Tinkering with Students’ First Amendment Rights in the Age of Cyber-bullying

Tinkering with Students’ First Amendment Rights in the Age of Cyber-bullying

Jennifer L. Henry, KLJ Articles Editor [1]

In April 2016, a Lexington Catholic High School student was charged with sending racially-insensitive messages to African-American students. In response to the off-campus harassment, criminal charges and two civil suits have been brought against the alleged perpetrator, a 17-year old white student at LCHS.[2] The mother of the victim, a 14-year old football player, found messages on his computer from a white teammate including such racial slurs as “I’m going to lynch you,” and “I’ll hire you to pick my cotton $1 per week.”[3] In a statement addressing the harassment claims, LCHS President Dr. Steve Angelucci said that the school has no control over what students do on the Internet, but they do have control over how they respond to these situations.[4] While Lexington Catholic’s administration has more latitude to punish such behavior because LCHS is a private school, public school administrators remain unsure of whether punishing students for online harassment and bullying would violate the First Amendment.

Tinker v. Des Moines Independent School District is the landmark case governing the First Amendment rights of students.[5]  In this case, the Supreme Court upheld students’ right to wear black armbands to school in protest of the Vietnam War.[6] Although the facts of the case dealt solely with on-campus speech, the two-prong test it proffered has regularly been applied to determine whether or not students can be punished for off-campus speech.[7] According to Tinker, a student’s speech is protected if it does not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” or “collide with the rights of others.”[8]

Court of Appeal decisions have applied the holding of Tinker in various ways to determine whether or not student speech is protected. For example, in Kowalski v. Berkeley County Schools, the Fourth Circuit upheld the suspension of a student who made a social media page dedicated to ridiculing a fellow classmate.[9] In upholding Kowalski’s punishment, the Fourth Circuit emphasized that schools have a duty to protect their students from harassment and bullying in the school environment.[10] The Court employed the Tinker analysis to find that Kowalski’s speech interfered with the bullied student’s rights.[11]

Bullying is one of the largest challenges school administrators, teachers, and students in America face today. 20% of high school students in the United States have experienced bullying, and 30% of young people have admitted to bullying others.[12] 15% of high school students claimed to have been cyber-bullied in a 2014 survey.[13] In Kentucky, state law plays a minor role in the ways school districts deal with bullying. State law compels each district to create its own discipline guidelines that prohibit bullying.[14] Bullying “(1) [t]hat occurs on school premises, on school-sponsored transportation, or at a school-sponsored event; or (2) [t]hat disrupts the education process” is within the reach of school districts’ authority according to the General Assembly.[15] Accordingly, the Kentucky School Boards Association published a model anti-bullying policy that extends to “any/all student language or behavior including, but not limited to, the use of electronic or online methods.” [16]

School administrators and teachers are tasked with striking the difficult balance of fulfilling their duty to protect students from harassment and bullying in the school environment without infringing on First Amendment rights to freedom of speech and expression. This is a fine line to draw in the age of social media, which is a pervasive part of modern students’ lives. Although the Supreme Court has not yet taken up this matter, it seems that as long as cyber-bullying interferes with the requirements of discipline at school and collides with the rights of others, school administrators are justified in punishing such conduct.[17]

[1] J.D. Expected May 2018.
[2] Police Charge Teen in Lexington Catholic High School Harassment Case, Lex18 (Apr. 8, 2016  8:39 PM), http://www.lex18.com/story/31671954/police-charge-teen-in-lexington-catholic-high-school-harassment-case.
[3] Valerie Honeycutt Spears, 3 Lawsuits Filed Against Lexington Catholic Alleging Sex Discrimination, Race Harassment, Lexington Herald-Leader (Aug. 16, 2016), http://www.lex18.com/story/31671954/police-charge-teen-in-lexington-catholic-high-school-harassment-case.
[4] Police Charge Teen in Lexington Catholic High School Harassment Case, supra note 1.
[5] See Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).
[6] Id. at 514.
[7] See Emmett v. Kent Hill School District No. 15, 92 F. Supp. 2d 1088 (W.D. Wash. 2000); Layshock ex rel. Layshock v. Hermitage School District, 593 F.3d 249 (3d Cir. 2010); Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2009).
[8] Tinker, 393 U.S. at 513.
[9] Kowalski v. Berkeley County Schools, 625 F.3d 565, 566 (4th Cir. 2011).
[10]  Id. at 572 (citing Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007)).
[11] Id. at 573-74.
[12] Facts About Bullying, Stopbullying.gov (Oct. 14, 2014) http://www.stopbullying.gov/news/media/facts/#listing.
[13] Id.
[14] Ky. Rev. Stat. Ann §158.148(5) (2016).
[15] Ky. Rev. Stat. Ann §158.148(1)(a)(1) (2016).
[16] Model Policies Related to Issues Found in KRS 158.156, § 09.422 Bullying/Hazing (Ky. Sch. Bd. Ass’n 2016).
[17] See Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969); see also Kowalski v. Berkeley County Schools, 625 F.3d 565 (4th Cir. 2011).

Beached Whale: The Supreme Court’s Sad Suffocation of Public-Sector Unions

Beached Whale: The Supreme Court’s Sad Suffocation of Public-Sector Unions

Brandon R. Magner, KLJ Notes Editor[1]

On April 24, 2017, the fate of public-sector unions in America was signed and sealed in a simple procedural move. Mark Janus and his fellow plaintiffs filed for certiorari to the Supreme Court to hear their case against the public-sector trade union American Federation of State, County, and Municipal Employees.[2]

The case, entitled Janus v. AFSCME,[3] represents the Supreme Court’s second crack at the question of whether public-sector unions should be allowed to collect agency fees from non-union members whom they are obligated to represent at the bargaining table.[4] With Justice Neil Gorsuch now installed in the late Antonin Scalia’s seat, the Court is widely expected to rule 5-4 against the unions on First Amendment grounds and institute the so-called “right-to-work” doctrine on a national level.[5]

How did unions—which now represent just 10.7 percent of eligible workers, despite once peaking at a third of the American workforce[6]—reach this vulnerable moment? How is an organizing scheme that was unanimously upheld as constitutional a mere generation ago now on the verge of upheaval? And more specifically, what does the First Amendment have to do with the nuts and bolts of labor law?

Abood and Alito

The basic infrastructure at issue in this line of cases is long established in both private and public-sector workplaces. In non-right-to-work states, a union and an employer are permitted to agree to an “agency shop” arrangement, whereby every employee covered under the collective bargaining agreement—including non-union members—must pay to the union a service fee as a condition of employment. This payment, colloquially known as an “agency fee”, covers the union’s costs of collectively bargaining on behalf of the workers and serves as a critical source of revenue to effectively perform this role. Agency fees are therefore utilized to eliminate “free rider” employees who gain benefits from the union’s bargaining efforts regardless of whether they are members in the union.

The first case to fully scrutinize the constitutionality of this scheme was Abood v. Detroit Board of Education.[7] In that case, D. Louis Abood and several of his colleagues refused to pay dues to the Detroit teachers’ union and opposed collective bargaining in the public sector more generally.[8] Moreover, they disapproved of a “variety of activities and programs [of the union] which are economic, political, professional, scientific and religious in nature . . . and which are not and will not be collective bargaining activities.”[9] Plaintiffs sought for the Court to invalidate Michigan’s agency-shop law on the basis that this arrangement violated their First Amendment right to freedom of association.[10]

The Court struck a compromise. Writing for a unanimous bench, Justice Potter Stewart held that Abood and his colleagues had no constitutional claim against the agency fees that were allotted towards “collective-bargaining, contract administration, and grievance-adjustment purposes,”[11] but the union could not use non-member fees for other matters.[12] Specifically, Justice Stewart determined that the union could not compel “any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher,”[13] and that “such [political union] expenditures be financed from charges, dues, or assessments” provided by the union’s members.[14]

This balance seems a sensible one, and indeed it satisfied both the liberal and conservative wings of the Burger Court. Under Abood, a non-union member is still required to cover the costs of non-political union activity that he directly benefits from, such as attorney fees for the next round of negotiations with the non-member’s employer. This arrangement is strengthened by governmental interests in promoting “labor peace” and preventing the free rider problem.[15] However, the non-member’s agency fees could not be used to finance, say, a campaign donation on behalf of the union to a politician of its liking. Such use of the non-member’s fees would potentially run afoul of his First Amendment rights to not be compelled to “associate” with unwanted political activity.

However, Abood has come under fire in recent years from the modern Court’s conservative members. Justice Samuel Alito especially has called attention to Abood’s shaky moorings in a pair of alarming cases, revealing more in case dicta than in his actual holdings regarding labor-law interpretation.

In Knox v. SEIU, Local 1000,[16] the Court ruled against the defendant union on a mostly technical matter of whether it must provide non-members notice of their freedom to opt out of special fees that fell under Abood’s “political purpose” umbrella. However, Justice Alito took the opportunity to criticize Abood’s central holding. “[A]cceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly,” Justice Alito wrote, which itself relies mostly “on the interest in furthering ‘labor peace.’”[17] Broadly, he found this framework to be “a remarkable boon for unions,”[18] which came about as a “historical accident” rather than through “careful application of First Amendment principles.”[19]

If Knox was a canary in the unions’ coal mine, then Harris was the collapsing tunnel. In Harris v. Quinn,[20] which held that Illinois home health care workers could not be compelled to join a public-sector union (and thus not pay agency fees) because they worked for individuals rather than the state, Justice Alito abandoned any sense of coyness regarding the unions’ constitutional defenses. He spent a good deal of his opinion in Harris prefacing the history of First Amendment challenges to agency fees at the Supreme Court, drawing a fine distinction between potential freedom of association violations in the private sector and those in the public sector.[21] Public-sector unions that bargain with the government have less pretext to justify their compulsory agency fees, Alito posits,[22] and thus “the Abood Court’s analysis is questionable on several grounds.”[23] Alito further accused Abood of misreading precedent and ignoring “practical problems that would face objecting members” of the agency fee.[24] He proceeded to argue why Abood’s “questionable foundations” should not be extended to the health care works at issue in the case before invalidating the Illinois law that sanctioned the agency fees.[25]

As Laurence Tribe has observed, Harris reads like a case that desperately wished to gut Abood but had to wait for another day.[26] Alito’s vitriol practically jumps off the page, but he stops short of explicitly urging Abood’s reversal. As it stands, the conservatives won only a tertiary battle on the merits, but they had set the table for a proper disembowelment in the near future.[27]

The liberal wing of the Court appeared to understand the gravity of Alito’s opinion. Writing in dissent for herself and three other Justices against the majority’s “potshots”,[28] Justice Elena Kagan went to bat for Abood and the compromise it represented. “Our decisions have long afforded government entities broad latitude to manage their workforces, even when that affects speech they could not regulate in other contexts,” Kagan explained, and these cases could not be squared with Alito’s “gratuitous dicta critiquing Abood’s foundations.”[29] Furthermore, Kagan excoriated any comparison of unions to special-interest organizations that subsist off voluntary contributions.[30] Unlike those organizations, public-sector unions are compelled by law to “represent—and represent fairly—every worker in a bargaining unit, regardless whether they join or contribute to the union.”[31] Unions cannot procure any special advantages to its members when at the negotiating table, and Alito and his fellow conservatives thus had no basis to argue that “absent a fair-share clause, a union can attract sufficient dues to adequately support its functions.”[32]

Harris is a classic example of ships passing in the night. Kagan’s dissent, while powerful, is built on the premise that her opponents are arguing in good faith. In reality, opinions like Knox and Harris—whose litigation were funded and argued by the National Right to Work Legal Defense Foundation, which also represented Abood and his co-workers back in the seventies[33]—fall neatly within the greater conservative legal movement that wishes to neuter the collective bargaining power of labor organizations by way of the courts.[34] And in 2016, this dream came dangerously close to realization.


