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.

How Long Will China’s Animal Cruelty Laws Have to Wait?

by Leyuan Ma

Background

In April 2020, a university student in China’s Shandong Province was expelled from school after videos of him mercilessly torturing and murdering over 80 stray cats surfaced on the Chinese internet; in October of the same year, a man from Shanxi Province poured boiling water over a pregnant cat, killing her and four unborn kittens; in November 2021, a pet dog was brutally killed by health workers while its owner was in quarantine for COVID-19. Numerous incidents of animal cruelty like these have surfaced in China in recent years. In response, more and more Chinese citizens are calling for stricter protection of animals and the promulgation of robust animal cruelty laws. Though animal welfare legislation is still a somewhat controversial subject in the country, a 2020 vote launched by CCTV News (a Chinese state-owned broadcaster) on Weibo (a Chinese social media platform) shows that the demand for a national anti-cruelty law is overwhelmingly strong: on the question of whether China should pass legislation against animal cruelty as soon as possible, among the 299,000 participants, more than 280,000 voted yes.

However, despite popular support for animal cruelty laws, certain procedural obstacles in China’s legislative system make it implausible that China will introduce comprehensive legislation on animal protection in the near future.

Currently, there exists only one nationwide law on animal protection in China: the Wild Animal Protection Law. Adopted in 1988, it only provides protective measures for certain precious or endangered species of wildlife such as pandas, pangolins, and snub-nosed monkeys. Though some efforts have been made toward guaranteeing animal welfare (e.g., the 2005 Livestock Law, which regulates the treatment of livestock during breeding, trade, and transportation), there still exists a large gap in animal protection legislation.

In late 2009, a team of legal scholars published an expert draft of an Animal Cruelty Law of China. The first of its kind in China, the draft law mainly included specific anti-abuse protections for wild, economic, companion, lab, and other types of work animals. It defines “abuse” as “intentionally inflicting unnecessary pain and injury on animals, or killing animals, by cruel means or methods,” and those who violate the law could be sentenced to a fixed term of imprisonment for up to three years. If the law were enacted, it would mark a great advancement for the animal welfare cause in China. But twelve years after the publishing of the draft proposal, there is still no word of it being made law. Why is this so?

Legislative Process and Procedural Obstacles

To understand the obstacles facing animal cruelty legislation, a rudimentary grasp of the legislative process in China is necessary. National laws are promulgated by the National People’s Congress (NPC, the national legislature of China) or its Standing Committee. In general, most legislation goes through a basic agenda-setting process: a proposal for legislation is first drafted, usually by ministry staff or NPC delegates, and then formally submitted to the State Council or NPC. After reviewing the hundreds of proposals submitted, the Legislative Affairs Office (LAO, now a part of the Ministry of Justice) and the Legislative Affairs Commission (LAC, a bureau under the Standing Committee), together lay out government policy priorities with respect to the proposed laws. Once these priorities are approved by the State Council, the LAO and LAC publish an annual legislative plan. A regulation or law on the plan is then finalized and promulgated, and finally forwarded to the President of China for signing into law. The amount of time it takes a law or regulation to pass through China’s legislative process can vary enormously, ranging from six months for the Food Safety Law to 15 years for the Antimonopoly Law to pass. Essentially, delays can occur in any part of the process, as a legislative item can stall if it is not yet a priority, if it is controversial, if the political mood changes, or if the involvement of various interest groups increases or decreases.

In the case of animal cruelty legislation, the problem currently lies at the second stage–– the laying out of government priorities by the bureaus under the NPC and the State Council. The expert draft of the Animal Cruelty Law was sent to the Chinese Central Committee and the Standing Committee of the NPC well back in 2010, but it has still yet to be included in the legislation plan of the NPC. 

In March of this year, during The Fifth Session of the Thirteenth National People’s Congress, Deputy Zhu Lieyu once again submitted a proposal for an animal cruelty law, the fifth time he has done so during his tenure as a delegate. He believes that “the lack of relevant laws and regulations on animal cruelty and punishment in [his] country” makes it extremely difficult for “actions of animal cruelty to receive due punishment.” Zhu Lieyu’s most recent proposal has prompted renewed attention to the problem of animal cruelty in China, and his priorities reflect the wishes of many Chinese citizens. Even so, due to the reluctance of officials in the State Council and LAC to prioritize animal anti-abuse laws, we are left still waiting for the legislative process to start.

Reasons and Possible Procedures

Many people might wonder why legislators have failed to make animal protection a legislative priority. I believe the answer is a combination of considerations regarding the necessity of animal protection laws and cultural differences between China and Western countries. 

