Online Defamation: First Amendment Rights and Legal Standards for Unmasking the Identities of Anonymous Defendants

Luke Hwang

Lee Sun-kyun, a renowned South Korean actor for his role in the Oscar-winning film Parasite, tragically took his life in December 2023.[1] Lee had been facing a police investigation over allegations of illegal drug use, despite his constant reiteration of his unawareness of any consumption. Throughout this time, Korean media outlets sensationalized reports about Lee’s personal life that were unrelated to the drug allegations.[2] His public appearances for police investigations were widely televised and reported in news articles, sparking a flurry of commentary on speculations and rumors surrounding his alleged drug uses with a hostess, which were replayed millions of times on YouTube. This led to a flood of malicious comments and unverified information anonymously spreading online, resulting in Lee’s death. Despite recent efforts by web portals and social media platforms to bolster their monitoring systems to better filter out online character attacks, many victims still lament that these rumors spread so swiftly online that their reputations can be irreparably damaged instantly.

The tort of defamation is generally defined as a false communication that tends to tarnish a plaintiff’s reputation.[3] Gossip, false statements, misleading claims and rumors can hinder various aspects of one’s life. When tarnishing and false statements are perpetuated through print, broadcasting or online, the reputational harm can be extended from local communities to even across the country.[4] The advent of the Internet has broadened the scope for public discourse, allowing an increasingly diverse population to engage. Due to the nature of online platforms, even if targeting private individuals, a defamatory content gains public platform once it is posted online, amplifying the potential damages.

“[A]nonymity is an essential tool in protecting free speech and action on the Internet, even if accountability is marginally diminished.”[5] However, it goes without saying that online anonymity has created significant problems within the tort of defamation. Although most Internet Service Providers (“ISP”) require submission of true personal information when users sign up for their service, users can be an entirely different persona online by using usernames. Therefore, most users in the digital world have taken their ability to remain anonymous for granted as part of the First Amendment right to free speech.

Background and Analysis

The First Amendment and Online Defamation
The United States Supreme Court has protected anonymity as an essential component of the First Amendment’s right to free speech.[6] Not only has the court provided Constitutional protection to anonymous political and social activities, but it has also provided the same protection to literature in general, including an author’s right to use a nom de plume (pen name).[7]

These rationales for protecting anonymity are more or less the same for online communications. The United States Supreme Court also held that online speech is not different from traditional forms of communication; thus, online speech is within the same Constitutional protection of First Amendment rights to free speech as the traditional forms of communication.[8]

However, in the context of online defamation claims, in contrast to the traditional defamation claims which provide several distinct avenues for recourse such as bringing an action against the actual defamatory speaker or publisher of defamatory speech,[9] anonymity causes difficulties for the recourse. For online defamation claims, it is hard to locate the genuine identities of the rumor spreaders or posters without a cooperation of the ISP even when the offended party suffers from emotional distress or any other mental illness from defamatory or false statements and may even commit a suicide. Even when a plaintiff requests that the ISP disclose the identities of alleged defamers or demands the government to seek a subpoena for the ISP, unresolved issues still arise about the alleged defendants’ First Amendment rights to free speech.

The CDA and the Subsequent Judicial Interpretation
In 1996, to the plaintiff’s dismay, the Congress enacted the Communications Decency Act (CDA) in response to Stratton Oakmost, Inc. v. Prodigy Servs., where the court held an ISP liable for a defamation claim as a publisher when the ISP exercised its editorial control over the alleged defamatory contents on its bulletin board.[10] The court reasoned that the ISP’s use of software to automatically delete comments deemed in “bad taste” classified it as a publisher rather than a mere distributor, thereby holding it liable.[11] However, in the statutory section 230 of the CDA (hereinafter, “Section 230”), the Congress stated that the Internet provides “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”[12] Thus, the basis for Section 230 has been expanded in the legislative history of this provision, which states that “[t]his section provides ‘Good Samaritan’ protections from civil liability for providers or users of an interactive computer service,”[13] effectively overruling Stratton Oakmont.

CDA has been a primary impediment for protecting online defamation victims.[14] CDA provides that no ISP shall be treated as the publisher or speaker of any third-party statements unless ISP attempts to edit content created by third parties.[15] Furthermore, through the CDA, the Congress sought to shield ISPs from any distributor liability to promote the continued development of the Internet and other interactive computer services and media,[16] thereby fostering free speech and online communications protected by the First Amendment.

Therefore, the Congress and courts have been significant obstacles to the defamation plaintiffs seeking protection from the false information, particularly when dealing with anonymous posters whose identities are challenging to ascertain, as the CDA grants immunity to ISPs from defamation claims involving anonymous posters. Furthermore, courts have required defamation plaintiffs to prove the speaker’s actual malice for defamation claims involving public figures[17] and the speaker’s negligence for private individuals.[18] Consequently, establishing the identity of the anonymous defendant in online defamation claims has become essential to proving either actual malice or negligence on the part of the defendant.

Moreover, even if a plaintiff can demonstrate good cause for seeking a subpoena against an ISP to identify a defendant, the anonymous defendant would argue against the subpoena based on their First Amendment right to free speech. Thus, when unmasking the identity of an anonymous defendant, courts have weighed the interest of both parties, considering the plaintiff’s “interest in rectifying perceived defamation”[19] alongside the defendant’s First Amendment rights to free speech.

The first landmark case interpreting Section 230 was Zeran v. America Online, Inc, wherein a bulletin board user posted the plaintiff’s name and phone number, accusing him of selling offensive T-shirts that celebrated Timothy McVeigh and the Oklahoma City bombing.[20] Despite the plaintiff requests for AOL to remove the original posting and AOL subsequently removing the relevant postings, new postings by AOL users continued to appear.[21] As a result, the plaintiff received threatening calls every two minutes and eventually required police protection in his residence.[22]

Although the plaintiff argued that AOL, as an ISP, should be held responsible for the postings as a distributor since the company was aware of the defamatory statements,[23] the court granted AOL immunity from liability both as publisher and distributor.[24] The court reasoned that holding ISPs liable would incentivize them to simply delete any controversial comments or postings to avoid potential liabilities.[25] The court further reasoned that such actions would likely chill online communication, which would be contrary to the Congress’ statutory purposes to promote free speech on the Internet protected by the First Amendment in passing Section 230.[26]

Following Zeran, many jurisdictions broadly interpreted Section 230 by immunizing ISPs from liability both as publisher and distributor. In 2006, the California Supreme Court unanimously interpreted Section 230 more than any previous courts, holding that Section 230 provides immunity not only to ISPs but also to the individual posters online who are not ISPs.[27] The court reasoned that the Congress, through Section 230, did not intend to differentiate between individual users differently and ISPs.[28] Therefore, the court held that even individual users should be immunized from any liability for defamation.

While many courts followed the reasoning and holding of Zeran in their interpretation of Section 230, not every court applied this interpretation in defamation cases.[29] The California Appellate Court rejected the reasoning of Zeran in Grace v. eBay.[30] When a plaintiff, an eBay user was defamed by another eBay user on the feedback page,[31] the court held that there should be distinction between distributors and publishers in interpreting Section 230.[32] The court reasoned that by providing immunity not only to publishers but also to distributors, Zeran decision and subsequent rulings have eliminated any incentive for ISPs to regulate defamatory content on their bulletin boards.[33] The court in Grace reasoned that Zeran and its followers were inconsistent with the Congress’ statutory intent in passing Section 230.[34]

Zeran has remained canonical, and continues to shape jurisprudence in interpreting Section 230 to this day,[35] and the rights of plaintiffs seeking remedies for online defamation has also remained uncertain. Since a plaintiff typically cannot bring an action without obtaining a subpoena for the ISP to identify the actual party responsible for posting the allegedly defamatory statement online, it appears challenging for defamation plaintiffs to protect their rights and seek remedies for their tarnished reputation.

If the law only protects ISPs or the online users to encourage the freedom of speech under the First Amendment and development of Internet, how can the defamation victim’s right be protected? Why should the law protect only the First Amendment rights of the wrongdoer, not the right of wronged party?

Standards developed in Unmasking the Identities of Anonymous Defamation Defendants
In facing a dilemma regarding when, and by what standard, should the anonymity of the defamation defendant be disclosed, courts have developed several standards, including but not limited to the good faith standard, balancing test standard, and summary judgment standard.

For example, in America Online, Inc. v. Anonymous Publicly Traded Co., the court provided a good faith standard which requires the plaintiff only to show a “good faith” for its prima facie case and unmasking identities of the other party.[36] However, because of the high discretion of the standard, the plaintiff can abuse the ease in bringing an action only by proving a “good faith,” which can be overly subjective or speculative.

In Dendrite International Inc. v. Doe, the court provided a balancing test, a four-part test in assessing whether to allow unmaking an anonymous Internet poster’s identity.[37] This balancing test considers the defendant’s First Amendment right to post content anonymously on the online forum without revealing their true identity, juxtaposed with the plaintiff’s right to safeguard their reputation and balance the necessity of unmasking the poster’s identity against the harm caused. By weighing the anonymous poster’s First Amendment rights against the plaintiff’s interest in revealing the poster’s identity, the court must initially assess whether the speech merits protection.[38] This standard is significant as it compels the court to “reconcile the particular claim against that particular speaker’s right to remain anonymous.”[39]

As an alternative approach, in Doe v. Cahill, the Delaware Supreme Court implemented a more simplified standard, a summary judgment standard, by eliminating the balancing test requirement.[40] Instead, it mandated that the plaintiff make efforts to notify the anonymous poster that he is the subject of a subpoena or disclosure order and provide sufficient evidence to establish a prima facie case that withstands motion for summary judgment.[41] However, this summary judgment standard still significantly favors plaintiffs in their efforts in unmasking the identities of alleged defamation defendants as it would be overly lenient in allowing plaintiffs to present sufficient evidence to survive summary judgment to unveil the anonymous speaker’s identity.

Lack of uniformity in determining when to disclose the identity of anonymous Internet defamation defendants poses challenges in courts. Two (2) primary approaches are: one involving a balancing test (Dendrite) and the other not involving a balancing test (Cahill). Neither approach has been deemed dominant. However, a balancing test between the competing rights of the anonymous speakers seeking their rights to free speech and plaintiffs seeking redress for wrongful communications is crucial in establishing an adequate standard framework for online defamation claims.

A New Standard

Competing Interests in Online Defamation

The United States Supreme Court held that the protection of reputation “reflects no more than our basic concept of the essential dignity and worth of every human being.”[42] Reputation has also been viewed as an “intangible property right.”[43] With the expansive reach of Internet, the impact of online defamation is exacerbated, allowing false statements to rapidly spread globally and undermining the defamation victim’s dignity and intangible property rights. Without clear legal standards to safeguard the online defamation victims from malicious, intentional or reckless posting or sharing of unverified information, the Congress’ objective of fostering a responsible Internet in enacting Section 230 along with protection of the First Amendment right to free speech would not be achieved. Therefore, to align with the Congress’ intent, it is imperative to establish liability for those spreading false or defamatory information, thereby protecting online defamation victims and ensuring the Internet’s reliability.

Debate on the Public Issues
There has been a controversy on the court’s decision on the protection of public debate. In Sullivan, the court implemented the actual malice standard, holding that the First Amendment requires the plaintiff to show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.[44] Similarly, in Rosenbloom v. Metromedia,[45] the United States Supreme Court extended this standard to all discussions involving public or general concerns, and held that the degree of First Amendment protection should be based on the subject matter at issue, rather than the status of the plaintiff whether he is a public figure or a private individual.[46] On the other hand, in Gertz, the court limited the application of the actual malice standard to public figures when the defamation defendants intentionally “thrust themselves to the forefront of particular public controversies.”[47]

However, what if the defaming party did not intentionally “thrust” himself to “the forefront of particular public controversies,” but rather negligently posted defamatory information online? In such cases, regardless of the intent of the defaming party, the defamation victim’s reputation is harmed. Therefore, government’s probable cause for the search should be sufficient to subpoena ISPs for the identity of the anonymous posters.