After Justice Alito all but invited the Court to re-visit Abood’s “questionable foundations”, anti-union advocates knew another agency-fee case was ripe for review.[35] And just one term after the Harris decision was handed down, the Justices plucked Friedrichs v. California Teachers Ass’n[36] from the Ninth Circuit and placed Abood directly in the line of fire.

Friedrichs arose from the lawsuit of nine California teachers who declined to join their teachers’ union.[37] The teachers objected to even the “non-political” activities the union undertook in collective bargaining, such as negotiating stronger tenure protections and seniority-based layoffs.[38] This rejection of Abood’s dichotomous compromise meant the Court would have to decide whether any form of dues-collecting from non-union employees in the public sector was a per se violation of the First Amendment.

The case united a constellation of conservative legal groups in anticipation of its potential,[39] and the teachers’ attorneys employed a novel strategy at the lower-court stage in proceedings. Knowing that only the Supreme Court had the authority to overturn Abood, the plaintiffs filed their case in district court and immediately asked the judge to dismiss it.[40] This maneuver expedited the process, which the plaintiffs then successfully repeated after appealing to the Ninth Circuit.[41] Less than 18 months after it was filed in Central District of California, Friedrichs arrived eager and willing on the Supreme Court’s doorsteps—and essentially fresh of any paper trail.[42]

Oral argument of the case showcased exactly why the agency fees at issue were thought to be on life support. During their questioning of California’s solicitor general, the Court’s conservatives seemed to buy the teachers’ position hook, line, and sinker: that there is no line in the public sector between political and non-political activity.

“[W]hat is your best example of something that is negotiated over in a collective bargaining agreement with a public employer that does not present a public policy question?”[43] Chief Justice John Roberts asked at one of the pivotal moments. When the solicitor general proffered that mileage reimbursements rates satisfied Roberts’s condition of a politically-neutral bargaining chip, the Chief vigorously disagreed. “It’s all money. That’s money. That’s how much money is going to have to be paid to the teachers. If you give more mileage expenses, that costs more money.”[44] Added Justice Scalia: “The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition.”[45]

Under whose definition, exactly? Stretched to its logical extreme, anything can be classified as political if all that term means is “something the union bargains for that tangibly affects employees.” Theoretically, there may be some public-school teacher in California who does not wish to be given more money for incurred travel expenses, so therefore her union’s negotiation of this benefit—and more precisely, the money used by the union to cover the legal costs of that negotiation—violates said teacher’s right to freedom of association. Only under this tortured definition of “political activity” would Abood reach its unceremonious death.

However, the conservatives’ victory would have to wait; the untimely passing of Justice Scalia left Friedrichs in a 4-4 deadlock and saved public-sector unions from what seemed a certain loss.[46] The Court could only issue an anti-climactic, one-line opinion reaffirming the Ninth Circuit’s dismissal.[47] And as Senate Republicans refused to vote on Merrick Garland’s nomination to fill Scalia’s seat,[48] the constitutionality of agency fees in the public sector subsequently became one of many legal issues relegated to the outcome of the 2016 presidential election.

Janus and its Shortcomings

The ending to that story, of course, comprised the election of Donald Trump to the presidency and the ascension of Neil Gorsuch to serve as Scalia’s successor. With a 5-4 conservative advantage preserved on the Court, anti-union advocacy groups were once again encouraged to cherry-pick the perfect challenge to Abood and begin anew.[49]

That case, Janus, is almost identical to Friedrichs in posture and effect.[50] It was intended to be a fast-tracked, record-less affair,[51] filed by Illinois Governor Bruce Rauner as a direct challenge to the state law that empowers public-sector unions in Illinois to collect agency fees from non-union member employees.[52] Although Rauner’s complaint was dismissed due to a lack of standing, the Northern District of Illinois allowed public employee Mark Janus—at the behest of the National Right to Work Legal Defense Foundation and other anti-union groups[53]—to intervene and amend the suit.[54]Janus’s suit was subsequently dismissed upon request à la Friedrichs, and the Seventh Circuit did the same on appeal.[55]

Once its writ of certiorari is inevitably granted, the Supreme Court will thus be tasked in Janus with deciding whether the Abood compromise—and more broadly, the very concept of “fair share” dues in the public sector—violates the First Amendment of the Constitution. Reversing Abood, however, makes little sense substantively or cosmetically.

As mentioned, objecting to one’s funding of negotiations over even ideologically-impartial benefits like mileage reimbursements is to object to the very existence of the union. In reality, Americans are compelled to pay for things they do not “agree” with on a daily basis. The collection of agency fees “does not violate the First Amendment rights of nonmembers any more than does compelled contributions to pension and health insurance companies or utility companies or paying one’s taxes.”[56] Moreover, non-members are only compelled to subsidize union activity that they disagree with if they knowingly and willingly work a unionized job. Conservatives and libertarians who frequently urge disaffected and ideologically marginalized citizens to “vote with their feet”[57] should be amenable to the idea that disgruntled non-union employees should find a new line of work rather than exacerbate the free-rider problem. Even Justice Scalia has elaborated on the justifications for fair-share dues in the public-sector at a time earlier in his career:

Our First Amendment jurisprudence . . . recognizes a correlation between the rights and the duties of the union, on the one hand, and the nonunion members of the bargaining unit, on the other.  Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them; or, looked at from the other end, where the state creates in the nonmembers a legal entitlement from the union, it may compel them to pay the cost. . . . What is distinctive, however, about the “free riders” who are nonunion members of the union’s own bargaining unit is that in some respects they are free riders whom the law requires the union to carry—indeed, requires the union to go out of its way to benefit, even at the expense of its other interests.  In the context of bargaining, a union must seek to further the interests of its nonmembers; it cannot, for example, negotiate particularly high wage increases for its members in exchange for accepting no increases for others.  Thus, the free ridership (if it were left to be that) would be not incidental but calculated, not imposed by circumstances but mandated by government decree.[58]

Scalia, of course, clearly signaled his abandonment of this logic during the oral argument of Friedrichs, and Justice Anthony Kennedy, the Court’s ostensible moderate,[59] was even more forceful in his badgering of the unions’ attorney: “When you are dealing with a governmental agency, many critical points are matters of public concern. And is it not true that many teachers strongly, strongly disagree with the union position on teacher tenure, on merit pay, on merit promotion, on classroom size?”[60] Kennedy concluded that while “[t]he term is ‘free rider’[,] [t]he union basically is making these teachers ‘compelled riders’ for issues on which they strongly disagree.”[61]

This is where the cosmetic argument—the argument that would justify the timing of Abood’s reversal—falls harrowingly short. When Justice Stephen Breyer spent much of his time during last year’s oral argument preaching the power of precedent,[62] it wasn’t merely a desperate defense of tradition for the sake of tradition. Breyer penned a unanimous labor opinion for the Court less than a decade ago that cited Abood favorably and contained the following language:

The First Amendment permits the government to require both public sector and private sector employees who do not wish to join a union designated as the exclusive collective-bargaining representative at their unit of employment to pay that union a service fee as a condition of their continued employment. . . . The court has determined that the First Amendment burdens accompanying the payment requirement are justified by the government’s interest in preventing free riding by nonmembers who benefit from the union’s collective bargaining activities and in maintaining peaceful labor relations.[63]

This makes the conservatives’ crusade in Knox, Harris, and Friedrichs all the more bizarre. Abood isn’t just a 40-year-old compromise; it is a 40-year-old compromise that was unanimously upheld as recently as 2009. Justice Alito went from ratifying Abood’s central tenets to lambasting its “questionable foundations” faster than the hit show Parks and Recreation premiered and ended.[64] And as Justice Breyer has astutely observed, “six people in a room bargaining about wages, hours, and working conditions” is “pretty far removed from the heart of the First Amendment, and pretty close to ordinary physical activity carried on through words.”[65] What is at the base of the conservatives’ recent change of heart on this seemingly simple concept?

One explanation for the Court’s rightward shift on public-sector unions may be found in the Court’s approach to the First Amendment more generally. Law professor Jedediah Purdy has written at length about conservatives’ recent weaponization of the First Amendment against perceived liberal economic rights.[66] According to Purdy, the embrace of free speech as a promoter of “free-market jurisprudence” explains conservatives’ gutting of several seemingly-tangential regulations,[67] such as those pertaining to campaign finance[68] and pharmaceutical sales.[69] Purdy describes this phenomenon as “neo-Lochnerism”,[70] whereby the Court revitalizes the laissez-faire spirit of the most anti-regulatory period in American history.[71]

The coming devastation of public-sector unions fits well within this revanchist theory. The Lochner era was home to the most anti-union decisions the Supreme Court has ever handed down, culminating in cases such as Adair v. United States[72] and Coppage v. Kansas,[73] which declared that bans on yellow-dog contracts—where an employee agreed, as a condition of employment, to not be a member of a labor union—were unconstitutional at the federal and state level, respectively. Janus, which threatens to break the backs of unions in a more indirect way (by cleaving them from vital funds), is set to join Adair and Coppage in the Anti-Labor Hall of Fame before long.

The Fallout

The impact of Janus is hardly theoretical. States that enact right-to-work laws see a precipitous drop in union membership, exactly as its proponents intended.[74] This stems not just from the vanishing revenue of agency fees, but also the lost dues of cancelled memberships or reluctant joiners; the free-rider option becomes increasingly enticing for current and prospective union members.[75] While roughly a third of all government workers currently belong to a union,[76] that number would surely collapse if the Supreme Court were to promulgate right-to-work across all fifty states. “Hopefully this is a wake-up call for labor to do more internal organizing,” said retired Wisconsin AFL-CIO president David Newby amidst the obliteration of his state’s union infrastructure.[77] “If we don’t, we’re dead.”[78]

But anti-union advocacy groups will likely not stop the assault on labor at Janus. After the Court determines fair-share dues in the public sector are unconstitutional, it will invite legal challenges to other bedrocks of union autonomy.[79] For example, there are cases in the pipeline that argue a union should not be able to bargain on behalf of any worker who doesn’t opt to be a member of that union.[80] Although the Justices declined to hear the most recently-appealed decision in this vein,[81] it feels only a matter of time until the Court begins questioning the union-employee relationship beyond merely monetary matters.[82] After all, it was not long ago that the possibility of Janus seemed remote.

One thing is clear: the traditional means of bargaining and litigation will only continue to erode what little amount of power workers have left in America. In the meantime, public-sector unions will languish like a great beached whale, washed ashore by the tidal forces of conservative jurisprudence and crushed under a heavy carcass of complacency. Time will tell if Janus represents the last gasp of air for a once-proud institution of civic engagement and solidarity, or if it serves as a needed adrenaline shot for the labor movement to fight to the bone for its very survival.

