Johns Hopkins Undergraduate Law Review | Volume 3

Johns Hopkins Undergraduate

Law Review Spring 2021

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Published November 2021 by The Johns Hopkins Undergraduate Law Review 3400 N. Charles St Baltmiore, MD 21218 jhulr.org jhulawreview@gmail.com

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Johns Hopkins Undergraduate Law Review

/jhulawreview

@jhulawreview

@jhulawreview

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Contents 6 8

Letter from the Editor-in-Chief Daniel Mathew

Journal Editors

Articles 11

Twitter ’s Presidential Censorship Analyzing Section 230 ’s Constitutionality and Exploring Future Reform Stephen Dai

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Standardizing Autonomy, Medical Communication, Liability, and the Doctrine of Informed Consent Liza Edwards-Levin

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Give Me Your Tired, Your Poor, Your Huddled Masses The Dangers of Certification Power in US Asylum Law Chaelin Jung

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The Economics of Antitrust Law

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American Empire

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Trump v. Mazars

Is Google Violating the Consumer Welfare Standard?

Daniel Mathew

Social Darwinism and the Insular Case Justin Roberts

Implications for the Federal Balance of Power Olivia Siemens

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Rooting the International Crime ’Africa Bias ’ in the Rome Statute

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Child Pornography Laws Stand No Chance Against Deepfakes

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Amanda Yuen

Eryn Yuen

Full JHULR Staff

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The Johns Hopkins Undergraduate Law Review | Spring 2021

Dear Readers, I hope this message finds you well and your loved ones in good health as we navigate the start of the fall semester from our homes and apartments in Baltimore, across the U.S., and around the world. For most of us, the changes in our day-to-day lives occasioned by the ongoing COVID-19 public health crisis represent a plane of uncertainty: as seniors we look on anxiously to the spring semester and wonder whether the global health situation will permit universities to resume in-person activities so we can celebrate graduation on campus with our families, say goodbye inperson to many dear friends, and revisit the places where we’ve made so many memories. As juniors, we cope with the challenge of cancelled study abroad plans and similarly look forward to reuniting with our peers in the spring. As freshmen and sophomores, we express our disappointment in not being able to attend classes inperson and form the networks and friend groups that define our social experience at Hopkins. Nevertheless, our executive board believes the transition to remote instruction and virtual administration of club activities presents us with a distinctive opportunity to reimagine how we operate, connect, and achieve: we envision an increasingly interconnected experience for our members even as they find themselves physically further apart.

Over the past two years, I have watched the organization grow from a young student venture seeking to unite the pre-law community on campus to the established, fastgrowing, and impactful organization it is today. Our commitment to engaging young voices and providing accessible, informed, and thought-provoking legal analysis would not be possible without the creativity, ambition, and resourcefulness of our exceptional staff writers and editors. You honor the best of our tradition and give powerful expression to our core values of scholarship, originality, and the free exchange of ideas.

I’d also like to take this opportunity to thank our outgoing Editor-in-Chief Ian Elliott, who has worked tirelessly to elevate the Law Review’s tradition of excellence and from whom I have learned much about such diverse areas as event design, networking, and leadership. I also express my deep gratitude to Kiana Boroumand, the founder and first leader of JHULR whose advice, oversight, and willingness to help have remained a constant resource to me throughout my time with the Law Review. As I transition from the role of Director of Programming to the sole Editor-in-Chief for the 2020-21 school year, I look on with excitement to the amazing publications, fantastic events, and incredible memories we are destined to create.

Best, Daniel Mathew

Editor-in-Chief

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Editor-in-Chief Daniel Mathew The Johns Hopkins Undergraduate Law Review | Spring 2021

Managing Editor Patty Zhang

Editors Talia Shadroui (Public Relations) Lance Kotler (Finance) Allison Li (Programming) Aashik Bhalodia (Design)

Layout Aashik Bhalodia (Design) Cover Photo Biz Stahl

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The Johns Hopkins Undergraduate Law Review | Spring 2021

Articles 11 - 133

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Twitter’s Presidential Censorship Analyzing Section 230’s Constitutionality and Exploring Future Reform Stephen Dai

Abstract As a result of Twitter's recent guidelines on maintaining election integrity and preventing pandemic misinformation, former President Trump and his supporters have been the recipients of Twitter's regulatory actions. Former President Trump has openly denounced Twitter's actions as unconstitutional censorship and urged for the repeal of Section 230, which provides Twitter and other Internet Service Providers with arbitrary moderating power. This paper aims to address the claims of First Amendment violations Former President Trump makes in an Executive Order he issued in May. By examining the courts' treatment of First Amendment rights on private property in PruneYard Shopping Center v. Robins, Southeastern Promotions v. Conrad, and Knight v. Trump, among other cases, I conclude that Twitter's actions ultimately represent a Constitutional censorship of speech.

Regardless of this conclusion, I still agree with former President Trump and other lawmakers' assertions that Twitter's regulatory power under Section 230 requires reform. After exploring lawmakers' approaches and relevant case law, I finally determine that the phrase "otherwise objectionable" found in Section 230(c)(2)(A) is the root of the problem, so I propose an amendment to the law that narrows its scope by explicitly defining the categories of speech that Internet Service Providers are allowed to moderate.

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Table of Contents Introduction I. Background of Modern Controversy II. The Doctrinal Framework of First Amendment Protections on Private Property A. First Amendment Protections and Private Property 1. The Public Forum Exception a) Marsh and PruneYard, Public Forums by Physical Characteristics b) Southeastern Promotions Ltd. v. Conrad, Designated Public Forums by Government Lease B. Adaptation of Free Speech Principles to Social Media III. Application of Case Law to Twitter’s Regulation of President Trump’s Tweets A. Content Based Regulation of Private Users’ Twitter Accounts B. Warning and “Fact Check” Labels C. Removal of Public Figures’ Tweets IV. Analysis of Section 230 and Its Alternatives A. Brief History and Modern Context of Section 230 B. Discussing Alternatives to Section 230 1. Complete Removal 2. Anti-bias Amending 3. Narrowing the Scope C. Proposing a Solution Conclusion

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Introduction With the rise of the Internet in recent decades, the increased usage of social media platforms has ushered in an unprecedented age of interconnectedness fueled by the novel means of communication. Although each platform—Facebook, Instagram, and Twitter among others—provides users with different ways of interaction, all platforms share one common trait: they have become virtual forums for communication and the rapid dissemination of information. This has led many to assert that these virtual forums should be granted the same Constitutional protections afforded to their physical counterparts.

However, because these virtual forums are entirely privately-owned, extending First Amendment protections to the platforms would tug at fundamental tensions surrounding the Constitution and the private sector. These tensions have historically presented themselves in corporate towns, parking lots, and private shopping malls, but recent developments finally brought them to a new virtual setting. Heightened intra-platform policing in response to foreign and domestic cyber threats and public figures openly denouncing these actions as unconstitutional, with case law deeming their pages “public forums” backing them up, has created a situation ripe for legal analysis.

Thus, in this paper, I argue that contrary to President Trump’s and his supporters’ claims of the unconstitutionality of social media, particularly Twitter, using Section 230 to limit their speech, the regulatory power offered by the clause is viable under First Amendment limitations, even in regard to the recent court case declaring public figures’ social media pages as “public forums.” Furthermore, though I show that Section 230 is constitutional, I agree with Section 230’s critics’ assertion that the unilateral power it provides social media sites needs reform, so I explore options available and propose my solution.

I will accomplish these tasks by first providing context for modern controversies surrounding social media platforms, Section 230, and public figures’ accounts. Afterwards, I will outline the case law jurisdicting First Amendment protections over the private sector. My focus is primarily on Twitter since most of the controversy surrounds the platform and its actions, but my conclusions apply to all social media platforms deemed “public forums.” I will then apply case law to Twitter’s current situation to argue that the platform’s actions are constitutional. Finally, I will analyze legislative alternatives to Section 230 provided, and I will offer my alternative to address the issues.

I.

Background of Modern Controversy

Following a polarized 2016 Presidential Election, the FBI discovered evidence of massive foreign, predominantly Russian, interference through the usage of fake Twitter accounts or “bots.” This “army of Twitter bots” disguised themselves as “Midwestern swing-

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voter Republicans,” adopting convincing profile pictures, biographies, and usernames.1 After gaining the trust of unsuspecting voters, the Russian bots underwent a massive disinformation campaign, spreading fake news and “amplifying” conspiracy theories in support of then-candidate Donald Trump.2 Twitter reports that at least 50,000 accounts used its service in 2016 to socially engineer the election, reaching an audience of more than 677,775 Americans.3 In addition, Clinton pollster Joel Benenson states that these Russian bots’ strategic targeting of voters in swing states could have directly contributed to Hillary Clinton’s loss in 2016.4 In response to these cyber attacks, Twitter redesigned its Terms of Service to focus not only on resolving “key issues impacting the integrity of elections across the globe”5 but also addressing misinformation as a whole, coming from both “domestic and foreign” sources.6 Twitter was granted this regulatory power by Section 230(c)(2) of the Communications Decency Act of 1996, which states: No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.7 These “Good Samaritan” powers are the primary cause of controversy as I will soon reveal.

In 2020, Twitter put its guidelines into action numerous times. After the Covid-19 pandemic exploded in the United States and stringent public health guidelines were adopted, Twitter began policing its platform for misinformation surrounding the pandemic. The platform removed many tweets from private accounts and placed warning labels on public figures’ accounts for violating its public health guidelines.8 Furthermore, in the months preceding and succeeding the Presidential Election, Twitter performed similar actions with regard to contentious issues such as mail-in voting, allegations of voter fraud, doctored videos showing ballot burning, and false allegations of electoral victory.9 Finally, following chaotic pro-Trump riots in Washington D.C on January 6th, spurred in part by President Trump’s tweets, protesting the congressional certification of the electoral college vote, Twitter permanently banned President Trump, other public figures’ accounts, and thousands of “QAnon” members from the platform for the “risk of further incitement of violence.”10 Twitter’s moderating is evidently content-based, and conservative voices have risen up in protest for being the victims of perceived viewpoint discrimination.11 Since the first warning label placed on his tweet in May, President Trump has taken a leading role in denouncing Twitter’s perceived infringement of his rights through Executive Orders, public announcements, and other actions. On May 28th, 2020, President Trump issued Executive Order 13925 on “Preventing Online censorship” to “clarify the scope of

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immunity” of Section 230 to limit social media’s regulatory power.12 Later during election months, President Trump took a stronger stance that called for the complete removal of Section 230, vetoing the 2021 National Defense Authorization Act for not including a repeal of Section 230.13 President Trump’s Executive Order has raised interesting issues concerning the First Amendment legality of Section 230 in the scope of PruneYard v. Robins and Packingham v.

North Carolina. My interest in this paper is then to explore whether his arguments on the constitutionality of Twitter’s Section 230 powers hold any merit. I will do this by first exploring the legal precedents for free speech on private property.

II.

The Doctrinal Framework of First Amendment Protections on Private Property A. First Amendment Protections and Private Property

The courts have long established that the First Amendment only protects against government infringement on private speech in general as well as in traditional avenues of free speech, such as sidewalks, public parks, and public squares.14 So for the most part, speech by private individuals on private property—companies, colleges, or homes—is left unprotected by the First Amendment.15 However, the Public Forum doctrine is a notable exception to the Supreme Court’s treatment of First Amendment protections by providing an avenue for a limited extension of rights to private property.

1. The Public Forum Exception

In certain circumstances, the line between public and private property blurs, especially where private property assumes almost all attributes of traditionally accepted public forums.

Responding to these circumstances, the Supreme Court has created several paths for private property to become public forums subject to constitutional protections. I will present two of these paths. a) Marsh and PruneYard, Public Forums by Physical Characteristics

The judicial history of certain private property becoming public forums due to their physical characteristics is a pendulum that constantly swings between the First Amendment right of freedom of speech and the Fifth Amendment right of due process.16 Marsh v. Alabama started this discussion by pioneering the expansion of First Amendment protection to private property. Grace Marsh, a Jehovah’s Witness, was passing out religious pamphlets on a sidewalk in the town of Chickasaw, a suburb of Mobile, Alabama.17 The town had “all the characteristics of any other American town” except it was

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privately “owned by the Gulf Shipbuilding Company.”18 The company had rules preventing dissemination of unauthorized pamphlets, but Marsh refused to abide by the rules, resulting in her arrest.19 Marsh appealed, and her case made it to the Supreme Court. Justice Hugo Black, writing for the majority, stated that there is “no more reason for depriving [people living in company-owned towns] of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms for any other citizen.”20 With this ruling, the Supreme Court initiated the expansion of the Public Forum doctrine to private property: when private property takes on characteristics of public property, they become public forums subject to First Amendment protections.

From there, the court adapted Marsh’s principles to a rising phenomenon that became the quintessential “public forum” found on private property: shopping malls.21 In Amalgamated Food Employees v. Logan Valley Plaza the Court held that private shopping malls were also subject to First Amendment protections since the malls were open to the public and “to a large extent resemble” the “business district of a municipality.”22 As long as protesters do not interfere with others’ ability to access the mall, they are free to exercise their rights.

However, in the following years, the court severely limited the extent of Marsh and Logan Valley.23 In Lloyd Corporation Ltd. v. Tanner, the Supreme Court held that although certain privately owned locations, like shopping centers, have “facilities customarily provided by municipalities,” the notion that people should have the same constitutional protections there as they do on public facilities “reaches too far.”24 Private shopping mall owners especially are not forced to allow protesters onto their property if there are alternative avenues of expression easily accessible.25 In Central Hardware Company v. NLRB, the court further limited the scope of Marsh and Logan Valley, stating that private property must “assume to some significant degree the functional attributes of public property” instead of mere resemblance.26 Finally, in Hudgens v. NLRB, the Court overturned Logan Valley.27 With that, the court swung the pendulum back towards favoring private property rights over individual liberty.

Another 8 years after implementing severe limitations on the application of First Amendment protections to private property, the court moderated its position in PruneYard Shopping Center v. Robins.28 In that case, a group of high schoolers were handing out leaflets protesting the United Nations’ Resolution 3379 in the “central courtyard” of PruneYard Shopping Center.29 Their conduct was “peaceful and orderly,” but a security guard forced them to leave the premises.30 The students sued the shopping mall, and the case eventually reached the Supreme Court where a unanimous majority agreed that the students’ rights had been violated.31 Writing for the majority, Justice William Rehnquist sought to end the debate with a simple test to balance private property owners’ Fifth Amendment rights with that of protesters’ First Amendment rights. Justice Rehnquist states that as long as speech does not violate the Takings Clause of the Fifth Amendment, it is permitted on private property.32 If

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speech disturbs the functions of the private property, and the government unilaterally protects said speech, then it is equivalent to the government taking away the functions of the private property without due process granted by the Fifth Amendment.33 Justice Rehnquist completely dismisses the appellants’ argument that forcing shopping malls to allow protesters regardless of the content of their message is a violation of property owners’ First Amendment rights. As Justice Rehnquist states, “the views expressed by members of the public passing out pamphlets...will not likely be identified with those of the owner.”34 Consequently, Justice Rehnquist’s attempt at balance resulted in an over-expansive application of the public forum doctrine that puts an undue burden onto private property owners. As long as protesters in shopping malls are “orderly” and do not excessively interfere with customers, any owners of private property with public characteristics—open courtyards, wide walkways, etc—would have to accomodate protesters regardless of their message.

PruneYard became abhorred by shopping mall owners, and it was effectively restricted only to its specific facts by state and circuit courts.35 The public forum doctrine however would continue to be applied and found its way to the Internet through Reno v. ACLU.36 Writing for the majority in Reno, Justice Stevens states that the Internet consists of “vast democratic forums” and is protected by the First Amendment.37 However, Justice Stevens goes no further on classifying whether speech found in privately owned Internet service providers that make up the “sprawling mall” of the Internet are protected by First Amendment rights.

b) Southeastern Promotions Ltd. v. Conrad, Designated Public Forums by Government Lease

Establishment of public forums through government lease has been far less controversial than through the previous route because it naturally avoids a contention between private entities’ property rights and the First Amendment.38 The designated public forum doctrine was first established in Southeastern Promotions Ltd. v. Conrad 39and has not faced many problems since.

In the case, the Southeastern Promotions Ltd. corporation tried to apply to use the Tivoli theater, a privately owned theater under a long-term lease to the City of Chattanooga, Tennessee, for its musical production “Hair.”40 The theater board rejected Southeastern Promotions’ application due to “Hair” having many characteristics deemed not “in the best interest of the community,” such as anti-war sentiments, sexually explicit scenes, and nudity.

Southeastern Promotions Ltd. sued, and in a 6-3 ruling, the Supreme Court agreed that the Chattanooga theater board had violated the company’s First Amendment rights.41 Writing for the majority, Justice Harry Blackmun opines that the City of Chattanooga created a designated public forum by leasing the privately-owned Tivoli theater.42 Justice William Douglas concurred in part, explaining that “municipal theaters are no less a forum for the expression of ideas than is a public park, or a sidewalk.”43 Therefore, First Amendment

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protections apply to the theater, and the theater board infringed upon First Amendment rights by placing unconstitutional content-based restrictions when “picking and choosing” musicals.

The opinion in Promotions was slightly clarified a few years later in Perry Education Association v. Perry Educators Association.44 In the case, the Supreme Court made a distinction between traditional public forums, designated public forums, and nonpublic forums.45 First, traditional public forums are locations that have historically been “devoted to assembly and debate,” such as streets and parks.46 The government may implement minimal “time, place, and manner” restrictions that are content-neutral and offer ample alternatives.47 Second, designated public forums are places that are not traditionally forums but have been opened by the state for “expressive activity.”48 They have the same restrictions as traditional public forums, but the state may implement content restriction if there is a “compelling state interest.”49 Finally, nonpublic forums are forums that do not fall under the previous two categories.50 As evident, designated public forums through government leases on private property are less contentious. These forums were opened with the consent of the property owner that entered into a contract with the government, and they only remain public forums for the duration that the government maintains the “open character” of the forum.

B. Adaptation of Free Speech Principles to Social Media

With the rise of social media platforms in the late 2000s, the Supreme Court saw fit to once more to address the extensions of First Amendment protections in the domain of the Internet.

Building on the ruling in Reno, the court decided in Packingham v. North Carolina (2017) that a North Carolina law barring sex offenders from accessing social media sites represented an unjustified government infringement on the “legitimate exercise of First Amendment rights.”51 The court additionally comments that social media sites represent the “modern public square” and offer far more uses besides communicative capabilities, such as a means of remaining updated with current events and checking ads for employment.52 Therefore, government restrictions on speech on social media must be “narrowly tailored” to serve a “specific government interest.”53 Since Packingham’s ruling, the Supreme Court has not made further decisions regarding speech on social media or the Internet. As earlier mentioned, the Supreme Court also has not tried to address public forums on private property since PruneYard in 1980, but the 2nd Circuit Court of Appeals found an opportunity in Knight v. Trump to clarify the scope of PruneYard and Promotions in the context of Packingham’s ruling that social media sites represented a “modern public square.”54 Soon after assuming office, President Trump continued using his private Twitter account, “@realDonaldTrump,” instead of the account of the President of the United States,

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“@POTUS,” to communicate with supporters and the “public at large.”55 However, many of President Trump’s critics have attacked President Trump’s policies in replies to his tweets, resulting in President Trump “blocking” many of them from viewing his page.56 With the assistance of the Knight First Amendment Institute at Columbia University, seven plaintiffs who were blocked by President Trump sued him for violating their First Amendment rights.

The District Court for the Southern District of New York agreed with the plaintiffs, declaring President Trump’s blockings unconstitutional. Subsequently, President Trump and the Department of Justice appealed to the 2nd Circuit Court of Appeals where a three-judge panel reaffirmed the District Court’s decision.57 Writing for the majority in Knight, Justice Barrington D. Parker arrived at his conclusion through a simple logical progression. First, action performed by private citizens on private accounts are normally unprotected by the First Amendment, but Justice Parker deems that President Trump operated his account as a government actor rather than a private citizen.58 He makes this determination because of the account’s descriptions, how other members of the President’s administration treat the account, and the fact that the National Archive registers the account’s tweets as “Presidential Records.”59 Second, as explored earlier in Promotions, Justice Parker states that any private property “leased” by the government is considered a designated public forum.60 Therefore, since President Trump operates an account “leased” from a private company as a government actor, his account is considered a public forum, and he partakes in unconstitutional viewpoint discrimination when he blocks only his critics from viewing his Twitter page.

III.

Application of Case Law to Twitter’s Regulation of President Trump’s Tweets

In Executive Order 13925, President Trump presents three separate Constitutional arguments on why Section 230’s boundaries need to be clarified. He accused social media of violating the First Amendment’s protections through (1) content-based censorship of private Americans’ speech, (2)“[selective] warning label[s] that reflect political bias,” and (3) implications that Twitter limits citizens’ access to virtual public forums.61 I will address President Trump’s arguments through navigating the case law surrounding constitutional protections in regards to private entities.

A. Content Based Regulation of Private Users’ Twitter Accounts

Twitter, like most other private companies not applicable by the narrow restraints of PruneYard, is not protected by the First Amendment. As held in Reno, the Internet as a whole is considered a public forum.62 This does not necessarily mean that the online chat rooms, messaging forums, etc, found on privately owned websites are protected by the First Amendment. Instead, the idea of the Internet being a public forum applies only in the sense

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that the Internet is a “sprawling mall” that provides private entities with the ability to express themselves by “opening up” websites.63 This idea is exactly how the courts treat Twitter and other social media platforms. In Knight, the 4th Circuit Court of Appeals does not consider Twitter as a whole a public forum.

As earlier discussed, it partitions only a specific portion of Twitter—government officials’ pages—where people can enjoy the protections of the First Amendment in the sense that they are not allowed to be subject to viewpoint discrimination. Accordingly, the rights of private citizens are not protected in the rest of Twitter.

B. Warning and “Fact Check” Labels

One of Twitter’s first means of policing President Trump’s tweets, warning and fact check labels are addressed almost directly by case law. I will address this question in terms of whether warning labels on public forums are constitutional rather than warning labels (or any regulation for that matter) on private users’ tweets since that has already been examined.

Warning and fact check labels appear as a single line of blue text below their targets’ tweets, notifying readers of “misleading” or “false claims. ”64 If users click on the label, they are redirected to a different webpage containing information Twitter holds to be “true” and “accurate.”65 For example, if users click on a label below a misleading claim about the coronavirus pandemic, they might be redirected to a page containing information published by the Center for Disease Control.66 Twitter’s guidelines state that the platform “currently may label Tweets that violate [their] policies against misleading information about civic integrity, Covid-19, and synthetic and manipulated media.”67The labels are meant to be impartial and have been indiscriminately applied to Twitter users on both ends of the political spectrum—former Democratic presidential candidate Andrew Yang and former Georgia congresswoman Stacey Abrams both received warnings about “false election claims” when they called the Georgia Senate runoff before Twitter’s sources did.68 However, Republicans and conservative pages, especially that of President Trump’s, have received more labels because they have consistently rejected the CDC’s pandemic information, mail-in ballots, and the election results, counter to Twitter’s terms and guidelines.69 This paper will not address whether regulation of factually false information adopted by a political party should be considered content-based regulation; that issue requires an entire article in itself. However, the nature of the content—its accuracy, credibility, political bias, etc—matters not in the eyes of the court in regards to private regulation.

As earlier stated in PruneYard, private property owners can “disavow any connection with messages disseminated by public forums on their property by simply posting signs” that “disclaim any sponsorship of the message” because the government cannot force private entities to support messages they do not want to.70 Therefore, regardless of whose information is “true” or “false,” private property owners, Twitter in this case, are allowed to

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place labels or “signs” on the public forums found on their property. And this is exactly the role that warning labels play when Twitter places them on public figures’ tweets. The labels do not restrict users’ abilities to access public figures’ pages, but they instead are an indication that Twitter does not agree with the messages espoused by these figures.

Thus, Twitter’s ability to apply warning or fact check labels on public forums is unquestionably constitutional.

C. Removal of Public Figures’ Tweets

When President Trump issued the Executive Order in May, Twitter had placed warning and fact check labels on President Trump’s tweets, but the platform did not prevent users from viewing his tweets. As earlier discussed, this scenario can be analogized to shopping mall owners putting up “signs” to show their disagreement with users’ speech in the public forum. However, this changed following the riot at the Capitol during Congress’s certification of the electoral college votes.

Part of Twitter’s Terms of Service is that it may allow certain tweets to remain on its platform, even if the tweets violate Twitter’s guidelines, if Twitter deems that it remains in the “public interest” to allow users to access the tweets.71 Twitter has been applying this policy to many of President Trump’s tweets of false claims surrounding the pandemic and the election,72 but after its review board deemed President Trump’s tweets responsible for inciting the violence at the Capitol, Twitter decided to remove several of the President’s tweets before permanently banning him from the platform to prevent the “risk of further incitement of violence.”73 Whether or not President Trump anticipated this outcome in May, his Executive Order suggests this potentiality and provides his reasoning for why it is unconstitutional. In the order, he cites Packingham and PruneYard for why social media sites should be subject to First Amendment protections. The President’s reasoning follows a simple path: since Packingham ruled that social media sites represent the “modern public square,” and PruneYard ruled that certain private properties are subject to First Amendment protections because of their public characteristics, social media sites should be subject to protections because of its characteristics as a “public square.”74 Ergo, Section 230(c) offers social media sites too much power because they can arbitrarily limit access to public forums by banning public figures’ accounts.

Contrarily, based on the case law that I explored earlier, President Trump’s arguments miscite how the courts have treated social media. Though the Supreme Court did comment in Packingham and Reno that social media as a whole and the Internet represent public squares and forums respectively, both cases dealt with the question of whether the government can regulate speech, not individual private entities.75 The courts do not consider the entirety of individual social media sites to be public forums subject to First Amendment protections, as held in PruneYard, nor do they consider social media sites state actors.76

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Instead, as held in Knight, just a small portion of social media platforms—public figures’ pages—are considered designated public forums.

Accordingly, since designated public forums on private property are defined as nontraditional places opened to the public by the government, their existence hinges on the state of the government lease on the property.77 Once the government lease ends or is terminated, the designated public forum also disappears. On the same note, since President Trump “leased” property from Twitter, a private entity, and violated the “lease’s” terms of contract, Twitter can terminate its contract with President Trump, ending the designated public forum not on First Amendment grounds but on grounds of basic contract rights.78 This can be better explained through an analogy: Twitter is like a “hotel” and President Trump represents the government in renting out one of the “hotel’s” conference rooms for use as a public forum. Part of the rental contract could be that the leaser cannot damage anything within the room, or it will be banned from leasing the room in the future. Since the government violated this part of the contract, it is prevented from renting the room in the future. Given that President Trump consented to Twitter’s Terms of Service when he made his account, he is subject to its punishments for violating the contract, and Twitter can use its regulatory power to ban the President from using its platform without violating the constitution.79

IV.

Analysis of Section 230 and Its Alternatives

Though I have explored the legal contexts of the regulatory power Section 230 offers social media sites and ultimately found the powers constitutional, there is undoubtedly a need to update the clause to address its developments since its creation in 1996. In its current state, “Internet Service Providers” (ISPs) are given unilateral power in deciding what type of content is moderated. I will briefly take a look at the history of the act before surveying lawmakers’ alternatives as well as my own.

A. Brief History and Modern Context of Section 230

The early 1990s witnessed the rapid growth of the Internet as a result of the creation of the “World Wide Web,” the increased access to “personal computers,” and the emergence of “Internet Service Providers” (ISPs) that catered to the needs of the rising population of the Internet.80 In its early days, the Internet was compared to the “Wild West,” with few laws governing the users and providers within it. Inevitably, two ISPs—CompuServe and Prodigy— received lawsuits for defamatory content posted by users on their sites.81 Ironically, CompuServe’s lawsuit was dismissed because it was considered a “distributor” for leaving its site unmoderated while Prodigy lost its lawsuit because it was considered a “publisher” for

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moderating its content.82As a result, many ISPs that were originally moderating content decided to stop, making the Internet a more lawless place than before.83 Evidently, this became a problem with numerous examples of obscenity or pornography reaching minors or illegal content circulating around, so in 1996, Congress sought to address this problem with the Section 230 of the Communications Decency Act.84 The original intent of the clause was to provide ISPs with the ability to moderate and remove “objectionable” material from their sites without burdening them with the liability of being a “publisher.”85 Since then, the Supreme Court has struck down all provisions of the law except for Section 230(c). However, this only opened up room for the Court to expand Section 230(c) to its current, obscurely defined state of affairs.86 B. Discussing Alternatives to Section 230

Public officials have come out with several alternatives to Section 230 that generally fall into three groups: (1) complete removal, (2) amending the law to prevent political bias, or (3) narrowing the phrasing of the law. I will provide examples for each category and highlight both benefits and detriments of each solution.

1. Complete Removal

Complete removal of Section 230 has oddly been promoted by both influential Republicans and Democrats. Though initially promoting a narrow redefinition of the law, President Trump shifted in favor of completely repealing Section 230 around the election months due to Twitter’s intensified labeling of his and his supporters’ tweets.87 He and his supporters assert that Twitter should not be allowed to moderate content while enjoying the immunity granted by Section 230. On the contrary, then-Democratic-candidate Joe Biden also favored a complete repeal of Section 230. In interviews with CNN and The New York Times, Biden stated that Section 230 should be “revoked immediately” because it allowed social media platforms to “knowingly…[promote] something that’s not true.”88 He has not voiced an opinion on Section 230 since the interviews, so I assume that his position remains the same.

Nonetheless, repealing Section 230 in its entirety could result in ramifications contrary to what President Trump or Mr. Biden intend to achieve. Eric Goldman, a professor at Santa Clara University, states that the most likely outcome of a repeal of Section 230 would be even more regulatory action from social media platforms. Not only social media but all ISPs may be forced to screen every post made by every user to prevent civil liability from libel and defamation lawsuits.89 This is directly opposite to President Trump and his supporters’ intentions, and though it fulfills Mr.Biden’s intention of preventing the proliferation of false information, significantly increased micro-regulation of tweets is likely something he also does not want.

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2. Anti-bias Amending

Besides the suggestion of completely removing Section 230, other proponents of Section 230 reform call for the addition of some sort of government oversight board to prevent social media from performing biased, content-based regulation. Senator Josh Hawley (R-MO) proposed a bill titled the Ending Support for Internet Censorship Act, hoping to address bias by removing immunity from platforms that moderate in a manner “biased against a political party, candidate, or viewpoint.”90 Social media platforms would be required to obtain a “certification” from the Federal Trade Commission to continue receiving immunity.91 Unfortunately, Senator Hawley’s bill has been criticized by many for its “shortsightedness.”

Libertarians claim that Senator Hawley’s bill would remove “Big Tech” in favor of “Big Government,” and conservative groups deemed that the bill would only result in more restrictive “speech codes.”92 In the end, it seems that reform for Section 230 should not introduce unnecessary complexities to an already problematic bill.

3. Narrowing the Scope

The final group of reformers perceives the main issue to be the phrase “otherwise objectionable” found in Section 230(c)(2) and seeks to narrow the scope of the ambiguous clause.