Key Factors for a New Standard
Based on the foregoing, it is essential to consider the following factors when proposing a new standard for disclosing the identity of online defamation defendants. Initially, courts commonly consider whether the plaintiff is a public figure or a private individual when requested to compel the disclosure of an anonymous Internet defamation defendant. Traditionally, courts have required defamation plaintiffs to demonstrate the defamer’s actual malice for defamation claims involving public figures, and negligence for private individuals. However, the dynamics of online platforms complicate this distinction. Once a defamatory statement is posted, even when targeting private individuals, it quickly enters the public domain and spreads widely, rendering impact of the statement quasi-public. Consequently, the rapid dissemination of information online blurs the lines between public figures and private individuals in defamation claims, making such a distinction legally less significant.

Moreover, given the inherent anonymity of online forum, the plaintiffs’ burden of proof of actual malice on the part of the defendant would be unduly burdensome. Therefore, courts must meticulously analyze the subject matter at issue, content and context of alleged online defamation, and apply a negligence standard even to public figures. This standard, which is lower than the actual malice standard, acknowledges the challenges posed by the swift dissemination of information in the online forum and the resulting blurred lines of responsibility.

Second, while the court in Zeran granted the ISPs immunity from liability both as publishers and distributors, the reasoning presented by the court in Grace suggests that ISPs should be incentivized to regulate defamatory content and information on their online forum.[48] In alignment with the reasoning in Grace, careful consideration must be made to ensure that ISPs, as distributors, can effectively regulate defamatory content online to protect defamation plaintiffs and uphold the Congress’ statutory intent.

Third, finding a delicate balance between the interests of both parties is crucial when determining whether to disclose the identities of the anonymous defamers. Setting the threshold too low could suppress free communication and infringe on the First Amendment right to free speech. Conversely, a threshold set too high could leave the defamation victims vulnerable to false and defamatory statements online.
Therefore, courts should prioritize protecting the reputation and privacy of the aggrieved party in addressing online defamation. A thorough examination of the subject matter, content and context of alleged defamatory statements should be conducted, and once the court finds that the plaintiff has a legitimate basis for the complaint, disclosure of the defendant’s identity should be warranted. In certain instances, the defendant’s Constitutional right to free speech and privacy should be defeated to protect innocent citizens harmed by online defamatory statements that entered the public domain. Courts should have the discretion to discern such cases.


The First Amendment grants the cherished right to freedom of speech, including anonymity. However, such rights are not absolute since false, tarnishing and defamatory statements do not warrant protection. In the realm of online defamation claims, with the development of Internet and its transformative impact on society, the defamation defendant’s Constitutional right should not supersede the rights of innocent victims.

In addressing online defamation, the Congress and courts have considered the First Amendment rights of the defamation defendant, but often overlooked the protection of the plaintiff’s rights. Thus, to ensure a more effective and equitable approach to addressing online defamation while upholding the rights of all parties, a new standard for disclosing online defamation defendants’ identities should consider the following factors: reevaluating the burden of proof for defamation claims due to blurred distinction between public figures and private individuals online; incentivizing ISPs to regulate defamatory content while balancing their immunity from liability with protection of defamation plaintiffs; and a delicate balance between free speech rights and protection of defamation victims.

1 Parasite actor Lee Sun-kyun found dead in Seoul (Dec. 27, 2023), The Guardian,
2 Director Bong Joon-ho calls for investigation into ‘Parasite’ actor Lee Sun-kyun’s death (Jan. 11, 2024), USA Today,
3 Jennifer O’Brien, Putting a Face to a (Screen) Name: The First Amendment Implications of Compelling ISPs to Reveal the Identities of Anonymous Internet Speakers in online Defamation cases, 70 Fordham L. Rev. 2745, 2750 (2002).
4 Erik P. Lewis, Unmasking “Anon12345”: Applying an appropriate standard when private citizens seek the identity of anonymous internet defamation defendants, 2009 U. Ill. L. Rev. 947, 948 (2009).
5 See Shawn C. Helms, Translating Privacy Values with Technology, 7 B.U. J. Sci. & Tech. L. 288, 304-05 (2001).
6 McIntyre v. Ohio Electrions Comm’n, 514 U.S. 334, 357 (1995). The Court reasoned that the protections for anonymous speech are not limited to political speech. The court upheld the First Amendment protection for anonymous literary speech, as well as anonymous handbills urging consumer boycotts.
7 Id. at 341.
8 See Reno v. ACLU, 521 U.S. 844 (1997).
9 See e.g., Cara J. Ottenweller, Note, Cyberbullying: The Interactive Playground Cries for a Clarification of the Communications Decency Act, 41 Val. U. L. Rev. 1285, 1296-99 (Spring 2007).
10 Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. 1995).
11 Id.
12 47 U.S.C. § 230(a)(3).
13 See Valerie C. Brannon and Eric N. Holmes, Section 230: An Overview (Jan. 4, 2024), CRS Report, Congressional Research Service,
14 47 U.S.C. § 230(c)(1) (2006).
15 See Ambika Kumar and Tom Wyrwich, The Test of Time: Section 230 of the Communications Decency Act Turns 20 (Sep. 2016), Insight/Media Law Monitor, Davis Wright Tremaine LLP,
16 47 U.S.C. § 230(b).
17 See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (The court held that the plaintiffs, public officials must prove defamation defendant’s actual malice in making allegedly defamatory statements).
18 Gertz v. Robert Welch, Inc., 418 U.S. 323, 345-46 (1974) (The court prohibited the states from imposing strict liability for the defamation claims involving private individuals. After Gertz, most states adopted negligence as a standard for defining defamation involving private individuals, rather than public figures).
19 McMann v. Doe, 460 F. Supp. 2d 259, 266 (D. Mass. 2006).
20 Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).
21 Id. at 329.
22 Id.
23 Id. at 331.
24 Id. at 332-33.
25 Id. at 333.
26 Zeran, 129 F.3d at 333.
27 Barrett v. Rosenthal, 40 Cal. 4th 33, 59 (Cal. 2006).
28 Id. at 58.
29 41 Val. U. L. Rev. 1285, supra, note 33, at 1307.
30 Grace v. eBay, 120 Cal. App. 984 (Cal. Ct. App. 2004).
31 Id. at 989-90.
32 Id. at 992-96.
33 Grace, 120 Cal. App. at 996-97.
34 Id.
35 Alan Rosenshtein, Interpreting the ambiguities of Section 230 (Oct. 26, 2023), The Brookings Institution,
36 America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350 (Va. 2001).
37 Dendrite International Inc. v. Doe, 775 A.2d 756, 760 (N.J. Super. Ct. App. Div. 2001).
38 Jonathan D. Jones, Cybersmears and John Doe: How far should First Amendment Protection of Anonymous Internet Speakers Extend? 7 First Amend. L. Rev. 421, 427 (Spring 2009).
39 Id. at 428.
40 Doe v. Cahill, 884 A.2d 451 (Del. 2005).
41 Cahill, 884 A.2d at 460.
42 Gertz, 418 U.S. at 402 (quoting Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring)).
43 See e.g., Robert C. Post, Symposium, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 Cal. L. Rev. 691, 693-94 (1986).
44 Sullivan, 376 U.S. at 279-80.
45 Rosenbloom v. Metromedia, 403 U.S. 29 (1971).
46 Id. at 43.
47 Gertz, 418 U.S. at 345.
48 Grace, 120 Cal. App. at 996-97.

Limiting Corporate Speech without Coercion?

The Potential Application of Consent-by-Registration Statutes to Protected Expression

Maclain Conlin

The Due Process Clause of the Fourteenth Amendment grants corporations a substantive right to be free from civil claims in state court unless it is either incorporated in that state or the conduct at issue in the case occurred there. However, in Mallory v. Norfolk Southern Railway,[1] the Supreme Court held in a 5-4 decision last year that states can actually avoid this protection using a clever legal structure. In Mallory, Pennsylvania informed corporations which registered in its jurisdiction that, by receiving this registration, they were consenting to be sued in that state’s courts and forfeited their Fourteenth Amendment rights.[2] The Court found that because corporations consented to this requirement by maintaining their registration, they could not challenge the law, because it didn’t force them to give up their rights. It simply offered a benefit, and allowed them to waive their due process rights in order to receive it.

Although the Court did not address this concern in its opinion, Mallory may have a significant impact on how states regulate the First Amendment rights of corporations. Federal courts have often invalidated laws which impose direct legal penalties on private companies for protected speech.[3] However, under Mallory, if a state simply notified corporations that, by doing business in its jurisdiction, the company consented to its laws regulating corporate speech, those laws would theoretically not coerce corporations at all. Since they consented to the regulations and therefore forfeited their “legally protected interest,” they would lack standing to challenge the regulations. Given recent criticism from both sides of the aisle about the Court’s corporate speech precedents,[4] this argument is more timely than ever before. This essay explores the potential of such a claim by looking at the context and legal background of Mallory, comparing it with the Court’s corporate speech precedents, and finally offering a few predictions about how federal courts would likely rule on this claim if it came before them.

The Due Process Clause from Pennoyer to Mallory
First, in order to evaluate Mallory’s extent, we must examine the legal background which gave birth to it. To start at the very beginning, the Fourteenth Amendment was ratified in 1868 because states had not adequately protected certain rights which were seen as fundamental to “ordered liberty.”[5] One of these rights was the ancient English protection against being subjected to government authority without “due process of law.”

Due process of law, according to the Framers of the Fourteenth Amendment, meant at a bare minimum that any tribunal which presided over a citizen must be validly constituted-that is, the court must have jurisdiction over the case and be able to issue enforceable judgments.[6] At this point, due process also shifts into federalism concerns. The early nineteenth century had witnessed numerous disputes between states whenever they tried to extend their authority outside of their own jurisdiction, such as the Toledo War between Michigan and Ohio in the 1830s.[7] The Due Process Clause ensured that these overreaches by states would end, limiting the jurisdiction of state courts and executive officers to those who were actually present in the state or had minimal connections to it. In other words, if a state court in Georgia entered a judgment against someone who resided in Michigan for conduct that occurred in Pennsylvania, this would violate the Due Process Clause, because Georgia courts do not possess authority over such cases and would not, for the purposes of that judgment, be validly constituted. This principle was already ingrained in American law before 1868, but the Fourteenth Amendment made it a federal question, reviewable by the Supreme Court, to ensure uniformity.[8]

The Supreme Court, taking up this responsibility, has heard several key due process claims over the last century and a half relating to the territorial jurisdiction of state courts. In Pennoyer v. Neff,[9] the Court said state tribunals could not exercise jurisdiction over a person unless he was physically present in the state, and later on, in International Shoe Co. v. Washington,[10] the Court modified this standard slightly to say that a civil case must have minimum contacts with the forum such that a suit would not offend traditional notions of justice.

The case most relevant to the present question is Pennsylvania Fire Co. v. Gold Issue Mining Co. There, a suit was brought in a Missouri state court for a fact pattern that had nothing to do with the Show Me State. Nevertheless, the Court held that because the defendant, the Pennsylvania Fire Co., had done business in Missouri for ten years with the knowledge that the state allowed such suits, it had therefore consented to the court’s jurisdiction. Though it did not rely very much on history, Pennsylvania Fire Co. was also part of a larger tradition of allowing states to impose conditions on corporate registration[11] pursuant to their sovereign “power to exclude.”[12]

Pennsylvania Fire Co. was decided in 1917, but it remains good law, and was applied by the Court in Mallory last year to a very similar set of facts. Robert Mallory, an employee at Norfolk Southern Railway, alleged that he had been exposed to carcinogens while on the job between 1988 and 2005. Even though Mallory was a resident of Virginia, his alleged exposure had occurred in Ohio and Virginia, and Norfolk Southern Railway was headquartered in Virginia, Mallory brought suit against his former employer in Pennsylvania, presumably because that state’s courts are known for being friendly to civil plaintiffs.[13] Norfolk Southern Railway objected to the suit, arguing that Mallory’s choice of Pennsylvania as a forum violated its rights under the Due Process Clause of the Fourteenth Amendment, but the Court rejected this argument. In a 5-4 opinion (with portions that only represented a four-justice plurality) that scrambled normal ideological lines, Justice Gorsuch upheld Pennsylvania Fire Co. Pennsylvania law required, as a prerequisite for registration in the state, that companies consent to suits under general jurisdiction, which do not require any special connection to the state to be heard. By securing this registration with knowledge of its “consequences,”[14] Norfolk Southern Railway had “accept[ed] an in-state benefit with jurisdictional strings attached…”[15] Although states could not impose this kind of liability by force, Pennsylvania had not done so. It had used a carrot, not a stick.