[1] J.D. Expected May 2018.
[2] Chris Opfer (@ChrisOpfer), Twitter (Apr. 24, 2017, 6:10 PM), https://twitter.com/ChrisOpfer/status/856631387125940234 (“NEW: #SCOTUS gets another shot to decide if public unions can charge “fair share” fees to nonmembers. Janus (7th Cir.) workers filing cert.”).
[3] Tim Yeung, The New Friedrichs Case: Janus v. AFSCME, California PERB Blog (Jan. 17, 2017, 1:11 PM), http://www.caperb.com/2017/01/17/the-new-friedrichs-case-janus-v-afscme/.
[4] Id.
[5] See Moshe Z. Marvit, Labor Opponents Already Have The Next ‘Friedrichs SCOTUS Case Ready to Go Under Trump, In These Times (Jan. 4, 2017, 1:55 PM), http://inthesetimes.com/working/entry/19776/will_trumps_supreme_court_reverse_fair_share_fees_unions_foes_hope_so; Sean Higgins, Gorsuch will tip Supreme Court on key labor issue, liberals fear, Washington Examiner (Apr. 17, 2017, 12:01 AM), http://www.washingtonexaminer.com/gorsuch-will-tip-supreme-court-on-key-labor-issue-liberals-fear/article/2620340; Dan La Botz, An Injury to All, Jacobin (Feb. 16, 2017), https://www.jacobinmag.com/2017/02/trump-labor-movement-unions-trades-climate-change-racism-afl-cio/.
[6] Dylan Matthews, Europe could have the secret to save America’s unions, Vox (Apr. 17, 2017, 9:30 AM), https://www.vox.com/policy-and-politics/2017/4/17/15290674/union-labor-movement-europe-bargaining-fight-15-ghent.
[7] 431 U.S. 209 (1977).
[8] Id. at 212-13, 214.
[9] Id. at 213.
[10] Id.
[11] Id. at 232.
[12] Id. at 232-37.
[13] Id. at 235.
[14] Id. at 236.
[15] See id. at 224.
[16] 567 U.S. 298 (2012).
[17] Id. at 311 (emphasis added).
[18] Id. at 312.
[19] Id.
[20] 134 S. Ct. 2618 (2014).
[21] Id. at 2630.
[22] Id. at 2630-32.
[23] Id. at 2632.
[24] Id. at 2632-34.
[25] Id. at 2638-44.
[26] Laurence H. Tribe, In attacking unions, Roberts court forgets a key lesson of the New Deal., Slate (June 30, 2014, 3:04 PM), http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/supreme_court_2014_harris_v_quinn_forgets_the_lesson_of_the_new_deal.html.
[27] See id. (“Just as Knox portended Harris, Harris could well portend a far broader decision in a future case.”).
[28] Harris, 567 U.S. at 2645 (Kagan, J., dissenting).
[29] Id.
[30] Id. at 2656.
[31] Id.
[32] Id. at 2657.
[33] Foundation Supreme Court Cases, National Right to Work Legal Defense Foundation, http://www.nrtw.org/foundation-supreme-court-cases (last visited May 9, 2017).
[34] See generally Chris Maisano, The Road to Friedrichs, Jacobin (Jan. 11, 2016), https://www.jacobinmag.com/2016/01/friedrichs-public-sector-unions-abood-right-to-work/.
[35] See Brian Mahoney, Conservative group nears big payoff in Supreme Court case, Politico (Jan. 10, 2016, 6:35 ET), http://www.politico.com/story/2016/01/friedrichs-california-teachers-union-supreme-court-217525.
[36] Friedrichs v. Cal. Teachers Ass’n, 2014 U.S. App. LEXIS 24935 (9th Cir. Cal., Nov. 18, 2014).
[37] Mahoney, supra note 35.
[38] Id.
[39] Id. A non-exhaustive list of Friedrichs’s supporters—be it through advising, funding, or filing of amicus curiae—included the Cato Institute, the Manhattan Institute, the Institute for Justice, the Beckett Fund for Religious Liberty, the National Right to Work Legal Defense Foundation, the Goldwater Institute, the National Federation of Independent Businesses, the Freedom Foundation, the Atlantic Legal Foundation, and the Friedman Foundation for Educational Choice.
[40] Id.
[41] Id.
[42] For an analysis and criticism of this scheme of “court-rushing”, see Catherine Fisk, Symposium: The Friedrichs petition should be dismissed, SCOTUSblog (Aug. 26, 2015, 2:51 PM), http://www.scotusblog.com/2015/08/symposium-the-friedrichs-petition-should-be-dismissed/. Primarily, the strategy raises concerns over building a necessary factual record for the Justices to knowledgeably discern. See id.
[43] Oral Argument at 45:00, Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016) (No. 70-18), https://www.oyez.org/cases/2015/14-915.
[44] Id. at 45:15.
[45] Id. at 43:53.
[46] Adam Liptak, Victory for Unions as Supreme Court, Scalia Gone, Ties 4-4, N.Y. Times (Mar. 29, 2016) https://www.nytimes.com/2016/03/30/us/politics/friedrichs-v-california-teachers-association-union-fees-supreme-court-ruling.html.
[47] Friedrichs, 136 S. Ct. at 255 (“Judgment affirmed by an equally divided Court.”).
[48] See generally Brandon R. Magner, The Greatest Justices That Never Were, Ky. L.J. Blog (Sept. 26, 2016), http://www.kentuckylawjournal.org/index.php/2016/09/26/merrick-garland-and-the-greatest-justices-that-never-were/.
[49] See Marvit, supra note 5.
[50] Id.
[51] See id.
[52] Janus v. AFCSME, Council 31, 851 F.3d 746 (7th Cir. 2017).
[53] Marvit, supra note 5.
[54] Id. at 747-48.
[55] Id. at 749.
[56] Fisk, supra note 42.
[57] See, e.g., Ilya Somin, Is voting with your feet selfish? Does it matter if it is?, Wash. Post: The Volokh Conspiracy (Apr. 25, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/04/25/is-voting-with-your-feet-selfish-does-it-matter-if-it-is/?utm_term=.a1571c20058e.
[58] Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 556 (1991).
[59] Ian Millhiser, On Economic Justice, Justice Kennedy Is No Moderate, ThinkProgress (Apr. 2, 2012), https://thinkprogress.org/on-economic-justice-justice-kennedy-is-no-moderate-c29b24cb139d.
[60] Oral Argument at 40:37, Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016) (No. 70-18), https://www.oyez.org/cases/2015/14-915.
[61] Id. at 41:06.
[62] Id. at 25:40 (“[W]hat is it, in your mind, that you can say from the point of view of this Court’s role in this society in that if, of course, we can overrule a compromise that was worked out over 40 years and has lasted reasonably well[?]”).
[63] Locke v. Karass, 555 U.S. 207, 213 (2009); see also Linda Greenhouse, Scalia’s Putsch at the Supreme Court, N.Y. Times (Jan. 21, 2016), https://www.nytimes.com/2016/01/21/opinion/scalias-putsch-at-the-supreme-court.html.
[64] See Josef Adalian, How Parks and Recreation Managed to Survive for 7 Seasons, Vulture (Feb. 23, 2015, 5:00 PM), http://www.vulture.com/2015/02/parks-and-recreation-ratings.html.
[65] Oral Argument at 31:27, Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016) (No. 70-18), https://www.oyez.org/cases/2015/14-915.
[66] See, e.g., Jedediah Purdy, Neoliberal Constitutionalism: Lochnerism for a New Economy, 77 Law & Contemp. Probs. 195, 198-203 (2014).
[67] Id.
[68] See Citizens United v. F.E.C., 558 U.S. 310 (2010).
[69] See Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).
[70] Purdy, supra note 64, at 202.
[71] Id. at 196-97 (sketching the parameters of the Supreme Court’s “Lochner era”).
[72] 208 U.S. 161 (1908).
[73] 236 U.S. 1 (1915).
[74] See David Moberg, How Unions Can Grow Stronger in the Wake of Right To Work, In These Times (Mar. 16, 2015), http://inthesetimes.com/article/17735/scott-walker-strikes-again.
[75] Id.
[76] See Bureau of Labor Statistics, Union Members Summary, U.S. Dep’t Labor, (2016), https://www.bls.gov/news.release/pdf/union2.pdf. (providing data about union membership in 2016).
[77] Moberg, supra note 74.
[78] Id.; see also Dan Kaufman, The Destruction of Progressive Wisconsin, N.Y. Times (Jan. 16, 2016), https://www.nytimes.com/2016/01/17/opinion/campaign-stops/the-destruction-of-progressive-wisconsin.html.
[79] See Moshe Z. Marvit, When Scalia Died, So Did ‘Friedrichs’—And an Even Grander Scheme to Destroy Unions, In These Times (Feb. 15, 2016, 6:01 PM), http://inthesetimes.com/working/entry/18869/when_scalia_died_so_did_friedrichs_and_an_anti-union_grand_scheme.&eg.
[80] See, e.g., D’Agostino v. Baker, 812 F.3d 240 (1st Cir. 2016).
[81] Lawrence E. Dubé, Justices Won’t Hear Massachusetts Child-Care Aides’ Case, Bloomberg BNA: Daily Labor Report (June 13, 2016, 7:30 PM).
[82] See Marvit, supra note 79 (“[Agostino] provided a glimpse of what the likely post-Friedrichs plan of attack would have been: After you win on the dues front, go after membership.”).

Whitford v. Gill: Has Partisan Redistricting Finally Gone Too Far?

Whitford v. Gill: Has Partisan Redistricting Finally Gone Too Far?

Drew Watkins, KLJ  Senior Staff Editor[1]

When the Republican controlled Senate announced, after the passing of Antonin Scalia, that they would not consider any nominees to fill his vacant seat until after a newly elected President was sworn into office, many people speculated that this decision would have an impact on the election.[2] Now, thanks to a federal district court in Wisconsin, the newly elected Justice may have the opportunity to leave a lasting mark on future elections as well.

Generally, state legislatures are responsible for drawing the borders of their states legislative districts.[3] When a new census is released every 10 years the state must redraw the boundaries of their legislative districts to make sure the populations stay even.[4] Ultimately, the party in power–Democrat or Republican–tends to redraw districts in a way that favors them in a process referred to as gerrymandering.[5] This has made it even more difficult in our hyper-partisan electoral climate for insurgent candidates to win and for control of state legislatures to flip.[6] This can also have an impact on national elections because members of the U.S. House of Representatives are elected from state drawn legislative districts as well.[7]

The United States Supreme Court has already held “that redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race demands the same close scrutiny that we give other state laws that classify citizens by race.”[8] However, up until now, they have avoided the question of how redistricting based on party affiliation should be reviewed. On November 21, 2016 a federal court in Wisconsin struck down that state’s legislative maps drawn in 2011 by the Republican controlled legislature.[9] The three-panel court held the district maps were unconstitutional because they “intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.”[10] In its lengthy opinion, the court found, “that the discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, [the redistricting Act] constitutes an unconstitutional political gerrymander.”[11]

The national implications of this case could be huge because it includes a new method for determining whether legislative maps are drawn in a way that discriminates against a political party.[12] Redistricting challenges in federal court are appealed directly to the U.S. Supreme Court.[13] The Wisconsin Attorney General, Brad Schimel, has already promised an appeal.[14] Given the recent appointment of Justice Neil Gorsuch, a deadlocked vote leaving the lower court holding in place is unlikely.

The U.S. Supreme Court has previously indicated that lawmakers can go too far in partisan redistricting, but the Court has yet to adopt a standard for when maps become so partisan that they amount to improper political gerrymandering and should be thrown out.[15] The Wisconsin court adopted such a test, which measures wasted votes–votes not needed to elect a candidate in a particular district–as a way of determining when a map is too partisan.[16] The dissent in the Wisconsin case noted that the test adopted by the majority was not materially different than others previously rejected by the U.S. Supreme Court.[17] “The Supreme Court heard this same story in 1986. It was unmoved. In 2004 the Court rejected a similar claim, and the reasons the Justices cited only twelve years ago apply with equal force now.”[18]

When the Supreme Court hears this case they will have the opportunity to establish a test for determining when partisan redistricting has gone too far. It seems unlikely, with a new Republican Justice, that the Supreme Court would uphold the test adopted by the Wisconsin court, but in this election cycle the outcome of this case is anyone’s guess. One thing is certain: the Supreme Court’s decision will have lasting consequences on future elections, state and local, for years to come.

