Author: deansr

Affirmative Action’s Strict Scrutiny Revisited: Creating Meaningful Compelling Interests

David Chau

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2 Prin.L.J. 22

Introduction:

The current national fabric of the United States is a colorful one. However, to reach that level of inclusivity, it took mass grievances demanding change and slow government acquiescence, creating a more equal, equitable representation in government to “form a more perfect union.”[1] Some of these calls for reform moved their way up the judicial branch. And, 45 years ago, in Regents of the University of California v. Bakke, the Supreme Court attempted to answer the legal questions regarding race-conscious admissions policies in higher education. But the Court has inadequately decided Bakke, resulting in the presumptive downfall of affirmative action that we see when the Roberts Court announces its decisions in two cases it heard this term: SFFA v. Harvard and SFFA v. UNC.

Ever since Bakke, proponents of affirmative action have had to fight for its legitimacy with “one hand tied behind” their backs,[2] clinging onto an unworkable justification for its existence. Although the Court upheld some forms of affirmative action in Bakke, its justification for doing so effectively sentenced affirmative action to death. It reaffirmed this death sentence again in 2003 and will declare affirmative action effectively dead in June of 2023. A small change to include considering “past societal discrimination” as a justification for affirmative action back in Bakke would likely provide a more robust and effective framework for admissions policies that are in line with the requirements of the Equal Protection Clause.

Historical Background:

Race-conscious affirmative action belongs to the legacy of the Civil Rights Movement and the Civil Rights Act of 1964. In a speech at Howard University in 1965, President Lyndon B. Johnson said:[3]

“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair…Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”

These political remarks reflected the attempts of education and employment institutions across the country to implement their own affirmative action policies.[4] However, the initial implementation of these policies also kickstarted flurries of opposition with legal strategies, such as claiming reverse discrimination, or most recently in SFFA, the victimization of a racial minority—Asians. As these claims rose to the Supreme Court, posing equal protection questions, the Court began to dismantle the policy that has helped undo decades of inequality in the United States.[5] Moreover, revisiting the diverse national fabric of America, no two lives are the same. Hence, as we discuss the issue of affirmative action and the general doctrines of antidiscrimination law, it is of the utmost importance that the conversation stays at the individual level, since it is easy to conflate an individual, who is part of a category—which may or may not be a defining part of their identity—to a generalization of a collective group. This form of conflation was and still is the misconception that frames the conversations in political discourse, where rhetorics of reverse discrimination and mass victimization are invoked.[6] Nonetheless, the true definition and constraints of policies surrounding the practice of race-conscious affirmative action dictate that any consideration of race—as with all factors of admissions—must be considered only on an individual level.[7]

First, through Bakke in 1978, a split Court (4–1–4) decided that all racial distinctions, even including the classification of the racial majority, are protected categories under the Constitution. Hence, it held race-conscious admissions policies to strict judicial scrutiny, where only Justice Powell took the deciding vote on outlining the Court’s affirmative action that persevered until today. Since Bakke, there has been only one justification for affirmative action that rises to a compelling state interest: the attainment of a “diverse student body” and the academic benefits that flow from such a population.[8] Bakke set the foundation for an unworkable narrow tailoring of the policy, effectively banning all quantitative measures that can be employed by universities to reach their goals of diversity.[9] Later on, via Grutter in 2003, the Court continued to uphold Bakke’s restriction while adding a “sunset clause” of 25 years, declaring affirmative action’s death in 2028. However, six years before society reaches that point in time, the Court once again decided to jeopardize its fate.

Court cases involving affirmative action have long established the jurisprudence of using strict scrutiny because it is an issue related to a protected category of race. In Bakke, UC Davis, the Petitioner, argued that because Bakke was a white man, he is part of the white racial majority, and the case did not merit strict scrutiny under the definition of “discrete and insular” minorities outlined in Carolene Products Footnote 4.[10] However, the Court went further to make a jurisprudential claim that as long as a policy involves race, it must be subject to the most “rigid scrutiny.”[11] Interestingly, to justify this point, Powell quoted Hirabayashi and Korematsu, which were two of the worst and most infamous precedents that subjected Japanese Americans to second class citizenship and ultimately interment.[12] Regardless, with strict scrutiny applied for affirmative action, Powell opened up the conversation to the larger, more diverse national fabric that is inclusive of all races and ethnicities, which was prevalent back in the 1970s and is forever more so in the present: “The Fourteenth Amendment is not directed solely against discrimination due to a ‘two-class theory’—that is, based upon differences between ‘white’ and Negro.”[13] With this conception of strict scrutiny over a suspect category of race, Powell removed the binary narrative of a world of white and Black. The use of strict scrutiny has been important to protect the interest of everyone. Nonetheless, this Court’s definition of affirmative action that satisfied its view of strict scrutiny has left the policy without any sustainable means to survive.

Re-examining the current compelling interest:

Contrary to many beliefs about affirmative action being one of the tools to remedy the country’s long history of inequality and injustice, the Court has never held remedying past societal discrimination as a constitutional justification.[14] The only acceptable reasoning for a compelling state interest that the Court upheld ever since Bakke is that it helps foster “the attainment of a diverse student body.”[15] The justices have not changed their holding since. Justice Powell, the author of Bakke, reasoned that creating a diverse educational environment at the university level will allow students to gain exposure to a wide range of different views and ideas. Acting as platforms for scholarly discussions to thrive, universities require voices from all walks of life to be represented because these institutions are the leaders in fostering meaningful changes in society. For one, they are pipelines of the nation’s decision-makers—even more so at the top universities, which employ more of these policies compared to community colleges. If these graduates were to be making decisions, then they would be better off being conscious of the diverse national fabric of modern America.[16] As long as the current government is unrepresentative of the American population, affirmative action—in universities and the workplace alike—may be employed to create a strong foundation for more representation in leadership.[17] And, this question may as well apply to the Court’s current composition.

Moreover, one must always note that the idea of using race as a factor to admit someone does not negate any other factors that bolster the consideration of diversity, such as “academic interest, belief systems, political views, geographic origins, family circumstances, and racial identities.”[18] In 2021, two writers for the Princeton Legal Journal contended that race-conscious admissions mean that “you opt for a scheme that deliberately favors applicants from some minority groups by applying different standards of admissions to students on the basis of their racial identities.”[19]

This form of characterization of race-conscious admissions policies is the manifestation of the misconceptions of the system that opponents to affirmative action have leveraged for decades (from Grutter and Gratz in 2003 to Fisher in 2016): there is a separate track of admissions for certain racial groups while other groups are subject to more stringent academic standards when considering them for admission, be it Asian Americans or white applicants. However, this is not the sort of system the Court approved of in Bakke in 1978. The Court has ordered multiple times that any consideration of race in admissions must be done on an individual level that is holistic. There is not only the consideration of race but also other factors such as geography, religious beliefs, academic performance, family circumstances, etc. Ever since this 1978 decision was handed down, all forms of separate admissions tracks—especially those with special, lower standards for minority groups—have been outlawed and found unconstitutional.[20] This means that each applicant is individually held to certain standards that are based on the context of the person’s profile. Every individual is unique and different in their sense, thereby demanding an accordingly individualized consideration for admissions.