As earlier discussed, Congress in 1996 added the phrase “otherwise objectionable” into the list of content that social media sites can regulate in “good faith” as a way of admitting that they cannot predict what content is considered “lawful but awful” in the future.93 Although the courts have ruled that the “otherwise objectionable” clause’s power is not limitless, they have not provided an exact boundary for where this limit lies, choosing instead to piece together a limit on a case-by-case basis.94 Many proponents of redefining the “otherwise objectionable” phrase are trying to circumvent the slow process of judicial review with their bills.

President Trump’s Department of Justice and Representative Paul Gosar both proposed changing the “otherwise objectionable” phrase to allow ISPs to only ban content that is illegal or considered terrorism.95 Similarly, Senators Roger Wicker (R-MI), Lindsay Graham (R-SC), and Marsha Blackburn (R-TN) have espoused changing “otherwise objectionable” to content that is “promoting self-harm, promoting terrorism, or unlaw.”96 Both approaches aim to prevent political bias while providing ISPs with the ability to address current issues and issues intended by lawmakers in 1996—such as preventing Russian cyberattacks, distribution of child pornography, and dissemination of illegally obtained material. However, it would also compel ISPs to allow constitutionally protected speech, like hate speech, racial slurs, and profanities, even in inappropriate circumstances, like for websites meant for children.97

24

Ultimately, I argue that this approach is the best to take, but the specific examples provided by lawmakers are not the best execution of the approach. I will present my solution in the next section.

C. Proposing a Solution

As earlier mentioned, I believe that narrowly redefining the scope of Section 230 is the best path to take for remediating its current issues. It is evident that since the phrase “otherwise objectionable” is the source of modern controversy, redefining those two specific words provides a direct fix.98 Completely repealing a law because of two problematic words is superfluous and inefficient while adding more regulatory oversight boards needlessly complicates the law’s already complex legal framework. Furthermore, my problem with the aforementioned proposals for redefining “otherwise objectionable” is that their alternatives for the phrase are too narrow. As I stated earlier, this would prevent ISPs from regulating constitutionally protected speech that is protected but inappropriate in certain circumstances. For example, a website providing an online game for kids may not be able to regulate their chat for profanities.

Thus, I propose an amendment to Section 230 that replaces “otherwise objectionable” with categories broader in scope than what current lawmakers propose. In addition to lawmakers’ proposal of adding “terrorism,” I believe “objectively false information, hate speech, and expletives” should be included in the types of speech that ISPs can regulate. I have explained hate speech and profanities earlier, but I think that “objectively false speech” is also an important category to include given the proliferation of false information surrounding the pandemic and the election that occurred in 2020. To prove objectivity, ISPs can cite independent, non-partisan, or scientific sources, similar to what Twitter outlined in its terms and guidelines.99 As earlier mentioned, it is out of the scope of this paper to discuss whether limitation of false information is content discrimination when it is espoused by a certain political viewpoint.

Unfortunately, limiting “otherwise objectionable” removes ISPs’ ability to independently and quickly address future objectionable content that inevitably emerge, but given the range of categories currently covered, Congress can amend the law in the future as it sees fit.100 This solution definitely is not perfect, but it addresses many current issues without adding more layers of complexity into the law.

Conclusion The contentious politics surrounding recent administrations has strained the American Constitution to its brink, but in doing so, these tensions have revealed weaknesses in the American system that need attention. One of these weaknesses is the treatment of

25

speech by private entities in the largely privately-owned Internet, which President Trump and his supporters earnestly denounce. Though I have shown that President Trump’s claims regarding social medias', especially Twitter’s, regulatory power has no legal backing, he is right in that the apparent problems with existing law needs to be confronted. Regardless of which solution is taken, it is clear that the limits of Section 230 need to be redefined to coexist with fundamental rights of expression in the Digital Age of the 21st Century.

Stephen Dai is a freshman at University of California, Berkeley studying Political Science and Legal Studies.

Notes 1

O'Connor, Gabe, and Avie Schneider. 2021. "NPR Cookie Consent And Choices". Npr.Org. https://www.npr.org/sections/alltechconsidered/2017/04/03/522503844/how-russian-twitter-bots-pumped-outfake-news-during-the-2016-election.

2 Ibid.

3

Swaine, John. 2021. "Twitter Admits Far More Russian Bots Posted On Election Than It Had Disclosed". The Guardian. https://www.theguardian.com/technology/2018/jan/19/twitter-admits-far-more-russian-bots-postedon-election-than-it-had-disclosed.

4 Ibid.

5

Gadde, Vijaya, and Keyvon Beykpour. 2021. "Additional Steps We're Taking Ahead Of The 2020 US Election".

Blog.Twitter.Com. https://blog.twitter.com/en_us/topics/company/2020/2020-election-changes.html.

6 7

Ibid.

"Protection For Private Blocking And Screening Of Offensive Material Act” 47 US.C 230, https://uscode.house.gov/view.xhtml?req=(title:47%20section:230%20edition:prelim).

8 Hern, Alex. 2021. "Twitter To Remove Harmful Fake News About Coronavirus". The Guardian. https://www.theguardian.com/world/2020/mar/19/twitter-to-remove-harmful-fake-news-about-coronavirus; Lerman, Rachel, Katie Shepherd, and Taylor Telford. 2020. "Twitter Penalizes Donald Trump Jr. For Posting Hydroxychloroquine Misinformation Amid Coronavirus Pandemic". The Washington Post. https://www.washingtonpost.com/nation/2020/07/28/trump-coronavirus-misinformation-twitter/.

9 “Additional Steps We’re Taking Ahead of the 2020 US Election.” Accessed January 21, 2021. https://blog.twitter.com/en_us/topics/company/2020/2020-election-changes.html.

10 Conger, Kate. “Twitter, in Widening Crackdown, Removes Over 70,000 QAnon Accounts.” The New York Times, January 12, 2021, sec. Technology. https://www.nytimes.com/2021/01/11/technology/twitter-removes70000-qanon-accounts.html.

11 Ahmari, Sohrab. 2021. "Twitter Wants To Target Conservatives — With None Of A Publisher’S Responsibilities". New York Post. https://nypost.com/2020/05/27/twitter-targets-conservatives-with-none-of-apublishers-responsibilities/; Guynn, Jessica. 2021. Usatoday.Com.

26

https://www.usatoday.com/story/tech/2020/10/28/facebook-twitter-google-accused-bias-against-trumpconservatives-senate-hearing/3753440001/; Wong, Queenie. 2021. "Twitter Faces Conservative Backlash For Fact-Checking Trump's Tweets For The First Time". CNET. https://www.cnet.com/news/twitter-facesconservative-backlash-for-fact-checking-trumps-tweets-for-the-first-time/.

12 U.S President. Executive Order. “Preventing Online Censorship, Executive Order 13925 of May 28, 2020.”

Federal Register 85 FR 34079, https://www.federalregister.gov/documents/2020/06/02/202012030/preventing-online-censorship 13 NBC News. “Trump Vetoes Military Spending Bill, Setting up Standoff with GOP Lawmakers.” Accessed January 21, 2021. https://www.nbcnews.com/politics/donald-trump/trump-vetoes-military-spending-bill-settingstandoff-gop-lawmakers-n1252281.

14 Hague v. Committee for Industrial Organization, 307 U. S. 496, 516-17 (1939). (“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”); See also LII / Legal Information Institute. “First Amendment.” Accessed January 24, 2021. https://www.law.cornell.edu/wex/first_amendment.

15 Amar, Akhil Reed, and Les Adams. The Bill of Rights Primer: A Citizen’s Guidebook to the American Bill of Rights. (New York, NY: Skyhorse Publishing, 2015), 74.

16 Due process is also found in the 14th Amendment, (“...nor shall any State deprive any person of life, liberty, or property, without due process of law…”) but the rulings rely more on the Fifth Amendment’s due process “Takings Clause,” which will be discussed.

17 Marsh v. Alabama, 326 U. S. 503, 504 (1946) 18

Ibid at 502.

19

Ibid at 503-4.

20

Marsh v. Alabama, 326 U. S. 501 (1946)

21

Glennen, Callum. “The Rise and Fall of the US Mall.” Accessed January 21, 2021. https://www.worldfinance.com/markets/the-rise-and-fall-of-the-us-mall.

22 Food Employees v. Logan Valley Plaza, Inc., 391 U. S. 308, 315 (1968) 23

See Lawrence M. Cohen, Pruneyard Shopping Center v. Robins: Past, Present and Future, 57 Chi.-Kent L. Rev. 373 (1981), 373-380 for a more detailed analysis of the progression of Marsh to PruneYard.

24 Lloyd Corp. v. Tanner, 407 U. S. 551, 569 (1972) 25

Ibid at 567.

26

Central Hardware Co. v. NLRB, 407 U. S. 539, 547 (1972) Hudgens v. NLRB, 424 U. S. 507 (1976) 28 PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980) 27

29

Ibid.

30

Ibid at 77.

31

Ibid at 74.

32

Ibid at 82-84.

33

Ibid at 85-88. See also Wooley v. Maynard, 430 U. S. 705, 706 (1977) (“The State may not constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.”)

34 Ibid at 87.

35

See Trader Joe's Co. v. Progressive Campaigns, Inc. 73 Cal. App. 4th 425, 432-437 (1999) and Costco Companies, Inc. v. Gallant, 96 Cal. App. 4th 740, 747 (2002), (PruneYard does not apply to single stores that

27

have large parking lots.); See also Golden Gateway Center v. Golden Gateway Tenants Assn, 73 Cal. App. 4th 908, 1033-1034 (2001), (An apartment complex that “carefully limits access to residential tenants...is not the functional equivalent of a traditional public forum.”); and Ralphs Grocery Company United Food And Commercial Workers Union Local 8, 55 Cal.4th 1083, 1088-89 (2012), (Not all open spaces in malls are public forums. Only open areas that “[induce] shoppers to congregate for purposes of entertainment, relaxation, or conversation,” like plazas, atriums, and food courts.).

36 Reno v. American Civil Liberties Union, 521 U. S. 844 (1997) 37

Ardito, Alissa. "SOCIAL MEDIA, ADMINISTRATIVE AGENCIES, AND THE FIRST AMENDMENT."

Administrative Law Review 65, no. 2 (2013): 344-345. http://www.jstor.org/stable/24475729; See also Reno v.

American Civil Liberties Union, 521 U.S. 844 (1997).

38

See Trader Joe's Co. v. Progressive Campaigns, Inc. 73 Cal. App. 4th 425, 432 (1999). (“[PruneYard] represents “balancing the interest of the shopping center owner, in maintaining exclusive control over property he has opened to the public, against the societal interest, in utilizing the shopping mall as a public forum for expressive activity.” Government leases circumvent this “balancing act” by relying on the lease.)

39 Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975) 40

Ibid at 547.

41

Ibid at 546.

42

Ibid at 555.

43

Ibid at 563.

44

Perry Educ. Ass'n v. Perry Educators' Ass'n, 460 U.S. 37 (1983)

45

LII / Legal Information Institute. “Forums.” Accessed January 23, 2021. https://www.law.cornell.edu/wex/forums.

46 Perry Educ. Ass'n v. Perry Educators' Ass'n, 460 U.S. 37, 45 (1983) 47

Ibid.

48

Ibid.

49

Ibid at 45-46.

50

Ibid at 46; See also LII / Legal Information Institute. “Forums.” Accessed January 23, 2021. https://www.law.cornell.edu/wex/forums.

51 Packingham v. North Carolina, 582 U.S. ___ (2017) 52

Ibid.

53

Ibid.

54

Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019)

55

Ibid at 230-31.

56

Ibid.

57

Ibid.

58

Ibid at 231.

59

Ibid at 232.

60

Ibid at 235.

61

U.S President. Executive Order. “Preventing Online Censorship, Executive Order 13925 of May 28, 2020.”

Federal Register, 85 FR 34079 62 Reno v. American Civil Liberties Union, 521 U. S. 844 (1997)

28

63

Ardito, Alissa. "SOCIAL MEDIA, ADMINISTRATIVE AGENCIES, AND THE FIRST AMENDMENT." Administrative Law Review 65, no. 2 (2013): 345. http://www.jstor.org/stable/24475729; See also Reno v.

American Civil Liberties Union, 521 U.S. 844 (1997).

64

Roth, Yoel, and Nick Pickles. “Updating Our Approach to Misleading Information.” Accessed January 22, 2021. https://blog.twitter.com/en_us/topics/product/2020/updating-our-approach-to-misleadinginformation.html.

65 Ibid. See also “Twitter Moments Guidelines and Principles.” Accessed January 22, 2021. https://help.twitter.com/en/rules-and-policies/twitter-moments-guidelines-and-principles, outlining the guidelines for pages Twitter deems “true” and “accurate.”

66 Ibid.

67

Gadde, Vijaya, and Keyvon Beykpour. 2021. "Additional Steps We're Taking Ahead Of The 2020 US Election". Blog.Twitter.Com. 68 Singman, Brooke. “Twitter Slaps Warning Label on Andrew Yang, Stacey Abrams Tweets Prematurely Declaring Victory in GA Runoff.” Text.Article. Fox News, January 5, 2021. https://www.foxnews.com/politics/twitter-slaps-warning-label-on-andrew-yang-tweet-declaring-prematurevictory-for-warnock-ossof.

69 Brown, Megan A., Zeve Sanderson, Jonathan Nagler, Richard Bonneau, and Joshua Tucker. “Analysis | Twitter Put Warning Labels on Hundreds of Thousands of Tweets. Our Research Examined Which Worked Best.” Washington Post. Accessed January 22, 2021. https://www.washingtonpost.com/politics/2020/12/09/twitter-put-warning-labels-hundreds-thousands-tweetsour-research-examined-which-worked-best/. (Unfortunately, Twitter has not yet released data on what percentage of the “300,000” tweets it restricted using warning labels were conservative-leaning or liberalleaning, so I make this claim in regards to data collected on “high-profile” accounts such as President Trump’s and Rep. Marjorie Taylor Greene’s (R-GA).)

70 Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980) 71

Gadde, Vijaya, and Keyvon Beykpour. 2021. "Additional Steps We're Taking Ahead Of The 2020 US Election". Blog.Twitter.Com. 72 Abril, Danielle. “Will Twitter Ever Remove One of Trump’s Inflammatory Tweets?” Fortune. Accessed January 22, 2021. https://fortune.com/2020/05/26/twitter-president-trump-joe-scarborough-tweet/.

73 “Permanent Suspension of @realDonaldTrump.” Accessed January 22, 2021. https://blog.twitter.com/en_us/topics/company/2020/suspension.html.

74 U.S President. Executive Order. “Preventing Online Censorship, Executive Order 13925 of May 28, 2020.”

Federal Register 85 FR 34079 75 Packingham v. North Carolina, 582 U.S. ___ (2017); Reno v. American Civil Liberties Union, 521 U. S. 844 (1997).

76 Patty, Michael (2019) "Social Media and Censorship: Rethinking State Action Once Again," Mitchell Hamline Law Journal of Public Policy and Practice: Vol. 40 : Iss. 1 , Article 5, 102-103.

77 Perry Educ. Ass'n v. Perry Educators' Ass'n, 460 U.S. 37, 45 (1983) 78

Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019), 11; See also

Terminating contracts—how and when a contract ends—overview. “Terminating contracts—how and when a contract ends—overview.” Accessed January 24, 2021. https://w3.lexisnexis.com/uk/legal/getRememberMe.asp?url=https%3A%2F%2Fwww.lexisnexis.com%2Fuk%2 Flexispsl%2Fdisputeresolution%2Fdocument%2F393747%2F5709-1671-F18B-747H-0000000%2FTerminating_contracts_how_and_when_a_contract_ends_overview&authReaderId=0&domain=lexisn exis;

29

79

“Twitter Terms of Service.” Accessed January 24, 2021. https://twitter.com/en/tos., Twitter’s terms of service allows certain “federal, state, and local government [entities]” to be exempt from parts of its guidelines. It is unclear what clauses President Trump is exempt from, but it can be inferred that he was not exempt from violating Twitter’s rules on election integrity that ultimately got him banned from the platform.

80 Lee, Timothy B. “The Internet, Explained.” Vox, June 16, 2014. https://www.vox.com/2014/6/16/18076282/the-internet; Bryant, Martin. “20 Years Ago Today, the World Wide Web Was Born - TNW Insider.” The Next Web, August 6, 2011. https://thenextweb.com/insider/2011/08/06/20years-ago-today-the-world-wide-web-opened-to-the-public/ 81 Robertson, Adi. “Why the Internet’s Most Important Law Exists and How People Are Still Getting It Wrong.”

The Verge, June 21, 2019. https://www.theverge.com/2019/6/21/18700605/section-230-internet-law-twentysix-words-that-created-the-internet-jeff-kosseff-interview.

82 Ibid.

83

Ibid

84

Electronic Frontier Foundation. “Section 230 of the Communications Decency Act.” Accessed January 22, 2021. https://www.eff.org/issues/cda230.

85 Ibid.

86

See Enigma Software Group USA, LLC v. Malwarebytes, Inc., No. 17-17351 (9th Cir. 2019), 6. (“We did not hold in Zango, however, that the immunity [provided by Section 230] was limitless.”); See also Zango Inc v.

Kaspersky Lab Inc, No. 07-35800 (9th Cir. 2009), 7988-89. (“230(c)(2)(B) provides protection for “any action taken to enable or make available...the technical means to restrict access” to material covered by §230(c)(2)(A)”).

87 Newton, Casey. “Everything You Need to Know about Section 230.” The Verge, May 28, 2020. https://www.theverge.com/21273768/section-230-explained-internet-speech-law-definition-guide-freemoderation.

88 Kelly, Makena. “Joe Biden Wants to Revoke Section 230.” The Verge, January 17, 2020. https://www.theverge.com/2020/1/17/21070403/joe-biden-president-election-section-230-communicationsdecency-act-revoke.

89 Allyn, Bobby. “As Trump Targets Twitter’s Legal Shield, Experts Have A Warning.” NPR.org. Accessed January 22, 2021. https://www.npr.org/2020/05/30/865813960/as-trump-targets-twitters-legal-shield-expertshave-a-warning.; Savitz, Eric J. “Why Repealing Section 230 Could Ruin the Internet.” Accessed January 22, 2021. https://www.barrons.com/articles/section-230-repeal-could-destroy-the-internet-51610756633.

90 Ending Support for Internet Censorship Act. S.1914. 116 Cong. 1st Sess. § 2 (2019) 91

Ibid at §3

92

Lecher, Colin. “Both Parties Are Mad about a Proposal for Federal Anti-Bias Certification.” The Verge, June 20, 2019. https://www.theverge.com/2019/6/20/18692829/section-230-hawley-bill-response-anti-biascertification.

93

Schruers, Matt . “What Is Section 230’s ‘Otherwise Objectionable’ Provision?” Disruptive Competition Project, July 29, 2020. https://www.project-disco.org/innovation/072920-what-is-section-230s-otherwise-objectionableprovision/.

94

Enigma, No. 17-17351 (9th Cir. 2019), 6. The Court “did not hold that the immunity [provided by Section 230

was limitless” but it has not tried to define exactly where the boundary lies. It did hold that “otherwise objectionable does not extend anti-competition censorship. In Asurvio LP v. Malwarebytes Inc., Case No. 5:18cv-05409-EJD (N.D. Cal. Mar. 26, 2020), the District Court of Northern California held that “otherwise objectionable” protects indirect anti-competition censoring.

95 Stop the Censorship Act. H.R.4027 116th Cong. 1st Sess. §2 (2019)

30

96

Online Freedom and Viewpoint Diversity Act. S.4534 116th Cong. 2d Sess. §2 (2020)

97

Matal v. Tam, 582 U. S. ___ (2017). “The proudest boast of our free speech jurisprudence is that we protect

the freedom to express ‘the thought that we hate.’”

98 "Protection For Private Blocking And Screening Of Offensive Material Act” 47 US.C 230, https://uscode.house.gov/view.xhtml?req=(title:47%20section:230%20edition:prelim). Modern controversy surrounds perceived political bias on social media. Section 230(c) defines categories of speech that ISPs can regulate, listing content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” It is implied then that “otherwise objectionable” is interpreted to allow social media to regulate speech based on political content, making “otherwise objectionable” the center of controversy.

99 “Twitter Moments Guidelines and Principles.” Accessed January 22, 2021. https://help.twitter.com/en/rulesand-policies/twitter-moments-guidelines-and-principles, 100 "Protection For Private Blocking And Screening Of Offensive Material Act” 47 US.C 230, https://uscode.house.gov/view.xhtml?req=(title:47%20section:230%20edition:prelim). Making my changes would result in the regulatable categories being content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, terrorism, objectively false, hate speech, or expletives,” which covers all current issues while preventing political bias.

31

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“Permanent Suspension of @realDonaldTrump.” Accessed January 22, 2021. https://blog.twitter.com/en_us/topics/company/2020/suspension.html.

Robertson, Adi. “Why the Internet’s Most Important Law Exists and How People Are Still Getting It Wrong.” The Verge, June 21, 2019. https://www.theverge.com/2019/6/21/18700605/section-230-internet-law-twentysix-words-that-created-the-internet-jeff-kosseff-interview.

Roth, Yoel, and Nick Pickles. “Updating Our Approach to Misleading Information.” Accessed January 22, 2021. https://blog.twitter.com/en_us/topics/product/2020/updating-our-approach-to-misleadinginformation.html.

Savitz, Eric J. “Why Repealing Section 230 Could Ruin the Internet.” Accessed January 22, 2021. https://www.barrons.com/articles/section-230-repeal-could-destroy-the-internet-51610756633.

Schruers, Matt . “What Is Section 230’s ‘Otherwise Objectionable’ Provision?” Disruptive Competition Project, July 29, 2020. https://www.project-disco.org/innovation/072920-what-is-section-230s-otherwiseobjectionable-provision/.

Singman, Brooke. “Twitter Slaps Warning Label on Andrew Yang, Stacey Abrams Tweets Prematurely Declaring Victory in GA Runoff.” Text.Article. Fox News, January 5, 2021. https://www.foxnews.com/politics/twitter-slaps-warning-label-on-andrew-yang-tweet-declaring-prematurevictory-for-warnock-ossof.

Swaine, John. 2021. "Twitter Admits Far More Russian Bots Posted On Election Than It Had Disclosed". The Guardian. https://www.theguardian.com/technology/2018/jan/19/twitter-admits-far-more-russian-botsposted-on-election-than-it-had-disclosed.

“Twitter Moments Guidelines and Principles.” Accessed January 22, 2021. https://help.twitter.com/en/rulesand-policies/twitter-moments-guidelines-and-principles.

“Twitter Terms of Service.” Accessed January 24, 2021. https://twitter.com/en/tos.

“Terminating contracts—how and when a contract ends—overview.” Accessed January 24, 2021. https://w3.lexisnexis.com/uk/legal/getRememberMe.asp?url=https%3A%2F%2Fwww.lexisnexis.com%2F uk%2Flexispsl%2Fdisputeresolution%2Fdocument%2F393747%2F5709-1671-F18B-747H-0000000%2FTerminating_contracts_how_and_when_a_contract_ends_overview&authReaderId=0&domain=l exisnexis. "[USC02] 47 USC 230: Protection For Private Blocking And Screening Of Offensive Material". 2021.

Uscode.House.Gov. https://uscode.house.gov/view.xhtml?req=(title:47%20section:230%20edition:prelim).

Wong, Queenie. 2021. "Twitter Faces Conservative Backlash For Fact-Checking Trump's Tweets For The First Time". CNET. https://www.cnet.com/news/twitter-faces-conservative-backlash-for-fact-checking-trumpstweets-for-the-first-time/.

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Standardizing Autonomy Medical Communication, Liability, and the Doctrine of Informed Consent Liza Edwards-Levin

Abstract We analyze the reasoning behind several key legal decisions that influenced the development of medical informed consent law in the United States, beginning with (and continually referring back to) the landmark case of Canterbury v. Spence (1972). The paper discusses the complexity of at once upholding patients' autonomy and respecting physicians' professional expertise in the eyes of the law, through analyzing several widely-debated aspects of medical informed consent law (such as reasonable disclosure standards) that continue to be interpreted differently between and even within states.

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I. Canterbury Sets the Stage When 19-year-old Jerry Canterbury entered surgery to relieve pressure on his spinal cord in 1972, he could not have known what he was in for: a future disabled by urinary incontinence and partial paralysis from the waist down.1 Having complained of back and neck pain, Canterbury agreed to undergo a laminectomy (removing part of the vertebral bone) at the recommendation of neurosurgeon William Spence, who examined Canterbury to find evidence of a ruptured disk. When Canterbury’s mother inquired about the seriousness of the procedure, Dr. Spence described it as relatively low-risk, “not any more [serious] than any other operation.”2 Following the surgery, however, Canterbury slipped out of his hospital bed while attempting to urinate, after which his legs became numb and paralysis ensued. In the words of the D.C. Circuit Court of Appeals, today’s doctrine of medical informed consent law was precipitated by Canterbury’s “depressing tale” of medical practice gone wrong—and his “understandable search for reasons.”3 Canterbury v. Spence (1972) expanded the physician’s duty to care under medical malpractice law to include the obligation to disclose relevant information.4 In a landmark ruling that crystallized a new means of adjudicating informed consent, the Canterbury appeals court reversed the district court’s award of directed verdicts to the defendants (Dr. Spence and the hospital), ruling that sufficient evidence existed to establish that Dr. Spence violated his duty to disclose the operation’s risks.5 Unlike traditional medical battery law, which applied only to procedures performed without a patient’s authorization, Canterbury v.

Spence established that in order to consent, physicians must inform their patients of a treatment’s material risks and alternatives: In this sense, a patient’s “lack of informed consent operates to negate [their] authorization for a procedure.”6 In addition to drawing on the doctrine of medical battery, the appeals court characterized Canterbury’s claim against Spence as one of negligence, stating, “[Canterbury’s] interest in bodily integrity commanded protection, not only against an intentional invasion by an unauthorized operation but also against a negligent invasion by his physician’s dereliction of duty to adequately disclose.”7 Canterbury v. Spence also marked a historic shift toward protecting patients’ autonomy—every adult’s fundamental “right to determine what shall be done with his own body”—over and above physicians’ expertise.8 The appeals court recognized that patients, typically lacking sophisticated medical knowledge, rely upon doctors to fulfill their “vital informational needs.”9 Further, Canterbury “judicially mandated” this doctor-to-patient information transfer by stating that physicians, not patients, are responsible for ensuring appropriate disclosure (that is, “describing the proposed treatment, its risks, benefits, complications and alternatives [including no treatment at all]”).10,11 Departing from precedent, the appeals court determined that doctors cannot be legally entrusted with judging the scope of adequate disclosure: such discernment should be left to the courts.12 Suggesting that

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physicians may fail to align their professional standards with patient interests, the appeals court declared, “Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.”13 At the same time, not every doctor’s failure to inform could result in an informed consent claim. Besides demonstrating that their physician failed to disclose a procedure’s material risk, plaintiffs must also prove that a “reasonable patient [made aware of the risk] would more likely than not have opted not to undergo the procedure,” and that the undisclosed risk caused them to suffer a compensable injury.14 Furthermore, according to Canterbury, physicians are exempt from their duty to obtain informed consent in emergencies when the patient is “unconscious or otherwise incapable of consenting,” as well as in situations where risk disclosure would threaten the patient’s well-being.15 Yet, the very notion of informed consent is imbued with a certain degree of ambiguity.

The Canterbury court adopted the novel “lens of reasonableness, rather than custom” to determine the materiality of a given risk, delineate physicians’ duty to disclose, and assess the validity of informed consent claims.16,17 However, assessing reasonableness—let alone standardizing it—has proven a challenging science. After all, individuals’ responses to, and interest in, the disclosure of specific risks may vary dramatically—posing the question: Is it possible to generalize the decision-making process of a mythical ‘reasonable’ patient? Even the Canterbury court acknowledged the delicate task of applying the standard in practice, stating, “There is no bright line separating the significant from the insignificant; the answer in any case must abide by a rule of reason.”18 Courts across the United States have since struggled to pinpoint the boundaries of reasonable disclosure. Wisconsin’s state courts interpreted Canterbury to justify the adoption of an excessively broad disclosure doctrine, leading state physician groups to protest against the harmful impacts of defensive medicine.19 While Canterbury has led some states to judge informed consent cases foremost according to the expectations of a reasonable patient (a standard that tends to favor plaintiffs in case outcomes), others defer to the reasonable physician’s expertise and instinct.20,21 In recent years, disclosure statutes enacted in Canterbury’s wake have required physicians to communicate information of varying medical accuracy to abortion-seeking patients in the name of women’s “right to know.”22 Today more than ever, patients are viewed as active consumers rather than passive recipients of healthcare, yet health literacy—patients’ ability to “acquire, understand, and use” medical information—varies widely across the population, rendering true informed consent unenforceable.23 Indeed, while an increasing majority of Americans seek out health information online, Americans’ self-reported dependence on healthcare providers to impart reliable information has not decreased as a result: patient-provider communication remains at the core of patients’ medical decision-making.24 Still, in the nearly 50 years since Canterbury v. Spence was decided, the doctrine of informed consent and its resulting policies have failed to chart a course toward Canterbury’s destination of greater patient understanding.

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II. Knowledge is Power? Informed Consent and Full Disclosure Where does reasonable disclosure end? Wisconsin’s courts wrestled with this

question for decades following the state’s enactment of a 1981 statute mandating physicians’ “full disclosure” of risks beyond Canterbury’s scope. The statute, Wis. Stat. §448.30 (“Information on Alternate Modes of Treatment”), centered doctors’ duty to disclose around the patient’s condition rather than the physician’s diagnosis. Indeed, Wis. Stat. §448.30 required physicians to not only disclose information (risks and alternatives) relevant to their proposed therapy, but to additionally list the “benefits and risks” associated with “all alternate, viable medical modes” of treating the patient’s condition.25 Between Martin v. Richards (1993) and Jandre v. Physicians Insurance Company of Wisconsin (2012), the statute’s ambiguous use of the word “treatment” underwent intense scrutiny: Wisconsin’s legal definition of “treatment” expanded dramatically, then narrowed, as patients and physicians respectively defended their personal and professional judgment.26 While the political motivation behind Wis. Stat. §448.30 remains unclear, its legal implications for Wisconsin physicians proved substantial.27 In Martin v. Richards (1993), the Wisconsin Supreme Court interpreted the statutory meaning of “treatment” to encompass the conditional treatment of risks associated with the patient’s diagnosis, beyond the immediate treatment of the diagnosis at hand. After 14-year-old Cheryl Martin crashed her bike into the back of a truck, emergency room physician William Richards diagnosed her head injuries as a concussion, noting “the possibility of intracranial bleeding.”28 When Dr. Richards recommended to Martin’s family that she remain at Fort Atkinson Memorial Hospital (FAMH) for observation, he failed to mention that the hospital had no neurosurgeon on staff and thus would be incapable of treating a “neurological complication such as intracranial bleeding” should such a risk materialize.29 Martin did in fact suffer an intracranial bleed during her stay at FAMH, and a helicopter rushed her to the University of Wisconsin hospital in Madison where she underwent two emergency surgeries several hours later; her injuries left her a “partial spastic quadriplegic.”30 Martin and her family sued Dr. Richards for negligence, and the applicability of their informed consent claim was debated extensively as the case moved through Wisconsin’s courts. After the Jefferson County Circuit Court granted Dr. Richards’ motion to dismiss the informed consent claim, the Wisconsin Court of Appeals reversed the circuit court’s dismissal and remanded the case.31 The Wisconsin Supreme Court affirmed the appeals court’s decision on the basis of informed consent, finding Dr. Richards liable under the standard established by Wis. Stat. §448.30. Having considered the risk of an intracranial bleed, Dr. Richards claimed he did not believe Martin was bleeding at the time he diagnosed her concussion, and thus did not think she required care at a facility with a neurosurgeon. In his argument before Wisconsin’s Supreme Court, Dr. Richards posed the question, “Why should we inform the patient that we don’t think we should do something?”32 The supreme court responded by invoking the reasonable patient standard established by Canterbury, calling

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that standard “the very point of [Wis. Stat. §448.30]”: The court stated, “Here the doctor was concerned about the possibility of an intracranial bleed. When a reasonable person would want to know about an alternative treatment or method of diagnosis such as a CT scan or hospitalization in a facility with a neurosurgeon, the decision is not the doctor’s alone to make.”33 As such, the court reasoned that Wisconsin physicians’ disclosure of “all alternate, viable medical modes of treatment” under Wis. Stat. §448.30 must include available treatment options (and their material risks) for potential complications related to the patient’s diagnosis. Indeed, rather than being selectively filtered through a physician’s professional judgment, Martin v. Richards established that a physician’s disclosure must contain all that a “reasonable person would [or could] want to know,” including treatments for statistically rare but serious complications like intracranial bleeding.

