Author: legalj

A Plea to Act in Good Faith: How Two State Laws Challenge Social Media Platforms’ Editorial Practices

Tori Tinsley

Recent controversy surrounding the constitutionality of two state laws regulating social media platforms reveals that modern technology is presenting unprecedented challenges for the legal system. Two laws passed in Texas and Florida in 2021, HB 20 and SB 7072 have raised questions about whether states can make laws that regulate social media platforms’ free speech policies. Tech advocacy groups Net Choice and Computer & Communications Industry Association filed a joint lawsuit against Texas and Florida, arguing that the states’ bills unconstitutionally violated first amendment protections for online platforms. The U.S. Court of Appeals for the Fifth Circuit vindicated Texas’ law, which prohibits social media platforms from engaging in viewpoint based censorship1 and requires platforms to be transparent in their policies. Contrarily, the U.S. Court of Appeals for the Eleventh Circuit struck down Florida’s law, which restricts platforms from unfairly censoring users and deplatforming political candidates. 

Despite the similarities in Texas’ HB 20 and Florida’s SB 7072, the courts have handed down two very different rulings. Because of this, both bills have now been brought to the attention of the Supreme Court–a move which The Washington Post claims will bring “the most controversial debates of the internet age to the country’s highest court.”1 While the Supreme Court has vacated the Texas case, there is no update as to whether the Court will hear the Florida one. 

But, a question currently pervading the legal sphere is: how do two courts rule differently on two nearly identical state bills? A look at the Fifth Circuit and Eleventh Circuit rulings reveal that differing legal interpretations of intermediate scrutiny and editorial discretion led to different outcomes for Texas and Florida’s legislation. As such, the rulings raise the following questions: to what extent do social media platforms have immunity in editorial discretion? And, do Texas and Florida have a legitimate state interest for regulating the free speech practices of social media platforms? 

Let us first address the question of editorial discretion. Section 230 of the United States Communications Decency Act is referenced in both the Fifth and Eleventh Circuit court cases. It grants online services immunity in how they choose to moderate their content. It reads: 

(1) No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. (2) No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

It is evident in both rulings that Section 230 of the United States Communications Decency Act has strong implications when determining the extent to which social media companies can exercise editorial discretion. In the Eleventh Circuit court opinion, the judges argued against Florida, claiming that a social media company’s “‘content-moderation’ decisions constitute protected exercises of editorial judgment.” In the court’s perspective, Florida’s law would restrict a platforms’ “content moderation” rights. Implied in the court’s argument is the expectation that social media platforms properly and fairly moderate content on their platforms. The court wrote:

The platform will have exercised editorial judgment in two key ways: First, the platform will have removed posts that violate its terms of service or community standards—for instance, those containing hate speech, pornography, or violent content…Second, it will have arranged available content by choosing how to prioritize and display posts—effectively selecting which users’ speech the viewer will see, and in what order, during any given visit to the site.

Florida and Texas find a problem with these two so-called exercises of editorial judgment: social media companies have unclear community standards and inconsistently “prioritize and display posts.” Recognizing this, the Fifth Circuit came to a conclusion contrary to the Eleventh Circuit: that corporations do not “have a freewheeling First Amendment right to censor what people say.”  

The good faith stipulation in Section 230 2(A) would be beneficial in clarifying the confusion surrounding editorial discretion. While the Fifth Circuit briefly referenced the “good faith” stipulation in Section 230, the Eleventh Circuit did not. According to the Congressional Research Service (CRS), Section 230 (1) offers online platforms immunity when providing content, but Section 230 (2) offers online platforms immunity when regulating content only when their regulation practices are conducted in good faith. Thus, the good faith stipulation is a limitation placed on social media platforms to ensure platforms engaged in fair and reasonable practices. Section 230 2(A) states that “no provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” If an action by a social media provider is not “taken in good faith,” then ought not the provider be held liable? 

A “good faith” test ought to be applied when determining whether a platform is properly exercising its editorial discretion. The fact that both Texas’ HB 20 and Florida’s SB 7072 articulate that social media companies are not currently engaging in good faith practices should call into question platforms’ editorial practices. SB 7072 states that “social media platforms that unfairly censor, shadow ban, deplatform, or apply post-prioritization algorithms to Florida candidates, Florida users, or Florida residents are not acting in good faith.” And, Texas’ HB 20 mentions that platforms should actively “make a good faith effort to evaluate the legality of the content or activity.” So, if platforms are engaging in bad faith practices by favoring some views over others and applying their policies unfairly, then this calls back into question a key consideration in the appellate court rulings: do states then have a legitimate interest in ensuring platforms act in good faith?

Florida and Texas argued that they had legitimate state interests in regulating social media platforms’ free speech policies, yet only Texas’ law was upheld by the Courts. Texas argued that it had a “fundamental interest in protecting the free exchange of ideas and information,” which the Fifth Circuit affirmed. Florida’s argument that it had “a substantial interest in protecting its residents from inconsistent and unfair actions by social media platforms,” however, was not a substantial reason for the Eleventh Circuit. The Eleventh Circuit upheld the decision of the district court, arguing that “there’s no legitimate—let alone substantial—governmental interest in leveling the expressive playing field.” Florida’s law, which aimed to ensure that social media companies treat conservatives and liberals fairly on their platforms, was considered unconstitutional.

In part, the district and appellate court rejected Florida’s claims to a substantial state interest since the bill was advertised by the state’s governor as an attack on big tech bias. As such, both courts came to the conclusion that the bill was nothing more than a scheme to advance conservative ideology. The Eleventh Circuit court claimed that the district court found “the entire bill was motivated by the state’s viewpoint-based purpose to defend conservatives’ speech from perceived liberal ‘big tech’ bias.” Both courts focused on the potential agenda behind the bill that they seemed to miss the relevance of the bill. 

