The Odds of Being Taxed on Gambling Winnings

November 2021 | Kiara Sims, Staff Writer/Editor

There are two things that are always certain in life: death and taxes. But in Vegas, certainty becomes a trinity of death, taxes, and gambling. Contrary to the age-old saying, what happens in Vegas does not stay in Vegas, and some visitors are surprised when the Internal Revenue Service (IRS) reaches out after a fun trip. When considering the taxation of gaming, particularly in Nevada, the factors of game type, residency, and risk aptitude all play into the odds of being properly taxed after gambling in Las Vegas.

It is common for auspicious Las Vegas players to receive a ‘hand pay,’ but the meaning and circumstances of hand pays differ depending on jurisdiction and game. In Las Vegas, the term ‘hand pay’ indicates that someone won an amount above the mandated reporting minimum and will receive a W2G in addition to their cash win from staff.[1] A W2G tax form shows income from certain gambling activities as well as any federal income tax that has already been withheld. The W2G threshold changes depending on the method of gaming. In Las Vegas, a mandated hand pay will occur at different points for table gaming, keno, slot machine gaming, and sports betting, and casinos are obligated to withhold federal income tax from any hand pays starting at $5,000.[2]

The IRS is the primary tax authority in the United States, and they utilize their power through Internal Revenue Codes (IRC). Some IRCs have had direct interaction with gaming in past cases, such as IRC sections 162(a) and 165(d). Section 162(a) describes the common deductions allowed, specifically regarding expenses incurred by a practice of trade or business.[3] Section 165(d) specifies that, when reporting losses from wagering for tax purposes, they can only be reported up to the amount of wagering gains.[4] These IRCs have been used together to rule on gambling as a business expense for individuals who gamble as their trade of choice. One prime example is Mayo v. Commissioner of Internal Revenue, which held that taxpayers incurring expenditures in the trade of professional gambling as defined under section 162 were not subject to a limitation of gambling expense deduction as defined in section 165.[5] These cases are typically held in Tax Court, which only deals in cases between the IRS and taxpayers. However, the IRS is not the only federal body that matters in these instances. Legislation has a large impact on federal taxation, which gives the Senate and the House substantial power over tax rates, common practices, and temporary tax breaks in times of national struggle.

Many tax considerations are not federally based in Las Vegas. To the delight of residents, Nevada does not have a state income tax,[6] which lessens complications of tax reporting for gamblers. However, for non-residents, their home state will have its own taxing expectations. For foreign nationals, these taxing expectations often culminate in a casino withholding a higher percentage of their winnings during a hand pay to ensure that taxes are paid and reported in the United States for large wins.[7] There are also local considerations to tax jurisdiction. Particularly in the Silver State, the Nevada Gaming Commission (NGC) also yields power over all gaming venues.[8] For individuals, the Nevada Gaming Control Board (NGCB), controlled by the NGC, does not have a large impact. However, for casinos and businesses operating in gaming, the NGCB is the body that enforces licenses, taxation, fees, penalties, and fines related to gaming.[9] 

Regardless of when and how a W2G arrives within the control of the IRS, gamers are legally obligated to report their gambling wins even if it was under the minimum reporting requirement.[10] Taxpayers often net their income by subtracting qualified expenses from their income, which lowers the actual income that a person would have had. Similarly, taxpayers are also able to net their gaming winnings with their losses,[11] meaning that less auspicious players likely have close to $0 in income, if not a net loss for their tax year of gambling. Unfortunately, the ability to report a value of $0 leads to conflicts between the IRS and taxpayers who either assume they do not need to report winnings without a W2G or neglect to claim/net the W2G that was sent to the IRS by the gaming institution. This is the ultimate difference between reported income and taxable income, as when a hand pay is not involved, many taxpayers do not report their taxable income. When a hand pay is involved and a taxpayer properly claims it, many taxpayers claim equal losses without proper backup documentation, leaving room for the IRS to contest the validity of the tax return.

One might think that a casino-provided document detailing wins and losses for the tax year would be sufficient for the IRS, but this has proven a feeble argument in precedent. In Mayer v. Commissioner of Internal Revenue, Mayer, the gambling taxpayer, filed his taxes and reported his gambling net income according to the data provided by Caesars. This is a common and generally accepted practice. The Tax Court, however, determined that a Caesars Entertainment win and loss statement was not sufficient evidence of accumulating gambling losses, resulting in a decision that made Mayer pay taxes on the full winnings with no consideration to his previous losses for netting purposes.[12] Other cases that the IRS has pursued against taxpayers are rooted in a lack of reporting and a lack of backup documentation. In Coleman v. Commissioner of Internal Revenue, the Tax Court surprisingly ruled in favor of Coleman, another gambling taxpayer who provided no tax return at all. The Court used bank statements to determine that Coleman did not have remaining winnings and must have had a net gambling loss within 99% confidence range. He then had to file an amended return displaying the net income process for his gaming.[13] Most taxpayers are not as lucky as Coleman, and it is unlikely that neglecting to file a tax return when the IRS has a W2G will result in the same outcome.

Issues of proper claim and reporting will only grow in the future. With the COVID-19 pandemic forcing gambling taxpayers to stay home, online gaming rose in popularity. Many casinos now have online hubs for slot machines, and online gaming has expanded from video games to sports betting. These money-making methods are fairly unstandardized, and they currently lack consistent reporting and execution guidance. Looking at sports betting, its legalization is happening state by state and varies by specifications of physical, online, and mobile format.[14] Because sports betting does not need to occur in person, it has many viable formats, but those that are remote create additional regulatory difficulty for organizers and legislators. Due to its novelty, many taxpayers are unsure if their virtual gambling gets reported to the IRS, causing additional inconsistency. Whether it be online or not, income made from these gaming activities are subject to current and future tax legislation on gambling. Legislative changes will likely start to mention online and mobile gaming, as lawmakers must consider the new normal that the United States faces.

The Tax Cuts and Jobs Act of 2017 (TCJA) is by far the largest legislative change that has impacted gaming taxation recently. Its effects were particularly bad for professional gamblers, as the TCJA limited deductions for gambling.[15] Without these limitations, gambling losses could have previously offset income that was not from gambling or gaming. Beyond tax reform, gambling laws are often changing. There are constant calls for adjustments in the reporting limitations, and with Nevada making far less in tax income from gaming than other states with large gambling industries,[16] state-based change may not be far. Since these changes will impact how income from gambling is treated by the IRS, it is important for gamblers to monitor which of their activities are reported and maintain a record of their gains and losses. After all, Las Vegas may be Sin City, but most tourists probably do not think that tax evasion will be the crime that they commit while there.

With many taxpayers neglecting to report income that is not from a hand pay and the inability for the IRS to pursue all of them, what are the odds of the average taxpayer being taxed on their gambling winnings? First and foremost, these odds will change based on residency and game type. Secondly, these odds are subject to legislative and cultural changes, both recent and upcoming. Lastly, these odds shift with every new tax code or piece of legislation passed. In a world that is constantly changing, tax law is never stagnant. For the average taxpayer gambling in Las Vegas, it is important to ask questions during a hand pay, because those winnings are reported to the IRS by the casino. If the odds are against the taxpayer, a lack of self-reporting could culminate in legal troubles.

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Sources

1. “Why Did I Receive a W2G?,” Bet MGM, accessed November 22, 2021. 

2. Ibid.

3. 26 U.S. Code § 162

4. 26 U.S. Code § 165

5. Eric Zilber, John W. McKinley, and Matthew Geiszler, “TCJA Clarifies Wagering Loss Deduction Rules,” The CPA Journal (The CPA Journal, June 11, 2019).

6. Rocky Mengle and Sandra Block, “9 States with No Income Tax,” Kiplinger (Kiplinger, October 19, 2021).

7. “Gambling Winnings Tax on Foreign Nationals: US Tax Return and IRS,” Artio Partners, September 18, 2017.

8. “Gaming Commission,” Nevada Gaming Control Board: Gaming Commission, accessed November 22, 2021.

9. “Tax & License Division.” Nevada Gaming Control Board: Tax & License Division. Accessed November 22, 2021.

10. “Topic No. 419 Gambling Income and Losses,” Internal Revenue Service, accessed November 22, 2021.

11. Ibid.

12. Reece Morrel, “Why the US Tax Court Hates Casino Win/Loss Statements,” Morrel Law PLLC, June 11, 2018.

13. CPA James A. Beavers, “Gambler Is Big Winner in Tax Court,” The Tax Adviser (The Tax Adviser, January 1, 2021).

14. Ryan Butler, “Sports Betting Legalization Tracker: New York Operators Announced Soon,” Action Network (The Action Network, November 3, 2021).

15. CPA Wei-Chih Chiang, “Tax Reform Law Deals Pro Gamblers a Losing Hand,” Journal of Accountancy (Journal of Accountancy, October 1, 2018).

16. David McGrath Schwartz, “Nevada's Tax Income from Gaming Well below Other Markets,” Las Vegas Sun, October 7, 2011.

Texas’ New Voting Law: Protector or Persecutor

November 2021 | Luke Perea, Staff Writer/Editor

In light of the recent controversy surrounding the Presidential Election of 2020 regarding compromised election integrity, states have begun to draft their own bills attempting to address concerns of voter fraud. One such state is Texas, whose congress recently introduced Senate Bill 1 (SB1). This bill is not only the most comprehensive of the new bills, but it has also been met with the most disapproval. The subsequent backlash of SB1 has resulted in several groups suing the state, citing that the bill introduces discriminatory provisions that unfairly restrict certain demographics from voting. While Americans wait for the deliberation of the bill amidst a foggy cloud of partisan narratives, it is important to delve into the content of the bill itself to determine what is really written inside SB1 and see if the lawsuits’ claims hold any merit.

SB1 contains a plethora of legislative measures designed to protect election integrity. The bill’s most noteworthy provisions include its ban on 24-hour voting and drive-through voting, new mail-in restrictions, anti ballot harvesting legislation, and restrictions on third-party voter assistance.[1] The supporters of SB1 have ardently maintained that its legislation is written with the sole objective of eliminating voter fraud. While these are not the only provisions introduced within the bill, these specific new laws have been the center of national media coverage surrounding SB1.[2] The heightened media coverage is due in part to these provisions being the most restrictive of the new legislation, but it is also due to the significant opposition that these measures have received. 

The backlash against SB1 has proved to be both extensive and swift, with several large groups joining together to produce multiple lawsuits against the bill. The Department of Justice (DOJ) is, at the date of publishing, the most recent and notable of these lawsuits. A statement from the DOJ reads, “Texas Senate Bill 1’s restrictions on voter assistance at the polls and on which absentee ballots cast by eligible voters can be accepted by election officials are unlawful and indefensible.”[3] Additional suits have been filed jointly by numerous organizations such as the American Civil Liberties Union and the Texas Civil Rights Project, amongst many others.[4] The suits, echoing the DOJ, have accused the aforementioned provisions of being discriminatory against voters of different demographics and “the organizations that represent, assist, and support these voters.”[5] To truly determine the future of SB1, each measure requires further interpretation, beginning with the restrictions of mail-in balloting.

The first provision that has been contested by the lawsuits is the new restrictive measures in regards to mail voting. In the DOJ’s statement on their lawsuit, they purport that SB1 is a direct violation of Section 101 of the Civil Rights Act, which reads that a “rejection of mail ballots and mail ballot request forms because of certain paperwork errors or omissions that are not material to establishing a voter’s eligibility to cast a ballot” is considered a suppression of voters’ rights.[6] Now, SB1 does include new requirements for identification in order to apply for mail voting.[7] The bill also introduces a signature verification process, which does allow a committee to investigate whether a signature matches the one on the application for early voting or any other signed document by that person.[8] However, SB1 also provides that voters who potentially made a mistake writing their signature, or even outright forget their signature to reclaim their ballot via mail, will be notified by phone call or email. Furthermore, they may still come to the clerk’s office and correct their mistake, even if the committee determines it is too late on election day.[9] While these provisions do not make mail-in balloting easier for voters in Texas, they also do not outright prevent civilians from voting in any capacity. Since this procedure does not include a legal omission of a mailed ballot, this provision does not seem to violate the Civil Rights Act. As such, this aspect of the DOJ’s suit likely would hold no merit.

 Many lawsuits have claimed that SB1, through its removal of 24-hour and drive-through voting, is discriminatory against voters, specifically against voters of color. Statements within the suit claim that because of the fact that the year 2020 yielded a record minority turnout in Texas, coupled with “Texas’ history of discrimination in the electoral process,” then the bill must have been written with discriminatory intent.[10] Although 24-hour and drive-through early voting is eliminated within the bill in Section 3.13, the bill expands the hours for daytime in-person early voting available in Section 3.09.[11] The greatest increase for voting hours is from 6 a.m. to 10 p.m. in counties with a population of 55,000 or more, which would include urban centers that house the highest concentration of minorities compared to anywhere else in the state.[12] These provisions seem to counteract the removal of drive-through voting in order to provide more opportunity for early voting, while doing it in a presumptively safer way. While Texas did yield a record minority voter turnout in 2020 and did write racist laws in the Reconstruction era, the plaintiffs do not provide a concrete description or clear reference of how this specific provision is written to suppress minority voters. 

Additionally, the plaintiffs argue that because of the removal of drive-through voting as well as restrictive voter assistance laws, the disabled are discriminated against. They cite the Americans with Disabilities Act (ADA), which states that a “public entity may not deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service...”.[13] The plaintiffs then claim that because SB1 does not allow for someone to provide adequate assistance to someone who may need it, the bill is in violation of the ADA. Moreover, the DOJ asserts that “Senate Bill 1 harms those voters by barring their assistors from providing necessary help, including answering basic questions, responding to requests to clarify ballot translations or confirming that voters with visual impairments have marked a ballot as intended.”[14] However, Section 6.02 of SB1 states that any person who has a physical disability, such as one who cannot physically read the ballot or see it, can receive assistance with either “marking or reading” the ballot.[15] Even though the bill does not allow assistants to help for in-person voting, fortunately Texas already has election officials stationed at in-person locations to provide additional physical assistance to the disabled.[16] For mail voting, the bill states that anyone assisting a voter must fill out additional information, such as their relationship to the voter as well as confirming they were not compensated.[17] Nowhere in the bill does it bar a mail assistant from giving physical aid to someone who is disabled, so long as they fill in the aforementioned information.

An additional provision that is heavily contested relates to ballot harvesting, which is the practice of a third-party political organization member who volunteers to transport someone’s ballot for them. In the joint lawsuit, the plaintiffs argue that SB1’s anti ballot harvesting provision violates both the 1st and 14th Amendments.  The plaintiffs claim that the bill “regulates a sweeping amount of noncommercial political speech and constitutionally protected expressive conduct.”[18] Additionally, it is argued that the provision’s “expansive and open-ended language is unconstitutionally overbroad” and in violation of the 14th Amendment.[19] However, Section 7.01 contains clear language on what is defined as ballot harvesting, and it excludes penalties for anything that does not involve a physical ballot or compensation in exchange for ballot delivery.[20] Additionally, the bill explains that any person found to have delivered ballots for a specific candidate may be liable to compensate the opposing party.[21] Ultimately, this provision opposes the claim that the penalty against a ballot harvester is unclear and does not abide by due process.

Voting is essential for American democracy to function and thrive. It is natural to question any voting legislation to ensure all Americans have equal access to the ballot box. Texas Senate Bill 1 is undoubtedly restrictive, but many provisions were written to provide voters who may be negatively affected by the changes an opportunity to still have their voice heard in a safer way. The legal system will ultimately decide what will happen with SB1, setting a consequential precedent for state voting laws in the future. However, upon investigating its content, it is fairly clear that SB1 is designed with the goal of addressing election integrity, not suppressing voters for partisan gain.

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Sources

1. Ura, Alexa. “The Hard-Fought Texas Voting Bill Is Poised to Become Law. Here's What It Does.” The Texas Tribune. The Texas Tribune, August 30, 2021.

2. Finn, Teaganne. “Justice Department Sues Texas over Restrictive Voting Law.” NBCNews.com. NBCUniversal News Group, November 4, 2021. 

3. NBC 5 Dallas-Fort Worth. “DOJ Takes Aim at Texas, Sues over SB1 Voting Law.” NBC 5 Dallas-Fort Worth. NBC 5 Dallas-Fort Worth, November 4, 2021. 

4. “Groups File Lawsuit against State of Texas over Voter Suppression Bill SB1.” American Civil Liberties Union. September 3, 2021. 

5. Texas SB1 Complaint, OCA Greater Houston et. al. v. Texas Secretary of State Jose A. Esparza et. al., Pg. 1

6. “Justice Department Files Lawsuit against the State of Texas to Protect Voting Rights.” The United States Department of Justice, November 4, 2021. 

7. Relating to election integrity and security. Pg. 33, 87th Leg., 1st Special Sess., (TX., 2021).

8. Ibid, 44.

9. Ibid.

10. Texas SB1 Complaint, pg. 21.

11. Relating to election integrity and security, Pg. 17.

12. “2020 Census P.L. 94-171 Redistricting Data.” Texas Demographic Center. 

13. Texas SB1 Complaint, pg. 35.

14. “Justice Department Files Lawsuit against the State of Texas to Protect Voting Rights.” The United States Department of Justice, November 4, 2021.

15. Relating to election integrity and security, Pg. 51.

16. “Poll Worker Webinar Training: Working with Voters with Disabilities.” Disability Rights Texas, July 23, 2021. 

17. Relating to election integrity and security, Pg. 52.

18. Texas SB1 Complaint, pg. 56.

19. Ibid.

20. Relating to election integrity and security, Pg. 59.

21. Ibid.

Indigenous Genocide in the US: Will There Be Punishments for Violating International Law?