[1] J.D. expected May 2018.
[2] See, e.g., Jonathan Martin & Patrick Healy, Obama’s Options for a Supreme Court Nominee, and the Potential Fallout, N.Y. Times (Feb. 16, 2016), http://www.nytimes.com/2016/02/17/us/politics/supreme-court-path-is-littered-with-pitfalls-for-president-and-gop.html.
[3] Aaron Blake, Redistricting, explained, Wash. Post (June 1, 2001), https://www.washingtonpost.com/politics/redistricting-explained/2011/05/27/AGWsFNGH_story.html.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Shaw v. Reno, 509 U.S. 630, 644 (1993) (internal citations omitted).
[9] Jason Stein & Patrick Marley, Federal court strikes down GOP-drawn maps, Milwaukee J. Sentinel (Nov. 22, 2016), http://www.jsonline.com/story/news/politics/2016/11/21/federal-court-strikes-down-gop-drawn-maps/94233560/.
[10] Whitford v. Gill, No. 15-cv-421-bbc, 2016 WL 6837229, *1 (W.D. Wis. Nov. 21, 2016).
[11] Id.
[12] Stein & Marley, supra note 9.
[13] Id.
[14] Id.
[15] See generally Vieth v. Jubelirer, 541 U.S. 267, 306-17 (2004) (Kennedy, J., concurring).
[16] Stein & Marley, supra note 9.
[17] Id.
[18] Whitford, 2016 WL 6837229 at *98.

Lexmark Challenge to Patent Exhaustion Could Largely Disrupt Intellectual Property Precedent

Lexmark Challenge to Patent Exhaustion Could Largely Disrupt Intellectual Property Precedent

Caroline M. Snell, KLJ Production Editor[1]

On March 21, 2017, the United States Supreme Court heard oral arguments in the case of Impression Products, Inc. v. Lexmark International, Inc.[2] This case considers the effect of the long-established patent exhaustion doctrine and its effect upon conditional sales.[3] In the intellectual property world, this decision could have profound influence.

At its core, the patent exhaustion doctrine operates so that a patentee’s rights to restrict the sale or disposition of a product are “exhausted” upon its first sale.[4] Thus, resale of the product subsequent to its first sale does not amount to an infringement of the patent, because the patent is no longer attached to the product. In effect, this makes the disposition of patented products easier to administer.

In Impression, the court will decide whether companies are able to contract around this doctrine.[5] In its brief, Lexmark argues it can.[6] In order to understand the arguments, however, one must understand the facts.

Lexmark is a manufacturing company headquartered in Lexington, Kentucky that “develops, patents, and sells printers, toner cartridges, and associated software.”[7] As part of its business model, Lexmark offers two ways to purchase its commercial grade toner cartridges—one can either purchase a single-use patented cartridge at a lower cost, or purchase an unlimited-use patented cartridge at its full price.[8] The single-use cartridge, thus, stipulates that the customer will not reuse or resell the cartridge after its emptied, because the lower price indicates that it is licensed for one use and one use only. Customers who choose this lower priced option are expressly conveyed this information, as it is displayed on the packaging of the cartridge in multiple languages, and Lexmark contends that all customers are aware of this before they make their purchase.[9]

Impression, in turn, is a business in Charleston, West Virginia that focuses on remanufacturing.[10] Impression “purchases [used] toner cartridges that were initially sold by Lexmark [. . . and] cleans, refills, and resells them to customers.”[11] Impression “sells its […] cartridges at a substantial discount to Lexmark’s new products, saving its customers significant sums.”[12]

The issue centers around whether Impression is able to legally resell the spent single-use Lexmark cartridges even though they were sold subject to a one-time use. Lexmark says it can, given that there was consideration in selling the cartridges at a lower price.[13] Impression says Lexmark can’t, given the patent exhaustion doctrine.[14] Impression argues that after its initial disposition, Lexmark can no longer have an interest in the product, because its reach has been exhausted, and the patent is no longer attached to the product.[15] For Impression, thus, there is a mandatory exhaustion of rights after its first sale, and its not subject to contracted terms.[16] Lexmark, though, doesn’t see it that way. For Lexmark, there was ample consideration in its lower price, and because of that, Lexmark retains the ability to keep its interest in the single-use cartridge.

The effect of this decision could have the potential to greatly affect the intellectual property community. If decided for Lexmark, the Court will have granted companies the authority to contract around the long-held and well-established patent exhaustion doctrine. While the court in the past has carved out exceptions to this doctrine, they have been greatly limited in scope.[17] Thus, if Lexmark is able persuade the court to rule in its favor, Lexmark will have resolved a way of legally keeping title to its cartridges even after disposition. In turn, this will allow Lexmark to better control the financial losses it takes to the remanufactures who use its spent cartridges against it. For Impression, this would mean it would no longer have legal title to be able to clean, refill, and resell Lexmark cartridges that were purchased for single-use, and instead will have to buy only unlimited-use cartridges, which could dig deeper into Impression’s pockets and profit margins. This decision, thus, will be far and wide for the intellectual property world, as companies will now know if a conditional sale is the way around the patent exhaustion doctrine.

[1] J.D. expected May 2018.
[2] Impression Products, Inc. v. Lexmark International, Inc., 816 F.3d 721 (Fed. Cir. 2016), cert granted, 137 S. Ct. 546 (2016).
[3] Id.
[4] See Quanta Computer, Inc. v. LG Electronics, Inc., 533 U.S. 617, 625 (2008) (stating that “the initial authorized sale of a patented item terminates all patent rights to that item.”).
[5] Impression, 816 F.3d 721.
[6] Brief for Respondent, Impression Products v. Lexmark International, Inc., 816 F.3d 721 (2016) (No. 15-1189).
[7] Id. at 4.
[8] Id.
[9] Id. at 5.
[10] Brief for Petitioner at 3, Impression Products v. Lexmark International, Inc. 816 F.3d 721 (2016) (No. 15-1189).
[11] Id.
[12] Id.
[13] Brief for Respondent at 9, Impression, 816 F.3d 721 (No. 15-1189) (“And all agree that the lower price of Return Program cartridges ‘reflects the value of the [more limited] property rights and interests conveyed.’”) (brackets original).
[14] Brief for Petitioner at 12, Impression, 816 F.3d 721 (No. 15-1189).
[15] Id.
[16] Id.
[17] See generally Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700 (Fed. Cir. 1992); Jazz Photo Corp v. International Trade Comm’n, 264 F.3d 1094 (Fed. Cir. 2001).

*Featured image provided by Bhavesh Chauhan, licensed under CC BY 2.5.

The Legacy of Bears Ears National Monument and the Antiquities Act Under the Trump Administration

The Legacy of Bears Ears National Monument and the Antiquities Act Under the Trump Administration

Alex Clay, KLJ Notes Editor[1]

A last-minute national monument designation by former President Obama has brought a century-old statute[2] and the president’s authority thereunder into Republican crosshairs. In his last month in office, President Obama established the Bears Ears National Monument—preserving 1.3 million acres in Southern Utah[3]—using his authority under the Antiquities Act of 1906.[4]

The Act is a unique gift from Congress to the president. Using its power under the Property Clause,[5] Congress authorized the president “in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other object of historic and scientific interest that are situated upon lands owned or controlled by the United States to be national monuments.”[6] The Act has been used by presidents to unilaterally designate over 100 national monuments[7] and has sparked Congress to turn some into National Parks.[8]

Now, two Utah Representatives—Jason Chaffetz and Bob Bishop—are spearheading an attack on both the Bears Ears designation and the Act itself.[9] Chaffetz has characterized the designation as an “‘egregious’ demonstration of the President’s disregard for the people of Utah”[10] and “one of the biggest land grabs in the history of the United States.”[11] Both Representatives are calling for President Trump to revoke the designation[12] or, in the alternative, for Congress to terminate the monument.[13]

But criticism of monument designations is nothing new and, instead, appears to be recurring evidence of “a larger ideological dislike of the Antiquities Act”[14] by congressional Republicans. For example, Bill Clinton’s designation of the Grand Staircase-Escalante National Monument in 1996 brought complaints that echo those of Chaffetz and Bishop. Republican Senator Orin Hatch then stated that “[i]n all my years in the U.S. Senate, I have never seen a clearer example of the arrogance of federal power . . . [i]ndeed, this is the mother of all land grabs.”[15]

It is uncertain whether the old criticisms will have any new impact during the Trump Administration. It is doubtful that President Trump possesses the power to revoke another President’s designation under the Antiquities Act, but this question is certainly not settled. “No president has ever abolished or revoked a national monument proclamation” and scholars have long taken the position that the Antiquities Act does not grant the President such authority.[16] However, many supporting this view based their opinion on seemingly the only authority addressing the issue: a 1938 U.S. Attorney Opinion, which opined that the President is without authority to issue proclamations revoking national monuments.[17] And recent scholars have expressed the view that the Act does grant the President such authority, despite the 1938 Opinion, because “the grant of power to a president implies the power to rescind it.”[18]

Though less doubtful, it also appears uncertain that President Trump has the power to modify the Bears Ears proclamation. A 2000 Congressional Research Service Report concluded that a President can modify a national monument proclamation using the Act’s language requiring a monument to be “confined to the smallest area compatible with the proper care and management of the objects to be protected.[19] But some scholars remain skeptical, noting that an original proclamation represents the President’s judgment that the area protected already is the “smallest area compatible.”[20] Therefore, the view goes, a subsequent limiting proclamation would be beyond “simply correcting a mistake . . . to conform to the narrow language of the statute” and would instead exceed the President’s power under the Act.[21]

It seems much more likely that the dominant threat to any of Obama’s 29 national monuments[22] is Congressional action. A determined Congress could limit the expenditure of funds to a monument’s administration or act to abolish a monument altogether.[23] However, such measures are rarely taken,[24] as lawmakers are likely weary of the fact that the public places a high value on the protection of historic landscapes, or that strong public support often develops for national monuments in the long run.[25] Even Clinton’s wildly unpopular designation in Utah was never repealed.[26]

Over time, the Antiquities Act and the President’s designations thereunder have “proved remarkably resilient” in the face of Republican opposition.[27] But now, with the potential for an ideological shift in the Supreme Court’s makeup under the Trump Administration, the Act’s legacy may prove to be less certain than ever before.