Nonetheless, there is still merit to the authors’ argument critiquing the Court’s decision in 1978 about the sole compelling state interest. The authors, quoting Justice Clarence Thomas, argued that current race-conscious admissions policies are singling out race as a special category of admissions to supposedly attain the educational benefits that flow from certain “‘classroom aesthetics.’”[21] While that is difficult to prove quantitatively, if we were to take it as true, we could see how Thomas’s critique details how the sole compelling interest creates flaws within the admissions systems. The current idea that the sole purpose of implementing race-conscious admissions is to attain diversity among the student body only considers the interest of the university and the enrolled students. The legal position that the Court adopted in Bakke did not allow for the interest of the applicants to be considered. In fact, the current compelling interest allows universities to have expansive discretion to practice either “egalitarian” or “exploitative” affirmative action to attain diversity without any mechanism to prevent performative affirmative action.[22] Because of the Court’s refusal to consider remedying past discrimination a compelling interest, the benefits of race-based affirmative action only impact students who are admitted rather than truly providing equitable opportunities to applicants with less access to high-quality education.[23] This is, though, a matter of policy. Simply put, the current constraint of only operating within the silo of “attaining diversity” lacks the ability to differentiate whether universities are carrying out race-conscious admissions as a way to offer true diversity of thought or as a way to create “classroom aesthetics.” Had the Court included the consideration “past societal discrimination” as a compelling interest for affirmative action, there might be a mechanism to protect individuals from the possibilities of such exploitative admissions schemes, which will be proved in the next section. Throwing affirmative action out the window simply is not the answer.

Past Societal Discrimination: A Necessary, Compelling State Interest

Understanding the systemic and structural inequalities of American history, especially U.S. legal history, a consideration of past societal discrimination as a new compelling interest might be necessary to carry out affirmative action equitably without allowing for negative action and exploitative practices of these policies to affect other applicants. This paper only argues for the consideration of past societal discrimination, not remedying these instances of discrimination like the original case in Bakke discussed. Universities are foundations for societal change, not direct means for change. “Remedying” past societal discrimination insinuates that these academic institutions are agents that actively work to mend the evils of society. But, they do not have that responsibility—namely to actively seek disadvantaged groups for them to qualify for race-conscious admissions programs.[24] Universities only need to take a passive stance in considering one’s background of past societal discrimination. That aside, affirmative action is not a panacea to solve all of these inequalities; it has to work in conjunction with comprehensive legislation in other facets. Affirmative action alone does no direct good. Before continuing on to forming constructive arguments, let us examine Powell’s reasoning for not allowing the consideration of past societal discrimination as a compelling state interest.

In Bakke, Powell claims that the idea of societal discrimination is too nebulous and unstable to have a concrete, distinct classification for groups of people. Even the white racial majority can be broken down into smaller affiliated groups that might have been victims of discrimination in the past:[25]

“[T]he white ‘majority’ itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only ‘majority’ left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit ‘heightened judicial solicitude’ and which would not. Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups.”

Powell imagined a world where, once we started considering past discrimination, everyone would start claiming that they were structurally discriminated against—no matter how far back that discrimination occurred. To Powell, this would open the floodgates to a slew of litigation seeking remedies from the Court, and he did not think it proper for courts to decide which groups have suffered discrimination worthy of remedying. However, if affirmative action policies can employ both interests simultaneously—considering past societal discrimination and attaining a diverse student body—universities would be able to set limitations to prevent random claims of past discrimination writ large. There is no empirical evidence to back up his fear, but let us use his example to test the consideration of past societal discrimination as it works in tandem with the school’s interest to attain a diverse body of students.

He mentioned that if the “white majority” is divided into smaller groups, everyone would be able to claim to be victims of societal discrimination—except for white Aglo-Saxon Protestants. This is true, especially when we examine the political situation of national affiliation during the early days of white settlers in the “New World.” There were strong divisions among Irish, French, Dutch, and English groups of immigrants in these new lands.

With that said, would the descendants of these groups be able to make a claim of past societal discrimination to qualify under affirmative action? Maybe. However, if the consideration of “past societal discrimination” works in tandem with the universities’ interests in attaining diverse bodies of students, the answer would be: not so fast. The schools’ interests in gaining diversity among the student body would be the filter to sift out who can bring a different point of view to the table. For instance, an applicant of Irish descendent—who is white—can still make a claim to qualify under race-conscious admissions policies if their circumstances inform the admissions officer that that their family is structurally disadvantaged by past societal discrimination and that they would be able to bring their own unique point of view to the civil discourse on campus because of this part of their identity. With this framework, affirmative action will not be just for racial minorities, but rather for students who truly need to have representation on campus. And, although these groups usually tend to be racial minorities, this method will not preclude groups of racial majorities that are marginalized. This issue is particularly important when we consider the influx of international students. According to one New York Times article, which examined whom affirmative action truly benefited among the Black racial minority, the majority of Black students at Harvard and Cornell Universities are international or first-generation immigrants, who usually arrive in the States as highly skilled workers.[26] This may as well be evidence for “exploitative” affirmative action policies, since they benefited mostly Black students who are not structurally disadvantaged compared to the multi-generation African Americans who survived slavery, Jim Crow, and other forms of societal discrimination. If these universities are bound to consider if these applicants have been affected by past societal discrimination, the composition of students who benefit from these race-conscious policies might have been different. Once again, universities are not agents to remedy past societal discrimination. They are not agents for change. They do not need to go on a hunt for students who are part of a group that suffered from past societal discrimination. Their only duty is to consider this factor among other considerations for admissions.

Furthermore, Powell argued in Bakke that if the Court were to take into account remedying “past societal discrimination” as a compelling state interest, it would endorse a “constitutional principle” that varies “with the ebb and flow of political forces,” which would “exacerbate racial and ethnic antagonisms rather than alleviate them.”[27] Powell was imagining a world of political chaos that would increase racial animus and destabilize the constitutional principle. That assumption is quite true with the current politicization of racial issues and affirmative action. However, once again, if these two government interests can work in conjunction with each other, i.e., considerations of past societal discrimination and attaining a diverse body of students, these two justifications for affirmative action would maintain the stability of the policy. The universities’ interest to attain diverse and robust civil discourse among the student population would remain constant. If one group claims the political majority over the other, universities would still want to have fair representation of both groups in the unchanging interest of diverse discourse on campus.

Once the factor of disadvantaged groups is considered, universities can now admit a more representative student population that speaks to the colorful and vibrant national fabric of America. No longer can affirmative action be carried out exploitatively to attain “classroom aesthetics” under these new constraints. Furthermore, Powell’s concern that this government interest would lead to further racial antagonism should not lie with the existence of affirmative action. This race-conscious policy is not a panacea to all societal inequities. Addressing the issue of racism and racial animus must be done holistically through careful legislating. Hence, instead of striking down a workable standard for this policy, Powell could have noted the need for Congress to consider these more nuanced questions to assess societal issues related to race.

Let us return to the current cases in front of the Supreme Court, SFFA v. Harvard and SFFA v. UNC, which claim Asian Americans are victims of affirmative action.[28] Unlike what SFFA contends, there propositions are sample cases of generalizing the diversity of different ethnic and racial groups under an umbrella term of “Asian Americans.” There are groups within the Asian community that earn and are more educated than the white racial majority, while there are specific ethnicities that constantly live below the poverty line and struggle to have their youth graduate high school.[29] Using the new addition to the compelling state interest would allow universities to look into the larger picture and parse the massive generalization that America has done to the Asian American community. Even the idea of grouping everyone under the term Asian may be problematic: for one it does not usually represent all populations in Asia, and two, it is Eurocentric and is a product of imperialism.[30]

Therefore, unlike what Powell imagined, adding this new compelling state interest would not create a chaotic situation where everyone would grab onto a claim to qualify under affirmative action. But in fact, it would benefit those who need benefiting, especially giving the platform to uplift those who need the space to represent not only themselves but also their identities, so that the decisions and the thoughts that undergird these processes are representative of all walks of life.

Concluding thoughts:

Affirmative action was made complicated, convoluted, and politicized through decades of racial animus. Bakke never gave the policy the ability to defend its legitimacy. Now, with affirmative action’s fate set to be decided in front of the Court, we might as well consider if it had lived a different life—the life that would open possibilities to a more equitable and representative future. With the meaningful compelling interests, the addition of the consideration of past societal discrimination fills in the gaps that the current system has. Nonetheless, the policy’s defenders have fought hard for its existence through the last 50 years. And, with its presumed death, new opportunities await for other means of change to form equity and equality.