November 2021 | Annie Vong, Staff Writer/Editor

Thanksgiving festivities may be over for now, but the US government’s gruesome history towards Indigenous people remains. From disrespecting numerous treaties signed with Indigenous communities to forced assimilation via residential schools, US-Indigenous relations have been tumultuous to say the least. Due to these actions, the US government could possibly face consequences for violating international law. In order to see if that is the case, a few questions must be answered first. Do the US government’s actions towards Indigenous communities fit the UN Convention’s definition of genocide for any crimes committed after 1948? And what happens if the US government is found guilty of committing genocide against Indigenous peoples? 

Genocide is widely known as any intentional action to destroy a religious or ethnic group. After the Holocaust in World War II and the Nuremberg trials, the international world clammored to create a legal definition of genocide that could be used in International Criminal Court (ICC) proceedings to punish those who are found guilty of engaging in ethnic cleansing. As such, the UN’s Convention on the Prevention and Punishment of the Crime of Genocide was published in 1948, providing a legal definition of genocide and the procedures a member state must take after accusing another state of genocide.[1]

Before a declaration of genocide can be made, a member state of the UN must bring proof that the genocide was committed that fits within the definition stated in Article 2 of the Convention, which will be explained in detail later. Under the Convention, member states have an obligation to prevent and punish “responsible rulers, public officials or private individuals.”[2] Those that are accused of committing genocide are to be tried in a tribunal in their own territory or in an international tribunal.[3] From there, if the party is found guilty, then the tribunal will impose any punishments deemed necessary.[4]

UN’s Convention on the Prevention and Punishment of the Crime of Genocide details two elements in its definition of genocide, with Article 2, Section 1 being: “a mental element: the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’”[5] The phrase “intent to destroy” ensures that an unsuccessful attempt of genocide is still punishable. Next, Article 2, Section 2 describes, “a physical element.” The five acts that fall under the “physical element” include: “killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group.”[6] For the physical element, only one of the five acts must be committed, combined with the mental element in that there was an “intent to destroy,” to fit the definition of genocide. 

Article 2 Section 2B and 2E: “causing serious bodily or mental harm to members of the group” and “forcibly transferring children of the group to another group.”

While all five acts have been committed by the US, the US government can only be held liable for acts committed after the adoption of the Convention. As such, only three of the five acts described in Article 2, Section 2 of the Convention have been committed by the US government after the adoption of the Convention. With the Indian Civilization Fund Act of 1819, the United States and several religious institutions funded and utilized residential schools with the intention for indigenous children to assimilate to American culture.[7] These schools separated Indigenous children from their families and inflicted physical, mental, sexual, cultural, and spiritual abuse for practicing traditions and speaking their native language.[8] Even more horrifying, in 1987, a Board of Indian Affairs-run school was found to have failed in investigating internal sexual abuse allegations.[9] The principal of the school itself, John Boone, was convicted of committing child abuse while in charge of the residential school and was given a life sentence. This would fit the Article 2, Section 2B definition of “causing serious bodily or mental harm to members of the group.” Moreover, an estimated 40,000 children died in or because of residential schools in the US.[10] Many Indigenous children have never returned home and remain unaccounted for to this day. The permanent displacement of Indigenous children from their families and tribes would fit the Article 2, Section 2E definition of “forcibly transferring children of the group to another group.” 

Article 2 Sect. 2D: “imposing measures intended to prevent births within the group.”

In 1970, the average birth rate of Indigenous women was 3.79, while the median for all racial and ethnic groups was 1.79.[11] The creation of the Indian Health Service, specifically their family planning division, occurred to reduce the birth rate of Indigenous women, weakening their political power.[12] It was common in the 1960s for the Indian Health Service to sterilize Indigenous women without their knowledge or consent. The Indian Health Service used coercion to obtain signatures on consent forms, had women sign consent forms after they had given birth while still under the influence of a sedative, and did not provide the required waiting period of seventy-two hours in between signing the consent form.[13] As a result of these practices, the Indigenous birth rate dropped from 3.79 to 1.8. This would fit the Article 2, Section 2D definition of “imposing measures intended to prevent births within the group.”

Article 2 Section 1: “a mental element: the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’”

Even though there is evidence that the United States engaged in the physical elements of genocide, the actions must have been done with the “intent to destroy” to be considered genocide. In determining whether the actions of the US government fit the mental element defined in Article 2, Section 1, we can look to past tribunals for genocide. The International Criminal Tribunal for the former Yugoslavia stated that the repetition of destructive and discriminating acts constitutes intent.[14] Applying that logic in this case, the prolonged use of residential schools and sterilization procedures without informed consent in the US would fit the definition of the mental element. 

What would the consequences look like?

Historically, there have been minimal consequences for those found guilty of committing genocide. The lack of consequences is especially prominent in regards to holding more powerful and wealthier countries accountable, particularly the countries that have a seat on the United Nations Security Council (UNSC). Any sanctions brought by the legislative body of the UN that are leveled against the countries in the UNSC can be struck down by a single veto vote.[15] This proved problematic during the 1980s, when the International Court of Justice found the United States guilty of breaching international law after involving themselves in Nicaragua’s civil war by funding and arming Contra fighters. The US was ordered to pay 17 billion dollars in reparations, but the country utilized its veto power to evade consequences.[16] Additionally, during the Cold War, the US used its veto power to strike down a UN resolution that would have deplored the US’s invasion of Grenada.[17] Breaking and evading the consequences of international law seems to be standard practice for the United States, and it will likely happen in the event that the US government is found guilty of genocide against its Indigenous peoples. 

The Convention does not specify any statute of limitations for the crime of genocide, so it is still possible for the US government to be held accountable for crimes committed after 1948. Previous ICCs that investigated genocides in former Yugoslavia and Rwanda have found a handful of people from their respective governments guilty and given them individualized prison sentences, rather than finding the entirety of a government guilty and sanctioning the country at large. However, most people that could be tried and found guilty of genocide in the US may not be alive today. Nonetheless, there is an ICC trust fund for victims that operates independently of ICC investigations and can give out reparations to victims of those that violated international law.[18] When enforcing international law, the US should not avoid facing consequences or paying reparations. This would ensure that the UN is a governmental body that does not only serve the interests of wealthier countries and punish the countries that do not have a seat on the UNSC, but rather a body that seeks fair treatment for all member states. Paying reparations is a small bill for the US government itself, but it can be incredibly substantial in repairing the damage done to the generations of Indigenous communities. 

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Sources

1. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948 78 U.N.T.S. 277, S. Exec. Doc. O, 81-1 (1949).

2. Ibid., 1.

3.  Ibid.

4. Ibid.

5. Ibid.

6. Ibid.

7. U.S., Congress, House, An Act making provision for the civilization of the Indian tribes adjoining the frontier settlements (Civilization Fund Act), Pub.L. 15–85.

8. “US Indian Boarding School History.” The National Native American Boarding School Healing Coalition. National Native American Boarding School Healing Coalition. Accessed November 22, 2021.

9. Ibid.

10.  Brooks, Brad. “Native Americans Decry Unmarked Graves, Untold History of Boarding Schools.” Reuters. Thomson Reuters, June 22, 2021.

11.  Lawrence, J. (2000). The Indian Health Service and the Sterilization of Native American Women. American Indian Quarterly, 24(3), 400–419.

12. Ibid., 4.

13. Ibid.

14. Devrim Aydin, "The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts," Journal of Criminal Law 78, no. 5 (October 2014): 423-442.

15.  United Nations Charter, opened for signature June 26, 1945.

16.  Castillo, Mariano. “Nicaragua May Revive $17 Billion Claim against U.S.” CNN. Cable News Network, July 22, 2011. 

17. Bernstein, Richard. “U.S. VETOES U.N. RESOLUTION 'DEPLORING' GRENADA INVASION.” The New York Times, October 29, 1983

18.  Evans, Christine. “The Right to Reparations in International Law for Victims of Armed Conflict.” Cambridge Studies in International and Comparative Law, 2012.

A Matter of (Mis)Interpretation: Using Dispositions of Supervision in Illinois DUI Sentencing

September 2021 | Joseph Lehman and Ria Patel (University of Illinois at Urbana-Champaign)

Introduction

In the state of Illinois, a third DUI violation is a Class 2 felony. But, under Illinois law, even if a defendant gets a DUI charge dismissed after successfully completing a sentence of supervision, that sentence can be used as one of the three violations to upgrade a DUI to a Class 2 felony. This understanding, while accepted by a majority of the Illinois Supreme Court, violates basic principles of statutory construction and contradicts the common public understanding of the words of the statute. 

In some first-time traffic offenses, Illinois judges have the discretion to impose a sentence of supervision. When a person receives a sentence of supervision, they are first given a set of restrictions. After a set period of time, they must appear before the judge, demonstrate compliance with the restrictions, and then the charge can be dismissed. The law provides that a dismissal after successful completion of supervision, “shall be deemed without adjudication of guilt.”[1] The purpose of a sentence of supervision is to impress upon the defendant the seriousness of their actions, while also showing a reasonable amount of mercy. To this end, the plain text of the statute commands that a defendant shall be considered not guilty of an underlying alleged violation after successfully completing a sentence of supervision. Accordingly, they would not be responsible as a matter of law. Unfortunately, a majority of the Illinois Supreme Court disagreed with this reading, and this permits the state to impose harsher penalties against defendants. Illinois law provides that “Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol…[if] the person committed a violation of subsection (a) or a similar provision for the third or subsequent time.”[2]

A third violation is a Class 2 felony. This statute - §11-501(d)(1)(A) - transforms what could be a misdemeanor charge into a felony with potentially severe consequences. Here is where the danger of accepting a sentence of supervision lies: the charge for which a defendant received supervision can be counted as a “violation” for the purposes of §11-501(d)(1)(A). Under the current majority rule, two “violations” of a DUI statute is a misdemeanor, and three “violations” - including the violation for which there was never a finding of guilt - is a felony.  This means that a defendant who is told that they will not be found guilty of an alleged offense can actually face a felony charge later because they chose to accept supervision. 

Some might argue that if a defendant is truly innocent, then they should not accept a sentence of supervision in the first place. However, the mere fact that a defendant accepts such a sentence does not mean they concede guilt. Consider a similar, though not identical, issue — pardons. The US Court of Appeals for the Tenth Circuit recently noted that a defendant’s “acceptance of the pardon did not have the legal effect of a confession of guilt” even though it may “make the pardonee look guilty by implying or imputing that he needs the pardon.”[3] The same holds true here: acceptance of supervision, by its terms, does not have the legal effect of a confession of guilt, even if it may make the defendant look guilty. 

Unfortunately, a majority of the Illinois Supreme Court rejected this understanding of supervision laws. In truth, however, the original public understanding of these statutes supports this reading and compels the conclusion that sentences of supervision may not be counted against a defendant for purposes of statutes that punish repeated violations of the same law (known as recidivism statutes). 

The Current Majority Rule

In 1995, the Illinois Supreme Court addressed this question in People v. Sheehan.[4] Kane County prosecutors charged two defendants – Henry Sheehan and Victor Pall – with felony DUI. Typically, DUI is a misdemeanor, but since both Mr. Sheehan and Mr. Pall each had records with one previous DUI conviction and one previous successfully completed DUI with a supervision disposition, the state charged them with aggravated felony DUI. The state’s theory was that, even though there was never a finding of guilt with the original DUI, it should count as a violation for recidivism purposes. The trial court disagreed with the State and dismissed the cases, the State appealed, and the Illinois Second District Appellate Court affirmed the dismissal. The Illinois Supreme Court, however, reversed the trial and appellate decisions.

The Court recited the procedural history and explained the authority split on this matter. The Second and Fifth Districts held that sentences of supervision could not be counted as violations for enhancement purposes; the First, Third, and Fourth Districts found the opposite.[5] The Supreme Court then turned to the merits, considering what it means to commit a violation for the purposes of DUI recidivist laws. The Court concluded that “the word ‘commit’ is to perpetrate, as a crime; to perform an act,” and that the term ‘committed’ “has a broader scope than the term ‘convicted’.”[6] The Court argued that the legislature used the word “committed” to broaden the scope of actions that could be used as enhancements. On this basis, the Court determined that even sentences of supervision count as committing a violation for future sentencing purposes.

Justice Moses Harrison dissented. His arguments focused, first, on the Rule of Lenity, which counsels that ambiguities in criminal statutes should be resolved in favor of the defendant. Second, he discussed the legislative history of DUI law and recidivism statutes.[7] Finally, because of the ambiguity of the statute, Justice Harrison posits that the Rule of Lenity demands that the statute be read in favor of the defendant. That reading compels the conclusion that prosecutors may not use supervision dispositions to enhance a DUI to felony.

The Original Public Understanding

In Illinois courts, “the cardinal rule of statutory construction is to ascertain the intent of the legislature.”[8] To determine the legislative intent, courts begin with the plain text of the statute, and the statute’s words “are to be given their ordinary and popularly understood meaning.”[9] In this way, while Illinois courts adhere to an original-intent form of Originalism, their textualist analysis conforms to Justice Scalia’s original-public-meaning Originalism. For this reason, we approach the meaning of Illinois law from this original-public-meaning perspective.

Under this framework, there are two words in 625 ILCS 11-501(d)(1)(A) that undercut the Supreme Court’s analysis in Sheehan: “committed” and “violation”. The word ‘commit’ means “to carry into action deliberately: perpetrate.”[10] While an individual can certainly perpetrate a crime without being caught, as a matter of law, a crime has not been committed without a finding of guilt. Recall: a sentence of supervision shall be “deemed without adjudication of guilt.”[11] If there is not a finding of guilt, then the defendant would not be responsible for the crime as a matter of law. 

Second, the term “violation”. While “violation” indeed covers more than the term “conviction” – a point made and addressed by the Sheehan majority – it is still limited. ‘Violation’ means “an infraction or breach of the law.”[12] Since every defendant is innocent until proven guilty, the default assumption – until a fact finder determines guilt – is that the defendant did not breach the law. This presumption, being foundational to American law, surely impacts what the public understands to be a violation of a statute. Once again, sentences of supervision are without adjudication of guilt. If a court does not enter a finding of guilt against a Defendant, then it is impossible to maintain that the Defendant violated a statute as a matter of law. It is also worth noting, as Justice Harrison did in his dissent, that fair-minded jurists could disagree about the application of this sentencing rule. If the rule was unanimous among the appellate courts, the Supreme Court would have never taken the case. But, since there was disagreement, the Rule of Lenity ought to apply. This, on its own, is enough to see the flaw in Sheehan.

Conclusion

The supervision statute in Illinois exists to give a warning to motorists who make the mistake of driving drunk. Defendants are reeled in, being told that it will not be considered a conviction and that the court will not find them guilty of the alleged offense if the defendant successfully completes the supervision requirements. Unfortunately, Illinois’ current practice of using those supervision sentences against motorists undercuts the less-severe nature of supervision. Though it may seem counterintuitive to some, acceptance of supervision, by its terms, does not have the legal effect of a confession of guilt, even if it may make the defendant look guilty.  If a charge is dismissed “without an adjudication of guilt,” then, as a matter of law, the defendant did not violate the statute. It is fundamentally unfair to hold a defendant accountable for a previous action that the court told him he was not guilty of committing. Justice Harrison, along with the Second and Fifth District Appellate courts, got it right: supervision cannot be used to enhance a sentence under a recidivist statute.    

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Sources

1. Unified Code of Corrections, 730 ILCS 5/5-6.3.1(f) (2021).

2.  Illinois Vehicle Code, 625 ILCS 11-501(d)(1)(A) (2019).

3.  Lorance v. Commandant, No. 20-3055, Fastcase, 1, 8, (10th Cir. Sept. 23, 2021)

4.  659 N.E.2d 1339 (Ill. 1995).

5.  Compare People v. Sheehan, 633 N.E.2d 151 (Ill. 2nd Dist. 1995); People v. Harrison, 225 Ill.App.3d 1018 (Ill. 5th Dist. 1992) with People v. Winkler, 618 N.E.2d 661 (Ill. 1st Dist. 1993); People v. Lambert, 619 N.E.2d 534 (Ill. 3rd Dist. 1993); People v. Tinkham, 639 N.E.2d 917 (Ill. 4th Dist. 1994).

6.  Supra note 4 at 1343 (citing Black’s Law Dictionary 273 (6th ed. 1990)) (internal quotation marks omitted).

7.   Supra note 4 at 1345 (Harrison, J., dissenting) (While Justice Harrison’s argument related to legislative history is compelling, the canons of interpretation counsel that interpretation begins with the ordinary meaning of a text. See infra note 8. Additionally, legislative history is a dubious source of intent. Indeed, the “use of legislative history is not just wrong; it violates constitutional requirements of non delegability, bicameralism, presidential participation, and the supremacy of judicial interpretation." Antonin Scalia & Bryan Garner, Reading Law: the Interpretation of Legal Texts, 388 (2012), see also, Adrian Vermeule, Legislative History and the Limits of Judicial Competence: the Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1896 (1998).  For these reasons, we do not consider or address legislative history). 