Wis. Stat. §448.30 and the precedent set by Martin informed the Wisconsin Supreme Court’s decision in Jandre v. Physicians Insurance Company of Wisconsin (2012), which expanded physicians’ disclosure duty even further to include discarded diagnoses. Thomas Jandre was evaluated by emergency room physician Therese Bullis with symptoms of “drooling, slurred speech and one-sided facial droop, dizziness, and leg weakness”; after testing Jandre for multiple types of stroke events (hemorrhagic and ischemic strokes) and brain tumors, Dr. Bullis diagnosed him with Bell’s palsy, a “diagnosis of exclusion” dependent on ruling out all other possible conditions.34,35 Eleven days later, Jandre “suffered a full-blown stroke, [impairing] his physical and cognitive abilities.”36 A carotid ultrasound subsequently revealed a significant blockage in Jandre’s carotid artery, indicative of an ischemic stroke event. Unfortunately, Dr. Bullis had incorrectly ruled out the possibility of an ischemic stroke through “listening to Jandre’s carotid arteries with a stethoscope,” which she herself admitted to be a relatively unreliable screening method.37 In her examination of Jandre, Dr. Bullis had declined to order a carotid ultrasound—a more accurate diagnostic tool that could have detected the blockage. Jandre’s family sued Dr. Bullis for negligence, bringing forth claims of informed consent as well as negligent care and treatment.38 A trial court jury concluded that, although Dr. Bullis was not negligent in her diagnosis of Bell’s Palsy, she breached her disclosure duty under Wis. Stat. §448.30 when she did not inform Jandre of the option to conduct a carotid ultrasound test for ischemic strokes. This judgment was upheld by the Wisconsin Court of Appeals, and ultimately affirmed by Wisconsin’s Supreme Court in their review of the case.39 Citing Martin v. Richards and Wis. Stat. §448.30, the Jandre court found that a physician’s duty to disclose should be dictated by the patient’s condition (“the symptoms that the patient displays”), not limited to their diagnosis.40 Indeed, while intracranial bleeding was not part of Dr. Richards’ diagnosis of concussion but rather a possible complication of Martin’s injury, the Martin court held that Dr. Richards should have disclosed the potential for intracranial bleeding to develop (and the hospital’s ability or inability to treat it) in order for the Martin family to make properly informed decisions about their daughter’s medical care. In the case of Jandre, the supreme court applied its previous, condition-centered informed consent

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standard to justify an even broader reading of Wis. Stat. §448.30, whereby “the distinction between conditions ‘related’ to the final diagnosis and conditions ‘unrelated’ to the final diagnosis finds no support in the statute or case law.”41 In other words, the court determined that a physician’s duty to disclose includes diagnostic procedures and treatments for conditions related to the patient’s symptoms, yet unrelated to the physician’s final diagnosis— namely, conditions discarded by the physician in the diagnostic process.42 Further, the Jandre court asserted that a physician’s inadequate disclosure of information could be deemed negligent even when their diagnosis and treatment were not, marking a sharp divergence between the professional standard used to review medical care and the patient standard for adjudicating informed consent. The medical malpractice action filed against Dr. Bullis by Jandre included claims of negligent misdiagnosis as well as negligence with respect to informed consent. In their request for review, the Physicians Insurance Company of Wisconsin (PIC) contended that the inconsistency of the jury’s original verdicts rendered the informed consent claim invalid. Given that Dr. Bullis’ diagnosis of Bell’s palsy—though incorrect—was found not to be negligent by the professional standard applied to misdiagnosis claims, PIC argued that Dr. Bullis had no enforceable duty to inform Jandre about the carotid ultrasound, a diagnostic test for an unrelated diagnosis of ischemic stroke.43 Physician-defendant Dr. Richards made a similar argument in Martin, claiming that if his diagnosis and care was not negligent, then “as a matter of law” he could not be found negligent for “failing to discuss a diagnosis which he did not make.”44 However, as noted in Justice Roggensack’s dissenting opinion, while Fort Atkinson Hospital’s inability to treat intracranial bleeding (should it develop as a result of Ms. Martin’s concussion) could be construed as a risk inherent in Dr. Richards’ proposed treatment, in Jandre’s case ischemic stroke represented a separate diagnosis altogether—and a discarded one at that.45 The Jandre court justified this expansion of mandated disclosure of treatments and diagnoses under Wis. Stat. §448.30 by distinguishing the discrete legal standards applicable to Jandre’s respective claims of negligent diagnosis and negligent disclosure—maintaining that while physicians may rely on professional custom to adjudicate their treatment, care, and diagnosis, informed consent is governed by the reasonable patient’s desire for information “regardless of what disclosures may be customary in the medical profession.”46 In Jandre, these two standards appear at odds: Jandre’s (retrospective) wish to hear the full range of possible diagnoses, tests, and treatments related to his symptoms would have undermined Dr. Bullis’ diagnosis of Bell’s palsy.

The Wisconsin Supreme Court’s refusal to delimit risk materiality at once obstructed and weakened physicians’ diagnostic prerogative. Despite insisting that its application of the reasonable patient standard would not impose strict liability upon physicians, the Jandre court’s unusually broad definition of materiality suggested otherwise. On the one hand, the court took pains to emphasize the limits of physicians’ disclosure duties, reassuring doctors that they had “no duty to provide information to patients about tests” that a reasonable patient would not consider material.47 At the same time, physicians could deem few

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procedures definitively immaterial according to Jandre’s standard, whereby, “[f]rom the perspective of the patient, the materiality of risk has nothing to do with whether that risk comes from a potential condition that is related to the final diagnosis, as in Martin … or from a potential condition that the physician has eliminated, though not unequivocally, as in the present case.”48 According to Canterbury v. Spence, a risk is material when a reasonable person would consider it a significant factor in deciding whether to undergo the proposed treatment.49 With the legal definition of materiality expanded under Jandre to include all risks posed by discarded diagnoses, physicians faced an impossible decision: inundate patients with the details of virtually every possible diagnosis, test, treatment, and risk associated with their condition—relevant or not—or fear the specter of an informed consent lawsuit. This concern appeared in the Wisconsin Medical Society’s amicus brief, which predicted that the Jandre court’s interpretation of Wis. Stat. §448.30 would require physicians to tell their patients, “I believe in my diagnosis but if my diagnosis is wrong, here are all the other things you should consider,” thereby inviting patients to “[usurp] their professional judgment.”50 Jandre’s overbroad application of informed consent threatened to harm physicians and patients alike, leading Wisconsin’s Hospital Association and Medical Society to lobby in favor of amending Wis. Stat. §448.30. The state’s medical associations expressed concern that Jandre would drive Wisconsin doctors to practice defensive medicine, unnecessary procedures conducted so as to avoid future malpractice suits.51 Beyond the unsustainable economic costs imposed by defensive medicine, an average-length doctor’s appointment of 13 to 20 minutes simply would not afford enough time for physicians to disclose and explain the breadth of information required under Jandre’s reading of Wis. Stat. §448.30—let alone obtain their patient’s informed consent to proceed with treatment.52 Moreover, physicians have argued that “the very objective of the doctrine of informed consent [would] be undermined” by presenting patients with an inordinate amount of information surrounding alternate conditions beyond their diagnosis.53 After all, many patients lack health literacy, the ability to process and understand essential health information. Rather than resulting in more informed patients, Jandre-style disclosure—more information and more choices—may leave patients overwhelmed and confused.54 Indeed, psychological research has revealed that decision-makers become “rapidly overwhelmed by having to consider more than a few options,” and in situations perceived as risky, individuals often rely on emotional reactions (rather than objective facts) to drive their choices.55,56 Existing evidence does not suggest that receiving “an endless variety of choices and options” would equip patients to make maximally informed healthcare decisions.57 Further, more care has not been shown to produce better results. Though patients may gravitate toward the seeming security of “more aggressive medical care,” patients in regions favoring aggressive care tend to have poorer health outcomes and lower satisfaction rates.58 Fearing increased liability and anticipating disruptions to their professional practice, physician groups’ efforts to revise Wis. Stat. §448.30 succeeded when Wisconsin adopted a new informed consent statute in 2013. Abandoning its prior reasonable patient standard, the

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updated statute instead deferred to the reasonable physician to determine informed consent, as well as clarifying that physicians must no longer disclose “information about alternate medical modes of treatment for any condition the physician has not included in his or her diagnosis at the time the physician informs the patient.”59 While professional custom may not reliably dictate the most effective means of risk disclosure, Wisconsin’s lawmakers ultimately agreed that a legal remedy was the wrong prescription: “judges and juries ought not [play doctor].”60

III: Whose Reason Rules: State by State, Divergent Standards Since Canterbury v. Spence, two broad standards have emerged by which informed consent cases are adjudicated in the United States. Some states (about half) have privileged patients’ self-determination over professional tradition through adopting a version of Canterbury’s reasonable patient standard, gauging the adequacy of physicians’ disclosure based on what a reasonable patient would consider important to their medical decision.61,62 Meanwhile, other states have decided against the patient-centered standard, questioning its feasibility and fairness. Such states have determined that a physician-defendant’s disclosure should be judged against the customary practices of fellow doctors in the community, an approach known as the reasonable physician or professional standard. The distinction between these standards appears to tangibly influence the outcomes of informed consent lawsuits: research has demonstrated that states with a reasonable physician standard are significantly less likely to rule in patients’ favor.63 Indiana is one such state. In the case of Culbertson v. Mernitz (1992), Patty Jo Culbertson’s cervix improperly adhered to the wall of her vagina following a bladder suspension and cryosurgery performed by Dr. Roland Mernitz, a complication for which Culbertson underwent subsequent surgery by another doctor. When Culbertson filed an informed consent suit against Dr. Mernitz claiming that he failed to disclose the surgery’s “inherent risks and complications,” Dr. Mernitz requested summary judgment based on a medical review panel’s assessment of the case.64 Despite acknowledging Dr. Mernitz’s lack of disclosure, the panel held that he did not violate “the appropriate standard of care” because cervical adhesion to the vagina “is not considered a risk of such surgery requiring disclosure to the patient.”65 Considering this finding alongside Culbertson’s lack of opposing expert testimony, the trial court entered summary judgment in Dr. Mernitz’s favor. However, the Fulton Circuit Court of Appeals went on to side with Culbertson, stating that the trial court jury had not addressed one key issue of fact—namely, whether the potential for cervical adhesion would pose a material risk to a reasonable patient.66 In reviewing the case, the Indiana Supreme Court affirmed the trial court’s original decision to grant summary judgment. The supreme court held that most informed consent cases would require expert medical testimony to ascertain what a “reasonably prudent physician would disclose” to

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inform the patient’s choice of treatment.67 Rather than expect physicians to “peer into the brain” of a “hypothetical ‘reasonably prudent patient,’” the court reasoned that physicians’ disclosure should be evaluated according to the professional norms of fellow doctors— although patient-plaintiffs may believe their “right of self-decision” to be profoundly hindered as a result.68 Furthermore, the court maintained that laypeople (e.g. lay juries) lack sufficient medical knowledge to accurately comprehend the relative significance of risks accompanying the majority of medical procedures.69 Indiana’s decisive instatement of the professional standard in Culbertson v. Mernitz countered the Canterbury court’s assertion that laypeople’s reasonableness should override medical custom to judge informed consent.

Hawaii’s legal history of informed consent tells a different story—one of patient as protagonist. In the state’s landmark case of Carr v. Strode (1995), when Robin Carr’s vasectomy failed, he alleged that Dr. Walter Strode had neglected to inform him of the risk of remaining fertile after the procedure. Had he been made aware of this risk, Carr testified that he would have decided against the surgery.70 Although a trial jury of Hawaii’s First Circuit Court upheld Carr’s informed consent claim against Dr. Strode, the circuit court judge entered a judgment notwithstanding the verdict (JNOV) in Dr. Strode’s favor based on the plaintiff’s lack of expert medical evidence, and conditionally granted Dr. Strode’s motion for a new trial pending the results of an appeal.71 Indeed, the Hawaii Supreme Court’s prior ruling on the issue of informed consent pointed in Dr. Strode’s favor, having required medical testimony to establish failure to disclose: two years prior to Canterbury, in Nishi v. Hartwell (1970), the supreme court validated informed consent as a tort cause of action yet affirmed a trial court’s dismissal of the case because plaintiff Nishi had failed to “adduce expert medical testimony” to prove the inadequacy of physician-defendant Dr. Hartwell’s disclosure.72 Faced with a similar case in Carr v. Strode, however, Hawaii’s Supreme Court embraced Canterbury to overrule precedent in light of recent norms surrounding informed consent, contrasting Indiana’s stubborn rejection of the patient standard that Canterbury sought to advance.

Despite their pre-Canterbury application of the reasonable physician standard in Nishi v.

Hartwell, Hawaii’s Supreme Court reversed the circuit court judge’s JNOV in Carr v. Strode and remanded the case for a new trial on the issue of informed consent, citing Canterbury’s reasoning as well as a “growing nationwide trend [reflected in Hawaii’s lower court decisions] favoring the patient-oriented standard.”73 In their comparison of the physician- and patient-oriented standards, the Carr court opined that both “seek to achieve the same goal” of “[ensuring] informed and intelligent” patient decision-making.74 Ideally, the scope of disclosure dictated by each standard would align in keeping with this shared aim. Still, acknowledging the significant difference between the two means of judging physicians’ conduct, the court explained its choice to adopt the patient standard in Carr v. Strode through arguing that the medical community’s concept of what a patient needs to hear is an insufficient metric by which to determine an individual patient’s informational needs.75 While expert testimony would still be required to demonstrate

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the materiality of medical risk, following Carr v. Strode Hawaiian courts no longer invited medical professionals to establish the scope of reasonable disclosure on their patients’ behalf.

Alabama’s case of Fain v. Smith (1985) illuminates the challenge of legally defining not only reasonable disclosure, but reasonable consent on the patient’s behalf—particularly in the wake of a distressing medical mistake. The Alabama Supreme Court heard the appeal of plaintiff Duncan Fain, whose heart was erroneously punctured during a pulmonary arteriogram. After Fain’s informed consent case against physician-defendant Dr. R. T. Smith was decided in Dr. Smith’s favor by a district court jury, on appeal Fain held that the jury had applied the wrong standard to assess proximate cause.76 While Fain and Dr. Smith concurred that the risk of heart puncture should have been disclosed prior to the procedure, the two parties disputed whether Dr. Smith’s inadequate disclosure actually caused Fain’s injury: if Fain had been properly informed, would it have altered his decision to undergo the diagnostic test? Fain argued that the district court should have employed the subjective standard, by which the plaintiff’s own testimony constitutes sufficient proof that “he would not have consented to the procedure had he been advised of the particular risk in question.”77 On the other hand, according to the objective standard, the jury must consider factors beyond the patient’s self-serving testimony to ascertain, more generally, how a “reasonable person in the patient’s position” would have responded to the disclosure of all material risks.78 Alabama’s Supreme Court affirmed the district court’s judgment and upheld the objective standard, deeming it “fairer to both plaintiff and defendant.”79 While it is true that a patient-plaintiff’s account of what they would have done is unavoidably shaped by 20/20 hindsight, Justice Jones and Adams’ dissenting opinions in Fain v. Smith raised the point that true objectivity in discerning causation may be virtually impossible.80 Indeed, given that prudent patients vary in their responses to risk disclosure, Jones found the so-called objective standard to be fundamentally subjective with respect to juries, essentially tasking “each juror … with subjectively determining what he or she would have done.”81 Furthermore, even under the objective standard, the Alabama Supreme Court stated that the factfinder in an informed consent case must surmise the decision of a hypothetical patient who shares the plaintiff’s “idiosyncrasies,” “religious beliefs,” and all other relevant traits.82 While Adams argued that a patient-plaintiff’s testimony alone should not conclusively dictate causation, he also claimed that no standard filtered so narrowly through the patient’s point of view can call itself “objective.” He wrote, “When we build into the standard, as we have done here, ‘all of the characteristics of the plaintiff,’ … we no longer have the reasonable person standard.”83 Finally, Jones contended, courts should not seek to honor the self-determination of “reasonable persons alone.” Despite its claims of objective fairness, Jones asserted that the informed consent doctrine advanced by Canterbury chiefly “[safeguards] the right of individual choice, even where it may appear idiosyncratic” or even unreasonable.84

IV: Where Will Canterbury Take Us?

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Only a small fraction of the United States population possesses expert medical knowledge, yet we are almost all patients at some point, faced with medical decisions that weigh heavily on our lives. In the landmark U.S. Supreme Court case of Dent v. West Virginia (1889), which empowered states to regulate the medical profession, the Court described doctors’ ubiquitous influence, “Every one may have occasion to consult [a physician], but comparatively few can judge of the qualifications of learning and skill which he possesses.”85 The foundation of modern-day informed consent law, Canterbury v. Spence (1972) affirmed the principle that no individual should be expected to relinquish their claim to bodily autonomy upon entering the doctor’s office: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”86 Within medical malpractice law, the doctrine of informed consent attempts to foster and protect informed patient decision-making. Ideally, informed consent law equips patients with the information they need to determine the direction of their medical treatment—without compromising physicians’ ability to provide quality care.

Since Canterbury, however, the relationship between medicine and law has remained more adversarial than synergistic. In a dramatic tug-of-war that literally rewrote the state’s informed consent policy, Wisconsin’s courts and doctors spent decades haggling over the highly contested, inherently personal territory of what a reasonable patient needs to know.

The Indiana Supreme Court’s refusal to cast physicians as mind readers in Culbertson v.

Mernitz and Hawaii’s commitment to following the mores of patient autonomy in Carr v.

Strode illustrate the nation’s split between physician- and patient-centered disclosure standards—seemingly, a question of whose rationale a state’s courts should champion.

But, is the issue quite so simple? Should it be? Medical informed consent is, after all, a two-way street, encompassing both physicians’ disclosure of risk information and patients’ resulting treatment decisions. Fain v. Smith rested on whether the divulgence of an undisclosed material risk would have caused the patient-plaintiff to withhold consent, thus preventing his injury. The Alabama Supreme Court endeavored to determine who should be trusted to verify causation: Patients? Jurors? Doctors? Standardizing a patient’s hypothetical past decision-making is by no means an exact science. No metric, legal or otherwise, is capable of calculating the degree to which an individual’s medical choices would have been impacted by a risk unknown to them at the time.

When the law of informed consent purports to know better than physicians and patients alike, the doctrine’s original goal is hindered. In the recent case of EMW Women’s Surgical Center, P.S.C. v. Beshear (2019), the U.S. Sixth Circuit Court of Appeals invoked Canterbury to justify upholding Kentucky’s Ultrasound Informed Consent Act (H.B. 2), a statute that required doctors to perform and display an ultrasound, explain the images in their own words, and play the fetal heartbeat out loud before obtaining an abortion patient’s consent.87 Although H.B. 2 mandated disclosing the consequences of abortion for the fetus— not the patient undergoing the procedure—the Sixth Circuit nonetheless affirmed the state’s

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right to compel physicians’ divulgence of medical information deemed “truthful, nonmisleading, and relevant.”88,89 Citing Canterbury’s assertion that medical custom should not dictate the bounds of mandatory disclosure, the court went so far as to deem physicians’ qualms with the statute irrelevant.90 By “eviscerating physician discretion,” however, the court precluded physicians from respecting their patients’ autonomy, thereby undermining the very objective of informed consent.91 Beyond infringing on physicians’ professional expertise— about one-third of the information that abortion informed consent statutes force doctors to disclose is medically inaccurate—such an approach to informed consent also threatens to erode patients’ trust in medicine through inflicting needless emotional injury.92 One abortion patient subject to a Texas statute’s consent requirements recalled her nightmarish experience: “The description the doctor provided was perhaps the most devastating part because although our baby was profoundly ill, he had healthy organs too. So, the doctor was forced to describe – and I to hear – that he had a well-developed diaphragm … His words were unwelcome and I felt completely trapped.”93 In order to facilitate more effective patient-provider communication, informed consent law must recognize its own limits. Malpractice liability already exacts a high economic cost on the United States healthcare system: a 2010 study found that “medical liability system costs, including defensive medicine” comprise 2.4 percent of the nation’s total healthcare spending, upwards of $55.6 billion annually.94 If the doctrine of informed consent expanded to mandate the disclosure of treatment-adjacent information such as medical costs, financial conflicts of interest, and physicians’ personal and professional history (as some ethicists advocate), the already-blurry lines distinguishing material from immaterial and reasonable from unreasonable would dissolve, rendering a fair, efficient litigation model unachievable.95 Moreover, opening the informed consent floodgates in this way would regiment a clinical conversation that, like the idiosyncratic patient themselves, escapes standardization. As Sawicki suggests, patient- and physician-oriented disclosure standards need not be viewed in opposition; indeed, a patient’s “informational needs” cannot be isolated from the practices of their surrounding medical community.96 In an era of increasingly crowdsourced medical knowledge and widespread misinformation, providers should be held responsible for disclosing the baseline risks and alternatives associated with a procedure.97 Yet, physician disclosure does not guarantee patient understanding, nor does knowledge of medical risk ensure a positive outcome. True informed consent—awareness of the known, acceptance of the unknown—relies on legal questions, not legal answers.

Liza Edwards-Levin is a senior at Brown University studying Social Analysis and Research and English in the nonfiction writing track.

Notes

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Roberts, “Jerry Canterbury, Whose Paralysis Led to Informed Consent Laws, Is Dead at 78.”

Canterbury v. Spence, 464 F.2d.

3 Canterbury v. Spence, 464 F.2d.

4 Bobinski, “Law and Power in Health Care: Challenges to Physician Control,” 616.

5 Bobinski, 614.

6 Kelly, “THE RISE OF MEDICAL BATTERY AND INFORMED CONSENT,” 22.

7 Canterbury v. Spence, 464 F.2d at 793.

8 Canterbury v. Spence, 464 F.2d at 780 (citing Schloendorff v. Society of New York Hospital (1914)).

9 Canterbury v. Spence, 464 F.2d at 782.

10 Ginsberg, “Beyond Canterbury,” 109.

11 Bobinski, “Law and Power in Health Care: Challenges to Physician Control,” 618.

12 Canterbury v. Spence, 464 F.2d at 786. (“The duty to disclose, we have reasoned, arises from phenomena apart from medical custom and practice. The latter, we think, should no more establish the scope of the duty than its existence.”)

13 Canterbury v. Spence, 464 F.2d at 780, 784.

14 Sawicki, “Modernizing Informed Consent: Expanding the Boundaries of Materiality,” 8–9.

15 Canterbury v. Spence, 464 F.2d at 788. (“Two exceptions to the general rule of disclosure have been noted by the courts. Each is in the nature of a physician’s privilege not to disclose, and the reasoning underlying them is appealing. Each, indeed, is but a recognition that, as important as is the patient’s right to know, it is greatly outweighed by the magnitudinous circumstances giving rise to the privilege…”)

16 Bobinski, “Law and Power in Health Care: Challenges to Physician Control,” 617.

17 Canterbury v. Spence, 464 F.2d at 785. (“We hold that the standard measuring performance of that [duty to disclose] by physicians, as by others, is conduct which is reasonable under the circumstances.”)

18 Canterbury v. Spence, 464 F.2d at 787.

19 Ginsberg, “INFORMED CONSENT AND THE DIFFERENTIAL DIAGNOSIS: HOW THE LAW CAN OVERESTIMATE PATIENT AUTONOMY AND COMPROMISE HEALTH CARE,” 371–72.

20 Sawicki, “Modernizing Informed Consent: Expanding the Boundaries of Materiality,” 10.

21 Studdert et al., “Geographic Variation in Informed Consent Law,” 120.

22 Daniels et al., “Informed or Misinformed Consent?,” 181–82.

23 Ginsberg, “INFORMED CONSENT AND THE DIFFERENTIAL DIAGNOSIS: HOW THE LAW CAN OVERESTIMATE PATIENT AUTONOMY AND COMPROMISE HEALTH CARE,” 392.

24 “The Great American Search For Healthcare Information,” 2, 11.

25 Wis. Stat. § 448.30, Information on alternate modes of treatment.

26 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 672. (“‘Treat’ is not a defined term. The undefined term appears six times in different forms in Wis. Stat. §448.30.”)

27 Ginsberg, “INFORMED CONSENT AND THE DIFFERENTIAL DIAGNOSIS: HOW THE LAW CAN OVERESTIMATE PATIENT AUTONOMY AND COMPROMISE HEALTH CARE,” 361. (“There is nothing contained in the legislative history materials obtained from the Legislative Reference Bureau indicating why the proposed legislation was so broad. The proposed legislation 1 2

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may have been a product of a political agenda unknown to this author. Whatever the motivation for the statute, it would become an enemy of Wisconsin physicians.”)

28 Ginsberg, 74.

29 Martin by Scoptur v. Richards, 531 N.W.2d at 74.

30 Martin by Scoptur v. Richards, 531 N.W.2d at 74.

31 Martin by Scoptur v. Richards, 531 N.W.2d at 75.

32 Martin by Scoptur v. Richards, 531 N.W.2d at 80.

33 Martin by Scoptur v. Richards, 531 N.W.2d at 80–81.

34 Ginsberg, “INFORMED CONSENT AND THE DIFFERENTIAL DIAGNOSIS: HOW THE LAW CAN OVERESTIMATE PATIENT AUTONOMY AND COMPROMISE HEALTH CARE,” 369.

35 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 641.

36 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 641.

37 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 641. (“Dr. Bullis admitted at trial that listening to the carotid arteries for a bruit is a ‘very, very poor screening test for determining what shape the arteries are in.’”)

38 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 686.

39 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 627.

40 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 627. (“The essence of the decision in Martin, Wisconsin’s informed consent doctrine, and Wis. Stat. §448.30 … is that when a reasonable person would want to know about an alternative treatment or method of diagnosis, the decision is not the doctor’s alone to make. It is the condition of a patient, that is, the symptoms that the patient displays, that drives the duty to inform, not the diagnosis.”)

41 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 648.

42 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 652. (“We apply the principle stated in Martin that it is Jandre’s condition, not Dr. Bullis’ diagnosis of Bell’s palsy, that drives the scope of Dr. Bullis’ duty to inform Jandre in the present case. Jandre’s symptoms indicated that he might be suffering from any number of conditions, of which a stroke seemed one of the most plausible and most capable of inflicting immediate, severe harm.”)

43 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 649. (“PIC’s basic argument is that it is anomalous to impose liability for breach of the duty to inform the patient when, as in the present case, the physician was not negligent in her care and diagnosis of the patient.”)

44 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 650.

45 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 680. (“In Martin, the recommended treatment for Ms. Martin’s head trauma was to remain at Fort Atkinson Hospital for careful observation. However, the risk of that treatment, i.e., a significant delay in surgery if it became necessary due to an intracranial bleed, was not explained.”)

46 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 649, 650. (“Under Wisconsin law, negligence in failing to abide by the professional standard of care and negligence in failing to obtain informed consent are two separate and distinct forms of malpractice, with two different standards of care. A failure to diagnose is one form of medical malpractice. A failure to obtain informed consent is another discrete form of malpractice, requiring a consideration of additional and different factors. There is nothing anomalous or inconsistent in holding that a reasonable patient may

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want information about alternative diagnostic techniques when the physician was not negligent in using one of multiple alternative, non-negligent techniques. To hold otherwise would substantially undercut the reasonable patient standard.”)

47 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 662. (“Physicians have no duty to provide information to patients about tests that would not be material to a reasonable patient.

The holding in the present case does not give patients leave to request all conceivable tests. Nor do physicians have a duty to perform tests that are not medically reasonable.”)

48 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 656.

49 Canterbury v. Spence, 464 F.2d at 772. (“A risk is material when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.”)

50 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 674. (“No other area of human interaction embraces the proposition that a professional must give a layperson the choice of usurping their professional judgment. There is no practical guidance on how to meet this obligation.”)

51 Ginsberg, “INFORMED CONSENT AND THE DIFFERENTIAL DIAGNOSIS: HOW THE LAW CAN OVERESTIMATE PATIENT AUTONOMY AND COMPROMISE HEALTH CARE,” 392.

52 Ginsberg, 393.

53 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 663. (“Both here and in Martin, the physicians argued that ‘extending’ the informed consent duty to include alternate modes of diagnosis unrelated to a non-negligent final diagnosis would unnecessarily inundate patients with more information than they can possibly manage. The physicians contend that in this way the very objective of the doctrine of informed consent will be undermined.”)

54 Ginsberg, “INFORMED CONSENT AND THE DIFFERENTIAL DIAGNOSIS: HOW THE LAW CAN OVERESTIMATE PATIENT AUTONOMY AND COMPROMISE HEALTH CARE,” 393.

55 Ubel and Loewenstein, “The Role of Decision Analysis in Informed Consent: Choosing Between Intuition and Systematicity,” 647.

56 Loewenstein et al., “Risk as Feelings,” 267.

57 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 673. (“Once diagnosis is determined to come within treatment, we are likely to be confronted with an endless variety of choices and options, some of which will entail no bodily invasion whatsoever. Many states appear not to embrace diagnosis in their informed consent statutes or cases for this very reason.”)

58 Fisher et al., “The Implications of Regional Variations in Medicare Spending. Part 2: Health Outcomes and Satisfaction with Care.”

59 Wis. Stat. § 448.30, Informed consent.

60 Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d at 671.

61 Canterbury v. Spence, 464 F.2d at 787 (quoting Waltz & Scheuneman). (“In broad outline, we agree that ‘[a] risk is thus material when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.’”)

62 Sawicki, “Modernizing Informed Consent: Expanding the Boundaries of Materiality,” 9. (“In the United States, jurisdictions are more or less evenly divided between a patient-based standard and a physician-based standard for identifying the information that must be disclosed as part of the informed consent process.”)

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Studdert et al., “Geographic Variation in Informed Consent Law,” 115–17.

Culbertson v. Mernitz, 602 N.E.2d at 99.