[1] J.D. Expected May 2018.
[2] Antiquities Act of 1906 16 U.S.C. § 431 (2016).
[3] Kirk Siegler, Utah Representative Wants Bears Ears Gone and He Wants Trump To Do It, NPR (Feb. 5, 2017, 8:10 AM) http://www.npr.org/2017/02/05/513492389/utah-representative-wants-bears-ears-gone-and-he-wants-trump-to-do-it.
[4] Antiquities Act of 1906, 16 U.S.C. § 431 (2016).
[5] See Blackman, supra note 2.
[6] Antiquities Act of 1906, 16 U.S.C. § 431 (2016).
[7] Christine Klein, Without a Trace: Can One President Abolish National Monuments Proclaimed by Previous Presidents?, Univ. of Fla. Law Faculty Blogs (last visited March 3, 2017, 12:27 AM) https://facultyblogs.law.ufl.edu/without-trace-can-one-president-abolish-national-monuments-proclaimed-previous-presidents/.
[8] Notably, the Grand Canyon National Park, Olympic National Park, Grand Teton National Park, and Zion National Park all began as national monuments. Christine A. Klein, Preserving Monumental Landscapes Under the Antiquities Act, 87 Cornell L. Rev. 1333, 1395 fn. 410 (2002) (citing Gary Brayner, John Leshy on Shaping the Modern West: The Role of the Executive Branch, Resource Law Notes (Natural Res. Law Ctr. Sch. of Law, Univ. of Colo. At Boulder) Mar. 2000 at 2.)
[9] Michelle Cottle, Keeping the President’s Hands Off Utah’s Land, The Atlantic (Sep. 9, 2016) https://www.theatlantic.com/politics/archive/2016/09/utah-public-lands-rob-bishop/499316/.
[10] Amy Joy O’Donoghue, Chaffetz demands White House document dump over Bears Ears Designation, Desert News Utah (Dec. 29, 2016, 2:50 p.m.) http://www.deseretnews.com/article/865670127/Chaffetz-demands-White-House-document-dump-over-Bears-Ears-designation.html.
[11] Jason Mark, The Antiquities Act Has Paved The Way For Some of America’s Most Awesome National Parks. Now, Republicans Want to Roll it Back, Sierra Club (Jan. 31, 2017) (citing Alexandra Desanctis, Reversing Obama’s Last-Minute Land Grab, Nat’l Rev. (Jan. 2, 2017, 5:37 PM) http://www.nationalreview.com/article/443462/trump-gop-aim-reverse-obamas-land-grab-utah-nevada-million-acres).
[12] See Mark, supra note 10; Siegler, supra note 2.
[13] See Mark, supra note 10.
[14] Id.
[15] James R. Rasband, Utah’s Grand Staircase: The Right Path to Wilderness Preservation? 70 U. Colo. L. Rev., 483, 485 n. 6 (1999) (quoting Laurie Sullivan Maddox, Taking Swipes at Clinton, Utahns Vow to Fight Back, Salt Lake Trib., Sept. 19, 1996 at A5.) See also Id. at 490-91 (describing Utah Senator Wallace Bennett’s similar response to President Johnson’s last-minute designation of additional land to the Arches and Capitol Reef National Monuments).
[16] Alexandra M. Wyatt, Cong. Research Serv., R44687, Antiquities Act: Scope of Authority for Modification of National Monuments, Summary (2016).
[17] 39 U.S. Op. Atty. Gen. 185, 189 (1938), see e.g. Klein, supra note 7, at 1388; Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473, 552-54 (2003).
[18] Todd Gaziano & John Yoo, Trump Can Reverse Obama’s Last-Minute Land Grab, Wall Street J., (Dec. 30, 2016, 7:08 PM) https://www.wsj.com/articles/trump-can-reverse-obamas-last-minute-land-grab-1483142922 (comparing the revocation power to the President’s unilateral power to remove officials in Myers v. United States, 272 U.S. 52 (1926) and to terminate treaty agreements).
[19] See Blackman Blog (citing Pamela Baldwin, Cong. Research Serv., RS20647, Authority of a President to Modify or Eliminate a National Monument, 2 (2000)).
[20] See Squillace, supra note 17, at 555.
[21] Id.
[22] Juliet Eilperin & Brady Deniis, With New Monuments in Nevada, Utah, Obama Adds to His Environmental Legacy, Wash. Post (Dec. 28, 2016) https://www.washingtonpost.com/national/health-science/with-new-monuments-in-nevada-utah-obama-adds-to-his-environmental-legacy/2016/12/28/e9833f62-c471-11e6-8422-eac61c0ef74d_story.html?utm_term=.6c7e5a27e178.
[23] Both forms of Congressional action were used in opposition to President Franklin D. Roosevelt’s 1943 designation of the Jackson Hole National Monument. John F. Shephard, Up the Grand Staircase: Executive Withdrawals and the Future of the Antiquities Act, 43 Rocky Mtn. Min. L. Inst. 4-1, 4-3 (1997).
[24] Pamela Baldwin, Cong. Research Serv., RS20647, Authority of a President to Modify or Eliminate a National Monument, 2 (2000)).
[25] See Klein, supra note 7, at 1391–92.
[26] Id. at 1389.
[27] Id. at 1388.

*Featured image by the Bureau of Land Management.

How Old Are You? IMDB’s Free-Speech Battle Against a California Statute Begins

How Old Are You? IMDB’s Free-Speech Battle Against a California Statute Begins

J. Austin Anderson, KLJ Production Editor[1]

A unique California law is being challenged in federal courts, and some serious constitutional issues are implicated. Long known for its robust entertainment laws, the state passed a bill near the end of 2016 which would forbid websites such as the Internet Movie Database (IMDB) from providing ages of actors and actresses to paid subscribers of the service.[2] Decision makers within the entertainment industry use this type of service when searching for a performer to play a particular role.[3] The logic behind the bill is to “ensure that information obtained on an Internet Web site regarding an individual’s age will not be used in furtherance of employment or age discrimination.”[4] According to legislators behind the law, age discrimination is still prevalent in the entertainment industry despite federal and state statutes discriminating such practices.[5]

IMDB has already filed for a preliminary injunction of the law, arguing that it infringes on the company’s First Amendment rights and that it would “suffer irreparable harm without injunctive relief.”[6] The Screen Actors’ Guild, a major lobbyist for the bill, called the decision to sue “regrettable.”[7] However, at least for now, IMDB will be able to continue listing the ages of actors and actresses in their database; a federal judge granted a preliminary injunction to suspend enforcement of the law until the case can be heard later this year.[8]
In granting the preliminary injunction, the judge speculated on what the result of the case would be, opining that “[i]t’s difficult to imagine how AB 1687 could not violate the First Amendment.”[9] The judge also made the noteworthy determination that the law was a restriction on non-commercial speech on the basis of content.[10] This, of course, means that the statute will be examined under the lens of strict scrutiny.[11] A strict scrutiny analysis creates a major uphill battle for the state and its interested parties.[12] The state must be able to show that the statute is narrowly tailored to serve a compelling government interest, and that there are no other less–restrictive alternative methods that achieve their goal.[13] The state will almost certainly argue that IMDB is engaged in commercial speech which would remove the case from the arena of strict scrutiny, but the judge seems to believe that the strict scrutiny approach is appropriate.[14]

Under a strict scrutiny analysis, just about the only prong of the test the state seems to meet is the fact that limiting employment discrimination is a legitimate government interest.[15] It is unlikely that the state will be able to meet its burden in showing that the statute actually curbs age discrimination in any way or that withholding information that is otherwise widely available to the public is the least restrictive method of achieving their goals.[16]

If the court decides that the statute is constitutionally invalid, the lobbies behind it will assuredly appeal and keep pressing the issue. One spokesperson called this suit “an early skirmish in what will be a long-term battle to ensure that entertainment industry workers are granted the same minimum employment protections as all other workers.”[17] Regardless of the outcome, this fight looks to be a lengthy one, which could very well end up in front of the Supreme Court.

[1] J.D. Expected May 2018.
[2] Cal. Civ. Code § 1798.83.5 (West 2017).
[3] Todd Spangler, IMDB to Raise Price of IMDbPro with Addition of Casting Tools, Variety (Mar. 11, 2015, 12:45 PM), http://variety.com/2014/digital/news/imdb-raises-price-of-imdbpro-with-addition-of-casting-tools-1201129433 (demonstrating the prevalence of IMDbPro within Hollywood casting circles).
[4] Cal. Civ. Code § 1798.83.5 (West 2017).
[5] Bryan Sullivan, IMDb Refuses to Comply with California’s Age Discrimination Laws, Forbes (Jan. 11, 2017, 2:41 PM), https://www.forbes.com/sites/legalentertainment/2017/01/11/amazon-owned-imdb-in-age-discrimination-battle-with-state-of-california/#7a3ed3eead34 (quoting Majority Leader Ian Calderon: “Even though it is against both federal and state law, age discrimination persists in the entertainment industry. AB 1687 provides the necessary tools to remove age information from online profiles on employment referral websites to help prevent this type of discrimination.”).
[6] Petitioner’s Motion for Injunctive Relief at 13, IMDB.com v. Becerra, No. 16-cv-06535-VC (N.D. Cal. Feb. 16, 2017).
[7] Dave McNary, IMDb Sues California to Invalidate Actor-Age Law, Variety (Nov. 10, 2016, 3:45 PM), http://variety.com/2016/film/news/imdb-sues-california-actor-age-law-1201915252.
[8] See generally Order Granting Plaintiff’s Motion for Preliminary Injunction, IMDB.com v. Becerra, No. 16-cv-06535-VC (N.D. Cal. Feb. 22, 2017).
[9] Id. at 1.
[10] Id.
[11] See, e.g., United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000).
[12] Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 844 (2006) (finding that only 22% of statutes that restrict free speech based on content survive strict scrutiny).
[13] United States v. Playboy Entm’t Group, 529 U.S. 803, 813 (2000).
[14] Dave McNary, IMDb Sues California to Invalidate Actor-Age Law, Variety (Nov. 10, 2016, 3:45 PM), http://variety.com/2016/film/news/imdb-sues-california-actor-age-law-1201915252 (“IMDb is engaged in commercial speech and in a commercial transaction with its subscribers, and the State of California is well within its rights to regulate that transaction, especially when the abuse of that relationship has such devastating effects on California workers.”).
[15] Order Granting Plaintiff’s Motion for Preliminary Injunction at 2, IMDB.com v. Becerra, No. 16-cv-06535-VC (N.D. Cal. Feb. 22, 2017).
[16] Id.
[17] Dave McNary, Judge Pauses Enforcement of IMDb Actor Age Censorship Law, Variety (Feb. 22, 2017, 4:14 PM), http://variety.com/2017/film/news/imdb-actor-age-law-injunction-1201994192.

*Featured image by Georges Biard, licensed under CC BY-SA 3.0.

Educating a “Work Ready” Kentucky: A Closer Look at the Impact of Free Community College Legislation in Kentucky

Educating a “Work Ready” Kentucky: A Closer Look at the Impact of Free Community College Legislation in Kentucky

Bennett P. Greene, KLJ Staff Editor[1]

Recently, free community college programs have become a common topic of debate in our state legislatures. As of May 2016, four states had enacted free community college legislation, and at least 16 other states were considering similar legislation.[2] Lawmakers, Republicans and Democrats alike, have supported the movement.[3] Progressives see an opportunity to assist those who previously might have found college to be “financially out of reach.”[4] Conservatives see a way to stimulate the economy through meeting workforce demands, while keeping new costs to taxpayers nominal.[5]

At least twenty-seven community college programs have launched since 2015.[6] Many states, including Kentucky, have pending legislation or are in the process of presenting legislation that furthers the 2015 Obama White House initiative.[7] Programs of this nature certainly have benefits and costs, yet some can be more easily identified than others. Unfortunately, community colleges have extremely high drop-out rates.[8] “Just 20 percent of full-time students seeking a degree get one within three years.” [9] In some instances, these numbers may be even lower.[10] While community college enrollment increases, other training programs, including trade programs could see decreased enrollment as community college tuition becomes free. These vocations are essential to the functioning of the United States economy.[11] Increased demand and decreased supply leads to increased costs in these trade-based fields.[12]

Kentucky Legislation

In April 2016, the Kentucky Legislature passed HB626, as a part of the “Workready Kentucky” Initiative.[13] HB626 or the “Work Ready” bill intended to implement a priority program for free tuition for two-year associate’s degrees.[14] HB626 would have required students to apply for available student aid, and the state would pay the difference.[15] Additionally, Kentucky students would have to take 12 credit hours and maintain a 2.0-grade point average.[16]

Even though the bill passed in the Kentucky House of  Representatives with an 86-11 vote, Governor Matt Bevin vetoed the bill on April 27, 2016, but left the budget of $15.9 million to fund another version of this program.[17] On December 23, 2016, Governor Bevin signed an executive order to adopt a modified version of this program, called the “Work Ready Kentucky Scholarship.”[18] The Work Ready Kentucky Program, which will start with the 2016-2017 school year, allows students to pursue a two-year degree within specified workplace sectors.[19] The sectors are identified as “high-demand workforce sectors”, that are to be determined by the state and can change over time. [20] In the executive order Bevin stated the Commonwealth “is committed to increasing the currently low workforce participation rate by expanding the skilled, competitive workforce necessary to attract new businesses to the state.”[21]
Kentucky’s Work Ready program allows students to use the funding at the state’s four-year public institutions, Kentucky Community and Technical College System (KCTCS), or another other accredited college in the state.[22] The first round of scholarships (2016-2017) will include the following industries: health care, transportation/logistics, advances manufacturing, business services/IT and construction.[23] The program requires students to exhaust other available forms of student aid and will cover the remaining expenses.[24]

Kentucky’s Work Ready plan contrasts with other free community college initiatives across the country in several ways. Because the scholarships can be used at four-year colleges and universities within the state of Kentucky, students can have the costs of the first two years of a four-year program covered.[25] Additionally, Kentucky’s program allows the usage of the scholarship towards technical and vocational training through state approved programs.[26] These specifications could be Kentucky’s attempt at confining some of the risk of allocating funds to free college. Scholarships provided within certain sectors allow Kentucky to provide a trained workforce to particularized business sectors.[27] Furthermore, by selecting economically desired sectors for scholarship, students (and taxpayers) are more likely to get “a return on their investment.”[28] Students may be more likely to attend state schools with this program, creating economic growth through increased enrollment at Kentucky’s state colleges and universities.