8.  Stewart v. Industrial Comm'n, 504 N.E.2d 84, 86 (Ill. 1987).

9.  Kozak v. Retirement Board of the Firemen's Annuity & Benefit Fund of Chicago, 177, 447 N.E.2d 394, 396 (Ill. 1983).

10.  Bryan A. Gardner, Commit, Black’s Law Dictionary, 308 (7th ed. 2016).

11.  Supra note 1. 

12.  Supra note 10 at 1705.

Unmasking the Mandates in Classrooms

September 2021 | Lauryn Shatzel, Staff Writer/Editor

The COVID-19 pandemic has severely impacted the way children learn in school. Public K-12 school districts have begun to impose mask mandates, which has angered some groups of parents. These parents have argued that school districts are infringing on their parental rights to determine how they medically take care of their children. As a response to this, some governors in states such as Florida, Texas, and South Carolina have created mask mandate bans to allow parents to have more freedom over their children's well-being in schools. There are three main groups that believe they have the legal authority to protect minors in schools: parents, school districts, and governors. Ultimately, this raises the question of which group has the legal power to make health decisions in public schools?

When the pandemic began, the United States was thrust into a position where the federal government chose to let states decide how to protect people from COVID-19. Throughout the pandemic, governors have been in charge of public health decisions at both the local and state levels. As such, this has become the new status quo, with some governors believing that they should maintain this authority and control how school districts manage the pandemic. [1] If governors can create mask mandates and ban mask mandates in places such as restaurants, then theoretically they could do the same in public schools. This would not be the first time that the government would get involved in public health matters. In Machovec v. Palm Beach County, Fifteenth Judicial Circuit Court Judge John S. Kastrenakes stated, “the right to be free from governmental intrusion does not automatically or completely shield an individual's conduct from regulation.”[2] Essentially, just because citizens are free from the government intervening in their private life does not mean that the government cannot regulate certain behaviors. Judge Kastrenakes cited the U.S. Supreme Court’s decision in Jacobson v. Massachusetts (1905), arguing that it permitted a local government to impose a vaccine mandate during a public emergency. [3] This belief of community safety over individual freedoms has been a responsibility of the government for over a century, and this current situation would be no different. 

While governors do enforce mask mandates for restaurants and public indoor spaces, public K-12 schools encounter a different set of circumstances because of the relationship between minors and their parents. According to Florida statute §1014.03, the state “is not allowed to ‘infringe on the fundamental rights of a parent to direct the upbringing, education, health care, and mental health of a child ‘without demonstrating that such action is reasonable and necessary to achieve a compelling state interest.’”[4] This law is not only applicable in Florida, but it can serve as a model for the rights of parents in other states. Many parents do not want the federal government to make decisions that could potentially harm their children, regardless of whether it involves mask mandates or mask mandate bans. When governors create legislation to enforce policies that affect children’s health in schools, they can interfere with parental rights. According to Florida’s Leon County Circuit Judge John C. Cooper, when the government seeks “to enforce a policy through executive order, and through actions that violate the provisions of the parents’ Bill of Rights, is by definition, arbitrary and capricious.”[5] In short, when the governor creates a mask or lack of mask-wearing legislation that purposefully goes against parental rights, that is an abuse of power. Ultimately, many parents believe that classroom mask mandates violate their rights and that the governor cannot make decisions in public schools that affect their child’s health.

While governors and parents are trying to dictate mask-wearing for minors in schools, public school districts want to establish mask mandates or mask mandate bans to enforce safety in their buildings. Judge Cooper further opined, “that while the governor and others have argued that a new Florida law gives parents the ultimate authority to oversee health issues for their children, it also exempts government actions that are needed to protect public health and are reasonable and limited in scope… a school district’s decision to require student masking to prevent the spread of the virus falls within that exemption.”[6] If school districts believe that enforcing masks or enforcing people not to wear masks will create a healthier environment for minors during a pandemic, it is within the district's rights to do so. This, however, creates a natural conflict between school districts and parents.

The natural conflict ultimately leads to court cases with parents suing school districts. When looking at parental rights compared to the rights of school districts, courts must recognize, “that parents’ rights are not immune to some reasonable limitation depending upon safety and reasonableness and compelling state need regarding health care or condition of the child.”[7] Parental rights do not necessarily trump the responsibility of public schools to create a healthy and safe environment for learning, and this distinction would have to play out in court. These court cases are further complicated when state governors create executive orders that determine whether or not minors should wear masks in public schools. When Judge Cooper made a decision about Governor DeSantis’s mask mandate ban in schools, he ruled that the “Florida government didn’t actually have the authority to ban mask mandates under the parents’ bill of rights, because it gives school districts the ability to prove their rules are reasonable limitations on parents’ rights under due process rather than giving the state license to ban them entirely.”[8] By interfering with court cases involving school districts and parents, the government is interfering with the outcomes of existing court cases and not allowing school districts to defend themselves in court.

While each party claims to have responsibility for the health and safety of minors in public schools, it becomes less of an issue of public health and more of a courtroom issue. When governors create executive orders regarding mask bans or mandates, they are interfering with the legal process. Instead of making a consensus for state public schools, governors are ruining a good opportunity for parents and school districts to make a legal determination about what is a school district responsibility and what is a parental responsibility. The decision to put schoolchildren in masks cannot be a universal answer. It is important to look at how different courts analyze parental and school district rights during this pandemic. Even though these issues are prominent in states such as Texas and Florida, the same problems could arise in any state and school district across America. Each school district should make its own decisions, have parents be able to question these decisions in court, and ultimately have judges create the final answer on a case-by-case basis.

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Sources

1.  re Greg Abbott, No. 21-0720 (Tex. App - San Antonio [4th Dist.], 2021)

2. Machovec v. Palm Beach County, 11-12. (15th Cir 2020).

3. Ibid.

4. §1014.03, Fla. Stat. (2021)

5. Ceballos, Ana, and Jeffrey S. Solochek. 2021. “Judge Rules for Parents in Florida School Mask Case, A Blow to DeSantis.” Tampabay, August 27, 2021. 

6. “Judge blocks Florida Governor's Order Banning Mask Mandates.” WCTV, August 27, 2021.

7. Ceballos, Ana, and Jeffrey S. Solochek. 2021. “Judge Rules for Parents in Florida School Mask Case, A Blow to DeSantis.” Tampabay, August 27, 2021.

8. Durkee, Alison. “Florida School Mask Mandate Ban Struck Down In Court.” Forbes, August 27, 2021.

Is the Privacy of Americans Under Attack?

September 2021 | Maryam Raja, Staff Writer/Editor

Privacy and surveillance have evolved tremendously throughout the history of America. The fine line between individual privacy and protection is thinning at an incredible rate. While the right to privacy is deemed as a fundamental right protected by the government, it has been breached by third parties who are not under the same expectation.[1] In this way, tech giants are stomping on our rights to privacy by selling our information to the government.[2] While this civil liberty is protected by the government, it does not mean our protection will not be attacked by other entities. Privacy has seen severe changes through the evolution of technology and will most likely continue to see changes. Unfortunately, the issue of privacy is not something private companies are obligated to protect. 

The evolution of privacy laws begins with the case Griswold v. Connecticut (1965). This case was brought to the Supreme Court because of a Connecticut state law that enacted an anti-contraceptives ban on married couples.[3] In 1965, the majority opinion in this landmark case ruled that the law violated the right to privacy, which was implied in several amendments within the Bill of Rights.[4] Thus, the Supreme Court ruled 7-2 to strike down Connecticut’s state law against married couples’ using contraceptives. Subsequent cases were decided using Griswold, as it was the first case to establish “the first explicit U.S. right to privacy.”[5] Justice William O. Douglas famously stated, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights…”[6] The Supreme Court's decision in Griswold led to an expansion of privacy rights regarding abortions in Roe v. Wade, and eventually, to larger privacy rights off of Griswold’s holdings. 

Griswold shows what happens when the state laws impede on the privacy of an individual, but what happens when companies breach the privacy of their customers? Do these customers have protections despite signing off on terms and services? In 2014, Yahoo underwent a significant data breach and was sued as a result. Fortunately, they were found liable for selling personal information of their users and sued for gross negligence.[7] In cases like these, the Federal Trade Commission (FTC) Act can be used to hold companies accountable. However, this act is not enough, as it is quite vague in terms of what companies can be held accountable for, especially in terms of privacy infringements. The FTC does not explicitly regulate what should be included in website privacy policies.[8] Since there is no clear-cut way to label privacy invasions, it is not an efficient act. Overall, there is a broad jurisdiction on the issue of privacy and no clearly-established set of rules denoting what is legal and what is not when it comes to privacy policies by digital sites and companies. 

Technically, the companies do not have to protect citizens’ privacy to the same extent the government does because companies are not obligated to respect civil liberties. However, consumer information gets sold and accessed by third parties without consumer consent in many different ways (ie. data breaches and software bugs). There have been far too many cases of companies involved in lawsuits due to the breach of their client’s information, which is quite alarming. Despite the direction of privacy rights seemingly going in a negative direction, hope is not lost. Instead, with increased accountability of political representatives, citizens can put pressure so that surveillance and privacy issues are prioritized. In conclusion, the right to privacy should not be exploited for the sake of company greed. Moreover, stopping tech giants from taking advantage of the unaware American is important for the development of trust and continued technological use. The federal government has a responsibility to protect its citizens from these intrusions by implementing clearer privacy laws, that way companies stop infringing on and start respecting the right to privacy.

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Sources

1. Chao, Bernard. "Privacy Losses as Wrongful Gains." Iowa Law Review 106 (2) (01): 555-606. 2021.

2. “Your Data Is Shared and Sold...What’s Being Done About It?” The Wharton School of the University of Pennsylvania. October 28, 2019.

3. Griswold v. Connecticut. 381 U.S. 479. (1965).

4. Ibid.

5. Warren, Samuel D., and Louis D. Brandeis. “The Right to Privacy.” Harvard Law Review 4 (5): 193–220. 1890.

6. Griswold v. Connecticut. 381 U.S. 479. (1965).

7. Schwartz v Yahoo Inc, U.S. District Court, Northern District of California, No. 16-05456. 2016.

8. Hovenkamp, Herbert. “The Federal Trade Commission and the Sherman Act” University of Pennsylvania Carey Law School. 2010.

Is There Truly “No Path Forward” for Death Penalty Abolition?

July 2021 | Britannia Woodhouse, Staff Writer/Editor

Capital punishment is currently legal in 27 states in the U.S., but there have been many efforts in some of these states to ban it altogether. The most recent state to ban the death penalty was Virginia, which replaced capital punishment with a sentence of life without parole in 2021.[1] Then, on April 13th, 2021, the Nevada State Assembly attempted to follow in their footsteps and passed the death penalty repeal bill with a vote of 26-16.[2] All Democrats voted in favor of the bill, and all Republicans voted against it. The death penalty repeal bill (AB 395) would have abolished capital punishment in Nevada and changed 70 current death row inmates’ sentences to life without parole.[3] Once the bill advanced to the Senate, however, it became a less expansive bill (SB 228) that would abolish the death penalty for all future offenses but keep the same sentences for those already on death row in Nevada. Nonetheless, the bill failed when legislators could not reach a consensus on possible amendments, and this halted any possible efforts to reform the bill before the legislative deadline. Realizing that the Senate was having trouble on agreeing to amendments for the bill, Nevada Governor Steve Sisolak said “there is no path forward” to ban the death penalty in Nevada.[4]

Politically, Governor Sisolak's comment is true considering the lack of votes in order to send the bill to his desk for ratification, but legally, that is not necessarily the case. In previous efforts to abolish the death penalty or reverse a death sentence, there have been multiple cases concerning the constitutionality of capital punishment. Some cases concluded that capital punishment constitutes cruel and unusual punishment under the 8th amendment, and some concluded that the death penalty is, in fact, constitutional. Two landmark cases regarding the constitutionality of the death penalty are Furman v. Georgia and Gregg v. Georgia, both presented in front of the United States Supreme Court.

In the case of Furman v. Georgia, Furman broke into a home and, in the process, tripped and dropped the gun he was carrying. The gun went off and killed one of the residents in the home. Furman was sentenced to death and the constitutionality of his sentence was questioned. Ultimately, the conclusion was that Furman’s sentence constituted cruel and unusual punishment and was therefore unconstitutional.[5] The ruling was narrow, though, as it only applied to Furman and not to the United States as a whole. Two of the justices, William J. Brennan Jr. and Thurgood Marshall, even maintained that the death penalty is unconstitutional in all cases, not just in Furman’s case. But since Furman lacked an intent to kill, it would be difficult to apply the conclusion of that case to another case where the intention existed. On the other hand, in the case of Gregg v. Georgia, Gregg was found guilty of armed robbery and murder and was sentenced to death. Similar to Furman’s case, his sentence was challenged on the grounds of cruel and unusual punishment. However, the court held that his sentence, and any death sentence for 1st degree murder, was constitutional due to Gregg’s intent to kill.[6] The ruling for Gregg was also narrow, and the death penalty was reinstated in Georgia. As of now, the Supreme Court's stance on the death penalty is that "the punishment of death for the crime of murder does not, under all circumstances, violate the Eighth and Fourteenth Amendments.”[7] Therefore, states have open discretion on whether or not to implement the death penalty as a form of punishment, which is typically applied to 1st degree murder cases. As of today, the nationwide opinion on keeping or repealing the death penalty has been nearly split 50-50, as 27 states retained it while 23 states repealed it.

The variety of court opinions on the constitutionality of the death penalty has raised the question of whether or not the death penalty can be banned in the remaining states that still allow it. Since each case has different conclusions, this allows each state to determine whether or not they will implement the death penalty. In Nevada, capital punishment is still legal, though there have only been 12 executions since 1976.[8] This still leaves the option open for future bills to ban the death penalty in Nevada, but this would most likely only happen if there were more politicians who oppose the death penalty voted into the Assembly and the Senate. Although Governor Steve Sisolak’s comment about there being “no path forward” to ban the death penalty in Nevada may sound discouraging for those who want to see an end to capital punishment, his comment is not true in regards to constitutionality. It has been established that it is constitutional to implement the death penalty, or to choose not to implement it, but that decision is left completely up to the states.

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Sources

1. National Conference of State Legislatures. "States and Capital Punishment." June 16, 2021.

2. Death Penalty Information Center. "Nevada State Assembly Passes Bill to Repeal Death Penalty and Resentence Death-Row Prisoners to Life." April 14, 2021.

3. Ibid.

4. Death Penalty Information Center. "Nevada Governor, Senate Leaders Block Death-Penalty Abolition Bill That Passed State Assembly." May 19, 2021.

5. Furman v. Georgia, 408 U.S. 238 (1972)

6. Gregg v. Georgia, 428 U.S. 153 (1976)

7. Ibid.

8. National Conference of State Legislatures. "States and Capital Punishment." June 16, 2021.

Freeing Britney from Her Conservatorship Constraints

July 2021 | Kiara Sims, Staff Writer/Editor

As a childhood Disney actor that grew up to be an iconic pop star, Britney Spears has always been in the public eye. Unfortunately, Britney’s fame has recently been relegated to courtroom appearances. On June 24, 2021, Britney Spears spoke to a judge publicly about her life under a probate conservatorship, bringing the elusive entity of conservatorships into the spotlight. Conservatorship legislature varies by state and locality and is typically applied within probate courts. Britney Spears’ conservatorship of the estate and conservatorship of the person were created by the Superior Court of California in 2008.[1] Conservatorships are widely misunderstood, but current public outrage is accurate in identifying that Britney Spears' conservators may have violated the law.

In the state of California, a judge can appoint a responsible person to care for another adult who is unable to manage their health and wellbeing or finances properly. The result of this appointment creates a probate conservatorship that can be monitored by both a conservator of the person and a conservator of the estate. The conservator of the person is tasked with overseeing basic needs and health care, and in some cases, they can make medical decisions for the conservatee. Meanwhile, the conservator of the estate is tasked with handling the conservatee’s financial matters to the extent that the appointing judge finds necessary. All California-established conservatorships can be ended by a determination of the conservatee’s ability to handle their affairs or upon the resignation of the conservator, court order, or death of a related party.[2]

Conservatorships created by the Superior Court of California are legally bound by California Probate Codes 1800-2033. These codes establish the rights of both conservators and conservatees while defining responsibilities and chargeable offenses. The Omnibus Conservatorship and Guardianship Reform Act of 2006 later applied more stringent standards to conservatorship oversight, allowing the court to investigate more frequently with more scrutiny without notice to the conservator.[3] This act was passed to minimize the effects that a conflict of interest might have on the conservator’s actions and decisions regarding their conservatee’s person and livelihood. In a recently publicized case, that of conservatee Britney Spears, claims have been made that the conservatorship is unnecessary and abusive. Britney’s conservator of the estate, her father Jamie Spears, has many alleged conflicts of interest despite the investigations of the court. This makes Spears’ conservatorship a prime example to evaluate the rights of a conservatorship of the estate over their ward. 

This legal issue began in the Los Angeles Superior Court in 2008. Due to Britney Spears’ public psychiatric breakdowns, the court approved an emergency probate conservatorship of her person and her estate under the control of her father, Jamie Spears. Jamie’s role in the conservatorship has since experienced many changes. In 2019, Jamie Spears began the process of extending his legal role of conservator outside of California, had restraining orders placed against him by Britney Spears’ two minor children due to alleged physical abuse, and temporarily stepped down from his role of the primary conservator of both the person and the estate. Upon much public discourse of the conservatorship, Britney Spears requested that her father be removed from his position once in 2020 and twice in 2021. Despite the court’s refusal of these requests due to unproven claims, the statements made in court by Britney Spears on June 24, 2021, are owed an evaluation of which actions would be within the rights of the conservatorship of the estate.[4]

Based on the law and precedent, the conservator of the estate must manage finances to a reasonable standard while maintaining independence from the conservatee’s estate.[5] Regardless of public outrage, some situations described by Britney Spears are typical for a conservatorship of the estate. The conservatorship does have the power to hire employees, nurses, paid conservators, or lawyers. The conservator also must take control of assets, income, and bills, so it is not in violation that Britney has little to no control over her finances.[6] In these financial circumstances, some may claim it best to evaluate the impact of conservatorship on the progression of the conservatee’s finances. As these documents are not open to the public, only court investigators are able to make such an evaluation.