Florida’s law held social media companies accountable for their unfair practices. So did Texas’ law. As the Fifth Circuit recognized, Texas’ law could “make censors think twice before removing speech from Platforms in a viewpoint-discriminatory manner.” Both HB20 and SB 7072 were aimed at preventing censorship, ensuring fairness, and maintaining transparency on social media platforms. When social media companies cannot ensure good faith practices and apply their own policies without discrimination, states should have a legitimate interest to intervene and ensure private companies treat their citizens’ viewpoints with equal dignity and respect. 

These two state laws have several implications for future congressional action, as the CRS notes. But there are also considerations for the Supreme Court. If the Florida case makes its way to the Supreme Court, justices will have to clarify what constitutes editorial judgment, what the apparent implications of Section 230 are, the relevance of the “good faith” clause, and whether states have a substantial interest in regulating the private sphere of online communications. As Supreme Court justices have noted in review of Texas’ HB 20, these issues concerning state regulations and digital speech rights are unprecedented “issues of great importance.”  

The Legality of Tattoo Discrimination in Employment

Leyuan Ma

Background

In recent years, tattoos have become increasingly popular as a form of body art in the United States. According to a 2019 survey, 30% of Americans have at least one tattoo, an increase from 21% in 2012. However, even as tattoos are now recognized as part of mainstream culture, many people are still judgmental towards tattoos due to their negative connotations, associating them with risky behavior, criminality, or gangs. As a result, people with tattoos are often concerned that their body art will hinder their chances of employment. Though a recent study argues that in practice “tattoos are not significantly associated with employment or earnings discrimination,” other research has shown that body art can be a source of employment discrimination, and individuals have indeed been dismissed from their jobs because of their tattoos.

Current Legislation

Is it legal for employers to discriminate against prospective or actual employees with tattoos? Currently, Title VII of the Civil Rights Act of 1964 protects employees and job applicants from employment discrimination based on race, color, religion, sex and national origin, but does not yet prohibit discrimination based on tattoos or other forms of body art. In addition, federal law allows employers to establish dress codes and grooming policies that require employees to cover up their tattoos in the workplace, as long as they are applied consistently and adhere to the Equal Employment Opportunity Commission’s  guidelines. For instance, employers can order all employees to cover up visible tattoos, but cannot apply such a rule only to males or people of a certain ethnicity.

On September 29th, 2022, New York City Councilman Shaun Abreu introduced a new bill that would amend New York’s administrative code and prohibit employment, housing, and public accommodations discrimination on the basis of having a tattoo. It would create an exception for employment and apprentice training programs in which covering a tattoo is a bona fide occupational qualification, a vocational qualification that is reasonably necessary to carrying out a particular job function in the normal operation of a business or apprentice training program, and where there exists no less discriminatory means of satisfying the qualification. The bill does allow for additional exceptions, but it does not specify what those might be in its current draft language. For instance, the bill may still permit employers to discriminate against employees and applicants with tattoos featuring hate speech. Currently, the bill has been referred by Council to the Committee on Civil and Human Rights. Though Abreu’s new bill is certainly a progressive step, unfortunately no existing legislation—federal, state, or municipal—prohibits the discrimination against people with tattoos in the workplace.

Does banning tattoos in the workplace violate the First Amendment?

The most powerful argument against tattoo discrimination is that it is a violation of Americans’ First Amendment rights. According to Councilman Abreu, “tattoos are a form of personal self-expression that, too often, incur bias and discrimination from employers, landlords and service providers.” Tattooing can be seen as artistic creation. Bearing a tattoo on one’s skin also makes a strong statement about one’s personality and identity, and thus can also be a form of personal expression. Therefore, tattoos could be considered  free speech protected under the First Amendment, and thus ordering employees to cover up their tattoos is an infringement of freedom of speech. However, it should be noted that the First Amendment does not apply to private employers. It states that “Congress shall make no law […] abridging the freedom of speech,” thus only regulating the government. In other words, even though tattoos constitute free speech, private employers would not be violating the First Amendment if they ban tattoos in the workplace.

The First Amendment argument has indeed been used against governmental restrictions on tattooing. In Yurkew v. Sinclair (D. Minn. 1980), commercial tattooist David Yurkew challenged the refusal of the Minnesota State Fair to rent space for commercial tattooing at the fair. Yurkew contended that tattooing is an art form and that the process of creating a tattoo is protected First Amendment activity. The defendants disputed this claim, arguing instead that protection of the health of fair patrons and consumers justifies the exclusion of tattooing from the fair. In the end, the court ruled against Yurkew and held that the “actual process of tattooing […] is not sufficiently communicative in nature as to rise to the plateau of important activity encompassed by [the] First Amendment.”

In more recent years, courts have gradually come to recognize tattooing as a form of free speech. The Yurkew v. Sinclair rationale was rejected in Buehrle v. City of Key West in 2015, when the United States Court of Appeals for the Eleventh Circuit determined that “the act of tattooing is artistic expression protected by the First Amendment, as tattooing is virtually indistinguishable from other protected forms of artistic expression; the principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper.” In addition, in Anderson v. City of Hermosa Beach (2010), the United States Court of Appeals for the Ninth Circuit held that “in matter of first impression, [the] tattoo itself, [the] process of tattooing, and [the] business of tattooing are First Amendment protected forms of pure expression.” In Coleman v. City of Mesa (2012), the Supreme Court also ruled that a “tattoo itself is pure speech, and the process of tattooing is also expressive activity for First Amendment purposes.” In sum, according to the federal courts’ latest jurisprudents, tattoos and the act of tattooing are now forms of expression protected by the First Amendment.

So, a question arises: would federal employers be infringing on First Amendment rights if they ordered employees to cover up tattoos? Currently, many governmental jobs have restrictions on tattoos, though they vary in strictness; for example, the Connecticut State Police requires that no tattoo should be visible while on-duty in the summer uniform, while the New York State Police allows the exception of a single band tattoo on one finger, and both police departments prohibit offensive or extremist tattoos. What is the legal ground for such restrictions?