Justice Jackson filed a four-page concurrence which helped to flesh out the deeper issues lying beneath the case. As she saw it, the right to be free from the sort of suit Norfolk Southern Railway was facing is an “individual, waivable constitutional right.”[16]

“In other areas of the law,” she continued, “we permit States to ask defendants to waive individual rights and safeguards….Moreover, when defendants do so, we respect that waiver decision and hold them to that choice, even though the government could not have otherwise bypassed the rules and procedures those rights protect.”[17]

To hold that Pennsylvania Fire Co. had a right to be free from suits even when it was not subject to legal coercion, wrote Justice Jackson, would place this particular due process right on a “pedestal.”[18]

In her dissent, however, Justice Barrett did not agree with this approach.
Pennsylvania’s law, she wrote, “circumvent[ed] constitutional limits”[19] on government power. Since permitting its execution would allow states to evade the spirit of the Due Process Clause by “manufactur[ing]”[20] consent, in her view the law “might as well”[21] have “overruled” constitutional text and therefore should be invalidated. Substance, not formality, was the stated concern of the dissenting Justices.

The Court’s Corporate Speech Precedents
When political figures discuss the free speech rights of corporations, they usually begin by either criticizing or praising the Supreme Court’s decision in Citizens United v. FEC, which invalidated portions of a federal campaign finance law. But Citizens United was simply an application of older precedents. While important, it is not the fulcrum of corporate speech rights any more than June Medical Services v. Russo[22] outranked Roe v. Wade[23] in the field of abortion law.

Rather, the Supreme Court’s decision in First Nat’l Bank of Boston v. Bellotti,[24] is the foundational case regarding corporations’ First Amendment rights. Bellotti dealt with a Massachusetts law that prohibited corporations from donating to ballot initiatives unless the company’s own business interests were directly affected. In a 5-4 decision delivered by Justice Powell, the Court held that speech cannot be prohibited on the basis of the speaker’s identity,[25] rendering the statute unconstitutional. In practice, this case established that corporations have the same free speech rights as individual citizens, and cannot be limited to addressing only those issues which the state views as pertinent to the company’s mission.

The expansive view of corporate free speech rights articulated in Bellotti has received both criticism and support from originalist scholars. In his dissent, Justice Rehnquist urged the Court to be cautious before making such sweeping claims given that the Founding generation thought free speech rights were limited to “natural persons,” not necessarily legally constructed entities like corporations. This argument has been echoed by more recent thinkers including Ryan Newman[26] and John Paul Stevens.[27] On the other hand, Justice Scalia, one of the intellectual founders of originalism, asserted that corporations possessed full free speech rights because they were composed of rights-bearing individuals.[28]

Tying these strands of law together
On March 3, 2024, the Eleventh Circuit struck down a Florida law which forbade companies from mandating employee training sessions that advocated for racial discrimination. Since the law directly penalized corporations for the content of their speech, Judge Grant reasoned in her opinion, it violated the First Amendment. But consider an alternative scenario. What if Florida, instead of unilaterally imposing this requirement on private companies, made consenting to it a precondition for corporations to register in Florida?

Suddenly, the calculus shifts.

In their inevitable challenge to such a requirement, corporations would likely make three points: first, that this law would render both the Eleventh Circuit’s opinion and the Supreme Court’s corporate speech decisions unenforceable; second, that due process and freedom of speech are in separate categories of rights that require distinct treatment; and third, that denying companies the legal status of registration substantially burdens their speech. I will take each of these objections in turn, Summa-style, examining their strengths and weaknesses.

While the first objection is undoubtedly strong, it also has serious flaws. Most importantly, Justice Barrett made precisely the same argument in Mallory, writing that consent-by-registration statutes enable states to effectively disregard constitutional rights. The majority rejected this concern. While it may seem odd that what looks like a technicality could potentially erode a substantive decision, it is not entirely without precedent. In Jackson v. Whole Woman’s Health, the Court allowed the enforcement of a pre-viability abortion ban prior to Dobbs because enjoining the law (which was enforced by private actors, not the state) would violate a higher constitutional principle. Moreover, on the substance of the claim itself, the state could make a plausible argument that such a law would not even evade the spirit of the Court’s decisions. Individuals can voluntarily barter away their constitutional rights in other cases to obtain a benefit, as when parents agree to limit their childrens’ free speech rights so that they may attend private school.

The second point has merit, as the Mallory majority constantly emphasized the importance of how consent fits into the unique “due process” framework. However, the freedom of speech is also a due process right,[29] and is a procedural protection.[30] It is hard to see why these two rights, both of which the Court has described as essential to justice and liberty, should have such different waiver requirements. Both flow from the exact same sentence in the Constitution, after all.[31] While it is true that the Court has often provided greater protection to social rights than economic rights,[32] it is unclear how this position can be reconciled with the plain text of the Due Process Clause, which makes no such distinction.

The final objection is formidable, and depending on the judicial philosophy of the assembled appellate panel, could result in the invalidation of any such law. In other contexts, such as the Free Exercise Clause, the denial of government benefits, including unemployment compensation, has been deemed sufficient to violate the Constitution as a “substantial burden” on religious liberty.[33] Denying a corporation access to a state’s markets would seem to go even further. The state would need to demonstrate why Mallory’s reasoning about the difference between coercion and the conditioning of special privileges would allow the imposition of speech requirements. One potential response could be to point to the Court’s precedents upholding the denial of certain government benefits out of concern for the messages those benefits will be used to support.[34]

Another way to alleviate the coercion concern would be to specify that the regulations only apply to corporations which obtain their registration after its enactment, rather than imposing new restrictions on companies that are already present.

How this legal question fits into contemporary politics
Since Citizens United was decided, there has been a major political realignment regarding the regulation of corporations. While conservatives once adhered to a rigid separation between market and state, they have recently become much more open to imposing legal requirements on large companies.[35] At a recent panel, Senator J.D. Vance of Ohio, one of the leaders of the Republican Party’s populist wing, made headlines when he remarked that “[t]here is no meaningful distinction between the public and the private sector in the United States of America.”[36] Even more traditional conservative thinkers, such as Senator Marco Rubio, have eschewed the free-market label in favor of “Common Good Capitalism.”[37]

Part of the reason for this shift is that large corporations, which were once seen by conservatives as citadels of traditional American values, have started to actively promote progressive social views in the past few decades.[38] Moreover, in using their economic clout to advocate for these positions, they have inevitably restricted opposing conservative views, especially on social media.[39] Many on the Right now believe that it is time to “limit”[40] the power of corporations to “upend” what they see as “the foundational moral and political norms of the American nation…”[41]

This transformation in theory has led to changes in policy. On this issue, Florida has taken the lead among conservative states, enacting numerous laws in the past three years designed to “counter the [political] influence of corporations,”[42] including statutes requiring viewpoint neutrality in social media platforms’ content moderation policies,[43] limiting what companies can say in mandatory employee training sessions (discussed at supra page 7),[44] and taking legal privileges away from corporations seen as having too much power in state politics.[45]

Unfortunately for Florida, these laws have not fared well in federal court.[46] Their provisions targeting social media platforms and employee training sessions have both been struck down by fairly conservative panels on the Eleventh Circuit, and while the dissolution of Disney’s Reedy Creek Improvement District has survived a trial court decision, that preliminary ruling will be appealed.

Although the Sunshine State might ultimately prevail on these issues before the Supreme Court, the odds are not in its favor. Under the Bellotti regime, corporations possess a broad right to influence public affairs even if they do not impact their business interests, and any legal constraints upon that right are disfavored. Thus, conservative states have a strong incentive to research the Court’s precedents regarding consent-by-registration statutes, and evaluate whether or not they represent a plausible way of limiting corporate power over social change without using coercion.

It is possible that progressives may also choose to pursue such policies for independent reasons. To begin with, the Left has never made its peace with Citizens United, and as its attempts to reverse it by constitutional amendment have repeatedly failed, it might seek to undermine the ruling’s effects at the state level through attaching limitations on campaign contributions to business registration. Moreover, social liberals have been very concerned by the Court’s holding in 303 Creative v. Elenis[47] that private business owners can decline to create curated items for same-sex weddings if doing so would express a message they disagree with. It is possible that progressive states will seek to find a way around this ruling by conditioning business registration on universal adherence to the state’s public accommodations laws.

When the Supreme Court took up Mallory v. Norfolk Southern Railway, its decision was not covered by front-page headlines or breaking news reports. The case’s following was probably limited to law professors and their reluctant students. But as with Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[48] sometimes it is the decisions which are ignored by the public that will have the greatest impact on their daily lives. To be clear, I take no position on whether the kind of law described in this paper would actually be constitutional. But as the Mallory majority left this question open, it deserves serious investigation by legal scholars from across the ideological spectrum.

Works Cited

[1] 600 U.S. 122 (2023).
[2] Mallory, Slip Opinion at 23, n. 11 (“Norfolk Southern consented to suit in Pennsylvania.”).
[3] See, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
[4] See Josh Hawley, Hawley Introduces Bill to Keep Corporate America’s Dollars out of U.S. Politics, Hawley.Senate.Gov, October 31, 2023,, accessed March 24, 2024; also Lauren Sforza, Democrats introduce constitutional amendment to reverse Citizens United campaign finance ruling, The Hill, January 19, 2023,, accessed March 24, 2024.
[5] See Palko v. Connecticut, 302 U.S. 319, 325 (1937).
[6] See Stephen Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1298 (2017) (“[The Fourteenth Amendment]…requires jurisdiction, full stop. Jurisdiction is what makes the process lawful, what gives the court legal power to take away property or liberty. A judgment without jurisdiction is void, a piece of ‘waste paper.’ And taking away someone’s property or liberty based on a piece of waste paper is, if anything is, a deprivation without due process of law.”).
[7] Id. at 1256.
[8] Id. at 1288.
[9] 95 U.S. 714 (1878).
[10] 326 U.S. 310 (1945).
[11] See generally Jack Fitzhenry, A Potential Rebirth of the Primary Role of Territorial Limitations on State Court Jurisdiction: Mallory v. Norfolk Southern Railway, 37 Notre Dame J.L. Ethics & Pub. Pol’y Blog 702 (2023).
[12] See Arizona v. United States, 567 U.S. 387, 417 (2012), Scalia, J., dissenting.
[13] Brief Amicus Curiae of Virginia, et al. in Mallory v. Norfolk Southern Railway, 600 U.S. 122 (2023), p. 4 (“Despite this dispute’s strong connection with Virginia, and lack of any connection to Pennsylvania, Mallory filed suit in the Philadelphia Court of Common Pleas, presumably because of that court’s reputation as a plaintiff-friendly forum.”).
[14] Mallory, Slip Opinion at 21.
[15] Id. at 23.
[16] Mallory, Jackson, J., concurring, Slip Opinion at 1.
[17] Id. at 3.
[18] Id.
[19] Mallory, Barrett, J., dissenting, Slip Opinion at 1.
[20] Id.
[21] Id.
[22] 591 U.S. _ (2020).
[23] 410 U.S. 113 (1973).
[24] 435 U.S. 765 (1978).
[25] Bellotti at 777 (the “inherent worth of…speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”).
[26] See Ryan Newman, Corporate Captains of the Woke Revolution, 27 Tex. Rev. L. & Pol. 663 (2023). Newman has taken a more centrist approach than Stevens did, agreeing that corporations have First Amendment rights but arguing that those rights are limited to the stated purposes in their articles of incorporation, as their freedom of speech derives solely from the rights of their shareholders.
[27] See Citizens United, Stevens, J., concurring in part and dissenting in part, at 394 (“In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it.”).
[28] See Citizens United, Scalia, J., concurring, at 392 (“[T]he individual person’s right to speak includes the right to speak in association with other individual persons….The association of individuals in a business corporation is no different…”).
[29] See Gitlow v. New York, 268 U.S. 652 (1925) (holding that the freedom of speech is protected from infringement by the states under the Due Process Clause).
[30] See Counterman v. Colorado, 600 U.S. 66 (2023) (holding that the First Amendment requires a heightened burden of proof in true threat prosecutions).
[31] See Const. Amend. XIV (“[N]or shall any state deprive any person of life, liberty, or property, without due process of law.”).
[32] Compare Kelo v. City of New London, 545 U.S. 469 (2005), with Obergefell v. Hodges, 576 U.S. 644 (2015).
[33] See Sherbert v. Verner, 374 U.S. 398 (1963).
[34] See generally National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), Scalia, J., concurring in the judgment.
[35] See Adrian Vermuele, Common Good Constitutionalism (2022) (a work by a leading conservative legal scholar advocating for state intervention in the economy).
[36] See Matthew Schmitz, J.D. Vance Is Right About Our Regime, Compact Magazine, May 18, 2023,,States%20of%20America.%E2%80%9D%20His%20remark%20drew%20outraged%20responses, accessed March 25, 2024.
[37] See Marco Rubio, Common Good Capitalism and the Dignity of Work, Public Discourse, November 5, 2019,, accessed March 25, 2024.
[38] Newman at 673-681.
[39] See, e.g., Missouri v. Biden, No. 23-30445 (5th Cir. 2023) (finding that social media platforms engaged in “very real censorship” of conservative posts related to the COVID-19 pandemic).
[40] Newman at 681.
[41] Id. at 668.
[42] Id. at 697.
[43] See Staff of the Florida Governor, Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech,, May 24, 2021,, accessed March 25, 2024.
[44] See Staff of the Florida Governor, Governor Ron DeSantis Signs Legislation to Protect Floridians from Discrimination and Woke Indoctrination,, April 22, 2022,, accessed March 25, 2024.
[45] See Staff of the Florida Governor, Governor Ron DeSantis Signs Legislation Ending the Corporate Kingdom of Walt Disney World,, February 27, 2023,, accessed March 25, 2024.
[46] See Josh Blackman, A Numbers Game: Who Would The Judicial Conference’s New Policy Help And Who Would It Hurt?, The Volokh Conspiracy, March 16, 2024,, accessed March 25, 2024 (satirically mentioning a federal district court that “issues an injunction every time [Governor] Ron DeSantis sneezes.”).
[47] 600 U.S. 570 (2023).
[48] 467 U.S. 837 (1984).