Many of Britney Spears’ claims in court on June 24 establish a picture of potential probate code violations, forced work, and improper financial allocations. In many cases of conservatorship, the judge will deem an allowance for the conservatee in accordance with California Probate Code § 2421.[7] If Britney’s allowance has been used as a negotiation chip and an abuse tactic rather than being a stable source of spending money, the conservator of her estate may have violated a court order. Describing herself as “enslaved,” Britney made it clear that she was forced to do work that was otherwise unnecessary or unhealthy for her. She claimed she was forced to go on tour in 2018 and forced to do the following Vegas residency, even going so far as to imply that she was medically punished if she challenged a single dance move.[8] She compared her seven-day work week with ten-hour-long days to “sex trafficking”.[9] California Probate Code § 2601 establishes that wages for employment should be under the conservatee’s control.[10] Thus, it could be a violation if her conservator has taken control of the money and benefits from her working in the way that Britney has suggested they have. 

In addition to feeling that she involuntarily works for the people she pays, Britney has brought up the bias of those responsible for her. Such bias may have led the conservator to spend money to attempt to elongate their tenure or in an unreasonable manner, as Britney claims Jamie Spears has done. California Probate Code § 2401.3 specifies that conservators, like Jamie Spears, can be charged in the case of undue loss of the estate value, conservator profit from improper financial allocations, or loss of potential estate gains.[11] Since Britney Spears has more complex finances than most Americans, only the court has the access and information necessary to determine if all of her assets were managed properly. Other claims made, albeit shocking, are more relevant to her conservatorship of the person.[12]

On July 14, 2021, Britney once again spoke to the Los Angeles Superior Court. In June, Britney had claimed that her prior representation, Samuel Ingham III, had neglected certain duties and that she would like to choose her representation.[13] As a result, the court determined that Britney Spears could hire her representation for the first time since 2008. During the July 14 hearing, Britney reiterated financial and emotional abuse claims and stated an intent to formally charge her father with conservator abuse.[14] The results of this hearing indicate that the court is somewhat receptive to Britney’s June statements and is simply waiting for adequate proof of her claims. Her new chosen representative is Mathew Rosengart, a former federal prosecutor and veteran entertainment litigator.[15] Britney’s battle appears to be much closer to resolution than it did in early 2021. Even without the abuse allegations, the court has shown that they find her more able to make responsible decisions than she was during the inception of the conservatorship, and her assertions are in line with being able to handle her affairs independently.

The details of Britney Spears’ life are complex and are further complicated by her public standing. The financial aspects of Britney Spears’ conservatorship case support that the law and precedent would be in her favor should her claims be proven true. Beyond the financial bias present in opposing parties and their possible abuse of assets, a case has been made for pseudo-slavery. Changes made by the court since Britney’s speech on June 24th have only reaffirmed the potential of a positive outcome for her. Britney Spears’ legal issues further extend to her conservatorship of her person, her wishes to sue her family, and potential abuse cases that have arisen out of the most recent hearings. Unfortunately, with the many legal complications in this case and a lack of definitive proof, it is unclear if Britney will gain freedom from her conservatorship of the estate. 

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Sources

1. Hoffower, Hillary. "Britney Spears Just Asked the Court to End Her 'abusive' 13-year Conservatorship - Here's What You Should Know about the Complex Legal Arrangement That Prevents the Pop Icon from Controlling Her Life." Insider. June 23, 2021. Accessed July 24, 2021. 

2. "Conservatorship." Conservatorship. Accessed July 24, 2021. 

3. "STATE ADULT GUARDIANSHIP LEGISLATION: DIRECTIONS OF REFORM — 2006." Commission on Law and Aging. July 24, 2021, 1-3.

4. Hoffower, Hillary. "Britney Spears Just Asked the Court to End Her 'abusive' 13-year Conservatorship - Here's What You Should Know about the Complex Legal Arrangement That Prevents the Pop Icon from Controlling Her Life." Insider. June 23, 2021. Accessed July 24, 2021.

5. "Conservatorship." Conservatorship. Accessed July 24, 2021.

6. Ibid.

7.  California Probate Code § 2421

8. Berg, Madeline. "Britney Spears’ Full Statement Against Her Conservatorship." Forbes. June 23, 2021. Accessed July 24, 2021. 

9. Ibid.

10. California Probate Code § 2601

11. California Probate Code § 2401.3

12. Berg, Madeline. "Britney Spears’ Full Statement Against Her Conservatorship." Forbes. June 23, 2021. Accessed July 24, 2021.

13. Ibid.

14. "Britney Spears: Singer's conservatorship case explained” BBC News. Accessed July 24, 2021. 

15. Ibid.

Cruel and Unusual: The Nature of America’s Reliance on Prison Labor

July 2021 | Annie Vong, Staff Writer/Editor

The work from prison labor could be seen everywhere. From constructing clothing to creating license plates to making coffee, prison labor is the foundation of many of the products Americans use every day. However, these products are often created in unsafe environments that can result in serious injury, which may be a constitutional violation. Despite operating like employees, prisoners are often denied the same protections that typical employees get. When inmates are treated as “employees,” they are compensated to remedy injuries sustained while working, similar to typical employees.[1] When they aren’t treated as “employees,” courts rule that they are not guaranteed to be protected from negligence on the part of prison officials.

Negligence is the inability to use reasonable care, consisting of both action and inaction.[2] A common example of negligence on the part of employers is failing to ensure that employees are properly trained to operate a forklift. Some might question whether negligence that occurs in prison working conditions should not be regarded as negligence, but rather as an Eighth Amendment constitutional violation. The Eighth Amendment consists of three main clauses. The first and second clause required that there shall be no excessive bail or fines imposed. The third clause states that no cruel or unusual punishments can be inflicted onto citizens by the government.[3] It not only aims to protect against punishments themselves being “cruel or unusual,” but also the conditions in which punishments are being served. With that said, some questions can be raised considering the dangerous conditions these prisoners may be forced to work in. What are prisoners who engage in prison labor defined as? Furthermore, are the labor-related injuries that prisoners sustain and conditions that cause those injuries an Eighth Amendment violation or is it just plain negligence on the part of prison officials?

Cases concerning the tumultuous relationship between the state and its prisoners have been treated as ordinary employer-employee labor cases when they are not. Courts have chosen to interpret the relationship between prisoners and the state as if it is an ordinary employer-employee relationship, while, at the same time, ignoring all protections that employees get in an employer-employee relationship. For example, some protections that typical employees would receive are safe working conditions and the ability to bring a lawsuit against their employer if safe working conditions were not met. For inmates, however, that process is far more difficult. In order to differentiate between a prison official being cruel and unusual or being negligent, the Supreme Court established the “deliberate indifference” standard.[4] Deliberate indifference is defined as “a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety.”[5] Due to the “deliberate indifference” standard, prison officials have a generous amount of leeway when it comes to not being held liable for failing to keep working conditions safe. This makes cases of prisoner abuse difficult to bring to court under the Eighth Amendment because it is easy for prison supervisors and officials to claim confusion, incompetence, and/or negligence, but it is difficult for the petitioner to prove that the prison official was aware of health and safety risks that could endanger a prisoner and wilfully ignored it.

This issue was seen in Arnold v. South Carolina Department of Corrections. Chris Arnold was working in the kitchen when a coworker tried to drain hot water from the pot.[6] The pot broke and burned Arnold, but he claimed that it was common knowledge amongst the prisoners that the pot was broken, thus prison supervisors had to have known about it. When questioned, Harmon, the defendant, said that he did not have the time to fix the pot because he had to feed over a thousand inmates. As a result, the court ruled that Harmon was aware of the dangerous conditions in the kitchen, but did not ignore it on a malicious basis. Arnold’s case against Harmon fits the “indifferent” part of the “deliberate indifference” standard, but not the “deliberate” part of the standard. This was one out of several cases that was determined to not fit both parts of the “deliberate indifference” standard in order for it to be ruled as a constitutional violation.

There are only a few cases in which it was determined that the injuries sustained during prison labor and the conditions surrounding it were a violation of the Eighth Amendment. In Morgan v. Morgensen, Steven Morgan, an inmate, injured his right hand while working with a defective printing press.[7] He told his supervisor, Canady Morgensen, the defendant, about the defects, but Morgensen pushed him to keep working and told him to “just be very careful.” Morgensen’s statement meets the “deliberate indifference” standard because he demonstrated awareness of the problem and was indifferent in providing an option for Morgan to refuse to work. The court ruled in Morgan’s favor, reasoning that the dangerous environment that Morgan was unwillingly put in violated his Eighth Amendment right to be protected against “cruel and unusual punishments.”

However, whether an inmate voluntarily chooses to work or not is a factor that can waive their Eighth Amendment rights. It does not make it cruel or unusual if the prisoner still chooses to work in that environment. If Morgan voluntarily chose to work in those conditions, then an Eighth Amendment violation would not apply to his case. But for many, prison labor is not a simple voluntary choice. There is much more of a power differential between prison officials and inmates. Some inmates are threatened with solitary confinement if they do not choose to work.[8] Therefore, potential Eighth Amendment violations should not be dismissed if it seems as though prisoners willingly chose to work. 

Courts have fallen short on two occasions: 1) failing to consider the involuntary nature of prison labor and 2) creating the strict “deliberate indifference” standard that allows prison officials to escape the consequences of violating an inmate’s constitutional right. It is the responsibility of prison supervisors to create safe working conditions, and the failure to do so should be a violation of the Eighth Amendment, regardless of whether the prison official was negligent or not. The body of case law concerning prison labor abuse sets forth an interpretation of the Eighth Amendment that is so unforgiving it leaves the door open for rampant prison abuse that does not align with the intentions of the Eighth Amendment.

---

Sources

1.  Dougherty, Colleen. “The Cruel and Unusual Irony of Prisoner Work Related Injuries in the United States.” University of Pennsylvania Journal of Business and Employment Law 10, no. 2 (2008): 483.

2.  “Negligence,” Legal Information Institute. Cornell Law School, Accessed July 19, 2021.

3. U.S. Const. amend. VIII

4.  Farmer v. Brennan, 511 US 825 (1994)

5.  Crayton v. Quarterman, 2009 U.S. Dist. LEXIS 103709 (N.D. Tex. Oct. 14, 2009)

6. Arnold v South Carolina Department of Corrections, 843 F. Supp. 110, 112 (D.S.C. 1994)

7.  Morgan v. Morgensen, 465 F.3d 1041, 1043 (9th Cir. 2006)

8.  Benns, Whitney, “American Slavery, Reinvented” The Atlantic. Sept. 21, 2015.

The Legality of Vaccine Passports

April 2021 | Sydney Szostek, Staff Writer/Editor

After COVID-19 put the world on pause over the past year, vaccines have felt like the light at the end of the tunnel. With increasing vaccination availability to all members of the public 16 and older in the United States, the idea of “vaccine passports'' has been introduced by numerous states. It is proposed that proof of both doses should become a passport of sorts, used as a way to shop at individual businesses, book a flight, or be admitted at border patrol. Although the intention is to promote safety amongst Americans, there is still the issue of whether these deemed “vaccine passports” violate the law. The legality of vaccine passports has been a contentious topic in regard to HIPAA laws, third-party regulation issues, and precedent rulings. 

The Health Insurance Portability and Accountability Act, better known as HIPAA, is one law put in place to protect the privacy and security of the health of American citizens. Established in 1996, it has been at the center of conversations regarding the legality of vaccination passports. Within HIPAA, the U.S. Department of Health and Human Services created a set of national standards regarding the disclosure of health information. Generally speaking, the health information of an individual cannot be disclosed to any public health authority without the individual’s permission for any public health purpose. However, there are two exceptions: if it is required by law or if the public health authority seeking the information is “authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury, or disability, including but not limited to, the reporting of disease, injury, vital events,…and the conduct of public health surveillance,...investigations, and...interventions”.[1] Thus, as long as the authority in question is allowed under the law to gain access to this health information for purposes such as preventing the spread of a disease (i.e. COVID-19), it is legal for them to obtain such knowledge. As for what defines a public health authority, the Centers for Disease Control and Prevention provides that it is “an agency…of the United States…or a person or entity acting under a grant of authority from or contract with such public agency…that is responsible for public health matters as part of its official mandates.”[2] Therefore, anyone who is employed by an authority that is allowed discretion on these health matters is permitted to receive health information such as vaccination records. Further, vaccinations do not provide any additional health information about an individual. In fact, in order to receive a vaccination, one is not required to have proof of medical insurance. There is nothing revealing or private about vaccinations, and for this reason, vaccine passports are not in violation of HIPAA laws.

While vaccine passports may not violate HIPAA, plausible concerns about the logistics of the passports remain. One such concern is the issue of vaccine passport distribution. Individual states have proposed a plethora of ideas regarding how these passports will be regulated. New York is one of the first states that began looking into third-party systems to verify an individual’s vaccination records. New York Governor Andrew Cuomo launched the Excelsior Pass,[3] an app where residents can securely provide proof of their vaccination status in order to gain access to their preferred shops and restaurants. As part of the New York State Department of Health guidelines, this is a way to help bring society into a sense of normalcy, easily integrating people back into their daily routines. The app creates a unique QR code that can be scanned by any business that chooses to participate. Vaccine record verification (VRV) systems such as Excelsior Pass can help globalize vaccination records because users will not have to visit their health care provider for permission, keep a document on hand, or wait in line at a government institution to obtain an official record. Although VRV systems utilize current technologies, they have actually been around since 1959 when the World Health Organization established the International Certification of Vaccination which “logged an individual’s vaccination history to meet countries’ exit and entry requirements”.[4] With nearly everyone having access to a smartphone, the power of a VRV system today would be extremely helpful in rolling out these vaccine passports. 

According to the Brookings Institution, third-party systems may be an accurate verification of vaccine status, but they also bring about issues of hacking, falsified records, and difficulty distinguishing between having COVID antibodies versus receiving the vaccine.[5] The problem of security and hacking will be worked out as soon as third-party systems acquire new safety measures. Moreover, public health officials are working with scientists to gather more information about the situation between antibodies and vaccinations. For individuals with antibodies as opposed to the vaccine, the difference in immunity may even create a two-tiered society where those with vaccinations have more freedom in entering businesses whereas someone carrying the antibodies may not.[6] Despite these potential drawbacks, there are possible solutions that will be in the works over the next few months, and the pros of having these third-party systems that regulate vaccination records far outweigh the cons.

One might think that the debate over vaccinations is relevant only to current times, but this is not the case. During the smallpox epidemic in 1905, Jacobson v. Massachusetts “challenged the state’s authority to impose mandatory restrictions on personal liberty for public health purposes”.[7] The state of Massachusetts required vaccinations for smallpox because it was necessary for the health of the public, but Jacobson refused because he had prior allergic reactions to vaccinations. Massachusetts refuted that although they used the word ‘required’, it was not in any context to mean ‘forced’, and that Jacobson may refuse with a payment of five dollars.[8] Jacobson appealed to the Supreme Court, where the Court upheld the state’s decision and that “the Constitution confirmed that states retained all the sovereign authority they had…states had authority to legislate with respect to all matters within their geographic boundaries”.[9] 

Further, Jacobson never argued whether or not it was legal for the government to mandate a vaccination in the first place, which is also why the Supreme Court ruled in favor of Massachusetts. Jacobson, instead, looked towards the 14th Amendment's Due Process Clause pertaining to personal liberty, since he felt he had the right to refuse the vaccination. Justice Harlan commented that although every individual is protected under the 14th Amendment when it comes to individual liberty, “it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand”.[10] This exact wording can be transported into today's argument about vaccination passports. To protect the greater public, it is imperative that each individual lose a small portion of their liberty. Similar to mask mandates, each person’s actions can affect the health of society as a whole. Private entities such as businesses have the right to mandate masks, and therefore, will have the right to use a third-party system to check their customers' vaccination status. In the future, there may be more court cases regarding the legality of vaccine passports, but for now, they are legally permissible. 

As more vaccines are administered by the day, vaccine passports are becoming the main topic of discussion for individual states. HIPAA and precedent case law have no reason to restrict the use of third-party systems in allowing for individuals to provide their vaccination data to an authority such as a business. Privatization of health information is important; however, vaccinations reveal little to nothing about an individual, so there is no reason to keep it confidential. Ultimately, vaccine passports may be the difference between a nationwide lockdown and an open world. Thus, it is essential to see the bigger picture: a small limitation of personal liberty will preserve the nation’s overall freedom. 

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Sources

1. “HIPAA Overview and Vaccine Administration.” (U.S. Department of Health & Human Services, 2016).

2. Ibid.

3. “Excelsior Pass.” (New York: New York State, 2021).

4. Baobao Zhang et al. “Building Robust and Ethical Vaccination Verification Systems.”(The Brookings Institution, 2021).

5. Ibid.

6. Ibid.

7. Wendy K. Mariner, George J. Annas, and Leonard H. Glantz. “Jacobson v Massachusetts: It's Not Your Great-Great-Grandfather's Public Health Law.” (Bethesda: American Journal of Public Health, 2005).

8. Ibid.

9. Ibid.

10. Ibid.

The $1.9 Trillion Stimulus Package: A Rescue Plan or a State Sovereignty Attack?