In Medici v. City of Chicago (2015), police officers alleged that the city’s policy requiring on-duty officers to cover their tattoos violated their First Amendment rights. The Court  recognized the officers’ tattoos as a form of personal expression, but held that a government employer can enact “certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public.” Moreover, the Court supported the Chicago Police Department’s (CPD) “interest in ensuring that professionalism and uniformity is maintained,” and granted that “due to a tattoo’s unique character,” allowing on-duty police officers to display their tattoos “would undermine the CPD’s ability to maintain the public’s trust and respect, which would negatively impact the CPD’s ability to ensure safety and order.” Thus, in the federal sector, employers are also allowed to ban tattoos in the workplace. 

Inherent Discrimination

Through a close analysis of regulations and legal cases, we see that it is in fact legal to discriminate against tattoos in the workplace, both in private and federal sectors. This is to say, under current legislation, employers are allowed to use tattoos as a basis to distinguish candidates, and can require employees to cover up tattoos while on the job.

In Yurkew v. Sinclair (1980), the State Fair refused to rent space to a tattoo artist because it saw tattooing as a dangerous procedure which could cause the “transmission of communicable disease such as hepatitis.” In the following decades, tattooing has been proved to be safe under sterilized conditions, and the public has become more accepting of tattoos. However, thirty-five years after Yurkew, in Medici v. City of Chicago, the Court still held that “an on-duty police officer’s public display of any tattoo imaginable may, among other things, cause members of the public to question whether allegiance to their welfare and safety is paramount.” This in truth reflects people’s inherent bias towards tattoos, still seeing them as negative reflections on one’s character, which is contrary to the reality at present: though tattoos might have once been symbols of gang affiliation or risky conduct, nowadays they are more a form of personal expression with a variety of meanings. 

Is forcing servers or police officers to cover their tattoos really necessary for them to fulfill their duties? Are all people with tattoos really more risk-taking or less trustworthy? As Abreu proposed in his new bill, employers should be required to justify their restrictions on tattoos, and prove that covering a tattoo is the least discriminatory way to fulfill necessary vocational qualifications. Though federal jobs might require employees to adhere to stricter rules, employers should nevertheless reconsider the requirements in a contemporary setting.

Man v. Machine: Social and Legal Implications of Machine Translation

Cecilia Quirk

Introduction

In a predominantly English-speaking country such as the United States, it can be easy to take for granted the essential relationship between the arts of law and translation. Yet, as David Bellos notes in Is That a Fish in Your Ear?: Translation and the Meaning of Everything, legal texts are translated in much greater quantities than typical literature, and interestingly, in more complex and various directions. Not only is the translation of law from one language to another “a prerequisite for the construction and maintenance of a global society,” as Bellos puts it, legal writing is already an act of translation in and of itself. Law in English, for instance, isn’t really English at all anymore; legal language often takes on different connotations from common parlance and is frequently an amalgamation of clearly non-English terms. The self-referential and essentially enclosed language of the law is what leads Bellos to conclude that it is inherently untranslatable, though by necessity the object of much translation. 

As the future of legal translation undoubtedly lies–at least in part–in machine translation (MT), there is potential for valuable increased efficiency as much as costly detours: instances of “getting lost in translation.” In order to understand what increased adoption of MT means for the legal world, particularly in the United States, it is important to look back on the history of US Legal Translation, to look across the Atlantic to the complex yet streamlined translation infrastructure practiced by the European Union, and look to the future as cases regarding MT use at our southern border are beginning to cause courts to consider the implications of MT on consent.  

US Legal Translation 

Louisiana

Even before the enhanced globalization of the 20th and 21st centuries, the United States, perhaps surprisingly, already had a rich history of legal translation, particularly in Louisiana. In fact, Louisiana’s first constitution was written in French before it was translated to English, although it held that both versions had equal authority. This system of enacting English and French laws of equal authority remained in place for 35 years until the state’s second constitution, in 1845, held only English law to be official in the future as Lousianna became a state. For this reason, the Civil Code of 1870 appeared in only English, though the issue of conflicting translations remained. Conflicts in translation can arise for numerous reasons: from outright mistakes, ambiguities arising from the structure of a language, or from the fact that  there often is no such thing as a perfect match from one word to another between languages (Bermann 91-93). For instance, Shelp v. National Surety Corporation, a case regarding whether a lessor was obligated to repair doors on his leased property, dealt with a discrepancy between the Article 2716 of the Civil Code of 1870, which appeared only in English, and its parallel in the French-language provision of the 1825 code: 

“The repairs which must be made at the expense of the tenant are those which, during the 

lease, it becomes necessary to make … [notably] to windows, shutters, partitions, shop 

windows, locks and hinges, and everything of that kind, according to the custom of the 

Place.”

The 1825 French version, however, had included portes (“portes, croisees, planches de cloison et de fermeture de boutique, gonds, tarjettes, serrures et autres, suivant l’usage des lieux”), which did not make its way into the English version. While doors could have been reasonably construed as belonging to the category of things mentioned in the English version, the court came down on the side of the lessee on account of the greater authority of the French original text. According to the court, while English-language law was to be generally dispositive, the French version of the 1825 code was authoritative because the Civil Codes of 1808 and 1825 were enacted in French before being translated into English. The decision to honor the French original was especially validated since, as the state Supreme Court found, “the English translation of the French text of the Civil Code of 1825 and, for that matter, the Code of Practice of 1825, was spectacularly bad.” The Court also quoted from Edward Dubuisson in the decision: 

“Even where the translations do not contain misleading errors, the vigor, the spirit, the 

clarity and finish of the originals are lost in the translation.”

If a team of human translators, even while producing an error-free translation, miss “the vigor, the spirit, the clarity and finish of the originals” how can we expect MT to capture these expressly humanistic qualities of legal writing?