In a reply to NPC deputies’ request for anti-cruelty laws in 2020, the Ministry of Agriculture and Rural Affairs explicitly stated that “at present, most acts of cruelty to animals can be adjusted through existing laws and regulations, and many departments such as public security are cracking down on related illegal and criminal acts. Cruelty to animals in social life is only a rare phenomenon […] It is not necessary to formulate a special law for this rare violation of morality.” They cited that, for instance, the Livestock Law of 2005 guarantees the welfare of livestock, and the revision of Article 26 of the Wild Animal Protection Law in 2016 regulates practices in the artificial breeding of wild animals.

However, some experts still argue for a more systematic and comprehensive set of regulations. Though modifying existing laws such as the Criminal Law might be faster and more efficient than procuring a new animal cruelty law, the current regulations on the treatment of companion animals and stray animals are still relatively vague. Yet, there are still others who believe other legislations are of higher importance and that the protection of animals should wait. While the answer to this debate on priority is not yet clear, the only thing we know for sure is that the debate itself will delay the legislative process and stall hopes for a new animal cruelty law anytime soon. 

Of course, one must also take into account China’s unique social and cultural environment. China has a long history of animal utilization, and there are many industries engaged in animal production, processing, and utilization. Due to huge demands and limited land resources, improving the welfare of farmed animals would incur considerable costs for running animal farms and would raise meat prices significantly. Cultural differences within China regarding the treatment of animals could also be difficult to eliminate. For instance, many parts of China still have the tradition of eating dog meat, and dogs only became common household pets beginning in the late 20th century. Every year the notorious Yulin Dog Meat Festival takes place in Guangxi province, where people kill and eat tens of thousands of dogs to celebrate the summer solstice. Though this might seem appalling to most people, a considerable number of Chinese people still adhere fiercely to this tradition. Comprehensively improving the level of animal protection will surely be an arduous systematic task that requires the joint efforts of the whole Chinese society. This task is complicated by Chinese society’s lack of uniformity regarding the proper treatment of animals. 

Conclusion

In short, though the animal protection cause has garnered increased attention and support over the past decade, it is unlikely that China will enact animal cruelty legislation in the near future. However, there is hope that anti-cruelty stipulations will be added to existing legislation, and thus gradually increase the welfare of animals in China. As China’s level of social and economic development improves and anti-cruelty becomes a social consensus, we should remain optimistic that the prospects for a robust animal protection law will also improve in the coming years.

The Supreme Court’s Perversion of Property Rights

by Beck Reiferson

Political philosophers have long regarded the right to property as one of man’s most essential rights. John Locke, whose writings were among the most influential on the political thought of America’s Framers, believed the primary purpose of governments is to protect its citizens’ property rights. In his Two Treatises of Government, he argued that the “great and chief end… of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.” The Framers agreed that protections of property rights were of paramount importance, as the pervasiveness of precisely such protections throughout the Constitution makes clear. Among the Constitution’s explicit protections of Americans’ property rights is the Fifth Amendment, which says that “private property [shall not] be taken for public use, without just compensation.” Known as the Takings Clause, this clause lays out the proper scope of the federal government’s eminent domain power: it may seize private property, but only if it justly compensates the property-owner and the property will serve a public use. The public use requirement—called the Public Use Clause—is central to Takings Clause jurisprudence. I will argue, however, that through its rulings in Hawaii Housing Authority v. Midkiff and Kelo v. New London, the Supreme Court has whittled away at Americans’ property rights by erroneously contorting the Public Use Clause into a “Public Utility Clause.”

In 1967, Hawaii passed a law to address the fact that only seventy-two private landowners owned almost half of the property in the State. The law transferred legal titles from these landowners to lessees. In Midkiff (1984), the Court unanimously held that this law did not violate the Takings Clause of the Fifth Amendment because the “‘public use’ requirement is… coterminous with the scope of a sovereign’s police powers.” In other words, as long as the government is seizing property to advance the public good, the taking satisfies the Public Use Clause. Justice O’Connor, writing for the Court, put this point bluntly: “The mere fact that property taken outright by eminent domain is transferred… to private beneficiaries does not condemn that taking as having only a private purpose.” Since the law in question could plausibly be said to benefit the public, the Court deemed it constitutionally permissible. 

The Court’s emphasis on the law serving a public purpose has no basis in the text of the Fifth Amendment. The Public Use Clause means exactly what it says: for a taking to be constitutionally valid, the property that is being taken must be made available for the public to use—not just confer some indirect benefit on the public. And for the public to use property, one of two criteria must be met: either the public must have a right to enter the property or the property must be publicly owned. A park, for example, obviously meets the first of these criteria, while a government building meets the second. The privately owned homes at issue in Midkiff, however, met neither of these criteria. Therefore, contrary to the Court’s decision in the case, the Public Use Clause prohibits the actions of the Hawaiian legislature. If the Framers wanted governments to be able to seize private property that would be used in any way to benefit the public, they would have written a Public Utility Clause. Instead, they wrote the Public Use Clause, and “public use” means “public use.”

