Fordham Undergraduate Law Review: Volume III (Spring 2021)

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FORDHAM UNDERGRADUATE LAW REVIEW THIRD

EDITION

NOTES A SHIFT TOWARDS ORIGINALISM ON THE SUPREME COURT Nicholas Suit

THE FUTILITY OF EXECUTIVE ENVIRONMENTAL ROLLBACKS Nick Wolf

IT’S TIME FOR BIG COMPANIES TO CLEAN UP THEIR ACT Olivia Frantzeskos

INTERROGATING THE IMAGINED FUTURITIES OF TRANS HEALTHCARE BANS Ruben Çağınalp

TRACING THE ANTITRUST DEBATE INTO THE DIGITAL AGE Rahul Sukesh

TERMS AND CONDITIONS MAY APPLY Giancarlo Barrezueta

DOES AUSTIN TONG HAVE A CASE? Zeke Tweedie

HUMAN RIGHT VIOLATIONS AND CRIMES AGAINST HUMANITY Elizabeth Hartnett

PHANATICAL PHANS Bridget A. McCabe

CONSCRIPTION VERSUS THE U.S. CONSTITUTION Tyler Raciti Brian Inguanti Editor-in-Chief

VOL. 3

ENVIRONMENTAL RACISM AND THE FAILURES OF THE EPA Kathryn Schulte

SPRING 2021



FORDHAM UNDERGRADUATE LAW REVIEW FALL 2020 SPRING 2021

Edited by the Undergraduates of Fordham University


LETTER FROM THE EDITOR-IN-CHIEF

VOL. 3

2020-21

NO. 1

February 21, 2021 Dear Reader: It is my honor to introduce the Third Volume of the Fordham Undergraduate Law Review (FULR). After long days and tireless nights, the writers presented in this Volume will tackle some of the world’s most pressing legal issues. In this issue, the topics will range from environmental law, antitrust law, civil rights law, and constitutional law. The scholarly arguments presented will help further the ever-growing discussion in their respective legal arenas – and, in turn – bolster Fordham University’s pre-law scholars. I owe a great debt of gratitude to my outstanding Editorial Board. Because of their longstanding and steadfast leadership, FULR has become one of the largest publications at Fordham University’s undergraduate college. With over 300 writers and editors, FULR has become a symbol of Fordham University’s commitment to undergraduate non-STEM research, an area of increasing interest at Fordham College at Rose Hill (FCRH) and Fordham College at Lincoln Center (FCLC). Even more impressively, FULR is now recognized as a national pre-law voice for the undergraduate law journal community. Despite the ongoing pandemic, our driven FULR writers and editors have persevered in the most courageous manner imaginable. Throughout the curation of this Volume, our Senior Editors and Staff Writers have stayed engaged with our functions on Zoom and in one-on-one calls, made use of our FULR Style Guide and Writer’s Packet, and successfully combed through, dissected, and ultimately published complex legal arguments. For this, we are incredibly thankful. I would like to thank all of you that have made this Volume possible. I owe a special thank you to Dean Mantis, our faculty advisor, and Dean Annunziato, our faculty mentor, for their guidance throughout the publication process. Please do not hesitate to reach out to the Editorial Board at fulr@fordham.edu to share your comments. We openly welcome your feedback. Sincerely,

Tyler Raciti, Editor-in-Chief


VOL. 3

TABLE OF CONTENTS SPRING 2021

NO. 1

A SHIFT TOWARDS ORIGINALISM ON THE SUPREME COURT: A PLAUSIBLE THREAT TO SAME-SEX MARRIAGE Nicholas Suit .................................................................................................. 1 THE FUTILITY OF EXECUTIVE ENVIRONMENTAL ROLLBACKS Nick Wolf ...................................................................................................... 13 IT’S TIME FOR BIG COMPANIES TO CLEAN UP THEIR ACT: A LOOK INTO WHY THE UNITED STATES IS STILL DRINKING CONTAMINATED WATER AND WHO'S TO BLAME Olivia Frantzeskos ....................................................................................... 22 INTERROGATING THE IMAGINED FUTURITIES OF TRANS HEALTHCARE BANS Ruben Çağınalp............................................................................................ 31 TRACING THE ANTITRUST DEBATE INTO THE DIGITAL AGE Rahul Sukesh ................................................................................................ 42 TERMS AND CONDITIONS MAY APPLY: THE FIRST AMENDMENT AND THE INTERNET Giancarlo Barrezueta .................................................................................. 54 DOES AUSTIN TONG HAVE A CASE? WHAT TONG V. FORDHAM MEANS IN THE COURTS AND ON OUR CAMPUSES Zeke Tweedie ................................................................................................ 68 HUMAN RIGHT VIOLATIONS AND CRIMES AGAINST HUMANITY: AN ANALYSIS OF INTERNMENT AND RE-EDUCATION CAMPS IN XINJIANG Elizabeth Hartnett ........................................................................................ 84 PHANATICAL PHANS: THE INFLUENCE OF A PASSIONATE FAN BASE AND PUBLIC PERSONA ON LEGAL ACTION AND OWNERSHIP IN INTELLECTUAL PROPERTY LAW Bridget A. McCabe ...................................................................................... 99 CONSCRIPTION VERSUS THE U.S. CONSTITUTION Brian Inguanti ............................................................................................ 121 ENVIRONMENTAL RACISM AND THE FAILURES OF THE EPA Kathryn Schulte .......................................................................................... 132


VOL. 3

MASTHEAD 2020-21

NO. 1

EDITORIAL BOARD TYLER RACITI Editor-in-Chief AIDEN HANNON Co-Managing Editor

JENNIFER RIVERO Co-Managing Editor

REEVE CHURCHILL Executive Articles Editor

ARIANNA CHEN Executive Online Editor

JONATHAN KATZ Business Administrator SENIOR EDITORS ANTHONY VU NICHOLAS SUIT JACK QUAGLINO EMILY LIU MAYA BENTOVIM FAHIMA HUSSAIN

ELIZABETH HARTNETT BRIANA AL-OMOUSH CAROLINE MORRIS THOMAS REUTER CHRIS KERRANE APRIL GORE

KEVIN JAMES GABRIELLA MANGOME SYDNEY BECK MARY CACEVIC ROBERTO LEITO THOMAS MURRAY

STAFF WRITERS RUBEN ÇAĞINALP WISLANDE FRANCISQUE ELIZABETH REED BRANDON GJONGECAJ DANIEL GOLDSHMID EMILY SEEBERGER OLIVIA FRANTZESKOS ZEKE TWEEDIE

EMILY CERRON APRIL GORE PANTHO SAYED LUCIANNE MANIGBAS VENDELA DENTE SAMANTHA DAVIS HANI JAWABRAH DANIELLE POOLE

HILLARY MANTIS, J.D. Faculty Advisor

SOH BHATTACHARJEE ANDREW MILLMAN ANNA SCHMITT MIKE RUSSO MICHAEL PERSAUD ANNA TORPEY ANTHONY GAMBINO MICHAEL BONGIOVANNI

RACHEL ANNUNZIATO, PH.D. Faculty Mentor


VOL. 3

MISSION SPRING 2021

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The Fordham Undergraduate Law Review (FULR) is an entirely student-run, scholarly journal at the undergraduate level for the Fordham University and legal community. Our publication includes a wide array of topical and historical legal issues covering both domestic and international affairs in its scope. FULR is a coveted opportunity for high-achieving, exceptional writers examining a range of disciplinary lenses as it relates to the nuances of law. In this pursuit, we have forged a driven, competitive community of students that engage in fruitful discussions on various legal issues. These exceptional attorneys of tomorrow are given opportunities for publication and offered admission to prelaw networking events with distinguished Fordham alumni. Learn more about opportunities to join our team at fulr@fordham.edu.

INSTITUTIONAL PARTNERS ROSE HILL DEAN’S OFFICE, Fordham College at Rose Hill PRE-LAW ADVISING OFFICE, Fordham College at Rose Hill & Lincoln Center OFFICE OF STRATEGIC INITIATIVES, Fordham College at Rose Hill OFFICE OF STUDENT INVOLVEMENT, Fordham College at Rose Hill PRE-LAW SOCIETY OF ROSE HILL & LINCOLN CENTER, Fordham College at Rose Hill & Lincoln Center Thank you to our institutional partners for their supportive mentorship and financial assistance. Without their help, this volume would not have been possible.


The views expressed by the contributors are not necessarily those of the Editorial Board or the institutional partners of the Fordham Undergraduate Law Review. While every effort has been made to ensure the accuracy and completeness of information contained in this journal, the Editors cannot accept responsibility for any errors, inaccuracies, omissions, or inconsistencies contained herein. No part of this journal may be reproduced or transmitted in any form or by any means, including photocopying, recording, or by any information storage and retrieval system, without permission in writing. The authors who submitted their work to the Fordham Undergraduate Law Review retain all rights to their work. Fordham Undergraduate Law Review Volume III, Issue I, 2020-21 https://research.library.fordham.edu/fulr/


NOTE A SHIFT TOWARDS ORIGINALISM ON THE SUPREME COURT: A PLAUSIBLE THREAT TO SAME-SEX MARRIAGE Nicholas Suit*

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This Note seeks to examine and evaluate the plausible threat that originalism poses to the constitutional right of same-sex marriage dictated by the decision in Obergefell v. Hodges (2015). With the recent confirmation of conservative Justice Amy Coney Barrett to fill the vacant seat left by the passing of Justice Ruth Bader Ginsburg, the Supreme Court of the United States, or the “Court,” is now conservative-leaning with a 6-3 majority. However, this Note will look past the arbitrary divide in political ideologies of the current justices, as U.S. Supreme Court justices are intended to be nonpartisan observers of the law. It will instead articulate how the new breakdown of judicial philosophies on the Court, originalism and nonoriginalism, can affect same-sex marriage. The research in this Note will primarily cover Amy Coney Barrett’s confirmation and jurisprudential stance, the judicial interpretations held by the other five conservative-leaning justices, the decision of Obergefell v. Hodges (2015), and Justices Thomas and Alito’s recent statement regarding the decision in Obergefell. Through this research and accompanying analysis, the Note will ascertain if there is a probable threat to the right for same-sex couples to marry as a result of originalism. I. II.

III.

INTRODUCTION.................................................................................... 2 THE RISE OF ORIGINALISM ON THE SUPREME COURT ......................... 4 A. Originalism and Non-Originalism ......................................... 4 B. Contemporary Judicial Philosophies on The Court .............. 4 LEGALIZATION OF SAME-SEX MARRIAGE ........................................... 5 A. Obergefell v. Hodges .............................................................. 6

* B.S. Candidate for Business Administration (major), Fordham Gabelli School of Business at Rose Hill, Class of 2023. Being a member of the Fordham Undergraduate Law Review as a Senior Editor has been an extremely rewarding experience. I would like to thank the Editorial Board of the Fordham Undergraduate Law Review and Senior Editors who helped edit this Note and made the publication of this Note possible. I owe special thanks to Tyler Raciti for his immense support and guidance throughout the entire writing and editing process. Lastly, I want to thank my family and friends for their endless support and constant encouragement.

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B. Dissenting Opinions ............................................................... 7 CHALLENGING SAME-SEX MARRIAGE PRECEDENT ............................. 9 CONCLUSION ..................................................................................... 10 I. INTRODUCTION

In theory, Supreme Court justices are meant to be nonpartisan interpreters of the law. Arbitrary political party lines are not supposed to reflect in the rulings made by the highest court of the land. However, historical precedent provides evidence that the Court functions with an ideologically split not by party, but by view of constitutional interpretation. 2 The different interpretations’ names may vary; however, their basic premises remain similar. Typically associated with conservative-leaning justices, 3 originalism follows the interpretation of the Constitution as a set of laws with nonchanging meaning. 4 Non-originalism or living constitutionalism, as an approach often ideologically connected to liberal-leaning justices, 5 holds that the Constitution is a living document that undergoes societal changes and evolves with the passage of time. 6 In many cases, this variation of constitutional interpretation among justices appears to take form via arbitrary party lines, evident through, for example, how nearly every 5-4 decision during the 2014-2015 term was split by party. 7 Further, even the selection and nomination of justices by modern-day Presidents is largely rooted in partisanship: Justices are typically selected from a pool with similar political ideologies as the majority party at the time. 8 On October 26th, 2020, Amy Coney Barrett, nominated by Republican President Donald J. Trump, was confirmed as the 115th Associate Justice of

2 Neal Devins and Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court Into a Partisan Court, THE SUPREME COURT REVIEW 301 (2016). 3 Edward Whelan, The Judicial Divide Between Conservatives and Liberals, ETHICS AND PUBLIC POLICY CENTER (Nov. 20, 2018), https://eppc.org/publications/interview-with-edwhelan-judicial-divide-conservatives-liberals/. 4 Katie Vloet, Two Views of the Constitution: Originalism vs. Non-Originalism, MICHIGAN LAW (Sept. 22, 2015), https://www.law.umich.edu/newsandinfo/features/Pages/ConstitutionDay_092215.aspx. 5 Whelan, supra note 3. 6 Vloet, supra note 4. 7 Lucas Rodriguez, The Troubling Partisanship of the Supreme Court, STANFORD POLITICS (Jan. 7, 2016), https://stanfordpolitics.org/2016/01/07/troubling-partisanship-supremecourt/. 8 How Judges and Justices Are Chosen, American Government Online Textbook, https://www.ushistory.org/gov/9d.asp.


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the United States Supreme Court. 9 During her historic confirmation hearing, due to the close proximity to an unprecedented Presidential election, 10 Barrett was asked to define originalism as a legal concept. 11 As a self-professed originalist, 12 Barrett stated: That means that I interpret the Constitution as a law, and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn't change over time and it's not up to me to update it or infuse my own policy views into it. 13

As an originalist, Barrett’s view of constitutional interpretation follows that of her late mentor Antonin Scalia, 14 who was known for his staunch conservatism. 15 However, Barrett noted a distinction: “‘you would not be getting Justice Scalia, you would be getting Justice Barrett.’” 16 Even though she makes this distinction, Justice Barrett is still an originalist and an almost guaranteed conservative vote on the Court, like Justice Scalia was. With her confirmation, Justice Barrett became the sixth conservative justice currently sitting on the Supreme Court, 17 and, as an originalist, many predict Barrett Senate Confirms Amy Coney Barrett to the Supreme Court, COMMITTEE ON THE JUDICIARY (Oct. 26, 2020), https://www.judiciary.senate.gov/press/rep/releases/senateconfirms-amy-coney-barrett-to-the-supreme-court. 10 Lawrence Hurley, Barrett’s U.S. Supreme Court Confirmation Edges Closer After Sunday Vote, REUTERS (Oct. 25, 2020), https://www.reuters.com/article/us-usa-courtbarrett/barretts-u-s-supreme-court-confirmation-edges-closer-after-sunday-voteidUSKBN27A0BP. 11 Brian Naylor, Barrett, An Originalist, Says Meaning of Constitution ‘Doesn’t Change Over Time,’ NPR (Oct. 13, 2020), https://www.npr.org/sections/live-amy-coney-barrettsupreme-court-confirmation/2020/10/13/923215778/barrett-an-originalist-says-meaningof-constitution-doesn-t-change-over-time. 12 Nomination of Amy Coney Barrett to the U.S. Supreme Court, Senate Judiciary Committee, U.S. Senate, 116th Cong. (2020), https://www.judiciary.senate.gov/imo/media/doc/Barrett%20Responses%20to%20QFRs.pd f. 13 Brian Naylor, Barrett, An Originalist, Says Meaning of Constitution ‘Doesn’t Change Over Time,’ NPR (Oct. 13, 2020), https://www.npr.org/sections/live-amy-coney-barrettsupreme-court-confirmation/2020/10/13/923215778/barrett-an-originalist-says-meaningof-constitution-doesn-t-change-over-time. 14 Id. 15 Aaron M. Houck, Antonin Scalia, ENCYCLOPEDIA BRITANNICA (March 7, 2020), https://www.britannica.com/biography/Antonin-Scalia. 16 Brian Naylor, Barrett, An Originalist, Says Meaning of Constitution ‘Doesn’t Change Over Time,’ NPR (Oct. 13, 2020), https://www.npr.org/sections/live-amy-coney-barrettsupreme-court-confirmation/2020/10/13/923215778/barrett-an-originalist-says-meaningof-constitution-doesn-t-change-over-time. 17 Tucker Higgins, Amy Coney Barrett Is Sworn In, Swinging Supreme Court Further to the Right, CNBC (Oct. 26, 2020), https://www.cnbc.com/2020/10/26/amy-coney-barrettsupreme-court-confirmation.html. 9


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will likely rule alongside her ideologically similar judicial colleagues in many cases. II. ORIGINALISM ON THE SUPREME COURT A. Originalism and Non-Originalism Originalism is often ideologically associated with conservatism. 18 It is defined as a judicial philosophy that holds that the “constitutional meaning was fixed at the time of the textual adoption and that the discoverable historical meaning of the constitutional text has legal significance and is authoritative in most circumstances,” 19 the working definition used in this Note comprises those who follow the original intent and meaning of the Constitution. Associate Justice Stephen Breyer wrote: Some judges believe the best way to interpret the Constitution, while building the public’s confidence in the objectivity of the Court’s decisions, lies in an approach called originalism. The judges who follow this approach look to history to discover what those who wrote the Constitution most likely thought about the content and scope of a constitutional phrase, and they interpret the phrase accordingly. 20

On the contrary, in the words of Justice Amy Coney Barrett, nonoriginalists “consider the text’s historical meaning to be a relevant factor in interpreting the Constitution, but other factors, like value-based judgments, might overcome it.” 21 While the view that non-originalism relies upon valuebased judgments is debated among scholarship, Barrett is within her right to ascertain that non-originalists do not rely solely on the original meaning of the Constitution like their counterparts. Comparing the two, Barrett went on to write, “originalists, by contrast [to non-originalists], treat the original meaning as a relatively hard constraint,” 22 which is a harsh divergence from the contrary view of the Constitution as a living, changing document that evolves with the changes of time and society. B. Contemporary Judicial Philosophies on the Court Many prominent justices in the modern era can be identified as originalists: most relevantly, this includes late Justice Antonin Scalia, Justice Whelan, supra note 3. Keith E. Whittington, Originalism: A Critical Introduction, 82 FORDHAM L. REV. 375, 378 (2013), https://ir.lawnet.fordham.edu/flr/vol82/iss2/2. 20 Stephen Breyer, Making Democracy Work: A Judge’s View, 76 (2010). 21 Amy Coney Barrett, Originalism and Stare Decisis, 92 NOTRE DAME L. REV. 1921, 1924 (2017). 22 Id. 18 19


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Barrett’s mentor, who was considered to be the champion of originalism.23 Currently, the Court consists of Justices Clarence Thomas, 24 Neil Gorsuch, 25 and Amy Coney Barrett 26 as palpable originalists of the majority. Barrett’s jurisprudence is similar to that of Thomas and Gorsuch, who share kindred theories of originalism. 27 Furthermore, it is generally agreed upon that Justices Samuel Alito 28 and Brett Kavanaugh 29 can be considered originalists as well, although they do not appear to espouse the theory quite like the aforementioned justices. While Alito has described himself as a practical originalist as “he believes ‘the Constitution means something and that that meaning doesn’t change,’” his jurisprudence is different from that of Thomas, for example. 30 Chief Justice John Roberts may be considered an originalist in some regards; however, it is important to consider that Roberts is deeply observant of precedent, which has shaped his own unique judicial philosophy. 31 While the effects of such a majority have yet to be seen, precedents set in many landmark cases, such as same-sex marriage, could realistically be altered or overturned by other court cases. III. LEGALIZATION OF SAME-SEX MARRIAGE

NPR Staff, Originalism: A Primer On Scalia’s Constitutional Philosophy, NPR (Feb. 14, 2016), https://www.npr.org/2016/02/14/466744465/originalism-a-primer-on-scaliasconstitutional-philosophy. 24 William H. Pryor Jr., Justice Thomas, Criminal Justice, and Originalism’s Legitimacy, 127 YALE LAW JOURNAL 173 (2017), http://www.yalelawjournal.org/forum/justicethomas-criminal-justice-and-originalisms-legitimacy. 25 John O. McGinnis, Which Justices Are Originalists, LAW AND LIBERTY (Nov. 9, 2018), https://lawliberty.org/which-justices-are-originalists/. 26 Nomination of Amy Coney Barrett to the U.S. Supreme Court, Senate Judiciary Committee, U.S. Senate, 116th Cong. (2020), https://www.judiciary.senate.gov/imo/media/doc/Barrett%20Responses%20to%20QFRs.pd f. 27 Ian Millhiser, Originalism, Amy Coney Barrett’s Approach to the Constitution, Explained, VOX (Oct. 12, 2020), https://www.vox.com/21497317/originalism-amy-coneybarrett-constitution-supreme-court. 28 Steven G. Calabresi & Todd W. Shaw, The Jurisprudence of Justice Samuel Alito, 87 THE GEORGE WASHINGTON LAW REVIEW 507 (2019). 29 Clip: Kavanaugh on Originalism, in Supreme Court Nominee Brett Kavanaugh Confirmation Hearing, Day 2, Part 2, C-SPAN (Sept. 5, 2018), https://www.cspan.org/video/?c4747420/user-clip-kavanaugh-originalism; see Christopher Sprigman, What Judge Kavanaugh’s “Originalism” Means for the Country, JUST SECURITY, (July 13, 2018), https://www.justsecurity.org/59392/judge-kavanaughs-originalism-means-country/. 30 Neil S. Siegel, The Distinctive Role of Justice Samuel Alito, 126 Yale L.J. F. 164 (2016), http://www.yalelawjournal.org/forum/the-distinctive -role-of-justice-samuel-alito. 31 Alonzo, Courtney C., The Strategic Justice: The Judicial Philosophy of Chief Justice John Roberts, 819 LAW SCHOOL STUDENT SCHOLARSHIP 1 (2015). 23


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Throughout history, there have been many cases heard by the Supreme Court that have both advanced and impeded the rights of LGBTQ+ identifying Americans. Bowers v. Hardwick (1986) upheld a Georgia sodomy law that effectively labeled LGBTQ+ persons as criminals and Lawrence v. Texas (2003) eliminated sodomy laws and overruled the aforementioned case. 32 Arguably one of the most recent landmark and controversial decisions in the Court’s history regarding LGTBQ+ rights is Obergefell v. Hodges (2015), which dictated same-sex couples the right to marry on the basis that marriage is a fundamental right protected under the Due Process Clause. 33 A. Obergefell v. Hodges Combining cases from Michigan, Kentucky, Ohio, and Tennessee of fourteen same-sex couples and two men whose partners were deceased, Obergefell claimed that the denial of legal recognition of their same-sex marriages lawfully performed in another state violated the Fourteenth Amendment. 34 This case presented an opportunity for same-sex marriage to finally be acknowledged as equal to heterosexual marriage in the eyes of the law. Moreover, it challenged the belief that a marriage can only be recognized as legitimate if it is heterosexually-oriented, or between man and woman. Ultimately, the Court ruled that marriage is a fundamental right guaranteed by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. 35 Through this decision, states cannot prevent the marriage of same-sex couples and must recognize the lawfulness of their union. 36 The legitimacy of the union of same-sex couples was finally accepted, and its cultural significance is portrayed through Justice Kennedy words: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were.” 37 In short, gay marriage was made legal across all 50 states. The decision was a 5-4 split: Justices Kennedy, Breyer, Ginsburg, Kagan, and Sotomayor wrote the majority with Chief Justice Roberts, along with Tara Law, 9 Landmark Supreme Court Cases That Shaped LGBTQ Rights in America, TIME (Oct. 8, 2019), https://time.com/5694518/lgbtq-supreme-court-cases/. 33 Kristin Haule, It’s Complicated: The Unusual Way Obergefell v. Hodges Legalized Same Sex Marriage, 49 Loy. L.A. L. Rev. 561 (2016). 34 Id. 35 Id. 36 Bill Chappell, Supreme Court Declares Same-Sex Marriage Legal In All 50 States, NPR (June 26, 2015), https://www.npr.org/sections/thetwoway/2015/06/26/417717613/supreme-court-rules-all-states-must-allow-same-sexmarriages. 37 Obergefell v. Hodges, 576 U.S. 644, 681 (2015). 32


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Justices Scalia, Thomas, and Alito as the minority. 38 Justice Kennedy, in the majority opinion, “asserted that the right to marry is a fundamental right ‘inherent in the liberty of the person’ and is therefore protected by the due process clause, which prohibits the states from depriving any person of ‘life, liberty, or property without due process of law.’” 39 This decision was reached as the Court determined that same-sex marriage was a fundamental right. 40 Provided by the Due Process Clause and the Equal Protection Clause, this fundamental right was able to be exercised similarly to heterosexual marriage. 41 In this case, Kennedy, a majority conservative-voting justice known for being a critical swing vote, 42 sided with the liberal justices. It is important to recognize that Kennedy is not an originalist; 43 his jurisprudence was not in line with the typical judicial philosophies commonly held on the Court and was largely influenced by concerns for individual liberties and freedoms. 44 Consequently, his jurisprudence led him to join the Court’s liberal justices on rulings in other cases; for example, those pertaining to LGBTQ+ rights and abortion. B. Dissenting Opinions In one of the four dissenting opinions of Obergefell, Chief Justice Roberts wrote, “the majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”45 Roberts is asserting that the argument used by Justice Kennedy in the majority opinion is not rooted in constitutional law, and, therefore, is not a legal judgment. He wrote: If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. 46

Obergefell v. Hodges, Encyclopedia Britannica (June 19, 2020), https://www.britannica.com/event/Obergefell-v-Hodges. 39 Id. 40 Obergefell v. Hodges, Legal Information Institute (Sept. 2018), https://www.law.cornell.edu/wex/obergefell_v._hodges. 41 Id. 42 Amelia Thomson-DeVeaux, Justice Kennedy Wasn’t A Moderate, FiveThirtyEight (July 3, 2018), https://fivethirtyeight.com/features/justice-kennedy-wasnt-a-moderate/. 43 Andrew Nolan, et al., Justice Anthony Kennedy: His Jurisprudence and the Future of the Court, U.S. Congressional Research Service (July 11, 2018). 44 Id. 45 Obergefell, 576 U.S. at 687. 46 Id. 38


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Roberts’ dissent encapsulates the assertation that, in the eyes of the Constitution, same-sex marriage is not recognized. However, as the majority concluded, Roberts is incorrect to contend that the Constitution has nothing to do with the decision in Obergefell. His declaration that the Constitution had nothing to do with the decision is arguably a misleading opinion as it is concluded based on his own interpretation of the Constitution that relies on if same-sex marriage was specifically mentioned or not. The Due Process Clause of the Fourteenth Amendment protects the fundamental right to marry, 47 and, therefore, the right to marry for same-sex couples, because they are seen as no different than heterosexual couples with regard to judicial precedent pertaining to the principles of marriage, 48 is expressly rooted in the Constitution. It is pertinent to understand that Roberts opinion emulates originalism through his interpretation that there is no basis for same-sex marriage as it was not specifically addressed in the Constitution. Thomas concluded his dissent with these lines: In its haste to reach a desired result, the majority misapplies a clause focused on ‘due process’ to afford substantive rights, disregards the most plausible understanding of the ‘liberty’ protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. 49

Thomas is essentially arguing that the majority has incorrectly applied the Due Process Clause in order to reach their desired result while ignoring the ramifications of this misapplication. Comparably, his opinion itself seems to rely upon the desired application of the clause to reflect a perception of the Founder’s vision for this nation and an interpretation of what “liberty” is protected. Thomas’ argument relies heavily on the “understanding of liberty and dignity upon which this Nation was founded.” 50 This understanding changes according to different justices’ jurisprudence. Notably similar to Chief Justice Roberts’ opinion, Thomas’ dissent is characterized by its root in originalism as it is formulated around the perceived original intent and meaning of the Constitution. IV. CHALLENGING THE SAME-SEX MARRIAGE PRECEDENT

Nathan S. Chapman et al., The Fourteenth Amendment Due Process Clause, Interactive Constitution, https://constitutioncenter.org/interactiveconstitution/interpretation/amendmentxiv/clauses/701#:~:text=The%20Due%20Process%20Clause%20guarantees,requires%20th at%20the%20government%20follow. 48 Obergefell v. Hodges, OYEZ, https://www.oyez.org/cases/2014/14-556 49 Obergefell, 576 U.S. at 736. 50 Id. 47


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On October 5, 2020, Justice Clarence Thomas, joined by Justice Samuel Alito, released a denial of certiorari for Kim Davis v. David Ermold that sought a reevaluation of the legal backing for Obergefell v. Hodges (2015) and discussed its implications. 51 Plaintiff Kim Davis was a former Kentucky county clerk and devout Christian, who held religious conviction that marriage is between man and woman. 52 Davis chose to follow her religious beliefs and not the Kentucky law when declining to issue marriage licenses to same-sex couples, and, therefore, was “sued almost immediately for violating the constitutional rights of same-sex couples.” 53 Thomas, joined by Alito, characterized Davis as “one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision” 54 and noted that she “will not be the last.” 55 The justices argued, through an originalist interpretation of the Constitution that is similar to Justice Thomas’ original dissent in 2015, that Obergefell is constitutionally unfounded with its decision baselessly rooted in the Fourteenth Amendment. 56 Justices Thomas and Alito follow this assertion with what they believe are the ramifications of this decision by including Kim Davis’ case as part of their justification. Their argument concludes that the decision will threaten the religious liberty and free exercise of Americans who view marriage as between one man and one woman as a result of the Court not allowing States to create legislation to accommodate these Americans’ religious liberties. 57 In the justices’ view, the religious liberties and rights dictated by the Free Exercise Clause of many Americans have been lambasted and cast aside as a result of Obergefell. Furthermore, the statement professed that Obergefell “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots.” 58 By labelling such beliefs as bigotry, the justices believe that it enables the dismissal of concerns stemming from perceived loss of religious liberty and provides an opportunity for such. 59 The justices concluded with the closing assertion that the decision in Obergefell is a threat to religious liberty for Americans who view marriage as a sacred union between man and woman and will have “ruinous consequences.” 60 Justices Thomas and Alito are contending that, as a result of what they perceive to be Kim Davis v. David Ermold, et al. 592 U.S. __ (2020). Id. 53 Id. 54 Id. 55 Id. 56 Id. 57 Id. 58 Id. 59 Id. 60 Id. 51 52


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the constitutionally baseless decision in Obergefell, religious liberties decreed under the First Amendment 61 are being impeded and will continue to be until the Court corrects what the justices perceive to be a mistake. With the passing of Ruth Bader Ginsburg just weeks prior to release, Justices Thomas and Alito’s statement only fueled mounting fears of the impact a 6-3 conservative majority could have on gay marriage rights. Both Jim Obergefell and Richard Hodges, the two opposing sides in Obergefell, vocalized this consternation at a Family Equality press conference by asserting that Amy Coney Barrett’s confirmation is “very threatening” for the LGBTQ+ community. 62 Unexpectedly, the former oppositions share concern for LGBTQ+ rights with Barrett on the Court. While overturning or revising the Obergefell decision may seem relatively implausible, it must be noted that all six of the sitting conservative justices are arduous proponents of expansive religious rights. 63 Justices Thomas and Alito’s statement exhibits the belief that Obergefell impedes the free exercise of many Americans’ religious liberties; a belief that could plausibly be shared by other advocates for extensive religious liberties. This can prove to be crucial for gay marriage: rooted in originalism, precedent shows a jurisprudential consideration of the decision in Obergefell as an infringement upon religious liberty. V. CONCLUSION Considering that the Court has increasingly reviewed cases pertaining to LGBTQ+ rights, it is highly plausible that a case with the legal potential to challenge Obergefell v. Hodges may be considered in the near future. Although many view the legality of gay marriage through the guise of established precedent that cannot realistically be overturned, the recent statement penned by Justices Thomas and Alito seemingly defines their will to overturn the precedent. However, there is the common misjudgment that these conservative justices are against same-sex marriage as a result of their political party: Obergefell is at risk of alteration not because of perceived partisanism, rather an originalist interpretation of the Constitution. Already, the factors that led to the decision in favor of the plaintiff five years ago have all but evaporated: the makeup of the Court has shifted from Id. See also U.S. CONST. amend. I. Elinor Aspegren, ‘Very threatening’ for LGBTQ community: Same-sex marriage defendent, plantiff join forces to oppose Amy Coney Barrett’s nomination, USA TODAY (Oct. 20, 2020) https://www.usatoday.com/story/news/2020/10/20/amy-coney-barrettconfirmation-could-threaten-lgbtq-rights-equality/3666505001/. 63 Nina Totenberg, Justices Thomas, Alito Blast Supreme Court Decision on Same-Sex Marriage Rights, NPR (Oct. 5, 2020), https://www.npr.org/2020/10/05/920416357/justices-thomas-alito-blast-supreme-courtdecision-on-gay-marriage-rights. 61 62


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a 5-4 conservative lean to a significant conservative majority of 6-3 solidified by U.S. President Donald Trump’s recent nominations of Justices Gorsuch, Kavanaugh, and Barrett. While there was notably still a conservative majority in 2015, the composition of the Court held a crucial ideological swing seat, Justice Kennedy, for the conservative or liberal philosophies. However, Kennedy was markedly not an originalist, 64 which contributed to his decision in tandem with liberal justices in Obergefell. By evaluating the ruling in Obergefell with this in mind, the understanding of the decision as partisan with a moderate swing vote changes into the idea that it was really a split between originalist and non-originalist interpretations of the Constitution in the context of same-sex marriage. Taking this conclusion into account, it remains likely that the conservative Court of today would rule against the constitutionality of samesex marriage based upon the shift toward originalism in the five years since Obergefell. Considering Kennedy’s retirement, 65 the likelihood that his vote would swing to side with the liberal justices in cases pertaining to LGBTQ+ rights has been replaced with Kavanaugh’s more reliably conservative vote. 66 Principally, since the three recently appointed justices can be considered originalists, it is plausible that they would likely concur with the arguments raised in the four dissenting opinions of Obergefell and the originalismrooted argument made by Justices Thomas and Alito in their recent statement. Furthermore, with Justices Kavanaugh, Gorsuch, and Barrett being staunch proponents of religious rights and free exercise of religion, 67 it is not unreasonable to ascertain that they would side against Obergefell when considering how the dissenting opinions and Justices Thomas and Alito’s statement emphasize how religious liberty has and will be infringed upon and seemingly overlooked. Barrett has indicated her disagreement with the decision in 2015. 68 This essentially guarantees that there would not be the possibility of a swing vote, let alone two, that would be necessary for the outcome of Obergefell to be the same if it were decided today, even if Roberts diverts U.S. Congressional Research Service. Justice Anthony Kennedy: His Jurisprudence and the Future of the Court (R45256, July 11, 2018), by Andrew Nolan, Kevin M. Lewis, and Valerie C. Brannon. Text in: https://fas.org/sgp/crs/misc/R45256.pdf 65 Id. 66 Amelia Thomson-DeVeaux, The Supreme Court Might Have Three Swing Justices Now, FiveThirtyEight (July 2, 2019), https://fivethirtyeight.com/features/the-supreme-courtmight-have-three-swing-justices-now/. 67 Nina Totenberg, Justices Thomas, Alito Blast Supreme Court Decision on Same-Sex Marriage Rights, NPR (Oct. 5, 2020), https://www.npr.org/2020/10/05/920416357/justices-thomas-alito-blast-supreme-courtdecision-on-gay-marriage-rights. 68 Id. 64


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from his original position because of a reliance on precedent. Consequently, the conclusion that same-sex marriage and its accompanying rights, guaranteed in Obergefell, are at risk and will be altered or overturned if a similar case is taken up by today’s court is exceedingly plausible. ***


NOTE THE FUTILITY OF EXECUTIVE ENVIRONMENTAL ROLLBACKS Nick Wolf*

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Throughout Donald Trump’s campaign and presidency, his lenient stance regarding environmental protections and regulations has become evident. From denying the existence of anthropogenic climate change, 70 to rolling back several Obama-era environmental regulations, 71 Trump has subverted and neglected the role of the executive branch concerning environmental protection. His dereliction of this duty has largely been motivated by short term economic benefits and protectionist policies designed to restore the prevalence of fossil fuels in the American economy. However, in doing so, environmental policies following this model have generated an innumerable number of environmental lawsuits against the Trump administration. Furthermore, the Trump administration and relevant Federal Agencies (primarily the Environmental Protection Agency) have fared poorly in these environmental lawsuits, losing 83 of 102 major environmental and energy related cases. 72 States like California, New York, and Maryland in addition to companies and nonprofits such as the Environmental Defense Fund and Invenergy have been particularly effective in legal proceedings against the Trump administration for environmental malpractice. 73 Moreover, their success has incentivized other states, counties, and companies to take similar action and attempt to repel Trump-era environmental rollbacks. 74 The relatively onesided nature of these environmental lawsuits illustrates the seemingly * B.A. Candidate for Political Science and Environmental Studies, Fordham College at Rose Hill, Class of 2023. It has been an honor to be a member of the Fordham Undergraduate Law Review as a Staff Writer. I am excited and motivated to encourage the growth and success of this Journal. I am grateful for the Editorial Board’s tremendous contributions and support as well as my friends and family, who have and always will be incredibly loving and supportive. 70 Helier Cheug, What does Trump actually believe on climate change?, The BBC (1/23/20), https://www.bbc.com/news/world-us-canada-51213003 (Discussing Trump’s denial of human generated climate change). 71 Anna Phillips, In California vs. Trump, the state is winning nearly all its environmental cases, The Los Angeles Times (May 7, 2019), https://www.latimes.com/politics/la-na-polcalifornia-trump-environmental-lawsuits-20190507-story.html (Discussing the results of Trump’s dismantling of Obama-era environmental regulations). 72 Institute for Policy Integrity: New York University Law, https://policyintegrity.org/. 73 Phillips, supra note 3. 74 Id. 69

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insurmountable difficulties and the futility for a president to utilize their executive authority in an attempt to bypass and undermine standing environmental legislation. Of these cases, The State of California, v. The EPA, 75 EDF v. EPA, 76 and Invenergy Renewables LLC, et al. v. United States, 77 all of which were decided in 2019, exemplify the aforementioned impracticality in the executive branch attempting to circumvent environmental legislation. Alterations to executive environmental policy are not uncommon, however, the number of lawsuits Trump has faced regarding his environmental policy is an oddity. While executive policies designed to relax environmental restrictions aren’t a novel phenomena, the growing scientific and public awareness of the necessity of environmental protections has made executing such policies legally challenging. Conversely to Trump’s constant legal struggle to push his environmental agenda, the Obama administration was influential in altering executive environmental policy. U.S. President Obama’s most sweeping executive environmental reform was the Clean Power Plan, 78 which sought to expand executive environmental authority regarding greenhouse gas emissions. While not spared from legal challenges in entirety, as evidenced by The State of West Virginia v. The EPA, 79 ruled in 2016, and other lawsuits challenging the policy, the plan displays a novel trend regarding executive environmental authority. Specifically, in recent years, manufacturing effective and enduring environmental policy from executive power is an onerous task, for policies designed to place restrictions and those attempting to relax regulations alike. However, while most alterations to executive authority in this regard have been remanded in a variety of rulings, pro-environmental policy has become increasingly resistant to legal challenges, while policies designed to roll back executive authority in this regard have become more vulnerable to litigation. I.