Consent

Moving beyond the not inconsequential aesthetics of “vigor” and “finish,” research has found that MT use in high risk settings such as court and legal proceedings, despite its intention to enhance accessibility, can exacerbate existing inequalities. For instance, two recently reported cases revolved around US transport police officers using Google Translate to gain the consent of Spanish-speaking individuals to search their vehicles. Both cases resulted in the officers charging the individuals with a crime after finding illegal substances in the vehicles; however, the use of Google Translate to gain consent was challenged in court as an insufficient method of overcoming the language barrier, to differing degrees of success. In one case the motion was dismissed, yet in the other, the evidence was suppressed. These cases highlight both the lack of uniformity with which courts address issues of MT and consent as well as the pressing relevance of MT. 

While there is a mixed awareness of MT technology for legal use, states with significant Spanish-speaking populations such as New Mexico have begun to consider the technology more thoroughly. As Vieira et al. find, “The state court of New Mexico is an example of an institution that has considered MT in more detail. It has a track record of appointing non-English-speaking jurors and has provided MT use guidelines in relation to these appointments. The guidelines state that unedited MT should not be used for materials expected to fulfill a formal role, for example in court proceedings or as exhibits.” As MT only promises to become more prevalent in legal proceedings, it is important that these and other solutions, as will be discussed below, are carefully considered by the courts. 

Business

Another incredibly important realm of legal translation is that of business contracts, particularly in the case of US-China deals and translations, where the source and target languages are markedly different. If there is an ambiguity or a lack of a clear match in the target language, the translator may have to choose, and thus limit unbeknownst to the reader, a facet of the original meaning. According to Torbert, an expert in this field, “Even if translators can convey the ambiguity in the Chinese target-language document, a Chinese reader may interpret the ambiguity differently from the reader of the English source-language document. As a result, ambiguities can lead to serious misunderstandings.” To give an idea of the pervasiveness and seeming inescapability of such ambiguity, Torbert organized Chinese source language ambiguities into a daunting list of categories: singular or plural, verb tense, inclusion or exclusion in numbers and dates, conjunctions, abbreviations and English source language ambiguities into nouns and pronouns, prepositions, conjunctions, synonymous adjectives, adjective and adverbial phrase modification, negation, and post-modification. To provide an example of post-modification, for instance, Torbert details that 

“For example, in the English translation of the Catalogue Guiding Foreign Investment in 

Industry, an entry in the ‘encouraged’ category states ‘apparatus, instruments, and 

machines for cultural and office use in the manufacturing industry.’ The ambiguity is whether the phrase ‘for cultural and office use’ modifies only “machines” or ‘apparatus, 

instruments, and machines.’ In the original Chinese text, the phrase precedes ‘machines,’ 

so it clearly modifies only ‘machines’.” 

These ambiguity-inducing linguistic elements are clearly essential to legal writing. The answer then lies not in avoidance, but awareness, something that must apply to MT as well, but is arguably more difficult to get a machine to appreciate algorithmically.  

European Union

Beyond the scope of the US, the European Union’s parity system among its 24 official languages, in which each language version carries the authority of an original and no document is released until all translations are complete, is possibly the most impressively scaled feat of legal translation with 552 bilateral combinations. Because translation is not only cross-linguistic, but cross-cultural, additional issues arise in that the legal systems of EU member states themselves don’t align exactly, making perfect translation matches impossible. Furthermore, negotiations of course must occur in a language, creating an essential asymmetry and subtle prioritization of official and working languages. Perhaps filtering negotiations through the black box of MT, rather than the “procedural” languages of English, French, and German, could prevent this prioritization, yet in its current state, such technology would almost certainly obscure to some degree both meaning and the essential human to human understanding, even trust, that is necessary for successful negotiation.

Social Implications of Machine Translation

Law, clearly in the case of the US and more globally, has been translated and trans-linguistically negotiated more or less sufficiently over the years out of strict necessity. The laborious task of translating and negotiating terms, on a semantic as well as legal level however, is far from efficient. In order to save time and money, many firms may refuse cases brought up by a non-English speaker; or in cases where firms accept such cases, the additional time and money spent finding a translator and generating appropriate translations of documents often proves to be an unfeasible financial burden on the non-English speaker, which is especially detrimental if he or she is of an already marginalized class. In an effort to alleviate these financial burdens, speed up the process, and improve accessibility of legal services, some firms have turned to MT; however, MT is accompanied by its own set of significant advantages and disadvantages. The specialized even idiomatic vocabulary, the self-referential nature of legal texts, and the context dependent connotations of words differing from normal use are not only key components of legal writing but are also exactly the areas in which MT services such as Google Translate, which is trained on an enormous corpus of which legal texts make up only a fraction, are least accurate. For this reason, legal-specific MT software has emerged, yet its increased accuracy also comes with the risks of hyper specialization, as translation software designed for one sector of the law will lose accuracy if applied to another, and lessened accessibility, as subscription models are used to provide the revenue to train and maintain such specialized models, unlike free services such as Google Translate. 

Legal Implications of Machine Translation

Between 1980 and 2000, while the US population increased by 25 percent, the number of Americans speaking a language other than English at home nearly doubled. Thus, the malpractice issues posed by lawyers dealing with non-English documents are more relevant, but also with the growth of MT technology, potentially more addressable than ever. While there is a precedent for regulating interpreters in court, no such thing exists for translators or translation systems as of yet. Investing in machine translation software has recently proven to be more efficient, both in terms of saving time and money, than hiring human translators, yet the issue arises that lawyers are unable to verify accuracy of output themselves and are likely unaware of or even unlikely to understand the exact complexities of machine translation software behind the user interface. In addition to the dangers of a blind reliance, use of some MT systems such as Google Translate can also breach client confidentiality, sharing client information or data with the MT provider. Furthermore, consequences of poor translation can be detrimental to individuals as well as court systems more broadly: For instance, in the mid 1900s a mistranslation of some German phrases in a European Court of Justice judgment ultimately resulted in over 200,000 suits being inappropriately filed in German courts. 