65 Culbertson v. Mernitz, 602 N.E.2d at 99.

66 Culbertson v. Mernitz, 602 N.E.2d at 99–100. (“The Court of Appeals agreed with the Culbertsons that the trial court had erroneously entered summary judgment on Counts II and IV because an issue of fact remained as to whether the risk of cervical adhesion to the vagina was a ‘material risk.’ The court further held that that issue was a question for the jury which does not require expert testimony as to materiality, although expert testimony might be required to establish the existence and extent of the risk.”)

67 Culbertson v. Mernitz, 602 N.E.2d at 100.

68 Culbertson v. Mernitz, 602 N.E.2d at 103. (“When viewed through the eyes of the physician, it is easy to see that a physician should not be required to guess or speculate as to what a hypothetical ‘reasonably prudent patient’ would ‘need to know’ in order to make a determination … From a physician’s viewpoint, he should not be called upon to be a ‘mind reader’ with the ability to peer into the brain of a prudent patient to determine what such patient ‘needs to know,’ but should simply be called upon to discuss medical facts and recommendations with the patient as a reasonably prudent physician would. On the other hand, from the patient’s viewpoint, the physician should be required to give the patient sufficient information to enable the patient to reasonably exercise the patient’s right of self-decision in a knowledgeable manner.”)

69 Culbertson v. Mernitz, 602 N.E.2d at 104. (“We therefore hold that, except in those cases where deviation from the standard of care is a matter commonly known by lay persons, expert medical testimony is necessary to establish whether a physician has or has not complied with the standard of a reasonably prudent physician.”)

70 Carr v. Strode, 904 P.2d at 502. (“Carr further indicated that he would not have undergone the first vasectomy procedure if he had known that it might fail or allow him to become fertile in the future.”)

71 Carr v. Strode, 904 P.2d at 491.

72 Carr v. Strode, 904 P.2d at 494. (“Because Nishi had failed to adduce expert medical testimony regarding what physicians in the community disclosed to their patients regarding the particular medical procedure, we affirmed the trial court’s dismissal of Nishi’s complain, and by so holding, adopted the ‘physician-oriented’ standard of disclosure for actions based on the doctrine of informed consent.”)

73 Carr v. Strode, 904 P.2d at 499.

74 Carr v. Strode, 904 P.2d at 498. (“Both standards, therefore, tempered by objectivity, seek to achieve the same goal, that is, to ensure that the patient’s decision to undergo a particular medical procedure is an informed and intelligent decision.”)

75 Carr v. Strode, 904 P.2d at 499. (“Moreover, not only should the patient’s decision remain at the forefront when assessing the physician’s disclosure to his or her patient in each case, but we also believe that, barring situations where the therapeutic privilege exception to the physician’s duty to disclose is applicable, what the medical community believes the patient needs to hear in order for the patient to make an informed decision is insufficient, without more, to resolve the question of what an individual patient reasonably needs to hear in order for that patient to make an informed and intelligent choice regarding the proposed medical treatment.”)

63 64

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Fain v. Smith, 479 So. 2d at 1154. (“Plaintiffs contend in brief that the objective standard does away with consideration by the jury of the patient’s testimony concerning his thoughts.”)

77 Fain v. Smith, 479 So. 2d at 1152.

78 Fain v. Smith, 479 So. 2d at 1155.

79 Fain v. Smith, 479 So. 2d at 1154.

80 Fain v. Smith, 479 So. 2d at 1154.

81 Fain v. Smith, 479 So. 2d at 1159. (“If there is no one reasonable person, each juror is left with subjectively determining what he or she would have done (e.g., ‘Well, I’m reasonable, so what would I have done in this situation?’).”)

82 Fain v. Smith, 479 So. 2d at 1155.

83 Fain v. Smith, 479 So. 2d at 1164.

84 Fain v. Smith, 479 So. 2d at 1158 (citing Katz).

85 Dent v. West Virginia, 129 U.S. at 122.

86 Canterbury v. Spence, 464 F.2d at 780 (citing Schloendorff v. Society of New York Hospital (1914)).

87 EMW Women’s Surgical Center, P.S.C. v. Beshear, 920 F.3d at 423. (“Under [Roe v. Wade (1973)], a woman has the right to choose to have an abortion. To inform that choice, the Commonwealth of Kentucky directs a doctor, before performing an abortion, to ascultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient.”)

88 EMW Women’s Surgical Center, P.S.C. v. Beshear, 920 F.3d at 424. (“Thus, even though an abortion-informed-consent law compels a doctor’s disclosure of certain information, it should be upheld so long as the disclosure is truthful, non-misleading, and relevant to an abortion.”)

89 EMW Women’s Surgical Center, P.S.C. v. Beshear, 920 F.3d at 444. (“To give the patient more information that is truthful, non-misleading, and relevant to a medical procedure is the epitome of ensuring informed consent.”)

90 EMW Women’s Surgical Center, P.S.C. v. Beshear, 920 F.3d at 439. (“If the validity of an informedconsent law depended on whether doctors agreed with the law—or whether the law required disclosures that, with no law, the doctor would disclose anyway—there would be no need for the law to supplement custom.”)

91 EMW Women’s Surgical Center, P.S.C. v. Beshear, 920 F.3d at 447 (Donald, B., dissenting). (“Under the prevailing standard of care, informed consent requires respect for the patient’s autonomy and sensitivity to the patient’s condition. Physician discretion is vital, but H.B. 2 eviscerates physician discretion.”)

92 Daniels et al., “Informed or Misinformed Consent?,” 181.

93 EMW Women’s Surgical Center, P.S.C. v. Beshear, 920 F.3d at 458.

94 Mello et al., “National Costs Of The Medical Liability System,” 1569.

95 Sawicki, “Modernizing Informed Consent: Expanding the Boundaries of Materiality,” 26.

96 Sawicki, 16.

97 Swire-Thompson and Lazer, “Public Health and Online Misinformation.”

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Bibliography Bobinski, Mary Anne. “Law and Power in Health Care: Challenges to Physician Control.” Buffalo Law Review 67 (May 2019): 34.

Canterbury v. Spence, 464 F.2d 772 (United States Court of Appeals for the District of Columbia Circuit 1972).

Carr v. Strode, 904 P.2d 489 (Supreme Court of Hawaii 1995).

Culbertson v. Mernitz, 602 N.E.2d 98 (Supreme Court of Indiana 1992).

Daniels, Cynthia R., Janna Ferguson, Grace Howard, and Amanda Roberti. “Informed or Misinformed Consent? Abortion Policy in the United States.” Journal of Health Politics, Policy and Law 41, no. 2 (April 2016): 181–209. https://doi.org/10.1215/03616878-3476105.

Dent v. West Virginia, 129 U.S. 114 (Supreme Court of the United States 1889).

EMW Women’s Surgical Center, P.S.C. v. Beshear, 920 F.3d 421 (United States Court of Appeals for the Sixth Circuit 2019).

Fain v. Smith, 479 So. 2d 1150 (Supreme Court of Alabama 1985).

Fisher, Elliott, David Wennberg, Thérèse Stukel, Daniel Gottlieb, F.L. Lucas, and Etoile Pinder. “The Implications of Regional Variations in Medicare Spending. Part 2: Health Outcomes and Satisfaction with Care.” Annals of Internal Medicine 138, no. 4 (February 2003): 288–98.

Ginsberg, Marc D. “Beyond Canterbury: Can Medicine and Law Agree about Informed Consent? And Does It Matter?” The Journal of Law, Medicine & Ethics 45, no. 1 (March 2017): 106–11. https://doi.org/10.1177/1073110517703104.

Ginsberg, Marc D. “INFORMED CONSENT AND THE DIFFERENTIAL DIAGNOSIS: HOW THE LAW CAN OVERESTIMATE PATIENT AUTONOMY AND COMPROMISE HEALTH CARE.” Wayne Law Review 60 (2015): 37.

Jandre v. Physicians Insurance Company of Wisconsin, 813 N.W.2d 627 (Supreme Court of Wisconsin 2012).

Kelly, Clinton L. “THE RISE OF MEDICAL BATTERY AND INFORMED CONSENT.” Tennessee Bar Journal 52 (August 2016): 8.

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Loewenstein, George, Elke Weber, Hsee Christopher, and Ned Welch. “Risk as Feelings.” Psychological Bulletin 127, no. 2 (2001): 267–86.

Martin by Scoptur v. Richards, 531 N.W.2d 70 (Supreme Court of Wisconsin 1995).

Mello, Michelle M., Amitabh Chandra, Atul A. Gawande, and David M. Studdert. “National Costs Of The Medical Liability System.” Health Affairs 29, no. 9 (September 2010): 1569–77. https://doi.org/10.1377/hlthaff.2009.0807.

Roberts, Sam. “Jerry Canterbury, Whose Paralysis Led to Informed Consent Laws, Is Dead at 78.” The New York Times, May 16, 2017. https://www.nytimes.com/2017/05/16/us/jerry-canterbury-medicalconsent-paralysis.html.

Sawicki, Nadia N. “Modernizing Informed Consent: Expanding the Boundaries of Materiality.” University of Illinois Law Review 2016 (2016).

Studdert, David M., Michelle M. Mello, Marin K. Levy, Russell L. Gruen, Edward J. Dunn, E. John Orav, and Troyen A. Brennan. “Geographic Variation in Informed Consent Law: Two Standards for Disclosure of Treatment Risks.” Journal of Empirical Legal Studies 4, no. 1 (March 2007): 103–24. https://doi.org/10.1111/j.1740-1461.2007.00083.x.

Swire-Thompson, Briony, and David Lazer. “Public Health and Online Misinformation: Challenges and Recommendations.” Annual Review of Public Health 41, no. 1 (April 2, 2020): 433–51. https://doi.org/10.1146/annurev-publhealth-040119-094127.

“The Great American Search For Healthcare Information.” Weber Shandwick & KRC Research, 2018.

Ubel, Peter A., and George Loewenstein. “The Role of Decision Analysis in Informed Consent: Choosing Between Intuition and Systematicity.” Social Science & Medicine 44, no. 5 (1997): 647–56.

Wis. Stat. § 448.30, Information on alternate modes of treatment, 448.30 § (1981). https://advance-lexiscom.revproxy.brown.edu/api/document?collection=statutes-legislation&id=urn:contentItem:5G4XPJX1-DYB7-M30K-00000-00&context=1516831.

Wis. Stat. § 448.30, Informed consent, 448.30 § (2013). https://advance-lexiscom.revproxy.brown.edu/api/document?collection=statutes-legislation&id=urn:contentItem:5G4XPJX1-DYB7-M30K-00000-00&context=1516831.

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Give Me Your Tired, Your Poor, Your Huddled Masses The Dangers of Certification Power in U.S. Asylum Law Chaelin Jung

Abstract Asylum cases in United States immigration courts today have been likened to “death penalty cases in a traffic court setting.”1 While much of the proceedings are administrative in nature, the outcomes carry serious implications for those seeking refuge in the country. In fiscal year 2019, judges presided over 67,000 asylum cases, which made up nearly a fourth of total cases in the immigration court system.2 Immigration law more broadly is notoriously complex, adjudicated by its own courts and spanning three federal departments: Homeland Security, Justice, and Health and Human Services. Concerningly, the immigration system lacks an independent judiciary and houses courts within the Department of Justice. In the maze of federal statute, regulations, and appeals court decisions, the Attorney General is able to invoke an authority called certification power to unilaterally overturn even precedent court decisions. Recently, this power has been utilized to constrict protections proffered to asylumseekers, particularly on the basis of a protected ground: particular social group status. In this paper, I first present a background of the relevant asylum law and then argue that the certification power of the Attorney General is susceptible to political abuse and violations of due process. Next, I discuss two prominent particular social groups — gender-based and family-based — to highlight how certification power narrows protections for asylum seekers.

Finally, I explore broad implications of this authority on the immigration system and procedural legitimacy.

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BACKGROUND The Refugee Act of 1980 codified eligibility requirements for people physically present in the United States to apply for asylum. The legal criteria for refugee and asylee status are the same, except that refugee applicants apply outside of U.S. borders. To meet this definition, the asylum applicant must show the following: (1) a well-founded fear (2) of persecution (3) on account of race, religion, national origin, membership in a particular social group, or political opinion, or that he or she has experienced such persecution in the past. Of the five protected grounds in the third prong, particular social groups (PSGs) have been the most contentious. The primary federal statute regarding immigration law — the Immigration and Nationality Act (INA) — does not define the qualifications for a PSG. The United Nations ranking body on forcibly displaced persons, the United Nations High Commissioner for Refugees, has described a PSG as “a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society.”3 However, this definition is only international guidance and is non-binding to the U.S. Instead, the seminal 1985 case Matter of Acosta has steered social group jurisprudence in the United States for over two decades. In Matter of Acosta, a Salvadoran national had pleaded guilty to a charge of deportability for entering the U.S. without inspection, but filed a defensive asylum claim before an immigration judge at his removal hearing. The judge denied relief to the respondent (Acosta), finding that he failed to meet his burden of proof. This finding was challenged on appeal to the Board of Immigration Appeals (BIA). Acosta testified that guerrillas had targeted a Salvadoran taxi cooperative, of which he was a manager, after the company refused to participate in work stoppages. The legal question before the BIA was if “taxi drivers and persons engaged in the transportation industry in El Salvador” constituted a particular social group. The precedential decision of the BIA established the immutability component of defining a PSG, stating that members of a PSG share a characteristic that they cannot or should not be required to change. In Acosta, the BIA held that being a taxi driver and refusing to participate in the stoppages were not immutable traits that would qualify them as a particular social group, as drivers could conceivably change professions or cooperate with the guerrilla groups. While Acosta lost on appeal, the BIA explicitly established that sex, color, kinship ties, and sometimes shared past experience, like former military leadership or land ownership, could form the basis for a PSG.4 Notably, the court avoided over-specificity and ordered a case-by-case analysis of future PSG asylum claims.

Subsequent rulings have contributed two additional components to accepted particular social group definition: particularity and social distinction. The particularity standard requires a social group’s boundaries to be defined, discrete, and not overly broad. For example, in Matter of S-E-G-, the BIA opined that the respondents’ proposed PSG — “male children who lack stable families and meaningful adult protection, who are from middle and low income classes, who live in the territories controlled by the MS-13 gang, and who refuse

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recruitment” — was amorphous and did not meet the particularity standard.5 The third facet, social distinction, requires that an asylum applicant show belonging to a group that is set apart within its society. In Matter of M-E-V-G-, the BIA held that applicants must show membership to a PSG that is “perceived within the given society as a sufficiently distinct group.”6 These differentiating characteristics need not be visible and may be “subtle and only discernible by people familiar with the particular culture.”7 Since then, the Ninth Circuit has ruled that the perception of society, not that of the persecutor, is relevant to social group distinction.8 Now that I have provided a brief overview of the relevant asylum law and interpretation, I turn to discussion of the Attorney General’s certification power and the threat it poses to the doctrine of judicial independence and autonomy.

CERTIFICATION POWER OF THE ATTORNEY GENERAL The Board of Immigration Appeals (BIA) is charged with hearing appeals from decisions by immigration judges and Department of Homeland Security directors. These decisions are binding and administratively final “unless modified or overruled” by the Attorney General or a federal court.9 Federal statute empowers the Attorney General with this power, stating: “The Board [of Immigration Appeals] shall refer to the Attorney General for review of its decision all cases that: The Attorney General directs the Board to refer to him.”10 Historically, the Attorney General has not invoked this “certification” power to refer cases to himself. The Bush administration utilized this process only twice per year, and the Obama presidency saw only four uses in its eight years.11 The Trump administration marked a major break in this tradition: in 2018, then-Attorney General Jeff Sessions certified eight cases to himself in the span of only ten months, with succeeding Attorneys General Matthew Whitaker and William Barr also relying on certification power to overturn BIA decisions.12 The use of certification power, also known as “self-referral power,” reveals serious due process concerns in immigration law — specifically the opportunity to present one’s case before an impartial party. The immigration court system, including immigration judges and the BIA, is housed within the Executive Office for Immigration Review (EOIR), an administrative agency within the Department of Justice. This same department is at the helm of the Attorney General, who is delegated oversight of the immigration court system by Congress. In a nonimmigration law context, the proposition of the Attorney General as both the federal government’s lawyer and the adjudicating judge would be hugely antithetical to the principle of judicial independence. Yet, in the conundrum of immigration law, the Attorney General is empowered to be both prosecutor and judge — an authority that legal practitioners see as a fundamental breach of due process. In 2019, the American Bar Association passed a resolution urging the Justice Department to establish procedural safeguards for the Attorney General’s self-certification power, citing in part concerns of short briefing timelines, certification of issues not on appeal to the BIA, and the lack of opportunities for the relevant

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parties, public, and amici — or “friends of the court” — to comment. Ultimately, the American Bar Association urged that certification power be used only sparingly, and only to clarify legal questions after a full administrative review has been conducted by the BIA.13 Federal courts have repeatedly ruled against the substantive outcomes of the Attorney General’s certification power. In Matter of M-S-, Attorney General Barr stated that even asylum seekers who have established a credible fear of persecution or torture were ineligible for release on bond.14 This overturned the decision in Matter of X-K-, in which the BIA ruled that aliens with a positive credible fear determination were entitled to bond hearings under the Immigration and Nationality Act.15 Subsequently, U.S. Senior District Judge Marsha J. Pechman struck down Attorney General Barr’s decision, ruling that the statutory prohibition of bond hearings “violates the U.S. Constitution.”16 More importantly, higher courts have long expressed hesitance of the procedural integrity of the Attorney General interfering in immigration decisions. In United States ex rel. Accardi v. Shaugnessy, the Supreme Court opined, “as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.”17 In this case, the petitioner was an Italian national who had entered the U.S. without inspection. He claimed that his application for relief from deportation was prejudiced by the Attorney General’s list of “unsavory characters” containing the petitioner’s name that had been circulated prior to the BIA’s ruling. In sum, rulings from higher courts have rejected both the total plenary power of the Attorney General to rule on immigration matters and the specific outcomes of decisions made in the certification process. This consistent jurisprudence affirms the dangers of allocating both prosecutor and adjudicator power to the Attorney General.

Proponents of the Attorney General’s certification power in immigration law assert that it is an efficient tool for rectifying erroneous immigration decisions. Former Attorney General Alberto R. Gonzales of the Bush administration and Patrick Glen, former Senior Litigation Counsel of the Department of Justice, argue that certification power is “an effective conduit for executive branch immigration policy,” characterizing it as one tool in the executive branch’s arsenal of policy mechanisms.18 In an era where congressional stalemate has blocked comprehensive immigration reform for decades, certification power — much like executive orders or memoranda — may seem to be an appealing means of swift policy implementation. A thorough discussion of the politicization of the Justice Department merits its own paper. Briefly, however, Gonzales’ and Glen’s characterization of certification power fails to recognize that the Attorney General is relatively insulated from the legislative resistance that checks the power of the President.19 Unless or until a federal court challenges the decision, the Attorney General’s word is law. At the very least, certification power is an affront to the constitutional principle of checks and balances between the branches of government.

It is important to note that the Attorney General’s certification power has been invoked with significant prudence on some occasions. For example, the Obama

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administration utilized this power to overturn a prior administration’s BIA precedent only twice, although it used the power for non-precedential purposes other times. For the cases In re Compean and In re Silva-Trevino, Attorney General Eric Holder sought notice-andcomment input from the public or waited for circuit courts to weigh in before making a decision.20 In the latter case, five circuit courts had rejected previous Attorney General Michael Mukasey’s interpretation of the standard for determining crimes of moral turpitude for aliens. Only after these rulings did Holder rely on certification power to vacate Mukasey’s precedent.21 While some Attorneys General have exercised greater caution by allowing for stakeholder input and deferring to decisions by higher courts, the protections for asylum seekers fleeing persecution ought to be standardized and not subject to the whims of political vicissitudes.

I now turn to two particular social groups to understand the effect of certification power on narrowing protections for asylum seekers on the basis of social group status. The two groups in question — gender- and family-based PSGs — were chosen as examples due to ongoing litigation and the frequency of these claims in asylum proceedings.

GENDER-BASED PSGs Gender identity itself is not a protected ground, and most courts have been hesitant to recognize a gender-based social group because of the widespread nature of gender discrimination. Yet some courts have increasingly embraced recognition of gender-based PSGs, with the Ninth Circuit stating that “women in a particular country, regardless of ethnicity or clan membership, could form a particular social group.”22 As a procedure uniquely experienced by biologically female individuals, female genital mutilation (FGM) has been a critical gateway consideration for courts to establish asylum eligibility on gender-based PSG claims. In Matter of Kasinga, the BIA established the first precedent that women fleeing female genital mutilation could be eligible for asylum. In this case, Fauziya Kassindja had fled her home in Togo at age 17 to escape FGM and a forced polygamous marriage. Kassindja won the case upon appeal in a unanimous decision by the BIA, recognizing “young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice” as a particular social group.23 Given that more than 200 million girls and women today have undergone FGM, a more generous posture by the court offered hope to international human rights organizations and advocacy groups fighting against the widely condemned practice.24 18 years later in In re A-R-C-G-, the BIA made a long-awaited decision on another gender-based PSG: women fleeing domestic violence. In the ruling, the BIA held that Guatemalan women unable to leave their marriages constituted a cognizable particular social group, satisfying the immutability, particularity, and social distinction prongs established in cases like Acosta. Notably, the BIA found that individuals in the presented PSG were treated with sufficient distinction in Guatemalan society given limited legal protections, a culture of

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machismo and family abuse, and spousal rape.25 This 2014 decision signaled more promising opportunities for survivors of domestic violence to seek asylum in the U.S. Four years later, however, Attorney General Jeff Sessions invoked his certification power and overturned In re A-R-C-G-. The Attorney General described the PSG defined by Guatemalan women unable to leave their marriages as “likely [to] lack the particularity required… given that broad swaths of society may be susceptible to victimization.” The legal question at the fore of domestic violence claims is whether victims actually form a particular group or if they are victims of a particular abuser in highly individualized circumstances. Applying the immutability test from Acosta, in which the BIA expressly mentioned sex, domestic violence PSGs should, at the minimum, be eligible for evaluation on a case-by-case basis. Yet, the Attorney General categorically rejected asylum eligibility, stating: “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” followed by a footnote casting doubt on the likelihood that such claims would satisfy the credible fear standard.26 This kind of broadly imposing dicta frequent in both Attorney General Sessions’ and Attorney General Barr’s decisions add additional ambiguity to an already complex area of law.

The procedural legitimacy of the Attorney General’s self-referral in Matter of A-B-, which overturned the domestic violence PSG precedent, is highly dubious. The aforementioned statute from which certification power is derived stipulates that the Attorney General can direct the immigration appeals court, the BIA, to refer cases to him. However, in Matter of A-B-, the case was still before the immigration judge and not the BIA. In his decision, the Attorney General dismissed this concern about jurisdiction, citing an expansive interpretation of his authority over immigration matters.27 Attorney General Sessions rejected another argument by the respondent that her case would not be heard before an impartial adjudicator because of his prior public statements on immigration policy.28 The Attorney General responds, “If policy statements about immigration-related issues were a basis for disqualification, then no Attorney General could fulfill his or her statutory obligations to review the decisions of the Board.”29 Ironically, this statement actually reinforces the illegitimacy of this certification power. To assume that a political appointee who ultimately serves at the pleasure of the president might possess singular authority over legal matters is unfitting for a constitutional republic.

In addition to overturning the BIA precedent recognizing domestic violence survivors as a cognizable particular social group, the Attorney General’s finding in Matter of A-Braised the burden in proving private actor harm. An essential element of an asylum seeker’s petition for relief is proving that his or her home government is either culpable for the persecution — for example, if a dictatorial regime imprisons political dissidents — or does not respond to persecution perpetrated by a private actor. In the latter case, historical jurisprudence has interpreted private actor harm in the Immigration and Nationality Act to mean that the home government is “unwilling or unable” to control the private actor persecutor.30 An asylum seeker will have met this burden if, say, she filed police reports of an

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extremist group threatening her family on account of their religion but local officials repeatedly refused to investigate. In his Matter of A-B- decision, the Attorney General stated that inaction by local police of an individual crime is not enough to meet the burden from prior precedent, raising the evidentiary bar from “unwilling or unable to prevent” to “condoned the private actions and demonstrated a complete helplessness to protect the victims.”31 Attorney General Sessions decided on a legal question — private actor harm — not even before the BIA, placing into jeopardy every future asylum claim of persecution by a non-government actor. In December 2018, Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia struck down aspects of the Attorney General’s decision in A-B- that appeared in policy guidance memos. Judge Sullivan’s decision in this case, Grace v. Whitaker, rejected a general rule against domestic violence asylum claims and the elevated standard for private harm cases.32

FAMILY-BASED PSGs The second particular social group that remains highly contentious in courts and affected by the use of certification power is family-based PSGs. Decades-long jurisprudence from both the BIA and federal courts has accepted the family unit as a particular social group.33 In Matter of L-E-A- (L-E-A- I), the respondent was a Mexican citizen seeking asylum after receiving threats from members of the La Familia Michoacana cartel. The respondent’s father had been approached by cartel members seeking to sell drugs at his neighborhood store. After the father refused, the cartel members confronted the respondent numerous times and asked him to sell drugs at his father’s store on their behalf. Ultimately, the cartel members escalated in violence and tried to kidnap the respondent. The respondent filed an asylum claim based on “the particular social group comprised of his father’s family members.”34 The immigration judge denied asylum, citing the Mexican national’s failure to disprove that the cartel targeted him because they were interested in drug distribution, not in persecuting the family. The BIA dismissed this case upon appeal; however, it established the precedent that an asylum seeker’s immediate family can constitute a PSG.35 The BIA’s decision in L-E-A- I accompanies a myriad of similar rulings recognizing family ties as a basis for particular social groups.36 Two years later, Attorney General William Barr referred L-E-A- to himself for review and subsequently overturned decades of case law and standing precedent at both the BIA and circuit court levels. The Attorney General applied the three-part PSG test in his analysis (immutability, particularity, social distinction) and ultimately conceded that family-based ties were satisfactorily immutable. However, he argued that “almost every alien is a member of a family of some kind” and that many families were defined too vaguely to qualify as a particular group. Attorney General Barr’s analysis is faulty in that it suggests that a protected ground may be rejected if too widely encompassing. This reasoning is obviously erroneous, as nearly everyone belongs to a nationality, ethnicity, religion, political opinion, etc. Asylum law does

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not require an individual to merely show belonging to a protected ground (i.e. race, religion, political opinion, nationality, or PSG) but that the persecution he or she endured was on the basis of membership in that group. This is known as the nexus requirement and is frequently the reason that an asylum seeker may belong to, say, an ethnic minority but still be ineligible for asylum. The Attorney General’s use of certification power in family-based PSG cases mirrors its use in gender-based PSG cases. Both instances conflict with the landmark case Matter of Acosta, which explicitly names both gender and kinship ties as valid particular social groups. While precedents are frequently overturned in the judicial system, the ability for the Attorney General to unilaterally change the application and enforcement of law is alarming. Insofar as every other U.S. court of appeals presented with the issue has held that family can constitute a PSG, it is unconscionable that the legal opinion of a single individual can trump established judicial findings.37

IMPLICATIONS The certification power of the Attorney General exacerbates existing inequalities and legal barriers within the immigration system. Granting asylum relief is discretionary, meaning asylum seekers are highly vulnerable to the volitions of immigration officers and judges. In this section, I will discuss how the Attorney General’s self-referral power jeopardizes asylum seekers’ protections throughout their proceedings.

First, individuals who are in expedited removal proceedings — for example, if they have been arrested by Immigration and Customs Enforcement for entering the U.S. without inspection — can apply for defensive asylum.38 Because these asylum seekers are slated for deportation, they must pass a threshold credible fear screening with an asylum officer to qualify for a hearing before an immigration judge.39 To show a credible fear of persecution, an individual must prove a “significant possibility” that he or she can establish having been persecuted or having a well-founded fear of persecution on account of one of the five protected grounds. Invariably, the Attorney General’s decisions in cases he or she has certified will determine whether asylum seekers are even granted an opportunity to appear before a judge. For example, after Attorney General Sessions raised the private actor harm burden in Matter of A-B-, asylum officers concluded that the respondents, who had experienced severe sexual and physical violence in their home countries, did not meet the credible fear threshold. Using his certification power, the Attorney General was able to nullify the original design by Congress: an intentionally low credible fear threshold given the potentially disastrous consequences of deporting a meritorious applicant.40 In Grace v.

Whitaker, U.S. District Judge Sullivan agreed that the Attorney General’s new credible fear policies violated the Administrative Procedure Act and the Immigration and Nationality Act, writing, “And because it is the will of Congress — not the whims of the Executive — that determines the standard for expedited removal, the Court finds that those policies [in Matter of A-B- and related Policy Memorandum] are unlawful.”41

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Next, the Attorney General’s certification power has eroded the consistent enforcement of law and the autonomy of immigration judges across the country. It is widely known that the single most influential factor in the outcome of an asylum application is the court in which it is presented. In 2018, 70 percent of asylum cases heard in the San Francisco Immigration Court were successful, compared to a staggering 3.2 percent in the Atlanta Immigration Court.42 Scholars have argued that dicta presented by the Attorney General in self-referred cases may embolden judges already predisposed to rejecting asylum applications.43 Set in an existing culture of policing immigration judges’ behavior, including a laborious approval process for speaking engagements and policies against officiating naturalization ceremonies, certification power further demeans the autonomy of lower immigration courts.44 In fact, Attorney General Sessions’ self-certified decision in Matter of Castro-Tum denied immigration judges the authority to administratively close immigration proceedings, a power that is often employed by judges to manage the overwhelming backlog of cases.45 To give a sense of the magnitude of this backlog, there are over 1.2 million cases currently pending in immigration court.46 The precedential decisions enacted by the Attorney General via certification power contravene the principle of judicial independence outlined in the Immigration and Nationality Act, which states, “immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities…”47 Finally, self-referral power inflicts further damage on a perennial challenge for asylum seekers: representation. In fiscal year 2020, the percentage of unrepresented asylum seekers rose to 20 percent.48 Given that having legal representation can increase an individual’s chance of winning his or her asylum claim fivefold, the lack of access to legal advice and advocacy can literally determine if an applicant is granted asylum or removed to a country with potentially life-threatening circumstances.49 In the immigration system, legal representation is indeed a zero-sum game with finite resources. When legal practitioners are forced to file lawsuits against the government because of the Attorney General’s injudicious use of certification power, those already sparse resources are expended even more.

The notable uses of certification power in the Trump administration should not be disregarded as one-off instances, but rather as a warning of the threats that this ability poses to the neutrality of immigration courts. There has been a troubling trend of Attorneys General invoking certification power in the last months of their term as a final effort to cement their respective administration’s policy platforms.50 Certification power, referred to by a retired immigration judge as “a nuclear option” in the annals of history, simply runs counter to the staid principles born of the Constitution: an independent judiciary, due process protections, and checks and balances.51 To deny asylum seekers, who come ashore the United States fleeing violence, danger, and persecution, a fair shot at presenting their case for relief is antithetical to the very words inscribed on the Statue of Liberty: “give me your tired, your poor, your huddled masses yearning to breathe free.”