April 2021 | Edgar Nicolas Garcia, Associate Editor

From a new wave of stimulus checks to an injunctive complaint sued by several states over its tax provision, the $1.9 trillion stimulus package signed into law by President Joe Biden has a myriad of support but is also being countered by critics. More than a year after the initial COVID-19 outbreak and its various state-mandated lockdowns, the country and its economy as a whole has dramatically suffered. To alleviate this dilemma, the 117th Congress has successfully passed H.R.1319, or more popularly known as the “American Rescue Plan Act.” It has a monumental price tag of 1.9 trillion dollars that encompasses over 50 discrete provisions.[1] It is one of the largest economic rescue packages in US history, even though it was only passed with Democratic Party members’ votes. Opponents to this legislation argue that it intrudes state sovereignty, which is the power of a state to act within its federalist rights and to govern itself. Biden defends it by explaining that, “This historic legislation is about rebuilding the backbone of this country and giving people in this nation — working people, middle-class folks, people who built the country — a fighting chance.”[2] Altogether, the American Rescue Plan Act aims to perpetuate a boost in economic growth, extend economic impact payments, improve financing for COVID-19 testing and vaccination programs, and impose a tax mandate on states to adhere within the confines of the legislation. Nonetheless, there are questions and grievances against the legality of the act, as some states have brought charges to the judicial branch in regards to its invasion of state sovereignty.

The majority of the coronavirus relief spending package is uncontested by state and local governments, as it will likely boost economic growth and counteract the recession from the statewide effects of the pandemic in the past year. For starters, some of the most notable provisions from this act include the third wave of economic impact payments to individuals and an extension to unemployment benefits. In particular, the legislation contains $1,400 stimulus checks for each individual and child making less than $75,000 annually, with phased-out amounts for people with higher incomes.[3] At the same time, persons who have lost their jobs due to the pandemic are greeted with an enhanced unemployment insurance act in the form of an additional $300 weekly check until early September.[4] These increases in funding would continue to help pay the bills for Americans who are greatly in need. Moreover, the American Rescue Plan deliberately finances more COVID-19 testing and vaccination programs. Notably, the bill would provide “$46 billion in funding for the Department of Health and Human Services to use for COVID-19 testing, contact tracing, and mitigation initiatives.”[5] Thus, medical experts can better understand the true gravity and scope of the pandemic in order to administer an appropriate response. Vaccine development would also get a boost of about $20 billion, which goes to federal biomedical research for a vaccine and therapeutic manufacturing and procurement.[6] Collectively, the new law is greatly received for its focus on supporting millions of people still out of work and for granting more opportunities for healthcare providers to assist in the fight against the virus, which inevitably benefits the country.

Nevertheless, some aspects of the American Rescue Plan Act are also seen as an attack on state sovereignty. Questions of legality arise as the legislature, under the Payments to Territories section, would provide “$350 billion to state and local governments whose coffers have been hit by a loss of tax revenue during the pandemic, causing many to plan cuts to services and warn of tax increases to allow them to balance their budgets.”[7] In essence, there would be aid and bailouts coming from the federal government, but its main restriction is that state and local governments cannot use that money to “indirectly or directly” offset the cost of cutting taxes.[8] On one hand, opponents to this restriction labeled this section as a “Tax Mandate”, which bars states that take money under the Act from using that funding to compensate revenue loss from tax reductions. As a result, 21 Republican state attorney generals sent a letter to the Biden Administration threatening to sue over the tax-cut rules.[9] 

In particular, Ohio Attorney General Dave Yost filed a lawsuit explaining that the Tax Mandate violated states’ rights to set their own tax policy. The State of Ohio is entitled to claim about $5.5 billion, but if Ohio accepts that money, it will have to accept the conditions that come with it. Many states across the country are in dire need of the money because of the economic pandemic lows, yet there are incentives to use the money to cut taxes. According to the current lawsuit, “the Tax Mandate thus gives the states a choice: they can have either the badly needed federal funds or their sovereign authority to set state tax policy. But they cannot have both. In our current economic crisis, that is no choice at all.”[10] In other words, the necessary funds are perceived to be held hostage. States such as Ohio feel as if they have no choice but to adhere to the unconstitutional restrictions of the Act at the cost of their sovereignty and economic demise. 

Ohio claims that their standing to sue comes from the Spending Clause of the Constitution, which empowers Congress to “provide for”—that is, to spend money in support of—the “general Welfare;’ but “Congress may not circumvent that limitation by using its spending power to indirectly coerce a State to adopt a federal regulatory system as its own.”[11] In their perspective, the Tax Mandate goes contrary to the fact that legislation enacted according to the Spending Clause must be in pursuit of the “general welfare.” Yost argues that when Congress enacts a law as such, “‘pressure turns into compulsion, the legislation runs contrary to our system of federalism,” and the law is unconstitutional.[12] As a whole, Ohio believes that Congress exceeded its constitutional authority when it passed the Tax Mandate. States are currently in a vulnerable position where state legislatures are forced under economic pressure into the enactment of Congress’s preferred tax policies.

On the other hand, the Democratic-dominated federal government defends the Tax Mandate as within the constitutional powers of Congress. Treasury Department spokesperson Alexandra LaManna explains that the restrictions are well within its rights to “establish reasonable conditions on how states should use federal funding.”[13] In this perspective, the federal government believes it is acting within its powers of the Spending Clause to impose conditions on grant funds. It is important to note that the federal government has always imposed conditions on assistance, such as on funding for freeways. Essentially, the American Rescue Plan Act does not prohibit all tax cuts, but simply mandates that states have to replace the revenue in some other way and that they cannot use stimulus funds to do it.[14] LaManna adds that “states are free to make policy decisions to cut taxes — they just cannot use the pandemic relief funds to pay for those tax cuts.”[15] Simply put, if state and local governments use the money in some way, such as a tax cut, they have to compensate the Treasury back for the cost up to the amount of the lost revenue.

In conclusion, the American Rescue Plan Act is a comprehensive and tremendous act that is filled with criticism. At its core, it aims to stimulate the economy by providing economic assistance to the unemployed and everyday Americans. It also bolsters the funding for healthcare services such as COVID-19 testing and vaccination programs. Nonetheless, its opposition has filed suit against the perceived belief that its Tax Mandate prohibits the use of federal grants for tax cuts and inherently coerces vulnerable states to adhere to Congress’s preferred tax policies. The question of whether or not the American Rescue Plan has underlying attempts to undermine state sovereignty is now put on trial, but its verdict would most likely still take some time. If the suit is ruled in favor of Ohio, the judge could strike down the limit on tax cuts while still leaving the rest of the act intact. On the contrary, even if the case is ruled against the state, the District Attorney could potentially bring the case up to the United States Court of Appeals for the Sixth Circuit or even the Supreme Court in order to gain a ruling that could amend or uphold the Constitution.

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Sources

1. H.R.1319. American Rescue Plan Act of 2021.

2. Egan, Casey, et al. "$1.9 Trillion Pandemic Relief a Temporary Boost as Economy Awaits Full Recovery." SNL European Financials Daily (Mar 11, 2021).

3. Rubin, Gabriel T. "Stimulus Package: What's in Joe Biden's 'American Rescue Plan'? Democrats' $1.9 Trillion Relief Package Includes Stimulus Payments, Jobless Benefits, Vaccine Funding and More." Wall Street Journal (Online), Feb 26, 2021.

4. Romm, Tony. "Congress Adopts $1.9 Trillion Stimulus, Securing First Major Win for Biden." WP Company LLC d/b/a The Washington Post.

5. Egan, Casey, et al. "$1.9 Trillion Pandemic Relief a Temporary Boost as Economy Awaits Full Recovery." SNL European Financials Daily (Mar 11, 2021).

6. Ibid.

7. Rubin, Gabriel T. "Stimulus Package: What's in Joe Biden's 'American Rescue Plan'? Democrats' $1.9 Trillion Relief Package Includes Stimulus Payments, Jobless Benefits, Vaccine Funding and More." Wall Street Journal (Online), Feb 26, 2021.

8. H.R.1319. American Rescue Plan Act of 2021.

9. Tobias, Andrew J. “Ohio Attorney General Dave Yost Sues over Federal Rules on Billions in State Funding Contained in Stimulus Bill,” March 17, 2021.

10. State of Ohio v. Janet Yellen, Case No. 1:21-cv-181 (S.D. OH 2021), 1.

11. Ibid, 2.

12. Ibid, 9.

13. Romm, Tony. “Ohio Attorney General Sues Biden Administration over $1.9 Trillion Stimulus.” The Washington Post. WP Company, March 17, 2021.

14. Faler, Brian. “Biden Administration Defends Curbs on State Tax Cuts In Covid Bill as OHIO SUES,” March 18, 2021.

15. Ibid.

The Constitutionality of Gun Reform Laws

April 2021 | Maryam Raja, Staff Writer/Editor

Gun control is among one of the most controversial issues in America. The majority of the debate centers around if gun regulations impede an individual's right to bear arms, which is protected by the US Constitution. Specifically, the Second Amendment states, “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[1] Originally, the purpose of the amendment was to prevent the United States from needing a standing army in hopes of the people being able to protect themselves.[2] The implicit interpretations of this amendment consist of two main arguments. The first perspective offers the explanation that a “well regulated militia” is merely in regards to organized groups having the right to bear arms. In opposition, some believe citizens should be allowed to bear arms without any federal restriction. Nonetheless, much of the passed gun control legislation has been deemed constitutional under the Second Amendment. Since the Second Amendment has been interpreted in different ways, understanding the history of gun reform– as well as its constitutionality– can allow for more productive discourse to occur and make way for larger change on a federal level. 

In terms of federal changes, gun reform evolved throughout history because of various events such as presidential assassinations and racial strife; however, none of these events led to the Second Amendment being severely contested until District of Columbia vs. Heller (2008). The Supreme Court ruled the “35-year-old District of Columbia ordinance that prohibited the ownership or possession of handguns” violated the Second Amendment.[3] In a 5-4 decision, Justice Antonin Scalia resolved the prohibition of handguns was ultimately unconstitutional, as Americans reserve the right to own handguns for the “sake of security.”[4] To apply this on a national level, the Second Amendment serves as “a limitation only upon the power of Congress and the National government, and not upon that of the States.”[5] However, this does not necessarily mean that states are able to deny the right to bear arms. The Supreme Court decided the Second Amendment should be “selectively incorporated into the rights of the Fourteenth Amendment”, as seen in McDonald v. City of Chicago (2010).[6] Up until McDonald, Second Amendment rights were prevented from becoming “impaired by state governments”[7] because the Second Amendment had not been selectively incorporated through the Fourteenth Amendment.

In addition, states still possess the ability to pass gun policies such as whether or not people are allowed to open carry, whereas the federal level can help determine other aspects like who is permitted to purchase guns.[8] An example of this on the federal level would be the National Firearms Act (NFA) of 1934. The NFA allowed “shotguns, rifles, machine guns, firearm mufflers and silencers” to become regulated.[9] This legislation was different from previous gun control legislation in that it focused solely on taxing on the transfer of certain types of weapons, so it did not violate the Second Amendment.[10] Another federal law is the Gun Control Act of 1968, which prohibited convicted felons, mentally-incompetent individuals, and drug users from being able to purchase a gun legally.[11] Supreme Court cases such as Lewis v. United States (1980) featured arguments that determined it was constitutional to prevent felons from obtaining firearms.[12] The Court had restated its notion from United States v. Miller (1939) that ruled: “[T]he Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia.”[13] Basically, the Court held that the “right to bear arms was not a fundamental right” and that the act’s provisions stood because “they had a rational basis and had relevance to the purpose of the statute.”[14] The aforementioned court decisions sustained that gun reform is achievable through upholding the Second Amendment and regulating firearms. Thus, states can regulate their gun policies on a smaller scale while still adhering to the Second Amendment.

In spite of the fact that various stances have been taken on gun reform and the extent to which legislation should restrict gun ownership, executive changes have brought upon changes as well. As seen in the current administration under President Biden, there are many new plans proposed to curb gun violence, but the plans face political obstacles before becoming law. Regardless of politics, the recent increase in mass shootings only further exposes a need for gun control legislation. It is no surprise that these last few years have been increasingly frightening due to many uncertainties. One uncertainty has been the insecurity felt by the public due to lax gun control, especially considering the fact that the country experienced many shootings over the last several years. Overall, there are many indications that perhaps it is time to become like other developed countries and implement gun reform on a federal level. This is not necessarily to say that the Second Amendment will be attacked, but history shows that it is certainly possible to pass federal policies that both protect our Second Amendment right and implement efficient gun reform.

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Sources

1. "Second Amendment | Law Library Of Congress". 2021. Loc.Gov.

2. Shusterman, Noah. 2018. “Perspective | What the Second Amendment Really Meant to the Founders.” The Washington Post, February 22, 2018.

3.  Chemerinsky, Erwin. 2019. “The Second Amendment Does Not Bar Gun Control. Let’s Stop Pretending That It Does.” Sacbee. The Sacramento Bee. August 22, 2019.

4.  Ibid.

5. "Second Amendment | Law Library Of Congress". 2021. Loc.Gov.

6. Ibid.

7. Ibid.

8. Deutsche Welle. 2018. “8 Facts about Gun Control in the US | DW | 08.11.2018.” DW.COM. 2018.

9. Saum, Kim. n.d. “Research Guides: Gun Laws and Controls: Introduction.” Libguides.cccneb.edu. Accessed April 27, 2021.

10. “National Firearms Act of (1934) - Further Readings.” 2019. Jrank.org. 2019.

11. Benthien, Samantha. “Understanding America's History Of Gun Control.” History News Network, Oct. 2019.

12. ‌“Gun Control Act of 1968 | Encyclopedia.com.” n.d. Www.encyclopedia.com. Accessed April 27, 2021.

13. Ibid.

14. Ibid.

Defamation vs. Hyperbole

April 2021 | Sherry Young, Staff Writer/Editor

For many years, the media has enjoyed a broad definition where the applicability of Freedom of Speech is concerned, but Freedom of Speech does have its limitations. When Freedom of Speech is abused, defamation is the key to addressing false statements. The elements required to prove defamation may vary, but generally consist of four elements discussed below. The burden of proof is different for public figures and private individuals. Journalists and broadcasters, like Fox News, open themselves to defamation lawsuits by making reckless statements. This article will explore the lawsuits filed by Smartmatic and Dominion against Fox Corporation, Sidney Powell, Rudy Giuliani, and several Fox correspondents in the wake of the triumph by Fox in the lawsuit filed by Karen McDougal. The outcome of the Smartmatic and Dominion lawsuits will likely impact the way journalists and broadcasters present news that may overreach the limits of truth or hyperbole.      

 The right to Freedom of Speech is not without limitations and consequences, even for the media.

The Constitution has always held Freedom of Speech as an important right, founded upon philosophical concepts inspired by John Stuart Mill. The idea that the media benefits from unconstrained Freedom of Speech has been the subject of many judicial opinions. In 1919, Supreme Court Justice Oliver Wendell Holmes Jr. issued the infamous dissenting opinion in Abrams v. United States about the importance of “free trade in ideas…”[1] This was supported by Gertz v. Robert, in which the Court opined, “[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”[2]

Nonetheless, Freedom of Speech is not without limitation. Certain speech, such as incitement of an action that produces an imminent danger,[3][4] obscenity,[5] and defamation are not protected. States may vary regarding the elements required to prove defamation, but most of the time plaintiffs must prove that the communications were: 1) false, purporting to be fact; 2) published or communicated to a third person; 3) fault amounting to at least negligence existed in making the statement(s); and 4) damages, or some harm caused to the person or entity who is the subject of the statement(s).[6]

Journalists open themselves to defamation when they recklessly publish false information.[7] 

The burden of proof for defamation differs depending on whether the individual or entity being defamed is a private or public figure. In New York Times Co. v. Sullivan, the Court held that public figures must show “actual malice,” i.e., the media must have known its statement was false or acted with reckless disregard for the truth.[8] Courts have held failing to investigate claims prior to publishing is not sufficient to establish reckless disregard or malice;[9][10] instead, the plaintiff needs to prove the speaker possessed a “high degree of awareness of [the statements’] probable falsity.”[11] Where a private figure is concerned, the Court removed the malice requirement in Gertz, holding that private individuals lack the same communication channels to which a public figure has access and also that a private individual has not opened themselves in a voluntary manner in the same way as a public figure. Under Gertz, individuals who “assumed roles of especial prominence in the affairs of society” and who “invite[d] attention and comment” are generally considered public figures. Whether Dominion and Smartmatic are public or private figures still remains to be determined.

Courts have generally held statements must still be made in “good faith,” meaning the speaker must believe the comment is true.[12] Endeavoring to clarify the falsity of a statement from an opinion (i.e. the protected marketplace of ideas), the Court in Cianci v. NY Times opined, “[e]ven if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications.”[13] 

This brings us to the current issue at hand: Smartmatic and Dominion have both respectively filed lawsuits for billions of dollars, alleging defamation against Fox Corporation, Sidney Powell, Rudy Giuliani, and several Fox correspondents. Some statements Dominion alleges as defamatory were made shortly after the November 2020 election, during an interview on Fox News between correspondent Maria Bartiromo and Sidney Powell. Powell was specifically asked by Bartiromo to talk about irregularities with regard to Dominion Software, to which she replied, “[t]hat's putting it mildly. . . That is where the fraud took place, where they were flipping votes in the computer system or adding votes that did not exist. . . That’s when they had to stop the vote count and go in and replace votes for Biden and take away Trump votes.”[14]

Similarly, during an interview on Lou Dobbs Tonight (Fox News’ highest rated show on business television), Rudy Giuliani stated that, in addition to being extremely hackable, Smartmatic was owned by Dominion and formed by three Venezuelans, who were very close to Venezuelan dictator Hugo Chávez, in order to fix elections. Dobbs ended the interview by saying “[a]nd Rudy, we’re glad you’re on the case and, and pursuing what is the truth and straightening out what is a very complicated and difficult story. And by the way, it’s not only difficult, it has the feeling of a cover up in certain places, you know, putting the servers in foreign countries, private companies, we don’t have transparency with those servers. This is, this is an election nightmare, as well as a battle.”[15] Both lawsuits allege Fox not only joined in the conspiracies by failing to fact-check the claims, but repeatedly invited Powell and Giuliani as frequent guests in the weeks that followed.