In her discussion of potential malpractice issues arising from MT use for preparing legal documents, Wahler cites the 1932 T.J. Hooper case which held the defendant responsible for damages resulting from tugboats lost in a storm for failure to equip them with proper radios as precedent that under the standard of care sufficiently available modern technology can be reasonably expected to be employed. Thus, as non-English speaking individuals have a right to gain representation and understand their case proceedings as enabled by translation, lawyers have a responsibility to make use of modern technology as safely, effectively, and informedly as possible. 

Solutions

While the impacts of MT in legal translation, and human-conducted legal translation more broadly, are undoubtedly far reaching, from challenging consent to enhancing accessibility to expediting business proceedings, clear and necessary solutions, as Whaler advocates, include increasing regulation of translation providers, as is the case for interpreters and is substantiated by President Carter’s 1978 Court Interpreters Act, promoting a hybrid model of initial MT then review by a human translator, and certifying law-specific machine translation services for enhanced accuracy and confidentiality.  

In the specific English-Chinese business translation realm, Torbert suggests back translations, or memos highlighting preexisting ambiguities, and comparing the lengths of paragraphs to check for obvious additions or omissions (Chinese texts are typically three-quarters the length of English texts). Offering a front-end, pre-translation solution, Torbet also suggests that “English speakers can help their translators by writing precise and unambiguous English. These extra steps can be time-consuming, but they can save foreign businesspeople from spending even more time and money dealing with the serious consequences of unintended misunderstandings” (53). Although certainly useful in a business context, these solutions don’t scale across all translation issues in the US, indicating a need for categorized regulation based on the type of litigation. 

Other solutions include adopting ABA’s recommendations regarding translation, specifically Standard 7 drafted by ABA’s Standing Committee on Legal Aid and Indigent Defendants: 

“To ensure quality in translated documents, courts should establish a translation protocol that includes: review of the document prior to translation for uniformity and plain English usage; selection of translation technology, document formats, and glossaries; and utilization of both a primary translator and reviewing translator.” 

Notably, this recommendation recognizes the reality of machine translation, the need for human review, and the benefits, when applicable, of drafting the English original in a more easily translatable form, or at least identifying potential problem areas, which  Torbet argues for as well. Additional steps to ensuring a more equitable use of MT in legal circumstances include requiring consent forms in the speaker’s first language before using Google Translate to protect client confidentiality, requiring some degree of education for lawyers regarding translation and machine translation services, developing an agency to regulate MT use in the law, and requiring proof of human translator review. As the world becomes more globalized, multilingual, and technologically advanced, the issue of machine translation and the law will only continue to grow in relevance. 

Robert Frost remarked that “poetry is what gets lost in translation;” we have a responsibility to ensure that legal meaning, that individual rights are not lost in translation as well. 

The Unconstitutionality of California’s State of Emergency

Alexandra Orbuch

On March 4, 2020, California Governor Gavin Newsom relied on the California Emergency Services Act to declare a state of emergency as a result of the outbreak of COVID-19. On October 17, 2022, Newsom announced that “the COVID-19 State of Emergency will end on February 28, 2023.” The termination date was set for 103 days after it was declared. I argue that the four month long gap between declaration and termination violates the intended parameters of the California Emergency Services Act.

The California Emergency Services Act grants the governor to extensive and essentially unchecked power. It declares:

During a state of emergency the Governor shall, to the extent he deems necessary, have complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of this chapter.

The law makes clear that “the Governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant’ (emphasis added). While the law does not spell out the circumstances during which the termination of the state of emergency becomes necessary, the law appears to be tailored to an immediate termination, not a forward-looking one. 

It is impossible to know anything about the “conditions” of the future and whether they will meet expectations. This is especially true for pandemics, which are especially unpredictable in their patterns; no one knows exactly what it will look like in one month from now, let alone four. If Governor Newsom is confident enough to discuss the termination and give it a date, perhaps that earliest possible date is already upon us. If he was truly unsure, then he would not have put a time stamp on it.

Moreover, Governor Newsom’s actions have made it clear that the circumstances today are vastly different than those of March 2020. Of the 596 pandemic-era executive orders Governor Newsom signed, just 27 still stand. If he truly believed that an emergency existed with as much conviction as he did in 2020, he would not have ended 95% of his emergency orders. He has even said as much himself. When revoking the state’s Stay-At-Home order in June 2021, Newsom wrote that “the effective actions of Californians over the past fifteen months have successfully curbed the spread of COVID-19, resulting in dramatically lower disease prevalence and death” (emphasis added). It was already clear from Newsom’s decision to terminate 95% of his pandemic-era executive orders that the “earliest possible moment” to end the state of emergency has long since passed. Now his words add to the case as well.

In 2021, The Orange County Board of Education and the Children’s Health Defense filed a lawsuit against Governor Newsom, asking the courts to order the Governor to bring an end to California’s state of emergency on the grounds that the “earliest possible moment” to lift it, as designated by state statute, had passed. After lifting almost 90% of his COVID-19 related executive orders and removing the state’s stay-at-home order, the plaintiffs argued that Newsom had no right to continue exercising lawmaking authority that would, under normal circumstances, be vested in the legislative branch.  Their case for the immediate termination of the state of emergency is even stronger now that the governor has made it crystal clear that he can already see the light at the end of the tunnel. 

Leaders of other states – even ones politically aligned with California – support near-immediate terminations of pandemic-related states of emergency. In New York, Governor Cuomo announced on June 23, 2021 that “the state of emergency will expire after Thursday, June 24.” In a similar move, Governor Carney of Delaware declared on March 1, 2022, that the state of emergency would end that day.

Even New Jersey, which was not as clear cut as the two above examples, trends toward near-immediate termination. On June 4, 2021, Governor Phil Murphy signed legislation ending the COVID-19 Public Health Emergency. This action meant the immediate termination of the public health emergency, though it allowed for 30 days for the majority of executive orders issued as a result of the Public Health Emergency to expire. While he provided a short grace period – far less than the four months Governor Newsom laid out – to undo existing legislation, the emergency itself was immediately undone so that Governor Murphy could no longer pass more executive orders.

