are both looking to the Supreme Court to establish a uniform test for professors’ freedom of speech rights and the role that academic freedom plays in determining those freedom of speech rights. Universities need to know what speech can be disciplined, and professors need to know what speech can be uttered.

Constitutional rights should not change over the lines of a state border. The Supreme Court has the power and authority to review a case like Meriwether v. Hartop and provide clarity on this issue across all fifty states. Professors hold a unique role in society and that unique role should be protected. The marketplace of ideas and differing ideologies taught and shared in the classroom are of great importance—especially since the United States is a country that values the freedom of speech and curses content or viewpoint discrimination.

That said, professors do not have an absolute shield to say whatever they deem fit. The Garcetti test for the freedom of speech in employment settings does not fit the role of professors well because of the importance of academic freedom. Professors must be awarded protections in teaching, scholarship, and research, or professors will seek other occupations given the constant fear of litigation or an adverse employment action. The academic freedom exception should not, however, protect professors from administrative duties, or from speech that has nothing to do with what they are teaching—such as calling roll or calling on a student during the class. Administrative tasks are not unique to education and academia; a professor does not differ from other employment sectors in that they must communicate with others in a professional fashion. Therefore, while academic freedom and professors’ confidence in their freedom of speech rights are essential, professors should not be protected from an academic freedom exception to Garcetti for tasks that are not unique or crucial to teaching, scholarship, or research.