II. III.

INTRODUCTION.................................................................................. 15 A. The State of California v. The EPA (2019) .......................... 15 B. Invenergy Renewables LLC v. United States ....................... 15 C. EDF v. EPA.......................................................................... 16 SUBSTANCE OF LOSSES ..................................................................... 17 PRO-ENVIRONMENTAL COMPARISON ................................................ 18

California v. EPA, No. 18-3237, 2019 WL 1995769 (N.D. Cal. May 6, 2019). EDF v. EPA, 922 F.3d 446 (D.C. Cir. 2019). 77 Invenergy Renewables LLC v. United States, 422 F. Supp. 3d 1255 (CIT 2019). 78 Clean Power Plan, 80 FR 64662 (Apr. 4, 2017). 79 State of West Virginia, et al. v. EPA, U.S. Court of Appeals for the D.C. Circuit, No. 151363. 75 76


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A. Executive Implications ......................................................... 20 CONCLUSION: FUTURE ACTION ......................................................... 21 I.

INTRODUCTION

A. The State of California v. The EPA (2019) The State of California, v. The EPA, was filed by eight states, led by California, and asserted the EPA had failed to execute its responsibility in regulating and enforcing gas emissions. The plaintiffs cited the agency’s neglect of the Clean Air Act of 1970 80 as grounds for legal action. Moreover, they alleged the defendants intentionally attempted to undermine emission guidelines 81 (limiting emissions of VOCs, air pollutants, and greenhouse gases) established by the aforementioned act. Specifically, the plaintiffs claimed the agency deliberately failed to carry out its statutory duty by failing to monitor emissions from municipal solid waste landfills across the country. 82 As the Clean Air Act deliberates the responsibility of enforcing gas emissions standards to the EPA combined with ample evidence to suggest the EPA was being conducted improperly in this regard, the federal district court for the Northern District of California ruled in favor of the plaintiffs. The judges of the case reached the conclusion that the EPA had neglected its function to enforce the Clean Air Act of 1970 across all 50 states. 83 Thus, the court ordered the EPA carry out and implement emission guidelines. 84 B. Invenergy Renewables LLC v. United States Invenergy Renewables LLC, et. al. v. The United States was filed in response to the Trump administration’s attempt to terminate tariff exemptions for solar panels. In line with Trump’s protectionist stances 85 he sought to implement safeguard measures on bifacial solar panels. In doing so, the president delegated responsibility for this act to the United States Treasury Department (USTR) to carry out this mandate. 86 When the USTR rolled back tariff exemption for bifacial solar panels with only 19 days public notice — Clean Air Act, 42 U.S.C. § 7604 (a2). California v. EPA, No. 18-3237, 2019 WL 1995769 (N.D. Cal. May 6, 2019). 82 Id. 83 Id. 84 Id. 85 Trade wars, Trump tariffs and protectionism explained, BBC, (May 10, 2019), https://www.bbc.com/news/world-43512098 (Explaining Donald Trump’s protectionist policies). 86 Invenergy Renewables LLC v. United States, 422 F. Supp. 3d 1255 (CIT 2019). 80

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thereby limiting affected parties’ ability to comment on the decision — Invenergy and others took legal action. The plaintiffs asserted the abrupt nature of withdrawal was carried out in direct violation of the Administrative Procedure Act of 1946. 87 This act “governs the process by which federal agencies develop and issue regulations” 88 including an assurance of a 30-day abeyance prior to enacting federal regulations. 89 Due to this restriction of federal enactment, the plaintiffs asked the court to issue a preliminary injunction to prevent this regulation from occurring. 90 The United States Court of International Trade complied, and have refused to lift the injunction. C. EDF v. EPA The EDF v. EPA was filed after the EPA relinquished questions mandated through the Toxic Substances Control Act 91 regarding the confidentiality of reverse engineered chemicals. This act was proposed to “assure that innovation and commerce in chemical substances and mixtures do not present an unreasonable risk of injury to health or the environment.” 92 Moreover, the act charged the EPA with compiling a list of all manufactured chemicals across the United States. This list termed the “Inventory” 93 contains two primary sections, a confidential section (containing generic chemical identities) and a non-confidential section which (containing specific chemical identities of substances). In 2016, Amendments to the Act required the EPA also designate substances as active or inactive in U.S commerce. 94 Through this process, the EPA established the “Inventory Rule” which, at face value, was designed to reorganize the “Inventory” by reducing the number of chemicals ideates contained in relevant archives. However, in doing so, the EPA eliminated questions regarding companies’ production of chemicals that the agency itself deemed "not readily discoverable through reverse engineering.” 95 The plaintiffs asserted that abandoning questions regarding reverse engineering and the “Inventory Rule” as a whole was The Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. (1946). Summary of the Administrative Procedure Act, U.S. Environmental Protection Agency (EPA), 2020, https://www.epa.gov/laws-regulations/summary-administrative-procedureact. 89 Id. 90 Invenergy Renewables LLC v. United States, 422 F. Supp. 3d 1255 (CIT 2019). 91 Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. 92 Summary of the Toxic Substances Control Act, U.S. Environmental Protection Agency (EPA), 2020, https://www.epa.gov/laws-regulations/summary-toxic-substances-control-act. 93 Id. 94 The Frank R. Lautenberg Chemical Safety for the 21st Century Act, U.S. Environmental Protection Agency (EPA), 2020, https://www.epa.gov/assessing-and-managing-chemicalsunder-tsca/frank-r-lautenberg-chemical-safety-21st-century-act. 95 EDF v. EPA, 922 F.3d 446 (D.C. Cir. 2019). 87

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arbitrary and deprived the public of understanding in regards to these chemicals. 96 The U.S. Court of Appeals for the D.C. Circuit agreed and subsequently ruled in favor of the plaintiffs, citing the “Inventory Rule” was in direct violation of the Toxic Substances Control Act and ordered a limited remand on the EPA to attend to their questions regarding reverse engineering. II.

SUBSTANCE OF LOSSES

The vast majority of environmental lawsuits filed against the Trump Administration have generally followed the same basic legal premises. As Trump’s environmental policy has been largely based around deconstructing Obama-era regulations, 97 he has taken radical action to dismantle his predecessor’s policies. Yet, in attempting to do so, a large number of executive environmental rollbacks have remained in litigation for an extensive period of time. 98 Trump-era environmental policy has often dissented from, and attempted to compromise standing environmental legislation. The unprecedented nature of his policies has rendered them largely vulnerable to extensive litigation. The three aforementioned cases correspond with this pattern. The State of California, v. The EPA, exemplifies the impediments for a president to dodge executive environmental responsibilities. This case follows the aforementioned prototypical model of environmental lawsuits against the Trump administration. The Trump administration, through the EPA, sought to undermine standing environmental legislation in the form of the Clean Air Act of 1970 99 by neglecting its statutory responsibility prescribed by the Act. Consequently, eight states resisted the purposeful inattention of the EPA and sued the executive agency. As with the majority of Trump-era environmental lawsuits, the plaintiffs emerged victorious, and the EPA was ordered to fulfill its statutory duties assigned by the aforementioned Act. 100 This case exemplifies the futility of the executive branch disregarding the directives of standing environmental legislation.

96

Id. Emma Newburger, Trump is rolling back over 80 environmental regulations, CNBC (Dec. 24, 2019), https://www.cnbc.com/2019/12/24/5-major-trump-climate-rollbacks-youmight-have-missed-in-2019.html (Describing the Trump Administration’s rollbacks of Obama-era environmental policies). 98 Dana Nuccitelli, Most Trump environmental rollbacks will take years to be reversed, Yale Climate Connections (June 3, 2020), https://yaleclimateconnections.org/2020/06/most-trump-environmental-rollbacks-will-takeyears-to-be-reversed/ (Discussing Implications for Trump-Era environmental rollbacks). 99 Clean Air Act 42 U.S.C. § 7604 (a2). 100 California v. EPA, No. 18-3237, 2019 WL 1995769 (N.D. Cal. May 6, 2019). 97


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Both the EDF v. EPA and Invenergy Renewables LLC, v. United States display legal complications involved with rollbacks of environmental regulations and standards. Rather than attempting to undermine executive environmental proceedings as discussed prior, these cases address efforts to entirely rewrite standards and practices. Both cases involved the Trump administration aiming to rollback the executive branch’s responsibility regarding environmental regulation by utilizing amendments and other novel federal policies. Despite this masquerade, the Trump administration was met with legal resistance from environmental advocacy companies and nonprofits such as Invergy and the EDF. The plaintiffs asserted that these alterations of executive environmental authority were still in violation of standing legislation. Even when the executive branch attempted to operate through their prescribed authority in an attempt to rollback environmental standards (rather than undermining them entirely) legal opposition rendered their attempts futile nonetheless. These cases exemplify the fact that the combined efforts of state coalitions and environmental advocacy groups have been effective in stalling the Trump Administration’s efforts to rollback executive environmental authority. While judicial resistance to presidential action is commonplace, the unprecedented frequency and successfulness of litigation generated in response to Trump’s environmental policy has been significant. This is due to the fact that his policies have taken extensive legal effort to push through, yet have produced little in the way of legal victory. 101 The arduous legal process that has been required to sustain Trump’s environmental agenda has rendered much of his policy unable to be enforced or implemented at all. Moreover, this lopsided legal battle as evidenced by these three cases has revealed a precedent of insinuation for executive environmental policy. III.

PRO-ENVIRONMENTAL COMPARISON

Contrary to the Trump administration, Obama-era environmental policies were largely designed to impose restrictions and regulations on polluters as well as encourage investment into clean energy. 102 His domestic policies such as The Clean Power Plan 103 were largely effective in rollout and execution throughout the course of his presidency. Similar to Trump’s aforementioned environmental policy, Obama’s plans were largely tied and confined with standing environmental legislation. However, while Trump attempted to work around and create loopholes through these laws, Obama’s policies Institute for Policy Integrity: New York University Law, https://policyintegrity.org/. Office of Energy Efficiency and Renewable Energy, President Obama’s Climate Action Plan, (June 1, 2013). 103 Clean Power Plan, 80 FR 64662. 101

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promulgated them. The Clean Power Plan for example relied on bolstering aspects of the Clean Air Act. 104 Rather than attempting to scale back executive responsibility for administering this law, Obama’s plan allowed the EPA to set carbon emission standards for new fossil fueled power plants,105 which was previously not provisioned under the act. While this policy was not challenged legally to the same extent as Trump's, the former did face legal hurdles. The most prominent of such cases challenging the Clean Power Plan was West Virginia v. EPA, 106 which was filed in 2015 and sought to overturn this novel policy. This lawsuit was filed by a broad coalition of states, led by West Virginia, as well as coal and other energy companies. 107 The plaintiffs’ claims centered around the notion that the Clean Power Plan was an overreach of executive power and a violation of the separation of powers. 108 This case was litigated extensively, yet remained in effect throughout Obama’s presidency. Moreover, while the plan was ultimately stayed by the Supreme Court of the United States 109 and replaced by the Affordable Clean Energy Rule, 110 this policy still was effective in altering executive environmental policy. This was due to the fact that the EPA was given the statutory function to regulate greenhouse gas emissions across the nation, even under Trump’s new policy. Obama’s policy relied upon prior court decisions to allow the EPA to regulate greenhouse gas emissions. This policy was able to function largely due to the landmark Supreme Court case American Elec. Power co. v. Connecticut. 111 This case involved a variety of states, led by Connecticut, who pressed public nuisance charges against American Electric Power for releasing large amounts of carbon dioxide into the atmosphere. 112 After reaching the Supreme Court of the United States, it was eventually ruled that the Clean Air Act prescribed the EPA with regulating greenhouse gas emissions and that federal common law was displaced by the act. This decision allowed the Obama Administration to roll out a Clean Power Plan with relative efficiency and relatively minimal legal troubleshoots during his term. Moreover, the Clean Power Plan’s reliance on this ruling has created a Review of the Clean Power Plan, Fed. Reg. 16329-16330 (Apr. 4, 2017). Clean Power Plan, supra note 35. 106 State of West Virginia, et al. v. EPA, U.S. Court of Appeals for the D.C. Circuit, No. 151363. 107 Id. 108 Id. 109 Benjamin Harris, What the Supreme Court’s Stay of the Clean Power Plan Means for the EPA’s Greenhouse Gas Regulation Moving Forward, Vermont Journal of Environmental Law (Feb. 10, 2016). 110 Affordable Clean Energy Rule, 84 FR 32520. 111 American Elec. Power co. v. Connecticut (No. 10-174) 582 F. 3d 309. 112 Id. 104

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new precedent for the EPA to regulate greenhouse gas emissions to some extent, even under Trump’s novel Affordable Clean Energy policy. A. Executive Implications Throughout his term, President Trump and his administration have attempted to reverse or rollback more than 100 environmental rules and regulations. 113 However, a large percentage of these proposals have been met with stiff legal resistance. The aforementioned cases signify the difficulties for a president to utilize executive authority to bypass federal environmental regulations. Moreover, the litigation processes of cases challenging Trumpera environmental policy alone could entirely hinder his administration’s environmental agenda. 114 The extensive and legally challenging nature of executive environmental rollback policies renders any presidential administration ineffective in executing these policies. This has been made evident by the fact that much of Trump’s agenda has been stalled in court. 115 A prominent example of such judicial block to Trump’s environmental agenda was his inability to scrap the impact the Clean Power Plan 116 had on the executive branch. At face value, Trump was successful in dismantling his predecessor’s most prominent environmental achievement through his executive order creating the Affordable Clean Energy Rule. 117 However, prior court and legislative precedent made this action largely superficial and non-effective. 118 While the Trump administration desired to scrap the entirety of the plan, the regulatory responsibilities it prescribed the EPA could not be undone due to the Clean Air Act and the ruling the Supreme Court of the United States reached in American Elec. Power co. v. Connecticut. 119 Moreover, while the aforementioned Clean Power Plan was short-lived in technicality, its

Nadja Popovich, et al., The Trump Administration is Reversing 100 Environmental Rules. Here’s the Full List, New York Times (May 20, 2020), https://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html (Discussing the Trump Administration’s environmental rollback policy). 114 Nuccitelli, supra note 30. 115 Id. 116 Clean Power Plan, supra note 35. 117 Affordable Clean Energy Rule, supra note 42. 118 Dana Nuccitelli, The Trump EPA strategy to undo Clean Power Plan, Yale Climate Connections (June 21, 2019), https://yaleclimateconnections.org/2019/06/the-trump-epastrategy-to-undo-the-clean-power-plan/ (Discussing President Trump’s plan to replace the Clean Power Plan). 119 Review of the Clean Power Plan, supra note 36. 113


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objectives have lingered in executive responsibility, thus displaying a new trend for the relative ease of bolstering executive environmental authority. 120 IV.

CONCLUSION: FUTURE ACTION

The extensive litigation that the Trump Administration’s environmental rollbacks have garnered has rendered their objectives futile. In attempting to work around, find loopholes in, or entirely neglect standing environmental legislation, Trump has faced 102 major environmental and energy-related court cases, and lost the overwhelming majority of such lawsuits. However, the Obama administration also altered executive environmental authority, yet did not face the same legal difficulties as that of the Trump administration. The only dissimilarity between the two being that the latter administrations’ proposals were largely pro-environmental and worked to promulgate environmental legislation through executive authority. Moreover, legal challenges pressing policies that expand executive environmental authority have fared well in court, and have been maintained in that regard. The judicial difficulties in scaling back the executive branch’s role in environmental enforcement largely prevent any president from achieving this goal. This futility exposes the inherent inutile nature of an antienvironmentalist platform. While major alterations to executive environmental policy tend to generate legal resistance, it is undeniable that Trump’s policies have faced more lawsuits and have fared worse when legally challenged. This can largely be attributed to the inherent impermanence of executive policy when compared to the longevity of standing legislation and prior court decisions. While the act of passing environmental legislation itself is an onerous process, 121 and court decisions that drastically alter environmental precedent are rare, once the legislation is enacted or a novel legal result has been verified, the responsibility assigned to the executive branch is largely immovable and complex to circumvent. Thus, any president attempting to revert to primordial environmental standards and practices is merely dissipating valuable time and resources. *** Keith Gaby, Ready to defend Obama’s environmental legacy? Top 10 accomplishments to focus on, The EDF (Jan. 12, 2017), https://www.edf.org/blog/2017/01/12/ready-defendobamas-environmental-legacy-top-10-accomplishments-focus (Discussing President Obama’s environmental policy accomplishments). 121 Richard Lazarus, Environmental Law Without Congress, 30 Florida State College of Law 15 (Fall 2014), (Discussing difficulties in passing environmental legislation through Congress). 120


NOTE IT’S TIME FOR BIG COMPANIES TO CLEAN UP THEIR ACT: A LOOK INTO WHY THE UNITED STATES IS STILL DRINKING CONTAMINATED WATER AND WHO'S TO BLAME Olivia Frantzeskos*

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Water is the most important natural resource for humans and ecosystems, and yet remains most commonly mistreated. Not only does environmental degradation yield permanent scars on the Earth, but also jeopardizes the health of both the environment and its inhabitants until severe action is taken. Water polluted by chemical toxins begins with the irresponsible disposal of toxic waste that ultimately leaches into environmental ecosystems, which excretes into drinking water resources. This process poses long-term health threats to the public. In the United States, large corporations have been ignoring regulations and will continue doing so as long as there are no imminent damaging repercussions. Examples of such industrial pollution include the ongoing effects from the Flint Water Crisis, as well as the devastating impacts from the 3M Company, the Chemours Company and DuPont. These companies have denied allegations of toxic dumping after it was discovered that they were suppressing evidence of irresponsibly disposing of toxic “forever” chemicals that contaminated water supplies within the United States and are now visibly present in communities across the country. While numerous pieces of legislation have been passed to prevent these pollutive disasters, including the Clean Water Act of 1972 and the Safe Drinking Water Act, it is plausible that a new law needs to be created to keep up with the country’s mass economic growth and increasing need for waste disposal. This Note will address the injustice of water contamination to domestic waterways in the United States by corporations and the injustice of releasing chemical companies from accountability to pre-existing stringent laws. I.

INTRODUCTION.................................................................................. 23

*B.A. Candidate for Environmental Studies, Fordham College at Rose Hill, Class of 2023. I would like to express my immense gratitude for the opportunity to be a writer for the Fordham Undergraduate Law Review. This Note would not have been possible without the incredible support from my family. Additional thanks are due to the dedicated Editorial Board for their guidance on my research, especially Caroline Morris, Arianna Chen, and Tyler Raciti for their continuous efforts. 122

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ANALYZING THE LEGISLATION PUT INTO ACTION ............................ 24 A. The Clean Water Act of 1972 ............................................... 24 B. The Safe Drinking Water Act ............................................... 25 A CLOSER LOOK AT SPECIFIC SUITS ................................................. 25 A. Flint Water Crisis................................................................. 25 B. 3M Company, Chemours Company and DuPont ................. 28 CONCLUSION ..................................................................................... 29 I. INTRODUCTION

Since the early twentieth century, America’s population has been exponentially increasing, and thus creating greater economic demand within the market. Through the creation of large cities and greater densities of people, this boom of industrialization brought greater amounts of energy and chemical pollution that largely bled into water reservoirs and drinking water systems. 123 By 1969, only 59% of drinking water systems in the United States met the preexisting federal standards for safe consumption. 124 However, public health authorities did not consider the matter of industrial pollution a pending issue; they disregarded the toxic components found in industrial waste and considered them to be “beneficial sterilizing additives” for bacteria in city discharges. 125 This was founded in the popular belief that water pollution was inevitable for the growing municipal industries and would continue to be a product of the urban environments without immense repercussions. Consequently, as more health issues arose, the federal government implemented greater regulatory efforts to minimize the rates of water pollution. With a mission statement of “improving the quality of the nation’s waters,” 126 the Clean Water Act of 1972 is one example of legislation passed in order to help carry out regulatory goals. Currently, the issue of water contamination has been monitored and researched for years by groups such as the Environmental Protection Agency (EPA), Environmental Working Group (EWG), and the New York Department of Environmental Conservation (DEC). These federal/state departments and nonprofit Population Reference Bureau, America’s Diversity and Growth: Signposts for the 21st Century, (June 1, 2000), https://www.prb.org/americasdiversityandgrowthsignpostsforthe21stcenturypdf503kb/. 124 Environmental Protection Agency, Community Water Supply Study: Analysis of National Survey Findings (1970). 125 Craig E. Colten & Peter N. Skinner, The Road to Love Canal: Managing Industrial Waste Before EPA, 24 (1995). 126 Tim Martins, Clean Water Act Abstracts, https://www.grc.nasa.gov/WWW/k12/fenlewis/cwa.htm. 123


24 IT’S TIME FOR BIG COMPANIES TO CLEAN UP THEIR ACT [Vol. 1 organizations are the main definitive agencies actively determining the classification of safe or unsafe water for consumption. 127 In October of 2017, the EWG discovered that arsenic and hexavalent chromium, two of the most threatening and prevalent chemicals, were found in drinking water throughout all 50 states. 128 Large corporations, manufacturers and power plants are the main culprit to blame for this finding. In a recent report conducted by Environment America Research & Policy Center, it was revealed that corporate agribusiness is the leading major contributor to water pollution in the United States. 129 Without a drastic regulatory change in how these large companies are allowed to carry out their waste disposal, the quality of America’s reservoirs and drinking water systems will continue to deteriorate at the expense of keeping economic interests safe. II. ANALYZING THE LEGISLATION PUT INTO ACTION A.

The Clean Water Act of 1972

In an attempt to codify regulations for industrial water pollution through the legislative branch, the federal government has most famously implemented the Clean Water Act of 1972. Also known as the Federal Water Pollution Control Act, the legislation holds states responsible for maintaining and reporting their water quality levels as consistent with established standards for drinking, fishing and recreation. 130 In alignment with programs outlined in the Act such as the Resource Conservation and Recovery Act (RCRA), 131 this creates a system of cooperative federalism, whereby the states and other regulated entities can submit reports for Environmental Protection Agency review. 132 The National Pollutant Discharge Elimination System (NPDES) is another fundamental program outlined in the Act, issuing permits to state governments so that they properly conduct the elimination of

Center for Disease Control and Prevention, Drinking Water FAQ, (2020), https://www.cdc.gov/healthywater/drinking/public/drinking-water-faq.html. 128 Environmental Working Group, New York City Group, (2019), https://www.ewg.org/tapwater/system.php?pws=NY7003493. 129 John Rumpler, Corporate Agribusiness and the Fouling of America’s Waterways, Environment America Research & Policy Center, (June 2016), https://environmentamerica.org/sites/environment/files/reports/CorpAgFoulingWaterways2 016-web_0.pdf. 130 Federal Water Pollution Control Act, 33 U.S. Code § 1313 (1948). 131 33 U.S. Code § 1313. 132 Environmental Law Institute, Mapping the Energy Policy Landscape, (Aug. 2010), https://www.eli.org/sites/default/files/eli-pubs/d20-05.pdf. 127


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regulated pollutants. 133 Establishing liability for hazardous spills, the Act specifically delegates sanctions to a “person,” which “includes an individual, firm, corporation, association, and a partnership.” 134 B.

The Safe Drinking Water Act

The Safe Drinking Water Act (SDWA) was created to establish regulations for safe drinking water quality in the United States. The criteria outlined within the SDWA accounts for the assurance of a supply of drinking water in compliance with the regulatory standards of contaminant levels and quality control. 135 With a specific focus on “all waters actually or potentially designed for drinking use, whether from above ground or underground sources,” this law authorizes the EPA to establish health-related standards for owners and operators of public water systems in order to protect the quality of tap water. 136 In putting communities at risk for ingesting high contaminant levels through endangered public water systems, administrators that fail to comply with these procedures are held liable to promulgate comprehensive information on public health risk assessment and management under the 1996 amendments to the SDWA. 137 III. A CLOSER LOOK AT SPECIFIC LAWSUITS Within the United States, there has been a history of large corporations or persons responsible for haphazardly disposing toxic pollutants into waterways. The most well-known examples of environmental disasters are the Flint Water Crisis and the devastating actions of Dupont, 3M, and Chemours. Upon examining the process of how these companies polluted and the ramifications of each of these environmental disasters, it becomes evident that similar flaws exist within the nation’s water infrastructure and mismanagement of public health crises. A.

Flint Water Crisis

Within the city of Flint, Michigan, thousands of residents continue to battle with the ongoing injustice of a contaminated water supply. On April 25, 2014, the city of Flint switched its interim source of water from the 40 CFR § 123.3. 33 U.S. Code § 1321. 135 Safe Drinking Water Act, 42 U.S. Code § 300f (1974). 136 United States Environmental Protection Agency, Summary of Safe Drinking Water Act, https://www.epa.gov/laws-regulations/summary-safe-drinking-water-act. 137 Id.§ 300g–1 (3B). 133 134


26 IT’S TIME FOR BIG COMPANIES TO CLEAN UP THEIR ACT [Vol. 1 Detroit Water and Sewage Department (DWSD) to the Flint River to save money, as it awaited the construction of an alternate pipeline to the Karegnondi Water Authority (KWA). 138 This alteration was projected to save the city a few million dollars. In a press release by Flint officials, Michael Prysby of the Michigan DEQ Office of Drinking Water attempted to ease public concerns by stating that numerous studies and tests have been conducted on the Flint River, and assured “the quality of the water being put out meets all of our drinking water standards and Flint Water is safe to drink.” 139 Although regulations to prevent the contamination of water sources were already in effect, with the issuance of legislation such as the Safe Water Drinking Act, the health and well-being of the citizens of Flint, Michigan ultimately suffered as a result of failure to follow these regulations properly. 140 When Flint made this switch between water sources, there was no precaution to assure lead corrosion wouldn’t be an issue. 141 As a result, corrosive water flowed through the town’s main drinking water systems and into the homes of thousands of residents. This was ultimately the fault of Flint’s city officials due to their failure to comply with the explicit regulatory guidelines of the Safe Drinking Water Act. The Act prohibits the “use of any pipe...or any flux after June 1986, in the installation of any residential or non-residential facility providing water for human consumption, that is not lead free.” 142 Long before this environmental crisis began, the shores of Flint River served as an unofficial waste disposal site for numerous industries, ranging from car factories to paper mills releasing agricultural and urban runoff, raw sewage from the city’s waste treatment plant, and pollutants from landfills. 143 For decades, General Motors was one of the most prominent corporations responsible for industrial dumping into the Flint River, ultimately establishing the waterway

Merrit Kennedy, Lead-Laced Water in Flint: A Step-By-Step Look at the Makings of a Crisis, NPR, (Apr. 20, 2016), https://www.npr.org/sections/thetwoway/2016/04/20/465545378/lead-laced-water-in-flint-a-step-by-step-look-at-the-makingsof-a-crisis. 139 Harvey Hollins, Snyder-Emails - Switch Press Release, (Apr. 25, 2014), https://www.documentcloud.org/documents/2696071-SnyderEmails.html#document/p16/a272881. 140 42 U.S. Code § 300. 141 Kelsey J. Pieper, et al., Flint Water Crisis Caused by Interrupted Corrosion Control: Investigating ‘Ground Zero’ Home, 51 ENVIRONMENTAL SCIENCE & TECHNOLOGY 4 (2017). 142 United States Environmental Protection Agency, Use of Lead Free Pipes Fittings, Fixtures, Solder, and Flux for Drinking Water, https://www.epa.gov/sdwa/use-lead-freepipes-fittings-fixtures-solder-and-flux-drinking-water. 143 Melissa Denchak, Flint Water Crisis: Everything You Need to Know, NRDC (Nov. 8, 2018), https://www.nrdc.org/stories/flint-water-crisis-everything-you-need-know. 138


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into the polluted wasteland as it currently stands. 144 While these industries were temporarily situated along the shore of the Flint River, the corroded pipes and an environmental disaster remain: city residents are left to fend off ongoing health complications and lack of access to essential drinking water. Both city officials of Flint and state officials of Michigan are to blame for this environmental disaster and demonstration of injustice toward the citizens of Flint. These administrators failed to alert the public about the pollutive content in their drinking water, and instead tried to dismiss this health issue by supplying bottled water for government employees and falsely reassuring the public. 145 Officials continue to disregard families and children diagnosed with lead poisoning, and further, refuse to take responsible action as the only city in America without a corrosion control plan. 146 In one home tested by administrators in February of 2015, a Flint family was experiencing levels of lead ranging from 104 to 397 parts per billion within their water. 147 The federally mandated level of lead in water is 15 parts per billion. 148 By failing to conduct necessary testing of Flint homes and downplaying the severity of the situation, the failure of health officials to follow their duty ultimately resulted in harm to residential health. 149 In July of 2015, one spokesperson for the Michigan Department of Environmental Quality and the City of Flint had the audacity to dismiss the severity of the health crisis by saying, “Let me start here – anyone who is concerned about lead in the drinking water in Flint can relax.” 150 Had Michigan state and Flint officials acted in accordance with the Safe Drinking Water Act, the EPA Columbia University Mailman School of Public Health, Flint's Toxic Industrial Legacy, Columbia University (Jan. 26, 2016) https://www.mailman.columbia.edu/public-healthnow/news/flints-toxic-industrial-legacy 145 Ron Fonger, Bottled water kept coming to state offices in Flint after TTHM scare passed, Advance Local Media LLC (Jan. 29, 2016) https://www.mlive.com/news/flint/2016/01/bottled_water_deliveries_kept.html 146 Sarah Hulett, High Lead Levels in Michigan Kids After City Switches Water Source, NPR, (Sept. 29, 2015), https://www.npr.org/2015/09/29/444497051/high-lead-levels-inmichigan-kids-after-city-switches-water-source. 147 Flint Water Study, Hazardous Waste-Levels of Lead Found in a Flint Household’s Water (Aug. 24, 2015), http://flintwaterstudy.org/2015/08/hazardous-waste-levels-of-leadfound-in-a-flint-households-water/. 148 Agency for Toxic Substances and Disease Research, Lead Toxicity: What Are U.S. Standards for Lead Levels?, (June 2017), https://www.atsdr.cdc.gov/csem/csem.asp?csem=34&po=8. 149 Lindsey Smith, Michigan Pushes to Have Nation’s Toughest Lead Water Rules, NPR, (Nov. 13, 2017), https://www.npr.org/2017/11/13/563692086/michigan-pushes-to-havenations-toughest-lead-water-rules. 150 Lindsey Smith, Leaked Internal Memo Shows Federal Regulator’s Concerns about Lead in Flint’s Water, NPR (July 1, 2015), https://www.michiganradio.org/post/leakedinternal-memo-shows-federal-regulator-s-concerns-about-lead-flint-s-water#stream/0. 144


28 IT’S TIME FOR BIG COMPANIES TO CLEAN UP THEIR ACT [Vol. 1 could have been notified sooner and proper testing would have occurred from the very first warning signs. 151 B.