Speak Up: Speech First, Inc v. Sands, the Supreme Court, and Free Speech on College Campuses

Matt Berkery

College campuses – petri dishes of civic activism – have long served as epicenters of First Amendment exercise, providing a sprawling platform for demonstrations, displays of expression, and free speech. As the youth demographic (18-29) becomes increasingly consequential in U.S. elections, as demonstrated by its role in thwarting the “red wave” in the 2022 midterm,[1] First Amendment exercise by college students has more potential than ever to catalyze tangible change. But as political polarization erodes democratic institutions, unleashing a Pandora’s box of economic and social implications, the Supreme Court would be wise to take on a case that could make a decisive statement on college students’ First Amendment rights.

The genesis of student free speech precedent traces back to Tinker v. Des Moines (1969), in which the Supreme Court ruled that public school officials cannot censor student speech unless it causes a disruption to the learning environment.[2] This case came at a contentious time in American politics – with the Vietnam War at its height, trust in government nosedived as the vast majority of Americans opposed the war. In fact, the First Amendment question in Tinker v. Des Moines rested on students wearing armbands in symbolic solidarity with Vietnam combatants.[3] Subsequently, Healy v. James more definitively extended these liberties to college students, upholding the notion that prior restraint is detrimental to democracy.[4] Justice Lewis F. Powell Jr. contested in the majority opinion that the college classroom is a “marketplace of ideas,” and that the state-run Central Connecticut State College infringed on students’ First Amendment rights by refusing to acknowledge a campus chapter of Students for a Democratic Society.[5] Critically, this distinction only pertains to state-owned schools, since the First Amendment only
explicitly applies to the government and government actors.

The rulings in the five decades following Healy v. James have introduced several notable caveats to students’ First Amendment rights – particularly in the way of free speech – that mold the civic function of college campuses. For instance, Bethel v. Fraser (1986) ruled that lewd and obscene speech are not protected under the First Amendment,[6] and Hazelwood v. Kuhlmeier (1988) found that school officials have the right to prevent the publication of certain articles in school newspapers.[7] While the Court withheld the question as to whether these First Amendment parameters apply at the university level, myriad circuit courts have applied this standard to colleges and universities, sparking debate on the extent to which the Hazelwood precedent should apply to higher-education students.[8] In light of college
students taking to social media to exercise free speech, however, the framework provided by these cases has become somewhat antiquated.

With the rise in informal exertion of First Amendment rights by college students – whether on social media or through loosely organized campus demonstrations – has come an equally subtle response in the form of “bias response teams,” which the Supreme Court has yet to address. Most recently, the Speech First, Inc v. Sands (2023) case takes on these questions amid a backdrop of heightened political polarization, considering whether higher-education institutions hold the jurisdiction to “informally target disfavored speech.”[9] The case challenges Virginia Tech’s Bias Intervention and Response Team (BIRT), which responds to bias-related incidents by “serv[ing] as a sort of ‘air traffic control’ for bias-related complaints,”[10] as then-dean of students Byron Hughes articulated in a court filing. Speech First, the plaintiff in the case, sued Timothy Sands – the President of Virginia Tech – on the grounds that the BIRT violates students’ First Amendment rights. They also claimed the the “Informational Activities Policy” in Virginia Tech’s Student Code of Conduct violates students’ First Amendment Rights, given its restrictions on event advertisement, petition gathering, and informational material distribution.[11] The district court
declined to enjoin the enforcement of these policies, citing the tentative ground Speech First stood on – in the court order, the group provided no evidence that the school took any action in response to reports made to the bias team.[12] The district court also found that the group lacked standing and the right to a preliminary injunction, contending that its members had not been injured because the BIRT had no authority to discipline students for their speech.[13]

The U.S. Court of Appeals for the 4th Circuit upheld the district court’s decision. Writing the majority opinion, Senior Judge Motz affirmed that Virginia Tech’s bias response policies do not chill students’ speech because of their informal, non-disciplinary nature.[14] In its application of relevant standing requirements, the Fourth Circuit found that the bias policy failed to meet the two conditions of this test: plaintiffs suffering a “concrete injury even when the state has simply ‘chilled’ the right to engage in free speech and expression,”[15] and whether “the asserted chill ‘would likely deter a person of ordinary firmness from the exercise of First Amendment rights.’”[16] In doing so, the Fourth Circuit called on the
Bantam Books v Sullivan (1963) precedent, which held that a “state commission with no formal regulatory power violated the First Amendment when it ‘deliberately set out to achieve the suppression of publications’ through ‘informal sanctions,’ including the ‘threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation.’”[17] The Fourth Circuit made a distinction between
Virginia Tech’s policies and the government action in Bantam Books, finding that the BIRT didn’t hold the same “great coercive authority”[18] as the Massachusetts Attorney General in Bantam Books.[19]

In a dissenting opinion, Judge Wilkinson concluded that the BIRT’s policies took on intentionally nebulous language that could label virtually anything a bias incident.[20] He cited the probing nature of the BIRT and Virginia Tech’s insistent promotion of the group, citing a campaign that urged, “If you hear or see something that feels like a bias incident, statement, or expression, we encourage you to make a report.
In short, if you see something, say something!”[21] He also disputed the majority’s claim that the bias policy could not chill speech because it lacked formal punitive authority, and that the BIRT still entailed “collateral consequences” that would reasonably encroach on students’ First Amendment rights.[22]

Critically, this dissent calls into question the majority’s application of the Bantam Books precedent. Given the chasm in the circuit court in determining the constitutionality of bias policies, the use of Bantam Books as a constitutional bedrock not only erroneously supersedes First Amendment provisions, but also disregards the central point of the Bantam Books ruling – that subtle censorship poses an incontrovertible threat to free speech. In the words of Justice Brennan, who wrote the majority opinion in Bantam Books, “the freedoms of expression … are vulnerable to gravely damaging yet barely visible encroachments.”[23] Consequently, the comparisons made by Senior Judge Motz between the Bantam Books Commission and the BIRT are misleading, as they undermine the coerciveness of the BIRT and overstate the distinction between the two authorities. In Bantam Books, the Commission sent officers to visit publishers and discuss their obscene material and affirm their power to refer cases for prosecution.[24] In a similar fashion, the BIRT contacted individuals accused of bias and reminded students of their ability to refer bias incidents to disciplinary bodies, including local police.[25] The majority effectively undermined the coerciveness of the BIRT and discursively emboldens universities to use informal methods of punishing disfavored (“biased”) speech, further contributing to polarization across the political spectrum that jeopardizes First Amendment rights.

The Supreme Court has been conspicuously reluctant to rule on matters related to First Amendment rights on college campuses. Particularly with contemporary issues like bias response teams, as exhibited in Speech First, Inc v. Sands, the Supreme Court’s restraint only further imperils the First Amendment and allows polarization to fester.

In early March, the justices set aside the Speech First case, dismissing the case as moot, since the BIRT and other bias policies at Virginia Tech were terminated in 2023.[26] Without definitive Supreme Court precedent, “there will be a patchwork of First Amendment rights on college campuses,” as Clarence Thomas noted in a dissenting opinion on the dismissal of the Speech First case.[27] But Speech First isn’t
the only case to encompass such fundamental questions over First Amendment rights, and if granted a writ of certiorari, the questions raised by several other lower court cases could serve as the panacea for this patchwork.

For instance, in UWM Post v. Bd. of Regents of University of Wisconsin (1991), the court permanently barred the University of Wisconsin from enforcing a rule that students could be disciplined for behavior that was discriminatory for reasons including race, sex, religion, color, disability, sexual orientation, national origin and age.[28] The student newspaper argued that the policy was vague and overly broad, and the district court concurred, noting that “above all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[29] The court also dismissed the university’s argument that its definition of hate speech fell under the “fighting words” exception to the First Amendment.[30] A case of a similar nature, if moved up the ladder to the Supreme Court, could provide clarity on these issues.

Moreover, with its Leonard Law,[31] California serves as an important exception to the general rule that the First Amendment only applies to government entities. The statute bars private universities from sanctioning students for speech that would be protected by the First Amendment. The protection extends to speech “outside the campus or facility of a [school],”[32] which would presumably include social media.
Social media is an essential arena in any discussion of college campus free speech. Activism is often fostered through social media channels, where students share ideas and organize protests and rallies.

In 2021, the Supreme Court decided a case challenging a high school student’s right to off-campus free speech through social media. Mahanoy Area School District v. B.L. (2021),[33] better known as the “Snapchat cheerleader case,” revolved around a school disciplining a student for the content of her off-campus social media post. The cheerleader posted a Snapchat photo of herself flashing the middle finger, with the message “F_ school F_ softball F_ cheer F_ everything.”[34] The school punished the teen for negatively impacting morale. However, the Supreme Court ruled 8-1 that social media speech outside of school hours and when the student was not under the supervision of the school was protected speech under the First Amendment. We can presume implications for universities from Mahanoy v. B.L., but the court has yet to rule on a social-media free speech case of equal weight involving college students. In fact, the Supreme Court still grapples with issues of free speech on social media for the American public at large, particularly over the issue of Section 230 of the Communications Decency Act of 1996.[35]

The fragmented body of current free speech precedent provides little standardization in protecting First Amendment rights for students, and grapples with symptoms of political polarization, like bias response teams, that only further complicate this precedent. Tracing back to the Kent State shootings, in which the
Ohio National Guard opened fire on a crowd of college students protesting the Vietnam War, leaving four dead and nine injured, First Amendment rights have long endured governmental threats. In fact, given that “both parties have moved further away from the ideological center since the early 1970s,”[36] it can be
construed that polarization directly causes First Amendment rights to hang in the balance. As noted in Papish v. Board of Curators of Univ. of Mo., “State colleges and universities are not enclaves immune from the sweep of the First Amendment.”[37] Yet as individual incidents on college campuses snowball, mounting political tensions through “negative partisanship” and “pernicious polarization” that exacerbate gridlock in Congress, the Supreme Court faces a fundamental issue over the First Amendment: Does modern society require guardrails on free speech and, if so, who has the right to put them up?