Checks and balances are a cornerstone of the American governmental structure. The beauty of checks and balances is that they allow each branch of government to keep the others from overextending their authority. This ensures that the people retain power, as is definitionally required in a democracy. In a state of emergency, this safeguard is temporarily removed, because the good that swift and unfettered action can produce in the eye of a hurricane or the height of a pandemic may just outweigh the dangers of an all-powerful executive. That emergency power is not meant to last forever, though. Once it continues past its necessary date, the balance tilts. The dangers of an all-powerful executive outweigh the good that can come from it. Considering precedent in other states and Governor Newsom’s own words and actions, the “earliest possible date that conditions warrant” has clearly passed. The courts should exercise their power of judicial review and call for the immediate termination of California’s state of emergency. In the words of Robert Tyler, President of Advocates for Faith & Freedom, “our democratic system was never intended to give the Governor the unconscionable authority to hold a death-grip on civil liberties.” The courts should do everything in their power to free California from that grip and reinstate the checks and balances that hold our democracy together.

The False Reality of Foreign Neutrality

Justin Murdock

Abstract

As the Russian juggernaut ravages through Ukrainian cities and civilians and eastern European democracy proves to be dire in the alarming crisis, American intervention without provoking an all-out nuclear war seems like a must. However, given that the United States is currently at peace with the aggressor, Russia, as per the Neutrality Act and corresponding penal statutes in Title 18, individual citizens cannot engage in acts of aggression. There is one caveat that must be urgently addressed: the geographic boundaries of conscription, organization, and intervention. Under current laws, military intervention can be undertaken by U.S. citizens beyond U.S. borders, leading to potential issues such as the shattering of neutrality and escalation of the war. Through examination of the statutes’ texts and applications in foreign affairs and historical cases, this piece concludes that the distinction between conscription domestically and abroad must be prohibited to ensure that neutrality is genuinely preserved in our modern day. 

Background

The Neutrality Act of 1794 and corresponding US Penal Code, known together as Title 18, outline the sorts of intervention individual actors from the United States can take in a foreign conflict. These two statutes date back to the founding of the  nation and were particularly relevant in regards to European militias during the 1790s. Given Putin’s bellicose crackdown on Ukraine, however, the relevance of these laws has resurfaced in the context of modern volunteers. While the Neutrality Act of 1794 has been reenacted and amended multiple times to clarify the associated penalties and breadth of its jurisdiction, it effectively lives on in 18 U.S.C. § 960. 

Three statutes in the Penal Code are of particular importance regarding relevant action modern peacekeeping conscripts can take: 18 U.S.C. § 958, 18 U.S.C. § 959, and 18 U.S.C. § 960. The first involves accepting commission on U.S. soil against a foreign polity who is at peace with the U.S.—in this case, Russia. The second involves enlisting in the service of a foreign entity on U.S. soil, which is irrelevant to whether the respective foreign force is at war. The third involves furnishing and organizing money for foreign militaries on U.S. soil in conjunction with participating in an expedition from the United States, which is an adaptation of the statute’s first rendition under President Washington’s Neutrality Act. While Congress certainly can and should give a firm position on U.S. military intervention in foreign operations, the distinction between foreign and domestic recruitment, organization, and fundraising of the Neutrality Act should be repealed given the fallacy it provides abroad. Determined militants may take steps on foreign territory to effectively make it null and void. 

Legal Bases

The three statues in the Penal Code have gone through multiple trials and errors throughout events involving foreign militias—from the founding of the statute during the Revolutionary War to the recent applications in Operation Gideon in Venezuela and the Gambian coup d’état attempt. Title 18 is undoubtedly key to the integrity of American foreign policy, and by no means does this argument seek to diminish its past or present importance. After all, armed citizens with a desire to overthrow foreign powers for the sake of alleged domestic peacekeeping would throw the international system into anarchy; as such, penalties must exist to keep ambitious militants in check. That said, the exception regarding American military actors outside U.S. turf could allow belligerents to evade prosecution and retribution as per 18 U.S.C. §§ 958-60. These laws cite people susceptible to prosecution as “any citizen of the United States who, within the jurisdiction thereof,” or “whoever, within the United States,”—meaning, technically signing up outside U.S. soil would be legal. Regardless of the neutrality laws, would signing up to participate in a foreign conflict (that the U.S. has stated neutrality on) outside U.S. soil make a difference? Yes. On principle, would signing up violate this neutrality? Yes—it has, and it will regarding the Russo-Ukrainian War. 

The Penal Codes have been put under scrutiny regarding certain hostilities and instances of foreign intervention. Notably, Gayon v. McCarthy (1920) set forth a clarification that the furnishing of funds on U.S. turf would be sufficient to prove a violation of the Neutrality Laws. Additionally, under United States v. Murphy (1898), “military enterprises” composed and premeditated on U.S. land are grounds for violations once more. While these laws address the issues of their respective times, our increasingly-digitized world makes cyber-conscription and other means of advocacy for belligerent forces significantly easier for civilians—with boundless websites and outlets for recruitment abroad. For example, the laws present issues with digital conscription with acceptance under Sec. 958 and enlistment in Sec. 959. Additionally, though Sec. 959 has addressed the arrangement of payment, one must consider pro-bono work or payment received through non-governmental organizations representative of civilians.

Due to the specific language set forth in these laws, breaking neutrality in a way that conflicts  with U.S. foreign policy is a criminal act. Essentially, one can avoid this criminalization by launching a private war, sparking a coup, or fostering a bellicose political movement if such conscription and organization occurs outside the United States. In essence, however, they are non-neutral representatives of the United States. If a warmongering veteran joins a brigade in Ukraine on Ukrainian turf, brandishing an American patch and rifle, Russian corps will not know of American neutrality laws or assume that America is merely neutral in this crisis. While one can certainly believe that Putin’s heinous, excessive, and certainly unwarranted campaign should be denounced and chastised, one simultaneously needs to consider the Pandora’s box the Neutrality Act leaves open for alleged freedom fighters.  