3M Company, Chemours Company and DuPont

Three well-known chemical companies — 3M, Chemours and DuPont — have faced recent 2019 lawsuits regarding their respective roles in contaminating the natural resources (including lands, waters, and wildlife) of the state of New Hampshire with the synthetic polyfluoroalkyl substances (“PFAS”), perfluorooctanesulfonic acid (“PFOS”), perfluorooctanoic acid (“PFOA”), perfluorononanoic acid (“PFNA”) and perfluorohexanesulfonic acid (“PFHxS”). 152 These chemical corporations manufacture plastic materials and Teflon, all created with harmful PFOA chemicals, which have been linked to several diseases upon exposure. 153 As outlined in the lawsuit claim, the aforementioned family of toxic fluorinated chemicals constitute drinking water unfit for consumption and create health risks for both animals and civilians near the dumping sites. Decades prior to the lawsuit, records from as far back as the 1950s show animal studies conducted by DuPont and 3M to test the toxicology of their chemicals on animals and the environment. 154 A report by health advocacy organization, the Environmental Working Group, outlined the mounting evidence proving that DuPont and 3M withheld dire health information from employees and the public at large: they discovered PFAS elevates cancer risks and other long-term diseases. 155 This category of PFAS, also known as “forever chemicals,” do not break down once released into the environment and can build up within our blood and organs. 156 With regards to DuPont, the company knowingly disposed of PFOA chemicals in the local waterway in Parkersburg, West Virginia. According to a 2004 study conducted by a DuPont industry risk assessor, the plant dumped and emitted over 1.7 million pounds of PFOA between 1951 42 U.S. Code § 300g–1. See State of New Hampshire v. 3M Company et. al., 216-2019-CV-446, (N.H. Super. Ct., May 29, 2019). https://www.courts.state.nh.us/caseinfo/pdf/civil/3M-Chemours445/3M-Chemours-Complaint.pdf 153 Business & Human Rights Resource Centre, DuPont Lawsuits (Jan. 5, 2017), https://www.business-humanrights.org/en/dupont-lawsuits-re-pfoa-pollution-in-usa. 154 Environmental Working Group, For Decades, Polluters Knew PFAS Chemicals Were Dangerous but Hid Risks from Public, https://www.ewg.org/pfastimeline/. 155 EWG, For 50 Years, Polluters Knew PFAS Chemicals Were Dangerous But Hid Risks From Public, https://static.ewg.org/reports/2019/pfa-timeline/3M-DuPontTimeline_sm.pdf?_ga=2.172668771.1951219659.1587584132-118979782.1576119268. 156 Sydney Evans et al., PFAS Contamination of Drinking Water Far More Prevalent Than Previously Reported, EWG, (Jan. 22, 2020), https://www.ewg.org/research/national-pfastesting/. 151 152


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and 2003. 157 Another lawsuit was filed in January of 2020 against 17 defendants, including 3M and DuPont, for damages related to the state of Michigan’s natural resources. 158 Specifically, the complaint contends that the defendants knew or should have known that: PFAS persist in the environment and do not degrade; PFAS would accumulate and build up in animals and humans exposed to PFAS; PFAS are potential or confirmed carcinogens; and continued manufacture and use of PFAS would inevitably result in continued and increased levels of PFAS getting into the environment and into people’s bodies. 159

While these companies readily paid legal fines for their disastrous actions, there is no denying the irreparable damage to the water and environment for state residents remains. These companies consciously knew that their manufactured PFOA and PFAS were dangerously accumulating in the bodies of residents and in the environment in violation of national drinking water regulations. 160 A delay in regulatory action persisted and resulted in unnecessary health concerns and degradations. 161 IV. CONCLUSION While the United States has dealt with a complex history of waterway contamination by industries, no modifications are being made to existing laws for more stringent regulations. Although these companies readily paid the meager fines imposed on them for their destructive actions, these fees bear no comparison to the long-term healthcare costs from the contaminants affecting local citizens. Although the EPA continues to implement the Toxic Substance Control Act, they still have improvements to make in keeping pace with emerging chemicals in the industrial field. 162 Director of the EPA’s

157 Glynis Board, Ohio River Communities are Still Coping with Teflon’s Toxic Legacy, Allegheny Front, (July 21, 2017), https://www.alleghenyfront.org/ohio-river-communities-are-still-coping-with-teflons-toxiclegacy/. 158 See Attorney General vs. 3M Company et. al., 20-003366, (M.I. Circuit Ct., Sept. 11, 2020). https://www.michigan.gov/documents/ag/Complaint_2020-01-14_final_678329_7.pdf 159 Michigan.gov, Michigan Files Lawsuit Against 3M, DuPont and others for PFAS Contamination, State of Michigan, (Jan. 14, 2020), https://www.michigan.gov/pfasresponse/0,9038,7-365-86513_96296-517280--,00.html. 160 42 U.S. Code § 300g–1. 161 Hall, Laura et al. “Litigating Toxic Risks Ahead of Regulation: Biomonitoring Science in the Courtroom.” Stanford environmental law journal vol. 31,1 (2012): 3. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4306276/. 162 15 U.S. Code § 2601.


30 IT’S TIME FOR BIG COMPANIES TO CLEAN UP THEIR ACT [Vol. 1 Office of Pollution Prevention and Toxics, Wendy Cleland-Hamnett offers input on the developing challenges faced by the department: We are trying to strengthen and revitalize and basically build a program to assess and manage existing chemicals [those discovered after the original passing of the law in 1976]” (In the past the agency has never been able to look at more than 5 to 10 chemicals per year) Clearly, that sort of pace is not going to get us where we want to be — or where I think the country wants us to be—on chemicals management. 163

EPA officials and those most impacted by the irresponsible disposal of chemical waste by large corporations look to the future for research developments in toxic substances, as well as retribution for stripping away their basic right of clean drinking water in their homes. The limitation upon testing is not acceptable nor compatible with the amount of industry-created chemicals in today’s time. If not found in nature with a normal degradation half-life, then chemicals should be conspicuously studied: the denotation of a chemical as “forever” shouldn’t sit well with anyone, especially if such manufacturing still occurs within a human radius. Especially in regions housing corporate businesses, a database denoting the chemicals are being produced within any area inhabited by wildlife and humans should be available to every citizen, as well as informed consent as to how those chemicals react to living things. ***

Roundtable on Environmental Health Sciences, Research, and Medicine; Board on Population Health and Public Health Practice; Institute of Medicine. Identifying and Reducing Environmental Health Risks of Chemicals in Our Society: Workshop Summary. Washington (DC): National Academies Press (US); 2014 Oct 2. 3, “Current Regulatory Approaches to Dealing with Industrial Chemicals”, https://www.ncbi.nlm.nih.gov/books/NBK268890/. 163


NOTE INTERROGATING THE IMAGINED FUTURITIES OF TRANS HEALTHCARE BANS Ruben Çağınalp*

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Trans-affirming healthcare has become the right wing’s latest target in their fight against LGBTQ+ rights in the United States. In recent years, state legislators in South Carolina, Texas, Kentucky, and Georgia have proposed bills to bar minors from receiving access to treatments for gender-affirming therapies including puberty blockers, hormones, and even medication for dysphoria-induced mental illnesses. Lee Edelman’s “No Future,” a polemic against the all-pervasive figure of the child in the politics of reproductive futurism, illuminates the ideologies that form the linchpin of this type of legislation. Edelman argues that “the child, understood as innocence in need of protection, represents the possibility of the future against which the queer is positioned as the embodiment of a relentlessly narcissistic, antisocial, and future-negating drive;” in sum, he contends that homophobic ideology is cached out by defining the queer in opposition to the futurity embodied in the figure of the innocent child. Similarly, the logics of anti-trans healthcare bills function by glorifying the innocence of the figure of the cisgender child and construing legal and systemic recognition of trans existence as a threat to the sanctity of the envisioned child’s body. Moreover, anti-trans healthcare bills solidify their arguments by contrasting two imagined futures in relation to the envisioned child: one in which the child leads their life in a “precious and perfect” cisgender body, and one in which the child, “turns transgender” under the influence of the malicious left and comes to occupy a “defective” trans body through a gender transition. This Note interrogates the futurities imagined in anti-trans healthcare bills with the goal of exposing the epistemic violences perpetuated in the purported concern for child welfare at the heart of the legislation. * BA Candidate in Comparative Literature at Fordham College at Lincoln Center, Class of 2022. I am incredibly grateful to be part of the Fordham Undergraduate Law Review as a Staff Writer. Special thanks to Tyler Raciti, who encouraged me to apply to FULR in the first place and has been incredibly supportive of my professional development in general, and to Nick Suit, who served as my Senior Editor and provided thoughtful feedback on my work. Additionally, I would like to thank Professor Carl Fischer, who introduced me to No Future and for sharing his time with me in office hours to parse the complicated text, and Professor Schwartz, who also created space for me to think through my ideas. Finally, much love to all my friends for their constant support. 164

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I. INTRODUCTION............................................................................................. 32 A. Defining Gender-Affirming Healthcare ............................... 32 II. BANS ON TRANS HEALTHCARE FOR MINORS................................................ 34 III. REPRODUCTIVE FUTURISM ........................................................................... 36 IV. THE LOGIC OF REPRODUCTIVE FUTURISM IN TRANSPHOBIC ARGUMENTS ... 37 V. CONCLUSION ................................................................................................ 40 I. INTRODUCTION Gender-affirming healthcare is often critical to the overall well-being of transgender and gender-nonconforming people. To begin, it is necessary to define key terms in this discussion. Gender is an individual’s personal sense of alignment along the male-female continuum, and which may or may not align with the sex they were assigned at birth, a characterization made on the basis of anatomical and physiological characteristics that include genitalia, chromosomes, and levels of the hormones testosterone, estrogen, and progesterone. 165 Cisgender people have a gender that aligns with the sex they were assigned at birth, while transgender and gender non-conforming (TGNC) people have a gender or gender expression that diverges from the sex they were assigned at birth; for instance, a transgender female is a woman or girl who was assigned male at birth, and a transgender male is a man or boy who was assigned female at birth. 166 A. Defining Gender-Affirming Healthcare Some TGNC people may experience distress as a result of the discordance between their gender and their sex assigned at birth. Accordingly, some trans people seek gender-affirming medical interventions to align their physiology with their gender. 167 Medical options for transgender people in transition are broadly grouped into hormone therapies and surgeries. 168 Hormone therapies consist of medication to increase or decrease sex characteristics to better align with one’s gender; for example, someone transitioning to a more masculine presentation might take American Psychological Association, “Guidelines for Psychological Practice with Transgender and Gender Nonconforming People.” American Psychologist, American Psychological Association 70, no 9 (2015): 834. https://www.apa.org/practice/guidelines/transgender.pdf 166 American Psychological Association, supra note 1, 835. 167 Id. 168 Healthwise Staff, “Medical and Other Transition Options for Transgender People,” Michigan Medicine, May 19, 2019, https://www.uofmhealth.org/health-library/acd1551 165


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testosterone to acquire facial hair and a lower voice. 169 Surgeries, however , change the look and function of a person’s physical sex to better match their gender; 170 one example is facial feminization surgery for people transitioning to a more feminine presentation. 171 Research has consistently attested to the benefits that gender-affirming healthcare can provide for trans people. To illustrate, a meta-analysis of the literature on hormone therapy for TGNC adults and adolescents found that 80% of participants who received transaffirmative care experienced an improved quality of life, decreased gender dysphoria, and a reduction in negative psychological symptoms.172 Accordingly, the World Professional Association for Transgender Health has defined all gender-affirming medical interventions as medically necessary. 173 In sum, experts are unequivocal in validating the importance of transaffirming care. Moreover, gender-affirming treatments are particularly crucial for trans youth owing to the fact that many gender-questioning adolescents also present with co-occurring psychological conditions including self-injurious behaviors, drug and alcohol use, and autism spectrum disorders. 174 In particular, the statistics regarding suicidal ideation among TGNC adolescents are sobering: one recent study found that nearly 30 percent of female trans teens had tried to end their lives, as well as over 50 percent of male trans teens. 175 The prevalence of co-occurring psychological conditions is linked to the fact that a TGNC identity can lead, or contribute, to a co-occurring mental health condition, either directly vis-a-vis gender dysphoria, or indirectly by way of oppression and minority stress, the term for the negative mental health effects of stigma-related stress. 176 So too, a person’s trans status can complicate the way they experience their co-occurring conditions. For instance, a TGNC person’s eating disorder could involve rigid eating patterns to manage body shape and menstruation in response to gender dysphoria. 177 Thus, treating gender dysphoria can even be helpful in alleviating a person’s additional mental health conditions. 178 169

Id. Id. 171 Madeline B. Deutsch, “Overview of gender-affirming treatments and procedures,” UCSF Transgender Care, June 17, 2016, https://transcare.ucsf.edu/guidelines/overview. 172 American Psychological Association, supra note 1, 835. 173 Deutsch, supra note 6. 174 American Psychological Association, supra note 1,842. 175 Anna North, “South Carolina wants to ban lifesaving treatments for trans kids,” Vox, November 25, 2019, https://www.vox.com/2019/11/22/20977721/south-carolina-transtransgender-youth-gender-reassignment 176 American Psychological Association, supra note 1, 845. 177 Id. 178 Id. 170


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For all of these reasons, there is a strong consensus that treatment options available to TGNC adolescents with gender dysphoria should include medical interventions, given the ability of these interventions to support positive outcomes for the vulnerable population of trans youth. 179 The American Psychological Association, the American Academy of Pediatrics, and most other major medical organizations encourage a gender-affirming model of care for trans youth, 180 which involves validating TGNC people’s experiences and identities to increase their positive life outcomes, and can involve medical interventions as well. 181 While some trans adolescents require surgeries (which are permanent) or hormone therapies (which can have permanent effects), it is more common for trans teens to receive pubertysuppressing medication or “blockers,” which delay puberty for appropriately screened adolescents with gender dysphoria. 182 Blockers can be particularly useful since puberty brings irreversible changes at a time when trans youth may not be ready to make a decision about what gender they wish to present as for their adult lives. Therefore, delaying puberty can buy trans teens valuable time to discern what, if any, further transition steps they wish to take. 183 II. BANS ON TRANS HEALTHCARE FOR MINORS Tragically, gender-affirming healthcare for minors is the right wing’s latest target in their persistent attacks on the transgender community. In the post-Obergefell v. Hodges years, there has been a wave of anti-trans legislative attacks, including bans on trans youth participating in sports and restrictions on trans people’s access to public restrooms (so-called “bathroom bills”). 184 This context laid the groundwork for South Dakota’s House Bill 1057. Introduced by State Representative Fred Deutsch, the legislation would have made it a Class 4 felony, punishable by up to 10 years in prison, for medical professionals to provide those under 18 with any form of transaffirming healthcare, including surgeries, puberty blockers, and hormone

179

Id. North, supra note 9. 181 American Psychological Association, supra note 1, 847. 182 Id. 183 Rebecca A. Clay, “Embracing a gender-affirmative model for transgender youth,” Monitor on Psychology 49, no. 8 (2008): 29, https://www.apa.org/monitor/2018/09/cecorner. 184 Saxe, Rose, “There Is a Coordinated Attack on Trans Youth in State Legislatures,” American Civil Liberties Union, February 18, 2020, https://www.aclu.org/news/lgbtrights/there-is-a-coordinated-attack-against-trans-youth-in-state-legislatures/. 180


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therapies. 185 HB 1057 provoked swift backlash from the ACLU of South Dakota, as well as other human rights organizations around the country. As a result, the bill was effectively killed in February of 2020, when the State Health and Human Services Committee voted 5-2 to send the bill “to the 41st day,” signaling that the legislation was off the table given that the state’s parttime legislature has only 40 working days per session. 186 Yet the defeat of South Dakota’s measure did not mark the end of bans on gender-affirming healthcare for minors. In 2020, lawmakers in South Dakota, Florida, Georgia, Kentucky, Missouri, South Carolina, Illinois, New Hampshire, and Texas considered such legislation. 187 While none of those bills were passed, as of November 2020, Alabama and Texas have already pre-filed bills that restrict gender-affirming care for the 2021 legislative session. 188 To summarize, it is clear that bans on gender-affirming healthcare for minors are poised to become the successor to “bathroom bills” as the right wing’s default method for attacking the civil rights of transgender Americans. Given the vital importance of access to gender-affirming care for trans young people, this type of legislation represents a grave threat to the transgender community. Chase Strangio, a staff attorney for the American Civil Liberties Union who argued before the U.S. Supreme Court in Bostock vs. Clayton County, wrote that bans on trans-specific healthcare constitute “state sponsored deadly violence against trans kids,” 189 highlighting the life-anddeath stakes often involved in access to transition care. As such, it seems confounding that arguments for these bans are cached out in terms of purported concern for child welfare. To illustrate, the South Dakota legislator who introduced the first ban, Fred Deutsch, justified his legislation by claiming that gender-affirming healthcare is “dangerous” and takes a toll on children, and that HB 1057 was a way to hit a “pause button” on an “overwhelming and life-changing decision.” 190 However, the insights of Lee Edelman’s searing polemic No Future: Queer Theory and the Death 185 Brooke Sopelsa, “South Dakota would make trans health care for minors a felony,” NBC News, January 16, 2020. https://www.nbcnews.com/feature/nbc-out/south-dakota-billwould-make-trans-health-care-minors-felony-n1117481 186 Tim Fitzsimmons, “South Dakota’s trans health bill is effectively dead, opponents say,” NBC News, February 10, 2020, https://www.nbcnews.com/feature/nbc-out/south-dakota-strans-health-bill-effectively-dead-opponents-say-n1134356. 187 Ryan Thoreson, “Lawmakers in the US Unleash Barrage of Anti-Transgender Bills.” Human Rights Watch, January 20, 2020, https://www.hrw.org/news/2020/01/20/lawmakers-us-unleash-barrage-anti-transgenderbills. 188 Oliver C. Haug, “Trans Rights Up for Debate in Statehouses Across the Country in 2021,” Ms., November 17, 2020, https://msmagazine.com/2020/11/17/trans-rights-up-fordebate-in-statehouses-across-the-country-in-2021/. 189 North, supra note 9. 190 Sopelsa, supra note 19.


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Drive shed light on this apparent paradox. Edelman argues that rhetoric that situates public policies as being “for the children” is inherently heterosexist, and therefore illustrates that right-wing lawmakers’ veneer of concern for children is not at odds with their transphobia. III. REPRODUCTIVE FUTURISM In No Future, Edelman argues that child-oriented political rhetoric is problematic in policy debates because it hijacks control of the language in which these debates are conducted. In Edelman’s view, anyone who acts as a “defender of children” acquires heightened moral stature to the point where their argument, whatever it is, becomes impossible to refute. 191 In invoking the figure of the Child, political actors implicitly raise the rhetorical question “whose side are you on?,” construing all opposing positions as antithetical to the well-being of the Child whose innocence solicits our defense, thereby permitting the existence of only one side in debate. 192 For this reason, Edelman holds that “the fantasy subtending the Child invariably shapes the logic within which the political itself must be thought;” 193 in other words, the invocation of the Child casts the terms of debate in any context where the figure is employed. Moreover, the Child is always the horizon of every acknowledged politics, functioning as the fantasmatic beneficiary of all political interventions. As a result, queerness constitutes the side of those not “fighting for the children,” outside the consensus wherein politics confirms the absolute value of reproductive futurism. 194 Edelman contends that the Child functions as “the prop of the secular theology on which our social reality rests” in that it is a token of futurity. 195 To illustrate, he quotes Walter Wangerin Jr.’s review of the “pro-procreative” novel The Children of Men: “If there is a baby, there is a future, there is redemption.” 196 Analyzing this sentence, Edelman notes that “if, however, there is no baby and in consequence, no future, then the blame must fall on the fatal lure of sterile, narcissistic enjoyments understood as inherently destructive of meaning and therefore as responsible for the undoing of social organization, collective reality, and, inevitably, life itself.” 197 In sum, according to Edelman, the political schema that centers the Child entails a political vision of futurity that Lee Edelman, No Future: Queer Theory and the Death Drive (Durham, Duke University Press, 2004), 2. 192 Id, at 2. 193 Id, at 2. 194 Id, at 3. 195 Id, at 12. 196 Id, at 12–13. 197 Id, at 13. 191


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hinges on reproduction, thereby casting queerness as antithetical to the social order of meaning. Furthermore, the rhetoric of reproductive futurity calls forth the queer to figure the death drive, the will to undo the instituted and begin again ex nihilo, 198 which is anathema to the promise of futurity. As a result, sacralizing the child requires sacrificing the queer. 199 The logic of reproductive futurity is born out in, to name one example, Pope John Paul II’s condemnation of state-recognized same-sex unions. 200 Construing queer couples as “based on individual egoism” rather than actual love, he charged that “such a ‘caricature’ has no future and cannot give future to any society.” 201 The pope’s words illustrate that caching out the futurity embodied in the Child as the ideal that must be sought as the end goal of all political interventions, figures the queer as the bar to every realization of futurity, embodying a narcissistic and future-negating drive. Thus, it is no surprise that the figure of the Child is the tool of choice among the right-wing activists pushing for bans on gender-affirming healthcare. IV.

THE LOGIC OF REPRODUCTIVE FUTURISM IN TRANSPHOBIC ARGUMENTS

The thinking behind bans on trans-affirming healthcare invokes the Child to characterize trans bodies as a threat to reproductivity, relying on imagined futures as its premise. One example can be found on the website of the Kelsey Coalition, an anti-trans lobbying group that advised Representative Deutsch on HB 1057. 202 The organization archives the testimonials of individuals who claim to have been harmed by the accessibility of gender-affirming healthcare, including Sydney Wright, who testified before the South Dakota state legislature to support HB 1057. 203 Relating her negative experiences with hormone therapies, Wright’s address opens, “Two years ago, I was a healthy, beautiful girl headed toward high school graduation. But after taking testosterone for a year, I turned into an overweight, pre-diabetic nightmare of

Id, at 9. Id, at 28. 200 Id, at 29. 201 Id. 202 Julia Bosman and Mitch Smith, “Doctors Could Face Criminal Charges for Treating Transgender Teens,” The New York Times, January 27, 2020, https://www.nytimes.com/2020/01/27/us/south-dakota-transgender.html. 203 Sydney Wright, “Young Woman Suffering the Irreversible Effects of Testosterone Begs Lawmakers - Please Protect Children from Medical Harm,” The Kelsey Coalition, January 30, 2020, https://www.kelseycoalition.org/pubs/Young-Woman-Suffering-the-IrreversibleEffects-of-Testosterone-Begs-Lawmakers---Please-Protect-Young-People-from-MedicalHarm. 198 199


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a transgender man.” 204 Wright’s tale, regardless of its veracity, gives oxygen to the justifications for bans on trans healthcare for minors because it furnishes a narrative of transition and subsequent regret that validates the legislation’s premise. In her description of her past self, she highlights her youth and thus conjures the figure of the Child, emphasizing the Child’s innocence and their vulnerability to the machinations of the left. Framing the body that she came to occupy through gender-affirming healthcare as grotesque and adult creates stakes for her argument, calling readers to pay attention to the purported fate of the Child who she invokes. Excoriating the medical professionals who assisted her in the transition she chose to reverse, she writes that: they didn't even talk to me about other treatment options! No doctor or therapist suggested I give myself time to grow up, or wait and see what happens with counseling sessions – no doctor or therapist told most young people outgrow their feelings of wanting to be the opposite sex. 205

While Wright does not name the Child, she constructs a teleology wherein trans people are destined to at some point desire to live as the gender corresponding to their assigned sex at birth, which serves as the basis for her construing the Child as victimized by the accessibility of gender-affirming healthcare. 206 Here, Wright commandeers the terms of debate, mandating that support of HB 1057 be scrutinized within the interests of the Child and rendering any opposition to the bill as unfathomable. Not only that, Wright gestures towards a future where trans healthcare has obliterated the Child altogether. She writes that hormone therapy, “ravaged my body, caused me to gain 50 pounds, and put me at risk for heart disease, diabetes, and teenage menopause.” 207 Wright’s statements traffic in invocations of the death drive, not only by virtue of naming the mortality-inducing conditions of heart disease and diabetes, but by her warning of the “teenage menopause” she almost experienced. For clarification, medical literature does not refer to “teenage menopause” as a side effect of testosterone therapy, but only to the fact that testosterone hormone treatment can cause a person to lose the ability to create fertile eggs or become pregnant. 208 Moreover, even unintended pregnancy is still possible for people on testosterone therapy, and individuals who wish to bear biological children can utilize techniques similar to vitro 204

Id. Id. 206 Id. 207 Id. 208 Maddie Deutsch, “Information on Testosterone Hormone Therapy,” UCSF Transgender Care, July 2020, https://transcare.ucsf.edu/article/information-testosterone-hormonetherapy#:~:text=These%20treatments%20are%20not%20always,fertile%20eggs%20or%20 become%20pregnant. 205


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fertilization. Wright’s choice of the phrase “teenage menopause” carries particular implications for temporal rhetorics, positing a disordered body that has circumvented the passing of several decades to arrive early at infertility, and constructing a possible future in which reproduction and all the meaning that it entails is entirely inaccessible. To conclude, the scare tactics Wright uses to support HB 1057 are all premised on the figure of the Child. She leans into the Child’s innocence, stoking fears of the Child’s demise by articulating her experiences of deviation from normative teleology. More broadly, she gestures towards a future where trans-affirming healthcare not only ravages the body of the Child, but makes reproduction itself impossible, promising the collapse of the social order. In this case, the imagined trans body functions as the imagined queer body functions in Edelman’s schema of the rhetoric of reproductive futurity: standing in for the death drive, and calling on us to intervene on behalf of the Child and on behalf of our civilization. In summary, the logic of reproductive futurity esconces legislation that is objectively violent against trans children in the fiction that the bill is for the children. Rob Hoogland’s testimony in favor of Alabama’s trans healthcare ban is similarly reliant on the rhetoric of reproductive futurity. Reading between the lines of an article in The Federalist that summarizes his statement, it appears that Hoogland’s child came out as transmasculine at age 12 and began a social transition consisting of a name and pronoun change thereafter. 209 Following a court battle in which Hoodland tried to prevent him from accessing genderaffirming healthcare, a judge authorized his child to begin hormone therapy at age 13, 210 to Hoogland’s deep consternation. In an interview, Hoogland stated that: sometimes I just want to scream so that other parents understand what's going on... She can never go back to being a girl in the healthy body that she should have had. She's going to forever have a lower voice. She'll forever have to shave because of facial hair. She won't be able to have children. 211

Yet, the article never establishes that Hoogland’s child has felt any regret about transitioning. His entire argument rests on an imagined teleology, one in which his child is destined to become cisgender and will therefore suffer for having transitioned, which provides the basis for his claim that genderaffirming healthcare constitutes a mutilation of the body of the sanctified Child, making it possible for him to assume the mantle of “defender of the children” and render his position impossible to oppose. So too, Hoogland’s Tony Perkins, “Sometimes I Just Want to Scream So that Other Parents Will Understand,” The Federalist, February 27, 2020, https://www.frc.org/updatearticle/20200227/scream-understand. 210 Id. 211 Id. 209


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testimony frames trans identity as tantamount to the death drive, mourning the infertility that could lie in his child’s future as a trans person and evoking the threat of a world without reproduction. In defense of his activism against trans civil rights, Hoogland states, “what do I do in five or 10 years. . . when she changes her mind, and she turns to me and says, ‘dad or mom, why did none of you do anything to stop this?’” 212 Hoogland’s words are premised on the notion that the future that his child will come to inhabit, should he continue taking hormones, is inherently repulsive, relying on cisnormative standards for judging bodies and temporalities, and the reproductive impulse that seeks to negate the death drive. The figure of the pre-transition Child, full of promise of a reproductive future, juxtaposed with the figure of the transitioned Child who can no longer embody a reproductive future, serves to provoke fear of the collapse of society itself. In sum, the Child undergirds a dangerously powerful argument for anti-trans bills that has the potential to drive real trans children to their graves. V. CONCLUSION The thinking of trans healthcare bans superimposes the trans-suspicious position onto the figure of the Child. In the rhetoric of opposition to genderaffirming care, the Child is figured as the hypothetical “cisgender-personturned-transgender,” generating an emotionally compelling argument through not only evoking a narrative arc of perfection turning defective, but through stoking fear of the death drive. Arguments for the anti-trans healthcare bills function by evoking the Child and construing genderaffirming healthcare as a threat to the sanctity of their body. The rhetoric employed by proponents of the bans conjures the figure of a cisgender child who is brainwashed into thinking that they are transgender, moving them to seek medical interventions that “defile” their “perfect” cisgender body. Advocates for trans civil rights have fought back against the right’s monopolizing of the terms of debate, going so far as to appropriate the image of the Child for their own purposes. For example, in a commentary for the ACLU, Chase Strangio wrote: Imagine being a young person in South Dakota who struggled with depression and anxiety in early childhood, as many transgender people do, because they couldn’t quite identify why they felt so alienated from their peers, their family, and their own body. Over time, they come to recognize that they have a gender that does not align with what they were assigned at birth, tell their family, find support, and begin a course of medical treatment that is quite literally saving their life. With bills like those proposed in South

212

Id.


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Dakota and elsewhere, young people are at risk of having their lifeline stripped away in an instant. 213

Strangio’s opening of the narrative with the word “imagine” cues fear and shock from the reader, molding their emotions in relation to the figure of the Child who is cached out. So too, his argument in favor of protecting access to gender-affirming healthcare relies on an invocation of the future, albeit not one that is explicitly named as reproductive. While it is tempting to accede to Strangio’s rhetoric, Edelman proposes that liberation is wholly inaccessible in a discursive space where political interventions are crafted with an orientation towards the future. Edelman instead calls on us to practice “an insistence on the negativity that pierces the fantasy screen of futurity, shattering narrative temporality with irony’s always explosive force. And so what is queerest about us, queerest within us, and queerest despite us is this willingness to insist intransitively — to insist that the future stop here.” 214 In Edelman’s vision of a world without orientation towards the future, arguments like those deployed to justify bans on trans healthcare become unintelligible. Without a future, the Child loses its symbolic meaning, and participants in debate lose the moral authority afforded to them when they claim to be the Child’s defenders; without a future, the teleologies that are created to construe gender-affirming care as victimizing trans youth automatically cease to make sense. Edelman’s work may point towards a path forward for trans civil rights activists fighting back against the right: rather than staking out a case for protecting trans youth in terms of the figure of the Child and the specter of futurity, perhaps only abandoning orientation towards futurity altogether is the only viable solution for advocates for trans equality to prevail in the sphere of debate. ***

Chase Strangio, “Lawmakers Playing Politics with Trans Kids’ Lives at the Start of the Decade,” American Civil Liberties Union, January 16, 2020, https://www.aclu.org/news/lgbt-rights/lawmakers-playing-politics-with-trans-kids-lives-atthe-start-of-the-decade/. 214 Edelman, supra note 25, 31. 213


NOTE TRACING THE ANTITRUST DEBATE INTO THE DIGITAL AGE Rahul Sukesh*

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This Note traces the various debates regarding antitrust since the birth of federal antitrust legislation. Upon analyzing the development and passing of the Sherman Antitrust Act of 1890 in addition to several decades of antitrust enforcement, or lack thereof, this Note explores the first debate around whether or not the federal government should regulate antitrust. Specifically, this Note examines the negligent regulation during the Gilded Age, and considers how it spurred several decades, leading up to the 1970s, of inconsistent antitrust enforcement. Secondly, the Note introduces the second debate which discusses the regulation standard we ought to follow by exploring the origins of the “consumer welfare” and “competition” standards. Continuing this debate into the twenty-first century, this Note then looks at antitrust in relation to digital markets. Taking into account the Committee on the Judiciary and House’s investigation (and subsequent report) of four titans within the technology industry (Facebook, Apple, Amazon, and Google) and the antitrust violations on their path to dominance, this report then reinvigorates the debate between both standards. Considering the merits of the arguments for and against both standards, this Note emphasizes the apparent difference in what any given standard states and how it is enacted in practice. Concluding that both standards have clear flaws and the competition standard is too vague, the Note concludes that there ought to be a shift from picking any one standard and focus on solving what matters: enforcing antitrust. I. INTRODUCTION .......................................................................................... 43 II. U.S. SENATOR SHERMAN AND THE PASSING OF THE SHERMAN ANTITRUST ACT OF 1890 ................................................................................................. 43 III. THE PENDULUM PATTERN ....................................................................... 45 * B.A. candidate for Political Science and English, Fordham College at Lincoln Center, Class of 2022. This Note would not be possible without the initial guidance of Tyler Raciti (Editor-in-Chief) and Reeve Churchill (Executive Articles Editor) for helping me navigate the Citation & Style Guide. Additionally, I would like to extend a debt of gratitude to all those involved in the publication of this Note. This Note would not have been possible without the constant support from my family, to whom I owe the greatest thanks. All opinions stated in this Note are mine alone. 215

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IV. CONSUMER WELFARE AND THE COMPETITION STANDARD ..................... 47 V. THE DIGITAL ERA..................................................................................... 49 VI. CONCLUSION ........................................................................................... 52 I. INTRODUCTION Antitrust law, developed to protect consumers from predatory business practices and ensure fair competition in the United States has remained a topic of debate since its inception traced back to origins of the Sherman Antitrust Act of 1890. 216 Although Senator Sherman was famous for supporting antitrust legislation, he considered the Act as a compromise that did not entail everything he wanted. 217 The increasing interconnectedness of technology adds a new element to the discussion. On June 3, 2019, the House Judiciary Committee announced an investigation into the majority of the FAANG technology companies (Amazon, Apple, Facebook, and Google) to question their unparalleled growth and acquired dominance in their respective markets. 218 On October 6, 2020, the House of Representatives released a concluding report that found these firms had too much “monopoly power” and advocated for legislative reform. 219 Since the “consumer welfare” has been the focus of antitrust enforcement for the past four decades, the heart of the issue was deciding what standards of evaluating antitrust should be considered. More than that, of the four boehmites investigated, only Google has faced antitrust litigations thus far: this urges a reconsideration of the merits of current antitrust law in relation to the changing demands of consumer markets and the “competition standard.” While the digital world serves as one of the many market facets regulated by antitrust, its rise to prominence makes the issue increasingly urgent. II. U.S. SENATOR SHERMAN AND THE PASSING OF THE SHERMAN ANTITRUST ACT OF 1890

See “Guide to Antitrust Laws,” Federal Trade Commission https://www.ftc.gov/tipsadvice/competition-guidance/guide-antitrust-laws 217 Sherman Antitrust Act, 15 U.S.C. §1890. See also Barak Orbach, How Antitrust Lost Its Goal, Volume 81 FORDHAM L. REV., 2253-2277 (2013). 218 See Press Release, H. Comm. on the Judiciary, House Judiciary Committee Launches Bipartisan Investigation into Competition in Digital Markets (June 3, 2019), https://judiciary.house.gov/news/press-releases/house-judiciary-committee-launchesbipartisan-investigation-competition-digital. 219 Investigation of Competition in Digital Markets, Committee on the Judiciary & Subcommittee on Antitrust, U.S. House of Representatives, (2020). 216


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Antitrust regulation began at the end of the nineteenth century. 220 The namesake of the Sherman Antitrust Act of 1890 was not entirely supportive of the Act; while Senator Sherman (R-Ohio) said the proposed Act would be “ineffective in dealing with combinations and trusts,” 221 he recognized the importance of insufficient anti-trust legislation. In detail, Senator Sherman’s bill, then proposed as S.1, gave Congress the authority to “apply the same remedies against combinations which injuriously affect… the United States that have been applied in several states to protect local interests.” 222 Against the critique of fellow congressmen in favor of regulating trusts, Sherman noted that S.1 would “not in the least affect combinations in aid of production where there is free and fair competition.” 223 After going through the Judiciary Committee, Senators George Edmunds (R-VT) and George Hoar (R-MA) managed to entirely change the language of it; effectively changing the essence of Senator Sherman’s bill. 224 What was once a fairly concentrated bill transformed into one declaring “every contract, combination, etc.” deemed unreasonable as unlawful by Senator Sherman himself. 225 In an attempt to “crush out… combinations and trusts,” it largely failed to define key aspects, including restrictions and exemptions. 226 To repair apparent failures, 34 years later, Congress passed the Federal Trade Commission: this entity banned “unfair methods of competition” and “unfair or deceptive acts or practices.” 227 In 1914, Congress also passed the Clayton Act to address specific practices the Sherman Act did not prohibit: 228 one key aspect is Section 7, which prohibits mergers and See Ryan Young and Clyde Wayne Crews, Jr., Competitive Enterprise Institute, (April, 2019), https://cei.org/sites/default/files/Wayne_Crews_and_Ryan_Young__The_Case_against_Antitrust_Law.pdf 221 See Mr. Sherman Gives Up Hope, N.Y. TIMES, Apr. 8, 1890, at 4 (quoting Senator Sherman); see Barak Orbach, How Antitrust Lost Its Goal, Volume 81 FORDHAM L. REV., 2253-2277 (2013). 222 20 CONG. REC. 2455 (Mar. 21, 1890), reprinted in KINTNER, supra note 31, at 113– 50; see William Kolasky, Sen. John Sherman And the Origin of Antitrust, 24 American Bar Association (2009). 223 Id. 224 William Kolasky, Senator John Sherman And the Origin of Antitrust, Volume 24 the American Bar Association (2009). 225 See “The Antitrust Laws.” Federal Trade Commission, 15 Dec. 2017, www.ftc.gov/tipsadvice/competition-guidance/guide-antitrust-laws/antitrust-laws. 226 20 CONG. REC. 1457 (Feb. 4, 1889), reprinted in KINTNER, supra note 31, at 77; see THE ORIGINS PDF; see Charles G. Dawes, The Sherman Anti-Trust Law: Why It Has Failed and Why It Should Be Amended, Volume 183, No. 597 The North American Review, 189-194 (Aug., 1906). 227 See “The Antitrust Laws.” Federal Trade Commission, 15 Dec. 2017, www.ftc.gov/tipsadvice/competition-guidance/guide-antitrust-laws/antitrust-laws. 228 Id. 220