In response to a demand letter by Smartmatic, retractions were aired in December 2020 on three Fox shows, Lou Dobbs Tonight, Sunday Morning Futures, and Justice with Judge Jeanine. Certain states require retractions be requested prior to filing suit. Defendants may also have an incentive to issue retractions to try to prevent plaintiffs from being able to seek punitive damages. However, defendants may still be liable for punitive damages if malice is proven. Fox fired Dobbs a few days after Smartmatic filed their complaint. 

There are several defenses to defamation: truth and opinion.   

In the case against Powell, there is no possibility of defending the statements based on truth. Instead, Powell is attempting to invoke a defense, now commonly called “The Tucker Carlson Defense,” stating the statements were so unbelievable that no reasonable person would take them seriously. While this might seem like a good move for Powell, it poses some issues for Fox. Bartiromo cannot claim she was unaware of what Powell was going to say, since the question clearly asked Powell to talk about voting irregularities with regard to Dominion software prior to Powell mentioning that was her belief. Furthermore, days after the segment with Powell aired, Tucker Carlson delivered a monologue stating he made multiple requests for Powell to provide evidence supporting her claim and that she got angry and told Carlson to stop contacting her.[16] It remains to be seen whether Carlson’s monologue establishes Fox had some sort of “notice” the claims made by Powell were possibly false and whether the courts would entertain that theory under New York Times and Garrison as evidence of malice and reckless disregard.

Fox claims it was presenting “substantially correct” reporting of the claims by the President and his representatives, that it was neutral in its reporting, and, as such, is protected under the neutral-reporting doctrine issued in Florida cases, Rendon v. Bloomberg and Croce v. N.Y. Times Co.[17][18] The Fox brief also cites DeLuca v. N.Y. News Inc., “[i]f the mere fact that a statement is made is itself newsworthy, then the reporting of that statement by the press is protected expression, regardless of whether the statement is defamatory and false, and the press is not bound to verify the truth of the statement.”[19] 

Sorting through Fox’s defenses is a bit like trying to figure out which part of their broadcast is actual news vs. hyperbole. 

First, New York rulings have rejected the neutral reporting privilege.[20] In an interview with Erik Connolly, an attorney for Smartmatic, he explained that even if statements are couched as an opinion, if the context makes the listener or reader think there is a factual basis for it, the communication is not protected.[21] Next, Smartmatic’s opposition rejects the application of Croce v. N.Y. Times, correctly stating the opinion issued by the Court in Croce had nothing to do with the neutral reporting privilege except to say that the Ohio Supreme Court explicitly rejected the privilege. The application of Rendon v. Bloomberg applies only if the plaintiff is a public figure and is also moot based on the fact New York does not recognize the neutral reporting privilege. 

With the ink practically still drying on the order granting Fox’s motion to dismiss the lawsuit filed by Karen McDougal over statements made on Tucker Carlson Tonight, it is entirely feasible to wonder whether the Federal Court’s ruling might lend insight into the future of the Smartmatic and Dominion cases. In the McDougal matter, the Court took exception to McDougal’s allegation she was defamed when Tucker Carlson said she “extorted” money from Trump.  Fox defended Carlson with established case law from Hogan v. Winder which specifically provides “accusations of extortion are a familiar rhetorical device.”[22] Since the Court found the statements constituted rhetorical hyperbole, they could not be construed as defamatory pursuant to the holdings in Gross v. N.Y. Times Co. because “hyperbole is not actionable for defamation.”[23] The Court also considered McDougal a public figure and found that because there were no issues with regard to truthfulness in Carlson’s statements, McDougal was unable to prove malice.[24] The Court noted no correction (retraction) had been issued by Mr. Carlson, further lending to McDougal’s inability to prove malice.    

In the Smartmatic and Dominion cases, multiple statements were made. Each complaint is hundreds of pages. Though some statements may be considered hyperbole, it will be interesting to see if Carlson’s statements doubting the strength of Powell’s claims lend any strength to the burden of proof required for malice and whether Smartmatic or Dominion are public or private figures. If Fox believes Dominion and Smartmatic have strong cases, Fox would be wise to settle out of court. For those of us curious to see how this case could affect the way the media presents unconfirmed theories or uses hyperbole, a judgment in favor of Fox would embolden the media to present any information it deems newsworthy without concern as to the veracity contained therein. On the other hand, a judgment in favor of Dominion or Smartmatic would serve as a warning that other news outlets should “air” on the side of caution.

---

Sources

1.  Abrams, et al. v. United States, 250 U.S. 616, 630, 40 S. Ct. 17; 63 L. Ed. 1173 (1919).

2. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).

3.  Schenck v. United States, 249 U.S. 47 (1919).

4.  Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

5.  Roth v. United States, 354 U.S. 476 (1957).

6.  “Defamation,” in Legal Information Institute (Cornell Law School), accessed April 18, 2021.

7.  Leah Easterby, “Defamation, Public Officials, and the Media,” www.nolo.com, accessed April 8, 2021.

8.  New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

9.  Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989). 

10. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

11.  Garrison v. Louisiana, 379 U.S. 64, 74 (1964). 

12.  Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

13.  Cianci v. New Times Publishing Co., 639 F.2d 54, 61 (2nd Cir. 1980).

14.  US Dominion, Inc., et al. v. Fox New Network, LLC, No. N21-03-257 EMD.

15.  Smartmatic USA Corp, et al. v. Fox Corp, et al., No. 0151136/2021 (n.d.).

16.  Tucker Carlson, “Tucker Carlson Gives ‘update’ after Sidney Powell Segment Backlash,” USA Today, November 20, 2020.

17.  Rendon v. Bloomberg, 403 F. Supp. 3d 1269 (S.D. Fla. 2019). 

18.  Croce v. N.Y. Times Co., 930 F3d 787, 793 (6th Cir. 2019).

19.  De Luca v. N.Y. News, Inc., 109 Misc. 2d 341, 345-346, 438 N.Y.S.2d 199 (Sup. Ct. 1981).

20.  Hogan v. Herald Co., 58 N.Y.2d 630, 458 N.Y.S.2d 538, 444 N.E.2d 1002 (1982).

21.  Jonathan Amarilio, Trisha Rich, and Erik Connolly, “The Smartmatic v. Fox News Edition,” @theBar, accessed April 11, 2021.

22.  Hogan v. Winder, 762 F.3d 1096, 1108 (10th Cir. 2014).

23.  Gross v. N.Y. Times Co., 82 N.Y.2d 146, 152, 603 N.Y.S.2d 813, 623 N.E.2d 1163 (1993).

24. Actual malice, on the other hand, must be plausibly alleged by providing facts to demonstrate a defendant’s disregard for the truthfulness of its statements. See, Palin v. N.Y. Times Co., 940 F.3d 804, 815-16 (2d Cir. 2019). 

Voter Suppression in 2020

January 2021 | Corryn Richardson, Staff Writer/Editor

In the United States, voting is not a privilege, it is a right. However, there have been violent tactics used in the past that consequently hindered many Americans’ votes. Although the  Constitution did not initially include voting rights for all, Section 2 of the Twenty-Sixth Amendment states that “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”[1] While this was a step in the right direction, as society progresses, new contemporary oppressions must be addressed. Nevertheless, the federal government tried to handle the de jure, or in law, oppressions by adding the Fifteenth Amendment in 1870, Nineteenth Amendment in 1920, and Twenty-Sixth Amendment in 1971. Yet these amendments did not halt the de facto, or in actual practice, tactics used to obstruct voting within the country seen in the 2020 election. 

Voter suppression has presented itself in many forms throughout history, with voter intimidation as one of the most prevalent tactics used in order to discourage active voting. In 1965, the Voting Rights Act was passed by President Lyndon B. Johnson, which was considered a huge victory as it outlawed discriminatory tactics used to stop many Black people from voting in the South.[2] As a result of this Act, voter turnout increased dramatically; however, studies show that there was still a large racial gap when it came to who was voting. The lingering fear of violence played a role in affecting the number of minorities expressing their right to vote. So, even though the purpose of this Act was to create a more equal platform for all voices to be heard, it was not entirely successful as some minorities still did not utilize their right to vote due to the previous intimidation.[3] This is significant to understand when analyzing contemporary discrimination because this was the beginning of the theme of continuity. Continuity is defined as an unbroken chain of events that are all connected through a period of time, and it is applicable to voter suppression because, throughout history, there were always tactics used to silence voices (i.e. Jim Crow laws). As time progresses, tactics progress to become more modern as well; hence, the strong theme of continuity. While de jure legislation made intimidation tactics illegal, the de facto aspect continued in creatively unjust ways. 

The 2020 election had the highest voter turnout in modern politics, with over 160 million Americans voting in the election.[4] This election had a lot on the line for many Americans, as COVID-19 affected many Americans economically. With such high tensions and an ever polarized political environment, there was an absurd amount of voter intimidation this year. For example, in Pinellas County, Florida, there were two people standing armed outside of an early polling station, dressed as security guards.[5] The individuals told their local news station that they were hired by the Trump Administration Campaign; however, upon further investigation, those claims were found to be fraudulent. “The campaign did not hire these individuals nor did the campaign direct them to go to the voting location,” stated Thea McDonald, the deputy national press secretary for the Trump campaign.[6] But, although these individuals lied, they were not breaking the law as they were registered security guards for a Florida security company. Regardless, Michigan's Secretary of State Jocelyn Benson tried to ban openly carrying guns at polling locations as it is intimidating and uncomfortable for some citizens. However, a judge overruled her ban, allowing citizens to open carry at polling locations.[7] These two events are significant to compare as they show how the government took a passive role in these situations. Even though the two individuals from Florida were not breaking the law, it made citizens, such as Democratic candidate Trevor Mallory, uncomfortable at their own polling stations.[8] As a result, when officials such as Secretary Benson tried to create change in order to ensure everyone felt secure voting, higher government officials dismissed her case. Under these circumstances, people are more likely to be afraid to practice their right to vote, thus decreasing voter turnout. 

Some may argue that since the 2020 election had the highest turnout, voter oppression has declined. For example, as minority groups were given the right to vote throughout history, voter turnout gradually increased. This makes sense in theory, however, with discourse becoming more polarized between political parties, citizens felt as though they had more to lose if they did not practice their right to vote. When asked about his reason for voting, Washington Post interviewee Dillan Dimas stated, “this is about preserving our democracy and keeping what little civics we have left. I’m so warped by everything that this feels like the last thing we have left to preserve civil society.”[9] In short, young people see American democracy deteriorating in front of them and thus feel responsible to vote in order to save their democracy. Another interviewee of the Washington Post, Sherry Browning, stated at the polls on Election Day, “if I die tomorrow, I did my duty.” This statement shows how dire people felt this election was and that they were willing to make any sacrifice in spite of voter intimidation. Despite this election having the highest voter participation, people felt as though it was their moral obligation to ensure that their vote counted, no matter the cost. 

Unfortunately, it does not end there. With the Coronavirus ravaging much of the United States, US officials have set up ballot boxes. These are boxes set up in a multitude of locations throughout the country for voters to drop off their ballots in order to promote voter turnout amidst the safety concerns about physically entering polling locations. In October of 2020, many ballot boxes were set on fire.[10] These arsons only further promote the ill theme of continuity as we see continuous infringements on the people's right to vote. On October 18th, a ballot box located in Baldwin Park, CA that contained at least 100 filled out ballots was found burning. This area is known for its high concentration of minority groups, and thus it is believed that the ballot box being set on fire was an attack on minority votes. Supervisor of Los Angeles County, Hilda Solis, stated that the attack "has all the signs of an attempt to disenfranchise voters."[11] In addition, exactly a week later on October 25th, a second ballot box was set on fire in Boston. Luckily, of the 120 ballots, 87 were legible and able to be counted in the primary election. However, people should not be celebrating when 72% of votes are legible. These attacks are suppressive tactics used to instill fear into the public. These events are noteworthy because they allude to the theme of continuity once again as the attacks of the ballot boxes dissolve the confidence of these secure voting alternatives. 

Voter suppression has been relentless throughout history, which is something that must change. The United States is supposed to be the home of the free and land of the brave; however, with political polarization leading to voter intimidation, American citizens are losing faith in our democracy. The de jure approach that the federal government took was not effective enough, as there is still de facto oppression that consequently affects voter turnout throughout the country. There is a moral responsibility to actively counter these oppressive tactics, with education as a top priority. People need to educate themselves and others about this nation’s history of voter suppression and how to vote in spite of discrimination. In addition, everyone should register to vote. This is the best way to refute all types of voter intimidation because when more people vote, more voices are heard; thus, the outcome would benefit the majority. There is no reason why voting should be infringed upon in contemporary elections, but considering the large margins of existing inequality, everyone should take action to end the continuation of voter suppression.   

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Sources

1.  U.S. Constitution. amend. XXVI, sec. 2.   

2. Georgetown. “A Brief History of Civil Rights in the United States: Introduction.” Last modified 2020.

3.  German Lopez, How the Voting Rights Act transformed black voting rights in the South, in one chart, (August 6, 2015).

4.  James Lindsay, The 2020 Election By The Numbers (Council on Foreign Relations, 2020)

5. WFLA Channel 8. “Trump Spokesperson Says Armed Guards Outside St. Pete Polling Place Were Not Hired by Campaign.” October 22, 2020.

6.  Ibid. 

7. Egan, Paul. “Judge Strikes down Benson Order Banning Open Carry of Guns at Michigan Polling Places.” USA Today. October 27, 2020.

8. WFLA Channel 8. “Trump Spokesperson Says Armed Guards Outside St. Pete Polling Place Were Not Hired by Campaign.” October 22, 2020.

9. Hernandez, Arelis R. “A Barrier, an Inspiration, a Promise: America in Line.” The Washington Post. October 22 2020.

10. Terry Ellis, Nicquel. “Guns, Lies and Ballots Set on Fire: This Is Voter Suppression in 2020” USA Today. October 29, 2020.

11. Ibid.

How Biden’s Plan to “Beat” COVID-19 Compares to Trump’s Previous Strategy

January 2021 | Edgar Nicolas Garcia, Staff Writer/Editor

From issuing a nationwide mask mandate to investing $25 billion in vaccine manufacturing and distribution, President Biden’s plan to mitigate the crisis of the novel Coronavirus pandemic appears to make the federal government more active, or intrusive, compared to his predecessor Donald Trump’s approach. The new presidency strives to undo what they deem as Trump’s shortcomings when handling the pandemic. Altogether, the Biden strategy to beat COVID-19 revolves around seven distinct points to get the United States back on its feet. The plan displays intuitive strengths of diverting attention and resources to aid minority communities, uniting the nation under a single course of action, and increasing funding for future vaccines. Nonetheless, it also bears potential weaknesses as it lacks specificity and appears to hold some false promises.

On one hand, Trump’s strategy in the face of COVID-19 was predominately based on a mix of laissez-faire tactics and constant contradictions as the pandemic ran its course. Despite enacting travel bans during the initial spike of the pandemic, Trump mainly downplayed the severity of the virus while regularly ignoring scientific evidence.[1] This left many state and local governments with tremendous discretion in how they handled the spread of the virus. Some governors would mandate the use of masks in public or would enact a state lockdown, while others would not impose any government restrictions to prevent the spread of the virus. However, these differing approaches were also very divisive to the country, as many Americans living in various jurisdictions had different experiences and outlooks towards the pandemic. One thing is for certain: the lame-duck presidency relied on deploying a vaccine by the end of 2020 and planned to have millions of doses in the months that followed. Under Operation Warp Speed, the Trump administration invested about $18 billion to focus on a medical solution.[2] Currently, according to the CDC, there will be multiple phases signed for the distribution of the vaccine. For starters, there is Phase 1a which covers frontline healthcare workers and long-term care facility staff and residents as the priority to receive the initial doses.[3] Then there is Phase 1b for frontline essential workers, such as firefighters and police officers, and persons over 75 years old. Next, there is Phase 1c with all other essential workers from transportation, construction, public health, and many more. Nevertheless, the demand for the vaccine exceeds supply. At the time of the publication of this paper, there are about 400 million vaccines ordered from Pfizer and Moderna for distribution.[4] Both vaccines authorized by the Food and Drug Administration are only enough for 200 million Americans as they require two doses per person. This falls short of the U.S. population of about 329 million.

On the other hand, Biden’s plan to combat the Coronavirus is laid out in seven points, encompassing different solutions to very different problems. To begin with, he wants to improve the access to regular and reliable testing by investing in future examination advancements and doubling the number of drive-through test sites.[5] Biden also wants to establish a Pandemic Testing Board that can produce and distribute a vast number of tests. Right off the bat, this plan increases the testing and contact tracing of the virus to help understand the scope of the pandemic. It is a sharp contrast to Trump’s strategy, where his administration once recommended the CDC to limit the number of testing to lower the overall number of COVID-19 cases in the country. Likewise, Biden’s plan involves resolutions to the issues around access to personal protective equipment (PPE). In the past, many states and cities were left to fend for themselves when it comes to providing PPE to their populace. However, the new administration aims to utilize the Defense Production Act, the primary action by the president to expedite and expand the supply of materials and services, to drastically enhance the production of masks, face shields, and other PPE while focusing on keeping manufacturing within the U.S. This bolsters the supply of PPE to potentially exceed the demand, which inevitably lowers the cost to Americans. Withal, the upcoming presidency intends to provide resources to aid communities and small businesses, helping them get back on their feet. Primarily, Biden wants Congress to pass an emergency package to provide additional funding to schools in order to adapt to the dangers of COVID-19. At the same time, small businesses can benefit from a “restart package” which helps cover the costs of requirements such as plexiglass and PPE so they can operate safely. The new federal initiatives can lend a hand to Americans impacted by current invasive guidelines that dramatically affect the operations of communities. 