Conclusions

Given the review of the vague terms set forth in various aspects of American penal law, and precedents set in case laws related to such statutes, this paper calls for the repeal of the Neutrality Act’s domestic and foreign conscription nuance. Thus, the Justice Department must eliminate the distinction, thereby banning foreign intervention, or be firm in support of civilian aid. Obviously, the former could potentially escalate, drawing all of NATO into the conflict, meaning the evident choice would be the latter.
The involvement of U.S. troops would dangerously escalate the crisis, and the burden set forth in the Neutrality Act does not help with independent U.S. conscripts dodging the restrictions and engaging militarily with Putin’s forces. As proven in past military operations, whether it be the conflicts in Afghanistan, Iraq, Syria, or even Ukraine itself in 2014, these volunteers often prove to be untrained extremists zealous for bloodshed and martyrdom. While de-escalation of the crisis and retribution of the autocratic Russia are a necessity, the Neutrality Act should not be the venue for passionate Americans to do so and should urgently be repaired to avoid military escalation. This statute constitutes a false reality of foreign neutrality, ready to implode with unforeseen military consequences.

The Implications of New Title IX Regulations for Institutions of Higher Education

Anna Shin ’24

The establishment of Title IX, which prohibits sex-based discrimination in schools that receive federal funding, has protected students for nearly five decades by holding educational institutions accountable for cases of sexual discrimination. Notably, Title IX has played a significant role in equity in athletics, sexual harassment and violence, and protections for transgender students. 

But while this law’s foundation was built on sex equality, the specific nuances of Title IX policies have varied among the presidential administrations, most recently the Trump administration. On May 14, 2020, the ACLU and law firm Stroock & Stroock & Lavan LLP filed a lawsuit against Former Secretary of Education Betsy DeVos on behalf of four activist groups: Know Your IX, the Council of Parent Attorneys and Advocates, Girls for Gender Equity, and Stop Sexual Assault in Schools (Know Your IX v. DeVos). The lawsuit was in response to new revisions released on May 6th to existing Title IX policies (otherwise known as the “Final Rule”) for sexual harassment on college campuses set forth by the DoE. The ACLU and Stroock & Stroock & Lavan LLP have argued that colleges and universities conduct sexual misconduct cases from a higher standard than reports of discrimination based on race, national origin, disability, etc. Ria Tabacco Mar, director of the ACLU’s Women’s Rights Project, called the new rule a “double standard that is devastating for survivors of sexual harassment and assault, who are overwhelmingly women and girls.” But Secretary DeVos has stated that the new regulations will secure due process rights for both the accused and the accuser, claiming that the 2020 revisions will allow Title IX officials at colleges and universities to use either a preponderance of of the evidence or a “clear and convincing standard” to prove sexual harassment claims, thereby setting a higher burden of proof. This contrasts from the policy of the Obama administration (2011), which used a “preponderance of evidence” to determine guilt in sexual misconduct claims. This consequently led to many college males filing civil lawsuits based on the claim that they were being unjustly accused of sexual harassment. 

There are several issues the ACLU claims violates the due process of sexual violence victims. Firstly, they claim that the Final Rule redefines “sexual harassment” into three distinct traits: to be “so severe, pervasive, and objectively offensive” that it denies the person equal access to educational opportunities. This arguably narrows the scope for sexual misconduct claims, because the complaint must meet all three conditions for sexual harassment to be even be applicable. The previous definition used “or” in place of “and.” Secondly, any allegations or reports of sexual misconduct can be tossed and not investigated if not reported to the “right” person, or the individual formally in charge of all Title IX-related issues. Thirdly, the alleged sexual misconduct “must have taken place during a school-sanctioned activity, building, or event in which the institution has ‘substantial control.’” This disregards locations such as off-campus apartments, study abroad programs, and field trips, all of which should still fall under the school’s jurisdiction. Fourthly, it installs a “quasi-judicial system” that allows the cross-examination of both parties, which can further retraumatize victims and discourage them from coming forward about the misconduct. Finally, the current COVID-19 pandemic has heavily impacted universities’ budgets and systems, making it difficult for them to adhere to the DoE’s August deadline to implement these revisions. 

On October 20, 2020, U.S. District Court Judge Richard Bennett dismissed the case on the basis that Know Your IX was unable to prove that the Final Rule was directly reducing reports of sexual misconduct, and that it was creating more work for the organization. Other reasons discussed how the claim was arbitrary and “speculative.” Similar cases such as Women’s Student Union v. U.S. Department of Education, which made a congruent argument to the Know Your IX case except for high school students, are still ongoing. So far, none of the lawsuits filed against the Final Rule have been successful. So what does this entail for the future of the Final Rule in universities? The answer is still quite unclear, largely due to the fact that it is relatively new. Most colleges have yet to fully recover from the impacts of the COVID-19 pandemic, both financially and systematically, making it difficult to assess the true consequences of the rule. But Know Your IX and the ACLU have a promising argument — by creating blockades in sexual misconduct reporting and scope, especially during a time where almost everything was conducted within a virtual space, the Final Rule could not have come at a worse time for sexual misconduct claims to go unnoticed or ignored. Universities must continue to stay vigilant on how the implementation of the Final Rule is impacting their prosecution of sexual misconduct cases. Know Your IX v. DeVos, while in itself may not have been successful, is the necessary, groundbreaking case for future lawsuits that will continue to challenge the due process of the Final Rule.

A Look Back at Washington State’s Senate Bill (SB) 5843: Constitutional or Not?

Alexandra Orbuch ‘25

Introduced by the Washington State legislature in January 2022, Senate Bill (SB) 5843 attempted to criminalize statements made by elected officials or candidates that:   

(a) Are intended to incite or produce imminent lawless action and do incite or produce such action resulting in harm to a person or to property; (b) Are made for the purpose of undermining the election process or the election results; (c) Falsely claim entitlement to an office that an elected official or candidate did not win after any lawful challenge made pursuant to this title is completed and the election results are certified. 