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Chaelin Jung is a sophomore at Brown University studying Economics and International & Public Affairs.

Notes 1. Mark A. Drummond, “‘Death Penalty Cases in a Traffic Court Setting’: Lessons from the Front Lines of Today’s Immigration Courts,” American Bar Association, last modified January 15, 2019, https://www.americanbar.org/groups/litigation/publications/litigation-news/practice-points/death-penalty-casestraffic-court-setting-lessons-front-lines-immigration-courts/.

2. “Record Number of Asylum Cases in FY 2019,” TRAC Reports, Inc. Syracuse University, last modified January 8, 2020, https://trac.syr.edu/immigration/reports/588/.

3. The United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva: UNHCR, 2019), 88.

4. Matter of Acosta, 19 I. & N. Dec. at 233 (B.I.A. 1985).

5. Matter of S-E-G-, 24 I. & N. Dec. at 579 (B.I.A. 2008).

6. Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014).

7. Ibid.

8. See Pirir-Boc v. Holder, 750 F.3d 1077 (2014).

9. “Board of Immigration Appeals,” Department of Justice, last modified December 7, 2020, https://www.justice.gov/eoir/board-of-immigration-appeals.

10. 8 CFR § 1003.1 (1958).

11. Melissa Heelan Stanzione, “ABA to Weigh Proposal on AG Powers Over Immigration Appeals,” American Bar Association, last modified August 5, 2019, https://news.bloomberglaw.com/us-law-week/aba-to-weighproposal-on-ag-powers-over-immigration-appeals.

12. Ibid.

13. Ibid.

14. Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019).

15. In re X-K-, 23 I&N Dec. 731 (BIA 2005).

16. Padilla v. ICE., Case No. 19-35565 (9th Cir. 2020).

17. "United States ex rel. Accardi v. Shaugnessy." Oyez. Accessed March 1, 2021.

18. Hon. Alberto R. Gonzales and Patrick Glen, “Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority,” Iowa Law Review 101, no. 841: 897.

19. Bijal Shah, “The Attorney General’s Disruptive Immigration Power,” Iowa Law Review 102, no. 129.

20. “In re A-B-,” Harvard Law Review 132, no. 803.

21. Ibid.

22. Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010).

23. Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996).

24. “Female genital mutilation,” World Health Organization, last modified February 3, 2020, https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation.

25. Matter of A-R-C-G- et al., 26 I&N Dec. 388 (BIA 2014).

26. Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).

27. Ibid.

28. Ibid.

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29. Ibid.

30. Immigration and Nationality Act 8 U.S.C. § 101(a)(42).

31. Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).

32. Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018).

33. See Matter of Acosta.

34. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017).

35. Ibid.

36. See Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir. 2014); Matter of M-E-V-G. 37. “Matter of L-E-A-,” Harvard Law Review 133, no. 1500 38. The opposite of defensive asylum is affirmative asylum, in which individuals with some sort of legal status (e.g. an F-1 student visa) file an application for asylum.

39. The constitutionality of expedited removal proceedings remains highly litigated, especially in regards to due process protections.

40. Jennifer Chang Newell, “Federal Judge Blocks Trump’s Policy Gutting Asylum for People Fleeing Domestic and Gang Violence,” American Civil Liberties Union, last modified December 19, 2018, https://www.aclu.org/blog/immigrants-rights/federal-judge-blocks-trumps-policy-gutting-asylum-people-fleeingdomestic-and 41. Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018).

42. Christine Natoli, “Family Fleeing: Family Membership as a Basis for Asylum,” University of Pennsylvania Journal of Law & Public Affairs 5, no. 3:4.

43. Ibid.

44. Cristian Farias, “The Trump Administration Is Gagging America’s Immigration Judges,” The Atlantic, last modified February 28, 2020, https://www.theatlantic.com/ideas/archive/2020/02/immigration-judges-firstamendment/607195/ 45. Matter of CASTRO-TUM, 27 I&N Dec. 271 (A.G. 2018).

46. “Immigration Court Backlog Tool,” TRAC Reports, Inc. Syracuse University, last modified January 2021, .https://trac.syr.edu/phptools/immigration/court_backlog/ 47. 8 CFR § 1003.10 (2007).

48. “Asylum Denial Rates Continue to Climb,” TRAC Reports, Inc. Syracuse University, last modified October 28, 2020, https://trac.syr.edu/immigration/reports/630/ 49. “Asylum Representation Rates Have Fallen Amid Rising Denial Rates,” TRAC Reports, Inc. Syracuse University, last modified November 28, 2017, https://trac.syr.edu/immigration/reports/491/ 50. Laura S. Trice, “Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions,” New York University Law Review 85, no. 1766.

51. Kim Bellware, “On immigration, Attorney General Barr is his own Supreme Court. Judges and lawyers say that’s a problem,” The Washington Post, last modified March 5, 2020, https://www.washingtonpost.com/immigration/2020/03/05/william-barr-certification-power/

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Bibliography 8 CFR § 1003.1 (1958).

8 CFR § 1003.10 (2007).

Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir. 2014).

“Asylum Denial Rates Continue to Climb.” TRAC Immigration. TRAC Reports Inc., Syracuse University. Accessed October 28, 2020. https://trac.syr.edu/immigration/reports/630/.

“Asylum Representation Rates Have Fallen Amid Rising Denial Rates.” TRAC Immigration.

TRAC Reports, Inc., Syracuse University, November 28, 2017. https://trac.syr.edu/immigration/reports/491/.

Bellware, Kim. “On Immigration, Attorney General Barr Is His Own Supreme Court. Judges and Lawyers Say That's a Problem.” The Washington Post. WP Company, March 5, 2020. https://www.washingtonpost.com/immigration/2020/03/05/william-barr-certification-power/.

“Board of Immigration Appeals.” The United States Department of Justice, December 7, 2020. https://www.justice.gov/eoir/board-of-immigration-appeals.

Drummond, Mark A. “‘Death Penalty Cases in a Traffic Court Setting’: Lessons from the Front Lines of Today's Immigration Courts.” American Bar Association, January 15, 2019. https://www.americanbar.org/groups/litigation/publications/litigation-news/practicepoints/death-penalty-cases-traffic-court-setting-lessons-front-lines-immigration-courts/.

Farias, Cristian. “The Trump Administration Is Gagging America's Immigration Judges.” The Atlantic. Atlantic Media Company, February 28, 2020. https://www.theatlantic.com/ideas/archive/2020/02/immigration-judges-firstamendment/607195/.

“Female Genital Mutilation.” World Health Organization. World Health Organization, February 3, 2020. https://www.who.int/news-room/fact-sheets.

Gonzalez, Alberto R, and Patrick Glen. “Advancing Executive Branch Immigration Policy Through the Attorney General’s Review AuthorityA.” Iowa Law Review 101, no. 841 (2016). https://ilr.law.uiowa.edu/print/volume-101-issue-3/advancing-executive-branch-immigrationpolicy-through-the-attorney-generals-review-authority/.

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Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018).

Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. Geneva: Office of the United Nations High Commissioner for Refugees, 2019.

Immigration and Nationality Act 8 U.S.C. § 101(a)(42).

“Immigration Court Backlog Tool.” TRAC Immigration. TRAC Reports, Inc., Syracuse University, January 2021. https://trac.syr.edu/phptools/immigration/court_backlog/.

“In Re A-B-.” Harvard Law Review 132, no. 803 (December 10, 2018). https://harvardlawreview.org/2018/12/in-re-a-b/.

In re X-K-, 23 I&N Dec. 731 (BIA 2005).

Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).

Matter of A-R-C-G- et al., 26 I&N Dec. 388 (BIA 2014).

Matter of Acosta, 19 I. & N. Dec. at 233 (B.I.A. 1985).

Matter of CASTRO-TUM, 27 I&N Dec. 271 (A.G. 2018).

Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996).

Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017).

“Matter of L-E-A-.” Harvard Law Review 133, no. 1500 (February 10, 2020). https://harvardlawreview.org/2020/02/matter-of-l-e-a/.

Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019).

Matter of S-E-G-, 24 I. & N. Dec. at 585 (B.I.A. 2008).

Natoli, Christine. “Family Fleeing: Family Membership as a Basis for Asylum.” University of Pennsylvania Journal of Law & Public Affairs 5, no. 3 (April 2020).

Newell, Jennifer Chang. “Federal Judge Blocks Trump's Policy Gutting Asylum for People Fleeing Domestic and Gang Violence.” American Civil Liberties Union. American Civil Liberties Union, September 24, 2019. https://www.aclu.org/blog/immigrants-rights/federaljudge-blocks-trumps-policy-gutting-asylum-people-fleeing-domestic-and.

Padilla v. ICE., Case No. 19-35565 (9th Cir. 2020).

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Pirir-Boc v. Holder, 750 F.3d 1077 (2014).

“Record Number of Asylum Cases in FY 2019.” TRAC Immigration. TRAC Reports, Inc., Syracuse University, January 8, 2020. https://trac.syr.edu/immigration/reports/588/.

Shah, Bijal. “The Attorney General’s Disruptive Immigration Power.” Iowa Law Review 129 (2017). https://ilr.law.uiowa.edu/online/volume-102/the-attorney-generals-disruptiveimmigration-power/.

Stanzione, Melissa Heelan. “ABA to Weigh Proposal on AG Powers Over Immigration Appeals.” Bloomberg Law, August 5, 2019. https://news.bloomberglaw.com/us-law-week/abato-weigh-proposal-on-ag-powers-over-immigration-appeals.

Trice, Laura S. “Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions.” New York University Law Review 85, no.

1766 (2010).

“United States Ex Rel. Accardi v. Shaugnessy.” Oyez, n.d. https://www.oyez.org/cases/19401955/347us260.

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The Economics Of Antitrust Is Google Violating the Consumer Welfare Standard?

Daniel Mathew

Abstract On Tuesday, October 20, 2020, the Department of Justice filed a civil antitrust lawsuit against Alphabet Inc.’s Google on allegations of using anti-competitive tactics to preserve a monopoly for its flagship search engine and digital advertising business. The antitrust lawsuit represents the latest move in a series of actions stretching out across several months that have undertaken to expose and attenuate the technology behemoth’s monopolistic grip on the consumer search and commercial advertising markets.

Drawing on relevant economic principles and the legal and regulatory framework defined by U.S. antitrust law, this article contends that potential net increases in consumer welfare— measured as the sum of the differences between what individual consumers are willing to pay and what they actually pay for goods and services— should be the litmus test for assessing the prudence and efficacy of pursuing antitrust litigation against Google and big technology companies more broadly.

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The United States Department of Justice and 20 state attorneys general filed a lawsuit against Microsoft Corporation in May 1998, on the grounds that it had unlawfully suppressed competition to safeguard its monopoly on software.1 Four months later, Stanford graduate students Larry Page and Sergey Brin launched Google, LLC out of a garage in a San Francisco suburb.2 The arguments advanced in the litigation against Microsoft, which in 2002 culminated in a settlement in which Microsoft agreed to alter some aspects of its commercial behavior, would parallel the complaints outlined by the Justice Department in its civil antitrust lawsuit against Alphabet Inc.’s Google two decades later. What are the defining statutes of American antitrust law, and in what ways does the Justice Department allege Google has breached them? Is Google still a monopoly if their search services are free and competing providers are just a click away? Is it ever acceptable for the government to allow a company to maintain monopoly power? This article aims to: address these and similar questions in light of the central and authoritative documents governing antitrust law in the U.S.; articulate the standard of consumer welfare as a litmus test for deciding whether it is in society’s best interest to sanction monopoly power in certain situations; and suggest how economics could help policymakers determine when the government should prevent— and when it should encourage— firms from amassing market power.

On Tuesday, October 20, the Department of Justice sued American multinational technology company Google, LLC for violating antitrust laws, claiming that the firm “maintains its status as gatekeeper to the internet through an unlawful web of exclusionary and interlocking business agreements that shut out competitors.”3 According to a statement released by Attorney General William Barr, Google’s use of its monopoly power to “lock up key pathways to search on mobile phones, browsers, and next generation devices” has stymied competition and harmed “users, advertisers, and small businesses in the form of fewer choices, reduced quality (including on metrics like privacy), higher advertising prices, and less innovation.”4 The complaint hinges on Section 2 of the Sherman Antitrust Act, which outlaws any attempts to “monopolize, or combine or conspire with any other person or persons.”5 With little to no legal precedent to inform the courts on how to adjudicate the case against Google, its outcome will prove immensely influential and relevant to later antitrust lawsuits against Big Tech companies. Future courts will inherit answers to the question of what steps they should take, if any, to curb the influence of tech giants which have the power to restrict privacy, regulate information flows, and even shape political discourse. However, before delving into the details of the case, an overview of U.S. antitrust law and the economics underlying its rationale are in order.

Antitrust law, sometimes referred to as competition policies outside the United States, are laws designed to promote competitive markets by restricting firms from behaviors that limit competition. From a policy standpoint, these laws exist to protect consumers from economic harms caused by monopolistic firms, which have the ability to restrict production of goods and services and thus artificially increase their market price.6 According to the Federal Trade Commission, antitrust laws are intended to “protect the process of competition for the

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benefit of consumers, making sure there are strong incentives for businesses to operate efficiently, keep prices down, and keep quality up.”7 These laws regulate and prevent monopolies— markets that are served by only one firm— but also apply to a range of other market structures characterized by imperfect competition. This includes oligopolies— markets defined by competition among a small number of firms— which may have steep and numerous barriers to entry, such as extreme scale economies, switching costs, product differentiation, and control of key inputs. The Federal Trade Commission, which shares the power to investigate antitrust claims with the Department of Justice, derives its authority from the Federal Trade Commission Act. Along with the Sherman Antitrust Act of 1890 and the Clayton Antitrust Act, these laws form the foundation of antitrust jurisprudence in the United States. The legislation leaves the courts with ample room for interpretation and aims to “protect trade and commerce against unlawful restraints and monopolies.”8 From an economic standpoint, antitrust law is justified by invoking the standard of consumer welfare and provides a metric for appraising the social desirability of pursuing antitrust action against monopolistic firms. Consumer welfare refers to the individual benefits derived from the consumption of goods and services.9 In practice, applied welfare economics uses the notion of consumer surplus— defined as the difference between the price consumers would be willing to pay for a good and the price they actually have to pay— to measure consumer welfare, and thus the terms are used interchangeably in this piece.

Industries such as monopolies or oligopolies inevitably end up with few competitors and substantial market power, raising the profit-maximizing markup price and decreasing the optimal output level. These firms’ ability to influence the market price of their products yields higher producer surplus levels and lower consumer surplus levels compared with competitive outcomes, and also leads to deadweight loss resulting from unrealized consumer surplus due to pricing above the marginal cost. The standard of consumer welfare, for its part, suggests that the government should only enforce antitrust laws when doing so is likely to increase net consumer surplus. Stated otherwise, intervention in the free market for antitrust purposes is only justified if such intervention would substantially bring down prices and increase consumption, decreasing deadweight loss and allowing consumers to recoup lost surplus.

The question, then, is not whether Google has accrued outsize market power; according to the complaint filed by the Justice Department, Google accounts for “nearly 90 percent of all general-search-engine queries in the United States, and almost 95 percent of queries on mobile devices.”10 (Compare this to the definition of a perfectly competitive firm, which is a firm whose relatively small size in the market constrains it to take prices as given and which thus caters to just a small fraction of the total market). With its flagship search engine preinstalled via exclusivity agreements on roughly 40% of U.S. smartphones, that Google has acquired monopolistic proportions goes without saying.11 However, whether or not dismembering Google or otherwise curbing its market power will lead to significant increases in consumer surplus is less clear.

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(Intended) Effects of Antitrust Regulation in a Typical Monopolistic Industry

The monopolist’s profit-maximizing quantity occurs where the marginal revenue curve intersects marginal cost (as shown on the left). Antitrust law, in theory, is enforced to produce an increase in consumer surplus by introducing competition into a market, thereby lowering the equilibrium price and increasing equilibrium quantity Price ($/unit)

Price ($/unit) Market Demand

Monopolist’s Profit-Maximizing Price

Market Demand

CS

PS

CS New Equilibrium Price

DWL

Marginal Cost

Monopolist’s Profit-Maximizing Quantity

Quantity

Marginal Revenue

PS

DWL

New Equilibrium Quantity

Marginal Cost

Quantity

Marginal Revenue

The Justice Department’s allegations of Google’s anti-competitive tactics can be summarized by the following complaint: Google’s entering into exclusivity agreements that require companies to pre-install its search engine as the default option on their devices and browsers has created a “continuous and self-reinforcing cycle of monopolization,” which has directly harmed consumers by “reducing the quality of search (including on dimensions such as privacy, data protection, and use of consumer data), lessening choice in search, and impeding innovation.”12 Google’s response, as expressed by chief legal officer Kent Walker, is that “[p]eople use Google because they choose to—not because they’re forced to or because they can’t find alternatives.”13 In other words, Google does not violate Section 2 of the Sherman Act since it does not preclude consumers from choosing another search service.

Moreover, Google counters the Justice Department’s claims by pointing to the fact that its search services are free, implying that antitrust litigation would be unlikely to lead to major increases in consumer surplus. “Google’s defense against critics of all stripes,” an article published by the Wall Street Journal observes, “has long been rooted in the fact that its services are largely offered to consumers at little or no cost, undercutting the traditional antitrust argument centered on potential price harms to those who use a product.”14 Critics counter that producer benefits should also be considered in the cost-benefit calculus of the

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consumer welfare metric, and that a lack of robust competition per se is sufficient grounds to authorize antitrust action15.

The Sherman Antitrust Act of 1890 Section 2, 15 U.S.C. § 2

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof; shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.

Unless the parties reach a settlement, the outcome of the case will likely not be known for several years, during which time the U.S. judicial system will be tasked with evaluating the Department of Justice’s claims of anti-competitive practices and a monopolistic grip over the search market against Google’s defense that the traditional antitrust arguments do not hold since the company offers its search services at no charge. Adjudicators should be wary of purported metrics of harm that rely on counterfactual assumptions about what might have been if Google did not enjoy dominance in the search market. They should consider the fact that despite its market power, its pricing strategy permits users to derive maximized consumer surplus while obtaining producer surplus for itself through its advertising services and cloud-related businesses, such as the Google Cloud Platform. At the same time, the courts should aim to deliver a verdict that promotes a competitive outcome that acknowledges the fact that the great strides in technological innovation achieved in the last half-century would not have been possible without a business ecosystem generally free from barriers to entry and other constraints of concentrated market structures. For all we know, a more competitive search market may be all that stands between us and the next Google.

Daniel Mathew is a junior from Southern California majoring in International Studies and Economics. Besides his role as the Editor-in-Chief of the Johns Hopkins Law Review and his leadership roles in such organizations as the JHU PILOT tutoring program, and Refugee Youth Project, Daniel is actively working on starting an immigration and naturalization clinic for green-card and visa holders trying to obtain citizenship.

Notes 1

"Microsoft Chronology." The Wall Street Journal. December 22, 2004. Accessed December 27, 2020. https://www.wsj.com/articles/SB110373497059307218?mod=article_inline.

2

Bellis, Mary. "Google: The Story Behind One of the Richest Companies in the World." ThoughtCo. Accessed December 27, 2020. https://www.thoughtco.com/who-invented-google-1991852.

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3

Tracy, Ryan. "Big Tech's Power Comes Under Fire at Congressional Antitrust Hearing." The Wall Street Journal. July 29, 2020. Accessed December 27, 2020. https://www.wsj.com/articles/tech-ceos-defendoperations-ahead-of-congressional-hearing-11596027626?mod=article_inline.

4

"Statement of the Attorney General on the Announcement Of Civil Antitrust Lawsuit Filed Against Google."

The United States Department of Justice. October 20, 2020. Accessed December 27, 2020. https://www.justice.gov/opa/pr/statement-attorney-general-announcement-civil-antitrust-lawsuit-filed-againstgoogle.

5 "Transcript of Sherman Anti-Trust Act (1890)." Our Documents - Transcript of Sherman Anti-Trust Act (1890). Accessed December 27, 2020. https://www.ourdocuments.gov/doc.php?flash=false&doc=51&page=transcript.

6 Chen, James. "Understanding Antitrust Laws." Investopedia. September 16, 2020. Accessed December 27, 2020. https://www.investopedia.com/ask/answers/09/antitrust-law.asp.

7 "Federal Trade Commission Act." Federal Trade Commission. December 14, 2018. Accessed December 27, 2020. https://www.ftc.gov/enforcement/statutes/federal-trade-commission-act.

8 See note 5 above.

9

Directorate, OECD Statistics. OECD Glossary of Statistical Terms - Consumer Welfare Definition. Accessed December 27, 2020. https://stats.oecd.org/glossary/detail.asp?ID=3177.

10 "Justice Department Sues Monopolist Google For Violating Antitrust Laws." The United States Department of Justice. October 21, 2020. Accessed December 27, 2020. https://www.justice.gov/opa/pr/justice-departmentsues-monopolist-google-violating-antitrust-laws.

11 Kendall, Brent, and Rob Copeland. "Justice Department Hits Google With Antitrust Lawsuit." The Wall Street Journal. October 21, 2020. Accessed December 27, 2020. https://www.wsj.com/articles/justice-department-tofile-long-awaited-antitrust-suit-against-google-11603195203?mod=searchresults_pos14&page=1.

12 Tracy, Ryan. "After Big Tech Hearing, Congress Takes Aim but From Different Directions." The Wall Street Journal. July 30, 2020. Accessed December 27, 2020. https://www.wsj.com/articles/after-big-tech-hearingcongress-takes-aim-but-from-different-directions-11596149053?mod=searchresults_pos14&page=2.

13 Board, The Editorial. "Opinion | Google in the Antitrust Dock." The Wall Street Journal. October 20, 2020.

Accessed December 27, 2020. https://www.wsj.com/articles/google-in-the-antitrust-dock11603236357?cx_testId=3&cx_testVariant=cx_4&cx_artPos=4#cxrecs_s.

14 See note 11 above.

15

"Introductory Remarks of Deputy Attorney General at Announcement of Civil Antitrust Lawsuit Filed Against Google." The United States Department of Justice. October 20, 2020. Accessed December 27, 2020. https://www.justice.gov/opa/speech/introductory-remarks-deputy-attorney-general-announcement-civilantitrust-lawsuit-filed.

Bibliography Bellis, Mary. "Google: The Story Behind One of the Richest Companies in the World." ThoughtCo. Accessed December 27, 2020. https://www.thoughtco.com/who-invented-google-1991852.

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Board, The Editorial. "Opinion | Google in the Antitrust Dock." The Wall Street Journal. October 20, 2020.

Accessed December 27, 2020. https://www.wsj.com/articles/google-in-the-antitrust-dock11603236357?cx_testId=3&cx_testVariant=cx_4&cx_artPos=4#cxrecs_s.

Chen, James. "Understanding Antitrust Laws." Investopedia. September 16, 2020. Accessed December 27, 2020. https://www.investopedia.com/ask/answers/09/antitrust-law.asp.

Directorate, OECD Statistics. OECD Glossary of Statistical Terms - Consumer Welfare Definition. Accessed December 27, 2020. https://stats.oecd.org/glossary/detail.asp?ID=3177.

"Federal Trade Commission Act." Federal Trade Commission. December 14, 2018. Accessed December 27, 2020. https://www.ftc.gov/enforcement/statutes/federal-trade-commission-act.

"Introductory Remarks of Deputy Attorney General at Announcement of Civil Antitrust Lawsuit Filed Against Google." The United States Department of Justice. October 20, 2020. Accessed December 27, 2020. https://www.justice.gov/opa/speech/introductory-remarks-deputy-attorney-general-announcement-civilantitrust-lawsuit-filed.

"Justice Department Sues Monopolist Google For Violating Antitrust Laws." The United States Department of Justice. October 21, 2020. Accessed December 27, 2020. https://www.justice.gov/opa/pr/justicedepartment-sues-monopolist-google-violating-antitrust-laws.

Kendall, Brent, and Rob Copeland. "Justice Department Hits Google With Antitrust Lawsuit." The Wall Street Journal. October 21, 2020. Accessed December 27, 2020. https://www.wsj.com/articles/justice-departmentto-file-long-awaited-antitrust-suit-against-google-11603195203?mod=searchresults_pos14&page=1.

"Microsoft Chronology." The Wall Street Journal. December 22, 2004. Accessed December 27, 2020. https://www.wsj.com/articles/SB110373497059307218?mod=article_inline.

"Statement of the Attorney General on the Announcement Of Civil Antitrust Lawsuit Filed Against Google." The United States Department of Justice. October 20, 2020. Accessed December 27, 2020. https://www.justice.gov/opa/pr/statement-attorney-general-announcement-civil-antitrust-lawsuit-filedagainst-google.

Tracy, Ryan. "After Big Tech Hearing, Congress Takes Aim but From Different Directions." The Wall Street Journal. July 30, 2020. Accessed December 27, 2020. https://www.wsj.com/articles/after-big-tech-hearingcongress-takes-aim-but-from-different-directions-11596149053?mod=searchresults_pos14&page=2.

Tracy, Ryan. "Big Tech's Power Comes Under Fire at Congressional Antitrust Hearing." The Wall Street Journal.

July 29, 2020. Accessed December 27, 2020. https://www.wsj.com/articles/tech-ceos-defend-operationsahead-of-congressional-hearing-11596027626?mod=article_inline.

"Transcript of Sherman Anti-Trust Act (1890)." Our Documents - Transcript of Sherman Anti-Trust Act (1890).

Accessed December 27, 2020. https://www.ourdocuments.gov/doc.php?flash=false&doc=51&page=transcript.

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American Empire Social Darwinism and the Insular Cases Justin Roberts

Abstract At the height of the age of imperialism, the U.S. joined other global powers by acquiring colonial territories, starting with those gained in the wake of the Spanish-American War. In these newly gained lands, issues relating to their methods of governance and their place in the American constitutional system quickly arose, culminating in several Supreme Court battles. The resulting Insular Cases laid the groundwork for governance and individual rights in the US territories, remaining good law to this day. However, during the Gilded Age and Progressive Era in America—the period in which these cases were decided—Social Darwinist thought pervaded American society. These racist beliefs spread throughout the U.S., using evolutionary science to justify and defend socioeconomic inequalities. Thus, the Supreme Court justices, as products of their society, were heavily influenced by these ideas, guiding their rationale in the Insular Cases. The decisions from the early 20th century continue to create legal problems for those living in the territories to this day, resulting in many dire consequences relating to civil rights, criminal justice, and public health.

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Introduction “Give me liberty or give me death!”1 These were the words of Patrick Henry, exclaimed on the steps of St. John’s Church in Richmond, Virginia, on March 23, 1775.2 Henry, a skilled orator and politician, espoused the revolutionary fervor that gripped many of the American colonists’ minds.3 This sentiment culminated in the Declaration of Independence, issued on July 4th, 1776.4 It proclaimed that “all men are created equal” and “are endowed... with certain unalienable rights... [and] among these are Life, Liberty and the pursuit of Happiness.”5 Thus, these “unalienable rights” have become enshrined in the American governmental system, taking on a foundational form in American ideals, codified into law by the Constitution.

The US Constitution explicitly states that “secur[ing] the Blessings of Liberty to ourselves and our Posterity”6 is one of its primary goals. The Constitution sought to create a government that could safeguard and uphold these rights as a matter of guarantee, being the supreme law of the land in the United States of America. However, a racially intolerant and imperialist mindset led the Supreme Court to decide that the inhabitants of American colonial holdings, gained after the Spanish-American War, were not fit to be granted the blessings of life and liberty afforded by the Constitution;7 They were to be governed by an unaccountable Congress—their most sacred rights as Americans granted or destroyed by the whims of a faroff legislature.8

The Spanish-American War Beginning in February of 1895, Cubans, fueled by nationalist sentiment, revolted against their Spanish overlords.9 A conflict such as this so close to home was bound to garner much attention from the United States. Soon, atrocities from the revolt became the forefront of the American consciousness due to the reporting of newspapers.10 The Spanish hoped to bring a swift end to the rebellion in order to stave off the possibility of US intervention, especially in the face of mounting public pressure for US governmental action.11 Thenpresident William McKinley was staunchly opposed to any intervention in Cuba’s war for independence; however, when the U.S.S. Maine blew up in Havana harbor, “the American public was infected with war fever,” and McKinley could do little to oppose the mass outcry.12 The United States formally declared war on Spain on April 21st, 1898, under the slogan “Remember the Maine, to hell with Spain!”13 Despite immense public confidence,14 Spanish higher-ups and military personnel were keenly aware that they could not win a war against the Americans. Still, they persisted in order to defend the last remnants of the Spanish Empire and Spanish honor.15 The American forces did exceedingly well against the Spanish by fighting on two fronts: one to the South in Cuba and Puerto Rico and one to the West in Guam and the Philippines.16 After a series of catastrophic defeats, the Spanish sued for peace. In the resulting Treaty of Paris, signed on

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December 10th, 1898, the United States gained Guam, Puerto Rico, and the Philippines, and Cuba became an American protectorate.17 The short timeframe of the war and American territorial gains led Secretary of State John Hay to describe the Spanish-American War as “A splendid little war.”18 America was now an empire, a characteristic of all major Western powers of the era. Yet, questions remained as to the nature of governance in these new territories, resulting in significant constitutional controversies falling to the Supreme Court to resolve.

Social Darwinism and “The White Man’s Burden” Before examining the legal proceedings involving these recently acquired territories, it is essential that we first understand the societal context in which these decisions were made so that we may better understand the court's thinking and rationale. In 1859, Charles Darwin published On the Origin of Species, shifting people’s views of humanity’s position in the natural world.19 Darwin’s work explained that natural selection was the driving force behind evolution, providing evidence from his meticulous research of finches in the Galapagos Islands.20 His work proved to be of great interest not only to scientific circles but also to the public at large.21 As Darwin’s work began to permeate society, many began to apply his theories of natural selection and evolution to socioeconomic conditions in the form of what became known as Social Darwinism. These Social Darwinists believed it was irrational to try to direct natural processes. Because they felt social ills, such as poverty, resulted from the social “unfitness” of the downtrodden, they saw it as unconstitutionally unreasonable for the government to intervene in socioeconomic inequalities with regulations and laws.

Additionally, according to researchers at Rutgers University, “Social Darwinists believe that humans, like plants and animals, are engaged in a ruthless genetic competition such that the ascendancy of ‘the fittest’ benefits the whole species... to justify laissez-faire capitalism, wealthy White Anglo-Saxon Protestant (WASP) men were deemed biologically superior to the lower classes, who were blamed for a culture of dependency.”22 Based on their metaanalysis of American political opinions, they found that those with a Social Darwinist perspective were vastly more likely to “defend a system of racial inequalities... [and] patriarchy.”23 This ideology pervaded American political thought throughout the Gilded Age and Progressive Era and made any notion of expanding civil rights of minorities untenable as these minorities were seen as biologically inferior and predestined to the subserviency of white men. As much as any justice may claim to be completely objective, one’s perspective and society will skew what they believe to be empirical fact. As such, this Social Darwinist ideology would have poisoned the Supreme Court’s views of this period.

This ideology was even further cemented into American society by “scientists” whose racist views seeped into empirical reality, furthering the idea of racial inferiority in particular.