Kelo v. New London (2005) presented the Court with an opportunity to correct its error in Midkiff. Instead, the Court doubled down, declaring that the City of New London’s transfer of private property from private homeowners to private companies satisfied the Public Use Clause because the City could plausibly argue that the transfer served the public purposes of improving the local economy and raising tax revenues. Just as in Midkiff, the majority in Kelo did not contend that the public would literally use the seized property. Rather, they weighed the merits of the City’s argument that the property transfer would be economically beneficial and decided that the public utility derived from the seizure was enough to satisfy the Public Use Clause. The majority thus again wrongly conflated public use, which the Constitution requires, and public utility, which, by itself, is insufficient to make a government’s exercise of the eminent domain power constitutionally valid. 

The distinction between “use” and “utility” is more than just semantic: the Court’s misguided interpretation of the Public Use Clause has significant implications for the security of Americans’ property rights. By interpreting the Public Use Clause as a Public Utility Clause, the Court has greatly expanded the scope of the government’s eminent domain powers. A government that can only seize private property if either the government itself or the citizenry at large will use that property is a government with a very limited ability to seize private property. Such a government could permissibly seize private property if it planned to turn it into something like a government building, park, highway, or school, but seizing private property just to transfer it to other private owners for their own use would be strictly off-limits. On the other hand, a government that can seize private property as long as its plan for that property can plausibly be said to indirectly benefit the public is a government with a nearly limitless ability to confiscate property. This is particularly true when courts afford legislatures broad discretion to determine what constitutes public utility, as the Supreme Court promised to do in Midkiff. When a government has that much latitude to seize private property, property rights are extremely insecure. For the Court to supply Americans’ property rights with a greater degree of protection—the degree of protection the Framers intended Americans to enjoy—it must interpret the Public Use Clause as a strict requirement that governments can only seize private property if the public or government will actually use the property. The overruling of Midkiff and Kelo is long overdue.

When Two Worlds Collide: Evaluating Free Speech and National Security Claims around Trump’s WeChat Ban

by Nalin Ranjan

Introduction

Immigrants have come a long way from hopelessly striving toward the 20th-century ideal of full assimilation into American society. Descendants of Jewish immigrants, whom many believed could not be trusted, can now proudly take credit for developments in the sciences, politics, medicine, and the arts; blossoming Chinatowns have replaced enclaves that once shied away from any expression of their heritage for fear of persecution; Mexicans whose ancestors worked under poor conditions and compensation in the fields founded the United Farm Workers to ensure their voices were heard. The stories of immigrants who refused to merely conform to the expectations placed upon them are endless. They have long known that the immigrant experience entails keeping close to — and not abandoning — their unique cultures and communities.

It was thus that President Trump’s August 2020 ban on Chinese messaging service WeChat was met with large-scale trepidation amongst the Chinese-American community. For the unfamiliar, WeChat is the world’s third-largest messaging service and by far the most popular means of communication amongst first-generation Chinese immigrants, with nearly three million active daily users in the US. For many, it is the primary — if not only — means of keeping in touch with fellow Chinese immigrants and families back home. However, given its Chinese ownership, the app has been subject to intense scrutiny amid escalating tensions between the two countries. 

Legal action against the ban was swiftly taken, resulting in a preliminary injunction of the original order. And before further arguments were made, the Biden administration walked back the Trump-era restrictions. However, they also made it clear that they would continue probing the issue and that a further ban was not entirely out of the question just yet. In this article, I examine relevant constitutional arguments that may have been made in favor of the ban had further litigation continued. Whether or not the ban stands to constitutional muster will ultimately determine whether it is a legal restriction with unfortunate consequences or a fundamental violation of certain Americans’ right to communicate freely.

Background

President Trump initially issued Executive Order 13943 in August 2020, prohibiting “any transaction that is related to WeChat by any person, or with respect to any property… with Tencent Holdings Ltd [the parent company of WeChat]… or any subsidiary of that entity.” The order outlined seven restrictions — each prohibiting a certain type of transaction with WeChat or its parent company —that together would have immediately rendered WeChat services both useless and illegal to use. In particular, restrictions 1-4 would have crippled WeChat’s technological infrastructure and content-distribution backbone, while restriction 6, which bars “any utilization of the WeChat mobile application’s constituent code, functions, or services,” would have been nothing short of an explicit ban on using WeChat’s services for then-users in the United States. 