Community colleges are not always known for their technical programs. Community colleges can often be described as either “transfer-focused” or “technical colleges.” [29][29] But, with scholarship programs like the one in Kentucky, technical education could be making a comeback.

While the Work Ready Program eliminates some of the major concerns with free community college legislation, its program also highlights several points of contention commonly discussed resulting from the implementation of free community college legislation and programming.  Kentucky’s career specific programming could deter students from entering career fields they previously would have entered, to enter a cost-free program. HB626 sparked debate among legislators concerning the grade point average (GPA) requirement. The governor, through executive order, set the GPA requirement at 2.0.[30]

Kentucky’s Work Ready program attempts provide its citizens with the education and training they need to successfully enter and stay competitive in the workforce. Free community college legislation, while sometimes controversial, has proven to be something both parties can get behind.[31] Kentucky must continue to consider its specific circumstances, bearing in mind economic and workforce preparation needs.

[1] J.D. Expected May 2018
[2] Thomas L. Harnisch & Kati Lebioda, The Promises and Pitfalls of State Free Community College Plans, AASCU (May 2016), http://www.aascu.org/policy/publications/policy-matters/freecommunitycollege.pdf.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] H.B. 626, 16 Reg. Sess. (Ky. 2016).
[8] Susan Dynarski, How to Improve Graduation Rates at Community CollegesN.Y. Times (Mar.11, 2015), http://www.nytimes.com/2015/03/12/upshot/ how-to-improve-graduation-rates-at-community-colleges.html?_r=0.
[9] Id.
[10] Id.
[11] Valerie Strauss, Why We Need Vocational TrainingWashington Post (Jun. 5, 2012), https://www.washingtonpost.com/blogs/answer-sheet/post/why-we-need-vocational-education/2012/06/04/gJQA8jHbEV_blog. html.
[12] Id.
[13] Tom Loftus, Bevin Delays Free Community College Plan, Courier Journal, (April 28, 2016), http://www.courier-journal.com/story/news/politics/ky-governor/2016/04/27/bevin-vetoes-30-parts-state-budget-bill/83614366/.
[14] Id.
[15] Joseph Gerth, Kentucky House Approves Free Community College, Courier Journal (March 17, 2016), http://www.courier-journal.com/story/news/politics/ky-legislature/2016/03/17/ky-house-approves-free-community-college/81915692/.
[16] Id.
[17] Loftus, supra note 13.
[18] Morgan Watkins, Bevin creates college scholarship program, Courier Journal (Dec. 23, 2016), http://www.courier-journal.com/story/news/politics/2016/12/23/bevin-creates-college-scholarship-program/95790654/.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Ashley A. Smith, Delayed Promise in Kentucky, Inside Higher Ed (April 29, 2016), https://www.insidehighered.com/news/2016/04/29/kentucky-will-delay-free-community-college-scholarship.
[26] Id.
[27] Watkins, supra note 18.
[28] Watkins, supra note 18.
[29] Alexandra Pannoni, Frequently Asked Questions: Community College, US News (Feb. 6, 2015, 8:00 AM), http://www.usnews.com/education/community-colleges/articles/2015/02/06/frequently-asked-questions-community-college.
[30] Watkins, supra note 18.
[31] Anne Kim, Tennessee Promise: Offering Free Community College to All Students, Republic 3.0 (June 2014), http://republic3-0.com/tennessee-promise-free-community-college-for-all-students/.

*Featured image provided by the Free Cooper Union, licensed under CC BY-SA 3.0

“Blue Lives Matter” Laws: The Extension of Hate Crime Statutes to Include Law Enforcement

“Blue Lives Matter” Laws: The Extension of Hate Crime Statutes to Include Law Enforcement

Spencer K. Gray, KLJ Online Content Editor[1]

Effective August 1, 2016, Louisiana’s statute regulating hate crimes was amended to include crimes that were committed against a victim “because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel.”[2]  The Louisiana hate crime statute as amended increases the penalty associated with the commission of specific underlying offenses when the victim of those offenses is selected because of their race, religion, sexual orientation, gender, nationality, age, or based upon their actual or perceived employment as law enforcement personnel or other emergency response staff.[3] Because Louisiana’s hate crime law extends protections that have been traditionally been reserved to subsets of the population based on immutable characteristics, such as race and sexual orientation, the law has met substantial opposition.[4]

House Bill No. 953 (The “Blue Lives Matter” Law) was first introduced to the Louisiana House of Representatives on March 4, 2016, and was signed into law by the Governor just over two months later on May 26, 2016.[5] The Bill moved rapidly through the state legislature and faced little opposition, passing the Senate vote by a margin of thirty-three yeas to three nays, and the House of Representatives by a margin of ninety-one yeas to zero nays.[6] While Louisiana’s amendment to the hate crime statute certainly was groundbreaking, legislators in several other states have already proposed similar legislation in their respective states.[7] It is yet to be seen exactly how pervasive the political support for such an amendment is, but Louisiana’s law and the subsequent proposed bills do raise the question: Should hate crime protections be extended to police officers and other first responders?

Although Louisiana House Bill No. 953 faced very little legislative opposition, public concern for the law and for other bills like it is widespread. Some fear that extending hate crime protections to police officers will shift too much power to law enforcement in a system where the balance may already weigh heavily in favor of the police.[8] Others warn that while these laws may have noble intentions, they do not translate well into practical application.[9] For example, Police Chief Calder Hebert has warned that the law may lead to someone who resists arrest being charged with a hate crime.[10] It is notable that 37 states, including Louisiana, already include harsher penalties for harming police officers in their criminal sentencing schemes.[11] Representatives of the American Civil Liberties Union have challenged “Blue Lives Matter” laws on a more fundamental level, claiming that their proponents merely “pay lip service to protecting the police without actually doing so.”[12] Andrew Hoover, spokesperson of the ACLU in Pennsylvania, has expressed his concern that the “Blue Lives Matter Laws” not only fail to fit within the traditional purpose of hate crime statutes, but also may shift the focus of hate crime protection away from sub-sets of the population who are more in need of protection such as the LGBT community.[13]

Some proponents of extending hate crime protections to police officers point to the increase in violence against police officers as justification for the legislation.[14] Whether violence towards police officers actually is increasing is not entirely clear.[15] Others in favor of the legislation argue that the dangerous nature of law enforcement employment and the sacrifices made by the officers in the line of duty warrant the legislation.[16] Police Chief Steven Stinsky argues that the legislation is needed because the present climate surrounding law enforcement has led to a decrease in applicants for police employment, and that increased protection will help attract the best candidates.[17] It is notable that while Louisiana is the first state to extend hate crime protection to law enforcement, other states preceded it in extending protections beyond immutable characteristics. A few examples of characteristics involving choice that are protected under hate crime statutes are: service in the U.S. Armed Forces;[18] involvement in civil rights or human rights activities;[19] matriculation;[20] and homelessness.[21]

The ultimate purpose of hate crime legislation should be to balance the injustice caused due to the “greater harm that is inflicted upon society when criminal acts are committed because of bigoted beliefs.”[22] Perpetrators of hate crimes cause perverse effects on their victims including emotional and physical distress, loss of self-esteem, and an inner turmoil that deters the victim from engaging in society.[23] Not only do hate crimes have a particularly drastic effect upon their immediate victim, but hate crimes also “may effectively intimidate other members of the victim’s community, leaving them feeling isolated, vulnerable and unprotected by the law.”[24] Thus, hate crimes carry with them the risk of damaging “the fabric of our society” and leading to fragmented communities.[25]

Should hate crime protections be extended to police officers and other first responders? Are police officers a sub-set of society that is in danger of being isolated, intimidated, or feeling vulnerable and unprotected by the law? Does the dangerous nature of a policeman’s job warrant hate crime protection, or should these protections be reserved for immutable characteristics such as race and sexual orientation? These questions and others like them deserve serious contemplation before any state decides to pass such important legislation.

[1] J.D. expected May 2018.
[2] La. Stat. Ann. § 14:102.2 (2016).
[3] Id.
[4] See, e.g., Zakiya Summers, ACLU of MS Statement on Blue Lives Matter Legislation, American Civil Liberties Union of Mississippi (Jan. 24, 2017), https://www.aclu-ms.org/news/2017/01/24/aclu-ms-statement-blue-lives-matter-legislation.
[5] Bill Info, 2016 Regular Session HB953 by Representative Lance Harris, https://www.legis.la.gov/legis/BillInfo.aspx?i=230171 (Last visited Feb. 23, 2017).
[6] Id.
[7]See, e.g., H.B. 14, 2017 Reg. Sess. (Ky. 2017); S.B. 2129, 132nd Leg., 2017 Reg. Sess. (Miss. 2017); S.B. 1383, 200th Gen. Assembly (Pa. 2016); S.B. 6, 11th Gen. Assembly (Tenn. 2017).
[8] Karen Shuey, Blue Lives Matter Bill Hardly Black and White, Reading Eagle (Feb. 23, 2017), https://www.bloomberglaw.com/p/0a553cf6a9606c5ef0d878d65392f9cd/e3108df5089ba755011016476a7c62b1/document/OLR2GWAIH8N4?headlineOnly=false.
[9] Julia Craven, Louisiana Police Chief Shows Why the State’s ‘Blue Lives Matter’ Law is So Dangerous, Huffington Post (Jan. 23, 2017), http://www.huffingtonpost.com/entry/blue-lives-matter-law-lousiana_us_588653dde4b0e3a7356ae3ae.
[10] Id.
[11]Karen Shuey, Blue Lives Matter Bill Hardly Black and White, Reading Eagle (Feb. 23, 2017), https://www.bloomberglaw.com/p/0a553cf6a9606c5ef0d878d65392f9cd/e3108df5089ba755011016476a7c62b1/document/OLR2GWAIH8N4?headlineOnly=false.
[12] Jimmie E. Gates, Miss. ‘Blue Lives Matter’ Bill: Targeting First Responders a Hate Crime, The Clarion Ledger (Jan. 24, 2017), http://www.usatoday.com/story/news/politics/2017/01/24/blue-lives-matter-bill-hate-crime/97018166/.
[13]Karen Shuey, Blue Lives Matter Bill Hardly Black and White, Reading Eagle (Feb. 23, 2017), https://www.bloomberglaw.com/p/0a553cf6a9606c5ef0d878d65392f9cd/e3108df5089ba755011016476a7c62b1/document/OLR2GWAIH8N4?headlineOnly=false (“Hate Crime laws were created in response to crimes against particular people that were not historically prosecuted like the lynching of black people. The historical record is completely absent of crimes against police officers not being prosecuted.”); see also Kevin Conlon, Louisiana Governor Signs ‘Blue Lives Matter’ Bill, CNN (May 27, 2016) http://www.cnn.com/2016/05/26/us/louisiana-blue-lives-matter-law/ (“Working in a profession is not a personal characteristic, and it is not immutable…[expanding hate crime statutes beyond immutable characteristics] weakens the impact of the Hate Crimes Act by adding more categories of people who are already better protected under other laws.”) (quoting Allison Padilla-Goodman).
[14] See Kathryn Casteel, Would Trump’s ‘Blue Lives Matter’ Effort Really Help Protect Police?, FiveThirtyEight (Feb. 22, 2017).
[15] See National Law Enforcement Officers Memorial Fund, Preliminary 2016 Law Enforcement Officer Fatalities Report, (Dec. 29, 2016), http://www.nleomf.org/assets/pdfs/reports/Preliminary-2016-EOY-Officer-Fatalities-Report.pdf; But see FBI, 2015 Law Enforcement Officers Killed & Assaulted. https://ucr.fbi.gov/leoka/2015/officers-assaulted/assaults_topic_page_-2015 (last visited Feb 23, 2017); FBI, Law Enforcement Officers Killed and Assaulted 1996 (1996), https://ucr.fbi.gov/leoka/1996.
[16] Karen Shuey, Blue Lives Matter Bill Hardly Black and White, Reading Eagle (Feb. 23, 2017), https://www.bloomberglaw.com/p/0a553cf6a9606c5ef0d878d65392f9cd/e3108df5089ba755011016476a7c62b1/document/OLR2GWAIH8N4?headlineOnly=false.
[17] Id.
[18] Vt. Stat. Ann. tit. 13, § 1455 (West 2014).
[19] Mont. Code Ann. § 45-5-221 (West 2009).
[20] D.C. Code Ann. § 22-3701 (West 2009).
[21] Fla. Stat. Ann. § 775.085 (West 2016).
[22] The Staff of the Syracuse Journal of Legislation & Policy, Crimes Motivated by Hatred: The Constituionality and Impact of Hate Crime Legislation in the United States. 1 Syracuse J. Legis. & Pol’y 29, 32 (1995).
[23]  Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2336­–37 (1989).
[24]Hate Crime Laws, Anti-Defamation League (2012) http://www.adl.org/assets/pdf/combating-hate/Hate-Crimes-Law.pdf.
[25] Id.