[1] U.S. Constitution, preamble.

[2] Emily Bazelon, “Why Is Affirmative Action in Peril? One Man’s Decision,” The New York Times, last modified March 4, 2023, https://www.nytimes.com/2023/02/15/magazine/affirmative-action-supreme-court.html.

[3] Lyndon B. Johnson, “Commencement Address at Howard University: “To Fulfill These Rights.”,” The American Presidency Project, last modified June 4, 1965, https://www.presidency.ucsb.edu/documents/commencement-address-howard-university-fulfill-these-rights.

[4] Barbara A. Perry, The Michigan Affirmative Action Cases (Lawrence, Kansas: University Press of Kansas, 2007), 14-15.

[5] This paper believes in the benefit of race-conscious admissions/hiring policies. Although it will not go into proving how affirmative action is beneficial, it believes that with the right combination of policies alongside affirmative action, the government can effectively reduce the level of income disparity among racial lines across locales and states. Affirmative Action on its own will not be able to tackle the multilayered, structural inequality among racial and class lines.

[6] Garriy Shteynberg, Lisa M. Leslie, Andrew P. Knight, and David M. Mayer, “But Affirmative Action hurts Us! Race-related beliefs shape perceptions of White disadvantage and policy unfairness,” Organizational Behavior and Human Decision Processes 115, no. 1 (May 2011), 1-12. doi:10.1016/j.obhdp.2010.11.011.

[7] Grutter v. Bollinger, 539 US 306 (2003).

[8] Regents of the University of California v. Bakke, 438 US 265 (1978).

[9] Bakke and later Grutter banned racial quotas and any forms of numerical bonus points based on someone’s race. This created a system that is forced to use qualitative measures to prove their goal of diversity, which by all means demands a quantitative answer of numbers and percentages.

[10] Bakke. United States v. Carolene Products Co., 304 U.S. 144 (1938).

[11] Bakke.

[12] Ibid.

[13] Ibid.

[14] Cynthia Chiu, “Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action,” Southern California Law Review 92 (2019): 447.

[15] Bakke.

[16] Grutter.

[17] This is not to say that affirmative action is the ultimate answer to create a more representative government. It must work in tandem with other policy that would allow for an informed, transparent, and fair democracy to thrive. Issues, such as gerrymandering, misinformation, disinformation, etc., are also barriers to reaching the goal of a representative government.

[18] Student for Fair Admissions v. President and Fellows of Havard College, Merit Brief from the Respondent, 3.

[19] Myles McKnight and Benjamin Edelson, “Affirmative Action Admissions Regimes Are Unconstitutional: Strict Scrutiny Should Mean Something,” Princeton Legal Journal, last modified May 5, 2021, https://legaljournal.princeton.edu/affirmative-action-admissions-regimes-are-unconstitutional-strict-scrutiny-should-mean-something/.

[20] Bakke outlawed the quota system, where racial minorities compete for 16% of the slots and the racial majority compete for the other 84%. And, Grutter outlawed the points system, where racial minorities were awarded 20 points extra for their race.

[21] Myles McKnight and Benjamin Edelson, “Affirmative Action Admissions Regimes Are Unconstitutional: Strict Scrutiny Should Mean Something.”

[22]Cynthia Chiu, “Justice or Just Us?” In this article, an “egalitarian” system of affirmative action will help the school body attain a more representative population, where educational benefits are attained from the diverse pool of opinions and life experiences. On the other hand, an “exploitative” scheme of affirmative action is the scheme that the PLJ article and Justice Clarence Thomas claimed to be. That schools will just consider race for its end goal of creating “classroom aesthetics.” An egalitarian system centers itself in the means of achieving diversity while an exploitative system focuses on the ends of achieving diversity regardless of whatever means the institution takes. Institutions, even elite ones, may be both exploitative and egalitarian at the same time. These two concepts are not mutually exclusive.

[23] Ibid, 450.

[24] While actively seeking candidates that can qualify for affirmative action policies are not discussed in this paper, it may be a potential for a problematic characterization of ethnic and racial groups in society.

[25] Bakke.

[26] Jay C. Kang, “Where Does Affirmative Action Leave Asian-Americans?,” The New York Times, last modified July 29, 2021, https://www.nytimes.com/2019/08/28/magazine/where-does-affirmative-action-leave-asian-americans.html.

[27] Bakke.

[28] Student for Fair Admissions v. President and Fellows of Harvard College. Student for Fair Admissions v. University of North Carolina.

[29]  Pew Research Center, “Key Facts About Asian Americans, a Diverse and Growing Population,” Pew Research Center, last modified October 10, 2022, https://www.pewresearch.org/short-reads/2021/04/29/key-facts-about-asian-americans/.

[30] Erika Lee, The Making of Asian America: A History (New York: Simon & Schuster, 2015).

Social Media Platforms as Publishers: Evaluating the First Amendment Basis for Content Moderation

Jimmy Fraley

Introduction:

In recent years, many Republican politicians have become increasingly vocal about the content censorship imposed by social media companies. These Republicans are concerned that social media companies have taken actions to censor conservative speech and have engaged in a type of viewpoint policing. This concern has turned into action, with Jim Jordan, Chairman of the U.S. House Committee on the Judiciary, subpoenaing the heads of several large companies, including Apple and Meta, to testify on what he calls “the federal government’s reported collusion with Big Tech to suppress free speech.” On the state level, several Republican-controlled legislatures have attempted to handle the issue. Notably, Texas and Florida have both passed laws restricting social media companies’ ability to censor content in an attempt to prevent viewpoint-based censorship.

Since their passing, both of these laws have faced legal challenges in federal court. These challenges revolve around the notion that social media platforms have the First Amendment right to censorship and content restriction. Specifically, challengers of the Constitutionality of the two laws argue that platforms exhibit editorial control of the content hosted on their sites, and thus should be granted rights similar to those of a newspaper, or similar publisher of content. This idea has created contradictions in federal court rulings and presented an issue ripe for the Supreme Court’s guidance. In this article, I argue that social media platforms do not exhibit editorial control on their platforms, do not serve as the publishers of online content, and do not have the First Amendment right to restrict speech.

Texas HB 20 and Florida SB 7072:

Texas House Bill 20 was signed into law in September of 2021. The bill, which only applies to companies with more than 50 million active users each month, aims to protect the First Amendment rights of Texas citizens. It requires companies to disclose information about their moderation process and search algorithms and to create clear usage policies detailing what qualifies as prohibited content. Most importantly, the law prohibits companies from censoring users based on viewpoint or geographic location.

Florida Senate Bill 7072 was signed in May of 2021 and is similar in substance to the Texas law. The law is aimed specifically at large social media companies, through a provision that only applies the law to platforms with more than 100 million global monthly users, and establishes a hefty fine structure for social media companies that deplatform candidates for local and statewide office. Like in Texas, the recent Florida law prohibits viewpoint-based restrictions on online platforms. Unlike in Texas, the censorship prohibitions in the Florida law are afforded exclusively to journalistic enterprises and candidates for public office, as well as posts about candidates for public office.

Legal Challenges:

Soon after Texas and Florida passed these laws, NetChoice, a trade association advocating for limited government regulation on the Internet, filed legal challenges to them. With members such as Twitter, Google, Meta, and TikTok, NetChoice represents the interests of a number of today’s largest technology and social media companies. The Computer & Communications Industry Association, another trade association representing social media platforms’ interests, joined NetChoice in its legal efforts. NetChoice filed lawsuits against both the Texas and Florida laws (NetChoice v. Paxton and NetChoice v. Moody, respectively).