                                                                      Hanna Diamond

  1. . David L. Hudson, The First Amendment: Freedom of Speech § 2:2 (2012).
  2. . 992 F.3d 492 (6th Cir. 2021).
  3. . Id. at 509.
  4. . Jack Karp, Vaccines, Tuition, Race: The Litigation on Law Schools’ Radar, Law 360 (August 30, 2021, 12:02 PM), https://plus.lexis.com/newsstand#/law360/article/1416940.
  5. . 547 U.S. 410 (2006).
  6. . Id. at 426.
  7. . Id. at 425 (stating “[w]e need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching”).
  8. . See, e.g., Evans-Marshall v. Bd. of Educ., 642 F.3d 332, 342 (6th Cir. 2010).
  9. . See, e.g., Demers v. Austin, 746 F.3d 402, 412 (9th Cir. 2014).
  10. . See, e.g., Widmar v. Vincent, 454 U.S. 263, 264–66 (1981).
  11. . For example, First Amendment issues have been implicated in recent presidential campaigns, the insurrection at the United States Capitol, COVID-19 awareness, and the Black Lives Matter movement. See, e.g., Knight Foundation, Future of the First Amendment 2022: High Schooler Views on Speech Over Time (2022), https://knightfoundation.org/wp-content/uploads/2022/05/2022_Future-of-the-First-Amendment_FINAL.pdf.
  12. . For more information on a full review of the First Amendment, see generally Hudson, supra note 1.
  13. . A. Alun Preece, Academic Freedom and Freedom of Speech, 16 Bull. Austl. Soc. Leg. Phil. 32, 35 (1991).
  14. . Id.
  15. . Henry L. Baumann & Jay S. Kogan, Would We Have a Fairness Doctrine if Marconi had Lived Before the Constitutional Convention?, 1986 Det. Coll. L. Rev. 947, 947.
  16. . Preece, supra note 13, at 36. While no “positive guarantee” existed, “[e]nglish law proceed[ed] generally on the assumption that anything may be said or done, which is not specifically prohibited by law.” Id.
  17. . 268 U.S. 652 (1925).
  18. . W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).
  19. . Preece, supra note 13, at 56.
  20. . Id. at 33.
  21. . Id.
  22. . Barnette, 319 U.S. at 642.
  23. . Ronald Kahn, Symbolic Speech, The First Amend. Encyc. (2009), https://www.mtsu.edu/first-amendment/article/1022/symbolic-speech (providing examples of symbolic speech such as “flag burning, wearing arm bands, and burning of draft cards”).
  24. . Hudson, supra note 1.
  25. . Id. at § 2.2 (stating that “[c]ontent discrimination is considered bad, but so-called “viewpoint discrimination” is considered even worse”).
  26. . Preece, supra note 13, at 33.
  27. . Id. at 32.
  28. . Id. See also Mark Strasser, Pickering, Garcetti, & Academic Freedom, 83 Brook. L. Rev. 579, 605 (2018) (stating that “[a]t the university level, research is often an important component of a professor’s job responsibilities”).
  29. . Academic Freedom, American Federation of Teachers https://www.aft.org/position/academic-freedom (last visited Sept. 20, 2022) [hereinafter Academic Freedom].
  30. . Academic Freedom, Random House Unabridged Dictionary (2022).
  31. . Richard K. Neumann Jr., Academic Freedom, Job Security, and Costs, 66 J. Legal Educ. 595, 596 (2017).
  32. . Id. at 596–97.
  33. . Id. at 597.
  34. . Michael H. LeRoy, How Courts View Academic Freedom, 42 J.C. & U.L. 1, 10 (2016).
  35. . Preece, supra note 13, at 33.
  36. . Id.
  37. . W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943).
  38. . Preece, supra note 13, at 33.
  39. . Nola Taylor Tillman, Nicolaus Copernicus Biography: Facts & Discoveries, Space (Jan. 17, 2022), https://www.space.com/15684-nicolaus-copernicus.html.
  40. . See generally Kenneth Garcia, Religion, Sectarianism, and the Pursuit of Truth: Reexamining Academic Freedom in the Twenty-First Century, AAUP J. Acad. Freedom, 4 (2014) (discussing the tension between religion and academia; “Religious strife had been a cause of war and division in Europe for centuries. In a pluralistic society such as that of the United States, with no established religion, sectarian efforts to condemn and exclude the conceptions of others—including scientists, nonbelievers, and believers from other denominations—created discord. Both Catholics and Protestants were guilty of this throughout the nineteenth and first half of the twentieth century. . . . For too long it has been detrimental to scholarship as a whole and to the relationship between theology and other academic disciplines.”).
  41. . See Karmen Melissa Stephenson, Academic Freedom, Critical Thinking, and the Culture of American Science Education, 10 (2018) (Ph.D. Dissertation, University of Tennessee) (stating that after the Scopes trial most science textbooks limited or removed evolution from public science education. Teaching evolution was especially limited in states that had no “anti-evolution statutes in place.” This changed in the 1950s and 60s as First Amendment cases were decided).
  42. . See Elizabeth King, Education is Fundamental to Development and Growth, World Bank Blogs (Jan. 28, 2011), https://blogs.worldbank.org/education/education-is-fundamental-to-development-and-growth (discussing education as the tool to “reap” the benefits of the human mind to make possible all developments in society).
  43. . Academic Freedom, supra note 29.
  44. . Id.
  45. . 391 U.S. 563 (1968).
  46. . Id.
  47. . Joseph J. Martins, Tipping the Pickering Balance: A Proposal for Heightened First Amendment Protection for the Teaching and Scholarship of Public University Professors, 25 Cornell J.L. & Pub. Pol’y 649, 654 (2016).
  48. . Pickering, 391 U.S. at 569–70
  49. . Id. at 572.
  50. . 461 U.S. 138 (1983).
  51. . Id.
  52. . Id. at 147–48.
  53. . Id. at 146.
  54. . Id. at 148.
  55. . Martins, supra note 47, at 655–56.
  56. . Connick, 461 U.S. at 147–48.
  57. . Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
  58. . Id. at 422.
  59. . Id.
  60. . See infra Part IV.
  61. . Garcetti, 547 U.S. at 414.
  62. . Id. at 421.