For example, infamous anthropologist Samuel George Morton built off the pseudoscience of

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phrenology in examining human skulls to present “a quantitative argument not only for racial hierarchies of intelligence but also for the separate origins of races, elevating racial differences among humans to differences among species.”24 So-called race science was prevalent in anthropology’s early days, providing a scientific backbone for racist views and policies. This development in scientific thought led many to believe that the goals of racially inclusive regulations, like the Civil War Amendments, were against the will of nature and, thus, should be abandoned. This type of culture would especially be hostile to the widespread expansion of civil rights for those who weren’t white men.

These beliefs were espoused in the Supreme Court of the United States. In his dissent in Moore v. Dempsey (1923), Justice McReynolds called African-Americans a “‘race of children.’”25 This case arose when African-American civil rights organizers were attacked by a white mob, resulting in the deaths of many Black and a few white men.26 This attack caused Frank Moore, a Black man, to be tried and convicted of murdering a member of the violent white mob; however, during the trial, an angry group of white Southerners surrounded the courthouse, and law enforcement had witnesses tortured before they testified.27 In his dissent, McReynolds claimed that the case “show[ed] no irregularity.”28 The racial animosity found in this dissent highlights Social Darwinist views of white supremacy. Thankfully, the court overturned Moore’s conviction, but the foul language used by the dissenting justices demonstrates the Social Darwinist ideology present on the court.

This Social Darwinist thought gave way to the idea of the “White Man’s Burden.” Many ardent imperialists believed that it was the white man’s duty to civilize the “savage” peoples of the world through imperial rule.29 This term was coined by the British imperial poet Rudyard Kipling who wrote a poem of the same name in response to America’s conquest of the Philippines in the Spanish-American war.30 The idea that native peoples of nonwhite areas are savage or uncivilized is nearing the zenith of racial animosity. This further provided justification for imperial rule in an era where most global powers held imperial territories— such as Guam, Puerto Rico, and the Philippines in the U.S.—and guided many people’s world view during the Gilded Age and Progressive Era in America, including those sitting on the Supreme Court.

The Insular Cases With the aforementioned societal context in mind, we will now discuss the notable court cases revolving around the American Empire. The Insular Cases are a set of about 35 cases decided between 1901 and 1922 that created the groundwork for governance in the American colonial holdings.31 One of the most important of these Insular Cases is Downes v.

Bidwell (1901). The case arose from a controversy over congressionally imposed duties on imports from Puerto Rico—the Constitution mandates that “all Duties, Imposts and Excises... be uniform throughout the United States.”32 Writing for the five-justice majority, Justice Henry Billings Brown wrote that “[t]he Constitution was created by the people of the United States,

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as a union of states, to be governed solely by representatives of the states[—i]n short, the Constitution deals with states, their people, and their representatives.”33 Using this logic as a template, the majority reasoned that the federal Constitution does not apply to American territories unless otherwise mandated by Congress.34 This remains the current status of the American territories to this day. With the court bound by stare decisis, the precedent set by Downes v. Bidwell makes it improbable for residents of these territories to gain all the rights and responsibilities granted by the Constitution through the court system. They are residents of the United States but are not subject to the Constitution of the United States.

With a thorough reading of Brown’s opinion, it becomes evident that a Social Darwinist mindset heavily influenced his reasoning. He wrote that the territories were “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible.”35 The Justice feared that if the Constitution applied to the territories automatically, “[their inhabitants’] children thereafter born, whether savage or civilized... [would be] entitled to all the rights, privileges and immunities of citizens.”36 The racist substance of his opinion resembles the Social Darwinist view that some races are somehow less “fit” than whites and should, therefore, be inferior on the social hierarchy. The majority believed territorial inhabitants were unable to understand “Anglo-Saxon principles” because these “savage” people differ from whites in “modes of thought.” However, he also stated that this condition should only be “for a time”—presumably until the Americans could civilize the savages, as per the “White Man’s Burden.” Yet, nearly 120 years after the Court handed down Downes, the territories’ status constitutionally remains unchanged.

Now that we’ve discussed the territories’ constitutional status, it is necessary to discuss the case that became the territories’ legal status framework: Balzac v. Porto Rico (1922). The case arose when Jesus Balzac, an editor of a local paper in Puerto Rico, was charged with and convicted of “criminal libel for publishing a series of articles critical of the territorial governor.”37 Balzac argued that his actions were protected under the 1st Amendment and that he had a 6th Amendment right to a trial by jury, which he was denied.38 In his opinion, Chief Justice William Howard Taft stated “that neither the Philippines nor Porto Rico [sic] was territory which had been incorporated in the Union or become part of the United States,” and, therefore, the Constitution remained inoperative, as per Downes.39 This is the first case in which the Supreme Court formally adopted the incorporated/unincorporated system—incorporated territories were ones in which the full force of the Constitution was in effect. The majority further affirmed the disparaging doctrine adopted in Downes, leaving the territories’ fate in the hands of congressional legislation—in a state of constitutional limbo until Congress decided to incorporate them into the U.S. The cases of Downes v. Bidwell (1901) and Balzac v. Porto Rico (1922) have had long-lasting effects. Of the five major and habited US territories—Guam, Puerto Rico, the Northern Mariana Islands, the U.S. Virgin Island, and American Samoa—all are unincorporated.40 The Constitution only applies to these islands in so far as Congress has

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legislated. The long-abandoned idea of the “White Man’s Burden” continues to influence American governance, infecting our legal systems further with the plagues of institutionalized racism and discrimination.

Contemporary Consequences As can probably be surmised, the Insular Cases have led to many difficulties for modern-day American territories. While these consequences may be numerous, this article will only cover three major contemporary issues: citizenship in American Samoa, rights of detained persons in Guantanamo Bay, and problems relating to COVID-19 and relief efforts.

I. American Samoan Citizenship The 14th Amendment states that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”41 Yet, as discussed above, the Constitution does not apply to the American island territories. However, by a congressional act, all those born in the United States’ inhabited area, including the territories, are American citizens—with one major exception: American Samoa.42 All those born in American Samoa are given the odd status of “non-citizen nationals.”43 Under this distinction, American Samoans are freely able to live and travel throughout the United States; however, they cannot vote; serve on juries; work in many public sector jobs, including running for Congress; petition the government for immigrant status on behalf of family members; and must navigate the cumbersome naturalization process to gain American citizenship—the same process as any immigrant born abroad would have to do, even though American Samoans were born in America.44 These facts are not only horrible on their own but are made worse by the fact that the American Samoan Army Recruiting Station ranked #1 in the recruitment of new service members for three consecutive years.45 American Samoans continuously fight and die for the United States, yet they are relegated to a second-class status as a matter of law due to their American national designation. The Insular Cases and inaction on the part of Congress deny American Samoans US citizenship to which they are justly entitled, and it is incumbent upon this nation to assure that no American—or anyone else—is given an inferior status to others.

II. Guantanamo Bay Acquired by lease from the government of Cuba after the Spanish-American War, the United States has “‘ultimate sovereignty’” over the lands that hold the Guantanamo Bay Naval Base (GTMO) “‘[s]o long as the United States of America shall not abandon the area’” and continues to pay its rent, according to the legally binding agreements surrounding the land transfer.46 Currently used to hold “the worst of the worst,”47 according to former Press Secretary Ari Fleischer, GTMO confines those who the U.S. suspects of terrorism for an

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indeterminant amount of time.48 While interred in GTMO, many detainees routinely face harsh interrogation and torture in an attempt to glean useful information for the United States’s War on Terror.49 Aside from the apparent humanitarian concern and moral depravity of such tactics, the U.S. has a poor track record in detaining “the worst of the worst” in the facility. For example, in 2002, “[o]f the 212 Afghans at the base, almost half were, in the assessments of the US forces, either entirely innocent, mere Taliban conscripts, or had been transferred to Guantánamo with no reason for doing so on file.”50 Not only do US forces use illegal and disgusting interrogation techniques on these prisoners to gain information but also many of the tortured detainees are “entirely innocent” or do not hold any intelligence of value—all while being held without habeas corpus rights, in general.

While many criminal justice reform advocates may desire constitutional protections to extend to GTMO prisoners, the Insular Cases appear to create a roadblock to any meaningful path forward. In Rasul v. Bush (2004), the Supreme Court held that detainees at GTMO may petition federal courts for a writ of habeas corpus, thereby providing some legal recourse to be released from unlawfully prolonged detentions.51 However, while a win for the detainees, Justice Kennedy’s concurrence leaves the door open for catastrophe; according to the former justice, “Guantanamo Bay is in every practical respect a United States territory.”52 This sentence may seem mundane on its surface, but, in light of the Insular Cases, if Guantanamo Bay is considered a US territory, the Constitution and, therefore, its criminal justice protections do not apply, leaving these detainees confined by the will of US naval forces, of the President, and of Congress. As such, automatic constitutional protections for prisoners, like habeas corpus, are constrained by the Insular framework, laid out over a century ago.

III. COVID-19 Relief Our long-standing history of relegating the US territories to the sidelines has had disastrous consequences for the islands, especially in light of the current pandemic. When Congress passed the CARES Act, it allocated $30 billion for assistance to state and local governments.53 Of this funding, only $55,070,127 went to all the US territories combined with the lion’s share going to Puerto Rico at $41,889,822.54 Although Puerto Rico on its own has a greater population than 21 states,55 the three smallest states in the Union—Wyoming, Vermont, and Alaska—have received $66,393,163, $54,457,870, and $71,248,123 in CARES Act funding, respectively.56 This discrepancy is not, as should be obvious, based on the relative populations of the territories versus the states but instead based on the U.S.’s constant neglect of her nonstate holdings.

However, it is not only the CARES Act that gives disproportionate funding to the states; “[u]nequal treatment in federal programs like Medicaid has left these remote islands with fragile health care systems.”57 Additionally, these islands have been “[u]nderfunded and weakened by natural disasters — hurricanes Irma and Maria, typhoons Mangkhut and Yutu and the Puerto Rico earthquakes... [meaning] the U.S. territories could be quickly overpowered by the coronavirus.”58 These statistics are not reassuring, especially because

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the COVID-19 pandemic has been worse in the U.S. than anywhere else in the world. In all crises, it seems as though the US territories are an afterthought, and the cause of this is rooted in our legal philosophy surrounding these islands. We treat these holdings in most cases as we treat them constitutionally: relegated to an inferior status.

Conclusion While the U.S. has made significant progress on civil rights since the Insular Cases, we have not come far enough. The echoes of our nation’s racist past continue to be a blight on our society, creating the massive social and economic inequalities that we must grapple with—brought to the forefront of American political thought recently due to the Black Lives Matter Movement. The peoples of the United States of America should not be given less rights depending on their physical location within the country. The court even designated much of the problematic laws relating to the territories as temporary. It has been 120 years.

It’s time for the Constitution to apply to the whole of the United States. We cannot assure equal rights for all if the supreme law of the land in the U.S. is inoperative for millions of Americans.

From civil rights to criminal justice reform to public health policy, the US territories have largely been ignored since their acquisition. The events of the past year have proven just how poorly the U.S. performs in these areas even in the states—the territories have even further to go to adequately respond to these issues. The 13 Colonies broke away from Great Britain to escape governmental abuses—to escape a government that was unaccountable to the Americans and that continuously mistreated them. Today, it is now the U.S. federal government that is unaccountable to millions of its people, ignoring their needs and consistently leaving them as an afterthought. This is antithetical to the American ethos, and something must change.

Justin Roberts is a sophomore at the University of Pennsylvania majoring in Political Science with a concentration in American Politics and a minor in Economics.

Notes “‘Give Me Liberty Or Give Me Death!’,” Colonial Williamsburg (Colonial Williamsburg Organization, March 3, 2020), https://www.colonialwilliamsburg.org/learn/deep-dives/give-me-liberty-or-give-me-death/.

2 Ibid.

3 History.com Editors, “Patrick Henry,” History.com (A&E Television Networks, November 9, 2009), https://www.history.com/topics/american-revolution/patrick-henry.

1

88

Thomas Jefferson et al., “Declaration of Independence: A Transcription,” National Archives and Records Administration (National Archives and Records Administration), accessed January 21, 2021, https://www.archives.gov/founding-docs/declaration-transcript.

5 Ibid.

6 Madison, James, Thomas Jefferson, Thomas Paine, and John Adams. “The Constitution of the United States: A Transcription.” National Archives and Records Administration. National Archives and Records Administration.

Accessed January 21, 2021. https://www.archives.gov/founding-docs/constitution-transcript.

7 Downes v. Bidwell, 182 U.S. 244, 287 (1901) 8 Ibid., 286 9 EDITED BRAD K. BERNER - FOREWORD KALMAN, SPANISH-AMERICAN WAR: a Documentary History with Commentaries (Place of publication not identified: FAIRLEIGH DICKINSON UP, 2016), 6.

10 Ibid., xi.

11 Ibid., 28.

12 Ibid.

13 The Spanish American War: Explained (Short Animated Documentary), YouTube (Google LLC, 2019), https://www.youtube.com/watch?v=CaOKfu7ZK7I. 14 See note 9 above, 28.

15 See note 13 above.

16 Ibid.

17 Ibid.

18 Ibid.

19 J. David Archibald, Charles Darwin: a Reference Guide to His Life and Works (Lanham, MD: Rowman & Littlefield, 2019), xxxvii.

20 Ibid., xxxvii-xxxix.

21 Ibid., xxxvii.

22 Lina H. Saud and Laurie A. Rudman, “Justifying Social Inequalities: The Role of Social Darwinism - Laurie A. Rudman, Lina H. Saud, 2020,” SAGE Journals, January 6, 2020, https://journals.sagepub.com/doi/abs/10.1177/0146167219896924.

23 Ibid.

24 Paul Wolff Mitchell, “The Fault in His Seeds: Lost Notes to the Case of Bias in Samuel George Morton's Cranial Race Science,” PLoS biology (Public Library of Science, October 4, 2018), http://www.ncbi.nlm.nih.gov/pubmed/30286069.

25 Moore v. Dempsey, 261 U.S. 86, 99 (1923).

26 Ibid., 87-88.

27 Ibid., 89.

28 Ibid., 96.

29 Rudyard Kipling, “The White Man's Burden,” Internet Modern History Sourcebook (Fordham University, August 1997), http://www1.udel.edu/History-old/figal/Hist104/assets/pdf/readings/11whitemanburden.pdf.

30 Ibid.

31 Gordon Silverstein, “One Constitution, Indivisible? The Insular Cases and American Constitutional Interpretation,” PS: Political Science & Politics 50, no. 02 (March 31, 2017): pp. 520-524, https://doi.org/10.1017/s1049096516003115.

32 U.S. Const. art. I, sec. 8.

33 See note 7 above, 251.

34 Ibid., 287.

35 Ibid.

36 Ibid., 279.

37 Howard Gillman, Mark A. Graber, and Keith E. Whittington, American Constitutionalism, 2nd, vol. 2 (New York, NY: Oxford University Press, 2017), 294.

4

89

Ibid.

38

Balzac v. Porto Rico, 258 U.S. 298, 305 (1922) “Introduction,” Harvard Law Review 130, no. 6 (April 10, 2017): p. 1617,

39 40

https://doi.org/https://harvardlawreview.org/2017/04/us-territories-introduction/.

41 U.S. Const. Amend XIV, sec. 1.

42 Gabriela Meléndez Olivera and Adriel I. Cepeda Derieux, “‘Nationals’ but Not ‘Citizens’: How the U.S. Denies Citizenship to American Samoans,” American Civil Liberties Union (ACLU News & Commentary, May 22, 2020), https://www.aclu.org/news/voting-rights/nationals-but-not-citizens-how-the-u-s-denies-citizenship-toamerican-samoans/.

43 Ibid.

44 Ibid.

45 Blue Chen-Fruean, “American Samoa Army Recruiting Station Again Ranked #1 Worldwide,” American Samoa Army Recruiting Station Again Ranked #1 Worldwide | Pacific Islands Report (Pacific Islands Report, July 17, 2017), http://www.pireport.org/articles/2017/07/17/american-samoa-army-recruiting-station-againranked-1-worldwide.

46 Fiona De Londras, “Guantánamo Bay: Towards Legality?,” Modern Law Review 71, no. 1 (January 7, 2008): pp. 36-58, https://doi-org.proxy.library.upenn.edu/10.1111/j.1468-2230.2008.00680.x.

47 Ari Fleischer (Washington, DC: CSPAN, 2002).

48 John Oliver, “Guantánamo: Last Week Tonight with John Oliver (HBO),” YouTube (Home Box Office and Google, LLC, October 10, 2016), https://www.youtube.com/watch?v=KEbFtMgGhPY. 49 Carol Rosenberg, “What the C.I.A.’s Torture Program Looked Like to the Tortured,” The New York Times, December 4, 2019, https://www.nytimes.com/2019/12/04/us/politics/cia-torture-drawings.html.

50 David Leigh and James Ball, “Guantánamo Bay Files: Caught in the Wrong Place at the Wrong Time,” The Guardian (Guardian News and Media, April 25, 2011), https://www.theguardian.com/world/2011/apr/25/guantanamo-files-wrong-place-time.

51 Rasul v. Bush, 542 U.S. 466 (2004).

52 Ibid.

53 “State-by-State Breakdown: Delivery of Initial $30 Billion of CARES Act Public Health and Social Services Emergency Fund,” hhs.gov (Department of Health and Human Services), accessed February 7, 2021, https://www.hhs.gov/sites/default/files/state-by-state-breakdown-delivery-of-initial-30-billion-cares-act.pdf.

54 Ibid.

55 Ryan Struyk, “More Americans Live in Puerto Rico than 21 States (and Other Things to Know),” CNN Politics (CNN News, September 26, 2017), https://www.cnn.com/2017/09/26/politics/puerto-rico-state-hurricanemaria/index.html.

56 See note 53 above.

57 Gretchen Sierra-Zorita, “The Incomplete Coronavirus Map - US Territories Left Behind,” The Hill (The Hill, April 16, 2020), https://thehill.com/opinion/healthcare/492799-the-incomplete-coronavirus-map-us-coloniesleft-behind.

58 Ibid.

59 See note 35 above.

Bibliography Archibald, J. David. Charles Darwin: a Reference Guide to His Life and Works. Lanham, MD: Rowman & Littlefield, 2019.

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Chen-Fruean, Blue. “American Samoa Army Recruiting Station Again Ranked #1 Worldwide.” American Samoa Army Recruiting Station Again Ranked #1 Worldwide | Pacific Islands Report. Pacific Islands Report, July 17, 2017. http://www.pireport.org/articles/2017/07/17/american-samoa-army-recruitingstation-again-ranked-1-worldwide.

De Londras, Fiona. “Guantánamo Bay: Towards Legality?” Modern Law Review 71, no. 1 (January 7, 2008): 36– 58. https://doi-org.proxy.library.upenn.edu/10.1111/j.1468-2230.2008.00680.x.

EDITED BRAD K. BERNER - FOREWORD KALMAN. SPANISH-AMERICAN WAR: a Documentary History with Commentaries. Place of publication not identified: FAIRLEIGH DICKINSON UP, 2016.

Fleischer, Ari. White House Press Briefing. Other. Washington, DC: CSPAN, 2002.

Gillman, Howard, Mark A. Graber, and Keith E. Whittington. American Constitutionalism. 1. Seconded. Vol. 2. 2 vols. New York, NY: Oxford University Press, 2017. “‘Give Me Liberty Or Give Me Death!".” Colonial Williamsburg. Colonial Williamsburg Organization, March 3, 2020. https://www.colonialwilliamsburg.org/learn/deep-dives/give-me-liberty-or-give-me-death/.

History.com Editors. “Patrick Henry.” History.com. A&E Television Networks, November 9, 2009. https://www.history.com/topics/american-revolution/patrick-henry.

“Introduction.” Harvard Law Review 130, no. 6 (April 10, 2017): 1617. https://doi.org/https://harvardlawreview.org/2017/04/us-territories-introduction/.

Jefferson, Thomas, Benjamin Franklin, John Adams, Robert R. Livingston, and Roger Sherman. “Declaration of Independence: A Transcription.” National Archives and Records Administration. National Archives and Records Administration. Accessed January 21, 2021. https://www.archives.gov/foundingdocs/declaration-transcript.

Kipling, Rudyard. “The White Man's Burden.” Internet Modern History Sourcebook. Fordham University, August 1997. http://www1.udel.edu/History-old/figal/Hist104/assets/pdf/readings/11whitemanburden.pdf.

Madison, James, Thomas Jefferson, Thomas Paine, and John Adams. “The Constitution of the United States: A Transcription.” National Archives and Records Administration. National Archives and Records Administration. Accessed January 21, 2021. https://www.archives.gov/founding-docs/constitutiontranscript.

Mitchell, Paul Wolff. “The Fault in His Seeds: Lost Notes to the Case of Bias in Samuel George Morton's Cranial Race Science.” PLoS biology. Public Library of Science, October 4, 2018. http://www.ncbi.nlm.nih.gov/pubmed/30286069.

Oliver, John. “Guantánamo: Last Week Tonight with John Oliver (HBO).” YouTube. Home Box Office and Google, LLC, October 10, 2016. https://www.youtube.com/watch?v=KEbFtMgGhPY. Olivera, Gabriela Meléndez, and Adriel I. Cepeda Derieux. “‘Nationals’ but Not ‘Citizens’: How the U.S. Denies Citizenship to American Samoans.” American Civil Liberties Union. ACLU News & Commentary, May 22, 2020. https://www.aclu.org/news/voting-rights/nationals-but-not-citizens-how-the-u-s-denies-citizenshipto-american-samoans/.

Rosenberg, Carol. “What the C.I.A.’s Torture Program Looked Like to the Tortured.” The New York Times.

December 4, 2019. https://www.nytimes.com/2019/12/04/us/politics/cia-torture-drawings.html.

Saud, Lina H., and Laurie A. Rudman. “Justifying Social Inequalities: The Role of Social Darwinism - Laurie A. Rudman, Lina H. Saud, 2020.” SAGE Journals, January 6, 2020. https://journals.sagepub.com/doi/abs/10.1177/0146167219896924.

Sierra-Zorita, Gretchen. “The Incomplete Coronavirus Map - US Territories Left Behind.” The Hill. The Hill, April 16, 2020. https://thehill.com/opinion/healthcare/492799-the-incomplete-coronavirus-map-us-coloniesleft-behind.

Silverstein, Gordon. “One Constitution, Indivisible? The Insular Cases and American Constitutional Interpretation.” PS: Political Science & Politics 50, no. 02 (March 31, 2017): 520–24. https://doi.org/10.1017/s1049096516003115.

“State-by-State Breakdown: Delivery of Initial $30 Billion of CARES Act Public Health and Social Services Emergency Fund.” hhs.gov. Department of Health and Human Services. Accessed February 7, 2021.

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https://www.hhs.gov/sites/default/files/state-by-state-breakdown-delivery-of-initial-30-billion-caresact.pdf.

Struyk, Ryan. “More Americans Live in Puerto Rico than 21 States (and Other Things to Know).” CNN Politics.

CNN News, September 26, 2017. https://www.cnn.com/2017/09/26/politics/puerto-rico-state-hurricanemaria/index.html.

The Spanish American War: Explained (Short Animated Documentary). YouTube. Google LLC, 2019. https://www.youtube.com/watch?v=CaOKfu7ZK7I.

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Trump v.

Mazars Implications for the Federal Balance of Power Olivia Siemens

Abstract In Trump v. Mazars (2020), the Supreme Court held that congressional subpoenas for the President’s personal papers are subject to a higher standard of judicial review than routine subpoenas involving Executive Branch officials or agencies. It is not the intent of this article to opine on the merits of the Court’s ruling in Mazars, but rather to argue in favor of the narrowest possible reading of that opinion with regard to future oversight subpoenas for Executive Branch information. Failure to do so would a) overturn centuries of precedent stressing the Court’s limited authority to constrain congressional oversight prerogatives, and b) seriously disrupt the constitutional balance of power among the three branches of the federal government. If applied to all congressional subpoenas aimed at eliciting information from the Executive Branch, the four-part Mazars analysis could subvert Congress’s core constitutional functions; shield current and future presidential administrations from meaningful public accountability; and undermine the institutional legitimacy of the federal courts. When testing the validity of forthcoming oversight-related subpoenas, the Court should instead defer to the more lenient Watkins standard, enforcing congressional subpoenas so long as they serve a “legitimate legislative purpose.”

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Introduction In Trump v. Mazars (2020), the Supreme Court held that congressional subpoenas for the President’s personal papers are subject to a higher standard of judicial review than routine subpoenas involving executive branch officials or agencies. It is not the intent of this article to opine on the merits of the Court’s ruling in Mazars, but rather to argue in favor of the narrowest possible reading of that opinion with regard to future oversight subpoenas for executive branch information. Failure to do so would a) overturn centuries of precedent stressing the Court’s limited authority to constrain congressional oversight prerogatives, and b) seriously disrupt the constitutional balance of power among the three branches of the federal government. If applied to all congressional subpoenas aimed at eliciting information from the executive branch, the four-part Mazars analysis could subvert Congress’ core constitutional functions; shield current and future presidential administrations from meaningful public accountability; and undermine the institutional legitimacy of the federal courts. When testing the validity of forthcoming oversight-related subpoenas, the Court should instead defer to the more lenient Watkins standard, enforcing congressional subpoenas so long as they serve a “legitimate legislative purpose.”

Congressional Powers of Inquiry: Constitutional Text And Precedent Investigations The authority to conduct investigations is essential to Congress’ ability to fulfill its core legislative functions. While no such investigatory power is specifically enumerated in the Constitution, it is implicitly derived from various constitutional and statutory provisions which empower Congress to enact general laws as well as to oversee its co-equal branches of government. Article I, Section I of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States.”1 Section VII accordingly enables Congress to “make all Laws which shall be necessary and proper” not only for executing its own enumerated powers, but also those powers reserved by the other federal branches and their constituent departments.2 Taken together, these two clauses clearly support Congress’ right to conduct any inquiries it deems relevant to the faithful execution of its legislative prerogatives—including investigations into the conduct of executive branch officials and agencies.

The Framers agreed—so wholeheartedly, in fact, that they considered a discrete Article I clause authorizing such investigations redundant. Virginia delegate George Mason inferred as much at the 1787 Constitutional Convention, noting that “[Congressmen] are not only Legislators but they possess inquisitorial powers… to inspect the Conduct of the public offices.”3 During the inaugural sessions of the First U.S. Congress, Rep. James Madison argued that the House “should possess itself of the fullest information in order to doing justice

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to the country and public officers,”4 an obvious reference to the Framers’ original recognition of the legislature’s extensive investigatory mandate. To attribute the Constitution’s comparative silence on congressional investigations to a tacit rejection of such authority would be both ahistorical and facially absurd. “It was not considered necessary to make an explicit grant of such authority,” historian Arthur Schlesinger Jr. explains. “The power to make laws implied the power to see whether they were faithfully executed.”5

Subpoenas Furthermore, the Supreme Court has consistently held that the legislature’s “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”6 Although Congress has exercised its right to send for official documents and compel witness testimony since the Founding Era, the Court’s specific recognition and enforcement thereof began in earnest at the turn of the 20th century. While investigating the so-called Teapot Dome scandal in 1922, the Senate issued a subpoena to compel the testimony of the brother of Attorney General Harry Daugherty, whom investigators suspected of improperly shielding top Harding administration officials from prosecution related to their corrupt dealings with private energy tycoons. Daugherty refused to comply, ultimately landing the subpoena and the Senate’s subsequent contempt order in the Supreme Court.7 In McGrain v. Daugherty (1927), the Court ruled against Daugherty, holding that the Senate’s power to issue and enforce subpoenas for witness testimony was constitutionally sound. As the McGrain majority observed: “A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change, and where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it.”8 Congressional subpoenas for executive branch information, the Court noted, fall expressly within the legislature’s subject matter jurisdiction. Because Congress is solely responsible for the oversight, regulation, maintenance, and appropriation of funds to all federal agencies, it must also reserve the right to obtain relevant information from these agencies in order to effectuate appropriate and relevant legislation. In other words, Congress’ general power to both issue and enforce subpoenas is a requisite adjunct to its wellestablished investigatory and legislative prerogatives.

The McGrain decision also established a secondary but equally central precedent regarding the appropriate standard of judicial review for cases involving congressional subpoenas for executive branch information. “We are bound to presume,” the Court held, “that the action of the legislative body was with a legitimate object … we have no right to assume that the contrary was intended.”9 This passage makes clear that the judiciary has precious little authority to challenge a congressional subpoena’s legislative validity. McGrain

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thus maintains, in effect, that the burden of proving the absence of a subpoena’s legislative legitimacy lies squarely on the individual or agency disputing that subpoena, not on the congressional chamber or committee that issued the subpoena. In the absence of compelling evidence to the contrary, the Court “is bound” to defer to the legislature’s stated objective.

This deference, of course, is not absolute. Under the reigning Watkins test, a congressional subpoena must be “related to, and in furtherance of, a legitimate task of Congress.”10 Congress cannot issue subpoenas with the sole objective of humiliating a witness; nor cite an overly general “public need” to “unjustifiably encroach upon” an individual’s constitutional civil liberties; nor use its investigatory powers for the purpose of law enforcement.11 Still, as the Court recognized in Eastland v. United States Servicemen’s Fund (1975), the “scope of its power of inquiry … is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”12

Trump v. Mazars: Analysis and Outstanding Questions Despite its acknowledgement of Congress’s broad powers of inquiry, the Court’s decision in Mazars largely broke from its prior deference to the stated legislative purpose.

Mazars placed unprecedented limitations on the legislature’s subpoena power, outlining a new four-part balancing test for cases involving disputed congressional subpoenas for the president’s personal papers. Under the majority’s new balancing test, courts are required to determine the following before enforcing a congressional subpoena for the President’s personal information: 1) whether Congress’s stated legislative purpose “warrants the significant step of involving the President and his papers”; 2) the subpoena is narrowly tailored to “support Congress’s legislative objective”; 3) the nature of the evidence offered by Congress “[establishes] that a subpoena advances a valid legislative purpose”; and 4) “the burdens imposed on the President by a subpoena … do not cross constitutional lines.”13 Crucially, this test is not exhaustive: other unspecified considerations, the majority indicates, may also factor into lower courts’ evaluations of congressional subpoenas involving the president’s personal information.14 Rather than clarifying this area of the law, then, the Mazars test is still certain to lead to greater ambiguity regarding the outcomes of future litigation. Litigators and courts alike are left with outstanding questions surrounding the scope and applicability of the Mazars test. How should courts decide whether and which kinds of legislative purposes warrant the involvement of the president’s papers? How might courts learn whether “other sources” could “reasonably provide” Congress with the information it needs? How narrow must a reasonable subpoena be, and what is the metric of such breadth or reasonableness? How much evidentiary detail is necessary to establish the legitimacy of Congress’s legislative objective? And which subpoenas might be simply too burdensome on a president, given that the president is rarely, if ever, personally responsible for delivering the requested information? Mazars shines no light on how courts should weigh these various

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considerations, nor does it explain how jurists might approach cases where some, but not all, of the test’s prongs are met.

Moreover, though the Mazars test ostensibly applies only to congressional subpoenas seeking access to the president’s “personal” information, it is unclear how Congress or the courts should distinguish between personal and official information. The Court recognizes as much, writing that, “The President is the only person who alone composes a branch of government. As a result, there is not always a clear line between his personal and official affairs.”15 It does not, however, offer any meaningful guidance for interbranch disputes that might straddle this imprecise line.