Make no mistake: most of the restrictions of the order could only be reasonably challenged in court by Tencent itself.1 But restriction 6, whose target is the American populace rather than a service/network/other technology managed by Tencent, could reasonably be challenged by American WeChat users, as it places an explicit restriction on a place Americans may go to express speech. My analysis hereinafter will focus on restriction 6, because 1) resolving first amendment challenges to restriction 6 entails tackling issues that would arise in challenges to other portions of the ban, and 2) first amendment challenges to restriction 6 most closely echo the concerns of American WeChat users, who are the most important stakeholders in this issue. 

Constitutionally, time, place, or manner (TPM) restrictions are permissible, but they must 1) apply equally to all forms of speech subject to the TPM restriction (i.e. be content-neutral), and 2) pass the test of intermediate scrutiny.2 Given that the ban seeks to impose a broad and sweeping restriction on the use of WeChat, it is clear that it passes the content-neutrality criterion: no particular message substance would be favored over another since all communication on WeChat would be prohibited. Thus, the only — albeit substantial — remaining obstacle that the ban must overcome is the test of intermediate scrutiny, which requires that a TPM restriction 1) serve a significant governmental interest unrelated to speech content, 2) be narrowly tailored, and 3) leave open adequate channels for communication. 

Does there exist a significant government interest that would be served by the ban?

As stated in President Trump’s initial executive order, the central motivation for issuing the ban is to protect national security. (The executive order clarifies that other threats, such as those to foreign policy and the economy, derive from the primary threat to US national security.) The precise definition of “national security” is somewhat elusive, but most would agree with the National Law Review’s characterization, which says that it “encompasses safeguarding the nation’s borders against foreign threats and terrorism… [which, in particular, may include] cyber-crimes, cyber-attacks, and other internet-based crimes.” And like most, we will grant that national security is a significant governmental interest unrelated to the particular content of restricted speech in this case.

Would the ban — as outlined in the original executive order and implemented in the Commerce Secretary’s addendum — prevent some action that gravely endangers US national security? The executive order would answer affirmatively, holding that the relevant action it prevents is the capture of “vast swaths of information from its users, which threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information.” This conclusion, however, is based on multiple unsound foundations.

First, the characterization of the information WeChat collects as “personal and proprietary” is misleading, if not plainly incorrect. Upon registering, users must agree to a privacy policy that explicitly describes how one’s information will be shared with other subdivisions of Tencent, service providers (middlemen providing services that enable the functioning of the app), third parties with whom the user interacts, advertising partners, and notably, governments/regulatory agencies that request it.  Of course, this finding is wholly unsurprising to the average WeChat user. In addition to the common knowledge that using an online service will expose one’s information to its administrator, there is also a common cultural element at play: many WeChat users, as first-generation Chinese immigrants, are familiar with the authoritative role the CCP takes in regulating the flow of information and communication. A sentiment of an anonymous user on tech forum SlashDot sums up the typical WeChat user’s attitudes on this issue: “WeChat is a great app, and I use it all the time. But I have never considered it to be private.” Ultimately, users are knowingly consenting to share their data with WeChat and its wide range of affiliates, so the suggestion that users’ “personal and proprietary” information will land into the hands of an actor that shouldn’t have access to it — including the CCP — is both legally and empirically incorrect. 

Second, the mere collection of “vast swaths of data” on consenting American users is not in itself a threat to national security, even if this data lands into the hands of presumed US adversaries like the CCP. It is certainly true that WeChat follows the typical social media company strategy of collecting a wide range of identifying information and day-to-day activity data from users that may compromise their individual privacy, but it is difficult to see how such perfunctory data could be used to threaten US national security as a whole. Knowledge of what certain consenting individuals are doing, where they are going, and what some of their preferences are seldom, if ever, provides the edge needed to engineer large-scale attacks on US citizens or institutions. And the US government has implicitly recognized this fact: the combined revenue of the data analytics and online advertising market — both heavily reliant on collection and exchange of highly specific personalized data — totaled almost $100 billion in 2020 with no indication of slowing down. These markets, which feature thousands of companies of varying sizes, are officially sanctioned — and even participated in — by the US government. Were the possession of terabytes of perfunctory data truly a prospect with imminent national security concerns, history suggests governmental oversight would be swift and uncompromising — or at the very least, more stringent than the lax attitude currently adopted that treats personal data as little more than an arbitrary, freely exchangeable good.3 

In short, there is little evidence to suggest that a blanket ban on the use of WeChat would significantly remedy any existing national security vulnerability.