*Featured image by Quinn Dombrowski, licensed under CC BY-SA 2.0.

The United States Estate Tax: Demonized by the Public on Behalf of the Few

The United States Estate Tax: Demonized by the Public on Behalf of the Few

Sadie R. McCorkle, KLJ Articles Editor[1]

The United States estate tax[2] is arguably a hated tax convention. Pejoratively referred to as a “death tax,” its detractors characterize it as the ultimate in government greed: capitalizing on death by harming mourning heirs by depriving them of property.[3] In reality, the estate tax is a “tax on your right to transfer property at your death.”[4] Donald Trump used the estate tax as a scapegoat during his presidential campaign, promising to repeal it upon his election.[5] “Double taxation,” he called it.[6] “[A] lot of families go through hell over the death tax.”[7] Supporters—both in the government[8] and among ordinary voters[9]—praised the possibility. “For too long, this tax has threated family owned businesses—including women and minority-owned business—from being passed down to their children and grandchildren,” wrote one.[10] But an analysis of the policies behind the estate tax, as well as the realities of its impact on taxpayers, suggest that much of the outrage over a ‘death tax’ is due to public misconception about who is even impacted, as well as the alternative being proposed by President Trump.

The estate tax is by no means a recent phenomenon.[11] The modern version of the tax was created in order to help fund World War I in 1916.[12] Since then, the tax’s form has fluctuated, experiencing both tax rate cuts and spikes, changes to the portion of the estate ultimately taxable, and even repeal and reinstatement.[13] Today, it supplies relatively little income to the government—less than one percent of federal revenue in 2014.[14] Though this percentage was small, however, the revenue raised by the estate tax in 2014 was $19.3 billion—certainly a significant amount of money.[15]

Two forces work against the estate tax in the public’s mind: belief that it impacts hard-won small businesses, and belief that a possibility exists it will apply to the average American when he or she becomes a one-percenter. Efforts to demonize the tax gained momentum in the 1990s, when advocates realized that “the working rich, not the idle rich, had to become the poster children of the movement.”[16] Carefully, those advocates garnered public support for “ordinary people who had worked hard all their lives to build a nest egg about to be smashed at their death . . . . [Advocates] worked hard to ensure that the public would see the estate tax as a small- and medium-sized business issue”[17] Negative public perception persists today, and repeal is a popular Republican political platform.[18]

Interestingly, despite widespread misconception about the amount and character of the populace affected—“the wealthiest 0.2%” of Americans who die every year[19]—some Americans also see the estate tax as a tax threatening who they could be.[20] The American dream has been, and continues to be, to become extremely wealthy. Americans “have underestimated the levels of inequality, overestimated their own wealth compared to others, and exaggerated their likelihood of moving up significantly and getting rich.”[21] Therefore, part of the American public resents the possibility of what they do not yet have being possibly taken away.

In 2017, the tax applies only to individual estates worth more than $5.49 million because of a lifetime exclusion (the Unified Credit Against Estate Tax).[22] When a taxpayer is married, that number is $10.98 million, reflecting both spouses’ lifetime exclusion put together.[23] This number represents an exemption, not a cliff: none of the estate under that number will ever be taxed by the estate tax.[24] When estates are worth more than the exempted amount, only the excess worth—above $5.49 million for individuals—will be taxed, not the entire estate.[25] Numerous other exemptions exist, testament to the complicated nature of the tax code in general.[26]

Estate assets over the threshold are taxed at 40%.[27] This percentage is ostensibly a high one, representing forty cents per every dollar over $5.49 million. However, the rate that is ultimately experienced differs from estate to estate, because of the amount of the estate initially exempted from any taxation whatsoever.[28] The closer the estate’s value to the threshold of the exemption, the lower the effective tax rate paid by the taxpayer.[29] The effective tax rate is the amount of tax paid compared to the amount of property potentially taxable. For example, an estate whose included assets total $6 million would be taxed at 40% on $0.51 million, paying a total of $204,000 in taxes. That estate’s effective tax rate is actually only 3.4%, despite the statutory tax rate of 40%. The average effective rate of the estate tax was 16.6% in 2013.[30] The greater the assets of the estate—up and away from the lifetime exclusion—the nearer the effective tax rate is to the statutory 40% rate. In the end, those who are extremely wealthy have a greater reason to worry about the tax than most average Americans.[31]

There are three final benefits related to the estate tax. First is the fact that a taxpayer can leave his or her entire estate to a spouse, tax free.[32] There is no cap to this benefit, ensuring that the surviving spouse is not impacted by the tax until his or her own death.[33] Second, the surviving spouse can elect to use the unused portion of his or her deceased spouse’s lifetime exclusion, tacking it on to the surviving spouse’s eventual lifetime exclusion.[34] For example, if A died and left an estate worth $1 million to her spouse, B, B could elect to use the entire $5.49 million of A’s lifetime exclusion when B dies, giving B a $10.98 million exclusion upon death.[35] Finally, those who inherit the estate are eligible for stepped-up basis in any property received.[36] Basis represents the tax system’s method of keeping track of net versus gross profits: it typically represents the amount someone has invested in a piece of property, and only the amount of income that he or she realizes and recognizes over that basis amount is taxed.[37] If, by contrast, that person were to die without selling the property, inheritors receive the property with a new basis: the fair market value at the time of the person’s death.[38] For example, if A had purchased a piece of property for $5 and died when that property was worth $10, B would receive the property with a new basis of $10. If B chose to sell the property immediately, he would do so without having to pay any tax—a tremendous benefit to the heir.

Finally, many laws have foundational policy elements, in that those who enact them want the laws to have some effect on society beyond mere compliance.[39] Tax law is no exception. As stated above, the estate tax is actually a tax levied on the power each person possesses to say where his or her property will (or will not) go after his or her death.[40] This power is a formidable one. Before death, people can influence the behavior of those around them who hope to inherit. After death, the power to dictate where property goes can be similarly influential: within limits, people can even transfer property subject to conditions placed upon the still living.[41] So few estates are even taxed, however, that most Americans enjoy the privilege of saying where their property goes upon death without any tax consequence except the huge benefit of stepped-up basis.

Additionally, the estate tax encourages wealth redistribution, because people naturally try to divest themselves of assets when faced with paying the government anything, even after their death. Despite popular thought, wealth redistribution usually describes “the flow of assets up from the poor to the rich.”[42] “[The] United States enjoys both growing poverty and a shrinking middle class.”[43] A common theme to upward wealth distribution is the idea of being wealthy itself: “the affluence of the few supposes the indigence of the many.”[44] This can also be seen in the idea of social trust: that contributing to a common pool (taxes) will contribute to social aid.[45] The United States has low social trust, and part of the reason is “the polarization in wealth and decline in social mobility.”[46] Lower social trust is reflected in the public’s general unwillingness to contribute to a common pool, based upon beliefs that their money is being taken to support the unworthy.[47] “When people don’t trust their governments and their fellow citizens, who would be excited to contribute to the financial commons—taxes?”[48] Therefore, part of the policy behind the estate tax is to encourage downward wealth distribution, by encouraging reallocation, before or after death, of potentially huge estates.[49]

A final note should be made about President Trump’s plan to repeal the estate tax: he plans on making a second change to the end-of-life tax system by eliminating stepped-up basis.[50] “[W]ith no estate tax, beneficiaries would instead pay capital gains taxes based on the original cost—the share price grandma and grandpa paid for their AT&T stock when they bought it decades ago . . . .”[51] An initial problem with this idea is the difficulty taxpayers and the IRS will have in ascertaining what the initial basis even was for many properties, especially ones held for generations.

During his campaign, President Trump also said that “the first $10 million” would be “tax-free,” although it is unclear what exactly this means.[52] “Without providing details, the Trump plan calls for retaining a step-up on assets roughly [equal to] the amount of the current [estate] tax exemption . . . .”[53] It is unknown whether this capital gain tax on estate assets would be owed at time of death, or later, when heirs sell the estate property. Practically speaking, the latter should be the case, or the tax would “force survivors to liquidate family businesses, farms and homesteads in haste”[54]—the same concerns many express about the consequences of the estate tax. However, if this were the case, taxpayers would have little incentive to divest themselves of any of their property. They could simply hold it forever, and very well might. Therefore, though the potential changes to the system are by no means clear or set in stone, President Trump’s plan might look a lot like the current system, simply with a better tax rate for the wealthy taxpayers impacted.