In both cases, the NetChoice argued that the laws infringed on their First Amendment rights. In doing so, they claim that the amendment grants platforms the right to censor. They argue that because they exhibit editorial control over the content of the platform, akin to a publisher, they have the right to choose what kinds of content are displayed on their platform. In both cases, the petitioners also argued that the reporting and disclosure requirements implemented by both laws constitute an undue burden on their companies. The respondents disagreed with this analysis, arguing that social media companies are not the publishers of the speech users post on their platforms, meaning that the companies do not have the First Amendment right to censor and restrict content posted online.

Paxton was heard by the Fifth Circuit Court, and Moody was heard by the Eleventh Circuit Court. Both circuit court panels were comprised of three Republican-nominated judges. Despite their similar fact patterns, the circuit court panels decided Moody and Paxton in contrasting ways. In Paxton, the court found in favor of the respondents, upholding the Texas law. On the other hand, in Moody, the court found partially in favor of NetChoice, striking down the component of the Florida law prohibiting viewpoint-based censorship, while still allowing the law’s reporting and disclosure requirements to stand. These different decisions have created a court split, making the Supreme Court more likely to grant review. Indeed, the Court has already reached out to the federal government for their opinion on the matter.

In Paxton, the Fifth Circuit found in favor of the Texas law, overturning the lower court’s ruling. While the court cited several prominent and novel arguments that aided in their judgment, central among those was their conclusion that the law “protects other people’s speech and regulates the Platform’s conduct.” The court ruled that social media companies are not the publishers of content posted on their platforms, and thus have no First Amendment claim, which would have protected their right to engage in censorship. Central to the court’s rejection is Section 230 of the Communications Decency Act, passed in 1996 and a key factor in modern cases involving digital speech. Specifically, the Act states that “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.” Per the Fifth Circuit’s interpretation, Section 230 means that social media companies are not the publishers of content posted on their platforms, and thus are not afforded the same First Amendment protections as other publishers.

However, in Moody, the Eleventh Circuit found that the Florida law’s censorship restrictions are unconstitutional, since “Social-media platforms like Facebook, Twitter, YouTube, and TikTok are private companies with First Amendment rights.” Citing previous cases (Miami Herald, Pacific Gas & Electric Co., Hurley), the court reaffirmed that the First Amendment protects editorial discretion and that private entities have the right to exclude speech based on its content. The court found, among other arguments, that social media companies possess editorial discretion, and therefore, that any restriction of their content moderation efforts is a First Amendment violation. This ruling in Moody creates a contradiction with the ruling in Paxton, leaving the subject ripe to be taken up by the Supreme Court, with the states arguing that social media companies are not publishers, and the companies arguing that they act as publishers.

Resolution:

To resolve this contradiction in court rulings, it is important to determine whether social media companies should be treated as the publishers of the content posted on their platforms. Traditionally, editorial discretion and the rights of publishers were privileges afforded to more standard media, such as newspapers, or even TV broadcasts. With the advent of social media, it is unclear where platforms fall on an editorial spectrum. On one hand, they use algorithms to recommend and sort content. On the other hand, they don’t produce their own content, and organize content in a content-neutral manner.

Yet, while platforms exhibit some characteristics that suggest they serve as publishers of content, a common-sense approach to the issue reveals that platforms are nothing like newspapers and television channels. If an offensive Tweet were to be widely shared, the Tweet would be attributed to the user who created the Tweet and would never be attributed to Twitter in any way. In contrast, an offensive news article, or parade float, would be attributed to the editor or organizer in at least a minimal capacity. Facebook and the New York Times are not viewed or treated the same way by their users, or society as a whole, and should not be conflated in First Amendment cases. Indeed, an offensive news article written by a journalist at the New York Times would be attributed to the paper, since the paper employs the journalist, edited the offensive article, and chose to publish it on their website. In this situation, the New York Times exhibits editorial control over the offensive article. On the other hand, an offensive Tweet would not come from someone with a professional affiliation with Twitter, would not have been edited by Twitter, and would not have been selected for publication by Twitter. Thus, the company demonstrates no editorial control over the content posted on its platform. The 5th Circuit’s argument more aptly reflects the nature of the cyber landscape, while the 11th Circuit fails to acknowledge the novelty of digital content hosting by treating these companies as publishers. Social media platforms should not be treated as publishers of content. Platforms and publishers are not the same thing.

This argument is supported by the argument of social media companies themselves in other recent cases. Argued on February 21st, 2023, Gonzales v. Google LLC. dealt with Google’s recommendation of ISIS recruitment and fundraising videos before a 2015 terror attack. In this case, the petitioner argues that Section 230 of the Communications Decency Act does not protect all content recommendation practices, while Google argues Section 230 shields them from liability, claiming that “Section 230 flows from Congress’s recognition that today’s internet could not exist if the law treated every website and user as the publisher or speaker of the third-party content they disseminated.” In Gonzalez, Google is using the regulations and statutes laid out by Section 230 to protect them from liability, claiming that they should not be held responsible as a publisher of content. In contrast, NetChoice, of whom Google is a member, is arguing in Paxton and Moody that, because of the content organization practices of large platforms such as Google’s YouTube, they are the publishers of content and have First Amendment rights.

It appears that social media companies want to have Section 230 both ways; they wish to be afforded the First Amendment rights of a publisher, claiming that they hold editorial discretion over the content that appears on their platforms. Yet, at the same time, they want to be immune from liability based on the content posted to their platforms. The arguments made by these platforms in different cases are inconsistent with one another. The Supreme Court’s rulings in the upcoming cases should do much to clarify the issue and resolve the numerous contradictions present in the recent group of First Amendment cases.

The Supreme Court’s recent interest in Section 230 illustrates the growing importance of the statute in internet litigation and reveals the challenge the novelty of the Internet provides to lawmakers and judicial bodies. Until Congress acts to reform Section 230, it is up to the Court to shape the rules that govern the digital landscape. The Court should hold that internet platforms are not publishers or editors of the content hosted on their platforms.

Temple University vs. Temple Graduate Student Union: A Violation of State and Federal Labor Statutes

Sidney Singer

“As a result of your participation in the [Temple University Graduate Student Association] strike, your tuition remission has been removed for the spring semester. You now owe the full balance listed in TUpay, which is due by Thursday, March 9,”  read an email sent by Temple University to graduate students participating in the Temple University Graduate Student Association (TUGSA) strike. Temple graduate students – many of whom make less than the estimated cost of living for Philadelphia, where Temple University is located – were on the third week of their strike after failing to reach a compromise with Temple to increase pay and benefits when this email reached their inboxes.

Not only has Temple University revoked tuition remission for students on strike, but Temple has also canceled their University-provided health insurance, which many students discovered after trying to purchase prescriptions or go to doctor’s appointments. Temple said that the termination of health coverage was due to the students’ “decision to strike.”  On March 7th, Temple University reinstated striking students’ health insurance, noting that this decision was made “because of the good faith effort shown by TUGSA.” After 42 days on strike, and two days after the reinstatement of student health insurance, the TUGSA accepted a deal that increased their stipend payments, in the face of what they called “unprecedented retaliation and intimidation, not to mention the cowardice and cruelty of [Temple University] admin.”

I argue that based on case precedent, Temple University violated the Pennsylvania Labor Relations Act (PLRA), and by extension the Pennsylvania Employee Relations Act (PERA), as well as the National Labor Relations Act (NLRA), by removing tuition remission and health insurance for striking graduate students.  In this article, I will explore not only the implications of the University being held accountable under the NLRB, but also will look at the PLRA and PERA, which the University incontestably must abide by. I will explain how Temple’s decision to remove students’ health insurance was a violation of each of these statutes as per Section 8(d) of the NLRB and the PERA.