Would the WeChat ban leave open adequate channels for communication?

As established in Ward v. Rock of Racism, “the basic test for gauging the sufficiency of alternative channels is whether the speaker is afforded a forum that is accessible and where the intended audience is expected to pass.” In other words, the subject of a TPM speech restriction must be afforded another venue in which the intended audience may reasonably participate in a similar capacity. Appellate court precedent has established this requirement as one admitting a strict interpretation. For example, refusal to grant a permit to the Million Youth March sufficiently close to the movement’s desired location in Harlem was ruled in 1998 to be a First Amendment violation, because the city’s proposed relocation to Randall’s Island would have “adversely affect[ed] plaintiff’s ability to reach its target audience” by “limit[ing] [the movement’s] reach to [only] those who make an affirmative decision to travel to [Randall’s Island].” 

The alternatives afforded to WeChat users, unfortunately, are quite worse than a two-mile walk eastward to Randall’s Island. As Peng notes in her testimony, the only available alternatives to contact relatives abroad are costly and provide vastly inferior functionality:

“Without WeChat, I will have to go back to the old way of buying calling cards and making expensive international calls. I will also not be able to reach all of my family members with one click. I will not be able to look at them through video calls with my own eyes. Nor can they see that I am well with their own eyes.” 

For the unfamiliar, the reason that Peng would have to go back to calling cards is that most apps that seem like viable alternatives (WhatsApp, Snapchat, Messenger, Line, etc.) are blocked by the Great Chinese Firewall

And for those whose only proficient language is Mandarin (or another dialect spoken in China),4 the lack of other Chinese-friendly messaging apps would all but require attaining sufficient proficiency in another language. Even if we discount the many cases where this is effectively impossible (e.g., for senior citizens), such a requirement would fundamentally run contrary to the American notion of free expression. Learning a particular language should never be an explicit prerequisite to communicate, nor is the government within its right to revoke access to platforms so as to implicitly institute this as a requirement.

Conclusion

For now, Chinese-American WeChat users can breathe a sigh of relief. Yet it is clear that the issue is far from resolved, as the Biden Administration has indicated that a subsequent restriction is well within the realm of possibility. However, amid ever-changing political headwinds, American WeChat users can cling steadfastly to the legal rock that is intermediate scrutiny. Indeed, striking down the Trump-era ban would have only required that one intermediate scrutiny criterion be unmet. That the ban spectacularly fails multiple criteria is a serious indication that subsequent administrations will need to dedicate genuine, good-faith effort to crafting a more measured response that does not irreparably sever certain Americans’ access to their most significant outlet of communication.

1 Foreign entities may bring suit in US courts; see Servicios Azucareros v. John Deere.

2 First developed in Craig v. Boren.

3 See this article, for example. Most data exchanged over US networks is unregulated. That is, most companies are not under any obligation not to share your data with third parties, who can in turn do as they wish with that data (including selling it again). And none of them are obligated to tell you what they do with your data.

4 No publicly available sources have an estimate on the true number of English-deficient WeChat users in the United States. But an extremely conservative estimate would likely lie in the hundred-thousands.

The Problems with Legislative Overrides of Judicial Rulings

by Beck Reiferson and Benjamin Edelson

In April 2021, President Joe Biden signed an executive order establishing the ‘Presidential Commission on the Supreme Court of the United States,’ a commission of legal scholars formed to discuss potential reforms to the Supreme Court. In October of that same year, the Commission released discussion materials prepared in advance of its fourth meeting. These materials outline a variety of proposed reforms to modify “the Court’s role in the constitutional system.”1 One reform that the Commission considers is the establishment of “legislative overrides of Supreme Court decisions.”2 The purpose of such overrides would be “to minimize judicial supremacy—i.e., the system under which the Court is the final and authoritative arbiter of the constitutionality of statutes or executive action.”3 These concerns about the Court wielding quasi-legislative power are valid. We believe, however, that legislative overrides are a poor solution for two important reasons: (1) they would undermine the principle of checks and balances, which is central to the functioning of our constitutional system, and (2) they would be contrary to one of the key purposes of the Court—to keep some fundamental issues (e.g. the right to vote, the free exercise of religion, etc.) out of the democratic sphere and safe from the influence of political majorities.