In conclusion, the estate tax is not quite the ravager of small- and medium-sized businesses its critics make it out to be. Public opinion of the tax has been manipulated repeatedly by preying on natural, American indignation at property being taxed upon death, but much of that public anger seems to be on behalf of the extremely wealthy—because nearly all Americans are not currently impacted by the tax. Policies behind the tax echo in property and economic interests, with strong encouragement to spend rather than pay the government—for example, by giving to charity, or giving gifts. Repeal has been a popular promise, but President Trump’s plan is not so far from the current system—just a different name for what ultimately may impact many people in the same way. Nevertheless, it is important to understand who exactly has a reason to really hate the estate tax right now: “mainly . . . the very wealthy who are passing on stock portfolios that have never been subject to capital gains taxes.”[55]

[1] J.D. expected May 2018.
[2] See generally I.R.C. ch. 11 (2012).
[3] See Glenn Kessler, Is the Estate Tax Killing Small Farms and Businesses?, Wash. Post (April 14, 2015), https://www.washingtonpost.com/news/fact-checker/wp/2015/04/14/the-facts-about-the-estate-tax-and-farmers/?utm_term=.cd1f17e7712e.
[4] Estate Tax, IRS (last updated Oct. 28, 2016), https://www.irs.gov/businesses/small-businesses-self-employed/estate-tax.
[5] Jessica Dickler, Who Wins if Trump Repeals the Estate Tax?, CNBC (Nov. 21, 2016, 8:30 AM), http://www.cnbc.com/2016/11/21/who-wins-if-trump-repeals-the-estate-tax.html.
[6] Id.
[7] Id.
[8] See id.
[9] See, e.g., Scott Adams, Why I Switched My Endorsement from Clinton to Trump, Scott Adams’ Blog (Sept. 25, 2016 12:41 PM), http://blog.dilbert.com/post/150919416661/why-i-switched-my-endorsement-from-clinton-to.
[10] Dickler, supra note 5.
[11] Michael J. Graetz, “Death Tax” Politics, 57 B.C. L. Rev. 801, 801 (2016).
[12] Id.
[13] Id. at 801-11.
[14] Andrew Lundeen, The Estate Tax Provides Less than One Percent of Federal Revenue, Tax Found. (April 7, 2015), https://taxfoundation.org/estate-tax-provides-less-one-percent-federal-revenue/. Compare this to the individual income tax, providing 46.2% of federal revenue in 2014. Id.
[15] Id.
[16] Graetz, supra note 11, at 805.
[17] Id.
[18] Id. at 811.
[19] Id.
[20] See id. at 807.
[21] Id.
[22] Rev. Proc. 2016-55, 2016-45 I.R.B. 707. The Unified Credit Against Estate Tax applies to the estate at death, but also encompasses gifts made during the lifetime of the deceased. Kay Bell, Estate and Gift Tax Exemption Amounts for 2016-17, Bankrate http://www.bankrate.com/finance/taxes/estate-tax-and-gift-tax-amounts.aspx (last updated Jan. 10, 2017). The credit can be used during life to offset gift taxes, but the amount available to reduce the estate tax upon death will be reduced. Id.
[23] Ashlea Ebeling, IRS Announces 2017 Estate and Gift Tax Limits: The $11 Million Tax Break, Forbes (Oct. 25, 2016, 2:33 PM), http://www.forbes.com/sites/ashleaebeling/2016/10/25/irs-announces-2017-estate-and-gift-tax-limits-the-11-million-tax-break/#36ff156e43fa.
[24] Chye-Ching Huang & Chloe Cho, Ten Facts You Should Know About the Federal Estate Tax, Ctr. on Budget & Pol’y Priorities, http://www.cbpp.org/research/federal-tax/ten-facts-you-should-know-about-the-federal-estate-tax (last updated Sept. 8, 2016).
[25] Id.
[26] See id. It is worth noting that a major issue exists regarding the valuation of estates: wealthy taxpayers have been limited partnerships as holding mechanisms for their property, and transferring their interests in the partnership itself upon death. Brant J. Hellwig, Estate Tax Exposure of FLPs Under Section 2036, 38 Real Prop. Prob. & Tr. J. 169, 172-77 (2003). Because of the closely held nature of the partnership, no real market exists to establish a fair market value for the interest being transferred, allowing taxpayers to essentially say what their interest is worth. Id. They then have a claim that their estate is worth significantly less than it would be if the property had not been transferred to the limited partnership to begin with. Id.
[27] I.R.C. § 2001 (2012); see also Ebeling, supra note 23.
[28] Huang & Cho, supra note 24.
[29] Id.
[30] Id.
[31] See id.
[32] I.R.C. § 2056 (2012); see also Frequently Asked Questions on Estate Taxes, IRS, https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-estate-taxes#5 (last updated Jan. 6, 2017).
[33] See Frequently Asked Questions on Estate Taxes, supra note 32.
[34] I.R.C. § 2010(c) (2012).
[35] The exemption B can use can actually be higher than it was when A died, because the exemption goes up with inflation.
[36] I.R.C. §1014 (2012).
[37] Topic 703 – Basis of Assets, IRS, https://www.irs.gov/taxtopics/tc703.html (last updated Jan. 10, 2017).
[38] Publication 551 – Main Content, IRS, https://www.irs.gov/publications/p551/ar02.html#en_US_201612_publink1000257012 (last visited Feb. 17, 2017).
[39] See Public Policy, Black’s Law Dictionary (10th ed. 2014).
[40] Estate Tax, supra note 4.
[41] Mary Randolph, Conditional Gifts in Wills and Trusts, NOLO http://www.nolo.com/legal-encyclopedia/conditional-gifts-wills-trusts.html (last visited Feb. 17, 2017).
[42] Beverly Moran, Wealth Redistribution and the Income Tax, Howard L.J. 319, 320 (2010) (“As tax from truck drivers and teachers went to bail out American International Group (A.I.G.) and Goldman Sachs, twenty-five hedge fund managers received more in combined annual salary than the gross domestic product of Costa Rica, Iceland, Jordan, or Uruguay.”).
[43] Id. at 321.
[44] Id.
[45] Lixing Sun, How America Hates Socialism Without Knowing Why, Evonomics (June 16, 2016), http://evonomics.com/america-hates-socialism-without-knowing/.
[46] Id.
[47] Id. See also Tami Luhby, Why So Many People Hate Obamacare, CNN Money (Jan. 6, 2017 10:45 AM), http://money.cnn.com/2017/01/05/news/economy/why-people-hate-obamacare/ (“[Yet] another entitlement program that uses hard-working taxpayers’ money to help lazy, undeserving people.”).
[48] Sun, supra note 45.
[49] Moran, supra note 42 at 322.
[50] Allyson Versprille, Trump Plan Repeals Estate Tax, Scraps Capital Gain Benefit, Bloomberg BNA (Sept. 20, 2016), https://www.bna.com/trump-plan-repeals-n57982077269/.
[51] Dickler, supra note 5.
[52] Versprille, supra note 50.
[53] William Baldwin, Tax Strategies for the Trump/Ryan Plan, Forbes (Dec. 14, 2016, 9:57 AM), http://www.forbes.com/sites/baldwin/2016/12/14/tax-strategies-for-the-trumpryan-plan/#4fb8a4b03c84.
[54] Id.
[55] Kessler, supra note 3.

Mug Shots and the FOIA: Weighing the Public’s Interest in Disclosure Against the Individual’s Right to Privacy in the age of the Internet

Mug Shots and the FOIA: Weighing the Public’s Interest in Disclosure Against the Individual’s Right to Privacy in the age of the Internet

Emily T. Cecconi, KLJ Staff Editor[1]

On July 14, 2016, the U.S Court of Appeals for the Sixth Circuit, sitting en banc in Detroit Free Press v. United States Department of Justice (Free Press II), overturned a twenty-year old precedent and restricted the public’s access to mug shots of federal criminal defendants.[2] More specifically, the court concluded that individuals have a sufficient privacy interest in their booking photos to preclude their release under the Freedom of Information Act (FOIA).[3] Displeased with this dramatic 9-7 split decision, the Detroit Free Press has filed a petition with the Supreme Court urging the Justices to reverse the Sixth Circuit’s departure from earlier precedent.[4]

The FOIA is a federal statute that establishes the public’s right to obtain information from federal government agencies.[5] Since its enactment in 1966, the FOIA has served as a powerful tool used by professional reporters and journalists to investigate “what the government is up to.”[6] However, the FOIA is not without limitations. Under exemption 7(c), federal agencies are permitted to withhold disclosure of “information complied for law enforcement purposes” when producing such records “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”[7] The core issue of the Sixth Circuit’s decision is whether booking photos constitute a privacy interest that is sufficient to fall under the 7(c) exception.

In 1966, in Detroit Free Press v. United States Department of Justice (Free Press I), the Sixth Circuit held that “no privacy rights are implicated” by releasing booking photographs in ongoing criminal proceedings in which the names of the defendants have already been released and the defendants have appeared in open court.[8] In 2013, after four Michigan police officers were arrested for bribery and drug conspiracy, the Detroit Free Press requested the officers’ booking photos.[9] The request was denied pursuant to exemption 7(c) of the FOIA.[10] Reversing the 1996 decision, Free Press II held that individuals have a non-trivial privacy interest in their booking photos that is sufficient to justify exemption from the FOIA.[11] Writing for the majority, Judge Cook stated that the privacy protected under exemption 7(c) encompassed “embarrassing and humiliating facts — particularly those connecting individuals to criminality.”[12] Judge Cook explained that booking photos qualified for the exception because they are “snapped in the vulnerable and embarrassing moments immediately after an individual is accused, taken into custody, and deprived of most liberties.”[13] The majority also noted that these photographs convey such a strong connotation of the defendant’s guilt that they are often excluded from criminal trials.[14]

To distinguish its decision from earlier precedent, the court also emphasized the lasting consequences that booking photos have on an individual’s life due to their publication on the internet. The majority of the court reasoned that the logic of earlier cases was no longer persuasive because, in the past, “mug shots appeared on television or in a newspaper and then, for all practical purposes, disappeared.”[15] While today, “an idle internet search reveals the same booking photo that once would have required a trip to the local library’s microfiche collection.”[16] In coming to this conclusion, the majority relied heavily on the presence of “mug-shot websites” which collect and display booking photographs from decades-old arrests and solicit payment for their removal from the internet.[17]

The dissent first concluded that there was no privacy right implicated by releasing booking photos of individuals involved in ongoing criminal proceedings. The dissent argued that booking photos do not fall within the historical notion of privacy that Congress contemplated when enacting exemption 7(c) while further noting that the FOIA was a statute “dedicated to open government.”[18] Writing for the dissent, Judge Boggs, argued that the majority failed to distinguish booking photographs from other information, such as arrests and indictments, connecting defendants to criminality that becomes public at trial.[19] Refuting the majorities reliance upon the internet, the dissent made sure to emphasize that this information may also easily turn up in an “idle internet search.”[20] Secondly, the dissent argued that the public’s interest in disclosure outweighed any privacy interest a defendant may have in a booking photo. Justice Boggs proposed several public interests such as avoiding cases of mistaken identity, revealing what populations the government prosecutes, and holding law enforcement accountable for pre-arrest uses of excessive force.[21] Allowing the department of justice to decide whether to release booking photos on a case-by-case basis would, according to Justice Boggs, allow the government to selectively shield itself from public scrutiny.[22]

The Sixth Circuit decision does not mean that federal booking photos will never be released. Instead, it leaves open the possibility that booking photos may be released on a case-by-case basis, such as when police abuse has occurred or in cases of unusual public interest.[23] However, the opinion does suggest that the conventional view in the United States that freedom of information should trump privacy concerns is not strictly the case.

[1] J.D. Expected May 2018.
[2] Josh Gerstein, Court Ends Routine Access to Federal Mugshots, Politico (July 7, 2016), http://www.politico.com/blogs/under-the-radar/2016/07/mugshots-federal-criminal-suspects-225546.
[3] Id.
[4] Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit at 2, Detroit Free Press v. United States Department of Justice, 829 F.3d 478 (6th Cir. 2016) (No. 16-706).
[5] Erin E. Rhinehart, Sixth Circuit Overrules 20-Year-Old Precedent, Ohio State Bar Association (July 19, 2016), https://www.ohiobar.org/NewsAndPublications/News/OSBANews/Pages/Sixth-Circuit-overrules-20-year-old-precedent-Federal-booking-photos-largely-exempt-under-FOIA.aspx.
[6] Detroit Free Press v. United States Department of Justice, Harvard Law Review (Jan. 5 2017), http://harvardlawreview.org/2017/01/detroit-free-press-inc-v-united-states-department-of-justice/.
[7] 5 U.S.C. § 552 (b)(7).
[8] Detroit Free Press, Inc v. U. S. Dep’t of Justice, 73 F. 3d 93, 97 (6th Cir. 1996).
[9] Detroit Free Press, Inc v. U.S. Dep’t of Justice, 829 F.3d 478, 481 (6th Cir. 2016).
[10] Id. at 481-83.
[11] Id. at 480.
[12] Id. at 482.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 482-83.
[18] Id. at 487-90.
[19] Id. at 491.
[20] Id.
[21] Id. at 492-93.
[22] Id. at 494.
[23] Gerstein, supra note 1.
*Featured image by the Taos, New Mexico Police Department