The bill failed to gain sufficient support in the house, so it failed. But the politicians opposed simply struck it down with no discussion as to why. Because they stayed silent, I am here to discuss the serious constitutional issues with the latter two types of speech banned by the bill (sections b and c), as they shunt aside the “imminent lawless action” test and a host of other legal precedents. 

Washington Governor Jay Inslee put out a statement in support of SB 5843, alluding to President Trump’s message preceding the January 6 Capital riots. “The defeated president and his allies…are perpetuating the belief that this election was stolen from them,” he said. The language of the bill itself echoes this fear, highlighting “false statements and claims regarding the validity of the 2020 election” as the cause of “January 6.” 

Inslee declared that Trump “yell[ed]” fire in the crowded theater of democracy,” harkening back to Schenck v. United States, in which the Supreme Court said that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre.” Schenck created the “clear and present danger” test, which protected speech unless there is a “clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” 

Inslee seems to have missed the memo that the “clear and present danger” test is no longer the free speech barometer. Brandenburg v. Ohio replaced it with the “imminent lawless action” test, which forbids curbing speech unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The court made an important distinction in its ruling, writing that “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” (emphasis added). 

While SB5843 does include speech likely to incite imminent lawless action as one of its offenses (section a), it also lays out two other types of speech that would qualify: speech “made for the purpose of undermining the election process or the election results” and speech “falsely claim[ing] entitlement to an office” after losing an election. 

Banning the latter two types of speech is unconstitutional. In order to fall outside of protected speech as set forth in Brandenburg, it would not be enough for a statement to attempt to “undermin[e]” elections or “falsely claim entitlement” to a political office. The burden of proof is much higher than that. The statement would need to call for lawless action in such a way that the speech mobilized action on the part of the parties on the receiving end of the speech. Moreover, the bill forgoes any mention of a timeframe at all for the latter two types of speech, completely shunting aside the “imminent” portion of Shenk’s free speech metric (emphasis added). 

The bill’s attempt to purge false claims of entitlements to political office is one that swims against the tides of precedent even beyond Schenck. In Bond v. Floyd, the court unequivocally declared that “erroneous statements must be protected to give freedom of expression the breathing space it needs to survive.” 3. Further, in U.S. v. Alvarez, the court asserted that banning lies “would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.”

In Alvarez, Justice Kennedy wrote that “when the Government seeks to regulate protected speech, under the First Amendment the restriction must be the least restrictive means among available, effective alternatives.” There is almost always “an available, effective alternative” to censoring false narratives, one more in line with the value of freedom so integral to the American ethos: “counterspeech.” The court had faith in the intelligence and judgment of the American people, and rightfully so. Alvarez was “perceived as a phony” and “ridiculed” even before his FBI investigation. “There is good reason to believe that a similar fate would befall other false claimants,” said the court. 

The court aptly reminded the public that “the remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” Calling “speech we do not like” illegal is contrary to established law and legal precedent. 

When the “government seeks to orchestrate public discussion through content-based mandates,” we wade into dangerous territory. Governor Inslee and the Washington legislature would do well to remember that American society “has the right and civic duty to engage in open, dynamic, rational discourse.” As the court so trenchantly wrote, “truth needs neither handcuffs nor a badge for its vindication.” It is not–and ought not be–the government’s place to police electoral discourse. America’s distinctiveness lies in the freedoms enshrined in its Bill of Rights. We live in a constitutional Republic, not a fascist censorial regime dedicated to protecting the government from even the most indistinct whiff of ‘untruth’ or critique.  

In U.S. v. Alvarez, the court proclaimed that “[a]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” It stated that content-based speech restrictions are relegated to limited “historic and traditional categories [of expression] long familiar to the bar.” 

These “categories” include incitement, obscenity, defamation, child pornography, fraud, fighting words, true threats, and speech integral to criminal conduct. Obscenity and pornography are clearly not at issue here, so I’ll table discussion of them. As for the fraud exception, it applies solely to false commercial advertisements and considering Inslee’s legislation has nothing to do with commerce and advertising, the fraud exception to the first amendment is inapplicable here.

In U.S. v. Williams, the court declared that the speech integral to criminal conduct, “offers to engage in illegal transactions,” do not fall under “First Amendment protection.” Solicitation of crime is illegal, but abstract advocacy of illegality is not. The scope of the speech integral to criminal conduct is limited to the “imminent lawless action” test set forth in Brandenburg. And, as already discussed, two-thirds of the criminalized actions set forth in the bill would not pass the test. 

Also subject to the “imminent lawless action” are fighting words, “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The court has made it very clear that words are protected unless they “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Cohen v. California further narrowed the definition, ruling that speech that does not directly aim its message at an individual or group is in fact protected by the first amendment. Thus, making a statement challenging or lying about election results would not apply. In the court’s words, “an ‘undifferentiated fear or apprehension of disturbance’…is not enough to overcome the right to freedom of expression.” 

The last exception to protection under the first amendment are true threats, which “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” The court, in Virginia v. Black, limited true threats to speech “with the intent of placing the victim in fear of bodily harm or death.” SB 5843 targets political speech, not speech threatening physical violence, therefore the true threat exception is neither relevant nor applicable. Clearly, neither speech “undermining the election process or the election results” nor speech “falsely claim[ing] entitlement to an office” fall under the categories of speech that the Supreme Court has said the First Amendment does not protect.

Both the spirit of the proposed legislation and the language itself, taking issue with subjective ‘lies’ that may be otherwise deemed as opinion, conjecture, or assessments differing from the ‘conventional wisdom’ or infringing upon the comforts of elected officials, are ultimately dangerous attempts to legislate contrary to the intent of the Founding Fathers and the subsequent clarifications by the Courts defining protected rights under the Constitution.