Additionally, there are several intuitive strengths to the Biden plan in regards to diverting more attention in aiding minorities, uniting the country towards a common course of action, and increasing investments in fighting the coronavirus. Particularly, Biden has planned to create a Racial and Ethnic Disparities Task Force, meant to address the minority communities disproportionately affected by the coronavirus.[6] Under the Trump administration, there were no efforts in alleviating the unequal rates and deaths faced by African-Americans and Latinos. After relief is provided and the crisis is mitigated, Biden wants to transition the Racial and Ethnic Disparities Task Force to a permanent Infectious Disease Racial Disparities Task Force. Also, Biden plans to work with state governors and mayors to implement a nationwide mask mandate to limit the spread of the virus. In contrast to the previous administration’s rhetoric of leaving it up to state and local authorities, Biden wants to set a single guideline for all Americans to follow. On the campaign trail, Biden emphasized that if 95% of Americans wear masks, almost 70,000 lives could be saved.[7] Lastly, the Biden presidency has cited a $25 billion price figure for vaccine manufacturing and distribution so every American is guaranteed their doses for free. This initiative ensures that the supply will meet the demand while dwarfing the mere $18 billion in vaccine investments made by Trump. 

Nevertheless, Biden’s plan, though broad and extensive, appears to lack in detail with some points of their strategy while blatantly carrying false promises in others. For example, in regards to PPE distribution, the plan states that it will “ensure everyone — not just the wealthy and well-connected — in America receives the protection and care they deserve, and consumers are not price gouged as new drugs and therapies come to market.”[8] Yet, this gambit also raises questions from its lack of specificity. Who is going to ensure that patients are not being price gouged? Is there going to be a task force assigned to do this job? Will there be citations or injunctions against PPE suppliers if they are caught price gouging? The new administration needs to provide answers to these gaps in their strategy. Moreover, in the subject of utilizing the Defense Production Act to increase the supply of PPE, Biden promises to protect American manufacturing. However, it is very unlikely that the businesses will only order PPE from American companies, as many small businesses can opt-in to get their PPE from foreign countries at potentially lower costs. It appears that the point Biden is trying to make is simply a false promise to defend American manufacturing, especially as private businesses have their own discretion independent from the government’s control.

In conclusion, Biden’s strategy bolsters the scope and reach of the federal government to beat the COVID-19 pandemic. On one hand, the Trump administration left states and local governments to fend for themselves and put the majority of their efforts into investing in viable vaccines. While on the other, the Biden presidency details seven distinct points to get the country back to normalcy under a much stronger government. Overall, Trump’s plan was constantly filled with criticism and doubt, but Biden will be most likely to be confronted with similar resistance from his opponents. Only time will tell whether or not the new administration will live up to its promises or make the same mistakes as its predecessor in the face of the novel Coronavirus pandemic.

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Sources

1. Summers, Juana. “Timeline: How Trump Has Downplayed The Coronavirus Pandemic,” October 2, 2020.

2. “Trump Administration Dips Into Protective Gear.” Bloomberg, September 23, 2020.

3. “Evidence Table for COVID-19 Vaccines Allocation in Phases 1b and 1c of the Vaccination Program.” Centers for Disease Control and Prevention. December 22, 2020.

4. McDonnell, Tim. “How Many Pfizer and Moderna Vaccines Did the US Buy and When Will They Arrive?” Quartz. December 23, 2020.

5. “COVID Timeline,” October 21, 2020.

6.  Moore, Elena. “Trump's And Biden's Plans On The Coronavirus Pandemic,” October 16, 2020. 

7. “COVID Timeline,” October 21, 2020.

8. Ibid.

The Biden Presidency: A New Hope for Immigrants?

January 2021 | Syeda Jamshed, Staff Writer/Editor

America: the land of opportunity. Immigration has been the foundational stone for the United States of America since its establishment. For the past few decades, immigration has not only been on the rise, but it has also become one of the focal points of American society, welfare, and politics. The United States was built, in part, by immigrants, and the nation has long been the beneficiary of the new energy and ingenuity that immigrants bring. Today, one in seven of the nation’s residents are foreign-born, while one in eight residents is a native-born U.S. citizen with at least one immigrant parent.[1] Although the Statue of Liberty, one of the premier symbols of the United States, welcomes “your tired, your poor, your huddled masses yearning to breathe free,” America’s relationship with its immigrants has long been complicated. 

Throughout the United States’ history, there have been persistent and charged debates over the nature and consequences of immigration. At times, America has greatly restricted the number and characteristics of newcomers, despite its aspiration to be identified as a “nation of immigrants” and a “melting pot”. The Trump administration has issued more than 400 executive actions that dramatically reshaped America's immigration system including family separations, fast-track deportations, and immigration restrictions imposed on several nations.[2] A majority of Americans had been desperately waiting for the 2020 elections for a new administration that would favor immigration. The recently elected Biden-Harris Administration has become a new beacon of hope for the immigrant community. The following article will provide an overview of the future Biden presidency’s plans for immigrants and how the current immigrant/refugee minority feels about the future administration’s plans. 

The Biden-Harris Campaign has a plan for securing the democratic values of America as a nation of immigrants. The focal points of the immigration plan will take urgent action to undo Trump’s damage, and the plan includes modernizing America’s immigration system, welcoming immigrants in our communities, reasserting America’s commitment to asylum-seekers and refugees, tackling the root causes of irregular migration, and implementing effective border screening. Furthermore, in the first 100 days, the Biden Administration will immediately reverse the Trump Administration’s policies that separate parents from their children at our border. The new administration will also end the current mismanagement of the asylum system, which fuels violence and chaos at the border. Furthermore, prolonged detention will be ceased and a case management program will be reinvented. The Administration will also reverse Trump’s public charge rule, end the so-called National Emergency that siphons federal dollars from the Department of Defense to build a border wall, protect Dreamers and their families, and rescind the travel and refugee bans, also referred to as “Muslim bans.”[3] As president, Biden will commit significant political capital to deliver legislative immigration reform that ensures the US remains open and welcoming to people from every part of the world. This will ultimately bring hardworking people who have enriched our communities and our country, in some cases for decades, out of the shadows for good. 

The immigrant community currently has mixed responses for the upcoming immigration policies of the Biden-Harris Campaign. Biden pledged during his campaign to use his powers to reverse many of Trump’s most controversial actions. Biden’s plan includes a 100-day moratorium on deportations, restoring protections for young immigrants brought to the country illegally as children, and eliminating Trump’s restrictions on asylum-seekers.[4] But some immigrant rights groups, like the Refugee and Immigrant Center for Education and Legal Services (RAICES), Movimiento Cosecha, and United We Dream, want more. “We need advocates and people who wake up every day thinking about how they're going to fix the system so that people like myself and people like my family and others who are seeking refuge here have the ability to have a better life,” said Erika Andiola, an immigrant rights activist and advocacy director for RAICES.[5]

Recognizing that the political divide in Congress makes a major overhaul of the immigration system unlikely, the advocacy groups are pushing for Biden to use his presidential powers to take steps sooner rather than later. The divide between the incoming administration and activists dates back to the Obama administration, when immigration rights advocates were not happy with how former President Barack Obama handled enforcement issues — a period when Obama had been dubbed the “deporter in chief” for his record on deportations. The incoming administration is sensitive to activists’ demands. Biden nodded to their concerns when he picked the first Latino immigrant to lead the Department of Homeland Security, which oversees immigration enforcement. While introducing Alejandro Mayorkas as his pick for Secretary of Homeland Security, Biden said Mayorkas knows “we are a nation of laws and values.” Advocates remember Mayorkas from his work crafting the DACA program, which has protected hundreds of thousands of young immigrants from deportation.[6] This shows the administration’s willingness to listen to the concerns of immigration advocacy groups, but there are still a lot of promises that need to be fulfilled in the next four years. 

The success of the Biden-Harris Campaign at winning the Presidency was largely celebrated by immigrants all across the nation. They have clearly been facing numerous challenges, discrimination, and scrutiny under the Trump Administration. For a better future, the immigrant community widely supported the Biden-Harris Campaign in their efforts, in hopes of a new leader who will support and protect them. So far, the Biden-Harris transition has demonstrated its commitment towards them, both in promises and in nominations. But the question of whether the Biden-Harris Administration will be the new hope for immigrants remains to be answered, as only time will tell.

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Sources

1.  “Immigrants in the United States.” American Immigration Council. 6 Aug 2020. Web. 22 Dec 2020.

2. Bolter, Jessica, & Pierce, Sarah. “Dismantling and Reconstructing the U.S. Immigration System: A Catalog of Changes under the Trump Presidency.” Migration Policy Institute. Web. July 2020.

3. “THE BIDEN PLAN FOR SECURING OUR VALUES AS A NATION OF IMMIGRANTS.” Biden Harris. Web. 22 Dec 2020.

4. Ordonez, Franco. “On Immigration, Activists’ Demands May Exceed Biden Realities.” NPR [Houston] 13 Dec. 2020. NPR Web.

5. Ibid.

6. Ibid.

The Power of the Youth Vote

October 2020 | Abraham Lugo, Staff Writer/Editor

At the cusp of a historic presidential election, the push for voter turnout across the U.S. holds clear prominence as the looming decision approaches. Yet one factor could make all the difference: the youth vote. Young people, ages ranging from 18 to 24 years old, have made a consistent decline in voting rates in the past. According to the U.S. Census Bureau, young adult voting rates dropped to as low as 32.4% in the 1996 presidential election. To put it into perspective, voter turnout just two years ago in 2018 was at a high 66.1% for voters aged 65 and up.[1] So how is this election, and all elections both local and federal, going to play out any different from here on out?

Between 2014 and 2018, encompassing the previous presidential election, voter turnout saw the highest percentage increase in any age group from young adult voters, totaling to a 79% increase. A definitive shift in demographics for young voters is set to be on the rise as Generation Z begins to make their way into voting eligibility. The Pew Research center has identified anyone born from 1997 and after as part of the new generation, Generation Z, while anyone born from 1981 to 1996 is considered a Millennial.[2] Moreover, the most significant difference between the two generations can be seen in a Pew Research analysis, showing Generation Z dominating in the number of online searches for information on the post-millennial generation. Generation Z voters are the first generation to live with smartphone technology and unlimited internet accessibility since before even being of legal age.[3] Because of this, a shift in political involvement and issue focal points is not only expected, but it is already underway.

The most prominent issues for young voters center on climate change, gun reform, immigration, police reform, and student loan debt. These have all been results of young voters witnessing more than most generations typically would as youths, which includes but is not limited to double economic crashes, a global social-justice movement for racial equality, a worldwide pandemic, record-beating unemployment rates, a drastic increase in gun-violence statistics, a surge of political division, and a chain of ongoing natural disasters. Thus, a new era of involvement is inevitable as a result of these hardships. A 2020 Harvard poll stated that “young voter enthusiasm and the likelihood of turning out are very high. 63% of respondents indicated they will ‘definitely be voting,’ compared to 47% during this same time in 2016.”[4]

So the question is, why have young people previously struggled to turn out when the time for voting arrives? The common consensus, on both sides of the political party spectrum, is simple: young people are waiting for representatives to use their platforms for giving importance in appealing toward the  issues of the youth. This trend has shown just how significant of a factor true representation to all identities of voters is, rather than the repeated political appeal to older generations simply for their consistent vote. Dr. Kawashima-Ginsberg, a psychology professor from the University of Chicago, speaking on why young people don’t vote told the New York Times that, “when young people feel like their vote doesn’t matter, they don’t vote.”[5]

The youth vote has been on the verge of becoming an influential driving force towards the outcomes of elections for the past few years. Even so, the numbers show only an exponential increase of interest, while a historic presidential election is just months away. After a record-breaking turnout from youth in the 2018 midterm elections, the time for young voters to show up and show out is now. With such a wide shift in ideologies for the future of the U.S. and democracy itself within this age gap, a drastic increase in youth voter turnout could very easily alter the results of the entire election.  The Center for Information and Research on Civic Learning and Engagement (CIRCLE) shared with VOA (Voice of America) news that “young people can decide elections, and their participation is central to our politics. Expanding the electorate and addressing inequities in youth voting is a crucial task for strengthening democracy.”[6]

As the future leaders and inhabitants of the U.S. government, it is the responsibility of young people to vote. Luckily for them, the numbers and data all fall into place on their side. All that is needed of them now is to find the inspiration towards starting the change they desperately want to see in representation and ultimately shift into representing themselves. Narendra Modi, the Prime Minister of India wisely said, “it is important how we view the youth of our nation. To simply consider them as new age voters will be a big mistake. They are the new age power.”[7]

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Sources

1.  Thom File. Young Adult Voting: An Analysis of Presidential Elections 1964-2012. (Suitland: U.S. Census Bureau, 2014), 1.

2. Michael Dimock, Defining Generations: Where Millennials End and Generation Z Begins. (Washington D.C.: Pew Research Center, 2019), 2.

3. Ibid, 2.

4. Mark Gearan, Harvard Youth Poll, Election 2020. (Cambridge: Harvard Institute of Politics, 2020), 2.

5. Sydney Ember, Young Voters Could Make a Difference. Will They? (New York City: The New York Times, 2018), 3.

6. Kathleen Struck, Plenty of Signs Surging Youth Will Play Major Role in 2020 US Election. (Washington: Voice of America, 2020), 3.

7. Chanchal Chauhan, Three Years of Narendra Modi’s Government: 34 Quotes of the Prime Minister. India.Com. May 26, 2017. 

Section 230: The Idea of Communication Decency

October 2020 | Karlyn Carlisi, Staff Writer/Editor

In late May of 2020, President Donald Trump went on Twitter to air his thoughts about the current events of the day. He decided to focus on mail-in voting, which was a major topic of discussion as the country dealt with the peak of the COVID-19 pandemic. In his tweets, he claimed that mail-in ballots would be rife with fraud, with forged signatures and fake ballots being printed as examples of alleged fraudulent behavior.[1] However, President Trump made these claims about mail-in ballots without any kind of evidence. So, in order to stop disinformation from swaying the general public, Twitter placed a warning on those tweets, providing a link to facts about mail-in voting that stand in stark contrast to the president’s claims.[2] As a result, President Trump signed an executive order as retaliation regarding Section 230 and the safeguards social media companies receive under the provision. Section 230 itself has been a contentious section of the Communications Decency Act of 1996 for both parties, but different reasons exist behind their objections.

To begin, Section 230 is one of many sections within the Communications Decency Act. According to Brookings, a nonprofit public policy institution based in Washington D.C., Section 230 states that social media companies are not liable for the contents its users or third-party entities post.[3] This section has two major parts that stand as the source of the controversy: 230(c)(1) and 230(c)(2). 230(c)(1) states that: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[4] This provision ensures that social media companies are immune to liability for the content that a user posts, as they do not take on the form of being the source of the post. 230(c)(2) shields social media companies from liability if A) action was taken “in good faith” to restrict obscene content and B) if other means of restricting information access, like filtering tools, are available.[5] Most of the objections to Section 230 exist in 230(c)(2)(A), as many feel social media companies either engage in too much or do not engage in enough content restriction. 

One of the loudest opponents of Section 230 in 2020 has been the Republican Party. When President Trump signed his executive order, many Republican senators applauded the move as a strike against “censorship” towards their party. One of these senators was Missouri senator Josh Hawley, who introduced legislation that sought to end the legal protections tech companies had.[6] The repeal of Section 230 would mean that conservative, Republican views would be more plentiful on Twitter and other social media websites that Republicans believe are censoring them. Where this logic fails is their understanding of Section 230. The section does not require social media sites to be neutral, nor are they meant to regulate themselves as if they were a public space.[7] Many Republicans also claim that sites like Twitter violate their 1st Amendment rights to free speech, but where that claim falters is the application of the amendment. The right to free speech is a civil liberty possessed by the people, where the government cannot restrict any forms of speech they find objectionable. This standard does not apply to private entities, like social media companies, as they are not an extension of the government nor do they act on behalf of the government. If a social media company finds content posted by an individual to be obscene or offensive, and the user happens to be Republican or espouses Republican ideology, the company is well within their right to remove the content or the user under their terms of service. 