Against The Expansion Of Trump v. Mazars Myriad concerns over the constitutional separation of powers, democratic norms, legal precedent, and judicial humility should guide the Court toward a profoundly narrow reading of Mazars.

Checks and Balances The legitimacy of any republican government hinges on its capacity for institutional accountability and self-correction. The tripartite system was intended to guarantee just that, by instituting a division and balance of power between the three branches of the U.S. federal government. Moreover, to ensure that no one branch could aggrandize itself at the expense of the others—or worse, misuse its authority to trample on the rights of citizens—the Framers fashioned a complex delegation of powers where each branch would be responsible for “checking” the powers of the other two. “In framing a government which is to be administered by men over men, the great difficulty lies in this,” wrote James Madison in Federalist 51. “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”16 Checks and balances, then, are best understood as the institutional guardrails of republican government. They protect the liberty of the governed from the tyranny of the government, and they shield each branch of government from the abusive incursions of the others.

Broadly interpreted, the Court’s ruling in Mazars could radically transform the federal government’s existing balance of power and undermine the checks and balances system. In its current form, Congress’ oversight prerogative functions as an imperative political check against the potential for presidential abuse and mismanagement. Indeed, scores of congressional investigations to date have yielded key revelations about improper and unlawful executive branch activity. From Teapot Dome to Watergate to Iran-Contra to the Truman Committee, subpoenas have been an indispensable tool of presidential transparency and accountability. Furthermore, the congressional subpoena—and the predictability of judicial enforcement thereof—is not only a necessary coercive mechanism, but also a crucial

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instrumental force in facilitating compromise between the legislative and executive branches.

An individual or agency that refuses to comply with a congressional subpoena risks citation and prosecution for contempt of Congress, an offense bearing serious legal consequences.

But even the threat of a subpoena can bring public officials seeking to avoid the appearance of secrecy and noncompliance to the negotiating table. As the majority aptly elucidated in Mazars, previous presidential administrations have taken concrete steps to avoid involving the courts in interbranch informational disputes. Rather than seeking formal judicial resolutions for congressional documents requests, the Washington, Jefferson, Reagan, and Clinton administrations each worked alongside investigators to reach mutually beneficial compromises with their legislative counterparts.17 The Court’s apparent concern for the “hurly-burly, the give-and-take of the political process between the legislative and the executive”18 should accordingly preclude the applicability of its Mazars analysis to routine congressional subpoenas for executive branch documents. Mazars undercuts the Court’s prior deference to legislative purpose, leaving the medium of judicial recourse dangerously unreliable. Absent the high probability of judicial enforcement, congressional subpoenas lack any substantive legitimacy. For if there is no predictable penalty for executive noncompliance with congressional oversight, or no real penalty at all, then the executive branch can block subpoenas with near impunity.

Broadly interpreted, Mazars is rife with constitutional contradictions: not only does it undermine the inquisitorial function of the legislature, but it also effectively immunizes the executive branch from meaningful public accountability. In unduly constraining the enforceability of oversight-related subpoenas, the judiciary would incentivize presidents to walk away from the bargaining table and challenge such subpoenas in court. Ironically, the Mazars opinion concerns itself only with the converse scenario, wherein Congress leverages judicial enforcement to gain an upper hand in interbranch documents disputes.19 The Court inexplicably ignores the very issue at stake in Mazars itself—that is, the downright necessity of judicial intervention in cases where the president has rebuffed every opportunity to negotiate with the legislature over subpoenas for his personal documents. Should the Court adopt the four-part test for all subpoenas aimed at eliciting executive branch information, it would exacerbate the precise dilemma Mazars purports to address: the weaponization of judicial recourse as a point of leverage in interbranch conflicts. The Court would openly invite the executive branch to ride roughshod over the rights of the co-equal legislature, and it would allow the president to insulate his administration from the prospective political consequences of congressional scrutiny—a critical democratic check on presidential misbehavior.

Legislative Purpose The power to investigate is properly understood not only as a permissible legislative task, but indeed a vital ancillary to Congress’ core constitutional competencies. Executive branch oversight is central to a variety of enumerated legislative functions, including

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budgetary appropriations, creating and amending federal agencies, regulating interstate commerce, and appointing (and impeaching) federal officials.20 Absent the broad authority to investigate and oversee the executive branch, Congress would be functionally useless, unable to exercise even its most basic Article I responsibilities. Congress’ investigatory prerogative is instrumentally imperative; without it, the legislature would be ‘shooting in the dark, unable to legislate ‘wisely or effectively.’’”21 An expansive reading of Mazars is therefore plainly incongruous with Congress’ core instrumental functions. Compliance with the four-part test would place a colossal burden of proof on Congress to demonstrate the precise significance, narrowness, evidentiary conclusiveness, and burdens of executive branch subpoenas—all potentially insurmountable barriers to efficient and effective executive oversight. Such extreme limitations on congressional powers of inquiry would be both practically unworkable and democratically negligent. Congress is solely responsible for monitoring executive compliance with its legislative intent; should a presidential administration botch or exceed its statutory prerogatives, the legislature may amend the relevant federal laws accordingly. For this reason, many congressional subpoenas are necessarily broad in nature. They may encompass “inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes.”22 For instance, Congress surely has the right to enact legislation regarding the equitable enforcement of federal laws. To do so effectively, Congress would first have to solicit the requisite information from the Justice Department. It might inquire into statistics about racial disparities in prosecution and incarceration rates, request internal DOJ guidelines respecting prosecutorial conduct and discretion, or compel witness testimony from Justice Department employees, up to and including the Attorney General himself. The scope of Congress’ inquiry might be “broad,” and its subpoenas would certainly exert “significant burdens” on the DOJ. Given that the goal of any investigation is to identify prospectively relevant evidence, Congress might initially lack a “detailed” evidentiary basis for the particular purpose of yetundrafted statutes. Under Mazars, then, the DOJ could attempt to thwart Congress’ investigatory efforts simply by citing any one of the four prongs of the majority’s balancing test. Congress would subsequently be forced to choose between pursuing an uncertain judicial remedy, metaphorically “shooting in the dark” by passing an ill-informed (and, in all likelihood, legally suspect) regulation; or abandoning its legislative ambitions entirely. At best, these are all politically disastrous options, producing an unworkable relationship between the three presumably co-equal branches. At worst, these tradeoffs would erode the fragile pillars of constitutional government, aggrandizing the powers of the president and the judiciary at the expense of both the legislature and the American public.

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Conclusion: Balls and Strikes Finally, the complementary factors of democratic integrity and judicial humility dictate that the Supreme Court has little power to constrain the legislature’s oversight prerogatives.

Indeed, the Constitution provides “an absolute bar to judicial interference” with Congress’ legislative functions.23 In neglecting to enforce a presumptively legitimate congressional subpoena, the Court would erroneously seek to replace its own judgement for that of the people’s representatives. Such actions would imbue the Court with legislative authority—a self-evident abuse of the finite powers granted to the only unelected body of government.

Chief Justice John Roberts once imparted some vital wisdom regarding the limited role of the judiciary. “A certain humility should characterize the judicial role,” he pronounced at his 2005 Senate confirmation hearings. “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them … Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”24 The chief justice and his eight colleagues should take care to remember this high-minded edict. To expand the Mazars doctrine would be to depart from centuries of legal precedent, flouting the principle of judicial humility and repudiating constitutional norms. No longer confined to “calling balls and strikes,” the judicial umpires would promptly suit up and take the field. Three strikes, and democracy is out.

Olivia Siemens is a senior at Brown University studying history and public policy. Olivia also serves as the Editor-in-Chief of the Brown Journal of World Affairs.

Notes U.S. Const. art. I, §1.

U.S. Const. art. I, §7.

3 United States Constitutional Convention, “The Records of the Federal Convention of 1787, Volume 2.”

4 Michael S. Rosenwald, “‘Grand inquisitors of the realm’: How Congress got its power to investigate and subpoena,” Washington Post, March 11, 2019.

5 John Haskell, Congress in Context (Boulder: Westview Press, 2014), Retrieved from https://books.google.com/books?id=HxdWDwAAQBAJ&pg=PT202&lpg=PT202&dq=%E2%80%9Cit+was+no t+considered+necessary+to+make+an+explicit+grant+of+such+authority.+The+power+to+make+laws+implie d+the+power+to+see+whether+they+were+faithfully+executed.%E2%80%9D&source=bl&ots=RL6BsXbv_F &sig=ACfU3U098G1lRrT2ZvRXEmbNWo3jd1_H5g&hl=en&sa=X&ved=2ahUKEwie_cGShdjsAhUET98KHS 2bB24Q6AEwAHoECAcQAg#v=onepage&q=%E2%80%9Cit%20was%20not%20considered%20necessary %20to%20make%20an%20explicit%20grant%20of%20such%20authority.%20The%20power%20to%20make 1 2

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%20laws%20implied%20the%20power%20to%20see%20whether%20they%20were%20faithfully%20execute d.%E2%80%9D&f=false.

6 McGrain v. Daugherty, 273 U.S. 135 (1927).

7 “Senate Investigates the ‘Teapot Dome’ Scandal,” United States Senate Archives, https://www.senate.gov/artandhistory/history/minute/Senate_Investigates_the_Teapot_Dome_Scandal.htm.

8 McGrain v. Daugherty, 273 U.S. 135 (1927).

9 Watkins v. United States, 354 U.S. 178 (1957).

10 Ibid.

11 Ibid; Quinn v. United States, 349 U.S. 155 (1955).

12 Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975).

13 Trump v. Mazars USA, LLP, 591 U.S. ___ (2020), 19–20.

14 Ibid., 20.

15 Ibid., 17.

16 James Madison, “Federalist No. 10: The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection,” New York Daily Advertiser, November 22, 1787, Retrieved from https://www.ourdocuments.gov/doc.php?flash=false&doc=10.

17 Trump v. Mazars USA, LLP, 591 U.S. ___ (2020).

18 Ibid., 7.

19 Ibid., 16.

20 U.S. Const. art. I. 21 Trump v. Mazars USA, LLP, 591 U.S. ___ (2020), 11.

22 Watkins v. United States, 354 U.S. 178 (1957).

23 Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975).

24 “Clip of Roberts Confirmation Hearing, Day 1,” C-SPAN, September 12, 2005, https://www.cspan.org/video/?c4494594/user-clip-john-roberts-judicial-humility-ca-2005.

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Bibliography “Clip of Roberts Confirmation Hearing, Day 1.” C-SPAN, September 12, 2005. https://www.cspan.org/video/?c4494594%2Fuser-clip-john-roberts-judicial-humility-ca-2005.

Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975).

Haskell, John, Marian Currinder, and Sara A. Grove. Congress in Context. Boulder, CO: Westview Press, 2014.

Madison, James. “Federalist No. 10: The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection.” New York Daily Advertiser. November 22, 1787. https://www.ourdocuments.gov/doc.php?flash=false&doc=10.

McGrain v. Daugherty, 273 U.S. 135 (1927).

Quinn v. United States, 349 U.S. 155 (1955).

Rosenwald, Michael S. “Grand Inquisitors of the Realm’: How Congress Got Its Power to Investigate and Subpoena.” Washington Post, March 11, 2019.

“Senate Investigates the ‘Teapot Dome’ Scandal.” U.S. Senate: Senate Investigates the "Teapot Dome" Scandal.

United States Senate Archives, December 12, 2019. https://www.senate.gov/artandhistory/history/minute/Senate_Investigates_the_Teapot_Dome_Scanda l.htm.

Trump v. Mazars USA, LLP, 591 U.S. ___ (2020), 19–20.

U.S. Const. art. I, §1.

U.S. Const. art. I, §7.

U.S. Const. art. I. United States Constitutional Convention. Records of the Federal Convention of 1787. Edited by Max Farrand. 2.

Vol. 2. Andesite Press, 2015.

Watkins v. United States, 354 U.S. 178 (1957).

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Rooting the International Criminal Court’s “Africa Bias” in the Rome Statute Amanda Yuen

Abstract In recent years, the International Criminal Court (ICC) has faced accusations that it has an ‘Africa bias’ or ‘African Problem’ in which the court selectively pursues cases and crimes perpetrated in Africa. This paper takes a look at this issue by analyzing the founding document of the ICC, the Rome statute, and how the compromises and policies laid forth in this document inform this so-called ‘African bias’. It argues that when the Rome Statute was written, political jockeying and Western biases that had already existed within international law created today's so-called ‘African bias’. Rather than stating that there is an active prosecutorial bias against African nations or leaders, this paper seeks to understand the embedded inequities reflected in Rome and international law more broadly. This fundamentally flawed structuring can be seen in Article 16 and the disproportionate power given to the UN Security Council, the types of crimes listed under ICC jurisdiction, and the complementarity regime generally.

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In recent years, the International Criminal Court (ICC) has faced several challenges surrounding how and why it pursues certain cases. One of those accusations revolves around the court’s ‘Africa Bias’ or ‘African Problem’ in which the court selectively pursues cases and crimes within Africa. Since its inception in 2002, the ICC has become a notable venue for preventing and ending impunity for human rights violations on the African continent.

Because of the history associated between the Western world and the African continent, critics have stated that the ICC’s selective pursuit of African cases is the newest form of Western colonial implementation and judgment on the Global South. These critiques primarily arose with the prosecution of sitting African Heads of State, which have been contrasted with the failure of the ICC to launch successful investigations or prosecute offenders from the United States or Russia for crimes committed in Afghanistan or Syria during the war on terror.1 We are certainly beginning to see some changes with more recent investigations, but many have said it is too little too late. Proponents of the ICC have responded to these criticisms in a variety of ways: Africa disproportionally has a large amount of self-reinforcing violent conflict, the ICC does not have absolute jurisdiction, and that the ICC is a politically and racially impartial institution.

This paper will argue that when the Rome Statute was written, political jockeying and Western biases that had already existed within international law created today's so-called ‘African Bias.’ I am not arguing that there is an active prosecutorial desire to go after African nations or their leaders, but rather that reflected in Rome are certain inequities that have existed within our history and law for centuries. This fundamentally flawed structuring can be seen in Article 16 and the disproportionate power given to the UN Security Council, the types of crimes listed under ICC jurisdiction, and the complementarity regime generally.

The Formation of the Rome Statute During 20th century conflicts, humanity’s most heinous crimes were brought to light, first through the formation of the Nuremberg and Tokyo tribunals after World War II. In 1948, the United Nations recognized the need for a permanent international judicial body to judge these atrocities. However, it was not until after the Cold War and the formation of ad hoc tribunals for the crimes committed in Yugoslavia and Rwanda that nations began to take more seriously the need to establish the International Criminal Court.

In 1998, 160 states convened in Rome for a conference, the result of which was a treaty known as the Rome Statute of the International Criminal Court. The Rome Statute built off existing ideas of international law and established the court’s jurisdiction, Office of the Prosecutor (OTP), and additional procedures. States that ratified the treaty would become members of the Assembly of States which sets the general policies for the administration of the Court and reviews its activities.

Major questions coming into Rome included the influence of the UN Security Council, which crimes the court would have jurisdiction over, and how the ICC would encourage state

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cooperation without interfering with international sovereignty. The passage of widespread adoption of Rome was in major part due to the cooperation between two coalitions. The first was a coalition of non-governmental organizations, or NGOs, activists that represented the international civil society. This diverse and incredibly large coalition worked with the LikeMinded Group, a coalition of governments led by Germany. At the Rome Conference, the Like-Minded Group successfully corralled many African and Latin American states into supporting a robust statute and ultimately succeeded in establishing a supportive EU stance.2 Major opponents to the ICC- the United States, Russia, China, Israel, India, and most of the Arab World- did not form a unified front, instead choosing to individually advocate their opposition. 3 Currently, the ICC’s OTP has thirty-two investigations open in thirteen situations” or countries. Twenty-eight of these investigations and ten of these situations are in African countries.4 Five of these cases were self-referred to the ICC by the conflict country. It should also be noted that the current Prosecutor, Fatou Bensouda, is from Gambia.

The Changing Relationship with Africa and the ICC In April 1999, the Organization of African Unity (which would later become the African Union) called on African states to ratify the Rome Statute. Ten years later, the African Union accused the court of targeting the continent and discouraged states from cooperating with ICC prosecutions. 5 State cooperation with the ICC is necessary to the success of the ICC as an institution, making this announcement a major blow to the legitimacy and public perception of the court in Africa. The question then becomes what brought about Africa’s changing relationship with the ICC. Africa played a key role in the years preceding the Rome conference where the Rome Statute of the ICC was adopted. African states were active throughout the negotiation process and were crucial in helping the “Like-Minded” bloc secure a political advantage.

Individual states, regional organizations, and African NGOs supported the ICC. Tyanjana Maluwa, the legal counsel of the OAU, stated that Africa had a special interest in the establishment of the ICC because its people had for centuries endured human rights atrocities.6 This support manifested itself in the fact that African states represent the single largest regional bloc of ICC membership. Of the 122 State parties to the Rome Statute, nearly one-third (34 nations) were African states.7 This enthusiastic support of the OAU and the influence of the regional bloc during the ratification process is oftentimes where those arguing against the court’s Africa bias begin their arguments. However, “despite the suggestion that participation and ratification imply enthusiasm for all aspects of the ICC system, it is also important to realize that the making of the Rome Statute was a tumultuous process that involved negotiations, protests, pushbacks, and concessions.”8. For example, OAU’s preference for a more inclusive list of crimes within the ICC’s jurisdiction and referrals from a UN General Assembly vote rather than the UN

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Security Council were lost in the political jockeying of the conference. By simply looking at the participation of numerous African states in Rome, we ignore the very real fact that politically weak states’ demands were circumvented for politically stronger ones. The relationships and power dynamics between these different states existed because of historical power dynamics. They manifested themselves via political alliances and power within international institutions like the United Nations. In summary, Clarke, Knottnerus, and de Volder write: “Participation in the Rome Statute has not necessarily involved equality or the absence of state interests. Contrary to what many scholars assume, there is unevenness in the political structures of the ICC that remains central to the rule of law movement that it stands to represent.”9 Once the ICC became operational, Uganda and the DRC were the first two states to refer situations to the ICC in 2003 and 2004. These self-referrals appear to indicate a strong regional commitment to the issue of international criminal justice. This period of self-referral and AU cooperation with the ICC lasted till 2008 when the Prosecutor announced in July 2008 that he would seek to indict the sitting Sudanese president, al-Bashir. This led to active opposition by the AU which stated that sitting Heads of States should not be pursued while in office for stability’s sake. During a 2013 AU meeting, the prime minister of Ethiopia, Hailemariam Desaleg, and chair of the African Union stated that “ICC is hunting Africans”10.

At that point in time, the ICC had opened twenty-one cases in nine “situations” or countries, all of which have been in Africa (DRC, Kenya, Libya, Sudan, CAR, Mali, Cote d’Ivoire, and Uganda), so it seemed that Desaleg’s points were well evidenced. This evocative rhetoric was meant to recall images of colonial Western power dominating the African subcontinent and its people. By using this language Desaleg and other AU leaders began to paint the image of the ICC as a racially biased institution out to dominate and dictate sentences to African leaders. In October 2016, South Africa and Burundi withdrew from Rome.

To me, the argument that the ICC is single-mindedly pursuing African leaders and “situations” or that the bringing of cases is fueled by conscious or subconscious racial biased is less interesting and less true. That is not the argument that this paper is trying to make.

Instead, I contest that there are certainly historical underpinnings of Africa’s subjugated relationship with international institutions, international law, and other nation-states that can be seen in the Rome Statute. The ICC’s initial structuring under Rome was politically biased against African nations because it drew upon historical power dynamics that had long been established in the international order which favored Western powers and conceptions of international law.

The Arguments Against the “Africa Bias” Those that argue that an Africa Bias does not exist have a variety of reasons as to why.

As previously stated, many pointed to the initial enthusiasm of the OAU and the fact that African nations make up the largest geographic bloc of signatories as reasons why this bias

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should be minimized. Proponents of the ICC also point to the representation of African leadership within the ICC as further proof of this lack of bias- the current Prosecutor being from the Gambia, and the fact that 25% of judges currently on the bench are African. I will briefly present and address the major arguments of these advocates, the first being that the ICC has primarily investigated African crimes because of the large amount of conflict that has occurred within Africa.

Senior Advisor to the OTP Shamila Batohi addresses this point succinctly by stating that yes, all persons issued a summons or arrest warrants by the ICC have been African, but so have all the victims of these crimes.11 The ICC’s primary constituency has and will always be the victims of crimes and therefore it would be a disservice to the millions of African victims to not pursue the perpetrators of these heinous acts. Examples of these events of major atrocity include the Rwandan genocide (although this happened before 2002 and the establishment of the ICC), post-2007 election violence in Kenya, war crimes committed by the Omar al Bashir regime in Darfur, and finally acts of killing, torture, rape, and imprisonment committed in Burundi by Pierre Nkurunziza’s government. According to Professor Mude, the actions committed by these states definitionally fall under the jurisdiction of the ICC. Beyond just the types of crimes being committed, the state’s lack of involvement in the pursuit of justice for these atrocities had necessitated ICC involvement.12 A secondary but related argument is simply that the ICC is an apolitical and unbiased institution. The ICC is independent of the United Nations or other political institutions. In turn, any arguments against the ICC are political actors simply trying to utilize the ICC for their political benefit. This has been a common response to the accusations of racism or discrimination by AU leaders. Many say that these self-interested leaders are attempting to politicize a court to stand up to Western powers that their constituencies have unfavorable views of.13 This brings us to a third justification for the ICC’s focus on Africa- jurisdiction. There are questions raised in this argument- Why Africa? Why not other places? As to the why Africa question, ICC defenders point to the complementarian philosophy of the Rome Statute- the ICC should be a court of last resort when individual nations do not have the capacity or political will to hold perpetrators accountable. Bathohi points out that a determining factor in the furtherance of an initial inquiry is “local authorities are willing or able to pursue the matters of concern”14. She points to Guinea in 2009 as an example as to when the ICC took a step back from its investigation once realizing that the country had indicted its Minister of Health and head of presidential security for appropriate crimes. State capacity is, therefore, a determining factor in ICC’s investigative and prosecution process and for a variety of reasons, and comparatively African states’ capacity is weaker than in other locations.

With regards to why not other states, individuals state that it is nearly impossible to initiate investigations when states are not treaty signatories. According to Articles 12 and 13 in Rome, investigations can be referred to as the OTP when the alleged perpetrators are a

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national of a State Party or when the crime was committed within the territory of a state party.

Additionally, states not party to Rome can accept the jurisdiction of the ICC and the UNSC can refer a situation to the OTP regardless of whether the nationality of the accused or the location of the crime is attached to a State Party.15 Some scholars have stated that perhaps we should focus more on this “Why not other states” question rather than a supposed bias against Africa. They point to blockages created by the structure of the referral process as well as the ICC’s hyper-reliance on the complementarian approach requiring constant permission of the state to investigate.

My primary response to these three arguments is that they fail to contextualize Africa’s relationship with the ICC in certain historical and political inequalities. These, in some sense, normalized, inequalities manifested themselves in the formative documents of the ICC, as well as today. To begin with there are numerous historical traumas16 within the African continent that were created by Western states: the slave trade, extractive colonial policies, and the Cold War’s further exploitation of African states as pawns in a conflict of superpowers. Although not all modern conflicts in Africa are related to these historical traumas created by Western powers, most of them are. Therefore, the idea that Africa’s numerous conflicts are an “Africa problem” and therefore Africa should bear the burden of responsibility is a troublesome notion; Batohi’s argument feels precariously close to this line of thought.

We also need to analyze the history of international law, which the Rome Statute built upon, as it applies to Africa. Mutua writes, “Africa’s identity in the era of modernity has largely been shaped by its encounter with the West, the normative home of international law…in which international law was used as a means of ordering and organizing the exploitation of the globe for the benefit of the North Atlantic communities”17. One example she gives is the roots of present-day territorial borders within colonialism and uti possidetis18, international law’s exploitation of African resources and people. In short, international law was used to exploit Africa and Africans for the benefit of Western powers. To ignore the political power dynamics that have always existed within international law, and continue to exist within the ICC, would be short-sighted. The image of the ICC as a politically neutral and impartial institution is idealistic at best; the evidence of its politicization can be found within its very origins- the political negotiations made before and during the Rome conference.

Contextualizing the “Africa Bias” within the Rome Statute To understand the root of this Africa Bias, we can analyze the structure and implementation of the Rome Statute- the founding document of the ICC. The systems and agreements that occurred because of this treaty have facilitated inequalities that continue a system of international law that favors the opinions and interests of Western states. It is not the individual court or prosecutors that are singularly biased, but the system in and of itself.

Within the Rome Statute, these shortcomings can best be seen in the disproportionate power

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given to the UN Security Council, the types of crimes listed under ICC jurisdiction, and the prioritization of complementarity.

The UN Security Council (Article 13b and Article 16)

During the creation of the Rome Statute, an important question was the UNSC’s relationship with the ICC. After some compromise, Article 16 was created wherein the UNSC could defer an ICC investigation or prosecution for twelve months wherein “that request may be renewed by the Council under the same conditions”.19 Additionally, as previously stated, Article 13(b) provides that the ICC will have jurisdiction over a crime envisaged in article 5 of the Statute if “[a] situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations”20. Even though not all members of the UNSC have ratified the Rome Statute themselves (i.e. the United States, Russia, China) the parties have substantial influence within the treaty and over nations who are signatures to the treaty. The UNSC’s decision not to defer the al Bashir case, as well as the non-referral of many nonAfrican cases, are some of the major criticisms lodged at the ICC and UNSC by the AU as to an “African bias”. Max du Plessis writes:

“the international politics within the UNSC has infected the work of the ICC so that the Council has referred two African cases to the Court but has failed or refused thus far to refer any non- African cases…Questions have thus rightfully been raised about the impartiality and independence of [the ICC]… and whether political considerations, such as the ICC’s relationship with the US…have outweighed questions of law and objective considerations of justice… By avoiding pain from [American and European backlash], the ICC has simply allowed for pain from another. And that pain – now inflicted by African leaders who in principle or out of self-interest are unwilling to be the scapegoats for the international criminal justice project – is as deleterious”21.

The skewed power dynamics that have always existed within the United Nations, manifested through the power of the UNSC and its favoring of the Global North, have trickled into ICC dynamics. Unlike the OAU’s original proposal during Rome, that the referral process should be done via a UNGA vote, the power granted to the UNSC under Rome provides disproportionate power to a body that does not hold the interests of Africa nations. No African nations have a permanent seat on the security example and the UNGA is more representative of the interests of all nations where all member states get one vote. Moreover, the treaty unfairly allows for non-signatory nations to maintain an overarching influence on states that have agreed to abide by Rome. These power dynamics have long existed within the UN and international institutions now manifest themselves in the ICC.

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Types of Crimes Under ICC Jurisdiction

In 1991, at an early stage of the drafting of Rome, the International Law Coalition adopted a Draft Code, which identified twelve crimes that could become part of the jurisdiction of the ICC. Four years later, however, a second draft of the code omitted many of these crimes including colonial domination and other forms of alien domination; recruitment, use, financing, and training of mercenaries; willful and severe damage to the environment; international terrorism; and illicit traffic in narcotic drugs22. The ILC justified these omissions primarily because they wanted to prioritize widespread adoption of Rome and “avoid crimes that were too controversial or too widespread”23. The four crimes currently under the jurisdiction of the Rome Statute are genocide, war crimes, crimes against humanity, and the crime of aggression.

The Rome Statute built upon pre-established ideas of international law, particularly the ideas that were based on Western nations’ conception of the world. The enormous political influence held by Western nations, in comparison to African states, during the Rome conference was only furthered by the fact that international law favored their view of the world. When we think about how this relates to what crimes were chosen to be placed under the jurisdiction of the ICC, we can turn to Western international law’s focus on a) a focus on forms and consequences of mass violence, rather than on its origins and underlying structures and b) individual accountability versus collective social responsibility for crimes.24 This is therefore what was written into Rome. These focuses can be seen in the precedents set by the Nuremberg and Tokyo trials where the Allied forced chose to focus on specific consequences and individuals who they viewed as the worst offenders. These individuals and their crimes were supposed to be representative of the larger atrocities committed throughout World War II. This same logic is difficult to apply to the case of Africa. Many of the crimes committed in Africa have systemic or underlying causes, such as colonialism or environmental damage (conflict minerals/resources) that are absent from ICC jurisdiction. Additionally, the farreaching and social embeddedness of many of the conflicts makes it difficult to simply point to a single culpable criminal. The question of why African states did not advocate for these broader ideas of international law within the ICC brings us back to the concept of political dynamics within the Rome negotiations. International law favors precedent; to ask these nations to advocate for these broader ideas of law, would also ask them to construct new ideas of law, which is a large task to ask of already politically weaker states. The exclusion of these crimes that speak to more systemic structures and processes which consider the sociological aspects of violence did a disservice to the needs of many African states and victims and demonstrate how the ICC adopted Western notions of international law, rather than the international perspective it so often claims to demonstrate.

A Prioritization of Complementarity

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In Article 17 and Article 18, the Rome Statute more clearly discusses this notion of complementarity in terms of admissibility of cases. Article 17 states that a case is inadmissible when it “is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”. These concepts of “unwillingness” or “inability” are then further defined to what ultimately boils doing to state capacity and independence from influential politicians or military leaders. To quote Mbizvo, “the Office has a duty not to proceed to investigate when there are genuine national investigations or prosecutions. This is the principle of complementarity”.25 Ideally, this complimentary principle should help strengthen African states giving them the ability to essentially opt-in to the ICC or otherwise utilize domestic forms of justice to prosecute criminals. Du Plessis writes, “the very premise of complementarity allows African states to demand that the ICC defers to their competence and right to investigate international crimes”. 26 The complementary principle was meant to be a leveler and a tool for jurisdictional protection, but what it has instead become surrounded by is a politics of power. We can look at the 2011 case against Kenyan politician, and eventual president Kenyatta wherein the nation was the first to challenge a case based on admissibility. The ICC ruled in favor of the OTP saying that the Kenyan government’s investigation did not cover the same individual and substantially the same conduct as alleged in the OTP case. Dissenting opinions on this case and the resulting aftermath indicate that the OTP prioritized moving swiftly to go to trial, rather than “working cooperatively with the Kenyan government to build a solid national capacity for investigation and prosecution of the serious crimes committed”27, which is what a true prioritization of the complimentary principle would have called for. What resulted in Kenya was a failed case and the recusal of an ICC judge, a debacle that ultimately failed the crime victims’ desire for justice. This travesty only helped to delegitimize the court in the eyes of many Africans. Although there were certainly failures by the Kenyan state to cooperate with the ICC what is also evident is that there has also been a limited desire by the ICC to pursue this practice of positive complementarity.

Because of the limited number of cases investigated outside of Africa, it is nearly impossible to see if there is a different application of the same principle to other geographic regions.

What can be said though in the case of Kenya was that political expediency was prioritized over the core complementarity principles supposedly advocated by Rome. Hart writes, “The ICC was constructed with the idealistic goal to end the presumption of impunity for the powerful. Yet many stronger states that use violence against civilians have protected themselves from the court’s jurisdiction. Weaker states, vulnerable to violence, have opened themselves up to the court’s jurisdiction.”28. Complementarity only works when all countries are given equal opportunity to demonstrate their capability to prosecute criminals, but what we see is an uneven approach to this concept, motivated by international power dynamics.