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acquisitions that “lessen competition, or... tend to create a monopoly.” 229 While technical flaws of the Act were later addressed, understanding antitrust practices during this period highlights central debates concerning antitrust which remain today. III. THE PENDULUM PATTERN From Senator Sherman’s dissent with the language Senators Edmunds and Hoar used in the bill, there has been a lack of consensus for how antitrust laws should be enforced. Such opinions led to an inconsistent approach to antitrust regulation, which can be compared to a pendulum, swinging back and forth to compensate, in part, for the actions of the previous swing. The initial swing represents slim to no regulation during the Gilded Age (18701900); a period marked by rapid economic growth for industrial companies that coincided with the U.S. real GDP more than doubling over a period of twenty years. 230 The vast increase in output overlapped with the period some historians deem the “Long Depression,” from 1873-78. 231 During this period, nominal GDP declined by 2.5%, despite real GDP increasing 18%. 232 Businesses were constantly going bankrupt due to the “ruinous,” “destructive,” and “excessive” competition: 233 there was no regulation. Lacking a method of regulation, when the government finally did institute the Sherman Act, it provided little value. In the Supreme Court’s E. C. Knight decision in 1895, the ruling maintained that manufacturing was not commerce and therefore, “monopolization of manufacturing capacity through horizontal mergers was not subject to the federal government’s constitutional power to regulate.”234 This decision was interpreted to mean that “mergers among competitors did 229

Id. See HISTORICAL STATISTICS, supra note 7, at 3-24 to -25 ser. Ca9 (data originally reported in 1996 dollars); see Wayne D. Collins, Trusts and the Origins of Antitrust Legislation, Volume 81 FORDHAM L. REV. (2013) https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4884&context=flr. 231 See Nancy Lovas, The Panic of 1873, Business Reference and Research Specialist, August 2017. 232 See HISTORICAL STATISTICS, supra note 7, at 3-24 ser. Ca13 (price deflator with 1996=100); id. ser. Ca10 (nominal GDP); id. ser. Ca9 (real GDP); see Wayne D. Collins, Trusts and the Origins of Antitrust Legislation, Volume 81 FORDHAM L. REV. (2013) https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4884&context=flr. 233 See, e.g., 19 U.S. INDUS. COMM’N, FINAL REPORT OF THE INDUSTRIAL COMMISSION 660–62 (1902) (supplemental statement of Thomas W. Phillips); see Wayne D. Collins, Trusts and the Origins of Antitrust Legislation, Volume 81 FORDHAM L. REV. (2013). https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4884&context=flr. 234 United States v. E. C. Knight, 156 U.S. 1 (1895). 230


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not violate the Sherman Act.” 235 More important than the contradicting language of the Sherman Act, President McKinley’s business-friendly attitude and Republican-supported platform allotted no ambition to file lawsuits against trusts. What followed after President William McKinley’s assassination signified a change in how antitrust should be looked at. The transition from President McKinley to President Theodore Roosevelt underscored the first swing of the pendulum to the other side in proving that a President’s attitude towards antitrust was more important than the statute itself. As former Governor of New York, Roosevelt took a progressively bold approach against large corporations highlighting that trust problems result in “unfair competition,” “raising of prices,” and the “crushing out of competitors who do no act improperly.” 236 Although the statutes remained unchanged, Roosevelt’s aggressive approach to breaking up monopolies resulted in fortyfive antitrust lawsuits throughout his tenure. In comparison, his predecessor filed a mere three. 237 The pendulum, questioning whether or not to enforce antitrust, continued to sway for the next several decades. Strong antitrust enforcement within President Roosevelt’s administration carried into the 1920s: this included significant breakthroughs, such as the strengthening of the Sherman Act with the Clayton Act and the Federal Trade Commission Act. 238 Between the late 1920s and 1930s, regulating antitrust became a secondary issue because the government largely worked with private industries in accordance with the New Deal. 239 Referred to by some as the “Golden Era of Antitrust,” breaking up trusts became synonymous with preventing fascism and maintaining democracy in the 1940s to 1970s. 240 Two notable legislative acts that stemmed from this period were the 1950 Celler-Kefauver Act outlining strict Bittlingmayer, George. 1985. “Did Antitrust Policy Cause the Great Merger Wave?” Journal of Law and Economics 28 (1): 77–118; see Richard B. Baker, Carola Frydman, & Eric Hilt, Political Discretion and Antitrust Policy: Evidence From the Assassination of President McKinley, working paper 25237 National Bureau of Economic Research (2018). 236 Roosevelt, Theodore. 1926. The Works of Theodore Roosevelt, Vol XV: State Papers as Governor and President, 1899–1909. New York: Charles Scribner’s Sons; see Richard B. Baker, Carola Frydman, & Eric Hilt, Political Discretion and Antitrust Policy: Evidence From the Assassination of President McKinley, working paper 25237 National Bureau of Economic Research (2018). 237 Richard B. Baker, Carola Frydman, & Eric Hilt, Political Discretion and Antitrust Policy: Evidence From the Assassination of President McKinley, working paper 25237 National Bureau of Economic Research (2018). 238 Maurice E. Stucke & Ariel Ezrachi, The Rise, Fall, and Rebirth of the U.S. Antitrust Movement, Harvard Business Review (2017), https://hbr.org/2017/12/the-rise-fall-andrebirth-of-the-u-s-antitrust-movement. 239 Id. 240 Id. 235


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merger policy and the 1976 Hart-Scott-Rodino Act, which set a standard for corporations to meet before merging. 241 IV. CONSUMER WELFARE AND THE COMPETITION STANDARD In the most recent swing of this particular pendulum, President Ronald Reagan’s administration took antitrust to the far right, exercising little to no enforcement of antitrust (there hasn’t been a substantial movement for or against enforcing antitrust since). 242 With most politicians in favor of breaking trusts, a new debate has emerged asking not whether to enforce antitrust or not, but how to enforce antitrust. From the 1890s to the 1970s, the main focus of antitrust was on competition. 243 Initially influenced by the likes of Aaron Director and the Chicago School, Robert Bork championed the “consumer welfare” standard as America’s guiding principle for evaluating antitrust. 244 The basic premise of the “consumer welfare” focus was to ensure any trust maximizes the consumer’s interest — referring to lower market prices. 245 Initially a radical idea, Bork’s book, The Antitrust Paradox, explained consumer welfare as “the actual intent of the laws”: 246 as long as a firm did not raise consumer prices, they were exempt from antitrust litigation. The competition standard is the competing theory that dates back to Chief Justice Louis Brandeis in the early 1900s. Notable for his critique against “bigness,” Justice Brandeis noted “the proposition that mere bigness cannot be an offense against society is false.” 247 Critical of the effects of big See Ryan Young and Clyde Wayne Crews, Jr., Competitive Enterprise Institute, (April, 2019), https://cei.org/sites/default/files/Wayne_Crews_and_Ryan_Young__The_Case_against_Antitrust_Law.pdf. 242 Joanna Ramey, Clinton Seen Putting Muscle in Antitrust, Women’s Wear Daily, Feb. 26, 1993, at S42.; see also Silva, supra note 16, at 9 (federal antitrust enforcement took “a hands-off approach during the Reagan administration”); see William E. Kovacic, The Modern Evolution of U.S. Competition Policy Enforcement Norms, Volume 71 Federal Trade Commission Antitrust Law Journal No. 2 (2003). 243 Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age, Columbia Global Reports (2018). 244 Id. 245 See Ryan Young and Clyde Wayne Crews, Jr., Competitive Enterprise Institute, (April, 2019), https://cei.org/sites/default/files/Wayne_Crews_and_Ryan_Young__The_Case_against_Antitrust_Law.pdf. 246 Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age, Columbia Global Reports (2018). 247 See Thomas K. McCraw, Prophets of Regulation, (Cambridge, Massachusetts: Belknap Press of Harvard University Press, 1984), p. 109; See Ryan Young and Clyde Wayne Crews, Jr., Competitive Enterprise Institute, (April, 2019) https://cei.org/sites/default/files/Wayne_Crews_and_Ryan_Young__The_Case_against_Antitrust_Law.pdf. 241


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corporations, Justice Brandeis thought there should be lessened competition and malpractice with respect to both laborers and consumers. 248 Today, Justice Brandeis’ ideas are pronounced under the “neo-Brandeis” movement and critique of the dominant consumer welfare standard. According to the Roosevelt Institute, the critiques are two-fold. First, the consumer welfare standard fails to address a variety of goals and instead, focuses “solely on the concept of consumer welfare.” 249 Secondly, by excessively focusing on consumer welfare, the standard promotes policies that paradoxically counteract consumer welfare. 250 In other words, this standard ignores the buyer’s power which could concern monopsony, a similar problem where in any market, there is only one buyer. 251 The competition standard would address these flaws by looking more closely at the size of corporations. The competition standard seems to better protect consumers, considering the contents of the theory and how it is implemented in practice are different. In fact, there is an interesting case for the consumer welfare standard here: while Bork narrowly focused on consumer prices, the practical application of the consumer welfare standard extends beyond prices. Moreover, it is odd that the terminology “consumer welfare” is not mentioned in federal merger guidelines. 252 Instead, to quote the words of the U.S. Representative Joe Kennedy, the welfare standard looks at “economic benefits more broadly.”253 Representative Kennedy refers to the “total welfare standard,” 254 which is difficult to define; a standard some include, and some consider separate from the consumer welfare standard, others seem to see it as an extension of the consumer welfare standard. All factors considered, the total welfare standard relates more to a Brandeisian competition standard with a focus on “producers and consumers.” 255 Regardless of the semantics behind the name Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age, Columbia Global Reports (2018). 249 Marshall Steinbaum & Maurice E. Stucke, The Effective Competition Standard: A New Standard for Antitrust, the Roosevelt Institute (2018). 250 Id. 251 Christine S. Wilson, Welfare Standards Underlying Antitrust Enforcement: What You Measure is What You Get, U.S. Federal Trade Commission (2019). 252 Horizontal Merger Guidelines, U.S. Department of Justice & the Federal Trade Commission (1992). 253 See Joe Kennedy, House of Representatives, Why the Consumer Welfare Standard Should Remain the Bedrock of Antitrust Policy (October, 2018), https://docs.house.gov/meetings/JU/JU05/20181212/108774/HHRG-115-JU05-20181212SD004.pdf. 254 Id. 255 Jonathan M. Jacobson, Another Take on the Relevant Welfare Standard for Antitrust, American Bar Association (2015). 248


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assigned to a theory, the neo-Brandeis’ critique seems to fade away. While the Horizontal Merger Guidelines indicate that there are standards beyond prices, thus indicating that some balanced measure is already in place, there remains a focus on prices. Although the guidelines clearly state “market power can also be manifested in non-price terms and conditions that adversely affect customers, including reduced product quality, reduced product variety, reduced service, or diminished innovation,” it also states that price competition can be examined “for simplicity of exposition.” 256 While the language of the welfare standard might be all inclusive, reducing it to “price competition” for the sake of simplicity leaves potential for unknown, misguided, or lack of trust enforcement. Therefore, one can favor the competition standard. Prominent neo-Brandeisian Timothy Wu, a professor at Columbia University School of Law, argues that the “‘consumer welfare’ approach has tended to take antitrust away” from the issue of competition 257 by “not set[ting] a high bar.” 258 In his book The Curse of Bigness: Antitrust in the New Gilded Age, Wu explains that “decades of practice have shown that the promised scientific certainty” of the consumer welfare standard “[have] not materialized. 259 And in looking simply at prices, the approach asks judges and lawyers to do something nearly impossible: measure the welfare effects of highly complex transactions or conduct.” 260 Connecting Senator Sherman’s initial bill to the competition standard and the Sherman Antitrust Act to the implementation of the consumer welfare standard, one finds ironic parallels of the former being what should be in play and the latter not being sufficient to judge the conditions of society. Seeing the flawed approach to implementing the consumer welfare approach, the competition standard stands out. V. THE DIGITAL ERA On October 6th, 2020, the Subcommittee on Antitrust and the Commercial and Administrative Law within the Committee on the Judiciary, published their investigative report regarding competition in digital markets Horizontal Merger Guidelines, U.S. Department of Justice & the Federal Trade Commission (1992), supra note 29, § 1. 257 See Tim Wu, Columbia Law School, The “Protection of the Competitive Process” Standard, (2018), https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=3293&context=faculty_s cholarship. 258 Tim Wu, The Curse of Bigness: Antitrust in the New Gilded Age, Columbia Global Reports (2018). 259 Id. 260 Id. 256


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with focus on Facebook, Google, Amazon, and Apple. The report cited numerous antitrust violations that enabled each of the firms a pathway to dominant market share and control in their respective fields. 261 It is difficult to grasp the significance of dominance given that the four firms total a combined net worth of more than $5 trillion — currently equivalent to a third of the S&P 500 and estimated to be 30% of the world’s gross economic output within a decade. 262 Understanding how influential these four firms are to the world economy, it is evident that anticompetitive behavior could be very problematic. The subcommittee made numerous antitrust recommendations to restore competition through limiting corporations from “operating in adjacent lines of business,” “self-prefencing,” and loosely allowing dominant platforms in “future mergers and acquisitions.” 263 In addition, they advised strengthening antitrust laws and enforcement through the Clayton and Sherman Acts and “private enforcement,” as well as restoring “federal antitrust agencies by triggering civil penalties and other relief.” 264 Without once advocating for the competition standard, the report readily addresses the failures of the consumer welfare approach. Applying the consumer welfare standard to these technology firms is challenging because their services are provided free of charge: this negates the relevancy of price. While A. Douglas Melamed and Nicolas Petit argue that the assault against the welfare standard is largely misguided, 265 several flaws remain in the implementation of the consumer welfare standard. Especially apparent in consideration of the House’s investigation that concluded, “antitrust law is proscriptive, not prescriptive,” 266 the suggestion that any law is prescriptive puts too much authority on the law and demeans our democracy. But in defining the consumer welfare standard, the authors confirm three elements: “anticompetitive conduct… an increase or likely increase in market power; and a causal relation between the two.” 267 When analyzing Facebook’s acquisition of Instagram in 2012, there are a few red flags that warranted “no further action… by the [Federal Trade

Jerrold Nadler & David N. Cicilline, Investigation of Competition in Digital Markets: Majority Staff Report and Recommendations, Committee on the Judiciary & Subcommittee on Antitrust, Commercial and Administrative Law U.S. House of Representatives, (2020). 262 Id. 263 Id. 264 Id. 265 Melamed, A.D., Petit, N. The Misguided Assault on the Consumer Welfare Standard in the Age of Platform Markets. Rev Ind Organ 54, 741–774 (2019). https://doi.org/10.1007/s11151-019-09688-4. 266 Id. 267 Id. 261


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Commission]” after less than a month of investigating. 268 However, the Judiciary Committee highlights that a closer look at the details suggest action should have been taken. From when Facebook initiated their acquisition of Instagram to when they formally absorbed them, the two-year-old social media company sustained significant growth, reaching 80 million more users than it had at the beginning of the fiscal year. 269 This alone suggests Instagram had potential to become a serious competitor to Facebook. Moreover, in a conversation between Facebook’s Mark Zuckerberg (Chief Executive Officer) and Mike Schroepfer (Chief Technology Officer), Mr. Schroepher asserted the “biggest risk” to Facebook would be to “kill” Instagram and “thereby [open] a window for a new entrant.” 270 Through this intentional decision to integrate Instagram into their portfolio of subsidiary companies, Facebook assumed control of a rival company, and by doing so, dissuaded new platforms from taking a chance in the social media market. Here, the FTC and consumer welfare standard failed to maintain a competitive market and even allowed one corporation to assume more market share. Although many of Melamed and Petit’s other defenses of the consumer welfare standard — including their assertion that the standard does not reflect “disguised political choices” nor too steeped in the Chicago School — are irrelevant in application, they identify two key points against the competition standard. The first explains the theory related to consumer welfare’s “blindspots” to innovation, monopsony and zero-price markets, as focused too narrowly on prices. However, one should first emphasize there is a distinction between the consumer welfare standard and practicing antitrust backed by the consumer welfare standard. While the latter concerns the implementation of the law, the former is only a legal theory guiding its practice. Despite arguments from critics of the consumer welfare standard, in most cases, mergers of larger firms taking on smaller firms do not necessarily limit the competitive process: in some cases, they promote it. To claim that any merger of a smaller corporation by a larger one limits competition wrongfully assumes that every small corporation has the potential to challenge the larger one. As Melamed and Petit explain, these smaller firms often “provide a profit-maximizing exit opportunity for early investors in new and unproven Investigation of Competition in Digital Markets, Committee on the Judiciary & Subcommittee on Antitrust, U.S. House of Representatives, (2020). 269 Id. 270 Id., at FB-HJC-ACAL-00063184-85, https://judiciary.house.gov/uploadedfiles/0006318000063197.pdf; see Investigation of Competition in Digital Markets, Committee on the Judiciary & Subcommittee on Antitrust, U.S. House of Representatives, (2020). 268


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technologies” and therefore, promote innovation. 271 The distinguishment between “start-up, unproven” corporations from those with potential to serve as serious challengers is especially convoluted in digital markets. The second prominent critique against the competition standard is that it does not define itself very succinctly. Melamed and Petit explain that proponents for “‘protection of competition’… are often unclear about the concrete elements… that would operationalize a ‘protection of competition.’” 272 Evolved as a critique of the consumer welfare standard, the competition standard has failed to adequately define itself beyond weak, comparative claims of being “stronger” and taking “tougher.” 273 Additionally, where the competition standard is defined, it is not mutually exclusive to the consumer welfare approach. 274 Besides critiquing the consumer welfare standard, the competition standard has many of the same objectives. Both sides clearly make cases for themselves and against the other. Both sides advocate for regulation. So which standard is better? VI. CONCLUSION Is the consumer welfare standard the better medium for antitrust regulation? There’s no denying that what has happened with Google, Apple, Amazon, and Facebook have been harmful to society and questionable to the interests of antitrust. The fact remains that these firms did get exorbitantly large and, along the way, served as detrimental to ideas of innovation and competition valued by the United States. But that doesn’t mean the competition standard is better, there is still a lot of uncertainty in stipulating how well it would do in practice. Pundits on both sides are missing the big picture: no matter the name given to a theory, it must be strengthened. Although both standards emphasize the need for regulation, they diverge in identifying the issue. Advocates for the consumer welfare standard embrace the lax approach as sufficient antitrust, whereas proponents of the competition standard argue the former is not strong enough and further inquiry is needed. Especially in the digital markets, where alleged competition is harder to distinguish from a failed start up, the dominance of large technology firms — Google, Facebook, Amazon, and Apple — Melamed, A.D., Petit, N. The Misguided Assault on the Consumer Welfare Standard in the Age of Platform Markets. Rev Ind Organ 54, 741–774 (2019). https://doi.org/10.1007/s11151-019-09688-4. 272 Id. 273 Marshall Steinbaum & Maurice E. Stucke, The Effective Competition Standard: A New Standard for Antitrust, the Roosevelt Institute (2018). 274 Melamed, A.D., Petit, N. The Misguided Assault on the Consumer Welfare Standard in the Age of Platform Markets. Rev Ind Organ 54, 741–774 (2019). https://doi.org/10.1007/s11151-019-09688-4. 271


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highlight the dire need for increased awareness. While there are some extreme measures within the Judiciary Committee recommendation, such as outright “prohibiting” certain mergers, the recommendations serve as a step in the right direction and an understandable overreaction from decades of lackadaisical enforcement. 275 More than a legal basis for evaluating matters of antitrust, the report recommends “restoring” more congressional oversight and federal antitrust agencies. Although the report leans largely in favor of the competition standard, it would be illadvised to use a doctrine with so many superlatives as a standard for practicing the law. Instead, one can use said superlatives to strengthen the law and collaborate to create and implement a new standard that appeals to both sides. ***

Investigation of Competition in Digital Markets, Committee on the Judiciary & Subcommittee on Antitrust, U.S. House of Representatives, (2020). 275


NOTE TERMS AND CONDITIONS MAY APPLY: THE FIRST AMENDMENT AND THE INTERNET Giancarlo Barrezueta*

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In 1996, the Communications Decency Act (CDA) introduced Section 230 which grants website publishers immunity from third party content. The original intent of granting such immunity was aimed at protecting companies that offer a platform which hosts user-generated content from lawsuits. The immunity does not shield companies from complete accountability since they can still be prosecuted for knowingly hosting illegal content such as federal crimes or intellectual property claims. While such a provision, for its time, appeared to be a crucial stride forward for free expression online, recent controversy and court rulings have unveiled the inability of Section 230 to adjust to modern technological changes. In turn, companies that marketed themselves as platforms where users could express themselves freely were able to amass great wealth and a larger user base. As such platforms grew larger, their range of influence also expanded. The likes of Twitter and Facebook now possess the ability to influence the outcome of elections, depending on the content that they decide to censor. The advancements made by large companies in recent years have made them subject to consistent investigations by government officials. In doing so, the frequency of court rulings that further define the implications of CDA Section 230 suggest that the law is in need of pertinent refinements. At its core, Section 230 preserves our first amendment right of free speech, however, further investigation of recent developments exposes the necessity of adopting the section to contemporary standards. Hence, this Note will examine the efficacy of, or lack thereof, Section 230’s ability to maintain freedom of speech within the boundaries of massive online platforms. The ensuing results of such an examination will reiterate the dire necessity of reform, rather than repealing. I. II.

INTRODUCTION.................................................................................. 55 A. Overview of Section 230....................................................... 57 EVOLUTION OF THE LAW ................................................................... 58

* B.S Candidate for Applied Accounting and Finance (major), Fordham University Gabelli School of Business at Rose Hill, Class of 2024. I owe a great debt of gratitude to the Editorial Board at the Fordham Undergraduate Law Review for being patient and resourceful for my first Note. The content in this Note would not be possible without them. I would also like to special thanks to my friends and family who have always been supportive and have given me encouragement to challenge myself. 276

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A. Software Updates: The Ever-Changing Landscape of the Internet ................................................................................. 59 B. The Age of Social Media and First Amendment .................. 60 C. Censorship ........................................................................... 62 REFORM OR REPLACEMENT............................................................... 64 CONCLUSION ..................................................................................... 66 I.

INTRODUCTION

The framers of the constitution were unable to have enough foresight to frame the constitution in a manner that would account for the rapid expansion of the internet. Yet, the constitution was crafted in a manner that would secure our natural rights with the Bill of Rights. The first amendment preserves, perhaps among the most important rights: freedom of speech and the freedom of the press. Such allows all Americans to freely express themselves however they choose. Freely expressing oneself is the staple of any free country and society as it fosters the ability to engage in nuanced discussions. Dissenting opinions exist, yet we are all bound by our right to express and discuss such views, it is why the framers found it necessary to make it the first amendment. Despite the apparent blessings of freedom, probable limitations still exist within freedom of speech, namely, the speech that can give rise to illegal content, incites imminent lawless action and endangerment are not protected by the first amendment. 277 Likewise, while the press is free to pursue their reporting however they please, the first amendment does not protect the press from possible defamation law, lack of protection for whistleblowers, along with constraints to access of information. 278 The general understanding of these essential liberties were, for the most part, widely accepted because there had yet to be institutions that would place the first amendment into question. However, once the first wires of the internet allowed us to be interconnected, a new horizon for society was discovered. Under such a nascent horizon, that was subject to rapid developments and was responsible for altering the landscape of American society, the question of free speech loomed in the distance. Would emerging online platforms be held responsible for the discussion that is exhibited under their domain? Should the respective online platform assume the responsibility of limiting what can, and should not be 277

USCourts.gov: What does Free Speech Mean? <https://www.uscourts.gov/aboutfederal-courts/educational-resources/about-educational-outreach/activity-resources/whatdoes> 278 See Geofrey Stone, Freedom of the speech and press, Constitutioncenter.org <https://constitutioncenter.org/interactive-constitution/interpretation/amendmenti/interps/266#:~:text=Congress%20shall%20make%20no%20law,for%20a%20redress%20 of%20grievances.>


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said under their website? Such early questions were answered with the enactment of the Communications Decency Act of 1996. The legislation, which would be subject to prolonged legal challenges, aimed protecting minors from indecent and obscene content on the internet. 279 Amid qualms of what future incidents would mean for the development of the internet, Representatives Chris Cox and Ron Wyden amended Section 230 to the law. Section 230 ensured that “providers of an interactive computer service” would not be subject to the treatment as publishers of third-party content. 280 In a vote of 420-4, the House amended section 230, thereby allowing online platforms to be relieved of the potential liability they exhibit under their domain, unlike publications. This ensured that online platforms would be able to enjoy their inevitable expansion with the rapid emergence of newer technologies. As the internet grew in its capacity and capabilities [“Big Tech”], the questions on the first amendment became pertinent once again. The emergence of the “Big Tech,” also known as the tech giants, would be subject to multiple senate hearings as their online platform would receive heed in their suppression or limitation of free speech. While there is no doubt that the online and societal landscape is significantly different than it was sixty years ago, the amendment of Section 230 planted the seeds for the development of multi-million-dollar online companies. The five dominant internet information companies that have received significant congressional pressure are Google, Facebook, Microsoft, Twitter, and Apple, collectively worth approximately 7.1 trillion U.S. dollars.281 With such great wealth, even greater influence arises along with it. The tech giants control over the largest share of the internet's traffic have raised significant concerns over their fulfillment of extending the first amendment to all of their users. Such unchecked power poses an imminent threat to our free speech due to vagueness of Section 230. As the internet becomes the modern American town square, a place where Americans can express and debate their ideas in order to further pertinent conversations, the first amendment should retain equal protection therein. This Note will examine the avenue that can be taken in order to further sustain the first amendment in an ever-expanding online realm. Section 230 is far from perfect, this Note will ultimately arrive at the conclusion that reform is preferable over repealing, for the preservation of our rights and the fluidity of the internet. 279

See Sarah Zeigler, Communications Decency Act of 1996, mtsu.edu <https://mtsu.edu/first-amendment/article/1070/communications-decency-act-of-1996> 280 Id 281 See Jessica Burstynsky, Tech Giants, cnbc.com, (2020) <https://www.cnbc.com/2020/10/28/apple-alphabet-amazon-facebook-microsoft-teslashed-270-billion.html>


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A. Overview of Section 230 As previously noted, Section 230’s origin can be traced to the enactment of the Communications Decency Act (CDA) of 1996. The act in question was Congress’ response to two court cases that were decided in New York during the early 1990’s, which retained problematic results. Cubby, Inc v. Compuserve, Inc. was the first case that was responsible for the enactment of CDA 1996. Compuserve hosted general online information as a service that was subject to a libel lawsuit after a columnist posted “defamatory comments about a competitor.” 282 In an apparent win for the then nascent online platforms, the assumption was held that the online platform would not be held accountable for the content that is published under their domain. The decision that was reached for the case foreshadowed the eventual qualms that would re-emerge with the tech giants. Although Compuserve was determined to not be responsible for third party content, the courts seemingly conflicting decision that “Compuserve has no more editorial control over such a publication than does a public library, bookstore, or news stand and it would be no more feasible for Compuserve to examine every publication it carries for potentially defamatory statements.” 283 Hence, it became evident that the question at hand was too convoluted to be feasible since the court did not expect Internet Service Providers to regulate all of their content for probable sources of defamation. However, four years after Chubby, Inc v. Compuserve, Inc. reached a conclusion, the court took a different approach with the ruling on Stratton Oakmont v. Prodigy Services. Prodigy was another web service company that was the host of online bulletins with over two million subscribers. The web service giant, at the time, was eventually sued as a result of them [Prodigy] removing a comment that challenged the integrity of Stratton Oakemont, a securities exchange firm. The court argued that since Prodigy assumed the role of a publisher by selectively deleting comments, they were in turn subject to assume the liability of all the posts under their domain 284. In order to avoid future liability, the company would have to suspend their moderating practices altogether, similar to Compuserve. The ruling from the case offered an insight on the possible paths that could be taken for the regulation of speech on online platforms. Congress however decided that the aforementioned ruling raised too many alarms for the wellbeing of the recently developing internet service provider (ISP) companies. Congress’ response to Stratton Oakmont v. Prodigy was akin to an act of appeasement in which congress assumed the best course of action (at the 282

Chubby, Inc, v. Compserve, Inc, 776 F. Supp. 135, (1991). Id. 284 Stratton Oakmont v. Prodigy, (1995) 283


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time) was to grant the internet service providers immunity. The legislators aimed to allow internet companies like Prodigy to exhibit a degree of freedom in developing innovative solutions and tools that would moderate their platform, in order to allow the internet market to flourish. It is therefore plausible to suggest that the roots of Section 230 would be grounded under the pretense of financial concerns since, at the time of such cases, the internet was still developing and driving the markets in a profitable direction. 285 Despite the obvious economic motives behind the amendment of Section 230 under the CDA of 1996, the section also incentivized online platforms to place an emphasis on developing new technologies to enhance their services. Thus, Section 230 was born as a response to Stratton Oakmont v. Prodigy, with the intent of allowing online platforms to develop their own standards of policing content while simultaneously enabling the infant internet industry to flourish. The probable good intentions of the Act were based on the intention of “encouraging the unfettered and unregulated development of freedom of speech.” 286 Yet, such good intentions were not sufficient enough to withstand the demands of the social media age and rapid expansion of the internet, which unveiled the withering efficacy of Section 230 to uphold the first amendment. II. EVOLUTION OF SECTION 230 There is no question that the original intent behind Section 230, while being in favor of free speech, was unable to account for the momentous developments of the internet with each ensuing decade. Although Congress has the sole authority to alter the nature of Section 230, the interpretations and application of the law has nevertheless gone awry in the recent decade. It is possible, yet difficult, to imagine the world before the passing of Section 230 along with the rapid expansion of the internet. It is also worth noting that in 2018 the law was modified to enable platforms that allegedly hosted sex traffickers to face the necessary prosecution. 287 Despite a favorable step in the right direction for the security of exploited women and children that were victims of sex trafficking, Section 230 remained intact. The authority that 285

See Niall MacMecnamin, Section 230 in the Sharing Economy, the knowledge group.org, (2020) <https://www.theknowledgegroup.org/webcasts/evaluating-section-230liability-in-the-sharing-economy/ 286 See CDA 230 Legislative History <https://www.eff.org/issues/cda230/legislativehistory> 287 See Jonathan Weber, What's the U.S Law that is protecting US Companies, reurtuers.com, (2020) <https://www.reuters.com/article/us-usa-tech-section-230explainer/explainer-whats-in-the-u-s-law-protecting-internet-companies-and-can-it-bechanged-idUSKBN27D265>


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modern tech giants possess sparks a necessary conversation between the intersection of the internet and the right of free speech. However, concerns only grew with regards to enforcement, or suppression of the first amendment. Since the passing of the Communications Decency Act of 1996, the likes of Compuserve and Prodigy remain in the mere shadows of the modern tech giants, which raised even greater concerns for the first amendment. A. Software Updates: The Ever-Changing Landscape of the Internet Facebook, Twitter, Google, and Microsoft now own the largest shares of the internet traffic 288 while reaching billions of users across the globe. Social media, for better or for worse, is becoming the town square of America. Users are able to engage in the exchange of their ideas with the anticipation that their first amendment rights would be upheld by the online platform. The most notable developments in the internet during the 21st century oversaw the rapid growth of social media outlets, informational output, and of course, platforms for dialogue. Although each new branch of the internet service providers also raises concerns about privacy with the multitudinous instances of data harvesting, the primary focus of this Note concerns itself with free speech. Currently, Twitter oversees 330 million users, 289 Facebook and its platforms retain 3.21 billion users, 290 and Google houses 4.39 billion services. 291 Such a wide range of users leaves the tech giant platforms subject to inevitable exposure of controversy and, perhaps unintentionally, mismanagement. For instance, one may not realize that behind the logarithms of code that separate the user from the platform's regulation software resides a fallible human being that composed the respective code that enforces the companies “policing” instructions. Advancements made under the modern internet age include the development of digital communities, online marketing campaigns, and civic 288

NCTA.com, Where Does the Majority of Internet Traffic Come from, (2019) <https://www.ncta.com/whats-new/report-where-does-the-majority-of-internet-trafficcome> 289 Oberlo, Twitter Statistics, (2018) <https://www.oberlo.com/blog/twitterstatistics#:~:text=Summary%3A%20Twitter%20Statistics,Here's%20a%20summary&text=There%20are%20330%20million%20monthly,female%20 and%2066%20percent%20male.> 290 Zephoria.com, Facebook statistics, (2020) <https://zephoria.com/top-15-valuablefacebookstatistics/#:~:text=Core%20Datapoints%20Review%20%26%20Updated%20October,Mon thly%20Active%20People%20(MAP)> 291 Websitebuilder.com, Google Stats and Facts, (2020) <https://websitebuilder.org/blog/google-stats/>


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dialogue. Businesses have flourished and failed in response to the everchanging digital environment. Among the notable benefits under the internet's rapid expansion, several drawbacks have also been exhibited. Many blame the internet for the rise of human trafficking with websites such as the infamous Backpage.com. Therein the website hosted the exploitation of potentially abused women for escort services. The CEOs of Backpage were eventually convicted and charged for facilitating prostitution and money laundering, along with participating in criminal conspiracy. 292 As humans, we are inevitably prone to error and bias. Thus, what was previously known as simple online platforms have outgrown their humble roots and have become even more complex monoliths, their role in society became just as convoluted. The internet has developed beyond its conceptual image of being an information and media hub. As modern technology becomes more sophisticated, the complexity of the internet develops alongside it. While the likes of Google, Twitter, and Facebook extend their reach to more users, their responsibility to uphold fundamental rights becomes essential. For better or worse modern Americas town square, where individuals can communicate and debate ideas, is predominantly online. B. The Age of Social media and the First Amendment The prospect of billions of users joining new online platforms also raised the possibility of billions more instances of potential violations of the first amendment. While the first amendment protects individuals from government censorship, just as the framers intended, it does not completely leave the user free from the potential censorship of the internet service provider. It is worth noting that social media companies are privately owned companies, thereby voiding themselves of the burden of needing to sustain the first amendment (to an extent). Such a reality thereby reflects the core of Section 230, wherein the online platform is not responsible for the content that is shared under their domain. Perhaps such a statement would be reasonable if not for the continuous expansion and involvement social media plays in our lives. From using social media for interactions with peers to family, to using social media as a main source of news, there is no question that the services of the internet have reached a new horizon for the lives of its users. Alarmingly, a reported 43% of Americans admitted that they rely on

292

See Politico.com, The Sex Trafficking Case Testing the Limits of the First Amendment, (2018) <https://www.politico.com/magazine/story/2018/07/29/first-amendment-limits-backpageescort-ads-2190>


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social media and the internet as their primary source of news. 293 In doing so, the boundaries of social media and of other online platforms have evidently been expanded beyond the binds of leisure and have affected vital aspects of its users' lives. Users now view the internet as an integral part of society wherein one's online image is equally as pertinent as their physical one. Online platforms host public discourse and active community engagement. Such a momentous correlation with one's personal life warrants the delicate necessity of adhering to local legislation and customs. Apart from protecting users' privacy, social media platforms have also assumed the task of facilitating free and fair speech. With the early onset of the digital age, the importance of what free speech would look like within the internet was understated. The likes of YouTube, Facebook, and Twitter emerged in the twenty first century as platforms that revolve around user generated content. With an emphasis on user generated material, sophisticated algorithms have been created that promote, or suppress, particular content to some users 294. Questions surrounding how and what becomes promoted by these algorithms are answered within the companies’ respective Terms and Conditions. Therein, the online platform outlines the specific guidelines the users must adhere to. Community guidelines aim to support the content creators while maintaining apparent reverence for applicable laws. A notable lawsuit that captivates the troubled nature of Section 230 is Jane Doe No. 1 v. Backpage.com LLC.295 This case refined the applicability of Section 230 since the defendants were ultimately determined to be responsible for the egregious damages incurred by the plaintiffs. The court summarized the Section 230’s applicability by noting: ...claims that a website facilitates illegal conduct through its posting rules necessarily treat the website as a publisher or speaker of content provided by third parties and, thus, are precluded by section 230(c)(1). This holding is consistent with, and reaffirms, the principle that a website operator's decisions in structuring its website and posting requirements are publisher functions entitled to section 230(c)(1) protection...the appellants' claims under the TVPRA necessarily treat Backpage as the publisher or speaker of content supplied by third parties. 296

As evidenced by the court's decision, once an online platform begins to assume editorial-esque roles, they become subject to liability, thereby 293

See Amy Mitchell, Americans Who Mainly Get their News From The News, Journalism.org, (2020) <https://www.journalism.org/2020/07/30/americans-who-mainlyget-their-news-on-social-media-are-less-engaged-less-knowledgeable/> 294 See Paige Cooper, How does the YouTube Algorithm work?, (2020) <https://blog.hootsuite.com/how-the-youtube-algorithm-works/> 295 Jane Doe No. 1 v. Backpage LLC, (2016). 296 Jane Doe No. 1 v. Backpage LLC, (2016).