In the absence of such clarity, college campuses have been experiencing a rise in rancor, especially since the outbreak of the Israel-Hamas war.. Passions continue to run high amid the conflict, and one person’s form of self-expression is another person’s incendiary comment. As colleges and even states try to address tensions, their actions threaten to encroach on First Amendment rights. New York University shut down a poetry reading that included work by a Palestinian academic who was killed weeks earlier in an Israeli airstrike. Texas Gov. Greg Abbott issued an executive order requiring schools to discipline what he described as “the sharp rise in antisemitic speech and acts on university campuses.”[38] And Berkeley,
where triumphant free-speech protests shaped opposition to the Vietnam War in 1964, is wrestling with the topic once again: The UC Regents are considering a proposed policy that would limit how campus departments could express opinions about contentious or complex issues on their publicly funded university websites. UC President Dr. Michael V. Drake articulated that “what we are facing today is
uncharted territory in many respects,” and that the UC Regents “are navigating it actively” – even if they “are not always perfect, [they] are learning and adjusting as [they] go.”[39]

Ultimately, the need for definitive precedent holds firm. The Supreme Court can no longer avoid the issue of First Amendment rights on college campuses: It’s time for the nation’s highest court to speak up.

Works Cited

  1. Kiesa, Abby. “Near Record-High Numbers of Young People Voted during the Midterms, Signaling a Possible Shift – or Exception – in Voting Trends.” The Conversation, May 15, 2023.
  2. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
  3. Id.
  4. Healy v. James, 408 U.S. 169 (1972).
  5. Id.
  6. Bethel School District v. Fraser, 478 U.S. 675 (1986).
  7. Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988).
  8. LaVigne, Christopher N. “Hazelwood v. Kuhlmeier and the University: Why the High School Standard Is Here to Stay.” FLASH: The Fordham Law Archive of Scholarship and History, n.d.,speech%20at%20colleges%20and%20universities.
  9. Hlr. “Speech First, Inc. v. Sands.” Harvard Law Review, February 11, 2024.
  10. Def.’s Opp’n to Prelim. Inj. Exhibit 1, Declaration of Byron Hughes, May 21, 2021.
  11. Speech First, Inc. v. Sands, 69 F.4th 184 (4th Cir. 2023)
  12. Id.
  13. Id.
  14. Brief In Response to Petition and Suggestion of Mootness , n.d. in Response to Petition.pdf.
  15. Speech First, Inc. v. Sands, supra (citing Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)).
  16. Speech First, Inc. v. Sands, supra (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005)).
  18. “Appellant, V. Timo.” U.S. Supreme Court , n.d.
  19. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963).
  20. Speech First, Inc.. Petition for Writ of Certiorari, August 14, 2023.
  21. “Speech First, Inc. v. Sands.” Legal Information Institute. Accessed April 14, 2024.
  22. Id.
  23. Bantam Books, Inc. v. Sullivan, supra.
  24. Id.
  25. Speech First, Inc. v. Sands, supra.
  26. Id.
  27. Id.
  28. UWM Post v. Board of Regents of U. of Wis., 774 F. Supp. 1163 (E.D. Wis. 1991).
  29. Id.
  30. Id.
  31. Cal. Educ. Code Sec. 48950 Cal. Educ. Code Sec. 66301 Cal. Educ. Code Sec. 94367
  32. Id.
  33. Mahanoy Area School District v. B. L., 594 U.S. _ (2021).
  34. Id.
  35. 47 U.S.C. § 230.
  36. DeSilver, Drew. “The Polarization in Today’s Congress Has Roots That Go Back Decades.” Pew Research Center, March 10, 2022.
  37. Papish v. Board of Curators of Univ. of Mo., 410 U. S. 667, 670.
  38. Dey, Sneha. “As Texas Students Clash over Israel-Hamas War, Gov. Greg Abbott Orders Colleges to Revise Free Speech Policies.” The Texas Tribune, March 27, 2024.
  39. Woolfolk, John. “University of California Grapples Anew with Free Speech Limits amid Israel-Hamas War Turmoil.” The Mercury News, March 21, 2024.

Protecting the First Amendment in Stopping Cop City: Unconstitutional Overbreadth in Georgia’s RICO Laws

James Swinehart

In March 2021, then-Atlanta Mayor Keisha Lance Bottoms alongside the Atlanta Police Foundation announced plans to build the Atlanta Public Safety Training Center—a massive $90 million police training facility boasting shooting ranges, explosives testing grounds, and a mock city for urban warfare training, bestowing the project with its popular nickname, “Cop City.” Since then, Cop City has been the subject of over two years of ongoing opposition from activists concerned about environmental degradation and racial discrimination. The project has destroyed 85 acres of Atlanta’s 300-acre Weelaunee Forest, a valuable public green space in one of Atlanta’s largest minority communities. Concerns have also surfaced over Cop City’s costly and expansive role in a continued push towards stronger policing in the city’s minority communities, a trend that has risen in Atlanta following the police-centered unrest that took place in the city in 2020. The collective opposition of these groups has come to form “Stop Cop City,” a decentralized movement that has gone on to wage two years of extensive and controversial protests in the Weelaunee Forest and the wider city of Atlanta.

Stop Cop City’s protests commenced following the announcement of Cop City in 2021, with the most notable example being the continued camping of activists in the wooded construction site. This specific form of protest has resulted in regular run-ins with the law over their occupation of the forest, some violent, with one early 2023 altercation resulting in the death of an activist and the wounding of a Georgia state trooper. The act further inflamed Stop Cop City protests, with several charges of arson and domestic terrorism arising after construction equipment for the project was set on fire by protestors. However, legal action against Stop Cop City was just beginning and would soon take a drastic turn.

On August 29, 2023, Georgia Attorney General Chris Carr released a legal indictment charging 61 Defend the Atlanta Forest protestors of racketeering under the state’s Racketeer Influenced and Corrupt Organizations statute, commonly referred to as RICO. Under Section 4 of Georgia’s RICO statute, racketeering is defined as an act of conspiracy between one or more people to maintain “interest in or control of any enterprise, real property, or personal property of any nature, including money,” or to “participate in any such enterprise through a pattern of racketeering activity.” Under Section 3 of the statute, the enterprises controlled by racketeers include property, interests, and institutions, and the racketeering activities can be any crime pertaining to the maintenance of the enterprise. The laws were originally made to target gang and mob activity, connecting individual crimes to larger group-motivated ones, but in the case of the Stop Cop City indictment, Carr maintained that Defend the Atlanta Forest protestors held an interest in stopping the building of Cop City, using racketeering activities including arson, domestic terrorism, and money laundering.

These allegations and the unique usage of RICO laws have elicited extensive debate. While RICO laws were originally made to target organized crime in the case of gangs and mobs, concerns have risen over the fact that Carr’s usage of RICO laws allows them to target protest movements as well. Critics of Carr’s decision hold that using RICO laws against protesting movements is a direct attack on the First Amendment right to peaceful protest, with Odette Yousef of NPR reporting that the indictment is “chilling First Amendment activity” amongst citizens of Atlanta. However, Carr maintains that the protests were not peaceful and deserve to be held accountable for the crimes that the “violent anarchists” committed. The use of RICO laws to go about this accountability in the event of a protest, though, is unprecedented for Georgia. 

Similar usage of federal RICO laws, however, took place when they were applied against anti-abortion protestors in the 1993 Supreme Court case National Organization of Women (NOW) v. Schiedler. The Court found that the protestors could be labeled as racketeers, claiming that the anti-abortion protestors acted in organized crime against the abortion clinics. The case effectively established that under federal RICO laws, unruly protesting could be a “predicate act” for racketeering, or an individual crime contributing to a larger one. Similar to the Stop Cop City case, this usage of RICO laws was controversial. University of Idaho JD Jillian Christensen argues that the usage of federal RICO laws against protesting represents a substantial “clash” between the gang and mob-related racketeering crimes that federal RICO laws were formed to target and their usage against protestors at the time of writing. She cites NOW as setting a precedent for RICO laws to be used beyond their intended purpose against the Black Lives Matter and Antifa movements of 2020 and perhaps future movements. In the greater context of constitutional law, I interpret Christensen’s arguments to claim that the usage of federal RICO laws against protesting represented unconstitutional overbreadth—a type of constitutional infringement that occurs when a statute is used substantially beyond its original intentions. By targeting protestors, federal RICO laws are being used substantially beyond their original intentions of targeting gang and mob-related crimes. By extension, this argument can be applied to the Stop Cop City indictment in Georgia.

When evaluating Attorney General Carr’s usage of Georgia’s RICO against Stop Cop City protestors, unconstitutional overbreadth is apparent and must be acknowledged. As shown in NOW v. Scheidler, overbroad usage of federal RICO laws allows for protesting to be used as a predicate act for racketeering, condemning any protests that can be connected to any sort of crime to the possibility of overbroad racketeering indictments. The same can be seen in Georgia, wherein overbroad usage of RICO laws allowed 61 protestors from Defend the Atlanta Forest to be indicted for racketeering on the grounds that they maintained interest in an act of protest against a political issue. But, as Yousef pointed out, where is the line drawn between the political issue of protesting and racketeering activities? And if this is allowed to happen with Stop Cop City protestors, what precedent does it set for future protests in Georgia? The result of unconstitutionally overbroad usage of RICO laws allows for the First Amendment right for groups to peacefully assemble and protest to be lumped into the criminal equivalent of gang activity if any crime is committed by an individual protestor. The line between protestor and racketeer, therefore, needs to be distinguished for the sake of protecting the right to protest in Georgia, as well as ensuring constitutionality in Carr’s usage of RICO laws. 

To effectively draw this line, I propose that Georgia’s courts should acknowledge the unconstitutionally overbroad use of RICO laws toward protestors in Carr’s Stop Cop City indictment and instead focus on criminalizing the individual crimes within the movement. As suggested by Christensen in addressing the overbroad use of federal RICO laws, courts can potentially achieve a greater distinction between protesting and racketeering by restricting protesting from being used as a predicate act in RICO cases. Protesting can be distinguished from racketeering through its constitutional definition and is generally defined as an act of speaking out in public forums, typically organized. A line could subsequently be drawn between acts of organized protesting and acts of organized crime associated with mobs or gangs. This would restrict RICO laws from unconstitutionally tying Stop Cop City protestors into the criminal equivalents of gang and mob-related crimes, while still allowing Carr to hold individual instances of unruly crime within the protests accountable. This would also set a healthy precedent for future protests, ensuring that future protests within the state are protected from overbroad usage of RICO laws while maintaining RICO laws’ strength against organized crime in the cases of mobs and gangs.

Going forward, the inherent overbreadth of Georgia’s RICO laws must also be acknowledged. As noted by the Atlanta Journal Constitution’s Tamar Hallerman, Georgia’s state-level RICO laws are notoriously broad and allow for even broader usage than federal ones. Georgia’s RICO laws accomplish this by containing more predicate acts to racketeering compared to federal ones, creating the potential for instances of unrelated individual crimes to be lumped into the larger crime of racketeering. This suggests that the overbroad usage of Carr in the case of his Stop Cop City indictment was facilitated by the laws’ broad nature. The overbroad nature of RICO statutes could therefore encourage overbroad usage. If overly broad RICO laws are allowing for acts of protest to be extended to the criminal equivalent of gang and mob-related organized crimes, then for the sake of the First Amendment, protesting’s usage as a predicate act for racketeering should be formally restricted from any RICO laws that allow it. NOW has already received negative treatment for the unconstitutional breadth it gave federal RICO laws. While the broad nature of RICO laws in the context of NOW has not yet been held to be unconstitutional at the time of writing, Georgia’s RICO laws are objectively broader than the national ones used in RICO, and therefore hold the potential to allow for greater overbreadth in their lumping of individual crimes into racketeering—an overbreadth already noted by the American Civil Liberties Union of Georgia’s condemnation of the laws’ “overbroad” usage. Prevailing evidence then dictates that Georgia’s RICO laws require closer observation of their constitutionally—and potentially, resolutions towards their overbreadth. A clear and beneficial resolution would be to formally exclude protesting from being a predicate act to racketeering, effectively ensuring constitutionality by ridding the laws of their overbreadth at the time of writing.