The system of checks and balances is one of the most important features of the United States’ constitutional system. In the words of James Madison, the purpose of checks and balances is to keep the branches of government “in their proper places.”4 Congress’s gaining the power to override judicial decisions would threaten the proper functioning of this system. For one, the Court would lose its ability to prevent the legislature from passing unconstitutional laws, since the legislature could simply overrule any judicial ruling that invalidated a recently passed law. There would be no reason to expect Congress to ever invalidate a law it had just passed: if a congressperson who voted in favor of a law were to then vote to uphold the Court’s decision that the law did not pass constitutional muster, it would amount to an admission that they voted for an unconstitutional law. The vote to overrule the Court, then, would most likely be simply a rehash of the vote to pass the bill. With a simple majority, Congress could exceed any constitutional limits put in place to restrain it, thereby defeating the purpose of imposing any restrictions upon Congressional authority at all. In an effort to combat judicial supremacy, a system of legislative overrides would result in judicial impotence: a judiciary incapable of checking a legislative branch that would instead be left to check itself.

The severity of these problems would be reduced if legislative overrides required a supermajority, rather than a simple majority of half of each legislative chamber. (The Commission’s document does not specify what the necessary voting threshold would be.) This, however, would then become redundant with the amendment process, which requires a two-thirds majority of both chambers of Congress. So if legislative overrides were to be meaningfully distinct from the existing amendment process, they would have to require something less than a supermajority—and we would run into the same issues described above.

One could argue that legislative overrides would actually reinforce the system of checks and balances by imposing a check upon the judicial branch. We do not find this very plausible. It is not the purpose of a check or balance to render the checked or balanced branch too weak to properly function. The purpose of checks and balances is to ensure that no branch exceeds its constitutional limits, not to prevent one branch from fulfilling its role in the constitutional system while letting another branch enjoy carte blanche.

Another of the Commission’s worries is that in interpreting the Constitution, the Court wields too much power. Giving a democratically elected branch the final say on issues of constitutionality, it thinks, would be more in line with the ideals underlying our system of government. The “chief aim” of legislative overrides, the Commission writes, “is to allocate power away from the Supreme Court and toward the elected branches…the Supreme Court exercises excessive power over the resolution of major social, political, and cultural decisions – decisions that would be better resolved through the democratic process” (p. 25). As expressed earlier, we are very sympathetic to these concerns. But we think questions of hermeneutics – and the controversies that arise for the Court boil down to debates about interpretation, not normativity – are not ones that are best resolved democratically. Leave normativity to the people; let them decide what things they value as a society. But let a separate, highly qualified panel deal with the issue of how to interpret complicated, often vague texts. Conflating these two distinct tasks into a common enterprise will only lead to each being performed less effectively and correctly.

The Court is a check on democracy, an (ideally) independent body that reviews the legislature’s acts and determines whether or not it meets the acceptable standards of law as previously set out by the people themselves. This seems to us to be the point of a Bill of Rights in the first place. Deciding which rights are so basic and valuable as to merit their removal from the democratic sphere is up to the people’s delegates. The legislature has expanded and shrunk the list from time to time via constitutional amendment. There is definitely value in designating some rights as ‘off-limits’ like this: it prevents the government from acting poorly towards groups that are underrepresented in the legislature. Who should determine whether or not Congress has violated these ‘rules of the legislative game’? An extra-legislative body, one intimately familiar with the rules. As argued above, it would be pointless at best and dangerous at worst for this body to be the legislature itself, since the legislature obviously has a vested interest in a given law’s passage.

We are not sure how best to prevent a supposedly independent Court from abusing its considerable power, though. The best fix, we think, would be for Justices to interpret the Constitution and statutes as tightly as they can, with as little room for ambiguity or creativity as possible. This, however, gets us into other hermeneutical controversies that we do not have the space to address. In any event, for the above reasons, it seems to us that granting the legislative branch itself the power to override judicial decisions would be one of the worst solutions to this problem—a solution that is fundamentally contrary to the purpose of the Court itself.

1 https://www.whitehouse.gov/wp-content/uploads/2021/10/COURTS-ROLE.pdf, pg. 1.

2 See footnote 1, pg. 25.

3 Ibid.

4 James Madison, “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments” in The Federalist Papers.

El Salvador’s Bitcoin Law: Contemporary Implications of Forced Tender Legislation

by Cecilia Quirk

Background

From the invention of paper money in 7th century China to the FDR administration’s decision to drop the gold standard in 1933, money has constantly evolved in unexpected, even unsettling ways. Just as a world without paper money, or even without credit cards, seems unimaginable today, it’s no wonder that the future of money lies in some new technology, namely Bitcoin. First minted in 2009, Bitcoin has soared to new popularity in the past couple of years. This monetary evolution, even revolution, was made possible due to advancements in technology and shifts in consumer perspective and has inspired regulatory and legislative innovations which pose interesting and novel legal challenges dealing with freedom of exchange and contract. A fascinating backdrop for these challenges lies in the context of El Salvador’s Bitcoin Law. 