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avoiding the immunities entrusted under section 230. Since Backpage appeared to encourage certain advertisements that supported prostitution with their algorithm, the website ceased to be an online platform and became a publisher instead. Although Section 230 grants immunity for third party content, if a website is determined to have features and an overall operational design that sustains illegal behavior on their platform, then they become more of a publisher than an online platform.297 In doing so, the overarching implication of the ruling suggests that if a company assumes publisher esque responsibilities, they invalidate their protections under Section 230; a significant stride in the right direction for online free speech. C. Censorship Among the most notable catalysts that have encouraged contemporary concerns for the bridge between free speech and the internet can be attributed to increased censorship. As previously mentioned, Section 230 of the CDA permits the online platform to be void from libel regardless of how they decide to moderate content. As was exhibited in the Chubby, Inc v. Compuserve matter, Compuserve was not expected to moderate the influx of comments they received, thereby allowing them to remain clear of libel charges. Conversely, one could argue that the Stratton Oakmont v. Prodigy case offered indications on the consequences of active moderation on the behalf of the ISP. Section 230 offered a lifeline to companies like Prodigy that wanted to assume the “publication-esque” role of regulating their content. However, the issue with such a precedent rest on the perhaps unintentional presence of bias against a particular comment or group of users. Such possible bias was exhibited when Twitter temporarily suspended the white house press secretaries official twitter account for sharing a story from the New York Post. 298 The story from the New York Post revealed a series of emails that connected Hunter Biden to Ukrianain officials. 299 Ensuing controversy emerged not from the contents of the story, but rather, Twitter’s decision to block users from sharing the post as it was viewed as spreading 297

See Eric Goldman, Big Win For Free Speech Online in Backpage Lawsuit, Forbes, (2016) <https://www.forbes.com/sites/ericgoldman/2016/03/17/big-win-for-free-speech-online-inbackpage-lawsuit/?sh=2dfab3851067> 298 Justin Vallejo, Twitter locks account of Kayleigh McEnany for Sharing Hunter Biden Story, (2020) <https://www.independent.co.uk/news/world/americas/us-election-2020/twitter-blockshunter-biden-kayleigh-mcenany-white-house-b1041413.html?> 299 See Gabrielle Fonrouge, Email Reveals How Hunter Biden Introduced Ukfrinaina Businessman to VP Dad, New York Post, (2020), <https://nypost.com/2020/10/14/emailreveals-how-hunter-biden-introduced-ukrainian-biz-man-to-dad/>


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misinformation via “unsubstantiated claims.” 300 Facebook and Twitter's decision to suppress the story would have been tolerable only if they applied the same standard to other users. For example, a story regarding an “anonymous” source that claimed Trump called military vets “losers” made the rounds on Twitter and the internet. 301 The reliance on “anonymous” sources did not prompt the tech giants to suppress the story, which can be viewed as just as “unsubstantiated” as the Hunter Biden story. Such inconsistent standards unveil the blatant bias and thereby urged the necessity to further define the implications of Section 230. The qualms surrounding the efficacy of Section 230 emerge with the discussion of its language. As previously noted, under Section 230 online platforms are given the ability to “act in good faith” when restricting the availability of “lascivious, filthy, excessively violent, harassing, or otherwise objectionable online material.” 302 Terms such as “objectionable” raise sufficient questions regarding what would constitute removable content. Material that can be considered “excessively violent” and “harassing” offer a precise guideline for what would be subject to removal. The aim of offering protection for the “Good Samaritan” enables an online platform to engage the blocking and screening of the content within their service(s). Despite not being subject to liability for what is published within an online platform, companies still make efforts to shield its users from potentially offensive material. The assumption of such a responsibility encounters the risk of potentially limiting free speech. YouTube’s recently updated Community Guidelines affirm that objectionable content regarding the 2020 general election will be subject to content strikes and potentially oversee the demonetization of a channel. 303 The updated guidelines also highlight that the usage of the term “election fraud” will make a video and content creator subject to immediate penalties. 304 YouTube’s current guidelines actively force its users to refrain from public discourse in fear of being penalized for questioning the results of the election. Such Orwellian measures deliberately dictate what users can and cannot express with regards to the election, even 300

See Kari Paul, Facebook and Twitter Restrict Controversial New York Post Story on Joe Biden, The Guardian, (2020), <https://www.theguardian.com/technology/2020/oct/14/facebook-twitter-new-york-posthunter-biden> 301 See Jeffrey Goldberg, Trump: Americans Who Died in War Are ‘Losers’ and ‘Suckers’, The Atlantic, (2020), <https://www.theatlantic.com/politics/archive/2020/09/trumpamericans-who-died-at-war-are-losers-and-suckers/615997/> 302 47 U.S Code §230. 303 Id. 304 Youtube.com, How Does YouTube remove policy violative election-related content? <https://www.youtube.com/howyoutubeworks/our-commitments/supporting-elections/>


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if their views are grounded in objective pretenses. By forbidding users to discuss the prospect of voter fraud, which is grounded in several credible affidavits, 305 the scope of their ability to freely express themselves is limited. Even if such content is later proved to be untrue, YouTube has crossed the line of an online platform and entered the boundaries of an online publisher. The implications of such a guideline limits the prospect of productive and investigative discussions, which in turn neglects the First Amendment. By selectively determining what users can and cannot publish on their platform, YouTube surrenders its Section 230 immunities as observed by the Jane Doe No. 1 v. Backpage LLC (2016) ruling. So long as the content published is not “aggressively violent” or abrasive, then online platforms should not assume the editorial-esque responsibility of deciding what can and cannot be expressed on their platforms. Hence, Section 230’s broad phrasing has created several instances of limited free speech via content censorship. III. REFORM OR REPLACEMENT The turbulent enforcement of online platforms' seemingly double-sided regulatory policies exposes the broad and ineffective nature of Section 230. Despite the shortcomings of Section 230, it is still necessary for the preservation of the future of online platforms, which have already become intertwined with our daily lives. Some laws are inevitably subject to revisions in order to adapt to the demands of contemporary society. Evidenced by Reno v. American Civil Liberties Union, the Supreme Court unanimously ruled that certain provisions of the 1996 Communications and Decency Act were unconstitutional as they stripped content-based provisions of the first amendment. 306 The unanimous decision reached by the court perhaps reveals the agreement across the board, or bench, that the law in question was too vague, thereby serving as a likely overreach for the provisions of the first amendment. The dissenting opinion, issued by Justice Sandra Day O'Connor noted that, at the time, the internet did not have sufficient enough means to exclude minors without depriving adults from full access to the internet.307 The unconstitutionality of the CDA was composed as a result of the amendment of the limited technological progress that would protect children without limiting adults' first amendment rights. In doing so, the necessity to 305

See Francis Mulraney, Kayleigh McEnany brandishes 200 pages of affidavits alleging voter fraud, Daily Mail UK, (2020), <https://www.dailymail.co.uk/news/article> 306 Reno v. American Civil Liberties Union, 521 US 844, (1997) <https://www.aclu.org/cases/reno-v-aclu-challenge-censorship-provisionscommunications-decency-act> 307 Id.


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repeal Section 230 appears unreasonable and unnecessary. At its core, the amendment serves to augment our first amendment right of free speech within the boundaries of the new horizon of the internet. Reform is thereby the more plausible option since it has the potential to enable platforms to continue dialogue on their platforms so long as they are transparent with their moderation policies. Stripping the online platforms of their immunity would only cripple the realm of the internet. Instead, the vague terminology of the statue should be refined with precise terms. Replacing Section 230’s wording of “objectionable language,” 308 which can create the possibility of biased censorship, with “unlawful” or “illegal” language would offer a clearer path towards transparency and open discourse. Objectionable is not precise enough as it can enable the platform to remove dissenting views that they disagree. However, illegal would establish a consistent standard of what can and can't be permitted. For instance, illegal language has the capacity to incite “defamation, true threats, or solicitations to commit crimes'' 309. The conclusion that was reached in the Brandenburg v. Ohio matter in 1969 also clarified the boundaries of our first amendment. Despite being an extreme instance of free speech, the court determined that inflammatory speech is still protected by the first amendment so long as it does not encourage immediate unlawful action. 310 Thus, if unlawful speech can be protected by the first amendment, then dissenting and uncommon speech should also be afforded within the internet as long as it does not promote immediate unlawful action. So long as speech within the internet is suppressed under the pretext that it was unlawful, then online platforms would still qualify for their immunities. “Objectionable language” is not consistent enough since companies can define what they find as “objectionable” differently. If each online platform understood what “good faith” would entail, then seemingly partisan censorship would not be an apparent issue as well. If websites are able to orient their Community Guidelines around a more precise definition of what “objectionable” content entails, then they will not have to void their liability immunities. It is unreasonable to assume that the internet will be able to sustain its expansion into the future without Section 230. Hosting third party content is crucial for online communities and productive dialogue, however, websites cannot continue to limit the scope of free speech by selectively determining publishable content through their publisher-esque guidelines. 308

Section 230 of the Communications Decency Act of 1996 https://www.justice.gov/ag/department-justice-s-review-section-230-communicationsdecency-act-1996 309 Which types of free speech are not protected by the first amendment? <https://www.freedomforuminstitute.org/about/faq/which-types-of-speech-are-notprotected> 310 395 US 444 (1969).


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Hence, with a modification of Section 230’s pretenses, the first amendment would be sustained with significant reverence as the internet continuously becomes entangled with our lives. IV. CONCLUSION How can the first amendment be protected without jeopardizing the profits of large online platforms? The solution would revolve around the reform of Section 230 that would oversee a redistribution of the law’s terms. Vagueness and ill-defined pretenses that were used to create the law are insufficient to withstand the modern landscape of the internet. Such broad wording becomes apparent with websites seemingly harmful Community Guidelines. Nascent controversy surrounding an online platform's ability to sustain the First Amendment is rooted in the waning relevance of the law's original intention. There is no doubt that the original wording and aims of Section 230 have withered away with the rapid transformation of the internet. As billions of users actively utilize the large internet service providers, their fundamental rights are expected to be respected and preserved. The roots of Section 230 are far from perfect. However, at its core, the law has the best intentions to sustain freedom of speech within the internet. Thus, in order to engage free discourse within the internet, Section 230 must be fine-tuned with more precise language that would ensure ISPs are able to maintain the same regulatory standards across the board. Court cases expose the broad and ineffective term of “objectionable” content along with the roles online platforms can assume in order to limit such material. Precise wording such as “illegal material” offers a consistent guideline under which all large or small online platforms can adhere to. Defining illegal language ensures that users' capacity to converse are not suppressed by ISP’s while protecting the public from potentially harmful developments. So long as “objectionable” language remains, then companies will be able to feasibly limit the speech of their users as a result of the vague standard that is created by Section 230. It is essential for our fundamental right of freely expressing within the intent to be protected. Big Tech retains an unhinged power of determining what can and cannot be discussed within their platforms because of the nonspecific terms of Section 230. Uncommon and dissenting viewpoints do not warrant immediate censorship, yet online companies are able to get away with such restraints on free speech. Being able to control what the public sees, views, or discusses encompasses an Orwellian novel and ruins the fabric of a free society. In doing so, websites border the line of an online publisher and render themselves prone to potential liability for suppressing free speech. Large tech companies must ensure that they uphold the expectations of the first amendment within their platforms in order to preserve America's modern


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town square and the free exchange of ideas, which is integral for the fabric of our society. If the law is refined with more precise wording such as “illegal” material, then the realm of the internet will continue to expand while being able to protect the First Amendment in the ensuing years. ***


NOTE DOES AUSTIN TONG HAVE A CASE? WHAT TONG V. FORDHAM MEANS IN THE COURTS AND ON OUR CAMPUSES Zeke Tweedie*

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On June 3 and 4 of 2020, Austin Tong, a senior at the Gabelli School of Business at Fordham University, posted twice to his personal Instagram account. First about the ongoing Black Lives Matter protests, and then about, he says, the Tiananmen Square Anniversary. However, many of his classmates sensed a much different, more threatening message in his activity, which led to a harsh punishment from the school. The following controversy gripped the Fordham community, and has now become Tong v. Fordham Univ. (2020), Tong's lawsuit alleging mistreatment and the infringement of his expressive rights at the hands of Fordham University. This Note seeks to understand the legally relevant complexities of this situation, and assess the details of Tong v. Fordham. By examining the precedents that have been and will become important in the case, this Note will provide a comprehensive analysis of the two sides in this lawsuit, and the legal proceedings so far, in the context of the larger legal trends they embody. Lastly, this Note will use Tong as a reference point in order to investigate a much larger legal and moral issue: the status of free speech and the First Amendment at America’s private universities. So as to thoroughly examine the elements at issue in the nationwide debate, this Note will examine the facets of Tong that have been taken from national and state precedence, and vice versa; this Note will delve into the most contentious issues at the center of the public debate, in order to better understand Tong v. Fordham itself, and try to assess the legal and moral reasonings of Austin Tong and the University. I. II. III. IV.

INTRODUCTION.................................................................................. 69 FORDHAM’S INTERNAL DISCIPLINE ................................................... 70 TONG TURNS TO THE COURTS ........................................................... 71 HISTORY AND EVOLUTION OF ARTICLE 78 ........................................ 72

*B.A. Candidate for English, Fordham College at Lincoln Center, Class of 2022. Researching and writing for the Fordham Undergraduate Law Review has been an incredible experience, and I am grateful to everyone who made this publication possible, as well as the truly tireless members of the editing team who were essential in making this Note happen.

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RULING ON TONG V. FORDHAM .......................................................... 75 CAMPUS SPEECH NATIONWIDE ......................................................... 77 A. SJP and Free Speech at Fordham........................................ 80 CONCLUSION ..................................................................................... 82 I. INTRODUCTION

On June 3, 2020, amid national unrest after the killing of George Floyd, and a resurgence of the Black Lives Matter movement, Tong took to his personal Instagram account, posting under the name @comrademeow. The photograph was of retired St. Louis police captain David Dorn, an elderly Black man, and was captioned “Y’all are hypocrites.” 312 During one of the nights of unrest among the protests, Dorn had been killed while trying to protect a friend’s pawn shop. Tong’s sentiment, which was echoed elsewhere on social media, was that many of the same people protesting the death of an innocent Black man had excused “violent… rioting” 313 that led to the death of another. Many of Tong’s fellow students saw this as an affront to the Movement for Black Lives, and within 24 hours of the post, Tong had received over 70 comments on the post, almost exclusively negative. Then, on the evening of the 4th, the next day, Tong posted a new photo, showing him in his backyard, holding an AR-15 rifle that he had purchased several hours before. The caption read “Don’t tread on me #641989,” with an American flag emoji. 314 The hashtag referenced the date, June 4th, 1989, when Chinese authorities massacred hundreds of pro-democracy protestors, most of them students, at Tiananmen Square in Dongcheng. Tong was born in China, and emigrated with his family to the United States in 2006. Some Fordham students, however, perceived a different, more sinister message: that, Tong’s statement of “Don’t tread on me” wasn’t a political statement, but a threat in response to the backlash he had received after the previous day’s post, and the gun in the photo was meant to send a message to those that had criticized him earlier. Multiple students reached out to the University, 315 and eventually, it reached the desk of Keith Eldredge, a Dean of Students at Fordham College Lincoln Center. Multiple complaints were sent to the school, including one in which a student said that they found the post “extremely alarming,” 316 and that they 312

Ex. A, June 3 Social Media Post, Tong v. Fordham. Austin Tong, Verified Petition, ¶16, Jul. 23, 2020. 314 Ex, B, June 4 Social Media Post, Tong v. Fordham. 315 Keith Eldredge, Affidavit or affirmation in support of motion, 6, Aug. 14, 2020. 316 Ex. H, Complaint 1. 313


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“truly think that Austin could potentially be a danger to the… community.”317 Later, another student called his actions “frightening.” 318 In response to the complaints, two officers of Fordham’s Department of Public Safety spoke to Tong first on the phone, then later that night at his home in Long Island. Though Tong said in that meeting, and in a written statement as well, that he had purchased the gun to “keep the household safe… due to the chaotic and violent situation right now” 319 He also maintained that his post had only been related to the Tiananmen Square anniversary, not the backlash to his post from the previous day. 320 II. FORDHAM’S INTERNAL DISCIPLINE Due to the expressed concern of the other students, though, Eldredge decided to further investigate the incident. Per Fordham’s Student Conduct System, Eldredge alerted Tong, in writing, that he may have violated the University Code of Conduct, the University Regulations, and Office of Residential Life policies on three grounds: 1) violation relating to Bias and/or Hate Crimes; 2) Threats/Intimidation; and 3) Disorderly Conduct. 321 Again per the Student Conduct System, a hearing was held on June 10, at which Tong was accompanied by another Fordham administrator. 322 Ultimately, based upon research into Tong’s social media activity, the reports from the concerned students, and his findings from the hearing, Eldredge determined that Tong had violated the Code of Conduct under Section 6, relating to Threats/Intimidation, and Section 13, which indirectly addresses Bias-Related Incidents and/or Hate Crimes. 323 The text of Fordham’s University Code of Conduct is rather brief (and Tong might argue too vague, allowing Eldredge or some other administrator to interpret the rules according to their goals). Section 6 simply defines violations as “threats [a “threat” is not defined further]... and/or other conduct which threatens or endangers the health or safety of any person.” 324 Section 13 generally accounts for “violations of the published University regulations,”325 317

Id. Ex. I, Complaint 2. 319 Ex. J, Tong’s June 4 Letter. In reference to the ongoing Black Lives Matter protests. 320 Id. 321 Keith Eldredge, Affidavit or affirmation in support of motion, 8, Aug. 14, 2020. 322 Id. 323 Fordham University, The University Code of Conduct, https://www.fordham.edu/info/ 21684/regulations/3693/the_ university_code_of_conduct. 324 Id. 325 Id. 318


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including the section of the University Regulations for Bias-Related Incidents and/or Hate Crimes, which it defines as “any act or behavior that is a violation of the Student Code of Conduct and reasonably believed to be motivated by a consideration (real or perceived) of race, color, creed,” etc. 326 Eldredge was very careful to note the “temporal proximity” between the first and second Instagram posts, which he argues is proof for seeing the second post as a direct response to the backlash of the first, and thus, a Bias-Related Incident. 327 III. TONG TURNS TO THE COURTS Despite the intense political undertones of Tong’s case, the actual legal dispute is not one of the 2nd Amendment. Instead, Tong filed his case for relief pursuant to Article 78 of the New York Civil Practice Laws and Rules. 328 Article 78 “establishes the procedure for challenging the determinations of administrative agencies, public bodies or officers.”329 Essentially, it enables a person who feels that they have been treated unfairly by an agency or institution to challenge that decision in court, and “[i]f the proceeding was brought to review a determination, the judgment may annul or confirm the determination in whole or in part, or modify it, and may direct or prohibit specified action by the respondent.” 330 If Tong were able to prove that the school had acted outside of their own Code of Conduct, and, as he claims, dealt him “arbitrary and capricious punishment,” 331 then under Article 78, the New York County Supreme Court, where the suit was filed, would have the authority to overturn their decision, in full or in part. According to Tong, his actions were protected as free speech. He argues that, taking sections from the school’s Code of Conduct and Mission Statement, as well as other documents, the University has made an “unequivocal commitment to bedrock principles of free speech.” 332 Were Tong’s posts found not to be a threat, 333 then he would be safe from 326

Fordham University, Bias-Related Incidents and/or Hate Crimes, https://www.fordham. edu/info/21684/university_regulations/6566/bias-related_incidents_andor_hate_crimes. 327 Keith Eldredge, Affidavit or affirmation in support of motion, ¶27, Aug. 14, 2020. 328 Austin Tong, Verified Petition, ¶1, Jul. 23, 2020. 329 James Murtha, What is an Article 78 Proceeding, and How do I Bring One?, MURTHA LAW FIRM, (2017), https://murthalawfirm.com/understanding-article-78/. 330 NY CPLR § 7806 (2014). 331 Austin Tong, Verified Petition, ¶37, Jul. 23, 2020. 332 Id, ¶54. 333 Because of the clause in the Bias-Related Incidents section of the University regulations that stipulates the act be a “violation of the Student Code of Conduct,” this finding would therefore negate the violation relating to Bias-Related Incidents.


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punishment, under Fordham’s commitment to free speech. Whether he could prove this by arguing that Eldredge’s interpretation of the second post was unreasonable, or that the importance of Fordham’s free speech values demand permission of speech that could even be reasonably construed to be a threat, the ultimate path to winning the suit for Tong is to prove that his post was not — and should not be seen as — a threat. Either way, if this comes to pass, it will do so because of the Court’s authority under Article 78. Article 78, originally intended to give the courts the ability to ensure fairness in the internal proceedings of government agencies, has been slowly expanded to include different private entities, including private colleges like Fordham. Its purpose has become broader; it now exists as a review process for these private institutions. The intervention of courts into private organization’s internal operations is unordinary, but precedented, with roots going back to Common Law. Given the gray areas that exist in the factual matters of the Tong case, it seems that the interpretation of the New York County Court, both of the facts presented and of their duties under Article 78, will be important to understanding this case, and it is worth reviewing the development of Article 78 rulings and philosophy. IV. HISTORY AND EVOLUTION OF ARTICLE 78 The original intent behind Article 78 was to maintain order over intergovernmental procedures, and the actions of state officers. Over time, though, these powers slowly expanded to include private organizations. The first notable example of this, which regards the Common Law history as well, was Evans v. Philadelphia Club (1865). Though this was over 70 years before Article 78 was written, and was not a New York case, it established a general precedent towards the attitude of the courts in establishing mandamus — that courts had the responsibility to maintain the “necessity of fair dealings within a structured organization.” 334 The Pennsylvania Supreme Court, in its decision, cited the 1616 order of King James I, which reinstated a merchant named James Bagg to a local court in Plymouth. 335 Despite “documented… abusive behavior,” 336 a higher court found “no legal grounds to merit his 334

Christopher Bruno, Private Employers Have to Follow the Rules Too: Article 78 in New York State, STUDENT APPEAL, (Nov. 17, 2011), https://thestudentappeal.com/private-employers-have-to-follow-the-rules-too-article-78-innew-york-state-a0af7549c683. 335 Id. 336 Andrew Thrush and John P. Ferris, BAGG, James I (1554/5-1624), of Plymouth, Devon, THE HISTORY OF PARLIAMENT, (2010), https://www.historyofparliamentonline.org/volume/1604-1629/member/bagg-james-i15545-1624.


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removal,” 337 since he had not committed a crime, saying that “no freeman of any corporation can be disfranchised by the corporation, unless they have authority to do it,”338 which the offending burgesses did not, based on the charges. Their action would nowadays be called ‘arbitrary and capricious.’ This case set the common law precedent for courts’ intervention into organizational proceedings, which Evans v. Philadelphia Club used in justifying applying mandamus over a private organization. The petitioner, Rowland Evans, had been expelled from the Philadelphia Club by its board of directors after an altercation. Evans argued, and the court agreed, that the club charter “does not set forth or show any power” 339 of the board to do so. Thus, the court made one of the earliest actions of mandamus upon a private institution, in ordering that Evans be reinstated. The ability of the courts to issue mandamus should include, they determined, private institutions, where it was necessary to be sure that agreements and fairness were being upheld. 340 The next major development did occur in New York, with Barry v. The Players Association (1911), a case that involved a man named Richard Barry, who had been kicked out of a theatre group for “conduct unbecoming” 341 of the group, after he had made comments about the differences between male and female actors. 342 In this case, Barry protested the actions of the troupe, and successfully convinced the court that, according to the established practices of the group, his ejection had been arbitrary and capricious. This was a much more solid connection to the modern scope of Article 78. The term ‘arbitrary and capricious’ is most recognizable today from its use in regulating decisions of administrative agencies, most notably being codified in 1946 in the Administrative Procedure Act, and has become a significant test in such judgements. Recently, the ‘arbitrary and capricious’ test was used in blocking the Trump Administration’s attempts at rescinding the Deferred Action for Childhood Arrivals program, 343 and its use in headline national cases has a substantial past and future. In this case, though, the doctrine of ‘arbitrary and capricious’ was used to justify the courts act of mandamus over the private entity (the theatre group), a precedent that was effectively codified in 1934 with the writing of Article 78. The precedent was 337

Id. Bruno, supra, note 16. 339 Id. 340 Id. 341 Id. 342 Id. 343 McGuireWoods LLP, U.S. Supreme Court Determines Action to Rescind DACA was Arbitrary and Capricious, JDSUPRA, (22 June, 2020), https://www.jdsupra.com/legalnews/u-s-supreme-court-determines-action-to-38911/. 338


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notably expanded in 2007, with Quercia v. New York University, 344 which solidified that a school that has “substantially adhered” 345 to its own guidelines is not subject to the court’s review. 346 Two almost consecutive cases which, when put together, set an interesting precedent for these education-based cases are Tedeschi v. Wagner College, and Gray v. Canisius College (decided several months apart in 1980), which dealt with a suspended student and fired professor, respectively. In Tedeschi, the New York State Appeals Court set a standard for reluctance in “impos[ing] the strictures of traditional legal rules” 347 onto academic institutions, because they believed that such decisions were often made by professional educators, with more specific and relevant knowledge than the courts could have. 348 In Gray, the Appellate Division of the New York Supreme Court, Fourth Department expanded this precedent to consider actions done in ‘good or bad faith,’ a test which could tell the court how intrusive to be in dealing with academic institutions. 349 Like the term ‘arbitrary and capricious,’ this is a necessary term to know when understanding legal theory. Professor Markus Kotzur at Duke Law even claims it is “fundamental to more or less every legal system.” 350 This ‘good or bad faith’ test has been used frequently since then in these Article 78 cases pertaining to private schools, especially for determining how strictly the New York County Court could intervene. This too could be a metric for the County Court in reviewing Fordham’s actions, and whether or not there was a harmful intention in disciplining Tong. A final Article 78 case that should be noted is Ebert v. Yeshiva (2004). On the most basic facts, this case is the closest precedent to Tong, though its specific details are unique. Yisroel Ebert, a student at Yeshiva University, was kicked out after starting a fight, which was not his first transgression.351 He sued under Article 78, claiming that he had been coerced into voluntarily withdrawing from the school, and that the school had not followed its own

344

Unlike some of the previous cases, Quercia relied heavily on the interpretation of the judge to determine if the school’s rules had been applied correctly, just as Tong will. 345 41 AD 3d 295 (Appellate Division, First Department, 2007). 346 Id. 347 49 N.Y.2d 652 (1980, Court of Appeals of the State of New York). 348 Id. 349 Bruno, supra, note 16. 350 Markus Kotzur, Good Faith (Bona fide), Oxford Public International Law, (January 2009), https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690-e1412?print=pdf. 351 Matter of Ebert v. Yeshiva Univ., 28 AD3d 315, (2006, Appellate Division, First Department).


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procedures in disciplining him, 352 similar to Tong’s argument. While the court found some truth in Ebert’s arguments, it ultimately struck a balance: denying to order the school to reinstate him, but instead remanding the case back to the school, for a “hearing held in accordance with the guidelines promulgated by the [university regulations].” 353 Finding no reason to think the school acted in bad faith, the court resorted to the method it seems to prefer — deferring to a fair judgement of the school. This will almost certainly be the test applied in Tong, and unless Tong can prove that the school acted in bad faith, or out of line with its policies, any chance of relief given by the court is unlikely. V. RULING ON TONG V. FORDHAM Though Tong’s case has followed a somewhat predictable pattern as of now, it is not over yet. Tong’s original lawsuit was filed, as per Article 78, at the Supreme Court of New York, New York County (despite its name, this is not the highest court in the state). After a relatively simple proceeding, in terms of the amount and complexity of the briefs that were filed and the evidence that was entered, the county judge, the Honorable Carol Edmead, struck the lawsuit down. 354 Summarizing the briefs that had been filed, Judge Edmead painted the case in rather basic terms: the question was simply if Fordham’s actions had a “rational basis,” or had been “arbitrary and capricious,” a standard question on similar Article 78 cases. 355 To that question, Edmead found Fordham’s arguments to be persuasive on most questions. Most importantly, she agreed that there was sound reasoning to support the notion that Tong’s posts had been threatening, specifically that “the timing, content, and context of Tong’s Instagram posts justify the… inferences that Dean Eldredge drew about Tong’s [threatening] intent.” 356 As for the bias charge, among other reasons, she noted a point that had been brought up in the Eldredge affidavit, that the caption Tong had used, “Don’t tread on me,” had a negative modern connotation that needed to be recognized, namely due to its connection to the Gadsden Flag, which (though used as a rallying flag during the Revolutionary War) has been co-opted by many White-nationalist groups and has become popular primarily among

352

Id. Id. 354 Tong v. Fordham Univ., NY Slip Op. 33299(U), (2020). 355 Matter of Pell v. Board of Education, 34 NY2d 222 (1974, Court of Appeals of the State of New York). 356 Tong v. Fordham Univ., NY Slip Op. 33299(U), 14 (2020). 353


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such groups. 357 Edmead noted a point from Fordham’s case, that Eldredge had learned of a finding from the U.S. Equal Opportunity Employment Commission, that the flag “had been ‘interpreted to convey racially-tinged messages in some contexts’.” 358 Tong has repeatedly denied any such intent. Nevertheless, this being included in the “context of Tong’s Instagram posts,” 359 she found it to be a reasonable basis for the second violation held against Tong, of a Bias-Related Incident. 360 Judge Edmead also discounted Tong’s factual disputes with Fordham’s arguments, which included differentiating between “brandishing” and “holding” the weapon, and pointing out that Eldredge takes it to be a given that Tong was referring to Black Lives Matter in his June 3 post, even though Tong never used the words “Black Lives Matter” (though he stops short of offering another explanation for the June 3 picture of David Dorn). 361 She found that none of these 13 disputes “could reasonably be considered ‘material’ enough to undermine the rational basis for Eldredge’s decision.”362 As for Tong’s questioning of the process that Eldredge and Fordham underwent, which he says “disregarded their own clear policies and rules on free speech and expression,” 363 Edmead disagreed, finding no obvious proof that any steps that Fordham took were not laid out in its conduct system.364 Furthermore, she pointed out that Tong, in submitting to the process without protest, most notably in taking the hearing that Dean Eldredge had extended to him, was conceding that Fordham did in fact follow its stated procedures. 365 In whole, her ultimate judgement was that there was “substantial adherence” to the stated codes and policies that Fordham and Tong had effectively agreed to in the Code of Conduct. 366 She thus dismissed that case, finding that Tong’s argument was “unpersuasive” and “meritless,” and that “Fordham’s disciplinary decision satisfies the hybrid ‘substantial adherence/arbitrary and capricious,’ standard of review.” 367 Tong has 357

Id., at 14. Id. 359 Id. 360 Id. 361 Austin Tong, Memorandum of Law in Opposition to Respondent's Motion to Dismiss and in Further Support of Petitioner’s Motion for a Preliminary Injunction and Expedited Discovery, 14, Sep. 11, 2020. 362 Tong v. Fordham Univ., NY Slip Op 33299(U), 15 (2020). 363 Tong, supra, note 29, at 17. 364 Tong v. Fordham Univ., NY Slip Op 33299(U), 16 (2020). 365 Id., at 16. 366 Id., at 12. 367 Id., at 18. 358


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appealed the decision to the Appellate Division of the First Department of the State Court. 368 VI. CAMPUS SPEECH NATIONWIDE Though Judge Edmead’s ruling seemed to be quite straightforward and simple (and for the purposes of the lawsuit itself, it was) she also notes two extraneous points that Tong makes, first a mention of a Department of Education investigation into Fordham, and then of Awad v. Fordham, another ongoing case involving free speech. Though she considered them irrelevant to the case itself, it’s worth taking a look at them to better understand the larger dispute: one that not only has much greater consequences than Tong, but ultimately is much more contentious as well. First, Tong brings as evidence a letter sent by the Department of Education (DOE) to Fordham announcing an investigation into Tong’s disciplining, and whether Fordham had “falsely promis[ed] protection for free speech [and] free expression.” 369 This (the second ongoing DOE investigation into Fordham) is part of a pattern that Edward Paltzik, one of Tong’s lawyers, argues gives Fordham University “zero credibility” in free speech disputes. 370 As have many private schools, Fordham has stated its commitment to protecting the right to free speech and recognizing the value that it has, especially in a campus environment. In Tong’s original petition, he points out numerous policies and statements where the University has expressed this commitment, most notably in its Mission Statement, which “guarantees the freedom of inquiry required by rigorous thinking.” 371 However, this issue is complicated by the fact that Fordham is a private school. The reason that Tong has sued under Article 78, instead of the instantly recognizable freespeech symbol of the First Amendment, is simple. The First Amendment doesn’t apply to Fordham in the way that it does to a public (governmentrun) institution. To this point, a study was conducted recently at Elon University, a private school in North Carolina, in which only 44% of respondents agree (were aware) to any degree that a private school could

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Notice of Appeal, Oct. 19, 2020. Ex. E, August 20 DOE Letter, Sep. 11, 2020. 370 Edward Paltzik, Affirmation of Edward Paltzik in Opposition to Respondent’s Motion to Dismiss and in Further Support of Petitioner’s Motion for a Preliminary Injunction and Expedited Discovery, 3, Sep. 11, 2020. 371 Fordham University, Mission Statement, https://www.fordham.edu/info/20057/about/ 2997/mission_statement. 369


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restrict its students’ free expression. 372 Only 8% responded “strongly agree,” 373 and though it is a small sample size, this is probably the case at many private schools, including Fordham. Ostensibly, this is a case about the First Amendment, and Austin Tong’s rights as an American to the free expression of his beliefs. He has said himself, multiple times, that freedom of speech is his ultimate goal. 374 The problem with the First Amendment is that it exists as a check to the federal government’s power, and limits the extent to what the federal government can legislate or enforce. Fordham University is a private school, and Joseph McShane and Keith Eldredge are ultimately private actors. The consequences that Fordham imposed upon Tong, however impactful, are not government actions, and are done, at least according to Fordham, per their procedures. There are several reasons, both legal and practical, why the restrictions of the Constitution don’t fall upon private institutions. Most obviously, they do not have the coercive power of the federal government, and so, even if a private school like Fordham gets federal funding (it does), 375 or is accredited by a state board such as the Board of Regents of the State of New York (Fordham is), 376 it is still its own entity. And while this means that the protections of the First Amendment are not necessarily enjoyed by the members of such an institution, it also means, that the limits of the First Amendment, which allow the regulation of speech with no Constitutional value, 377 like ‘fighting words,’ are not necessarily enjoyed either. Instead, this type of rulemaking is left to the institutions, often in the form of speech codes. Speech codes, according to the Foundation for Individual Rights in Education (FIRE) are “any university regulation or policy that prohibits expression that would be protected by the First Amendment in society at large.” 378 Explicitly named speech codes, looking to promote tolerance, were introduced at many 372

Alexandra Ardinger, Private Universities and Freedom of Expression: Free Speech on Elon University’s Campus, Vol. 2, No. 1., THE ELON JOURNAL OF UNDERGRADUATE RESEARCH IN COMMUNICATIONS 94 (2011). 373 Though the study uses the language “agree,” it is testing awareness, not opinion. 374 Austin Tong, @comrademeow, INSTAGRAM, https://www.instagram.com/comrademeow/?hl=en. 375 Fordham University, Types of Financial Aid, https://www.fordham.edu/info/21247/types_of_financial_aid. 376 Fordham University, Accreditations and Affiliations, https://www.fordham.edu/info/20381/about_us/7264/accreditations_and_affiliations. 377 Briefly, The Costs of Free Speech: Hate Speech, College Campuses, and the Marketplace of Ideas, The University of Chicago Law Review, (Nov. 12, 2017), https://lawreviewblog. uchicago.edu/2017/11/12/1-3-the-costs-of-free-speech-hate-speechcollege-campuses-and- the-marketplace-of-ideas/. 378 Foundation for Individual Rights in Education, What are Speech Codes?, https://www. thefire.org/resources/spotlight/what-are-speech-codes/.