By acknowledging Carr’s overbroad usage of laws against Stop Cop City protesters and limiting further overbreadth in Georgia RICO laws, greater freedoms would be ensured for not only the Stop Cop City movement but for future protesting movements. Carr could argue that protests should be held accountable for group-motivated crimes, however, it can also be seen that his indictment effectively provides a pipeline for protesting to be charged as the criminal equivalent of gang activity. Limiting the usage of Georgia’s RICO laws would still hold protests accountable for individual crimes committed by unruly protestors—it would simply protect protesting and freedom of speech from being lumped in with racketeering crimes that should be reserved for gang and mob activity. Still, it must be noted that any movement against Georgia RICO laws at the time of writing would be highly controversial considering the current climate of their use against famous rappers and the nationally popularized indictment of former president Donald Trump. Nevertheless, acknowledging the unconstitutional overbreadth of Carr’s usage of RICO and limiting RICO’s use against protesting remains the best solution not only for the Stop Cop City movement, but for the future of First Amendment-protected demonstrations in Georgia as a whole.

Under the usage of state RICO laws at the time of writing, Georgians face difficult questions regarding their First Amendment rights for the future. The Stop Cop City movement has continued despite Attorney General Chris Carr’s broad indictment of the protestors, and as long as opposition to the planned police training facility continues, the rights of the peaceful protestors within that opposition ought to be protected. The evidence presented in the indictment overwhelmingly shows that the usage of Georgia’s RICO laws by Carr is unconstitutionally overbroad and that future usage of the laws should be restricted and returned to targeting mob and gang-related crimes. Indeed, one defendant in Carr’s Cop City indictment is challenging the constitutionality of the state RICO law at this time for many of the reasons outlined in this argument. Yousef warns that though the state’s conservative court is unlikely to consider the defendant’s claim, the court’s decision will set a national precedent for how RICO will be used against protestors in the future. For this reason, Georgia courts must find Carr’s usage of the state’s RICO statute unconstitutionally overbroad and reconsider how it should be used in the future—if not for the sake of Georgia, then for the sake of our nation’s Constitution.

“What about Me?”: How Upholding Non-Refoulement Principles Amidst Turbulent Pakistani-Afghani Relations Paves the Way for a More Peaceful Future

Ila Prabhuram

Legal Background

The rights of Afghani refugees in Pakistan are being infringed upon and violated, exacerbating tensions and ongoing ethnic conflicts in the country. On October 3, 2023, Pakistan’s government announced a significant enforcement effort targeting individuals residing in the country without proper documentation. The government indicated its intention to deport these individuals, which has caused concern among undocumented foreigners, including an estimated 1.7 million Afghan nationals. Pakistan’s Constitution does not explicitly include domestic asylum laws and procedures, but this lack of procedural protection does not absolve the state of its obligations to uphold the principle of non-refoulement under international human rights and customary law– which guarantees that no individual person should be returned to a country that has dangerous conditions in which the person would face torture, cruel or degrading treatment or punishment, or other irreparable harm, as Pakistan is in consistent collaboration with the United Nations’ member countries to ensure protection for those seeking safety in the country. Pakistan is a state party of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which furthers the necessity of the obligatory implementation of non-refoulement principles. Civic nationalism, which is where a shared identity is centered around the values of the state rather than being concentrated in individual ethnic identities, should serve as the basis for the enactment of laws centered around migrants, rather than the divisive notion of ethnic nationalism exemplified in the forced deportations of Afghan refugees and migrants.

Pakistan’s interim Interior Minister, Sarfraz Bugti, clarified that this crackdown is not specific to Afghans and will apply to migrants of all nationalities, even though the majority of migrants in Pakistan are of Afghan origin. The Pakistani government alleges that Taliban-affiliated militants, who traverse the shared 2,611-kilometer border between the two countries, have been responsible for attacks in Pakistan and often find refuge in Afghanistan. This move comes at a time of strained relations between Pakistan and its neighboring Taliban-led Afghanistan. These tensions stem from an ongoing dispute over what is known as the Durand Line, an international border inherited by Pakistan after the country gained its independence in 1947. The Afghani government has always refused to accept this agreement, attempting to seize Pakistan’s western provinces of Balochistan and Khyber Pakhtunkhwa over the last few decades. Pakistan has issued repatriation laws that forced residents illegally residing in Pakistan to leave by November 1, 2023.  

The Trial of Pakistani Prisoners of War, Pakistan v. India, Interim Measures, Order (1973) ICJ Rep 328, ICGJ 129, a case before the United Nations International Court of Justice, considered whether or not to grant Pakistan’s request for interim measures regarding the handling of the Pakistani prisoners of war that were currently detained in India. The court heard this case after Pakistan informed the court of its ongoing negotiations with India and requested that the Court postpone consideration of its request for interim measures in order to facilitate those negotiations. This case references the repatriation of prisoners of war and that the process should not be interrupted by the virtue of charges of genocide against a certain number of individuals detained in India. This court decision is what laid the framework for repatriation laws in Pakistan to be both utilized and weaponized against minority groups and prisoners residing in Pakistan. Ultimately, the repatriation laws at hand need to be amended in the context of the geopolitical situation unfolding in Pakistan, as the aforesaid Pakistani Prisoners of War case has made it all the more pertinent to reduce the number of Afghani refugees flowing into Pakistan while protecting the rights and security of existing Afghani refugees currently residing in Pakistan in accordance with non-refoulement laws in Pakistan, as this would help protect the existing resources and political stability in Pakistan while providing a safe haven for Afghan refugees.

Amidst the uptick of violence directed towards marginalized residents in Pakistan, there has been a push from external factors for the Pakistani government to create laws centered around mitigating the ongoing tensions between Pakistan’s government and Afghani residents through a constitutional standpoint, focusing on how the government can play a crucial role in protecting the civil liberties of its constituents to achieve a more peaceful, safe, and tolerant society. Such a result is pivotal for quelling unrest and civil disobedience that has been plaguing both Pakistan and Afghanistan for centuries. Because Pakistan has a government that is much closer to a liberal democracy than Afghanistan, adopting laws promoting civic nationalism, where a shared identity is centered around the values of the state rather than being concentrated in individual ethnic identities, is a viable solution. Quelling these ethnic conflicts would allow the Pakistani government to perpetuate non-refoulement laws that protect Afghani refugees from returning to a conflict-ridden state while limiting further immigration in an effort to preserve Pakistani resources and political stability. 

The History and Legality of Non-Refoulement and Forced Removal of Residents 

To fully understand the geopolitical context of this issue, it is important to consider the history and legality of repatriation laws and how certain countries have weaponized the ability to forcefully remove residents. Repatriation laws, also known as the exercise of the right of return, is the personal right of a refugee or prisoner of war to return to their country of nationality due to specific circumstances rooted in various international, human rights, and customary international law instruments, which bears similarities to the principle of non-refoulement under international human rights law. This principle is expected to apply to all immigrants at all times, regardless of their citizenship or residency status, and this principle is explicitly delineated in the CAT and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED). Non-refoulement laws are implemented without any exception, and it applies wherever a State exercises jurisdiction or effective control, even when it is outside of that particular State’s territory. 

One case in particular that references the usage of non-refoulement laws and its significance regarding migrants whose residency status is in question is the COT15 v. Minister for Immigration and Border Protection and Migration Review Tribunal Appeal decision. The case centered around an Ethnic Hazar from Afghanistan whose family resided in Pakistan and whose subclass 101 visa (which allows a dependent child to enter Australia to live with their parents that are Australian citizens or permanent residents) under the Migration Act of 1958 was canceled. This was because his wife applied for a subclass 309 (Partner) visa that violated the statutory VISA requirements stating that the applicant did not have a spouse or a de-facto partner. The applicant argued that, as an Afghan Hazara with family in Pakistan, being forced to return to Afghanistan would place him and his family in constant danger and fearing kidnapping, shootings, or bombings by Islamic terrorists and cited obligations under Australia’s Convention on the Rights of the Child and Article 23 of the International Covenant on Civil and Political Rights relating to family unity and the non-refoulement obligations (a person should not be returned to a country where they faced imminent harm or danger) under the Convention Relating to the Status of Refugees. 

It is pertinent to consider the rights of individuals who are seeking asylum, regardless of their citizenship status. In Afghan Asylum Seeker v Federal Office for Migration and Refugees, Decision, 13 A 1294/14.A, ILDC 2387 (DE 2014), 15th September 2014, Germany; North Rine-Westphalia; Higher Administrative Court [OVG], an Afghan citizen applied for international protection in Germany and the asylum authority rejected his application; the applicant filed an appeal but this was rejected. The complaint argued that his right to be heard was violated as German consular officials did not question Afghan witnesses within Afghanistan as part of the evidence-gathering process. Ultimately, the core issues at hand were whether or not the right to be heard required the asylum authority to conduct witness interviews on the territory as part of its evidence gathering in an asylum application process, demonstrating how the rights of minority residents and those residing in a particular area are often overlooked if the individual lacks proper documentation, even in the context of basic human rights.

The Danger of Refoulement

The government of Pakistan has recently decided that all of the foreigners currently residing in Pakistan illegally (without valid documentation or those who have overstayed their visas) will be forcefully returned to their country of origin in a “safe and dignified manner.” This process, however, is not exempt under the mandatory human rights principle of non-refoulement. Furthermore, the process of voluntary return will continue, and the illegal foreigners returning voluntarily to their country of origin will not be arrested or detained; the process of returning illegal foreigners is said to be carried out in a ‘smooth and transparent manner,’ but any form of resistance or exploitation by the targeted individual(s) will be reported to authorities who are then at full discretion to take whatever measures they deem necessary in the name of repatriation. This blatant disregard for non-refoulement principles is extremely dangerous, as the individual human rights and protection of the Afghan immigrants are gravely compromised when they are forcefully sent to a country riddled with conflict and violence. Halting the deportations of Afghan nationals following the Taliban takeover and waiting for the human rights situation to level out in Afghanistan would allow the safe and dignified returns of Afghan immigrants. 

As per the appeal in COT15: although it is explicitly stated in the Pakistani Constitution, non-refoulement should be enforced for all Afghan refugees currently residing in Pakistan. Pakistan should stop all forced returns and continue to host Afghan nationals who fled for safety. The government must also ensure their full access to procedures where their individual human rights protection needs and their need for effective protection in line with international human rights and refugee standards, are fully assessed. On the basis of civic nationalism, the case of COT15 v. Minister for Immigration and Border Protection and Migration Review Tribunal was incorrectly decided; the appeal should not have been dismissed, as individual rights should be constitutionally protected in accordance with non-refoulement principles. Moreover, using civic nationalism as a basis of constitutionality bars cruel and unusual punishments and methods of torture inflicted upon those residing illegally in the country. Ultimately, in order to sustain political stability and maintain a level of human rights protection among Afghan migrants residing in Afghanistan, the Pakistani government must adhere to the principles of non-refoulement in accordance with the United Nations, as a State party, and put forth repatriation laws in practice in an effort to preserve the individual human rights of those seeking asylum.

Sahelian Storms: Evaluating Host State Mali’s Reacquisition of French Bases- Examining Mali-France Defense Treaties, ECOWAS Court Decisions, and the AfCFTA Perspective

Guest Contributor Ibrahim Ati

Echoing from the blue Tuareg, inhabitants of the Sahara and its deserts for centuries, comes a timeless proverb: ‘Ihanay amghar awar ihiniy alyad ibdadane.‘ In translation, it reveals: ‘Seated, an elder sees farther than a youth standing.’ This profound wisdom, deeply ingrained in Sahel’s dunes and culture, acts as a compass under the blazing sun, offering vision and perspective through the formidable storms furiously blowing over the region.


With two coups in Mali (August 2020 and May 2021), two in Burkina Faso (January and September 2022), one in Guinea (September 2021), and the latest in Niger (July 2023), the Sahel is in a period of intense reflection and action, having witnessed nine military coups in four years. Amidst these changes, on September 16, 2023, the new governments of Burkina Faso, Mali, and Niger, turned a new leaf in their collective history by signing the Liptako-Gourma Charter, inaugurating the Alliance of Sahel States to fortify security and deepen regional integration among the three nations.