  63. . Strasser, supra note 28, at 579; see also LeRoy, supra note 34, at 14 (stating that “the law did little to distinguish between the expressive elements for the occupation of professor, on the one hand, and high school teacher, hospital nurse, and assistant state’s attorney, on the other. The result is a one-size-fits-all First Amendment jurisprudence”).
  64. . Garcetti, 547 U.S. at 425.
  65. . Id. at 438 (Souter, J., dissenting).
  66. . Id. at 438–39.
  67. . Gitlow v. New York, 268 U.S. 652, 666 (1925).
  68. . The Declaration of Independence para. 2 (U.S. 1776).
  69. . 593 F.3d 196 (2d Cir. 2010).
  70. . 541 F.3d 769 (7th Cir. 2008).
  71. . Carol N. Tran, Recognizing an Academic Freedom Exception to the Garcetti Limitation on the First Amendment Right to Free Speech, 45 Akron L. Rev. 945, 967–68 (2011). But see Piggee v. Carl Sandburg Coll., 464 F.3d 667, 672 (7th Cir. 2006), where the court declined to apply Garcetti in its reasoning.
  72. . 746 F.3d 402 (9th Cir. 2014).
  73. . Victoria Jones, Comment, Developing a Speech Standard for Public University Faculty in the Academic Environment, 87 Miss. L.J. Supra 37, 54, LEXIS (2018).
  74. . Jones, supra note 73, at 55–56. See also Schrier v. Univ. of Colo., 427 F.3d 1253 (10th Cir. 2005).
  75. . Demers, 746 F.3d at 411.
  76. . See Preece, supra note 13, at 33.
  77. . See id. (arguing that professors’ freedom of speech rights are already subject to censorship because “‘political correctness’ is often a pre-requisite for appointment, tenure, or promotion . . . in modern Universities”).
  78. . Martins, supra note 47, at 678.
  79. . Dennis J. Turner, Publish or be Damned, 31 J. Legal Educ. 550, 554 (1981).
  80. . LeRoy, supra note 34, at 38 (stating that “the First Amendment is not synonymous with academic freedom”).
  81. . Turner, supra note 79, at 554 (This pressure on professors to publish and produce scholarship has been referred to as the “publish or perish” phenomenon, and some critics argue that while this pressure “may force the pen to the paper . . . it cannot instill creativity and inspiration”).
  82. . Molly Worthen, The Fight Over Tenure is Not Really About Tenure, N.Y. Times (Sept. 21, 2021), https://www.nytimes.com/2021/09/20/opinion/tenure-college-university.html.
  83. . Meriwether v. Hartop, 992 F.3d 492, 498 (6th Cir. 2021).
  84. . Id.
  85. . Id. at 499.
  86. . Id.
  87. . Id.
  88. . Id.
  89. . Id.
  90. . Id. at 500.
  91. . Id.
  92. . Adams v. Tr. of the Univ. of N.C.–Wilmington, 640 F.3d 550, 566 (4th Cir. 2011).
  93. . Buchanan v. Alexander, 919 F.3d 847, 856 (5th Cir. 2019).
  94. . Demers v. Austin, 746 F.3d 402, 418 (9th Cir. 2014).
  95. . Meriwether, 992 F.3d at 505.
  96. . Id. at 505.
  97. . Id.
  98. . Id. at 506.
  99. . Id. at 507.
  100. . Id.
  101. . Id.
  102. . Id.
  103. . Id.
  104. . Id.
  105. . 516 F. Supp. 2d 1158, 1170 (C.D. Cal. 2007), aff’d, 403 F. App’x 236 (9th Cir. 2010).
  106. . Id. at 1166–68.
  107. . Id. at 1169–70.
  108. . LeRoy, supra note 34, at 4.
  109. . Strasser, supra note 28, at 595.
  110. . Meriwether v. Hartop, 992 F.3d 492, 509 (6th Cir. 2021).
  111. . Id. at 500.
  112. . 260 F.3d 671 (6th Cir. 2001).
  113. . Id. at 678 (citing Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 87 (6th Cir. 1995)).
  114. . Meriwether, 992 F.3d at 509–10.
  115. . Id. at 510.
  116. . Id. at 511–12.
  117. . Id. at 506.
  118. . See Arnold H. Loewy, Freedom of Speech as a Product of Democracy, 27 U. Rich. L. Rev. 427, 437 (1993).
  119. . Hudson, supra note 1.
  120. . Id. at 669.
  121. . Id. at 669–70.
  122. . Id. at 670.
  123. . Id. at 669–70.
  124. . Id. at 668 (stating that “[i]n the academic context, because the First Amendment value of core academic speech to the professor and society is so high, and the university’s corresponding interest in restraining such speech is so minimal, the Pickering balance should weigh decidedly in the professor’s favor”).
  125. . For a discussion of this preference, see Strasser, supra note 28, at 596–605.
  126. . Martins, supra note 47, at 685.
  127. . 464 F.3d 667, 672 (7th Cir. 2006).
  128. . Id. at 668.
  129. . Strasser, supra note 28, at 602. See also Piggee, 464 F.3d at 672 (“Piggee’s ‘speech,’ both verbal and through the pamphlets . . . was not related to her job of instructing students . . . [but] inhibited her ability to perform that job by undermining her relationship with . . . other students who disagreed with or were offended by her expressions of her beliefs.”).
  130. . Martins, supra note 47, at 685–86.
  131. . Id. at 686.
  132. . Id.
  133. . Strasser, supra note 28, at 599 (quoting Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 681 (6th Cir. 2001)).
  134. . Id. at 603.
  135. . 241 F.3d 800 (6th Cir. 2001).
  136. . Strasser, supra note 28, at 603.
  137. . Id.
  138. . Martins, supra note 47, at 683.
  139. . Id. See also Stephenson, supra note 41, at 20 (stating that science advocates argue that “‘Holocaust denial’ is not a topic that teachers have the academic freedom to include in public school history courses, as it is not part of the mainstream knowledge or scholarship in the field”).
  140. . Understanding College Affordability: Room and Board, Urb. Inst., http://collegeaffordability.urban.org/prices-and-expenses/room-and-board/#/ (“Almost 60 percent of full-time students enrolled in private nonprofit four-year colleges and universities live in college housing, compared with 36 percent of public four-year college students.”).
  141. . Amanda Ottaway, Medical Association Wants 6th Circ. Pronoun Ruling Redo, Law 360 (May 18, 2021, 9:10 PM), https://plus.lexis.com/newsstand#/article/1385929 (“The empirical data demonstrates that singling out a transgender student in this manner is likely to significantly imperil the student’s health and educational outcomes.”).

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).