The Pennsylvania Labor Relations Act, first introduced in 1935, guarantees employees the right to “to organize and bargain collectively.” Section 6 of the act states that “it shall be unfair practice for an employer to… intimidate, restrain, or coerce any employee for the purpose and with the intent of compelling such employee to join or to refrain from joining any labor organization, or for the purpose or with the intent of influencing or affecting his selection of representatives for the purposes of collective bargaining.”

However, according to a spokesperson for Temple University, under Pennsylvania law, “TUGSA members who have chosen not to work and are on strike are no longer entitled to their compensation and work-related benefits.” Yet, if these students are unable to access life-altering health care, such as access to necessary medications or doctor’s appointments, due to their membership and cooperation with the TUGSA, does this not constitute coercion with the intent to deter students from joining a union? If students are forced to make a choice between life-saving healthcare, and joining the TUGSA, then they are being forced to put their union membership at the expense of their physical health, thus coercing them into making a choice between health and collective bargaining.

However,  In re Appeal of Cumberland Valley Sch. Dist. from Final Ord. of Pa. Lab. Rels. Bd. in Case No. Pera-M-6966-C, the Supreme Court of Pennsylvania ruled that the Cumberland Valley School District was exercising unfair labor practices, in violation of sections 1201(a)(1),(3) and (5) of the PLRA. These sections prohibit public employers from: “Interfering, restraining or coercing employees in the exercise of the rights guaranteed in Article IV of this Act”; “Discriminating in regard to hiring or tenure of employment, or any term or condition of employment to encourage or discourage membership in any employee organization.”

In the aforementioned case, Cumberland Valley School District argued that the “line of cases defining the good faith obligation of the employer and employee which to board considered under the NLRA is inapplicable because the NLRA concerns private employment while Act 195 (also referred to as the PLRA) concerns public employment.” However, the court ruled that the case did not present a situation “where there exists a meaningful difference in policy between the NLRA and Act 195.” This case set the precedent in Pennsylvania that if there are no discernable differences between the NLRA and relevant Pennsylvania state statutes, the NLRA can be used as precedent.

In fact, if one were to look at the language of the NLRA, in comparison to the PLRA, Section 7 states “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” while section 5 of the PLRA reads nearly exactly verbatim, “Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The two excerpts are very similar, although  there is a minor difference in wording. Overall, however, both Acts seem to convey the same basic message, which is that employees have the right to join unions and engage in collective bargaining and other activities that support their collective interests.

Thus, with the precedent set that any cases where there is no significant difference between the meaning of the PLRA and the NLRA, the NLRA can be used as a baseline for decisions, one can look at national cases which deal with similar issues as faced by the TUGSA.

Similar cases on a national level, and were dealt with through the NLRB, include Intermountain Rural Electric Association v. National Labor Relations Board.

In Intermountain Rural v. NLRB, the court held that Intermountain Rural violated section 8(a)(3) of the NLRB, which states that it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 157,” Additionally, the Board found that this pattern of unlawful unilateral actions by IREA had a fundamental economic impact on the employees which would likely place the Union at a bargaining disadvantage in terms of maintaining the support of the employees and undercutting the Union’s authority at the bargaining table.

In the case of TUGSA, the removal of tuition remission and revocation of health insurance would surely have a “fundamental economic impact on the employees,” and would also violate Section 1201(a)(3) of the PLRA, which is taken essentially verbatim from the NLRA: “Discriminating in regard to hiring or tenure of employment, or any term or condition of employment to encourage or discourage membership in any employee organization.”  In the end, Intermountain Rural was required to “make whole employees sustained from this premium deductions, plus pay.”

When looking at the events that unfolded at Temple University, one can see clear parallels between the national example of  Intermountain Rural Elec. Ass’n v. N.L.R.B, and the Pennsylvania-specific example of appeal of Cumberland Valley Sch. Dist. Although the current situation at Temple has currently been resolved, I hold that based on case precedent, Temple University was in violation of the PLRA, as well as the NLRA, by removing tuition remission and health insurance for striking graduate students. It is very clearly a violation of Section 1201(a)(3) of the PLRA, and could also be considered in violation of Section 1009 (iii) of the PERA, which reads that it shall be an unfair labour practice for an employer “to intimidate, restrain, or coerce any employer by threats of force or violence or harm to the person of said employer or the members of his family, with the intent of compelling the employer to accede demands, conditions, and terms of employment including the demand for collective bargaining.” Temple’s removal of potentially life-saving health insurance can put those participating in a strike, or their direct family also covered by their insurance, directly in harm’s way. It is thus illegally coercive.

Emotional Support Animals: Regulations and Protection

Jeannie Kim

Most people are familiar with service animals, as they accompany people to schools, malls, airports, and essentially all public places. What people are less accustomed to, however, are emotional support animals (ESAs). ESAs can range from dogs to any other type of animal, as long as they receive certification. While people often overlook ESAs and find them unimportant in comparison to service animals, ESAs actually serve a very critical purpose to people with various conditions—usually mental health conditions such as depression or PTSD. Even in trauma therapy, animals play an irreplaceable role in treatment and care for patients. They are an incredibly valuable source of healing and support to people with mental health conditions or psychiatric disabilities. Delving deeper into the complex legal issues surrounding ESAs provides an opportunity to expand governmental and legal support for those with mental health conditions. I argue that the first step in accomplishing this is expanding the Americans with Disabilities Act (ADA) to include protection for ESAs.

According to the ADA and the Department of Justice, service animals are any breed of dog or miniature horse that are “trained to perform a task directly related to a person’s disability.”  For example, a service dog could be trained specifically to help with a person’s blindness. The ADA makes the distinction that ESAs, on the other hand, do not qualify as service animals because emotional support “is not a task related to a person’s disability.”  

Another key piece of legislation that is related to service and emotional support animals is The Fair Housing Act (FHA), which provides protection for what is called an assistance animal. “Assistance animal” is a broader term that includes ESAs, but assistance animals are distinguished from service animals because they  “[do] not need to be trained to perform a service,” unlike service animals. However, the FHA does state that the owner must provide a letter to their landlord from their primary care doctor or a licensed therapist to prove that they have a disability and that their pet helps with this disability and its symptoms. The FHA defines a disability as a physical or mental condition that “significantly limits a person’s major life activities.” Once the landlord receives this ESA letter, the pet qualifies as an assistance animal and should receive accommodation, even if the housing policy does not allow pets.

Therefore, the FHA clearly identifies mental health conditions as disabilities. The ADA should adopt this definition of a disability in order to first extend their definition of a service animal to ESAs that are dogs or miniature horses; in the future, hopefully the ADA could be further expanded to include other types of animals as well. In other words, if the definition of a disability includes mental health conditions, then the tasks that ESAs typically perform—for example, aiding with panic attacks from anxiety or PTSD—should qualify as a “task directly related to a person’s disability.” This would consequently expand the ADA’s definition of service animals to include ESAs as well, because their execution of emotional support for a mental health condition aligns with the current understandings of the purpose and practices of a service animal.

A significant case to analyze when arguing the importance of expanding the boundaries of the ADA is C.L. v. Del Amo Hospital, Inc. The reason this case is particularly relevant to the discussion surrounding the ADA’s connection to ESAs is that in his ruling, Judge Gould stated that the ADA’s exclusion of ESAs is very ambiguous: “it is not apparent why a dog who provides emotional support in a way that consistently alleviates his handler’s ADA-qualifying anxiety should not be covered [by the ADA].” In this statement, Judge Gould aligns with my claim about how the ADA is problematic and unclear in regards to its distinction between ESAs and service animals. The ADA does not specify what kind of task a service animal should perform or an exact method of performing the task, so it is extremely puzzling that the purpose and function of an ESA does not fit under the legislation. Thus, it is illogical to exclude emotional support that is essential for people’s ability to carry out their daily lives from the ADA’s definition of service animals. Evidently, the current limitations of the ADA make the ADA less inclusive of people with mental health conditions.