The region, known for its abundant raw materials and energy reserves, has not just experienced a disruption of its political status quo but has also been thrust into a critical reevaluation of international agreements, international trade commitments, and traditional approaches of dispute resolution. These political upheavals have ignited a widespread rejection of French colonial legacies and prompted sanctions from regional blocs and international entities cutting across economic, financial, military, and political spheres.

This military recalibration has influenced a wave of constitutional reforms and revisions across a variety of international arrangements. A key outcome is the relegation of French from its former status as the official language in constitutions. Currently, the International Organization of the Francophonie (IOF) encompasses 88 member states and governments, yet, as of December 2023, Niger and the IOF have officially suspended their cooperation, highlighting the shifting dynamics of regional affiliations and cultural identity. This change contrasts with the historical roots of the IOF, originally established as the Agency of Cultural and Technical Cooperation in Niamey, Niger on March 20, 1970.

The intensified collaboration with the French military to combat insurgents in the Sahel following the start of Operation Serval in 2013 has been critically reevaluated by the region’s new administrations. The growing discontentment incited a collective disengagement from French ties, evidenced by cancellation of military pacts, insistence on French troop withdrawal, prohibition of French media, and even the expulsion of French diplomats. The three countries have also simultaneously denounced their bilateral fiscal agreements with France, first established in 1972 to prevent double taxation. This departure was marred by conflict and contention, marking a significant shift from the traditional amicable Franco-African legal and economic ties, with profound repercussions on international legal frameworks, diplomatic and trade disputes.

This analysis seeks to consider these events through the prism of international law, beginning with a judicial review of the imposed sanctions and the legal status of foreign military bases following their retake. Additionally, the narrative extends to the evolving legal landscape influenced by the African Continental Free Trade Area (AfCFTA), with a focus on pioneering legal doctrine on trade and the Sahel monetary union.

The objective is to offer an analysis of the legal developments in the region and of the wide-ranging impacts these changes have, not just within the Sahel but also in the global arena of international dispute resolution. The discourse will highlight the nuanced forum issues at play, considering traditional legal avenues and transnational comparison of emerging regional trade agreements.

Decade of Military Collaboration: Contextualizing French Operations and Bases Reclamation in Mali in the Wake of Bilateral Agreements’ Termination

The recent reclamation of Kidal by the new Malian government in November 2023 — a crucial area of rebellion lost in May 2014 — along with other northern territories, coinciding with the departure of French military contingents, potentially prompts questions about sovereignty rights and legal status of erstwhile foreign military bases upon withdrawal of consent. Central to understanding this situation is the nature of French military operations in Mali, undertaken with the consent of the Malian government to combat insurgencies. International law recognizes the legitimacy of foreign interventions, provided they are requested by the host government, reflecting the State’s sovereign authority. This concept is affirmed in the International Court of Justice’s (ICJ) ruling in “Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America)” on 27 June 1986 (para. 246), which acknowledges the acceptability of interventions at a government’s request, specifically highlighted by the phrase “intervention, which is already allowable at the request of the government of a State.”

Additionally, the United Nations International Law Commission (ILC), in its 1979 Yearbook (Volume II, 2nd part, pg. 112, para. 11), categorically affirms that state consent is a fundamental prerequisite for legitimizing foreign military interventions. This consent must be “valid(…), clearly established, really expressed, internationally attributable to the State and anterior to the commission of the act to which it refers.” This principle is further reinforced and elaborated in the case “Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)” adjudicated by the ICJ on 19th December 2005, reinforcing the unequivocal State’s right and power to withdraw or annul its consent, thereby altering the initial legal legitimacy of any ongoing foreign military operations. Mali’s withdrawal of its consent was valid under the international law scope. 

Following the withdrawal, the military installations, previously under foreign control for nearly a decade, have been repossessed by Mali. A scrutiny of pertinent international agreements indicates that a significant dispute raised by France against Mali, particularly on potential expropriation grounds, appears improbable. 

Moreover, the legal reversion of these bases to Mali is likely to be affirmed without further recourse to international tribunals to settle the issue, as is easily demonstrated per se by looking at the agreements governing French military engagement in Mali and pre-existing international law. Two key bilateral agreements frame the contours of this relationship: the “Décret n° 2013-364 du 29 avril 2013” and “Décret n° 2016-1565 du 21 novembre 2016,” representing formal, ratified legal commitments between Mali and France, setting out terms for military cooperation and post-operation protocols. They detailed operational norms, rights, and responsibilities, forming a binding legal framework. In the context of international law, as illustrated by the Nicaragua case and principles set forth by the UN ILC, the legality of the French military’s presence for operations in Mali, grounded in bilateral consent, is clear. These operations, as per established international norms, were initially valid. Note, however, that central to this legal structure is Article 8 of the “Décret n° 2013-364,” mandating the return of all facilities used by French forces to Mali upon the mission’s end. Concurrently, Article 11 of the decree prescribes that any disputes arising from the decree’s implementation or interpretation are to be resolved diplomatically, preferring bilateral negotiations and effectively curbing the potential involvement of international tribunals. In a similar vein, the latter “Décret n° 2016-1565” in its Article 24, delineates an internal dispute resolution mechanism involving resolution through a monitoring committee. This decree further establishes primacy of bilateral engagement in addressing the treaty disagreements, opposing external tribunal mandates. 

Clearly, then, the reversion of ownership to Mali is well-grounded within the legal frameworks governing Mali’s cooperation with France. When Mali revoked consent for the continued French military operations, its withdrawal was consistent with the “Armed Activities” precedent which allowed for Mali’s reclamation of the military bases, adhering to the bilateral possession terms. Consequently, the initiation, conduct, and eventual conclusion of French military operations in Mali, including the reversion of military installations to Malian control, seem to have been largely executed in compliance with international law and the specific terms of the Franco-Malian agreements. The initial consent and following withdrawal by the Malian government are likely to have legally governed these operations.

What would occur in the unlikely scenario that the French contemplate asserting expropriation claims for materials and assets lost during its unexpected military withdrawal? A more rigorous legal analysis would then be imperative. The initial phase of this analysis would involve a thorough examination of forum jurisdiction between the two States. Following this jurisdictional assessment, the focus would naturally progress to evaluating the merits of these hypothetical claims.

The principle of expropriation under international law is notably articulated in Chorzów Factory (Germany v. Poland), which mandates compensation for expropriation, and in CMS Gas Transmission Company v. The Argentine Republic, which further dissects expropriation in scenarios involving state and state-entity assets.

Although these precedents set the stage for understanding expropriation, the unique circumstances of military base reclamation by a sovereign state suggest that the direct applicability of such cases may differ in Mali’s context, where military installations are reclaimed under sovereign authority.

A preliminary review suggests that these claims might struggle to demonstrate strong grounding, considering the context and, above all, the content of the agreements between the two nations.

This decadal process, adhering to principles of sovereign consent, appears to align with international law, affirming the unanticipated yet legally sound transfer of control over military installations back to Mali.

This evolution not only mirrors shifts in Mali-France relations but also ties into larger regional frameworks like the Economic Community of West African States’ (ECOWAS) sanctions on Niger and the AfCFTA. Particularly, sanctions on Mali and Niger have catalyzed a move towards tighter integration among the Sahel’s emerging regimes, forming a collective front against ECOWAS’ measures. This unexpected drive towards unity challenges established structures and intersects with the AfCFTA’s ambitions, suggesting that sanctions may promote stronger regional alliances and reinforce oppositional attitudes. This complex landscape of geopolitical, legal, and economic transitions questions old alliances and highlights the necessity for this article to evaluate the impact of sanctions and the potential role of the AfCFTA as a new entity influencing regional integration and governance.

Regional Compliance and Enforcement: ECOWAS Court Affirms Trade and Customs Sanctions on Niger Amidst Growing Tensions

ECOWAS is a regional group representing 17% of the African continent and established by the Treaty of Lagos on May 28, 1975, acted promptly in response to the political turmoil in the region. ECOWAS’ primary objective is to achieve economic integration and collective self-sufficiency among members, forming a vital and essential trading bloc within the African Economic Community. In the wake of the July 2023 coup in Niger, ECOWAS, to enforce compliance, imposed severe sanctions, including the shutting down of borders and the halting of commercial and financial transactions with Niger, urging it to return to constitutional governance. Notably, Nigeria discontinued electricity supply to Niger, significantly cutting more than two-thirds of Niger’s energy consumption. Parallel to ECOWAS’ response, the European Union (EU) also implemented sanctions against Niger, internationalizing the response to the political crisis. These measures, intended to stabilize the region, have significantly affected trade and economic stability, bearing direct consequences on the lives of civilians as well. 

The ECOWAS Court of Justice, seated in Abuja, Nigeria, functions as the judicial arm of the Economic Community of West African States, established as per the Revised Treaty of 1993. Tasked with interpreting and implementing the Community’s treaties, protocols, and conventions, the Court exercises broad jurisdiction in various areas. It can review cases involving non-compliance with Community law, disputes related to the interpretation and application of Community acts, human rights violations and legality of Community laws and policies. 

In December 2023, the ECOWAS Court of Justice addressed two significant cases related to Niger in the sanctions’ aftermath imposed due to the coup d’état and the subsequent detention of Nigerien President Mohamed Bazoum.

On December 7, 2023, the Court heard the first case where Niger sought to challenge the sanctions’ legal basis. Niger argued for interim relief, contending that the sanctions were not only disproportionate but also discriminatory compared to the treatment of other ECOWAS States undergoing transitions, including Mali, Burkina Faso, and Guinea. Central to Niger’s argument was the issue of the admissibility of its plea, considering its origin from a government established just a few months post-coup and deemed illegitimate by many, as well as the urgent need to reevaluate the sanctions’ humanitarian impact. However, the Court dismissed the case, upholding that a regime born from an unconstitutional change, such as Niger’s military junta, lacked the standing to initiate proceedings in the Court, reinforcing ECOWAS’s commitment to constitutional legitimacy. 

On a consequential ruling on December 15, 2023, in the case “Mohamed Bazoum et 2 autres contre l’Etat du Niger” (ECW/CCJ/JUD/57/23), the Court addressed the human rights concerns of the detained President Bazoum. Relying on the Article 10-d as inserted in the Protocol of the Community Court of Justice of the Additional Protocol A/SP.1/01/05 of January 19, 2005, the Court decisively reaffirmed the illegitimacy of the military government and ordered the immediate release of President Bazoum, reinforcing its stance against unconstitutional changes within the ECOWAS. 

The Court’s decision, intended to reinstate constitutional governance by ordering President Bazoum’s release, unexpectedly aggravated the plight of Niger’s civilians. Maintaining sanctions on the military government deepened the nation’s hardship and economic situation.

Those sanctions compounded the adversities faced by the civilian population in Niger, already considered one of the poorest countries on the continent, escalating the crisis in the Sahel region. Judicial interventions, like the ones of ECOWAS, can bring unintended yet increased hardships, where attempts to fortify constitutional governance exacerbate the everyday crisis faced by civilians.

In the context of Niger, ECOWAS’ decision to impose sanctions, including the closure of borders and the suspension of vital transactions going way beyond the financial markets, also casts a spotlight on the strong tensions within regional trade and economic policies, particularly in relation to AfCFTA’s vision for a unified market. This scenario necessitates innovative analysis, encouraging a reassessment of the extent to which sanctions might compromise the broader ambitions for economic integration and seamless trade within Africa. Can the AfCFTA wield its legal authority to oversee regional bodies like ECOWAS, in pursuit of a consolidated market?

AfCFTA’s Free Trade Doctrine and New Dispute Mechanisms: A Potential Supranational Tool to Mitigate Sanctions—Novel Monetary Union Across Africa?