Rome’s prioritization of complementarity is an idealized version of international cooperation,

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rather than a realistic one. Rather than being the ICC’s demonstration of respect toward sovereignty, the complementarity approach has instead allowed for politically powerful states to justify their disillusionment and failure to cooperate with the ICC through the guise of sovereignty.

Conclusion By understanding how the Rome Statute was written and plays out in the real world, we come to realize that within the broader structures of the ICC and international law, there are very biases that exist within the ICC that has led to the perception of an “African bias”. Like all treaties, Rome was negotiated by political actors whose goal was to create a system beneficial to their personal strategic interests. Because of the reliance on precedent and the power dynamics at the time of negotiation, the statute’s articles and ultimately implementation did ultimately favor Western notions of law and impunity.

Regardless, if one believes in this “African Bias,” the “Africa Problem” does exist, meaning that there is a large amount of distrust that exists amongst African leaders, regional bodies, and citizens around the legitimacy of the International Criminal Court. Alternatives to the ICC such as the African Court on Justice and Human Rights as well as locally based tribunals such as Rwandan Gacaca courts have been promoted by the AU and restorative justice advocates as alternative methods to provide victims justice. When we begin to think about how to reimagine the ICC, the conversation should ultimately shift to how to rethink international law to become a more regionally sensitive body of thought. Reliance on precedent is understandable, but when precedent has been based on European ideas of dominance and power, it is also important to think about how we can construct new systems that speak to the values and needs of an international society.

Amanda Yuen is a junior at Johns Hopkins University majoring in International Studies and Anthropology.

Notes

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1

Emmanuel and Hope. “Contentious Relationship between Africa and ICC”, 20.

2

Novak, Andrew. The International Criminal Court, 3.

3

Novak, Andrew. The International Criminal Court, 3.

4

The International Criminal Court. “The Court Today”, 1.

5

Novak, Andrew. The International Criminal Court, 101.

6

Dersso “Spotlight on the Limits of International Criminal Justice”, 62.

7

Dersso “Spotlight on the Limits of International Criminal Justice”, 62.

8

Clarke, Knottnerus, and de Volder. “Africa and the ICC: An Introduction,” 12.

9

Clarke, Knottnerus, and de Volder. “Africa and the ICC: An Introduction,” 12.

10

Mutua, “Africans and the ICC,” 48.

11

Batohi, “Africa and the International Criminal Court: A Prosecutor’s Perspective,” 50.

12

Mude, “Demystifying the International Criminal Court (ICC) Target Africa Political Rhetoric,” 181.

13

Mude, “Demystifying the International Criminal Court (ICC) Target Africa Political Rhetoric,” 181.

14

Batohi, “Africa and the International Criminal Court: A Prosecutor’s Perspective,” 53.

15

UN General Assembly, Rome Statute of the International Criminal Court, 8.

16

Mutua, “Africans and the ICC,” 49.

17

Mutua, “Africans and the ICC,” 50.

18

Mutua, “Africans and the ICC,” 49.

19

UN General Assembly, Rome Statute of the International Criminal Court, 10.

20

UN General Assembly, Rome Statute of the International Criminal Court, 5.

21

du Plessis, “Universalizing International Criminal Law,” 5.

22

Clarke, Knottnerus, and de Volder. “Africa and the ICC: An Introduction,” 13.

23

Clarke, Knottnerus, and de Volder. “Africa and the ICC: An Introduction,” 13.

24

Clarke, Knottnerus, and de Volder. “Africa and the ICC: An Introduction,” 13.

25

Mbizvo, “The ICC in Africa: The Fight against Impunity,” 43.

26

du Plessis, Maluwa, and Annie O'Reilly, Africa and the International Criminal Court, 5.

27

Brown, "The International Criminal Court in Africa: Impartiality, Politics, Complementarity and Brexit,” 156.

28

Hart, Laurel. “The International Criminal Court: Biased or Simply Misunderstood?”

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Bibliography Batohi, Shamila. “Africa and the International Criminal Court: A Prosecutor’s Perspective.”

Essay. In Africa and the International Criminal Court, edited by Gerhard Werle, Lovell Fernandez, and Moritz Vorbaum:49–57. The Hague: T.M.C Asser Press, 2014.

Brown, Bartram S. "The International Criminal Court in Africa: Impartiality, Politics, Complementarity and Brexit," Temple International & Comparative Law Journal 31, no. 1 (Spring 2017): 145-178 Clarke, Kamari Maxine, Abel S Knottnerus, and Eefje de Volder. “Africa and the ICC: An Introduction.” In Africa and the ICC: Perceptions of Justice, 1–36. Cambridge, United Kingdom: Cambridge University Press, 2016.

Dersso, Solomon A. “The ICC’s Africa Problem A Spotlight on the Politics and Limits of International Criminal Justice.” Essay. In Africa and the ICC: Perceptions of Justice, edited by Kamari Maxine Clarke, Abel S Knottnerus, and Eefje de Volder, 61–77. Cambridge, United Kingdom: Cambridge University Press, 2016. du Plessis, Max, Tiyajana Maluwa, and Annie O'Reilly. Africa and the International Criminal Court. Https://Www.dphu.org/Uploads/Attachements/Books/books_3820_0.Pdf. Chatham House, July 2013. https://www.dphu.org/uploads/attachements/books/books_3820_0.pdf. du Plessis, Max. Rep. Universalizing International Criminal Law The ICC, Africa and the Problem of Political Perceptions . Institute for Security Studies, December 2013. https://media.africaportal.org/documents/Paper249.pdf.

Emmanuel, Okurut, and Among Hope. “The Contentious Relationship between Africa and the International Criminal Court (ICC).” Journal of Law and Conflict Resolution 10, no. 3 (2018): 19–31. https://doi.org/10.5897/jlcr2018.0280.

Hart, Laurel. “The International Criminal Court: Biased or Simply Misunderstood?” UNA-UK Magazine1, no. 2018, October 2018. https://una.org.uk/magazine/2018-1/international-criminal-courtbiased-or-simply-misunderstood The Human Rights Watch. Issue brief. Summary of the Key Provisions of the ICC Statute.

Human Rights Watch, 1998. https://www.hrw.org/news/1998/12/01/summary-key-provisions-iccstatute# The International Criminal Court. “The Court Today.” The Hague: The International Criminal Court, November 2020. https://www.icc-cpi.int/iccdocs/pids/publications/thecourttodayeng.pdf Mbizvo, Samiso. “The ICC in Africa: The Fight against Impunity.” Essay. In Africa and the ICC: Perceptions of Justice, edited by Kamari Maxine Clarke, Abel S Knottnerus, and Eefje de Volder, 39–46. Cambridge, United Kingdom: Cambridge University Press, 2016.

Mude, Torque. “Demystifying the International Criminal Court (ICC) Target Africa Political Rhetoric.” Open Journal of Political Science 7, no. 1 (January 25, 2017): 178–88. https://doi.org/10.4236/ojps.2017.71014.

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Mutua, Makau W. “Africans and the ICC.” Essay. In Africa and the ICC: Perceptions of Justice, edited by Kamari Maxine Clarke, Abel S. Knottnerus, and Eefje de Volder, 47–60. Cambridge, United Kingdom: Cambridge University Press, 2017.

Novak, Andrew. The International Criminal Court. Place of publication not identified: Springer International Publishing, 2016.

Scheffer, David. “The Self-Defeating Executive Order Against the International Criminal Court.” Just Security, June 12, 2020. https://www.justsecurity.org/70742/the-self-defeating-executiveorder-against-the-international-criminal-court/.

UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: https://www.refworld.org/docid/3ae6b3a84.html [accessed 16 December 2020]

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Child Pornography and Revenge Pornography Laws Stand No Chance Against Deepfakes Eryn Yuen

Abstract Deepfake technology is fast approaching a threshold where it will be impossible to discern whether videos are real or computer-generated. This poses a dilemma as proponents of Free Speech have fiercely advocated against its regulation. However, along with the rise in concern of revenge pornography, Deepfake technology further complicates the issue by making it possible for one to falsify pornographic content of a person. This may lead to severe trauma and professional consequences for unsuspecting victims. Deepfake technology has recently been given some boundaries; for example, Deepfake child pornography has been deemed federally obscene, but current laws make it difficult for adult victims of Deepfake revenge pornography to protect themselves. This article first traces the history of legislation against child pornography and revenge pornography, identifying individual rights that protect potential victims as well as the rights many are using to advocate against increased legislation. It then moves on to discuss these rights in the context of newfound Deepfake technology and creates recommendations for increased legislation.

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Introduction Deepfake technology is advancing at a rapid rate. Hao Li, a Deepfake developer and researcher, believes ultra-realistic imaging that is indistinguishable from real life will be available to the public within the next year.1 This has raised significant concern over Deepfake pornography, where an existing or fictional person’s face is incorporated into pornographic videos, replacing the original porn performer. Without having ever taken or recorded an intimate photograph or video, highly realistic and compromising footage of both adults and children could be rapidly distributed across the web. As this technology becomes easily accessible to the average person, there seems to be no limits to the production of nonconsensual pornographic content, either real or computer-generated. Nonconsensual porn is more commonly known as “revenge porn,” and includes the distribution of sexually explicit material without the consent of those within the images.2 Currently, nonconsensual porn distribution is regulated by state while the distribution of child pornography, which is inherently nonconsensual, is criminalized on a federal level. As nonconsensual pornography evolves to include the application of individuals over existing pornographic material, technology now allows for one to create pornographic images of individuals who have never had lewd photos taken of them, either by others or by themselves.

The main human right that has caused the most difficulty for the regulation of any form of pornography historically has been the right of free speech, as proven by the arduous journey it took to confirm child pornography and revenge porn as not constitutionally protected. Legislation criminalizing child pornography, both real and fictitious, was established in 2003 through Title V of the PROTECT Act,3 but the efforts it took to reach this point was a lot more difficult than one might expect since child pornography is generally recognized to be morally unacceptable.

In this paper, I will trace the history of legislation with child pornography and nonconsensual pornography to show the current legislation against Deepfake pornography is insufficient. For the purposes of this paper, I will use the phrase “nonconsensual porn” interchangeably with “revenge porn.” I will only address Deepfakes that use real people rather than computer generated people and will only discuss legislation within the United States.

Lastly, I will argue that nonconsensual pornography and Deepfake pornography should be federally criminalized. As it stands, First Amendment rights too strongly impose on regulating different forms of nonconsensual pornography discrediting the undeniable harm that is attached to it.

Legislation Background Overall, it is very difficult to prove to the court that content-based restrictions are valid, and in order for claims against free speech to be legitimized, it needs to pass strict scrutiny. Strict scrutiny is the highest form of judicial review that courts use to evaluate whether or not laws

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are constitutional.4 This standard is used specifically with laws pertaining to fundamental rights, including anything listed in the First Amendment, and suspect class, which includes race, nationality, religion, and alienage. Due to this high burden of proof that is placed on laws regarding the right of free speech, the criminalization of child pornography and revenge porn was and has been unbelievably difficult. Many believe that the existing revenge porn and child pornography laws are sufficient, but as we approach a new age of computer-generated pornography, it is easy to see that victims will be grossly under-protected.

Child Pornography

The first major case that set limits on First Amendment rights was Schenck vs. US in 1919, which allowed the government to limit speech when there was “clear and present danger.”5 Many called this decision a disaster, as it allowed the government to convict protesters for opposing America’s World War I involvement, but it started the push and pull of the court in deciding what level of free speech needed to be protected and what should be deemed exceptions.

Brandenburg v. Ohio in 1969 was the first case that significantly and immediately affected child pornography legislation, placing many limits on the government’s bandwidth to ban child pornography. Essentially, the case blocked the government from intervening unless they could prove the speech would likely produce “imminent law violation.”6 The “clear and present danger” test from Schenck v. US was rendered useless as a bar against child pornography; this test essentially demanded that the court prove that one would be immediately inclined to assault a child after watching child pornography. However, the previously established Chaplinsky v. New Hampshire in 1942 opened a few doors in limiting speech. Although it came before Brandenburg, its language limiting the burden of proof “lewd and obscene, the profane, the libelous, and the other insulting or ‘fighting words’” to not require proof of imminent harm would eventually allow for the government to label child pornography as not protected under the First Amendment. This connection was not made until 1973 in Miller v. California, which categorized “hard core pornography” as “obscenity” under the Chaplinsky case.7 The suppression of child pornography took a long span of time, requiring many cases to finally narrow down far enough for Miller to label “hard core” pornography as obscene.

During this time where child pornography was protected under First Amendment rights, the industry was given a lot of time to expand and flourish, despite the majority of states taking the opportunity to legislate soon after Miller.8 Although child pornography has now been banned for a while, it is no secret that it is still a lucrative business that has largely gone undetected and unpunished.

Revenge Pornography

Revenge porn is defined as sexual material, both video or images, of an individual that are shared without their consent in order to cause humiliation, embarrassment, or distress,9 but different states have outlawed different specific actions.10 Many of the legal hurdles in criminalizing revenge porn are very similar to those criminalizing child pornography regarding

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free speech. However, unlike child pornography, adult pornography is not categorically outlawed. Attempts to suppress revenge porn falls under the category of content discrimination, which has historically been treated with the least tolerance for government regulation.11 There are many reasons why revenge porn is so difficult to fully prohibit. The law does not always recognize that consent is context-specific. Just because a photo is consensually shared in an intimate setting does not mean that the photo sharer has consented to everyone seeing the photo. Revenge porn websites often rely on Section 230 of the Communications Decency Act, which protects websites from being held responsible for the material that is posted by third parties.12 There have been some successful lawsuits of such websites that stripped their immunity, but not all websites have had challenges successfully brought against them.

Victims of revenge porn can pursue litigation in several ways. 46 states and the District of Columbia have made explicit laws criminalizing revenge pornography and criminal statutes that vary depending on the state.13 The penalties range from probation to misdemeanor or felony with ranging jail time and fines.14 Victims may also file a civil suit, which allows them to receive monetary damages and ask the court to order injunctive relief, demanding that the image be taken down from the website and destroyed.15 Civil suits, however, have practical barriers, as not all victims can afford the attorney fees to bring forward a lawsuit. It is also not guaranteed that the images will be removed, and victims may not want the increased publicity that litigation would bring. Historically, obtaining proof that revenge porn was posted with malicious intent has been difficult. Defendants have been able to claim that they were hacked and therefore get away with their actions, as authorities were not able to prove otherwise or were not willing to investigate thereafter.16 One may expect that the ‘right to privacy’ should be enough to protect revenge porn victims. Within the ‘right to privacy,’ there are four torts, or harm categories that litigation must fall under: false light, misappropriation, invasion of privacy, and public disclosure of private fact.17 False light goes for false publicized material that reflects false beliefs, characteristics, or conducts to the victim.18 Revenge porn may violate the right to privacy under false light in cases where images of the victim were digitally manipulated to show the victim posing or performing an action they never did, or if the material was obtained by hacking if the victim never shared those images with anyone else before. Victims whose footage have been posted on websites may be able to argue the porn websites portray them in a false light, but it is a difficult argument to make and may depend on state laws—therefore not adequately covering all cases.19 Misappropriation generally does not apply to revenge porn cases, as it refers to cases of a person's name or likeness by another is used for profit. In order to litigate on the grounds of invasion of privacy or public disclosure of private fact, one must prove there was a reasonable expectation for privacy. There have been no court cases to establish whether or not revenge porn victims have this reasonable expectation privacy,

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and so this remains an area of uncertainty for those trying to litigate against their virtual assailant.

The last area I will discuss is the protection of copyright law in the context of revenge pornography. Mitchell Brothers Film Group vs. Cinema Adult Theater established that the author of sexually explicit work receives copyright protection over their self-produced material.20 Victims may receive monetary damages through this form of claim. However, copyright law is only limited to those who took the photos themselves and does not protect those who unknowingly had photos taken of them.

By the nature of the internet, however, no matter what path of litigation a victim decides to pursue, it is unlikely that they will be able to erase all traces of their explicit content. The damage done to the name and reputation of victims is irreversible, and it is difficult to account for all of the damages and difficulties victims may experience with future background checks for employment or education.

Application of Deepfakes and Recommendations `The existing confusion surrounding revenge pornography laws have been made increasingly convoluted with the developing technology of Deepfakes. Many have criticized the lack of current legislation protecting individuals from risks of sexual image abuse through software that can take a face and apply it to pornographic videos and images. As the court currently stands, one may need to find a witness who recognized the victim portrayed in the Deepfake pornographic video for there to be enough standing to prosecute. Without it, there would be no harm of the victim proven.21 However, by the time a victim is recognized and informed about a pornographic Deepfake that their image has been put in, it is too late. The damage has already been done and no matter what legal action the victim takes, the video will live permanently on the web and has likely been seen by countless others.

Banning Deepfake pornography also faces the many challenges of overcoming free speech protections against content discrimination. The precedent set by litigated child pornography and revenge porn cases will likely be very relevant as Deepfake pornography becomes more widespread and more cases begin to come forward. As of now while the technology is still developing, the possible legal pathways can only be speculated upon. With the 2003 PROTECT Act outlawing any “visual depiction that is a digital image, computer image, or computer-generated image of, or that is indistinguishable from an image of, a minor engaging in specified sexually explicit conduct,” child Deepfake pornography itself thankfully is not an area of concern.

There needs to be stronger federal protective legislation against nonconsensual pornography, both real and computer-generated. New York vs. Sullivan will protect Deepfakes victims if they can prove that the content was created with malice with a burden of proof that is of negligence or higher.22 It has yet to be tested how the courts may respond to such a testimony. The obscenity clause of the Miller vs. California case that also protected

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child pornography against free speech claims should also be enough to back federal legislation and protect it from being struck down as unconstitutional. The standard for the Miller test is: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.23 One may argue that this should be enough to protect potential victims without needing federal legislation; however, this precedent is by no means a solve-all for Deepfake or revenge pornography. In “Deepfakes: False Pornography is Here and the Law Cannot Protect You,” Douglas Harris writes about his concerns with Deepfake pornography not fitting the obscenity standard, using the hypothetical example of a Deepfake user applying an interesting color scheme into an adapted pornographic image or video to call it an “artistic” venture. This demonstrates how easy it would be for an individual to bypass the Miller test.24 Harris also adds that any victim trying to make a copyright claim will most likely not succeed because unlike revenge porn, Deepfake porn is likely to be seen as a parody which is protected by the fair use doctrine.25 Additionally, if anyone were to receive damages from a copyright claim, it is likely to be the copyright holder of the original pornographic content, not the Deepfake victim.

One may also point to the ‘false light’ category of the right to privacy as sufficient protection; however, if the Deepfake producer puts a disclaimer depicting the video as false, or if the video is low-quality enough that the average person could discern is as fake, victims are essentially powerless. Harris believes that the recently implemented revenge porn laws of different states will be the most powerful weapon Deepfake porn users will have in defending themselves. He adds that statutes punishing revenge porn should add the word “depiction” into the definition of sexually explicit images in order to cover artificially produced images as well.26 This is a good start, but since not all states have revenge porn laws, it would be easy for perpetrators to flee to states where revenge porn is not regulated. As technology continues to develop past what was imaginable decades ago, I agree with Harris’s recommendations as previous laws were not made to fit technology that did not exist yet. However, particularly in cases where Deepfake pornography or revenge pornography is produced to intimidate or coerce individuals, there needs to be a consensus that would categorically criminalize distribution rather than leaving it open to so many loopholes.

Harris’s analysis of the lack of protection against Deepfake pornography brings about the question of whether the harm done by Deepfake pornography is lesser than that of revenge porn, since that appears to be how the law treats it. Anne Gieseke argues that Deepfake pornography has the power to destroy its victims’ lives, as it can greatly hinder their ability to find jobs and force victims into dealing with sexual harassment. Gieseke also brings

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up the point that Deepfake pornography almost exclusively targets women, citing a specific software application that only generates female genitalia called DeepNude as an example, and a study that showed 100% of all pornographic Deepfakes on websites depict women.27 The gendered nature of Deepfake pornography victimization has not been discussed by the court and may be an issue that comes up in further litigation. Although revenge porn is mostly known for its victimization of women, a study done by the University of Exeter in conjunction with the Revenge Porn Hotline in the UK reported found that around out of the callers to the hotline, 73% were women and 27% were men.28 These statistics demonstrate there is a must larger split in the demographics of revenge porn than there is so far with Deepfake pornography. Although I believe it is unlikely the court will strike down Deepfake pornography on the grounds of gender discrimination, it undeniably demonstrates the sexism that is built into the nature of the law and heightens the calls for stronger protections against it.

Currently, Virginia is the only state where nonconsensual pornographic Deepfakes are criminalized, and California allows for victims of pornographic Deepfakes to sue for damages.29 Karolina Mania makes a case favoring the criminalization of revenge porn and nonconsensual Deepfake pornography, as Virginia has done, over making it a civil matter, as California has. She cites the barriers of access civil suits bring to low income citizens as well as the greater effect criminalization has on deterrence.30 She also criticizes America for allowing states to determine their own legislation, as it creates dissonance in definitions and what is permitted. Although I agree with Mania’s preference to criminalization rather than leaving it as a civil matter, if the federal government will not move to create protective legislation, it needs to be up to the states to establish their own laws in order to encourage the rest of the country to as well. If the states can prove how valuable such legislation is in protecting the people, hopefully, the federal government will be moved towards legislation sooner rather than later.

One of the biggest downfalls of the court is the lag that is often experienced due to precedent needing to be set before cases are ruled on. This is primarily evident from the long period from which the concept of child pornography began to the time it was barred. With this understanding, Eric Gerstner recommends that Congress and the states proactively set laws to deter abuses of technologies, including Deepfakes. He advocates for sweeping liability standards that would criminalize depicting any individual without their consent.31 As one scrolls the internet, it is easy to see how this is an unrealistic standard, since celebrities are often depicted by the public in memes or other media without explicitly consenting to the material. There must be a middle ground that can be struck, where images can be used in good faith, but will not ruin the lives of others. Not everything needs to be criminalized, but nonconsensual pornographic content should be.

Nonconsensual Pornography as Domestic Abuse

Different groups have raised the idea of lumping revenge porn under domestic violence, but most prominently have been the voices of Danielle Citron and Mary Anne Franks. They make

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the argument that revenge porn can be a form of domestic violence as abusers often use intimate material to control their partners into doing their will.32 Others have taken the hard stance that it should be litigated as domestic violence as well.33 There are pros and cons to lumping nonconsensual porn into the category of domestic abuse, and though I believe in some cases it should be an option, domestic abuse does not always apply.

Citron and Frank’s view of revenge porn is supported by the emerging domestic abuse framework by Evan Stark called “coercive control,” which defines domestic abuse beyond physical battering instances and includes loss of freedom through threats.34 As Deepfake pornographic software becomes more widely available, it is easy to see how it could be used as a means to threaten individuals. The threats could come from anyone as well—not just expartners, but also strangers on the internet who have access to enough photos of the victims to create a realistic Deepfake.

Litigation and protection guidelines of domestic abuse should give insight to the amount of protection Deepfake victims should be given. Just because the images are not real, if they are indistinguishable from reality, the consequences the victims face from public defamation and destroyed employment opportunities cannot be ignored. Oftentimes, once compromising material is posted, the victims face a plethora of messages from strangers threatening to rape or kill them.35 Although the distributor of the material cannot be directly held accountable for those messages, the psychological damage the victim may endure needs to be taken into consideration as a reason to criminalize nonconsensual porn distribution.

My main apprehensions of categorizing Deepfake pornography and revenge pornography as domestic violence is it may limit the scope of cases that are covered. Revenge pornography is not always done for the purposes of coercion or threats. Oftentimes it is done simply out of spite to make a person’s ex miserable. Labeling all nonconsensual porn as a matter of Domestic Abuse could potentially leave many victims defenseless, particularly those who cannot prove malicious intent or those who have never met the distributor of their image.

Conclusion No matter what strategy is used when litigating against nonconsensual pornography, both fictional and real, it seems that there are many loopholes that could prevent accountability. Current protections, both through the court precedent set by child pornography cases and through constitutional rights, are not enough to stand against the incoming wave of new technology—technology that was never fathomable when the Founding Fathers wrote the Constitution. Ideally, criminalization would be accomplished on a federal level, but as things stand right now, individual state legislation seems to be the most likely way forward.

I have examined the most probable means of protection for nonconsensual Deepfake and revenge pornography. I did so through the examination of court doctrine leading up to the PROTECT Act against child pornography and the right of free speech versus the right of

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privacy. Through this analysis, I cannot help but think of the cliched phrase “with great power comes great responsibility.”36 As we watch the world evolve by cutting edge technology, we must not wait until danger reveals itself before protecting ourselves against it. One could compare releasing new technology into society with no boundaries with releasing a hungry lion into a city with no restraints. Prevention is key. There is still time to establish guidelines before new technologies get released into the world. As a country, we must seize this opportunity of time as a luxury; we may not have it for very long.

Eryn Yuen is a senior at University of California, Berkeley double majoring in legal studies and social we with a minor in English.

Notes Anne Pechenik Gieseke, “‘The New Weapon of Choice’: Law’s Current Inability to Properly Address Deepfake Pornography.” Vanderbilt law Review Vol. 73, No. 5 (2020): 1479-1515, https://cdn.vanderbilt.edu/vu-wp0/wpcontent/uploads/sites/278/2020/10/19130851/The-New-Weapon-of-Choice-Laws-Current-Inability-toProperly-Address-Deepfake-Pornography.pdf.

2 Yanet Ruvalcaba and Asia Eaton, “Nonconsensual Pornography Among U.S. Adults: A Sexual Scripts Framework on Victimization, Perpetration, and Health Correlates for Women and Men.” Psychology of Violence Vol. 10, No. 1 (2019): 1-8, DOI: 10.1037/vio0000233.

3 The PROTECT Act stands for “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today”. Title V. Section 502 describes the standard of child pornography that is prohibited. Additional information can be found through the government website at https://www.congress.gov/bill/108thcongress/senate-bill/151 4 “Strict scrutiny.” Legal Information Institute, https://www.law.cornell.edu/wex/strict_scrutiny.

5 “Schenck v. United States.” Encyclopedia Britannica. (2020), https://www.britannica.com/event/Schenck-vUnited-States 6 James Weinstein. “The Context and Content of New York vs. Ferber.” University of Michigan Press, (2016): 20-21, https://www.jstor.org/stable/j.ctt1gk08jr.5.

7 James Weinstein, “The Context and Content of New York vs. Ferber.”, 23.

8 Weinstein, 24.

9 Kurt Smith, “What is Revenge Porn?” Psych Central. (2018), https://psychcentral.com/blog/what-is-revengeporn/.

10 “State Revenge Porn Law,” FindLaw. (2020), https://criminal.findlaw.com/criminal-charges/revenge-pornlaws-by-state.html.

11 John A. Humbach, “The Constitution and Revenge Porn,” Pace Law Review 35, no. 1 (Fall 2014): 221 12 Janet Portman, “Revenge Porn: Laws & Penalties,” Criminal Defense Lawyer. https://www.criminaldefenselawyer.com/resources/revenge-porn-laws-penalties.htm.

13 “Revenge Porn Laws,” Cyber Civil Rights Initiative. https://www.cybercivilrights.org/revenge-porn-laws/ 14 “State Revenge Porn Law,” FindLaw. (2020) 15 Janet Portman, “Revenge Porn: Laws & Penalties,” Criminal Defense Lawyer.

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Daniel Keats Citron; Mary Anne Franks, “Criminalizing Revenge Porn,” Wake Forest Law Review 49, no. 2 (2014): 367 17 William L. Prosser, Privacy, 48 CALIF. L. REV. 383 (1960) 18 Restatement (Second) of Torts § 652E cmt. a (1977).

19 Amanda Levendowski, “Using Copyright to Combat Revenge Porn.” New York University Journal of Intellectual, Property, and Entertainment Law, Vol. 3 No. 422, (2011): 434-435, https://jipel.law.nyu.edu/wpcontent/uploads/2015/05/NYU_JIPEL_Vol-3-No-2_6_Levendowski_RevengePorn.pdf.

20 Mitchell Bros. Film Grp. v. Cinema Adult Theater, 604 F.2d 852, 860 (5th Cir. 1979), cert. denied, 445 U.S. 917 (1980).

21 Janet Portman, “Revenge Porn: Laws & Penalties,” Criminal Defense Lawyer.

22 Douglas Harris, “Deepfakes: False Pornography is Here and the Law Cannot Protect You”. Duke Law and Technology Review, Vol. 17 No. 1 (2019): 104. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1333&context=dltr.

23 1 Miller v. California, 413 U.S. 15, 23 (1973).

24 Harris, 105.

25 Harris, 107.

26 Harris, 124.

27 Anne Pechenik Gieseke, “‘The New Weapon of Choice’: Law’s Current Inability to Properly Address Deepfake Pornography.” Vanderbilt law Review Vol. 73, No. 5 (2020): 1482.

28 Joe Clarke, “Research reveals gendered trends in revenge porn crimes.” SWFfl. https://swgfl.org.uk/magazine/revenge-porn-research-2019/.

29 Matthew Ferraro, “Deepfake Legislation: A Nationwide Survey - State and Federal Lawmakers Consider Legislation to Regulate Manipulated Media,” WilmerHale. (2019) https://www.wilmerhale.com//media/files/shared_content/editorial/publications/wh_publications/client_alert_pdfs/20190925-deepfakelegislation-a-nationwide-survey.pdf.

30 Karolina Mania, “The Legal Implications and Remedies Concerning Revenge Porn and Fake Porn: A Common Law Perspective,” Sexuality & Culture, Vol 24. (2020): 2090. https://doiorg.libproxy.berkeley.edu/10.1007/s12119-020-09738-0.

31 Erik Gerstner, "Face/off: "DeepFake" Face Swaps and Privacy Laws," Defense Counsel Journal 87, no. 1 (January 2020):12.

32 Daniel Keats Citron; Mary Anne Franks, “Criminalizing Revenge Porn,” Wake Forest Law Review 49, no. 2 (2014): 351.

33 In 2019, Sophie Gallangher wrote a piece in Huffpost called “Why Revenge Porn Needs to be in the Domestic Abuse Bill: ‘The Images Were Used to Destroy My Life’”.

34 Evan Stark, “Coercive Control: How Men Entrap Women in Personal Life”. Oxford University Press, (2007): 13.

35 Frank and Citron, 353.

36 Stan Lee, 1793.

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Bibliography Citron, Daniel Keats; Franks, Mary Anne, “Criminalizing Revenge Porn,” Wake Forest Law Review 49, no. 2 (2014).

Clarke, Joe, “Research reveals gendered trends in revenge porn crimes.” SWGFL. https://swgfl.org.uk/magazine/revenge-porn-research-2019/.

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Editor-in-Chief The Johns Hopkins Undergraduate Law Review | Spring 2021

Daniel Mathew Managing Editor Patty Zhang

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The Johns Hopkins Undergraduate Law Review | Spring 2021

Aashik Bhalodia Becca Badon Daniel Mathew Dylan Ceballos Emily Steirman Ian Zheng Jess Lauer Jill Ji Joe Brennan

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