Another reason why the ADA should include protection for ESAs is that it would improve the ways landlords and housing institutions perceive ESAs. As exemplified by the following court case, ESA owners have struggled with housing issues due to doubt regarding the importance of their ESA. These complications would lessen if ESAs were offered the protection of the ADA.

This is clear from Bhogaita v. Altamonte Heights Condominium. Bhogaita had an emotional support dog for his PTSD that was heavier than the pet weight policy of his condominium. The condominium asked Bhogaita to remove his dog and asked for additional information from his therapist about his condition and why he needed an ESA. Bhogaita responded with information and repeated certification from his therapist, and this exchange between Bhogaita and the condominium went back and forth several times as the condominium continued to request additional information. In the end, Bhogaita claimed that the lack of accommodation violated the FHA and the Florida Housing Act. This case is an example of discrimination against someone who needs and benefits from an ESA. The condominium, as well as the legal system surrounding ESAs, failed to properly address Bhogaita’s needs as someone with a mental health condition. By perpetually asking for more information even after Bhogaita had already provided the information required by the FHA, the condominium created unnecessary obstacles and stress for Bhogaita. This situation reveals the need to extend the ADA: the condominium would not have been able to deny Bhogaita’s rights to keep his ESA in his home if his ESA had qualified as a service animal under the ADA. Especially for disabilities that are not visible, like Bhogaita’s, reinterpreting the ADA would offer added protection for the ESA owner and cause less inconvenience for landlords.

Expanding the ADA to include ESAs would also address the issue of counterfeit or fraudulent claims of ESAs. A common concern regarding ESAs is that if the regulations loosen, then the distinction between an ESA and a regular pet will vanish. This may lead to complications for people like landlords and apartment managers, and it would also raise the issue of people who do not have genuine needs for ESAs taking advantage of ESA certifications. The main reason for this worry is that it has become too easy to acquire an ESA letter—the letter that gives owners certification for their ESA. This is mainly due to the emergence of numerous online platforms like Pettable that offer very cheap ESA letters to those in need. Although some of these platforms are legitimate, many of them are often scams, with no transparency about who exactly is writing these letters. These platforms are therefore taking advantage of people’s needs for ESAs to make a profit. Some states have created laws that try to curb the usage of these platforms; for instance, California requires that the ESA owner has known their physician or therapist for at least 30 days before receiving their ESA letter. However, people with legitimate needs for an ESA still gravitate towards these online options because they are much more inexpensive and accessible than finding licensed mental health professionals. This legal system implicates a degree of income-based discrimination because people who genuinely need ESAs often have no choice but to rely on online platforms to obtain their ESA letters since mental health care is very costly. If the ADA extended its protection to ESAs, however, people with genuine needs for ESAs would no longer have to resort to these untrustworthy sources because service animals recognized by the ADA do not need to be certified or professionally trained.

Overall, the ADA should be broadened to include protection for ESAs in order to expand rights for people with mental health conditions, decrease the ambiguity surrounding the boundaries between service animals and ESAs, and reduce fraudulent claims of ESAs. Currently, the uncertainty regarding ESA standards in the FHA and ADA threatens to implicate more risks to ESA owners with mental health conditions. By expanding the ADA, those with mental health conditions will be able to live more comfortably.

Justice Until Death: The Necessity of Swift and Good-Faithed Capital Punishment

Justin Murdock

Abstract

There are two factions when it comes to the debate over capital punishment: one believes it is legitimate retribution for heinous criminal acts, while the other believes it is the epitome of archaic punishments which violate the principles of the Eighth Amendment. Capital punishment in the United States is limited to five main methods: lethal injection, electrocution, lethal gas, hanging, and firing squad. Lethal injection remains the most popular method of the death penalty. Consequently, in states that continue to employ lethal injection, cases of botched execution have long posed issues. One such example is the recent botched lethal injection of Kenneth Eugene Smith. I argue that given these instances of negligence in applications of capital punishment, more states should use newly-available alternative methods, such as nitrogen hypoxia, when administering capital punishment.

Background

The case study of focus sparked one of the greatest, most drawn-out legal fights pertaining to capital punishment. Kenneth Eugene Smith was convicted of murder in 1989 by a jury vote of 10-2 and sentenced to death row for grotesquely killing Elizabeth Dorlene Sennett in a murder for hire. Smith appealed his case for a retrial through Kenneth Eugene Smith v. State (2000), which resulted in a jury vote of 11-1 to sentence him to life without parole. However, the judge invoked §13A-5-47(e) of the 1975 Alabama Code, which allowed him to overrule the jury’s recommendation, and sentenced Smith to death. In 2017, however, Alabama introduced a statute to abolish the ability for judges to override a jury’s decision. Nevertheless, the law was not retroactive, so when Smith appealed to the Federal Supreme Court, he was denied review.

Smith argued in the same appeal that the Alabama Department of Corrections violated his due process rights under the Fourteenth Amendment since he was not accordingly notified of a nitrogen hypoxia alternative when made available in 2018 in Alabama. Following his final unsuccessful objection to his capital sentence, Smith later had his execution administered. Smith was strapped into a gurney and not fully anesthetized, resulting in the jabs in his limbs and groin feelings “like a knife”. This execution was administered quite late, and since the death warrant restriction expired at midnight, the process had to be called off. Smith’s failed execution is just another piece in Alabama’s history of botched executions: the state also botched the executions of Alan Miller and Doyle Lee Ham, with officers sleeping on their jobs and the inmates suffering from delays and chemical burns resulting from improper injections. All these cases have been united in their application of the Eighth Amendment based on their grotesque execution.

The final court decision in Smith’s case accords with the national precedent on capital punishment but opens interesting nuances to the penal issue. The reigning District Judge R. Austin Huffaker Jr. dismissed the appeal, stating that the violations alleged against the Alabama Department of Corrections (ADOC) should not pose a constitutional issue according to the Eighth Amendment—specifically its prohibition on “cruel and unusual punishment.” Past plaintiffs such as Miller and Ham have also cited a violation according to the Eighth Amendment, showing that based on precedent, the negligence of ADOC raises the question of constitutionality of the method of capital punishment rather than the practice of capital punishment itself. Essentially, the intended punishment inherently is not deemed a constitutional violation, but the actual application raises questions into the viability of the action.

Given the facts of Smith’s case and prior cases demonstrating consistent problems of negligence and inefficiency, this article brings two claims about the motive behind capital punishment and the future regarding lethal injection practices. To clarify, this article is not intended to discuss the merits of the death penalty as a whole. This concept has been disputed many times in court, often siding with its federal legality, so arguing against it in this piece would be futile. Instead, this article breaks apart specific kinds of capital punishment. In particular, the death penalty should be administered both swiftly and in good faith. If the accessory pain associated with the method of capital punishment goes beyond and impairs the ability to administer a swift execution, it could rise to cruel and unusual punishment. Since lethal injections are prone to failures that can lead to violations of the Eighth Amendment, courts should instead open viable, convenient alternatives such as exploring the safer nitrogen hypoxia execution method to accomplish the motives of the death penalty.

Legal Bases

Two parts of two amendments are fundamental to determining the legality of the punishments Smith, and others like him, suffered: the Eighth Amendment’s prohibition on “cruel and unusual punishment” and the Fourteenth Amendment’s prohibition on the abridgement of “due process.” Especially when alternatives are available but not fully delineated to the defendant, like Smith, the Fourteenth Amendment is crucial in piecing together the defendant’s rights against government punishment. If the purpose of these amendments is to protect minorities and the vulnerable by ensuring equal rights for all, any mishandled implementation of this measure could be viewed as the government exceeding its due authority to administer fair punishment. Therefore, this shows that the administration of botched lethal injection procedures, at least by the ADOC, should search for viable alternatives to avoid remaining within the bounds of the Eighth and Fourteenth Amendments.