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universities in the 1990s, and many other schools have some individual rules — including a handful of Fordham’s regulations — that arguably fall under this definition. Through several attempts, different speech codes have consistently been struck down at public schools, but have proven to be “more likely to withstand constitutional challenges” 379 at private schools. Some observers, such as at the Harvard Civil Rights and Civil Liberties Law Review, have likened these speech codes to “safety codes” 380 or “quality control measures,” 381 that are written with the interest of community safety and harmony in mind, 382 even at the occasional detriment to expressive rights. This does not mean, however, that free speech counts for nothing on private campuses. Though private schools, legally, can legislate what kind of on-campus speech could be punishable, as long as it is published in a Code of Conduct or something of the sort (that the students themselves agree to) societal expectations maintain the sanctity of student’s rights. Many private schools, in the spirit of academia, have long self-identified as bastions of free speech. This incongruity, between tolerance and freedom, creates a delicate balance, and it is one that has been tested multiple times, most distinctly by the Anti-war movements at certain colleges in the 1960s and 70s, and now, as civil unrest grows. Many of the same institutions find themselves as the settings for intense, sometimes violent clashes over the merits of ‘political correctness,’ a movement that many see as censorship against conservatives and ‘non-politically correct’ speech. The most recognizable of these events happened in 2017, when Milo Yiannopoulos, an incendiary right-wing personality, was scheduled to give a speech at the University of California, Berkeley. Many in the community were against his presence, and over 1500 people, 383 mostly students, protested the venue. When the protest turned violent, the university cancelled the event, 384 and several similar events have also led to conservative speakers being turned away from universities. The second of Tong’s points that Edmead replies to, his comparison of his case to Awad v. Fordham, she does so to again revoke it as irrelevant, based on factual differences, to Tong’s legal argument. But it is certainly relevant to the larger discussion. As it happens, Fordham has encountered 379

First Amendment on Private Campuses, HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW, (1 December, 2015), https://harvardcrcl.org/firstamendment-on-private-campuses/. 380 Id. 381 Id. 382 Id. 383 Thomas Fuller, A Free Speech Battle at the Birthplace of a Movement in Berkeley, N.Y. TIMES, Feb. 2, 2017. 384 Id.


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trouble in the free speech arena recently. In fact, they were familiarized with Article 78 before Austin Tong had ever arrived. A. Students for Justice in Palestine, and Free Speech at Fordham In November of 2015, four Fordham students, Ahmad Awad, Sofia Dadap, Sapphira Lurie and Julie Norris, submitted an application to certify the new club they had started, called Students for Justice in Palestine (SJP). After an inordinately long review process, over a year later, Fordham Dean Keith Eldredge (the same) rejected the application (that the United Student Government (USG) had approved just a month earlier), saying it would “create ‘polarization.’” 385 The students, aided by activist group Palestine Legal, sued the school, in a case called Awad v. Fordham, under the same Article 78 charges as Tong would use three years later. 386 They alleged, like Tong, that Fordham had subverted its own Code of Conduct and policy in making the decision, and that the rejection was ultimately arbitrary and capricious, and should be overturned. 387 SJP has had more success in the New York State Courts than Tong so far. In the same court where Tong’s case was heard, Fordham’s decision was annulled. The New York County court found that “Fordham procedurally violated its own rules concerning the recognition of student clubs by permitting a dean to overrule a vote of the USG.” 388 However, Fordham has stuck by its decision, and this case, like Tong’s, is in the hands of the Appellate Division. Arguments were heard there on November 24 of 2020. Like Tong’s case, there is no obvious reason that the appellate court might overturn the SJP’s case, but the appellate division’s comments on the case could clarify the reasoning of the court. Several of the aforementioned precedents, such as the “substantial adherence” standard from Quercia, were set at this very court. Despite Awad only being noticeably mentioned twice in the Tong court papers, its true weight on this case cannot be missed. Whether or not one accepts the legitimacy of either case, the national controversy that the two have caused has thrust Fordham even deeper into the conversation around campus free speech. FIRE, the pro-free expression group, has identified Fordham as a major target ever since SJP was rejected. In April 2020, two 385

Palestine Legal, Fordham Bans Students for Justice in Palestine, Nov. 2, 2017, https://palestinelegal.org/case-studies/2017/3/9/fordham-bans-students-for-justice-inpalestine. 386 Awad v. Fordham Univ., NY Slip Op 51418(U), (2019). 387 Id. 388 Id.


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months before Tong’s Instagram posts, FIRE named Fordham’s Information Technology Use policy (which restricts students’ use of certain online resources, such as their university email) as its “Speech Code of the Month,” 389 an ironic award given to what FIRE identifies as the most restrictive free speech policies on American campuses. In 2017 and 2018, after the SJP rejection, FIRE cited Fordham’s “disregard for free association,” 390 and included Fordham both years on their annual “Top 10 Worst Colleges for Free Speech.” 391 Other major groups, like the National Coalition Against Censorship (NCAC), have also criticized Fordham’s “infringement on its students’ expressive rights.” 392 The campus debate around free speech has developed into a nationwide controversy, and both sides have made valid arguments rooted in both legal precedence (to the degree that it can be at all applicable) as well as moral belief systems. Tong’s case, though minute in its legal details, is a major part of this bigger dialogue, and Tong himself has hinted at the larger debate, telling Deann Eldredge during his disciplinary hearing that “not even a Chinese university would do this to their students.” 393 The side Tong has taken up has defended the free speech rights of students. As University of Chicago Law Professor Geoffrey Stone argues, the best way to deal with bad or hateful ideas is simply “to counter those ideas… and persuade others that they are wrong.” 394 Historically, the Supreme Court has held that certain forms of speech — statements of misfact, threats, advertising — “[do] not further the values of the First Amendment,” 395 and should be more readily regulated. The other side of the dispute has cited this idea that the value of speech can be judged, and argued it should be applied to new forms of speech like hate speech. 396 Speaking in conversation with Professor Stone, Geneieve Lakier, another Professor at the University of Chicago Law School, offered 389

Laura Beltz, April 2020 Speech Code of the Month: Fordham University, FIRE, (Apr. 2, 2020), https://www.the fire.org/april-2020-speech-code-of-the-month-fordhamuniversity/. 390 FIRE, The 10 worst colleges for free speech: 2018, (Feb. 12, 2020), https://www.thefire. org/the-10-worst- colleges-for-free-speech-2018/. 391 Id. 392 NCAC, NCAC and FIRE Respond to Fordham’s Feeble Justification to Denying Club Status to Pro-Palestine Group; Update: SJP Students File Lawsuit Against Fordham, (Apr. 27, 2017), https://ncac.org/news/blog/fordham-university-denies-official-club-status-topro-palestinian-student-group. 393 Austin Tong, Verified Petition, ¶ 28, Jul. 23, 2020. 394 Stone, supra, note 38, at 13:15. 395 Id., at 7:55. 396 Id., at 11:55. See also Matal v. Tam. SCOTUS has recently rejected the idea of hateful speech as necessarily low-value.


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the argument that, on top of a value judgement of speech, courts should also consider that “with respect to certain kinds of harms,” 397 speech that “seriously chills” the public participation of certain groups (as hateful or oppressive speech has historically been used to do), or threatens imminent harm, “might be regulable,” just as ‘low-value’ speech is. 398 Of course, there are also political and historical complications to this disagreement. Much of the value of free speech, as it has been traditionally and widely understood, is to spread ideas that may not be widely held, or very popular. With the protections that the First Amendment provides, the expression of minorities is given the same consideration as that of the majority. This is important because traditionally, a major tool of the oppression of minority groups has been the censorship of their speech. And many agree, too, that the likelihood of harm coming from speech is greater when it is directed at traditionally oppressed groups. This dynamic is flipped on its head on many college campuses, though, where conservatives are usually minorities, even though they are often the groups accused of speech detrimental to traditionally oppressed groups, like people of color. 399 VII. CONCLUSION Austin Tong, though he has made a stir in the Fordham community, has not yet made much legal impact with his lawsuit against the school. By looking at the facts of his case, especially the high degree of interpretability of his Instagram activity, as well as understanding the specifics of Fordham’s disciplinary code, we can understand the sort of information relevant to the court. Then, reviewing the history of courts’ interference into private organizations, New York State’s Article 78 in particular, and identifying the pertinent standards, like the “arbitrary and capricious” or “substantial adherence” tests of the school’s actions, can help us to understand the deliberations of the court. Though the court’s historical deference to private institutions and the definitive language of Judge Edmead’s ruling suggest that Tong v. Fordham has a short future ahead of it; its relevance to the important legal and moral dispute over the First Amendment occurring on campuses across the nation, including the Awad dispute at Fordham, is more meaningful. Even if Tong does not set any new precedent, or is even rejected outright at the Appellate Division, the nationwide attention it garnered has affected the First Amendment debate. Whether the judiciary pushes against speech codes at 397

Id., at 16:20. Id., at 16:30. 399 Id. 398


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private universities, or further expands the categories of speech liable to be regulated, Tong is a good vehicle through which to learn the past and present of this controversial area of law and moral theory. ***


NOTE HUMAN RIGHT VIOLATIONS AND CRIMES AGAINST HUMANITY: AN ANALYSIS OF INTERNMENT AND REEDUCATION CAMPS IN XINJIANG Elizabeth Hartnett*

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Despite claims of ending their “re-education program,” China has continued building internment camps in Xinjiang. These camps are used to detain and persecute Uyghurs, an ethnic minority in China, and other Muslim minorities. The Chinese government has sanctioned these camps in order to promote a social cleansing and purge the Uyghur people of their religious beliefs. The persecution of these people is based on religious and racial grounds, and has led to imprisonment, torture, and other inhumane acts. Therefore, the acts the Chinese government has taken against these people should be classified as crimes against humanity, and should be investigated by the International Criminal Court of the United Nations (U.N.) Security Council. The International Criminal Court, or ICC, was established in 2002 in the Netherlands; the Rome Statute declared that the ICC would have jurisdiction in dealing with war crimes, genocide, and crimes against humanity. The U.N. Security Council has an obligation to begin an inquiry into the actions taken by the Chinese government. The U.N. should then direct the International Criminal Court to open a case, as the acts of the Chinese government can be classified as a violation of The Universal Declaration of Human Rights and as crimes against humanity. The ICC and the UN should take immediate action against these crimes in order to stop the continued harm of the Uyghur people. I. II. III. IV. V. VI. VII.

INTRODUCTION.................................................................................. 85 CHINA’S DESCRIPTION OF MATTERS IN XINJIANG............................. 86 FORMATION AND PROOF OF RE-EDUCATION CAMPS ......................... 88 WHAT IS HAPPENING WITHIN THE CAMPS? ....................................... 92 UNITED NATIONS AND HUMAN RIGHTS VIOLATIONS ........................ 95 INTERNATIONAL CRIMINAL COURT AND CRIMES AGAINST HUMANITY .......................................................................................................... 97 CONCLUSION ..................................................................................... 98

*B.A. Candidate for Political Science and Anthropology, Fordham College at Rose Hill, Class of 2022. 400

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INTRODUCTION

In northwest China, the autonomous region of Xinjiang is home to many different ethnic minority groups, most notably the Turkic Uyghur people. The Uyghurs are an indigenous group and a majority identify as Muslim. 401 In recent years, the Chinese government has taken extreme action against the Uyghur people in Xinjiang. The government has established re-education camps dedicated to taking action against these people, deeming these Muslims to be “religious extremists” 402 and “terrorists” 403 despite the fact that these people have committed no such crimes. 404 From eye-witness accounts and leaked government documents, it is clear that these camps are not the places of re-education that the government describes. There are reports of brutal torture, both physical and phycological. Those detained suffer from constant physical restraint, mass sterilization, internment, rape, etc. 405 Despite significant evidence confirming the existence of these camps, the Chinese government denies the existence of internment camps. Instead, the government claims that these institutions are “free vocational training” centers. 406 The treatment of these people is constant torture and violated the principles of human rights as set forth by the United Nations. 407 Furthermore, these actions are focused on the Uyghur people in Xinjiang. These acts, committed by China’s government, are a “widespread or systematic attack directed against any civilian population, with knowledge of the attack” 408 and thus classified as crimes against humanity. 409 The Universal Declaration of Human Rights was developed by the United Nations to define what Historical Matters Concerning Xinjiang, The State Council Information Office of the People’s Republic of China, July 2019, People’s Republic of China. ISBN 978-7-11912076-8 402 Id. 403 Id. 404 Id. 405 Adrian Zenz, Sterilizations and Mandatory Birth Control in Xinjiang, AUSTRALIAN STRATEGIC POLICY INSTITUTE'S INTERNATIONAL CYBER POLICY CENTRE, (2020), https://xjdp.aspi.org.au/explainers/sterilizations-and-mandatory-birth-control-inxinjiang/. 406 Xiang Bo, Full Transcript: Interview with Xinjiang government chief on counterterrorism, vocational education and training in Xinjiang, XINHUA, (2018), http://www.xinhuanet.com/english/2018-10/16/c_137535821.htm. 407 United Nations, The Foundations of International Human Rights Law, UNITED NATIONS, https://www.un.org/en/sections/universal-declaration/foundation-internationalhuman-rights-law/index.html. 408 Rome Statute of the International Criminal Court, A/CONF.183/9, (1998), https://legal.un.org/icc/statute/english/rome_statute%28e%29.pdf. 409 Id. 401


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constitutes a human rights violation and has inspired international human rights treaties, laws, declarations, and more. 410 Overall, these treaties, laws, and covenants focus on protecting fundamental freedoms outlined in the International Bill of Human Rights (IBHR). For engaging crimes against humanity and violations of U.N. declarations, the Chinese government should be investigated by the U.N. and International Criminal Court and potentially prosecuted. II.

CHINA’S DESCRIPTION OF MATTERS IN XINJIANG

The State Council Information Office (SCIO) is an office under the State Council of China, also known as the Central Office of Foreign Propaganda. This office was formed by the Chinese Communist Party with the goal of improving the outside world's perception of China, specifically focusing on shaping the international perception of China’s economic and domestic policies. 411 Recently, the State Council Information Office published a white paper entitled “Historical Matters Concerning Xinjiang.” 412 This white paper discusses the evolution of Xinjiang, how the Uyghur people came to develop their religious practices, and claims that actions the Chinese government has taken against the Xinjiang Uyghur Autonomous Region are justified. In this white paper, the SCIO claims that the Chinese government upholds the values of equality for all regardless of ethnicity or religious practices and that the law is applicable to all. 413 Yet, the paper goes on to discuss the “dangers” currently ongoing in Xinjiang, stating that there has been a “surge in religious extremism.” 414 It instigates terror and violence and incites hostility between different ethnic groups, running counter to the teachings concerning patriotism, peace, solidarity, the golden mean, tolerance, and good works advocated by Islam and many other religions. Religious extremism, which constitutes the ideological base of ethnic separatism and terrorism, is by nature anti-human, anti-society, anti-civilization, and anti-religion. … Drawing lessons from international experiences and in view of reality of the region, Xinjiang has taken resolute action to fight terrorism and extremism in accordance with the law, effectively clamp down on terrorism and violence and the spread of religious terrorism. United Nations, The Foundations of International Human Rights Law, UNITED NATIONS, https://www.un.org/en/sections/universal-declaration/foundation-internationalhuman-rights-law/index.html. 411 Anne-Marie Brady, China’s Foreign Propaganda Machine, PROJECT MUSE, (2015), https://www.wilsoncenter.org/article/chinas-foreign-propaganda-machine. 412 Historical Matters Concerning Xinjiang, The State Council Information Office of the People’s Republic of China, July 2019, People’s Republic of China. ISBN 978-7-11912076-8. 413 Id. 414 Historical Matters Concerning Xinjiang, The State Council Information Office of the People’s Republic of China, (2019), People’s Republic of China. ISBN 978-7-119-12076. 410


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Through these efforts Xinjiang has responded to the public’s expectation of security for all ethnic groups, protected the basic human rights, and maintained social harmony and stability in the region. Xinjiang’s fight against terrorism and extremism is a battle for justice and civilization against evil and barbaric forces. As such it deserves support, respect and understanding. 415

This excerpt is critical because it demonstrates that the Chinese government recognizes that actions are being taken against people in Xinjiang. Yet, the government claims these actions are only being taken against those who are trying to spark religiously fueled conflict. This white paper specifically refers to Uyghur practicing Muslims as “religious extremists.” 416 Throughout this authoritative report, the Chinese government asserts that any actions it has taken against the Uyghur population is neither racially motivated nor based on religious principles. Instead, the Chinese government claims these people are committing acts of terrorism, going so far as to refer to the Uyghur Muslim people as “evil and barbaric forces.”417 This white paper does not describe the actions the Chinese government has taken or intends to take to counteract the perceived terrorism threats, however, it clearly states that the government admits to having taken action and will continue to take action. Instead, it addresses the actions in vague terms without concrete examples, stating that “Xinjiang has taken resolute action to fight terrorism and extremism in accordance with the law, effectively clamp down on terrorism and violence and the spread of religious terrorism.” 418 Similarly, in an interview with chairman of the Government of Xinjiang Uygur Autonomous Region, Shohrat Zakir, in 2018 claimed that the Chinese government had launched a vocational education and training program to combat religious extremists. 419 This program, he claims, has been developed with the primary audience being the majority of “people who are influenced by terrorism and extremism, those suspected of minor criminal offenses but do not have to be subject to penalties or can be exempted from criminal punishment.” 420 This indicates that the Chinese government is able to take action against anyone who they deem to be influenced by terrorism. The government needs no proof of such behaviors, and is able to detain people who would not have normally been punished. Zakir continues, stating 415

Id. Id. 417 Id. 418 Historical Matters Concerning Xinjiang, The State Council Information Office of the People’s Republic of China, (2019), People’s Republic of China. ISBN 978-7-119-12076. 419 Xiang Bo, Full Transcript: Interview with Xinjiang government chief on counterterrorism, vocational education and training in Xinjiang, XINHUA, (2018), http://www.xinhuanet.com/english/2018-10/16/c_137535821.htm. 420 Id. 416


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“Xinjiang has provided [those suspected of involvement with terrorist or extremist activities] with free vocational training through vocational education institutions to improve their ability in commanding the country's common language, acquiring legal knowledge and vocational skills'' and “deextremization education.” 421 These centers are being described as places where the Chinese government can train and educate people and effectively purge them of their religious beliefs, as the government declares the beliefs to be extremist in nature. 422 This interview and the Chinese internal report provide evidence that the government has knowingly taken action against people in Xinjiang under the perception of a perceived terrorist or extremist threat. Yet, religious extremism is generally referred to in a theological, political, social, or political sense and normally includes religious violence. 423 While there are multiple acts which would be defined as acts of religious extremism, the most common aspects include intolerance of other religions, radical agendas in politics, or intolerance of diversity. 424 There is no evidence that the Uyghur people or other Muslims in the Xinjiang area as a whole have taken part in any acts of religious extremism. The government is taking action specifically against people who have not been proven to have committed any crime and thus could not be prosecuted under the law. These people are being wrongfully accused of participating in acts of religious extremism only because they are practicing Muslims. Therefore, the government has established these facilities as a form of government sanctioned social cleansing to purge the Uyghur people of their religious beliefs. III.

FORMATION AND PROOF OF RE-EDUCATION CAMPS

Though the Chinese government claims it has only taken action against terrorists, and thus in accordance with Chinese laws, that is not the reality.425 Instead, the government is targeting Muslims and significantly harming them, both physically and psychologically. The Chinese government has established numerous re-education centers as camps to use mass violence 421

Id. Historical Matters Concerning Xinjiang, The State Council Information Office of the People’s Republic of China, July 2019, People’s Republic of China. ISBN 978-7-11912076-8. 423 Susilo Wibisono, Winnifred R. Louis, Jolanda Jetten, A Multidimensional Analysis of Religious Extremism, FRONTIERS IN PSYCHOLOGY, (2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6876432/. 424 Id. 425 Historical Matters Concerning Xinjiang, The State Council Information Office of the People’s Republic of China, July 2019, People’s Republic of China. ISBN 978-7-11912076-8. 422


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against civilians and utilize ethnic cleansing to eliminate the Islamic faith within the Uyghur people. 426 Yet, the Chinese government has denied the existence of political re-education camps. 427 In the China Brief Volume 18 by the Jamestown Foundation, Adrian Zenz discusses and determines the existence of said re-education camps. 428 These re-education camps are considered large scale detention centers, 429 and while they are intended for religious extremists, the substantial majority of people being detained are Muslim minorities, most notably the Uyghur people. The Chinese government has even disclosed that people detained are often only suspected of having committed some minor offense and are those who would have normally been exempted from punishment. 430 The Chinese government continues to deny the existence of such camps, 431 referring to them as vocational training centers instead, 432 yet multiple sources confirm, through anecdotal and eye-witness testimony, an ever increasing presence of these camps. 433 And although there is not a confirmed number of camps, nor people detained, it is believed that this system of re-education through detainment centers has already surpassed China’s “re-education through labor” system which had been abolished in 2013. 434 It is estimated that Joshua Keating, Apparently No One Cares That Much About Ethnic Cleansing, SLATE, (2019), https://slate.com/news-and-politics/2019/11/china-uighur-ethnic-cleansingimpunity.html. 427 Consul General of China denies reports on ‘political education camps for Uyghurs’ in China’s Xinjiang, AKIPRESS, (2018), https://akipress.com/news:602025. 428 Adrian Zenz, New Evidence for China’s Political Re-Education Campaign in Xinjiang, THE JAMESTOWN FOUNDATION, (2018), https://jamestown.org/program/evidencefor-chinas-political-re-education-campaign-in-xinjiang/. 429 Id. 430 Xiang Bo, Full Transcript: Interview with Xinjiang government chief on counterterrorism, vocational education and training in Xinjiang, XINHUA, (2018), http://www.xinhuanet.com/english/2018-10/16/c_137535821.htm. 431 Ben Westcott, China denies having ‘concentration camps,’ tells US to ‘stop interfering’, CNN, (2019), https://www.cnn.com/2019/05/06/asia/china-us-xinjiang-concentrationcamps-intl/index.html. 432 Id. 433 David Stavrou, A Million People Are Jailed at China’s Gulags. I Managed to Escape. Here’s What Really Goes on Inside, HAARETZ, (2019), https://www.haaretz.com/worldnews/.premium.MAGAZINE-a-million-people-are-jailed-at-china-s-gulags-i-escaped-heres-what-goes-on-inside-1.7994216. 434 Minami Funakoshi, China’s ‘Re-Education Through Labor’ System: The View From Within, THE ATLANTIC, (2013), https://www.theatlantic.com/international/archive/2013/02/chinas-re-education-throughlabor-system-the-view-from-within/272913/. It is important to note that the idea that the “reeducation through labor system” had previously only been abolished in the technical sense. The Chinese government abolished the name and re-named the system as merely prisons, yet the practice itself remained. “In 1994, 45 years after the system's establishment in 1949, the Chinese government officially abolished the term laogai, only to rename it 426


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several thousand to a million people have been interned in these new reeducation facilities. 435 The current re-education camps stem from the system of reeducation through labor. The idea that criminals could be reformed through labor led the Chinese government to encourage “transformation through education.”436 Beginning in 2014, the idea of rehabilitation through education was used for a multitude of offenses, from drug addiction rehabilitation to party discipline. This expanded into a tiered system of re-education in conjunction with the government's calls of fighting against religious extremists. Instead of persecuting those who the government considered to be religious extremists and giving them a fair trial, the government could detain these people and subject them to re-education. 437 In 2015, the Chinese news outlet Communist Party News, published the first media report to specifically reference a physical re-education facility’s capacity stating, “Khotan City’s ‘deextremification education and training center’ (去极端化教育培训中心) allegedly detained up to 3,000 persons whose thinking was ‘deeply affected’ by ‘religious extremism.’” 438 From 2016 to present day, the focus on re-education has continued to expand. In 2016, Chen Quanguo became Party Secretary in Xinjiang, and he became known for his “combination of intense securitization and pervasive social control mechanisms.” 439 Furthermore, at this time, the Chinese government began openly condemning religious extremism and publicizing “de-extremification regulations.” 440 Evidence that these re-education camps not only exist, but continue to be built, comes from government issued construction bids and teacher recruitment notices. A city in Xinjiang listed recruitment notices in 2017 for 110 re-education positions, specifically looking for people to fill positions in four “centralized transformation through education classes” and “transformation through education centers.”441 jianyu, or prison. "Henceforth, the word 'laogai' will no longer exist, but the function, character and tasks of our prison administration will remain unchanged," announced the government in 1995, betraying any hope for actual reform. According to Wu's research, there are six to eight million inmates working in such prison camps today.” 435 Adrian Zenz, New Evidence for China’s Political Re-Education Campaign in Xinjiang, THE JAMESTOWN FOUNDATION, (2018), https://jamestown.org/program/evidencefor-chinas-political-re-education-campaign-in-xinjiang/. 436 Id. 437 Adrian Zenz, New Evidence for China’s Political Re-Education Campaign in Xinjiang, THE JAMESTOWN FOUNDATION, (2018), https://jamestown.org/program/evidencefor-chinas-political-re-education-campaign-in-xinjiang/. 438 Id. 439 Id. 440 Id. 441 Id.


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Though these positions are advertised as teaching opportunities and places for educators or social workers to help reform people through rehabilitation, the requirements of said positions reflect that of military personnel. 442 Staff and teacher recruitment notices for Xinjiang’s numerous new “educational training centers” (教育培训中心) often required no specific degree, skill, or teaching background. Instead, they frequently preferred recruits who demonstrated strong ideological conformity, army or police experience, or called for “training center policing assistants.” In many instances, training center and police staff recruitments shared the same job posting, and bids show that “training center” compounds often have police stations. 443

The description for these positions clearly indicates that these positions are not intended to promote rehabilitation. Instead, these people are chosen to reinforce party alliances and, based upon previous experience, would already possess the knowledge and training necessary to take violent actions against others. Furthermore, it is clear that more camps are being built, not just as people continue to be hired for positions such as those listed above. The re-education system and its continuation by Chen Quanguo was swiftly followed by a number of governments funded construction bids, and many more bids have continued since 2016. 444 These bids include descriptions of what is being built and for what reasons. These constructions indicate new camps are being built and older camps are being expanded and upgraded, 445 revealing that the Chinese government shows no signs of slowing its re-education agenda in the near future. Some of these upgrades indicate that existing buildings are being renovated in order to be able to house more people for longer periods of times, with renovations such as adding heating or bathrooms. 446 Other bids contain construction requirements which are significantly less humane for a rehabilitation facility. Many bids mandate the installation of comprehensive security features that turn existing facilities into prison-like compounds: surrounding walls, security fences, pull wire mesh, barbwire, reinforced security doors and windows, surveillance systems, secure access systems, watchtowers, and guard rooms or facilities for armed police. One bid emphasized that its surveillance system must cover the entire facility, leaving “no dead angles” (无死角). Several facilities branded as vocational or other educational training

442

Id. Id. 444 Adrian Zenz, New Evidence for China’s Political Re-Education Campaign in Xinjiang, THE JAMESTOWN FOUNDATION, (2018), https://jamestown.org/program/evidencefor-chinas-political-re-education-campaign-in-xinjiang/. 445 Id. 446 Id. 443


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facilities also carried bids calling for extensive security installations, with some mandating police stations on the same compound. 447

While there has been no formal report of a nationwide budget for these camps, since the Chinese government continues to deny their existence, local budgets do reflect the amount spent on these facilities. For example, “Akto County stated that in 2017 it spent RMB 383.4 million or 9.6 percent of its budget on security-related projects, including ‘transformation through education centers infrastructure construction and equipment purchase.’” 448 It is therefore reasonable to assume that in areas where these re-education camps are located, governments are spending roughly 10% of their budget on these camps. IV.

WHAT IS HAPPENING WITHIN THE CAMPS?

The Xinjiang Data Project is a project which aims to gather information and research on the current situation occurring in the Xinjiang Uyghur Autonomous Region. It focuses on the mass internment camps, cultural destruction and other human rights abuses. 449 This project strives to collect reliable information. Drawing on open-source data including satellite imagery, Chinese and Uyghur-language documents, official government statistics and a range of authoritative reports and academic studies, the Xinjiang Data Project documents the Chinese Communist Party’s human rights abuses against Turkic-speaking indigenous communities in China’s resource-rich northwestern region, and explores the global implications. 450

447

Id. Id. 449 About the Project, The Xinjiang Data Project, AUSTRALIAN STRATEGIC POLICY INSTITUTE'S INTERNATIONAL CYBER POLICY CENTRE, (2020), https://xjdp.aspi.org.au/about/. “This website was developed by researchers at the Australian Strategic Policy Institute’s (ASPI) International Cyber Policy Centre in partnership with a range of global experts. This project is supported by advice from an independent advisory council.” 450 Id. 448


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Just a few of the human right violations include detainment without cause, 451 mass sterilizations, 452 and psychological torture 453 with the goal of erasing the culture of the Uryghur people. In order to ensure the erasure of the Uryghur people, the Chinese government has begun implementing mass sterilization amongst the women of these internment camps, to ensure that they cannot procreate and thus extinguishing the continuity of the Uyghur culture. In 2019, multiple witnesses described drugs and injections which were forced upon them by authorities. 454 Authorities also “forcibly implant[ed] intrauterine contraceptive devices (IUDs) prior to internment, coercing women to accept surgical sterilization, and using internment as punishment for birth control violations.” 455 In a leaked government document known as the “Karakax List,” it is stated that women who refused sterilization or misused birth control could be subjected to internment without a trial or legal basis. Furthermore, government documents revealed that these mass sterilizations are planned to go beyond women who are already in camps, and be forced upon any women living in Uyghur regions. 456 Documents from 2019 reveal plans for a campaign of mass female sterilization in rural Uyghur regions, targeting 14 and 34 percent of all married women of childbearing age in two Uyghur counties that year. This project targeted all of southern Xinjiang and continued in 2020 with increased funding. Budget figures indicate that this project had sufficient funding for performing hundreds of thousands of tubal ligation sterilization procedures in 2019 and 2020, with least one region receiving additional central government funding. 457

The few people who have been able to successfully escape China after being held in internment camps or re-education camps corroborate the other stories of the camps. One such victim was Sayragul Sauytbay who was then David Stavrou, A Million People Are Jailed at China’s Gulags. I Managed to Escape. Here’s What Really Goes on Inside, HAARETZ, (2019), https://www.haaretz.com/worldnews/.premium.MAGAZINE-a-million-people-are-jailed-at-china-s-gulags-i-escaped-heres-what-goes-on-inside-1.7994216. 452 Zenz Adrian, Sterilizations and Mandatory Birth Control in Xinjiang, AUSTRALIAN STRATEGIC POLICY INSTITUTE'S INTERNATIONAL CYBER POLICY CENTRE, (2020), https://xjdp.aspi.org.au/explainers/sterilizations-and-mandatory-birth-control-inxinjiang/ 453 Data leak reveals how China ‘brainwashes’ Uighurs in prison camps, BBC NEWS, (2019), https://www.bbc.com/news/world-asia-china-50511063. 454 Zenz Adrian, Sterilizations and Mandatory Birth Control in Xinjiang, AUSTRALIAN STRATEGIC POLICY INSTITUTE'S INTERNATIONAL CYBER POLICY CENTRE, (2020), https://xjdp.aspi.org.au/explainers/sterilizations-and-mandatory-birth-control-inxinjiang/ 455 Id. 456 Id. 457 Id. 451


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interviewed by Haaretz. She is a Muslim who had been living near the ChinaKazakhstan border. She describes how beginning in 2016, people began to be arrested in the middle of the night and in 2017, she was taken in the middle of the night and interrogated about the whereabouts of her husband and children who were abroad. 458 She was taken to a re-education camp herself in November of that year. She describes the rituals of each day, how prisoners were forced to stand and recite mantras for hours, they remained in shackles at nearly all times, confess to numerous sins, which could include observing religious practices. Those who broke the rules would be tortured in what prisoners referred to as the “black room.” 459 She describes how people were beaten until they were bleeding, had their fingernails removed, and how many girls were repeatedly raped by police. 460 These camps also stripped these people of their religious freedoms and even forced them to participate in actions which their religions deem as taboo. The Muslims held in these camps were forced to consume pork each week, an action which is prohibited in their religion, yet refusal would yield punishment. 461 Overall there are multiple eye-witness accounts of physical and physiological torture occurring with internment and re-education camps. Furthermore, the International Consortium of Investigative Journalists received leaked Chinese government documents, now referred to as “the China Cables.” 462 One of the documents in this leak was a memo sent by the deputy-secretary of Xinjiang’s Communist Party in 2017. This memo outlined how inmates’ lives were to be strictly regulated, with increased punishments and an order to ensure none could escape. 463 This document, among other leaked documents, was a physical piece of evidence which showed that inmates were not at these re-education camps willingly, nor were practices within these camps humane. Sophie Richardson, the China director at Human Rights Watch, said the leaked memo should be used by prosecutors. "This is an actionable piece of evidence, documenting a gross human rights violation," she said. "I think it's fair to describe everyone being David Stavrou, A Million People Are Jailed at China’s Gulags. I Managed to Escape. Here’s What Really Goes on Inside, HAARETZ, (2019), https://www.haaretz.com/worldnews/.premium.MAGAZINE-a-million-people-are-jailed-at-china-s-gulags-i-escaped-heres-what-goes-on-inside-1.7994216. 459 David Stavrou, A Million People Are Jailed at China’s Gulags. I Managed to Escape. Here’s What Really Goes on Inside, HAARETZ, (2019), https://www.haaretz.com/worldnews/.premium.MAGAZINE-a-million-people-are-jailed-at-china-s-gulags-i-escaped-heres-what-goes-on-inside-1.7994216. 460 Id. 461 Id. 462 Data leak reveals how China ‘brainwashes’ Uighurs in prison camps, BBC NEWS, (2019), https://www.bbc.com/news/world-asia-china-50511063. 463 Id. 458


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detained as being subject at least to psychological torture, because they literally don't know how long they're going to be there. 464

Overall, there is a significant amount of evidence available, from government documents to eye-witness testimony which proves that the internment and re-education camps are inhumane and strive to erase those detained of their identity, and ultimately are working to erase the culture of the Urgyhur Muslims. V.