For Democrats, their objections to Section 230 are more centered on hate speech. For Democratic politicians like Nancy Pelosi, the desire to repeal Section 230 stems from social media companies not doing enough to crack down on disinformation and harassment that users engage in on the platform. If Section 230 is repealed, it would motivate social media sites to regulate their content a lot more than they already do. However, “hate speech” is still protected by the First Amendment, as it is difficult to define, and regulating such content would be hard to do. Furthermore, if Section 230 were to be repealed, more censorship would occur on the sites. This is an outcome that numerous legal experts want to avoid, as the loss of Section 230 would cripple other websites and cause places like YouTube or Yelp to be less accepting of the different opinions through comments or reviews.[8] 

Section 230 of the Communication Decency Act has been a topic of debate between Republicans and Democrats since the act was passed. While both sides agree that the section should be repealed, they disagree on the reason why. Section 230 itself provides a shield to social media companies against liability for the content that users post to their websites. Much of the issue with Section 230 revolves around one part, which is 230(c)(2)(A). This part allows social media sites to restrict content or users in an act of good faith should the posts be objectionable, and this is taken one of two ways by both parties. Republicans see this section as a tool for social media companies to take their voices off the platform for arbitrary reasons, ignoring the true meaning of the section and the First Amendment’s non-involvement. Democrats see this section as a bandaid over content like misinformation and harassment, where social media companies do not act until they are pressured to. This ignores the complexity of hate speech as well as how more regulation leads to more restrictions, which hurts everyone in the end. Repealing Section 230 would cause more problems than either side could have anticipated, and Section 230 should be left alone as it is. Lawmakers should come back to it when they fully and correctly understand what the section is trying to do. As of now, the debate will rage on between both sides of the political aisle until some kind of satisfying compromise is reached.

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Sources

1.  Allyn, Bobby, Twitter Places Fact-Checking Warning On Trump Tweet For 1st Time. NPR. May 2020.

2. Ibid.

3.  Miers, Jess. A Primer on Section 230 and Trump’s Executive Order. Brookings. June 2020.

4.  “47 U.S. Code § 230 - Protection for Private Blocking and Screening of Offensive Material.” Cornell Law School, n.d.

5. Ibid.

6.  Allyn, Bobby, As Trump Targets Twitter's Legal Shield, Experts Have A Warning. NPR. May 2020. 

7.  Miers, Jess. A Primer on Section 230 and Trump’s Executive Order. Brookings. June 2020.

8.  Allyn, Bobby, As Trump Targets Twitter's Legal Shield, Experts Have A Warning. NPR. May 2020. 

Ethical Considerations for the Duty to Warn/Protect

October 2020 | Jordan Tirone, Staff Writer/Editor

A healthcare provider must maintain confidentiality when it comes to protecting information about their client. Laws like the Health Insurance Portability and Accountability Act (HIPAA) make sure of this.[1] Additionally, the Hippocratic Oath sworn by doctors mentions a need to respect the privacy of their patients. However, what are the limits of confidentiality? Does a therapist have a duty to warn of impending danger from a patient to a third party? The therapy of a patient creates the ability for the therapist to potentially foresee dangers that threaten others. But, by warning others, a physician or therapist breaks the confidentiality of the patient and breaches the Hippocratic Oath.

The duty to warn and the duty to protect are provisions put in place to define healthcare negligence within the scenarios previously mentioned. While most states have statutory provisions regarding the duty to warn in place, Nevada was one of the last states to create legislation on the matter.[2] These provisions are helpful for professionals to define due diligence and to avoid liability falling on them by clarifying what level of risk outweighs patient-client confidentiality. The California Supreme Court brought attention to the duty to warn in the case Tarasoff v. The Regents of the University of California.[3]

In 1969, Prosenjit Poddar killed Tatiana Tarasoff. Poddar was a student at the University of California at Berkeley. He made advances to a fellow student, Tatiana Tarasoff, who rejected these advances. It was revealed that Poddar’s psychologist knew of his intentions to kill. Poddar told his psychologist that he had purchased a gun and was thinking of killing Tatiana Tarasoff. The psychologist reached out to campus police, who detailed Poddar. Poddar persuaded campus police to release him. The psychologist also reached out to their supervisor but was told to take no further action. Neither the psychologist, supervisor, nor police did not warn Tatiana Tarasoff, or her family, of the danger. Two months later, Tatiana Tarasoff was killed after coming home from abroad. The plaintiffs, Tatiana’s parents, argued that the defendant committed negligence by failing to warn Tatiana or others that could inform her of her danger.[4]

In the State of California, it is understood that a person does not have a duty to control the conduct of another person, but there are two exceptions to this. One exception of interest to Tarasoff v. The Regents of the University of California is if there is a special relationship between the defendants and the injured party. This comes from a case called Wright v. Arcade School District, where a young boy was hit by a car on his way to school, at an intersection the school knew was problematic. The argument here was that the school has a special relationship with the child and, thus, must protect the boy.[5] Does a therapist have a special relationship with a potential victim, as the school district did to the child, to protect the victim from foreseeable danger? This is a question that came up in the Tarasoff case.

It is also understood that confidentiality is important for effective psychiatric treatment.[6] The promise that everything discussed will remain between the client and the healthcare provider is essential for three reasons. The first reason is that a lack of confidentiality may be a deterrent from seeking treatment. If there is an understanding that confidentiality is not kept, an individual may not seek help. Second, the concept of full disclosure requires confidentiality. If there is a lack of understand that what will be discussed in therapy resides in confidentiality, then patients may not share their innermost thoughts. Lastly, successful treatment cannot be achieved without confidentiality. This is because without confidentiality, trust in the client-therapist relationship may be undermined. It is understood that trust in a healthcare provider is instrumental to successful therapeutic intervention.[7] 

Another problem is how one defines negligence in this scenario. Where is the line between a healthcare provider maintaining confidentiality or being negligent? It is difficult to define whether a person is being truthful about what they say. A therapist will have to go through a risk assessment to judge whether or not a threat meets the need to protect or warn a potential victim. However, these risk assessments are notoriously unreliable.[8]    

The question remains: should the need for a duty to warn and protect be placed on the therapist, degrading the ability to provide successful treatment? Or should they protect potential victims from threats, even though they cannot fully predict a person’s actions? An individual who is inclined to make and follow through with threats is clearly in need of counseling. However, they may not be inclined to seek help, share these thoughts, or finish therapy if they know their therapist must act in a way that is intrinsically against them. 

It is necessary for these statutes, the duty to warn and the duty to protect, to be in place. There is an ethical obligation to protect an innocent person from harm that greatly outweighs the ethical obligation to remain confidential. It should be recognized that there is a need for confidentiality and trust within a therapeutic relationship, but it is more important to protect others from harm inflicted by a client. Trust can still be built within the therapeutic relationship, even with this disclosure. If an individual understands the provider’s obligation to breach confidentiality upfront, trust and the therapeutic intervention can overcome the obligation to successfully treat the patient.

It was only recently that Nevada adopted these necessary statutes. In 2015, a bill was placed in front of the Nevada State Senate (NV SB15) which subsequently passed. This bill required mental healthcare providers to warn a person if threats to harm them were explicitly made to the provider.[9] However, many sources say Nevada lacks legislation on the matter still, despite it being put into law as a revised statute.[10] The National Conference of State Legislatures,[11] as well as the Database of State Tarasoff Laws, remain unchanged.[12] The literature needs to be updated to reflect these changes. Vagueness in this area can lead to unintended malpractice or harm to innocent persons. 

There are limits to level of confidentiality required by a healthcare provider. These were unfortunately created retroactively after the Tarasoff case. A gap was highlighted in the laws across the country and in the code of conduct of healthcare professionals. Tarasoff Laws, statutes that define a duty to protect and warn, allow for the whole of the healthcare system to set the standard for requiring these duties, and to not allow for variation in confidentiality practices. This allows clients to know they can still trust their therapist, and subsequently receive optimal treatment; in addition to creating clarity around standard practice and conduct in potentially dangerous situations.

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Sources

1. Office for Civil Rights. “Summary of the HIPAA Privacy Rule,” HHS.gov (US Department of Health and Human Services, July 26, 2013).

2. Nevada Revised Statutes. “NRS 629.550.” NRS: CHAPTER 629 - HEALING ARTS GENERALLY, 2020.

3. Harvard Health. “The Duty to Protect.” Harvard Health, January 2006.

4. “Tarasoff v. Regents of University of California,” P.2d 551, 551, no. Docket No. SF 23042 (1976): 334.

5. “Wright v. Arcade School Dist.,” Cal.App.2d 230, 230, no. Civ. No. 10743 (1964): 272.

6. “In Re Lifschutz,” P.2d 467, 467, no. Docket No. Crim. 14131 (1970): 557.

7. Ibid.

8. Wand, Timothy. 2011. “Investigating the Evidence for the Effectiveness of Risk Assessment in Mental Health Care.” Issues in Mental Health Nursing 33 (1): 2–7. doi:10.3109/01612840.2011.616984.

9. The Senate Committee on Health and Human Services. “MINUTES OF THE SENATE COMMITTEE ON HEALTH AND HUMAN SERVICES.” Nevada Legislature, February 4, 2015.

10. Nevada Revised Statutes. “NRS 629.550.” NRS: CHAPTER 629 - HEALING ARTS GENERALLY, 2020.

11. Alise Garcia Karmen Hanson, “Mental Health Professionals’ Duty to Warn,” National Conference of State Legislatures, October 12, 2018.

12. Griffin Sims Edwards, “Database of State Tarasoff Laws,” SSRN, February 15, 2010.

An Insight into Hate Crime Legislation

October 2020 | Iris Diaz, Staff Writer/Editor

In 1998 at a local bar, a young Wyoming college student named Mathew Sheapard was approached by two men who pretended to be gay.[1] The two men offered Mathew a ride home, and drove him to a rural area.[2] They then proceeded to tie him up to a fence along the country road, and beat him to the point of crushing his skull.[3] Similarly, James Byrd Jr. was approached by three men who took him to a remote area where he was beaten severely and then tied by the ankles of a pickup truck where he was dragged for miles till his death.[4] These heinous murders where both not convicted as hate crimes, due to hate crime laws being nonexistent in the states Byrd and Shepard were murdered in. Also during the time the federal hate crime protections did not encompass “violent acts based on the victim’s sexual orientation and only covered racial violence against those engaged in a federally protected activity, such as voting or attending school.”

The Title I of the Civil Rights Act of 1968, was the first hate crime law, which defined the behavior of a hate crime as “to use, or threaten to use, force to willfully interfere with any person because of race, color, religion, or national origin and because the person is participating in a federally protected activity, such as public education, employment, jury service, travel, or the enjoyment of public accommodations, or helping another person to do so.”[5] In 2009 the “Mathew Shepard and James Byrd Jr. Hate Crimes Prevention Act” was passed, which extended the “federal hate crime prohibitions” to include hate crimes motivated by the victim’s gender identity, actual or perceived sexual orientation, and disability of the individual.[6] Even though the behavior of a hate crime has been defined, each state reserves the right to construct its own definition of a hate crime, choose to implement hate crime laws or not, and what parts of an individual's identity they will protect. This discretion does not allow for universal hate crime law implementation, which means these crimes can slip through the cracks and damage society. Thus, hate crime laws in states should be implemented and improved. 

In the United States, some states have implemented hate crime laws, while others have not. Arkansas, Wyoming, and South Carolina are the only three states who are without hate crime legislation.[7] Of the states that have implemented hate crime laws, many laws do not protect every aspect of an individual's identity. People have been and still are being terrorized for their religion, sexuality, gender, disability, race, political views, etc. Moreover, since every state has the ability to establish its own hate crime laws, states can decide what kinds of hate crimes they protect. For example, South Carolina only criminalizes crimes related to religious worship or political affiliation.[8] Another example of this would be Oklahoma; this state only considers hate crimes as those that include race, religion, or ethnicity. Situations like these emphasize that hate crime laws have gaps that make them less successful in providing the best protection for the people.

Hate crimes can easily be mistaken to be hate incidents. The foundation of classifying a criminal case as a hate crime are hate incidents; however, hate incidents alone without a crime are not identified as a hate crime.[9] Hate incidents involve pejorative speech, discriminatory speech, and humiliating behavior. This includes racial slurs, name-calling, threatening, etc. Hateful speech in itself is not punishable, due to the First Amendment that gives the right to freedom speech. However, the hate incidents that occur will aid an individual who wants to classify a crime as a hate crime. For example, if murder has been commited against an individual for their sexual orientation, the prosecutor will have to find hate incidents that occured prior to the murder to be able to classify the murder case a hate crime. These hate incidents can include incidents where the offender was perhaps threatening or using discriminatory speech towards the victim. Hate crimes have been around for thousands of years, but they have never been directly addressed until some laws were passed. 

Despite the gaps, various state and federal legislations on hate crimes have been passed. These legislations have helped the community and have produced penalties towards crimes motivated by hate. One of these acts was the Violence Against Women Act of 1994. This act was the first law that addressed domestic violence and rape, and it included “federal civil remedy for victims of gender-based violent crimes.”[10] The Church Arson Prevention Act of 1996 aided prosecution that racially motivated “desecration of houses of worship” and arson.[11] In 1994, the Hate Crimes Sentencing Enhancement Act stated that if a federal crime involved a hate-influenced attack, then the prison term for the perpetrator would be lengthened by a third as punishment.[12] All of these acts have taken steps toward combating hate crimes; nonetheless, there are many issues with current hate crime laws. 

In the United States, many states fail to report hate crimes even though they have implemented hate crime laws. In 2017, the Federal Bureau of Investigation (FBI) reported having “more than 7,100 hate crime incidents” for that year, hate crime incidents here referring to actual hate crimes.[13] However, a hate crimes survey conducted in 2017 by the Bureau of Justices Statistics estimated that 250,000 hate crimes occur per year.[14] This disparity exists because the system of reporting hate crimes operates by the “local police sending hate crime data to state agencies, who then submit the data to the FBI.”[15] Police departments at times do not investigate and track hate crimes, and victims of these crimes have come forward saying that police sometimes lack the knowledge to make a police report regarding a hate crime or even refuse to make one.[16] This problem can be partially attributed to the fact that only a dozen states require the police academies to include hate crime training.[17] Therefore, police are not able to execute effectively when tracking hate crimes. 

Moreover, hate crimes are difficult to prosecute. It involves a long complicated process that can take years, specifically because of the burden of proof for these cases. Benjamin Wagner, former U.S. Attorney for California’s Eastern District, explained that in order to prosecute, “you need to prove not just the incident, but the state of mind of the defendant...that what they intended was hate-motivated”, which includes critically examining the defendants background. The high burden of proof and lengthy probing process results in grim prospects for hate crime prosecutions. In a study directed by ProPublica, a newsroom non-profit organization, it was “found that of the nearly 1,000 hate crime cases reported to police in Texas from 2010 to 2015, fewer than 10 were successfully prosecuted.”[18]

Opponents of the implementation and enforcement of hate crime laws argue that hate crime laws violate an individual's constitutional rights. Under the First Amendment, the people are granted the right to freedom of speech. Critics argue this because, through the investigation of a hate crime, the prosecutor must find evidence that proves a hateful motive to commit the crime. Thus, any evidence they use against a defendant will violate their constitutional right to freedom of speech. However, the Supreme Court through the Wisconsin and Mitchell case established that “evidentiary use of speech to establish the elements of a crime or to prove motive or intent" is permitted.[19] Through this statement, the Supreme Court has expressed that an individual is granted the right to freedom of speech up until a crime is committed based on fostered beliefs. Once they commit a crime, “they surrender their First Amendment rights.”[20]

Along with this, critics also argue that prison time will not eradicate the fostered prejudices of a criminal. In fact, it has been pointed out by some social psychologists that by punishing these individuals, an illusion is being created that the problem is being dealt with. In reality, though, the problem lies in an individual’s thoughts and beliefs, which will not be miraculously changed in prison.[21] However, this problem can be solved by improving hate crime laws. In the improvement of these laws, meetings can be scheduled for those participating in these crimes. These meetings will educate hate crime participants about diversity and reasons as to why they should respect and accept everyone.

Overall, hate crime laws are essential to protect the community. States who have yet to pass hate crime laws and those who need to expand on their laws should do so immediately. By incorporating these laws, victims of hate crimes will feel much safer. Advocates of hate crime legislation claim that the implementation of these laws sends the message of zero tolerance for discrimination.[22] Additionally, the states who have hate crime laws should also strengthen their laws by providing police officers the training needed to adequately track and investigate hate crimes. These laws should also incorporate meetings in jail for hate crime perpetrators, so they can become educated about diversity and understand why they should accept and respect all people. Through the inclusion of these meetings, the participants will be faced with a constructive opportunity to change their ideologies and behavior. Not only should these meetings be incorporated in jail, but also within the community, such as in jobs and schools. Finally, people of the community who want to see a change should take initiative by nurturing future generations with positive outlooks on diversity. Teaching kids to be appreciative and respectful towards others’ cultures will help keep the future generations from fostering prejudicial thoughts and engaging in hateful behavior.

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Sources

1. Courtesy of Eric S. Dreiband and Courtesy of Katharine T. Sullivan, “Commemorating the Fourth Anniversary of the Shepard-Byrd Hate Crime Prevention Act,” April 7, 2017.

2. Ibid.

3. Ibid.

4. Ibid.

5. “Hate Crime Laws.” The United States Department of Justice, March 7, 2019.

6. Ibid.

7. “STATE-BY-STATE HATE CRIME LAWS.” Washington: National Association for the Advancement of Colored People, 2017.

8. Ibid.

9. Vera Institute of Justice. “Bias Crime Assessment: A Tool and Guidelines for Law Enforcement and Concerned Communities.” National Criminal Justice Reference Service, August 2018.

10. “BRIA 10 3 a Should Hate Be Outlawed?” Constitutional Rights Foundation. Accessed September 23, 2020.

11. Ibid.

12. Ibid.

13. Glickhouse, Rachel. “5 Things You Need to Know About Hate Crimes in America.” ProPublica, March 22, 2019.

14. Ibid.

15. Ibid.

16. Ibid.

17. Ibid.

18. Schwencke, Ken. “Why America Fails at Gathering Hate Crime Statistics.” ProPublica, December 4, 2017.

19. “Do Hate-Crime Laws Restrict First Amendment Rights?” 2020.

20. Ibid.

21. Ibid.

22. Ibid.