While justices have typically sided with the government in capital punishment cases, key insights have nevertheless been shed about the merits of certain procedures, such as Smith’s botched lethal injection. For instance, in a 7-2 decision in Baze v. Rees (2008), the Supreme Court addressed the constitutionality of a four-drug lethal injection. While the Court concluded that the lethal injection as a concept did not violate the Eighth Amendment, members of the Court suggested that if states consistently utilize methods without sufficient justification compared with better alternatives, that may amount to cruel and unusual punishment. Additionally, Bucklew v. Precythe (2018), decided 5-4, involved an appeal in which Bucklew argued that his pre-existing medical condition of blood-filled tumors subjected him to excessive pain when receiving a lethal injection, culminating in “cruel and unusual punishment.” Again, the Court did not find the death penalty to amount to an unconstitutional punishment. However, Justice Gorsuch’s remarks do hint at this article’s claims of swift and good-faithed execution practices. Saying that the punishment should not provide “superadd[ed] . . . terror, pain, or disgrace,” he wrote that the death penalty should ideally be quick, but is not guaranteed to be entirely pleasant or easy. While there will undoubtedly be some degree of pain associated with the highest level of punishment there is in the country, inmates do still have rights that are supposed to prevent the administration of that punishment from being unnecessarily painful. ADOC’s negligence, however, caused it to infringe upon these rights.

Conclusions

Given the history of repeated botches and potential alternatives, insights from concurring and dissenting opinions should be kept in mind when witnessing this persistent negligence in capital punishment. If developments in nitrogen hypoxia make it a reasonable alternative, like in Alabama in 2018, defendants should be informed of such rights. Even if this novel practice has just surfaced in the realm of capital punishment, it should still be explicitly available if the state deems it to be safe. Even if nitrogen hypoxia is not safe according to other states’ laws, it is still abundantly clear that the ADOC failed its procedure and demonstrated incapability in administering lethal injection. If states still stalwart this process and refuse to provide viable alternatives, as even Supreme Court justices have opined, states will unfortunately continue to find themselves in a flurry of contested Eighth and Fourteenth Amendment violations.

Electronic Surveillance, the Fourth Amendment, and the NYPD’s “Muslim Surveillance Program”

Annie Akbar

In a letter to James Madison after the French Revolution had begun, Thomas Jefferson wrote, “The earth belongs always to the living generation… Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force and not of right.” Here, Jefferson is advocating for a periodic revision of the Constitution, one in which the citizenry rethinks its guiding document in light of the circumstances of a new era. When comparing our age to that of our Founding Fathers, it is not difficult to understand Jefferson’s sentiment. The advancement of our society, especially in terms of technology, has significantly affected the ways in which civil rights (and their infringement) appear. This is especially true when examining electronic surveillance and its implications for Americans’ constitutional liberties. For example, in Hassan v. City of New York (2015), the United States Court of Appeals for the Third Circuit held that, under the First and Fourteenth Amendments, the New York City Police Department’s “Muslim Surveillance Program,” in which electronic surveillance was used to “infiltrate and monitor Muslim life in and around New York City,” was unlawful. While this decision undoubtedly finds legitimacy in the aforementioned amendments, I contend that applying a modern interpretation of the Fourth Amendment—one rooted in “living constitutionalism,” or the idea that “constitutional law can and should evolve in response to changing circumstances and values”—can also prove the program’s illegality.

In Hassan v. City of New York (2015), lead plaintiff Syed Faraj Hassan and others associated with Islam testified that, since January 2002, the New York City Police Department (NYPD) used what was informally known as the “Muslim Surveillance Program” (also called “the Program”) to monitor the lives of Muslims and their businesses, mosques, organizations, and schools in New York City and neighboring cities and states. The Court of Appeals found that the plaintiffs—“persons associated with Islam who claimed to be targets of police surveillance program”—had standing to sue in federal court to “vindicate their religious-liberty and equal-protection rights” and that their claims were justified under the First and Fourteenth Amendments. It is clear why the Program, which “targeted Muslim American communities in New York, New Jersey, and beyond,” would violate the First and Fourteenth Amendments. However, employing the Fourth Amendment to assess the Program’s “sprawling and secretive human mapping and suspicionless surveillance program” may provide an additional legal foundation for the decision.

The Fourth Amendment affirms that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In short, the Fourth Amendment outlaws unreasonable searches and seizures. The NYPD’s participation in the Program, though, constitutes an unreasonable search and seizure of data on Muslims in the greater New York area via electronic surveillance.

The plaintiffs in Hassan argued that the NYPD monitored Muslims in several ways, such as by taking pictures, shooting videos, and gathering license plate information of mosque attendees. Officers also pointed surveillance cameras at mosques, which they could then control remotely. Furthermore, the plaintiffs asserted that the NYPD would send undercover cops into mosques, student organizations, businesses, and neighborhoods that it characterized as “heavily Muslim” to listen in on sermons and conversations before reporting back to their department. These surveillance methods were not solely concentrated in New York City—they extended into New Jersey, Connecticut, Pennsylvania, and other areas of New York state. In addition, the NYPD collected information on the locations of religious schools, the religious affiliations of certain public establishments, the number of businesses operated or visited by Muslims, and the names of people involved with Muslim Student Associations (MSAs) in the area. The NYPD also “compile[d] databases of new Muslim converts who [took] Arabic names, as well as Muslims [who took] names that [were] perceived to be ‘Western.’”

The plaintiffs declared that the intelligence gathered by the NYPD through the Program was compiled into many reports. Such reports included information on Newark’s Muslim population, over 20 precinct maps of Newark showing the locations of mosques and Muslim businesses and the ethnic composition of the Muslim population, and “analytical report[s] on every mosque within 100 miles of New York City.”

From this, it is obvious that the NYPD’s program was meant to target Muslims and their daily activities, indicating religious discrimination that the Court of Appeals affirmed in its ruling. However, I assert that the Program’s electronic surveillance to collect an expansive collection of data by itself is sufficient to warrant a contravention of the Fourth Amendment.

Regarding the Fourth Amendment, the Court of Appeals utilizes Justice Scalia’s point in Whren v. United States (1996) about selective enforcement of the law: “[T]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.” While I agree with the appellate court’s reasoning, I believe that the Program’s methods of collecting people’s information, regardless of their religion, can be considered a Fourth Amendment infraction.

But first, does electronic surveillance even fall under the jurisdiction of the Fourth Amendment? In Katz v. U.S. (1967), a case involving electronic surveillance, the Supreme Court held that the Fourth Amendment protects “any place where an individual maintains a reasonable expectation of privacy.” In his concurring opinion, Justice Harlan stated that “a person has a legitimate expectation of privacy if he honestly and genuinely believes the location under surveillance is private.” Due to the separation of church and state found in the Constitution, places of worship are commonly regarded as private institutions—institutions in which a person “has a reasonable expectation of privacy.” Under this ruling, the Fourth Amendment prohibits unreasonable searches and seizures involving data collection through electronic surveillance—precisely the sort of search and seizure in which the NYPD engaged.

Now that this has been established, I will use the Fourth Amendment to provide further support for the decision in Hassan. According to the federal courts, the Fourth Amendment prohibits unreasonable searches and seizures by the government (and government agencies like police departments), but only those that are perceived as unreasonable from a legal standpoint. This is referred to as the reasonability requirement. Judges are to consider the main factors when determining whether or not a search was reasonable: the search’s infringement on a person’s Fourth Amendment rights and compelling interests that may allow for such an infringement. For an interest to be compelling, the government must use the “strict scrutiny test” to show that the interest is “important enough that it justifies infringing on a fundamental right, and [that its] infringement on rights is done in ‘the least restrictive’ or most careful way possible.” However, in Hassan, the Court of Appeals held that the “municipality’s assurance that police surveillance was justified by national-security and public-safety concerns did not satisfy its burden of producing evidence to overcome heightened scrutiny’s presumption of violation of equal protection.” Because the NYPD failed to prove that electronically surveilling Muslims was a compelling interest, the “Muslim Surveillance Program” fails to fulfill the reasonability requirement. Moreover, “least restrictive means” refers to a method that places “the least possible restriction on personal liberty and the exercise of rights.” While public safety and thus crime prevention are certainly compelling interests, the NYPD’s surveillance program is clearly not the least restrictive means possible to achieve its desired ends. This is due to its surveillance of basically all Muslims in the greater New York area, rather than just those on watchlists or things of that nature.