The AfCFTA, adopted on March 21, 2018 and operational since May 30, 2019, is an ambitious Free Trade Agreement aimed at establishing a unified market across Africa. With 54 African member states, its vision is to cultivate a single market for goods and services, facilitated by movement of persons to deepen economic integration of the African continent. The Sahelian governments may see a significant economic opportunity in the commitment to free trade and economic unity, especially as Guinea launches an unprecedented $20 billion project in iron ore, rail, and port development, poised to be the world’s largest mining venture. This free trade vision may also furnish an additional legal foundation for mitigating sanctions imposed by subregional entities, such as ECOWAS, within a larger and perhaps more receptive forum.

Members of the AfCFTA, these States can pursue recourse through dispute resolution mechanisms established in Article 20 of the Agreement, outlining settlement of disputes between State Parties, with formation of panels and an appellate body similar in structure to the dispute settlement system of the World Trade Organization (WTO). In this context, they could contend that those sanctions hinder their rights and responsibilities under the AfCFTA framework, designed to enhance intra-African trade and facilitate economic integration.

In the future, sanctioned African States may ambitiously argue that subregional sanctions conflict with AfCFTA provisions, disrupting the free movement of goods, services, and investment and contravening trade liberalization goals, thus harming both the sanctioned countries and AfCFTA’s broader objectives of African economic unity and integration.

While it’s still early to draw parallels between AfCFTA and the EU’s legal frameworks, even if initial similarities are apparent, AfCFTA shows promise in affecting regional entities like ECOWAS. Similarly to EU legal foundations, notably the Treaty on the Functioning of the European Union (TFEU), particularly Articles 26 and 28 establishing an internal market and prohibiting restrictions on trade among Member States, AfCFTA could require ECOWAS to realign its policies with wider African objectives of economic unity and liberalized trade, surpassing regional trade agreements in legal authority across Africa. 

This scenario would establish AfCFTA’s judicial review of sanctions imposed within Africa, where any measures taken by sub-regional groups should defer to the continent’s unified focus on free trade and economic integration, akin to how EU community law takes precedence over national laws under the principle of primacy, established in the Court of Justice of the European Union’s Costa v. ENEL case of July 15, 1964.

In a decisive stride towards more economic autonomy, the Sahelian Federation is also redefining regional monetary norms. The three countries have convened an economic commission, rumored to also forge the ‘Sahel’ currency, with a new gold-measured standard, poised to supplant the existing national currencies. This ambitious move, bolstered by the establishment of a stabilization fund and an investment bank, poses a direct challenge to the widely criticized Franc de la Communauté Financière Africaine (F.CFA) still being co-regulated by France with the Banque Centrale des États de l’Afrique de l’Ouest (BCEAO) and the Union Monétaire Ouest Africaine (UMOA) as partners. Interestingly, this bold step coincides with ECOWAS’ own intentions to gradually move away from the F.CFA, though the Sahelian Federation’s approach is more immediate and radical.

The AfCFTA now finds itself at a pivotal crossroads. It also faces the complex task of potentially arbitrating this significant monetary transition as part of its free continental trade duties. The crucial decision would lie in whether to align with ECOWAS’ traditional monetary policies or to endorse the Sahelian Federation’s progressive monetary reform. This goes beyond a mere currency change—it represents a critical juncture that could alter monetary disputes and significantly influence regional economic policies.

In this complex backdrop, the ECOWAS Court’s rejection of Niger’s appeal regarding the imposed sanctions also serves as a stark reminder for any new governments established post-coup d’état. The increasing influence of supranational legal systems such as ECOWAS, in matters of trade compliance and sanctions is a significant element to consider for the region’s future, even more with the increasing AfCFTA’s advocacy for free trade.

New Horizons

This development has added layers of complexity to the regional dispute resolution framework, sparking important discussions about where regional teamwork is headed and the proficiency of established mechanisms in managing transnational disputes. Indeed, the shift towards regional alliances, along with constitutional reforms and monetary union, indicates a strong move towards novel structures of governance and dispute resolution.

This collective stance is emblematic of a broader movement among the Sahelian States, which may redefine engagement with traditional regional bodies and external powers.

About the Author

Ibrahim Ati is a dual-educated legal professional with training in both civil and common law systems, having passed the New York Bar and graduated with an LL.M. in Alternative Dispute Resolution from the University of Southern California. Co-Chair of the Middle East region for the Young Institute for Transnational Arbitration, he is also one of the youngest members on the New York City Bar Association’s Arbitration and Professional Discipline Committee, and its youngest representative at the UNCITRAL sessions in the United Nations (New York). In addition to serving as Vice-Chair in the American Bar Association, Ibrahim Ati aspires to be among the new generation of leading international arbitrators, aiming to infuse the field with fresh perspectives and innovative approaches.

Sweet Home Alabama: Navigating Home Rule Status Through State Federalism

Justin Murdock


In the intricate mosaic of Alabama’s municipal governance, the echoes of the 1901 Constitution, etched in the tumultuous Jim Crow era, still reverberate through the corridors of legal power. This article navigates the complexities of the state’s non-Home Rule status and the implications of Dillon’s Rule, unraveling the intricate dynamic between municipal powers and taxation. This piece aims not just to dissect the challenges but to propose robust, precedent-backed alternatives to circumvent restrictive federal practices. 

Historical Context: The 1901 Constitution and Non-Home Rule Status

Alabama’s municipal tapestry is woven with threads from the 1901 Constitution, which cast a long shadow over the autonomy of local municipalities, entangling them in a web of legislative intricacies. Its enduring legacy includes the absence of Home Rule status, or the allocation of governing power to local municipalities. The National League of Cities only identifies 10 Home Rule states, stripping local municipalities of the freedom to enact and enforce ordinances independently. Instead, legislative power is concentrated in Alabama’s State Legislature, giving rise to over 977 amendments and the passage of municipal ordinances centrally. This has led to a convoluted regulatory landscape.

Alabama’s non-Home Rule status fundamentally restricts the autonomy of local governments, relegating them to a subordinate role in the broader state governance structure. The implications of this constitutional design ripple through various aspects of municipal governance, with taxation emerging as a focal point of contention.

Dillon’s Rule and Municipal Powers: A Historical Lens

Dillon’s Rule, named after Judge John Forrest Dillon, further complicates the challenges faced by Alabama municipalities. This doctrine dictates that local governments possess only those powers explicitly granted by the state, those necessarily implied, and those essential to the declared objects and purposes of the municipality. Historical decisions, such as Mobile v. Moog, 53 Ala. 561 (Ala. 1875) and Best v. Birmingham, 79 So. 113 (Ala. 1918), have set the stage for the challenges faced by local governments in Alabama, particularly in the realm of taxation.

In Mobile v. Moog, Justice Manning articulated the general rule that municipal corporations possess and can exercise only the powers explicitly granted or necessarily implied. This restrictive interpretation of municipal powers gained further traction in Best v. Birmingham, where the Alabama Supreme Court ruled that municipal corporations have no implied powers beyond taxation, leaving any outside powers to be pertinent to the creation of the corporation. The absence of explicit grants of power and a narrow interpretation of implied powers left municipalities in a precarious position, dependent on state-level approvals for even basic fiscal decisions.

The Nexus of Home Rule, Dillon’s Rule, and Taxation

The challenges arising from the intersection of non-Home Rule status, Dillon’s Rule, and taxation are most pronounced in the financial domain. Sources of revenue are tightly controlled by the State Legislature, as outlined in Section 104 of the Alabama Constitution. This provision prohibits the amendment or extension of the charter of any private or municipal corporation by the legislature.

The pertinent statutory authority for municipalities to tax businesses or trades is rooted in Title 11 Section 11-51-90 of the Alabama Code. Municipalities can only leverage this authority where not prohibited by the State Constitution or laws—yet, this implied power is constrained by Section 104 to levy taxes on corporations at the municipal level. Therefore, local governments are de facto dependent on state-issued amendments or approved legislation for changes to local property taxes. Even local property tax referendums must undergo a second vote by the entire state, exacerbating the challenges faced by local governments in generating revenue.

This intricate web of legal constraints forces local governments to rely on fees and charges, such as concealed pistol fees, vehicle registration fees, and court filing fees, to sustain their operations. In the Spring 2023 legislative session, state legislators passed roughly 60 bills pertaining to revenue generation in municipalities, exacerbating the reliance of government revenue on fines and fees rather than on taxes. In 2021 alone, the local property tax revenue per capita in the U.S. was $1,837, over triple of the revenue garnered from Alabama at $567. Conversely, the per capita local revenue from fees and general charges stood at $982 for the U.S., with Alabama significantly surpassing it at $1,346. Of the fees in Alabama, the favored methods are through vehicle registration and court filing fees, seen in the six bills introduced in the 2023 regular session. This reliance on a piecemeal revenue system, heavily intertwined with the criminal justice system in a relatively impoverished U.S. state (OTD 16.2% poverty rate), paints a fragile financial landscape for Alabama municipalities.

Precedent-Based Legal Alternatives

While striking down clauses related to Home Rule in the Constitution might be an arduous task, exploring alternatives grounded in legal precedent offers a pragmatic route for reform. The following proposals draw inspiration from successful models in other states, providing a blueprint for a successful municipal framework. Tackling both the issues of (1) restricted revenue growth and (2) federal municipal legal authority, this two-pronged solution aims to pragmatically rectify federal rights in Alabama:

Redefinition of Fees as Taxes: Leveraging Colorado’s TABOR Strategy for Alabama’s Home Rule Challenges

Taking from Colorado’s Taxpayer Bill of Rights (TABOR) strategy, the state could put in place limits on the revenue the state government can retain and spend. Although unsuccessful, the collection of medical provider fees known as Colorado Healthcare Affordability and Sustainability Enterprise (CHASE) fees was challenged in the Colorado Supreme Court on the basis that the imposition of hospital provider fees constituted a tax policy change under voter approval. Given the pervasiveness and proliferation of cumbersome fines and fees in Alabama, a TABOR model would allow greater discretion for Alabama citizens in the judicial process to assess the imposition of fees from criminal justice to vehicles. 

Colorado’s example demonstrates the effectiveness of this approach in lessening the impact of restrictive municipal fiscal regulations. By allowing appeals to certain fees under the framework of taxes in TABOR, this would allow for excess revenue to be directly returned to tax-paying citizens. Additionally, by allowing a vantage point to contest cumbersome fines and fees, citizens would have the ability to circumvent them without going directly through the state legislature to renege state-approved bills. Alabama’s adoption of such a strategy has the potential to navigate the intricacies of Home Rule challenges while strategically managing its fiscal landscape. Accordingly, by limiting the amount of revenue the state government can retain and spend, this would implicitly enable municipal powers to do more. 

Granting Autonomy to Select Cities: Manipulating California’s Municipal Charter Classifications

While Alabama municipalities have been sorted into various classes (1 through 8) based on population, this classification is specified only to appoint a council-manager government through the Council-Manager Act of 1982. This only serves as a liaison between the state and local level, not giving municipalities any concrete autonomy over specific local revenue issues. Addressing Alabama’s Home Rule challenges can find inspiration in California’s nuanced governance approach, where cities operate as either charter cities or general law cities. For instance, Los Angeles and San Francisco are prominent examples of charter cities, whereby through commissioning and drafting, they have state approval to exercise greater local autonomy. having adopted their own charters that bestow them with increased local autonomy. These charters allow these cities to tailor their governance structures, enact local ordinances, and manage affairs independently within the bounds of the law.

In contrast, general law cities in California, such as Fresno or Sacramento, operate under the state’s general laws without adopting specific charters. The distinction lies in the level of local autonomy granted—charter cities have broader powers defined by their charters, while general law cities operate under a more standardized framework outlined by state law. By considering the examples set by charter cities in California, Alabama can explore the feasibility of enabling municipalities to adopt charters, offering a legal avenue for increased local autonomy and flexibility in governance.


Alabama’s municipal governance stands at a crossroads, grappling with historical legacies and contemporary challenges. The historical context of the 1901 Constitution, coupled with the constraints imposed by Dillon’s Rule, creates a legal landscape that demands careful navigation. By drawing on legal precedents and successful models from other states, Alabama has the opportunity to craft innovative solutions that balance local autonomy with state oversight. Without upending the long-standing Constitution, legal alternatives through fees redefinition and municipal classifications enable cities greater autonomy and authority without infringing the rights of the state. Accordingly, this would help resolve fiscal restrictions and desperately-needed municipal aid and planning often left ignored or in stalemate.