UNITED NATIONS AND HUMAN RIGHTS VIOLATIONS

In 1948, the United Nations made a commitment to uphold dignity and justice for all people by establishing The Universal Declaration of Human Rights(UDHR). 465 The UDHR has inspired international human rights treaties, declarations and led to the formation of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. 466 Overall, these treaties, laws, and covenants focus on protecting fundamental freedoms outlined in the International Bill of Human Rights (IBHR). The International Bill of Human Rights is the official document which outlines specific provisions and details of the International Covenants, and contains the Universal Declaration of Human Rights. Most importantly, it clarifies specific expectations of the UDHR, such as that some people’s rights may be subject to certain restrictions in order to secure the rights of others. 467 Yet, this bill also clarifies that there are specific rights which are classified as human rights and cannot be subject to restriction. Certain rights, therefore, may never be suspended or limited, even in emergency situations. These are the rights to life, to freedom from torture, to freedom from enslavement or servitude, to protection from imprisonment for debt, to freedom from retroactive penal laws, to recognition as a person before the law, and to freedom of thought, conscience and religion. 468

This clarifies that a person’s right to life, freedom from torture, and the right to freedom of thought, are inherent human rights and cannot be taken 464

Id. United Nations, The Foundations of International Human Rights Law, UNITED NATIONS, https://www.un.org/en/sections/universal-declaration/foundation-internationalhuman-rights-law/index.html. 466 Id. 467 United Nations, The International Bill of Human Rights and Universal Declaration of Human Rights, Resolution 217 A, (1948), https://www.ohchr.org/documents/publications/factsheet2rev.1en.pdf. 468 Id. 465


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away. IBHR acts as an obligation to the States which agree to it. These States are effectively bound to respect the obligations and duties outlined in IBHR. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtaining the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. … Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. The domestic legal system, therefore, provides the principal legal protection of human rights guaranteed under international law. Where domestic legal proceedings fail to address human rights abuses, mechanisms, and procedures for individual and group complaints are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level. 469

By agreeing to even one treaty established under the IBHR, a country effectively swears to uphold the principles outlined within said treaty and are subject to legal ramifications from the U.N. should the country fail to adhere to the IBHR. Additionally, parties of treaties under IBHR understand that inquiries may be initiated by the U.N. should there be allegations if a state party has committed a human rights violation.470 China is not just a party to one of the treaties under IBHR, but a party to six.471 China is a party to the U.N. Human Rights Treaties of Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, the International Covenant on Economic, Social, and Cultural Rights, and the Convention on the Rights of Persons with Disabilities. 472 Though all of these treaties pertain to the issue of human rights, the most relevant while analyzing China’s treatment of the Uyghur people is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation 469 United Nations, The Foundations of International Human Rights Law, UNITED NATIONS, https://www.un.org/en/sections/universal-declaration/foundation-internationalhuman-rights-law/index.html. 470 UN Treaty Bodies and China, HUMAN RIGHTS IN CHINA, (2013), https://www.hrichina.org/en/un-treaty-bodies-and-china. 471 Id. 472 Id.


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of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 473

Furthermore, this treaty states that there are no exceptional circumstances which would warrant any form of torture. Torture is, in all cases, a violation of human rights. The acts occurring within Chinese internment camps qualify as torture because they are acts of physical and psychological pain are being inflicted upon those detained by government sanctioned camps. 474 Prisoners are being detained and “re-educated” because the Chinese government has labeled them “religious extremists,” as they are practicing Muslims. This is a form of religious discrimination and a punishment for a perceived threat. Since there are multiple reports of torture occurring within these internment camps and China is party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, there is basis for the U.N. to begin an inquiry into the Chinese government as to what human rights violations have occurred. If substantial evidence is found to support these violations, the U.N. should then turn the case to the ICC. VI.

INTERNATIONAL CRIMINAL COURT AND CRIMES AGAINST HUMANITY

According to the Rome Statute of the International Criminal Court, the ICC has jurisdiction in crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. 475 The actions the Chinese government has taken in Xinjiang against the Uyghur people best fit the terms of crimes against humanity. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection 473 United Nations, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 27 (1), (1984), https://www.ohchr.org/en/professionalinterest/pages/cat.aspx. 474 Data leak reveals how China ‘brainwashes’ Uighurs in prison camps, BBC NEWS, (2019), https://www.bbc.com/news/world-asia-china-50511063. 475 Rome Statute of the International Criminal Court, A/CONF.183/9, (1998), https://legal.un.org/icc/statute/english/rome_statute%28e%29.pdf.


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with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 476

The Chinese government has multiple allegations of many of the above acts. They have imprisoned thousands in internment camps, physically and physiologically tortured prisoners, allowed prison workers to rape female inmates, promoted mass sterilization, and committed many other inhumane acts, such as constant surveillance and ignoring religious rites, which has caused significant suffering to the Uyghur people. Since the ICC has the legal status and power to investigate the Chinese government’s actions regarding crimes against humanity in Xinjiang, the ICC should prosecute the Chinese government. This process will not lead to the immediate closure of the camps, yet beginning this process will begin to save those still in internment camps and eventually give reparations to those who have been affected. VII.

CONCLUSION

Currently, the only bodies with the legal capacity to potentially end the internment camps and re-education program in Xinjiang are the United Nations and the International Court. These re-education camps are committing acts of torture against innocent people. The Chinese government is systematically targeting the Uyghur Muslims and subjecting them to crimes against humanity and violating basic human rights. Since China is a part of the U.N. and has been party to multiple human rights treaties, it is bound to honor said treaties and must accept legal recourse for violating human rights. 477 Additionally, since these actions qualify as crimes against humanity, the International Criminal Court has the jurisdiction to investigate and prosecute the Chinese government. Therefore, since there is significant evidence proving the crimes the Chinese government has committed, the U.N. and ICC should intervene to protect the Uyghur people. ***

Rome Statute of the International Criminal Court, A/CONF.183/9, (1998), https://legal.un.org/icc/statute/english/rome_statute%28e%29.pdf. 477 UN Treaty Bodies and China, HUMAN RIGHTS IN CHINA, (2013), https://www.hrichina.org/en/un-treaty-bodies-and-china. 476


NOTE PHANATICAL PHANS: THE INFLUENCE OF A PASSIONATE FAN BASE AND PUBLIC PERSONA ON LEGAL ACTION AND OWNERSHIP IN INTELLECTUAL PROPERTY LAW Bridget A. McCabe*

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This Note explores the ongoing lawsuit between the Philadelphia Phillies and Harrison/Erickson, Inc. concerning the ownership of and rights to the beloved Phillies mascot, the “Phillie Phanatic.” This Note will use the case Phillies v. Harrison/Erickson, Inc. (2020) as a basis for exploration of the wider context of laws and limitations pertaining to the branding and imaging rights of major sports associations. With such a longstanding and passionate fanbase, this Note aims to understand these laws and standards in the context of a legendary mascot and dedicated fanbase that have transformed Phillie Phanatic into a household name. Specifically, does positive media reception, comradely passion and a legendary persona mitigate — or otherwise color — typical ownership and rights governing copyright and trademark cases? Further, this Note asks whether a beloved persona of a sports association (or similar association) can, with years of antics and rabid fan response, free itself from the norms of copyright litigation, or otherwise impact the outcome of such case decisions. I. II. III. IV. V. VI. VII.

INTRODUCTION................................................................................. 99 MASCOTS AS PUBLIC PERSONAS AND TORT CASE SUBJECTS ......... 101 A. Tort Cases ......................................................................... 101 THE PHILLIES V. HARRISON/ERICKSON INCORPORATED AND UNANTICIPATED LITIGATION ......................................................... 102 COPYRIGHT LAW AND ITS LIMITATIONS ........................................ 104 BLACK LETTER LAW ...................................................................... 106 THE PUBLIC DOMAIN ..................................................................... 107 CONCLUSION .................................................................................. 108 I. INTRODUCTION

* Bridget McCabe is a B.A. Candidate for English and Journalism, Fordham College Rose Hill, Class of 2022. She is immensely thankful for the past and present Editorial Board members of the Fordham Undergraduate Law Review. 478

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The quintessential Philadelphia sports fan is known for a passionate, uninhibited attitude and an enthusiastic (sometimes melodramatic) inflection. This unequaled charge remained consistent many times throughout the years, perhaps most notably on December 15, 1968. It was the end of a disappointing season for the Philadelphia Eagles, and fans were slowly burning out alongside their players: angry admirers donned buttons blaspheming then coach Joe Kuharich as they trudged into the stands of Lincoln Financial Field. Much to the dissatisfaction of the stands, halftime saw the Eagles far behind Minnesota, and even worse, a jolly Santa Claus handing out candy canes to wish fans Happy Holidays from the Eagles. The communal resentment became tangible in this moment: Santa was met with an influx of snowballs pelted from all directions. 479 This legendary story has peppered the attitude towards Philadelphia sports fans since, and it certainly exemplifies just one small part of the whole. Above all, Philadelphia fans are protective of their city, families, tradition and of course, sports. They have created families through sporting traditions; not through the pride of a winningest city, but through the dedication of a people who believe in one ageless denominator. As an embodiment of the passionate comradery they share, a mascot enhanced the Philadelphia fans’ enthusiasm. When the Phillies Executive Vice President Bill Giles commissioned Bonnie Erickson and Wayde Harrison to embody this tall order, they delivered and created the perfect mascot: a big, green, fuzzy extroverted creature hailing from the Galapagos Islands. Always donned in his signature white jersey and red hat, The Phillie Phanatic both engages and embodies the average Phillies fan. He provided light-hearted distraction between innings when the game was not going as planned and capitalized on the lively energy in the stadium in promising cases. As per their agreement, The Phillies gained the rights to use the costume on television, commercials and personal experiences and Harrison/Erickson (“H/E”) would earn more than $200,000 in royalties by 1980. 480 However, H/E were displeased with the apparent “lack of control over the Phillies’ enlarging use of the mascots’ likeness for merchandise” and sued the Phillies for copyright infringement in 1979. 481 However, it is understood that H/E obtained a copyright registration for the Phanatic under the category “artistic

479

Ray Didinger, Ray’s Replies: Story Behind Santa Incident, NBC Sports (December 14, 2011), https://www.nbcsports.com/philadelphia/philadelphia-eagles/rays-replies-storybehind-santa-incident. 480 Michael McCann, Will Phillies Have to Ditch Phillie Phanatic Mascot?, Sports Illustrated (August 6, 2019) https://www.si.com/mlb/2019/08/06/philadelphia-philliesmascot-lawsuit-phanatic. 481 Id.


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sculpture,” not “costume.” 482 This created controversy, as the Phillies argued that this particular registration choice was a conscious effort to tip favor towards H/E in an event as such. In settling the case, the Phillies engaged in an arrangement in which they paid a considerable amount to H/E for the exclusive right to use the Phanatic. 483 Following this lawsuit, the Phillie Phanatic became (and still continues to be) an integral part of the Phillies’ — and by extension, Philadelphia’s — identity. Barring legal ownership and the history of the litigation, the Phillie Phanatic belongs to the Philadelphia Phillies. The countless items of merchandise, public appearances and anecdotes related to the Phanatic created and perpetuated a unique image centralized in Philadelphia baseball. For all intents and purposes, the Phanatic has become the Phillies experience: whether it be displayed on walls or beloved as a toddler’s favorite plush toy, the mascot has entered fans’ homes. Gone are the times when the team and the mascot were separate entities; the Phanatic now represents the larger Phillies team and Philadelphia baseball, and vice versa. This litigation and battle of ownership then begs the question: in light of a legendary reputation created and perpetuated by a passionate fanbase, when does an entity become part of the public domain, transcending or falling beside copyright law, despite a history of legal ownership? II.

MASCOTS AS PUBLIC PERSONAS AND TORT CASE SUBJECTS

Though the public use of a mascot as an essential aspect of a sports team is a relatively recent practice from the 1960s, its surge in popularity is evident: twenty-seven of the thirty major league franchises now have an official mascot. 484 Through their creation and continued use, mascots serve as public personas, thus placing them in the public domain. Though mascots have been the subject of various kinds of legal disputes, perhaps the most common come as tort claims. A. Tort Cases As both defendants and plaintiffs, mascots have historically both committed unintentional torts of negligence towards fans and been subjected to intentional torts (usually assault or battery) by fans and players. 485 The 482

Id. Id. 484 Christian H. Brill and Howard W. Brill, Baseball Mascots and the Law (2015), https://kuscholarworks.ku.edu/bitstream/handle/1808/25549/Brill_Final.pdf?sequence=1&i sAllowed=y. 485 Id. 483


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majority of matters relating to mascots have been disputes over physical action, thus making this case unique as it pertains to copyright law and the likeness of a figure. The universal elements of negligence as they stand — duty, breach, causation, and damages — have seen an ideological shift within the context of baseball. 486 The century-old “baseball rule” has continuously “insulated baseball clubs and their stadiums from tort liability to a spectator injured by a foul ball.” 487 With this precedent, any spectator assumes the risk of impact with a foul ball at no fault to the club or stadium. Thus, most tort cases files against mascots tend to fall within a standard set of reasons: direct contact or indirect contact. Direct contact by the mascot to the plaintiff (even accidental) has been cited, usually when damage or injury is acquired. 488 Indirect contact has come under fire as well; throwing merchandise or give always into the stands has always been a staple entertainment tool for mascots, but is not without dispute. In July of 2000, “Billy the Marlin,” the mascot for the Miami Marlins, ran onto the field during the fifth inning with a t-shirt gun in hand.489 He began shooting t-shirts into the stands, and seventy-six-year-old Saul Shechter got hit in the head with a shirt, causing him to fall backwards over his seat. 490 Because the injury caused permanent optic nerve damage and blurred vision, Shechter sued the club for $250,000 in damages; finding no negligence, the jury sided with the club. Beyond heat or accidental injuries, the most common incurrence of mascot injury comes from assault or battery by fans and players. In the past, fans have pushed mascots off high surfaces or engaged in physical altercations with them. 491 Though less common, players have also attempted to beat, trip, or distract mascots. 492 III. THE PHILLIES V. HARRISON/ERICKSON INCORPORATED AND UNANTICIPATED LITIGATION The rabid fan base of the Philadelphia Phillies (“the Phillies”, “the Club”) found themselves in need of a mascot during the spring of 1978. Then 486

Id. Penn State Law, Torts ”Baseball Rule” https://pennstatelaw.psu.edu/_file/Sports%20Law%20Policy%20and%20Research%20Insti tute/Idaho_Baseball_Rule_Case.pdf (visited April 20, 2020). 488 Brill, supra note 7. 489 Id. 490 Id. 491 Id. 492 Id. 487


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Phillies Executive Vice President Bill Giles developed a vision for “the quintessential fanatical Phillies fan” — a “green, fat furry, big-nosed” mascot “instantly accessible” to children and game-goers to provide slapstick entertainment during and after the games. 493 Giles worked with H/E to create this vision, which later came to life through marketing intern Dave Raymond. 494 The previously established 1979 license agreement, in which H/E earned over $200,000 by January 1980, continued for several years. 495 In 1984, H/E negotiated an assignment (“the 1984 Assignment”) of all rights for $215,000; the negotiation specified that the transfer of these rights was “forever.”496 Operating under the 1984 Assignment for more than forty years, the Phillies developed numerous merchandise items and marketing material using the Phanatic’s likeness. Nevertheless, in June 2018, attorneys representing H/E sent a letter to the Phillies containing a termination notice of the 1984 assignment and in disregard to the Club’s contribution to the Phanatic’s costume design, claiming complete independent creation of the character by H/E.. 497 Despite the “forever” nature of the 1984 Assignment, H/E argued they had grounds to terminate the assignment under Section 203 of the Copyright Act. 498 However, the Club retaliated with numerous responses to refute the validity of the termination. While H/E sought to reclaim sole authorship under Section 203, the Club maintains that they function as joint authors due to their considerable contributions to the Phanatic’s likeness: this invalidates H/E’s claim of sole authorship. 499 Through court documents, it is evident that the Phillies argue based on the combined principles of a few things. Firstly, it is clear that there is some discontent from the Phillies concerning the timing and nature of H/E’s legal action. There is a long history of litigation between the Club and H/E regarding ownership of the Phanatic, and the recent legal action seems to have no catalyst. Moreover, there seems to be no clear answer why H/E decided to take legal action at this moment. The Court’s recent documents state that if the Club does not renegotiate the

493

Phillies v. Harrison/Erickson, Inc., 2020 U.S. Dist. LEXIS 206749, 2020 WL 6482882 (United States District Court for the Southern District of New York). 494 Id. 495 Id. 496 Id. 497 Id. 498 Id. 499 Id.


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1984 Assignment, in turn paying H/E considerable capital, H/E seeks to make the Phanatic a “free agent.” 500 To what extent does the divergence between mere creation and perpetuation color the typical rights of ownership in cases like this? There is no doubt that the Philadelphia Phillies have thoroughly animated the Phanatic as an incontestable addition to the Phillies experience over the mascot’s forty-one-year life. This fact remains one major point of defense that the Club asserts in litigation. In taking a lifeless costume and transforming it into a beloved character, the Club holds true as the author of the Phanatic character. Without the Club’s contributions, the Phanatic would not have been a character at all. Accordingly, even if H/E had not previously exhausted its one opportunity to recapture rights under Section 203, the organization cannot recapture sole authorship rights because it has no right to terminate the Club’s rights as author of the Phanatic character. 501 IV.

COPYRIGHT LAW AND ITS LIMITATIONS

Because the original copyright registration attained by H/E in May 1979 was filed under the category of “artistic sculpture,” the Club asserts that this categorization was an H/E attempt to “dupe” the copyright office in order to receive copyright access which H/E may not have received if the Phanatic was registered as a mascot. Specifically, the Phanatic was described as a “shaggy creature wearing tennis shoes, tights & baseball shirt while carrying [a] pennant.” 502 The wording here is clearly very purposeful: the description attributes human-like qualities to an otherwise inhuman creation. H/E was commissioned to create a costume, not a persona. In addition, H/E submitted a photo of the costume with a person inside, further perpetuating an appearance of a life-like three-dimensional creation. 503 The strategic categorization combined with the humanoid description of the Phanatic is somewhat deceiving, creating a false understanding of what H/E actually created. Section 102 of Chapter 1 of United States Copyright law subsection a states that copyright protections subsist for the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music;

500

Id. Id. 502 Id. 503 Id. 501


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(4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. 504

The law does not specify any materials related to clothing nor costuming. Section 101 of the same chapter defines “pictorial, graphic, and sculptural works,” under which H/E categorized the Phanatic, in detail: ‘Pictorial, graphic, and sculptural works’ include two-dimensional and threedimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. 505

In consideration of this criteria, H/E obtained registration for the Phanatic. However, H/E merely provided design, the physical appearance of the mascot, as well as its clothing and accessories. While the Club created the animation, persona and other life-like elements of the Phanatic, this nuance is lost in the copyright description and photo provided by H/E. This side-stepped registration — the conscious choice from H/E not to register the Phanatic design as a costume — elucidates the ability to significantly affect subsequent legal ownership and litigation.506 If they had submitted a photo of the costume without a person in it, the photo would appear formless and almost lifeless, with numerous pieces and accessories. Whereas sculpture implies an artistic, purposeful three-dimensional work, it is clear that in its simplest form, the design more closely resembles a costume. Had H/E attempted to attain a copyright through a costume registration, the Club asserts the copyright would not have been granted. 507 Further, if H/E did not initially obtain copyright for the Phanatic, the lengthy history of this case’s litigation would be significantly different or may not exist at all. This knowledge prompts a discussion related to the nature of copyright, particularly pertaining to unique entities like the Phanatic. Not only is the 504

Copyright Act of 1976, 17 U.S.C. § 101. Id. 506 Phillies v. Harrison/Erickson Inc., 2020 U.S. Dist. LEXIS 206749. 507 Id. 505


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Phanatic certainly unique in its appearance, but the aforementioned fanbase arguably brings the most profound aspect to the mascot. This begs the following question: what are the laws surrounding intellectual property and the public domain as it relates to the public reception and consumption of an entity? Does the intense passion and great contribution to the legacy of the Phillie Phanatic by loyal fans free itself from the norms of copyright litigation? What are these norms as they refer to legacy, idea or principle? United States copyright law — while outlining the types of work subject to copyright as well as terms, conditions and authorship — does not protect intangible aspects of such creations. Section 102 subsection B states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 508 V.

BLACK LETTER LAW

Though the legal dispute regarding the Philly Phanatic has been quite extensive, there have certainly been previous disputes — from copyright to trademark infringement — concerning the likeness and use of mascots. On April 16, 1994, the Colorado Rockies debuted their mascot, a “loveable, purple dinosaur” named “Dinger.” 509 However, two years later, Coloradobased marketing company Akmad filed a copyright infringement suit against the Colorado Rockies in federal court under claims that it had presented a copyrighted marketing plan and mascot proposal to the team extremely similar to the likeness and persona of Dinger. 510 Akmad’s proposal called the mascot “Colorado Rockiesaurus” and planned for the mascot to hatch from a giant dinosaur egg after the team announced one had been found at the stadium. 511 This was strikingly similar to how Dinger was unveiled. 512 In response, the team asserted that they were aware of Akmad’s proposal, but ultimately decided to develop its own plan. 513 In October 1996, both parties settled on undisclosed terms after nine months of litigation. 514 A similar case arose in 2000 when former Kansas City Royals employee Michael Corbett sued the team in federal court for copyright infringement 508

Copyright Act of 1976, 17 U.S.C. § 102(b). Brill, supra note 7. 510 Id. 511 Id. 512 Id. 513 Id. 514 Id. 509


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under claims that the team’s mascot, “Sluggerrr,” was extremely similar to his own character dubbed “Leo the Royal Lion.” 515 Further, he argued the team “patterned” its mascot after his own copyrighted character and took clear elements from his own design. 516 Specifically, Corbett alleged that the Royals used a distinctive facial expression, light blue cape, and a gold crown from Leo in its design of Sluggerrr. 517 Ultimately, the case settled on undisclosed terms, and Sluggerrr lives on. 518 While both of these cases settled out of court on undisclosed terms, court outcomes indicate that they have been able to retain the public use of these mascot personas. Save for any minor updates made throughout the years, both Dinger and Sluggerrr continue to faithfully remain as members of the Colorado Rockies and Kansas City Royals. Because these lawsuits were filed several years after both mascots were introduced, mascots had time to connect with the team and its loyal fanbase. This could, perhaps, be one factor in the outcome of these cases. When a mascot exists within the public arena for an extended period of time, it becomes its own entity and an invaluable part of the team it serves. Not only do mascots serve monetary marketing purposes for teams, but they also provide a humanitarian element to the sport that develops a passionate following and a doting fanbase. With this consideration, can the implications of the public domain apply? VI.

THE PUBLIC DOMAIN

While mascots are formally owned by the baseball franchises they serve, they often attain a publicly passionate fan base, which could potentially subject them to the public domain. This is significant because it allocates mascots the potential to “free themselves” from intellectual property lawsuits like the aforementioned cases. Specifically, the public domain refers to “creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws.” 519 Thus, works that fall within the scope of public domain are owned by the public and can be used by anyone without penalty. 520 The four most common ways to arrive in the public domain are: 1) the copyright has expired; 2) the copyright owner failed to follow copyright renewal 515

Id. Id. 517 Id. 518 Id. 519 Stanford University, Welcome to the Public Domain, https://fairuse.stanford.edu/overview/public-domain/welcome/. 520 Id. 516


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regulations; 3) the copyright owner deliberately puts it in the public domain; 4) copyright law does not protect this type of work. 521 For example, all works published in the United States before 1923 are in the public domain as of 2019: this standard continues each year, so all works published in 1924 will expire in 2020 ad infinitum. 522 Copyright law does not protect works that are abundant in society, such as book and movie titles, short phrases, or facts and theories. 523 Dedicated works are within the scope of public domain when the copyright owner specifically designates them as public: the owner is the only person with such authority to make this designation. 524 The question of a mascot’s subjectivity to the public domain is not necessarily one of legal or monetary value. Rather, the question of subjectivity falls within the context of a passionate fanbase, or by extension, the idea of a public attachment and ownership. Could there be some sort of proxy ownership at play? Does the constant use of the mascot for all kinds of public interaction permit a sense of attachment from the fanbase? As the public “face” of many baseball teams, a mascot’s likeness is the most reproduced image of the sports franchise. Per public domain regulations, ideas themselves are not protected, only specific ways they are expressed. 525 At some point in their public exposure, the persona of a given mascot enters the homes of its fans, transforming into a physical representation of what their team means to them — some could say their mascot represents the “idea” of what it means to be a fan of their team. Thus, can it be argued that mascots transcend the norms of a franchise facet in light of a loyal fanbase and become a representation of something bigger? While it is clear mascots do not lie fully within the realm of public domain, there is a definite aspect of public ownership that seems to protect such entities from legal scrutiny and dismissal. VII.

CONCLUSION

The legal dispute between Harrison/Erickson, Inc. and the Philadelphia Phillies continues to blur the lines between the ownership and rights to the Phillie Phanatic. Though far from the only case concerning the intersecting conflict between intellectual property law and the ownership of mascots, the Phillies case elucidates the ambiguities relating to the effect of such figures 521

Id. Id. 523 Id. 524 Id. 525 Id. 522


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in the public arena. It is essential to understand the idiosyncrasies of copyright law as it pertains to something as distinctive as a mascot. As demonstrated through Phillies v. Harrison/Erickson, Inc., the presentation and categorization of such creations can have an immense impact on legal action. In a wider context, the exploration of the implications of the public domain relating to public mascots illuminates the fundamental legalities of a sports institution. The passion of the Philadelphia fanbase and the funloving personality of the Phillie Phanatic created an indispensable relationship between the team and the mascot. The Phanatic entered into the households of dedicated fans and became the ultimate symbol of Philadelphia Phillies. When such a relationship forms and perseveres, the “ownership” fans possess can subject figures like the Phanatic to the treatment and laws pertaining to other entities in the public domain. ***



NOTE CONSCRIPTION VERSUS THE U.S. CONSTITUTION Brian Inguanti*

526

Conscription, or mandatory military service, has been implemented in the United States through drafts during times of war, notable examples being both world wars and the Vietnam War. Conscription was introduced through the Selective Services Act of 1917, passed by President Woodrow Wilson to prepare for the First World War. Other countries like Israel, South Korea, Switzerland, Sweden, and Norway have had conscription. No matter what the state of the world is, young people must serve their country for some time. Surprisingly, conscription is fairly popular in other countries, with a poll citing that 74 percent of young Swedish men are in support of it. There has been a debate on if the United States should permanently adopt a policy of compulsory military service. Proponents of this law argue that since the United States has the strongest military in the world and the country can offer freedoms like no other, we must have citizens serve the country to defend these rights from enemies foreign and domestic. There are also points to be made about how it can resolve social unrest between socioeconomic classes because of the military’s inherent nature of de-identification and equality. Another argument is the idea that military service for all can positively develop a generation to be more hardworking and self-sufficient. On the other hand, opponents of conscription claim that conscripted soldiers are nowhere near as effective as professional ones in the case of national defense. There is a difference between professional and conscripted soldiers. Typically, conscripted soldiers receive less training than those who volunteer for military service and make it a career. Also, when in times of peace, there is no need to keep a military stocked with manpower if there is no adversary. Critics of mandatory military service also argue that forcing every citizen to spend time in service may decrease overall levels of patriotism. Another argument, possibly the most significant, is that by requiring military service, the federal government would undermine the fact that the United States is a country rooted in freedom, and that citizens should have the choice of enlistment. * B.A. Candidate for Political Science (Major) and Economics (Minor), Fordham College at Rose Hill, Class of 2024. I thank the Fordham Undergraduate Law Review Program for the privilege to write for them. Special thanks go to Reeve Churchill, Elizabeth Hartnett, Christopher Kerrane, Tyler Raciti, Jennifer Rivero, and the rest of the Editorial Board for the assistance and support. Without the Editorial Board’s help, the publication of this Note would not be possible. 526

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Article I, Section 8 of the United States Constitution states that Congress has the power to “provide for the common defense and general welfare of the United States.” This line will be pivotal in answering the question this Note seeks to answer: Does the federal government have the right to enact mandatory military service to maintain the freedom and sanctity of our country, or is there a responsibility to sustain the lack of conscription because our country is rooted in the idea of choice and free will? This will be answered through the exploration of both arguments and an examination of existing laws and court cases. From this it will be determined that the federal government can enact conscription, but it would not be advisable in view of the potential issues caused by it. I. II. III. IV. V.

ORIGINS OF CONSCRIPTION ............................................................. 122 COMPARATIVE ANALYSIS OF CONSCRIPTION INTERNATIONALLY ... 123 THE PROPONENTS OF CONSCRIPTION .............................................. 124 THE OPPONENTS OF CONSCRIPTION ................................................ 127 UNITED STATES COURT CASES AND LAWS REGARDING CONSCRIPTION ........................................................................................................ 129 CONCLUSION: ANSWERING THE QUESTION OF CONSCRIPTION IN THE UNITED STATES .............................................................................. 131

VI. I.

ORIGINS OF CONSCRIPTION: THE SELECTIVE SERVICES ACT OF 1917

In an attempt to prepare the United States for the First World War, President Woodrow Wilson passed The Selective Services Act of 1917. 527 This was done so the nation could draft soldiers to help the allies. Under this law, all men between the ages of twenty-one to forty-five would sign up for military service in the event the country needs soldiers. 528 This does not mean that every young man has to serve; this law was designed so that in an emergency situation like a world war, the United States could produce a large number of troops quick enough to respond. 527

History.com Editors, U.S. Congress Passes Selective Service Act, A&E TELEVISION NETWORKS, November 5, 2009. https://www.history.com/this-day-in-history/u-scongress-passes-selective-service-act 528 National Archives Foundation, Mobilizing for War: The Selective Service Act in World War I, NATIONAL ARCHIVES FOUNDATION, June 7, 2017. https://www.archivesfoundation.org/documents/mobilizing-war-selective-service-actworldwar/#:~:text=On%20May%2018%2C%201917%2C%20Congress,to%20register%20for% 20military%20service.


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The most notable examples of when the United States had to draft was during both World Wars, and the Vietnam War. 529 These are the first few instances when the federal government required citizens to serve their country. The Selective Services Act was never meant to be permanent — it was usually implemented in times of war. Other countries have different systems of conscription that will be investigated in Section II. II.

COMPARATIVE ANALYSIS OF CONSCRIPTION INTERNATIONALLY

Other countries today require all citizens to serve in the military for some time. Israel, South Korea, Switzerland, Sweden, and Norway all have laws that require young people to devote time to military service. Sweden is the most interesting case regarding these laws, as they abolished conscription in 2010, only to reinstate it in 2018. 530 Sweden’s conscription system is not exactly forced military service for all; Swedish youths are selected randomly, and are assigned to a position based on their interests and skills. 531 The Swedish government also expects some people to volunteer for the military, regardless of if they get randomly selected or not. They’re able to conscientiously object and get placed into non-combat roles. 532 When conscription was reinstated in 2018, the main difference was that the requirement became gender neutral — men and women could be asked to serve. 533 Surprisingly, mandatory military service was very popular in Sweden. A poll from a Swedish newspaper reported that 63 percent of the population wanted to maintain conscription. It was ended in an attempt to save money, 529

Arlene Balkansky, The Draft in World War I: America “Volunteered its Mass,” LIBRARY OF CONGRESS (June 19, 2018), https://blogs.loc.gov/headlinesandheroes/2018/06/wwi-draft/. See also The National WWII Museum Writers, Research Starters: The Draft and WWII, THE NATIONAL WWII MUSEUM IN NEW ORLEANS https://www.nationalww2museum.org/students-teachers/student-resources/researchstarters/draft-and-wwii. 530 World Population Review, Countries With Mandatory Military Service 2020, WORLD POPULATION REVIEW, 2020. https://worldpopulationreview.com/countryrankings/countries-with-mandatory-military-service 531 Elin Hofverberg, Sweden: Mandatory Military Education Re-Introduced, LIBRARY OF CONGRESS, May 5, 2017. https://www.loc.gov/law/foreign-news/article/sweden-mandatory-military-education-reintroduced/#:~:text=According%20to%20news%20reports%2C%20the,(Lagercrantz%2C %20supra.)&text=Compulsory%20military%20training%20was%20enforced,try%2Douts %20(m%C3%B6nstring). 532 Id. 533 Id.


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but conscription ends up being a more cost-effective solution for defense. 534 There are several reasons why military service can be favored among a cohort, those of which will be examined in the next section. In the United States, spending on the armed forces in 2014 was $581 billion.535 To compare, the next country that spends the most on their military is China, at $124.4 billion during 2014. 536 Military spending is often a debated topic: conservatives defend this spending while liberals criticize it, claiming that it is overspending. Noting that conscription is a cost-effective solution to defense, it makes relevant the question that will be explored: should the United States adopt mandatory military service? III.

THE PROPONENTS OF CONSCRIPTION

There are several compelling arguments in favor of conscription. While our country offers freedoms and opportunities that many desire, there are adversaries such as Al-Qaeda and ISIS that seek to destroy western society. 537 Their primary goal is to destroy the western world and America. The military must constantly be operating at a certain strength to maintain the freedom of our society. 538 Mandatory service can also potentially resolve social unrest between socioeconomic classes. To understand this point, Israel’s military must be studied. The Israel Defense Force, or IDF, realized that putting everyone into military service for a period of time can help resolve inequalities. The IDF ran into a problem when they started receiving immigrants from the former Soviet Union and Ethiopia. 539 Prior to this wave of immigration, every citizen in Israel had to serve. However, with the immigrants, military service could be more exclusive and not everyone had to serve. At this time there was also a trend of not serving, which created many problems for the IDF. Through 534

David Landes, Most Swedes Support Mandatory Military Service: Poll, THE LOCAL SE, March 23, 2009. https://www.thelocal.se/20090323/18386 535 Max Roser and Mohamed Nagdy, Military Spending, OUR WORLD IN DATA, 2013. https://ourworldindata.org/military-spending 536 Id. 537 Secretary of Defense James N. Mattis, Remarks by Secretary Mattis on the National Defense Strategy, U.S. DEPARTMENT OF DEFENSE, January 19, 2018 https://www.defense.gov/Newsroom/Transcripts/Transcript/Article/1420042/remarks-bysecretary-mattis-on-the-national-defense-strategy/ 538 Id. 539 Ari Bussel, Mandatory Military Service Works in Israel, NEWSBLAZE, November 26, 2009. https://newsblaze.com/world/israel/mandatory-military-service-works-inisrael_11173/


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requiring every citizen to serve, the Israel Defense Force has managed to create a melting pot where people of different backgrounds in Israel work alongside one another with a common goal: the defense of Israel. There is also a greater sense of unity because the IDF is a microcosm of all of Israel, its army is responsible for serving everyone in the country. Requiring Americans from all backgrounds to serve in the military could have the same effects that it had on Israel in respect to uniting the country towards a common goal, alleviating the divisiveness our country currently suffers from. While using the Israeli Defense Force as an example of how conscription can work, it would be inappropriate to exclude their violations of human rights in the past pertaining to Palestinians in the form of arbitrary killings, restrictions on non-Israelis like interference of privacy, and more. 540 The United Nations define human rights as privileges granted to all humans regardless of any condition or background. 541 These rights more specifically apply to those of right to life and liberty, freedom from slavery and torture, and more. From this definition it can be observed that the IDF has in the past come into conflict with the UN’s human rights declaration. While these violations are inexcusable, they’re not a result of conscription. The United Kingdom and other first-world militaries has also had issues with human rights, 542 but it does not mean these militaries are inherently immoral. It is an unfortunate fact that regarding war, soldiers can make mistakes in the heat of battle or in a stressful situation. It’s up to the leadership to train soldiers and prevent them from making these mistakes. These violations can also be prevented through international military law and rules of engagement. The United States military, for example, has placed a large emphasis on

540

United States Department of State, Country Reports on Human Rights Practices for 2019, BUREAU OF DEMOCRACY, HUMAN RIGHTS AND LABOR, 2019. https://www.state.gov/wp-content/uploads/2020/03/ISRAEL-2019-HUMAN-RIGHTSREPORT.pdf 541 United Nations, Human Rights, UNITED NATIONS. https://www.un.org/en/sections/issues-depth/humanrights/#:~:text=Human%20rights%20are%20rights%20inherent,and%20education%2C%2 0and%20many%20more. 542 The Report Action Brief, We All Need Safety From Violence and Terrorism, but No Government Should Sacrifice People’s Human Rights in the Name of National Security, AMNESTY INTERNATIONAL. https://www.amnestyusa.org/issues/national-security/; Clive Baldwin, UK Judge Finds British Soldiers Responsible for Abuses in Iraq, HUMAN RIGHTS WATCH, December 15, 2017. https://www.hrw.org/news/2017/12/15/uk-judge-finds-british-soldiers-responsible-abusesiraq


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respecting the human rights of citizens in foreign countries, 543 to which this focus would be continued in a system of conscription. Another benefit of conscripted service is that people left the service more responsible and discerning. The United States often finds the same with veterans. Veterans are often able to make decisions more easily, understand and accomplish a task, convey greater discipline, and work in teams more effectively than their civilian counterparts. 544 Of course, opponents of conscription would argue that people can be negatively affected by military service, like coming back with Post Traumatic Stress Disorder, or PTSD. Veterans suffering with PTSD can be more easily startled, and this disorder puts more stress on families and relationships with others. 545 The most recent figures show that 11-20% of veterans serving in a combat role in Operation Enduring Freedom and Iraqi Freedom were reported to suffer from PTSD afterwards, 12% of veterans suffered from PTSD in Operation Desert Storm. 546 It should be noted this primarily happens with combat veterans,547 and to put that into perspective, during Iraq in 2005, only 11% of the United States Army were combat units.548 Considering that a small percentage of the Army actually goes into combat, and other countries allow citizens to choose if they want to serve in combat, it can be observed that the benefits to military service would far outweigh the drawbacks.