Though Fourth Amendment jurisprudence is beginning to incorporate electronic surveillance threats to privacy, an obstacle to this development may arise from originalists who disagree with applying the Fourth Amendment to this issue. These individuals proclaim that the “original meaning of search seems to be the ordinary meaning at the time [of the Fourth Amendment’s adoption] of ‘looking over or through’ or ‘examining by inspection’” and that an unreasonable search is only one that “violate[s] the common law rules for searches at the time of the Fourth Amendment.” However, taking into account the privacy and “search and seizures” problems that are related to electronic surveillance is crucial to upholding the protections of the Fourth Amendment. According to the Brennan Center for Justice, as cell phones, watches, cars, and other electronic devices become “smarter,” they “create detailed records about our private lives, potentially revealing not only where we have been but also our political viewpoints, consumer preferences, people with whom we have interacted, and more.” This information can be used by “law enforcement for use in investigations and prosecutions, and much of it is currently available without a warrant.” Thus, establishing legal limits to such electronic collection of data is a worthwhile endeavor to maintain the sanctity of our rights.

The idea of electronic surveillance and its potential infringement of people’s Fourth Amendment rights is one that warrants attention because, as technology continues to progress in terms of its abilities, so will the means by which data is collected. Without implementing proper legal restrictions on the use of data collection, the privacy of American citizens under the Fourth Amendment may be in danger.

Global Climate Change Litigation: A New Class of Litigation on the Rise

Diya Kraybill

As climate change has come to the forefront of the public consciousness in recent years, we have seen increased global urgency and public awareness regarding this issue. This awareness has led to the advent of a new and ever-evolving body of environmental law related to mitigating climate change risks. 

According to the London School of Economics, “climate litigation is generally recognized to have started in the United States in the late 1980s but has since emerged as a growing global phenomenon.” Climate change litigation made headlines following the 2021 ruling by the Hague District Court in the case Milieudefensie v. Shell. This landmark ruling in environmental law held that Shell was required to both set and uphold emissions standards and reduction targets by 2030. Notably, the number of climate litigation cases filed has increased significantly following the signing of the 2016 Paris Agreement, with just over 800 cases filed between 1986 and 2014 and over 1,200 cases filed between 2014 and 2022. The Paris Agreement, while not legally binding, was a pivotal step forward because it was an attempt to “promote accountability and ambition” for all nations. 

With the growing number of climate change cases in recent years, precedents are set regularly, and cases are being brought against both corporations and governments. However, as we see a rise in cases, there are noticeable discrepancies in why these cases are brought forward and the bases upon which they are decided. While cases are brought with different forms of strategic intent, there are trends in the arguments being brought forward in the cases we have seen, making it possible to sort heterogeneous cases in the field of environmental law into various categories. 

Constitutional and human rights cases concern themselves with the constitutional and moral obligations that have failed to be upheld by a nation due to climate-change-related risks to citizens. According to the United Nations, “States have an affirmative obligation to take effective measures to prevent and redress these climate impacts, and therefore, to mitigate climate change, and to ensure that all human beings have the necessary capacity to adapt to the climate crisis.” If inadequate environmental conditions due to climate change compromise these rights, governments are liable to be sued. Under the rule of law, governments and citizens alike are accountable to laws that are “publicly promulgated, equally enforced and independently adjudicated” and are consistent with international human rights standards.

The challenge that arises is enforcing such liability under international law. In 2008, the UN Human Rights Council (UNHRC) issued a resolution that outlined the concern that climate change “poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.” However, after conducting a later study of the relationship between human rights and climate change, they concluded that “it is less obvious whether, and to what extent, such effects can be qualified as human rights violations in a strict legal sense.” As such, these cases can be particularly challenging to bring forward, as many states will concede that climate change can interfere with the realization of human rights but reject the idea that failure to prevent climate change or take substantial action is a violation of international human rights law. The Paris Agreement is a legally binding international treaty; yet there is no formal accountability or consequence for nations failing to meet their individual goals. Instead, the Agreement focuses on transparency and ensuring that they are taking active measures to work towards their Nationally Determined Contributions (NDC). 

Administrative cases involve the review of “administrative decision-making by federal, state or local government, often concerning permitting and licensing approvals granted to high-emissions projects under environmental or planning laws.” An example of a case was ClientEarth v. Secretary of State, where ClientEarth, an environmental NGO, brought forward a case to the High Court challenging the UK government’s decision to approve what would become the largest gas plant in Europe. The court ruled in favor of the defendants, as the judge determined that the case “involved policy questions requiring a balancing of interests and that other public interests weigh against the UK’s climate goals.”  This case is illustrative of a key challenge that litigants bringing environmental claims face, as governments attempting to weigh different interests often conclude that climate change is not the most pressing issue, and can be compromised in favor of other more relevant or pressing issues. 

Private law cases involve disputes about negligence, nuisance, and public trust. For example, in Smith v. Fonterra Co-Operative Group Limited, the climate change spokesperson for the Iwi Chairs’ Forum, a Māori development platform, filed a case against seven New Zealand companies in the agriculture and energy sectors on the grounds of “public nuisance, negligence and breach of a duty to cease contributing to climate change.” However, this case, as with many other private law cases, was dismissed, as the court held that “tort law was not the appropriate vehicle for dealing with climate change” and that “every person in New Zealand — indeed, in the world — is (to varying degrees) both responsible for causing the relevant harm, and the victim of that harm.” Private cases have often been dismissed on the grounds that it is the responsibility of the government, rather than the court, to address climate change impacts and that it is difficult to prove that the harm the plaintiff incurred was directly attributable to the defendant’s actions.

Fraud and consumer protection cases are typically concerned with misrepresentation claims against corporations for failing to disclose the risk associated with their products or for “greenwashing” their products or practices. For example, Ramirez v. Exxon Mobil Corp. was a 2016 securities fraud class action suit alleging that Exxon failed to disclose climate risks, and this was also the first climate-change-related securities class action against a major oil and gas company. 

It is important to recognize that climate change litigation has had mixed success, particularly as this is such a new class of action with little precedent or comparable cases. Firstly, there is the question of justiciability and whether a court has the mandate to hear a claim about decisions on climate change. A notable example of this is in the case Lho’imggin et al. vs Her Majesty the Queen (2020) where two houses of the Canadian indigenous group filed a case against the Canadian government’s failure to meet their climate goals resulting in significant warming of their territories. The Federal Court of Canada responded by stating that “when the issue spans across various governments, involves issues of economics and foreign policy, trade, and a host of other issues, the courts must leave these decisions in the hands of others” and found that the case was not justiciable because the issue was inherently political rather than legal. Additionally, there is the challenge of establishing a causal link between the failure of a government to act in relation to climate change and the occurrence of subsequent negative climate developments. Litigants are, however, increasingly framing the case in terms of human rights and the state’s obligation to protect against the infringement of human rights due to climate change. 

As the scope of this new class of litigation continues to grow, it is imperative that companies are ready to respond to this changing regulatory landscape. While climate litigation is frequently met with challenges and is not always successful, the very existence of climate litigation is a powerful impetus for governments and corporate actors to uphold their social responsibility and pursue more sustainable environmental practices.