On September 7, 2021, El Salvador became the first country to adopt Bitcoin as legal tender with the passage of that nation’s so-called “Bitcoin Law”, which placed Bitcoin alongside the U.S. dollar as El Salvador’s official currency. (An important distinction, however, is that while both the U.S. dollar and Bitcoin are legal tender in El Salvador, only Bitcoin is forced legal tender). This meant that all Salvadoran businesses must accept Bitcoin as a means of transaction, taxes are payable in Bitcoin, and the government can now distribute subsidies in Bitcoin. To accompany this law, El Salvador rolled out a supporting network of 200 Bitcoin ATMs, introduced a new digital bitcoin wallet app called Chivo, and distributed $30 worth of Bitcoin to every citizen to kickstart the change. 

Pros and Cons

Proponents of the new Bitcoin Law in El Salvador, such as President Nayib Bukele, say that Bitcoin will give the 70% of Salvadorans without bank accounts access to financial services, and help “reduce the fees they pay to send and receive remittances.” One in every four Salvadorans live abroad, and with the exception of Haiti, El Salvador is the country most reliant on remittances in the Western Hemisphere, accounting for almost three of every 10 dollars, or nearly $6 billion, in El Salvador’s economy. In fact, many advocate for the use of crypto in developing countries, arguing that the prevailing global financial system serves wealthy countries and individuals best. 

On the other hand, less developed economies are more vulnerable to Bitcoin’s notorious volatility and lack of regulation by a central bank. Soon after El Salvador announced that they would be adopting Bitcoin as forced legal tender, the International Monetary Fund (IMF) paused negotiations for the 1.3 billion dollar assistance package to tackle the country’s debt and allow for sustainable public spending taking issue with lack of transparency and environmental costs of cryptocurrency. In a reactionary blog post to El Salvador’s consideration of making Bitcoin a legal tender, IMF cited legal issues including the lack of wide accessibility, a necessary component of a legal tender, due to inconsistent internet access and technological inequities. Just over 50% of El Salvador’s population has internet access, making a legal tender, especially a forced tender, that relies on internet access untenable for much of the population and calling into question who politicians and legislators really had in mind when developing the Bitcoin Law. Within the country, there is a notable lack of support for the law, with a poll by the Universidad Centroamericana Jose Simeon Canas finding that 67.9% of Salvadorans were not in support of the decision to adopt Bitcoin as a legal tender due to both a lack of trust in Bitcoin (8 out of 10 respondents) and a lack of understanding of how to use the new technology (9 out of 10 respondents). 

Article 7 of El Salvador’s Bitcoin Law

Despite the notable complexity, both technologically and legally, of adopting Bitcoin as a forced legal tender, El Salvador’s Bitcoin Law, and Article 7 which enforces the legal tender, is incredibly brief. According to Article 7, “Every economic agent must accept bitcoin as payment when offered to him by whoever acquires a good or service.” In other words, paying with and accepting Bitcoin is not only legal, but its acceptance as payment is compulsory. Policy aside, experts have also argued that forced tender, such as that prescribed by Article 7, is legally unsound as it contradicts the freedom of exchange and contract. Dror Goldberg, an expert on the history of compulsory tender laws, expands upon this claiming that “As [forced tender legislation’s] practical implication has typically been to force producers to part with all their produce for paper, it can also be a severe violation of property rights. It is a rule that penalizes passive behavior. It is, or should be, a controversial rule, unlike a rule prohibiting counterfeiting of money.” Even the U.S. dollar is not a forced tender in El Salvador. Most countries, including the United States, conscious of forced tenders’ restriction on personal freedoms do not have forced tender laws (ex. “Credit only” businesses may refuse to accept cash without legal repercussions). 

Historical Perspective

While forced tender legislation may seem like a new issue, or at least newly relevant, it in fact has a rich and relevant history. In his 2016 article Forced money: legal development of a criminal economic rule, Goldberg argues that forced tender legislation not only infringes upon the freedom of exchange and contract but also represents economic authoritarianism. Tracing the transportation and translation of legal tender laws from Revolutionary to Napoleonic France, the Ottoman Empire, British Cyprus, British Palestine, and Israel, Goldberg concludes that forced legal tender was able to take hold in these instances due to the presence of struggling economies, weak governments, and legislators in favor of economic authoritarianism. As the COVID-19 Pandemic has reversed El Salvador’s previously declining inflation rates, economic growth and direct foreign investment remain chronically low, and weak government institutions have proven to be especially vulnerable to corruption, the country certainly fits the trends Goldberg identified in his research. Interestingly, and unanticipated by Goldberg’s historically-oriented analysis, Bitcoin is a symbol not of the state itself but of its future, of the inter- or even a-national tech hub that President Bukele and legislators hope El Salvador will become. Thus, the “symbolic implications on sovereignty” that Goldberg notes are characteristic of forced tender laws are even more devious in the case of El Salvador where Bitcoin is not stamped with the visages of current or previous Heads of State but is rather the digital face of a disembodied blockchain network. Symbolically then, if Bitcoin’s notorious volatility leads to a drastic downturn in value, it may be shoved off as a failure of technology rather than the laws and leadership of El Salvador. As Goldberg states, “Accepting the state’s money against one’s will is a symbolic obedience to the state,” yet in the case of El Salvador, accepting Bitcoin as forced tender is an obedience to a technological future that as of now, and without the help of the government, will leave many Salvadorans behind. 