543

United States Southern Command, Human Rights Awareness Education, United States Southern Command. https://capstone.ndu.edu/Portals/83/Documents/Capstone/HumanRightsGOFO.pdf 544 U.S. Department of Veterans Affairs, Positive Outcomes of Military Service, U.S. DEPARTMENT OF VETERANS AFFAIRS, September 2, 2015. https://www.va.gov/vetsinworkplace/docs/em_positiveChanges.asp 545 U.S. Department of Veterans Affairs, Effects of PTSD, U.S. DEPARTMENT OF VETERANS AFFAIRS. https://www.ptsd.va.gov/family/effects_ptsd.asp 546 U.S. Department of Veterans Affairs, How Common is PTSD in Veterans , U.S. DEPARTMENT OF VETERANS AFFAIRS. https://www.ptsd.va.gov/understand/common/common_veterans.asp 547 Lindsey A. Hines, MSc, Josefin Sundin, PhD, Roberto J. Rona, FFPH, Simon Wessely, FMedSci, Nicola T Fear, DPHIL, OXON, Posttraumatic Stress Disorder Post Iraq and Afghanistan: Prevalence Among Military Subgroups, US NATIONAL LIBRARY OF MEDICINE, NATIONAL INSTITUTES OF HEALTH, September 2014. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4168809/#:~:text=Several%20US%20stud ies%20have%20also,deployed%20to%20Iraq%20and%20Afghanistan.&text=A%20US%2 0study%20found%20that,personnel%2C%20compared%20with%20navy%20personnel. 548 John J. McGrath, The Other End of the Spear: The Tooth-to-Tail Ratio (T3R) in Modern Military Operations, COMBAT STUDIES INSTITUTE PRESS FORT LEAVENWORTH, KANSAS, 2007. https://www.armyupress.army.mil/portals/7/combatstudies-institute/csi-books/mcgrath_op23.pdf


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THE OPPONENTS OF CONSCRIPTION

On the other hand, there are many reasons not to implement conscription in the United States. The first reason is that conscripts are not as effective as professional soldiers in national defense, especially with military advancements. 549 Conscripts only have a few months to train for national defense as opposed to professional soldiers who spend a much longer time being cultivated for service. Most systems of conscription have a one-year service requirement, whereas professional soldiers typically serve for multiple years. 550 Conscripts have also been considered suboptimal for national defense because of the lesser training. 551 Observing this situation pragmatically, there’s not much of a purpose to instituting mandatory military service when the volunteering servicemen and women aren’t very effective for national defense. Rather than failing to add troops, the US Army is moving towards the direction of decreasing their numbers because the military is becoming more highly skilled and technical. 552 In the age of more sophisticated technology, wars are no longer won by having boots on the ground. Wars are now won with superior missile fire and satellites. This raises the question of whether reducing the number of physical soldiers would change the US military’s budget. It depends on how much the number of soldiers is reduced, but it most likely wouldn’t alter the budget. Instead of paying soldiers or providing services for them, it would instead go towards the equipment and technology that is replacing them, and the training of some to maintain it. 553 There is also the chance that universal military service can detract from an overall sense of patriotism, and increase resentment towards the federal government. 554 Citizens potentially being locked into service at a time of war will not see the point in fighting for their country when they never chose to in the first place. The United States encountered this problem with the Vietnam War where half a million young men fled the draft. 555 This could be 549

Bruce Chapman, A Bad Idea Whose Time is Past: The Case Against Universal Service, BROOKINGS INSTITUTE, September 1, 2002. https://www.brookings.edu/articles/a-badidea-whose-time-is-past-the-case-against-universal-service/ 550 Id. 551 Id. 552 Id. 553 Id. 554 Id. 555 Blake Stilwell, 11 Ways People Dodged the Draft During the Vietnam War, BUSINESS INSIDER, January 5, 2020. https://www.businessinsider.com/11-ways-peopledodge-the-draft-during-the-vietnam-war-2020-1


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evidence for how conscription would be negatively received among young people in our country if it were reintroduced. In addition, in times of peace there is no need to maintain a military. There is no adversary, so having the majority of the country’s youth in service can be seen as a misallocation of manpower. These same young men and women could be at college or entering the workforce contributing to the economy. A counterpoint is that wars can abruptly happen, so it would be better to be prepared rather than to be caught vulnerable. However, with no system of conscription, there are currently 1.3 million Americans in the armed forces. 556 To compare, China and India both have a larger military, at 2.1 million and 1.4 million members respectively. 557 The United States is number three in the list of the largest militaries in the world, with North Korea being at number four, with 1.2 million members. 558 Provided this figure doesn’t dip too low, opponents would argue that we can rely on the 1% of the population to defend from immediate attack. This also does not take into account the fact that when war is declared, many young Americans enlist. 559 This weakens the argument that America needs a draft in case of war since there are already enough soldiers serving in times of peace, and historical trends show the nation will have enough manpower for possible war. Lastly, the inherent question of the people’s choice arises. The United States prides itself in being a nation where its people enjoy inalienable rights and the privilege of general freedom. Opponents would ask, how free is a country where the people are forced to do with their lives for a number of years? The defense of the country is no light undertaking; people should be able to choose if they want to serve the country, and possibly make the ultimate sacrifice. It could be argued that this enactment of conscription would violate people’s right to life, liberty, and the pursuit of happiness. This

556

CFR.org Editors, Demographics of the U.S. Military, COUNCIL ON FOREIGN RELATIONS, July 13, 2020. https://www.cfr.org/backgrounder/demographics-usmilitary#:~:text=Now%2C%20there%20are%20about%201.3,percent%20of%20the%20U. S.%20population.&text=The%20army%20is%20the%20largest,marine%20corps%2C%20 and%20coast%20guard. 557 Statistia, The Biggest Armies in the World Ranked by Active Military Personnel in 2020, STATISTIA.COM, 2020 https://www.statista.com/statistics/264443/the-worlds-largest-armies-based-on-activeforce-level/ 558 Id. 559 Museum Writers, Take A Closer Look: America Goes to War, THE NATIONAL WWII MUSEUM IN NEW ORLEANS https://www.nationalww2museum.org/students-teachers/student-resources/researchstarters/america-goes-war-take-closer-look


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idea of liberty relates to the argument posed in Arver v. U.S., which will be explored in the next section. V.

U.S. COURT CASES AND LAWS REGARDING CONSCRIPTION

The subject of conscription is not foreign to courts in the United States. Perhaps before examining the question of whether America should adopt mandatory military service, previous court cases related to the subject should be examined. Arver v. U.S. was a Supreme Court case in 1918 that decided on the legitimacy of the Selective Service Act. 560 It was thought to be a violation of the thirteenth amendment, since conscription was regarded as being involuntary servitude, and a violation of the first amendment, claiming that mandatory military service was a violation of freedom of thought. 561 The argument is logical: to be forced into service, it could be considered a sort of involuntary servitude, and by being put into the military, you had to conform to a mindset and lifestyle that you may not want to conform with. Despite this, the decision stated that the Selective Service Act did not violate the first or thirteenth amendment, since the federal government has the authority to raise armies and in turn, implement military drafts. 562 This case is significant because it established the practice of the federal government being able to implement drafts when needed in times of war. The debate of whether conscription should be implemented into the United States is legitimate because of this case. Rostker v. Goldberg was a case in 1981 that argued the constitutionality of the Military Service Act. 563 In the Military Service Act, the president has the authority to require military registration for males, so in the event of war the nation will be able to acquire more soldiers if needed. 564 According to this act, only men had to register for service. This act was discontinued in 1975, only to be reinstated by President Carter five years later because of a crisis in southwestern Asia. Several men challenged this act in court, citing that it was unconstitutional because it violated the Due Process clause in the fifth amendment since it discriminated against gender. Despite this argument, the Supreme Court decided that this act did not violate the constitution; 560

Arver v. U.S., 245 U.S. 366, (1918) (Federal government can implement a military draft through their right to raise armies.) https://supreme.justia.com/cases/federal/us/245/366/ 561 Id. 562 Id. 563 Rostker v. Goldberg, 453 U.S. 57, (1981) (Congress is able to have military draft for only men.) https://www.law.cornell.edu/supremecourt/text/453/57 564 Id.


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Congress was well within their authority for having a law of this nature. Similarly, to Arver v. U.S., this case enabled Congress to enact conscription for males if needed. President Barack Obama in 2011 officially repealed the “Don’t Ask, Don’t Tell,” policy which allowed homosexuals to serve in the military on the basis that they do not disclose their sexuality. 565 In essence, if you were a homosexual in the military, it had to be kept anonymous to prevent discharge. President Obama repealed this policy on the grounds that “our armed forces will no longer lose the extraordinary skills and combat experience of so many gay and lesbian service members.” 566 Obama’s repeal enabled service members to serve and be open about their sexuality. In respect to conscription, what this repeal does is enable a greater block of the U.S. population for possible military service because homosexuals are able to serve without any disqualifying factor unique to them. Congress has access to a greater population of potential servicemen and women if conscription were to be enacted. National Coalition for Men v. The Selective Service System was a case argued in the U.S. Southern District of Texas where it revived the argument that Rostker v. Goldberg made. 567 This decision, however, ruled that the Selective Service System did discriminate on the basis of gender. Since the 2013 decision that women can operate in combat roles, it has long been a question of if they will be required to sign up for the draft. This ruling does not directly affect the policy of who has to register, 568 but opens the debate of if women should be included in a system of conscription. The Selective Service System being ruled as discriminatory of gender suggests that the federal government may have a greater number of people to draw from if a system of mandatory military service is established. National Coalition for Men v. The Selective Service System and the repeal of the “Don’t Ask Don’t

565

Human Rights Campaign, Repeal of “Don’t Ask, Don’t Tell, HUMAN RIGHTS CAMPAIGN. https://www.hrc.org/our-work/stories/repeal-of-dont-ask-dont-tell 566 Megan Slack, From the Archives: The End of Don’t Ask, Don’t Tell, THE OBAMA WHITEHOUSE ARCHIVES, September 20, 2012. https://obamawhitehouse.archives.gov/blog/2012/09/20/archives-end-dont-ask-dont-tell 567 National Coalition for Men v. The Selective Service System, Civil Action H-16-3362, (2019) (Federal judge rules that SSS discriminates based on gender.) https://www.documentcloud.org/documents/5747780-190224-SELECTIVE-SERVICEDECISION-Full.html 568 Patricia Kime, After Court Ruling, Here’s What’s Next For Women and the Draft, MILITARY.COM, February 26, 2019. https://www.military.com/daily-news/2019/02/26/no-women-dont-have-sign-draft-yetheres-whats-next.html


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Tell” policy impacts the possibility of conscription in the sense that more people will be deemed eligible. VI.

CONCLUSION: ANSWERING THE QUESTION OF CONSCRIPTION IN THE UNITED STATES

The main question this Note sought to answer was whether the federal government had the right to enact mandatory military service. Given Article I, Section 8 of the United States Constitution that grants Congress the right “to provide for the common defense and general welfare of the United States,” 569 and previous Supreme Court cases granting the federal government the right to implement drafts in times of war, it can be concluded that the federal government most likely has the authority to enact conscription, since it’s raising an army for national defense. However, it would be in the United States’ best interest to leave military service how it is. Conscription has too many risks associated with creating animosity towards the government, and with modern warfare requiring less soldiers and more satellites and drones, it is not necessary to maintain a physical army, especially during times of peace. While it is not bound by law, there is something to be said about the fact that the country has indelible rights of freedom and a sense of free will with its citizens, which mandatory military service would undermine. With a current active military of approximately 1.3 million members, 570 the United States is unique from other countries that have conscription in the sense that its total population is much larger, and that its military has no issue with having adequate manpower. The US manages to defend itself without conscription or a draft, which is evidence enough that despite the federal government possessing the ability to enact conscription, modern warfare for the United States does not require a consistent stream of new soldiers from a system of conscription, and would be best left in its current model. ***

569

Section 8 of the 1st Article of the United States Constitution, 12th Clause, U.S. CONST. Art I § 8, cl. 12. https://constitution.congress.gov/browse/article-1/section-8/ 570 World Population Review, Countries With Mandatory Military Service 2020, WORLD POPULATION REVIEW, 2020. https://worldpopulationreview.com/country-rankings/military-size-by-country


NOTE ENVIRONMENTAL RACISM AND FAILURES OF THE EPA Kathryn Schulte* 571 In New York City, highways are a major contributor to air pollution, which drives to increasing rates of childhood asthma. Researchers have found that children growing up near toxic areas such as highways, are 66% more likely to be hospitalized for their conditions. 572 This is especially an issue in neighborhoods that are predominantly composed of people of color (POC), as segregative highways were built through their communities in the mid 1950s. Specifically, Robert Moses, an infamous NYC urban planner, developed a highway running through the Bronx, Brooklyn, and Harlem; these areas now see stark rates of childhood asthma due to the presence of black carbon, which comes from vehicle exhaust. 573 While the Environmental Protection Agency (EPA) is responsible for providing safe air under the Clean Air Act (CAA), 574 city and state powers must expand their ability to regulate climate policy when the EPA fails to do so. It can be argued that the human right to clean air should be jurisprudentially prioritized over the right to pollute, especially for the sake of profit. The CAA has faced many legal challenges on the basis of its effectiveness. In the case Massachusetts v. Environmental Protection Agency (2007), the Court upheld in a 5-4 decision that the EPA can and must regulate such harmful carbon dioxide and greenhouse gas (GHG) emissions, particularly *B.A. Candidate for Political Science (major) and French (minor), Fordham College at Rose Hill, Class of 2022. This Note would not be possible without the support and guidance of the Editorial Board of the Fordham Undergraduate Law Review, with special thanks to Tyler Raciti (Editor-In-Chief), Arianna Chen (Executive Online Editor), Reeve Churchill (Executive Articles Editor), Fahima Hussain (Senior Editor), and Caroline Morris (Senior Editor). I am immensely grateful for their feedback and edits while writing my first Note. This Note also could not have been written without the constant support of my family and friends along the way. 572 Juliana Maantay, Asthma and Air Pollution in the Bronx: Methodological and Data Considerations in Using GIS for Environmental Justice and Health Research, National Library of Medicine (November 28, 2005), https://pubmed.ncbi.nlm.nih.gov/16311064/. 573 Ariel Spira-Cohen, et al., Personal Exposures to Traffic-Related Air Pollution and Acute Respiratory Health Among Bronx Schoolchildren with Asthma,” Environmental Health Perspectives (April 2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3080941/. 574 United States Environmental Protection Agency, Overview of the Clean Air Act and Air Pollution, EPA (October 09, 2020), https://www.epa.gov/clean-air-act-overview. 571

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from vehicular pollution, that the agency previously lacked the capability and will to regulate.575 Since then, New York has sued the EPA for not upholding the aforementioned standards: this issue has been exacerbated by the policies of the current Trump administration. In February 2020, the New York v. Environmental Protection Agency case called for action concerning the failure of the EPA to regulate pollution coming from upwind states, which are those in the Midwest, including Ohio, Illinois, and Indiana. 576 They began petitioning for legal action in late 2019 to order the agency to develop and enforce the “Good Neighbor Provision. 577” This specific provision ensures that the air quality of other upwind states does not impact New York’s ability to maintain their own. Despite the ruling being in their favor, the EPA still has yet to act. Being that the city and state are working together in pursuit of cleaner air, they must hold the EPA accountable for the harmful effects of air pollution in these at-risk neighborhoods to achieve these effects. Given that the outbreak COVID-19 disproportionately impacts predominantly POC neighborhoods, higher exposure to pollutants only worsens the possibility of contracting this respiratory disease. As reported by Harvard researchers, many of the pre-existing conditions for COVID-19 are also rooted in exposure to fine particulate matter (PM2.5). 578 This kind of pollution is created from the reaction between gases in the atmosphere and those released by vehicle emissions or power plants. The increasing number of pollutants in the air such as PM2.5 emphasizes the need for clean air as absolutely essential to help save lives during this pandemic and also prevent further susceptibility to life-endangering medical issues in the future. I. II. III. IV.

INTRODUCTION: ENVIRONMENTAL RACISM .............................. 133 HISTORY OF THE CLEAN AIR ACT ............................................. 136 A. Federal Regulation of Air Pollution .................................. 136 B. The Role of the State .......................................................... 138 EXPANDING CITY POWERS ON CLIMATE POLICY ...................... 139 CONCLUSION ............................................................................. 141 I. INTRODUCTION: ENVIRONMENTAL RACISM

575

Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). New York v. Environmental Protection Agency, 852 F.2d 574 (D.C. Cir. 2020). 577 New York Wins Lawsuit Against Trump's EPA's Inaction on Smog Pollution. (2020). https://ag.ny.gov/press-release/2020/new-york-wins-lawsuit-against-trumps-epas-inactionsmog-pollution 578 Xiao Wu, et al., Exposure to Air Pollution and COVID-19 Mortality in the United States (April 5, 2020), https://projects.iq.harvard.edu/files/covidpm/files/pm_and_covid_mortality.pdf. 576


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In the United states, people most heavily impacted by environmental racism are communities of color at large, but also more specifically both city and statewide, according to the Union of Concerned Scientists. 579 The pollutants that cause health issues such as asthma are particulate matter smaller than 2.5 micrometers (PM2.5), black carbon, and ground level ozone. 580 As of 2019, the Bronx, Manhattan, and Queens — predominantly home to Black, Latino, and Asian communities — are the most polluted areas not just within New York City but the entire state of New York. 581 Conversely, more than two thirds of white New Yorkers live in areas that are below the state average cap for pollutants. Compared to their white counterparts, Asian residents are exposed twice as much pollution. This gap exponentially increases for Latino and Black New Yorkers, who both are exposed to over 70% more. 582 In New York, this can be attributed in large part to highways and roadways, such as the Cross Bronx Expressway that emblemizes the dangers of environmental racism: how anthropogenic climate change disproportionately affects people of color. Designed by infamous city planner Robert Moses, 583 the seven mile long, six-lane expressway was built from 579

Maria de Moura, et al., Inequitable Exposure to Air Pollution from Vehicles in New York State (2019), Union of Concerned Scientists, www.ucsusa.org/sites/default/files/attach/2019/06/Inequitable-Exposure-to-VehiclePollution-NY.pdf. 580 “Public Health and Environmental Groups File Suit Against Weak Smog Standard.” WE ACT for Environmental Justice, 17 Nov. 2016, www.weact.org/2015/12/public-health-and-environmental-groups-file-suit-against-weaksmog-standard/. 581 de Moura, supra note 7. 582 Id. 583 Robert Moses spearheaded hundreds of projects that shaped New York City in the midtwentieth century. He held unprecedented power in the city that allowed him almost total control of public construction, which gave him his nickname of the “Master Builder.” Of his projects, some of the most well-known are the United Nations Building and the Cross Bronx Expressway. In total, he built 13 bridges, 416 miles of highway, 658 playgrounds, and 150,000 housing units. His legacy, however, is tarnished by the mass displacement he willingly caused in many middle to lower income neighborhoods, especially to people of color. The amount of people he displaced to build all of his highways and parkways was bigger than the population of some cities at about 250,000 total. Robert Caro, who wrote the builder’s biography, said he “tore out the hearts of a score of neighborhoods,” including the Bronx. In the late seventies, Moses defended his actions, saying “How do you visualize the area that we cleared out for the Fordham expansion downtown? They needed the space. Now I ask you, what was that neighborhood? It was a Puerto Rican slum. Do you remember it? Yeah, well I lived there for many years and it was the worst slum in New York. And you want to leave it there?” His actions were purposefully racially motivated, and this legacy continues to impact the neighborhoods he destroyed through environmental


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1942-1972 584 and effectively displaced over 1,500 families. 585 This is despite the fact that there was another route for the expressway that could have potentially displaced significantly less people. Political actors took advantage of the families who could not afford to stay and have now impacted many generations that live in the Bronx by building the Cross Bronx Expressway. 586 Compounded with the issue of displacement, the highways and built structures from Moses have imposed high rates of asthma and other pollutantrelated respiratory and heart diseases upon the Bronx for almost 80 years since creation. Currently, this borough alone has one of the highest rates of pediatric asthma, which stands as the leading cause of hospitalizations and school absence in the Bronx. 587 The BronxCare Pediatric Asthma Center finds that 1 in 4 children are impacted by this disease. 588 With such a high rate, pollution’s damage has a domino effect on a community. In the Bronx, this high rate of pediatric asthma has driven more school absences, which exacerbates school retention issues. In 2017, the Office of the Mayor found that the Bronx had the highest rate of high schoolers dropping out of school at 11.7%. 589 Issues with health make attending school and also concentrating on studies much more difficult. Without a diploma, finding employment also becomes more difficult. Again, COVID-19 exacerbates this issue, with many schools and businesses closing, and hospitals becoming more crowded. The Bronx currently has the highest rate of unemployment in the city at 24.7%, the highest it has been since the Great Depression in 1929. 590 This means approximately 1 in 4 Bronxites are facing unemployment. degradation. (“The Legacy of Robert Moses,” January 17, 2013, https://www.pbs.org/wnet/need-to-know/environment/the-legacy-of-robert-moses/16018/.) 584 Catherine McNamara, The Cross-Bronx Double Cross: How the Cross-Bronx Expressway has Affected Pediatric Asthma in the Bronx (2012), American Studies Senior Theses, https://fordham.bepress.com/amer_stud_theses/24, 24. 585 Matt Sedensky, Decades Later, Doing the Cross Bronx Expressway Right, The New York Times, (Oct. 7, 2001), https://www.nytimes.com/2001/10/07/nyregion/neighborhoodreport-bronx-up-close-decades-later-doing-cross-bronx-expressway.html. 586 Id. 587 Silver K. Warman and P. R. Wood, Modified Risk Factors for Asthma Morbidity in Bronx Versus Other Inner-City Children, The Journal of Asthma: Official Journal of the Association of the Care of Asthma, 46 Journal of Asthma 995 (2009). 588 Pediatric Asthma Center, BronxCare Health System, https://www.bronxcare.org/ourservices/pediatrics/pediatric-asthma-center/. 589 Mayor de Blasio Announces Record High Graduation Rate. (2018, February 07). https://www1.nyc.gov/office-of-the-mayor/news/085-18/mayor-de-blasio-record-highgraduation-rate 590 Conde, E., & Olumhense, E. (2020, July 22). Bronx Unemployment Reaches Levels Unseen Since the Great Depression, Welcome2TheBronx. (July 2020)


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Before the pandemic, air pollutants were responsible for nearly 5.5 million premature deaths globally. 591 These effects, as previously mentioned, are exacerbated by COVID-19: a small increase in PM2.5 leads to a 15% increase in COVID-19 mortality. 592 This is another way the Bronx, as well as Brooklyn and Queens, are disproportionately affected by the pandemic. Since the start of the crisis in the spring, these boroughs have had significantly higher rates of cases and deaths. As of December 2020, these boroughs have a daily average of hospitalizations between 45-70, while Manhattan has about 30 and Staten Island is below 20. 593 Today, political actors continue to take advantage of the Bronx as well as Queens and Brooklyn by not taking action against the health problems caused by pollution, especially in the midst of a respiratory pandemic. II. HISTORY OF THE CLEAN AIR ACT While the various health-related detriments related to the Clean Air Act (CAA) fall under the Environmental Protection Agency, enforcement becomes increasingly difficult under an administration that does not believe in anthropogenic climate change, especially with numerous rollbacks on the regulations put in place to monitor pollution. Established in 1970 by Congress and most recently updated in 1990, the CAA is designed to hold the EPA accountable for creating a national ambient air quality standard (NAAQS) for pollutants such as particulate matter, ozone, sulfur dioxide, nitrogen dioxide, carbon monoxide, and lead. 594 States are then required to follow these federal standards in order to maintain a healthy air quality for their own constituents, as well as neighboring states that could be impacted through wind patterns. 595 It primarily targets cutting emissions from facilities and automobiles. A.

Federal Regulation of Air Pollution

Under the CAA, the EPA Administrator holds the power of setting the standards to be enforced by the states. Section 110 requires states to prepare https://www.welcome2thebronx.com/2020/07/22/bronx-unemployment-reaches-levelsunseen-since-the-great-depression/ 591 Wu, et. al, supra note 6. 592 Id. 593 COVID-19: Data. (2020). https://www1.nyc.gov/site/doh/covid/covid-19-data.page 594 Clean Air Act Requirements and History, United States Environmental Protection Agency (January 10, 2017), https://www.epa.gov/clean-air-act-overview/clean-air-actrequirements-and-history. 595 Id.


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and submit its plans for maintaining the standards to the EPA for approval every five years. 596 In this sense, the Administrator’s predominant role under the CAA is to determine what NAAQS are most appropriate for public health and welfare, which are reviewed every five years. 597 This is done with the assistance of the required independent scientific review committee, the Clean Air Scientific Advisory Committee (CASAC), who inform the NAAQS. The seven members of this committee are appointed by the Administrator and currently the board is almost entirely white. When the NAAQS were most recently under review, the board went against the opinion of one member’s medical advice. Dr. Mark Frampton, a pulmonologist on the board, called to strengthen the PM2.5 limits because of their adverse health effects that he believed other CASAC members were unqualified to assess due to their backgrounds. 598 The chair of the board, appointed by Trump’s Administrator, previously worked in the oil and chemical industry, 599 once again proving that the right to pollute for the sake of the economy is still more valuable than the health of the nation. Economics plays a significant role in how NAAQS create, or rather do not create, substantial change. President Trump, as a part of the executive branch, remains largely absent from the CAA: most of the responsibility falls on the Administrator, who is appointed by the former. Though the executive branch is not heavily involved with the Administrator holding most of the power, this does not mean there is not interference that comes from the executive. From its start in 1970, the EPA has faced challenges in creating standards for states to implement, in large part due to conflict with the offices within the Executive Office pushing economic development. For example, in 1971, President Nixon’s Office of Management and Budget placed significant pressure on the EPA to set emissions standards that were not simply for the sake of public health but also that of the economy. 600 When establishing how states would make their proposals, the EPA was pressured to change the language to allow for consideration of the economic impact of cutting emissions.

596

Clean Air Act, 42 U.S.C. § 7401. Christopher Ahlers, Presidential Authority Over EPA Rulemaking Under the Clean Air Act (2014), 44 Envtl. L. 31. 598 EPA Scientists' Advice Disregarded. Sabin Center for Climate Change Law. https://climate.law.columbia.edu/content/epa-scientists-advice-disregarded-0. 599 Susanne Rust and Tony Barboza, Top Advisor to Trump's EPA is Called Out in Major Journal for His 'Fringe' Ideas, (March 2019). 21)https://www.latimes.com/local/california/la-me-epa-pollution-study-20190321story.html 600 Id. 597


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This same kind of economic-oriented pressure can be seen in executive orders made by the Trump Administration. 601 In March 2017, President Trump released Executive Order 13783 on “Promoting Energy Independence and Economic Growth” that, like that in 1971, deeply integrated the Office of Management and Budget (OMB) in environmental issues. Within 45 days after the order was issued, the head of each agency was required to submit a plan of action to the Director of the OMB to meet the goal set by the first section: It is in the national interest to promote clean and safe development of our Nation’s vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. Moreover, the prudent development of these natural resources is essential to ensuring the Nation’s geopolitical security. 602

Despite their only explicit powers being appointing an Administrator, the President and their Executive Office continue to drastically shape the country’s NAAQS by placing economic pressure on the EPA. Despite research from the EPA itself that proves the potentially fatal effects of longterm exposure to toxins in the air, 603 the EPA declined to strengthen their pollutant standards this year in their compliant five-year review. 604 B.

The Role of the State

Though they do not play a role in setting the federal standard, the CAA does not prevent states, who predominantly bear the responsibility for enforcement, from setting stricter standards than the EPA in their mandatory plans. 605 This falls under the Section 7614 of the CAA, which establishes the right of any State to enforce any standard or limitation on emissions, unless it is less stringent than the standard. 606 Confirmed by Union Electric Co. v. Environmental Protection Agency (1975), plaintiff Union Electric Co. sought legal action to invalidate Missouri’s actions towards cutting emissions. They felt targeted as a power plant, who by nature is a large emitter of pollutants. 601

Exec. Order No. 13783, 3 C.F.R. (2017). Id. 603 Policy Assessment for the Review of the National Ambient Air Quality Standards for Particulate Matter. Report. Office of Air Quality Planning and Standards, Environmental Protection. Research Triangle Park, NC, 2020. 604 Ruthie Lazenby and Sarah DeSouza, Opinion: After Feds' Failure, NYS Must Crack Down on Air Pollution (August 28, 2020), City Limits, https://citylimits.org/2020/08/28/opinion-after-feds-failure-nys-must-crack-down-on-airpollution/. 605 Clean Air Act, 42 U.S.C. § 7416. 606 Id. 602


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The 8th Circuit concluded that States are: “free to adopt limitations even stricter than the federal and it cannot be contended that the States are limited in their implementation plans to do no more than assure that the national standards are to be met and maintained.” 607 This was reaffirmed by the United States Supreme Court a year later. 608 The same power given to the states, however, becomes more complicated at a local level. While the CAA grants states and “political subdivisions” the right to enforce air pollution laws, local governments are ultimately created by the state. If a city were to try to pass a stronger emission cap than that of the state, preemption may override their ruling, as seen in Rhode Island Cogeneration Associates v. East Providence in 1990. 609 Since East Providence’s City Council passed an ordinance in 1989 that banned the industrial use of coal — which directly impacted RI Cogeneration Assoc., who planned to build a coal powered electrical field — the Association filed suit to prove the ordinance was null on the basis of preemption. The 6th Circuit Court confirmed the rights granted to State and local governments under the CAA cannot circumvent preemption. Local governments, in effect, only hold jurisdiction to regulate their own air pollution laws when the State grants them the power to do so. III. EXPANDING CITY POWERS ON CLIMATE POLICY There are states that do, in fact, grant this power to their local governments under the savings clause, which functions similarly to provisions in the CAA that permit states to have stricter limitations. Of the 50 states, only 14 allow local governments to have stricter laws: New York is among them, 610 as they find that stricter laws are still consistent with the standards of the state and federal government. The state allows for any: “governing body of a county, city, town or village to adopt local laws, ordinances or regulations […] which comply at least the minimum applicable requirements.” 611 The clause also allows for municipalities within a county to have its own emissions laws that differ from that of the county, which is unlike many other savings clauses. 612

With current federal standards that fall short of protecting every New Yorker, the City holds both responsibility and legal grounds to strengthen 607

Id. Union Electric Co. v. Environmental Protection Agency, 427 U.S. 246, 265 (1976). 609 R.I. Cogeneration Assoc. v. E. Providence, 728 F. Supp. 828 (D.R.I. 1990). 610 Mike Ewall, Local Regulation of Air Polluting Facilities (April 28, 2011), http://www.energyjustice.net/files/ordinances/air.pdf 611 43 NY CLS ECL § 19-0709. 612 Ewall supra at note 34. 608


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their emissions standards on a citywide level. In 2007, Massachusetts was joined by several other states and cities, including New York City, in petitioning the EPA to adequately regulate carbon dioxide and other greenhouse gases (GHG) within the NAAQS. 613 The courts originally sided with the EPA, but a divided Supreme Court narrowly ruled in favor of Massachusetts’ argument that any air pollutant that endangers public health must be restricted and regulated under the CAA. 614 More recently in 2020, New York State sued the EPA over upwind states’ pollution and their failure to properly regulate it, which barred New York from maintaining their own smog standards because the State wields no jurisdiction over that of their neighbors. 615 Again, the courts ruled in the favor of NYS in affirming the responsibility of the EPA. 616 Given that both the state and city of New York have repeatedly taken action against the EPA for their failures, New York must enforce their own stricter restrictions in order to protect their most at-risk residents, especially during the COVID-19 crisis. The City already has extensive programs, first under Mayor Bloomberg and later under Mayor de Blasio, to combat climate change by cutting emissions significantly by 2050. 617 For example, the congestion tax to be implemented in the central business district in Manhattan 618 pushes a greater governmental emphasis on public transportation, like the subway, or other alternatives like biking. Cutting down the number of cars in the area will also drastically cut pollution by removing the most prominent emitters of pollution. Even with these plans, a major obstacle remains when the emissions standards are not strengthened drastically to meet the need of both the people and the planet: exhaust from buses. 619 Though they are a form of public transit, almost all of the buses in the Metropolitan Transport Authority (MTA) fleet still use a form of diesel fuel, as do other vehicles operated by 613

Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007). Id. 615 New York v. Environmental Protection Agency, No. 19-1231 (D.C. Cir. 2020). 616 New York State Attorney General, New York Wins Lawsuit Against Trump's EPA's Inaction on Smog Pollution (July 14, 2020), ://ag.ny.gov/press-release/2020/new-yorkwins-lawsuit-against-trumps-epas-inaction-smog-pollution. 617 “The Plan for a Strong and Just City.” #OneNYC, 2019, onenyc.cityofnewyork.us/strategies/efficient-mobility/. 618 Amy Plitt, NYC Poised to Implement the Country’s First Congestion Pricing Program (April 1, 2019), Curbed NY, ny.curbed.com/2019/4/1/18290323/nyc-traffic-congestionpricing-state-budget. 619 Judah Aber, Electric Bus Analysis for New York City Transit (May 2016), Columbia University, www.columbia.edu/~ja3041/Electric%20Bus%20Analysis%20for%20NYC%20Transit%2 0by%20J%20Aber%20Columbia%20University%20-%20May%202016.pdf. 614


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the city and state. 620 Implementing stricter emissions standards would force agencies like the MTA to adopt necessary, zero-emissions alternatives like electric buses or increase subway accessibility to get people out of cars and buses and into other forms of mass transit. As two of five boroughs most heavily impacted by pollutant exposure, the Bronx and Queens also happen to be areas where many do not live within walking distance from a subway line. This is interlinked to another issue of accessibility through compliance with the Americans with Disabilities Act (ADA). Of 122 neighborhoods that have a subway line, 62 do not have a single ADA compliant station: 621 the Bronx once again unequally bears this burden, as it makes up 55 of these 62 neighborhoods. 622 Stricter emissions standards would help shape the future of a car-less New York, which is what ultimately will cut the most harmful toxins from the air disproportionately affecting people of color. IV. CONCLUSION Due to relationships between the federal, state, and local governments, the CAA has a complicated history with enforcing better air quality since its start in 1970. Though the President does not explicitly play a significant part in deciding the standards set by the Administrator of the EPA, they indirectly skew policy by applying economic pressure. The cost of cutting emissions is expensive and will come at the cost of jobs, which was a concern outlined in the Executive Order by President Trump in March 2017. The human cost of not instituting such measures is also quite momentous. In the face of the COVID-19 pandemic, those who are already in danger of contracting diseases caused by long term exposure to pollutants are now even more at risk for serious, long-term health conditions. The right to pollute for the sake of a profit cannot become more valuable than the people who are currently suffering and will continue to in the future if the problem of anthropogenic climate change is ignored. With COVID-19 on the rise once again in the City, this issue is more important than ever with increased exposure to pollutants increasing the possibility of contracting the virus. Under the CAA, New York is one of the few states in the entire country that allows for cities and towns to impose even stricter laws than the federal and state governments on air. Despite many legal confrontations with the EPA for their inaction, many New Yorkers continue to suffer. As one of the 620

Id. Scott Stringer, Service Denied: Accessibility and the New York City Subway System (July 2018), https://comptroller.nyc.gov/reports/service-denied-accessibility-and-the-newyork-city-subway-system/?utm_source=Media-All. 622 Id. 621


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few states that gives localities the power to do so, New York City must enforce stricter emissions standards to counteract the increased risk posed by heavy exposure to pollution, which disproportionately affects people of color. ***



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