Domestic and Foreign Response

The initial rollout of Bitcoin in El Salvador was far from smooth, complete with thousands taking to the streets of El Salvador to protest and technical issues making the Chivo wallet app unusable and its cash inaccessible. There was even a 10% fall in the value of Bitcoin compared to the U.S. dollar on the day it was made legal tender in the country—and has since seen more declines in its value. While Bukele is selling the rollout as a success, claiming that a third of Salvadorans are using Chivo, it is possible that a majority of that demographic is simply using the app for the $30 incentive from the government. In fact, according to The Financial Times, one of El Salvador’s largest banks reported that Bitcoin constituted less than 0.0001% of its daily transactions in early September. Other media outlets also noted excessively long lines at ATMs with people rushing to convert their Bitcoin to more trusted cash.  

Despite the general lack of popularity and ease of use for the Salvadoran public, El Salvador has projected an Insta-worthy image of technological advancement to appeal to young entrepreneurs. TIME describes a sleek launch party where primarily English-speaking crypto fans and social media influencers, even YouTuber Logan Paul, celebrated the law. Bukele, apparently, wants these festivities to last and has promised permanent residency to those who spend three Bitcoin (about $125,000) in the country. Bukele has also pointed out that the legal tender status of Bitcoin, rather than simply an investment asset, in El Salvador allows foreigners moving to El Salvador to avoid the capital gains tax on any profits made as a result of Bitcoin’s value fluctuations. In a tweet of about the same length as Article 7 itself, he further advertises “Great weather, world class surfing beaches, beach front properties for sale” as reasons that crypto entrepreneurs should move to El Salvador. Given the subsidization by the government and foreign facing nature of the incentives, the adoption of Bitcoin as forced tender seems more like a get-rich-quick economy-boosting gambit than a true attempt to systematically improve the lives and financial well being of El Salvadoran citizens. This is dangerous as, while it’s uncertain if the average El Salvadoran citizen will benefit as much as the tech-savvy international, forced tender ensures they will bear the brunt of the risk regardless. 

The IMF and more importantly the majority of El Salvadoran citizens aren’t the only ones discontent with the Bitcoin Law. Notably, the deputy of the leading opposition party in El Salvador, Farabundo Marti National Liberation Front (FMLN), has filed a suit regarding the constitutionality of the Bitcoin Law. Even some crypto enthusiasts take issue with Bitcoin as legal tender, not necessarily because it undermines the rights of citizens but more so because it arguably undermines the legitimacy of cryptocurrency in general. Cryptocurrency in its decentralized state was created exactly to exist outside of government controls so its adoption and potential regulation by governments such as El Salvador seems to defeat the purpose. While not directly related to the Bitcoin Law, the U.S. recently released a memo expressing concern over the September 3rd decision “which authorized immediate presidential re-election in contravention of the Salvadoran constitution.” This decision seems to confirm the authoritarian trend in El Salvador evident in economic authoritarianism of forced tender and Article 7. The adoption of Bitcoin as legal tender, which some fear will soon completely replace the U.S. dollar, could also reduce the potential effect of U.S. economic sanctions in the case of future more authoritarian decisions. 

Conclusion

As the potential for more regulation over and integration of Bitcoin into the mainstream U.S. economy looms large, other countries may prove to be important case studies pertaining to the feasibility and legality of the transition to digital dollars. While countries such as China have notably increased regulations before declaring all crypto transactions illegal, other countries, or at least their leadership as seen in the case of El Salvador, have embraced the crypto movement. Although the concerns arising from Bitcoin as forced legal tender should extend to its role in El Salvador and certainly not be limited to the potential impact on our own country, Goldberg’s observation that “The young United States knew forced money laws from its own Revolution, but continuing it in peace was incompatible with the values of a free-market democracy” should no longer be taken for granted.