I am pleased to share that my article with Cassandra Burke Robertson entitled "Adopting Nationality" recently appeared in the Washington Law Review. It is the latest in our series of articles on citizenship that have been published in the NYU Law Review (2019), Vanderbilt Law Review (2020), North Carolina Law Review (2021), and Texas Law Review (2022). This is the final abstract:
Contrary to popular belief, when a child is adopted from abroad by an American citizen and brought to the United States, that child does not always become an American citizen. Many adoptees have not discovered until years later (sometimes far into adulthood) that they are not actually citizens, and some likely still do not know. To address this problem, the Child Citizenship Act of 2000 (CCA) was enacted to automate citizenship for certain international adoptees, but it does not cover everyone. Tens of thousands of adoptees still live under the assumption that they are American citizens when, in fact, they are not. While laws have been proposed to fill the gaps left by the CCA, none have yet passed.
This Article argues that children adopted by U.S. citizen parents are entitled to permanence of nationality. It explores how state and federal authorities deliberately and irrevocably sever the ties of transnational adoptees to their families of origin to promote the interests of the adoptive family. The U.S. adoption framework prioritizes the unity of the adoptive family over maintaining connection to the child's family of origin. Adoptees often struggle to understand and define their identity on various levels, including their personal, national, and ethnic identities. Citizenship precarity adds an extra layer of psychological difficulty for transnational adoptees, making the child's position in society even less secure. If a child can be adopted into an American family but not accepted as a member of the American nation, then the child will never have the full stability that adoption is intended to offer.
The United States can and should follow through on the promise of permanence to transnational adoptees by awarding them the status of U.S. nationals. This status would enable them to remain in the United States, travel on a U.S. passport, and fully participate in American society. The United States Code already contains an overlooked provision that awards nationality status to those who, although not formally citizens, nevertheless owe permanent allegiance to the country. Interpreting this statutory language to cover adoptees who do not otherwise qualify for formal citizenship reflects the reality that children adopted into American homes are permanent members of this society. Indeed, we argue that the right to nationality is grounded in the Equal Protection and Due Process Clauses of the United States Constitution. Recognizing nationality will ensure that adoptees—who were brought to the United States through no choice of their own—cannot be removed from it.
Today the U.S. Court of Appeals for the D.C. Circuit concluded the Food & Drug Administration failed to conduct the proper analyses before rejecting some vaping product applications. The court's unanimous decision in Fontem US v. FDA upheld the FDA's denial of Fontem's application to market flavored vaping products, in line with prior D.C. Circuit precedent, but rejected the FDA's denial of Fontem's applications for unflavored products, and became the second circuit court of appeals to accuse the FDA of a "surprise switcheroo" when reviewing vaping product applications. This is all further evidence that the FDA has a vaping problem.
The FDA regulates vaping products—also known as ENDS or "electronic nicotine delivery systems"—because it "deemed" them to be tobacco products in 2016, subjecting them to regulation under the federal Tobacco Act. As a consequence, all such products that were not on the market by 2007 must obtain the FDA's approval in order to be sold legally. Because of how narrowly the FDA defines individual products, this has meant the FDA has had to process applications for thousands and thousands of products, and in its rush to process these applications, the FDA appears to have cut some corners.
Fontem, which markets vaping products under the Blu and myBlu labels, sought to challenge the FDA's denial of several of its products. Among other things, Fontem accused the FDA of failing to perform the required analyses before issuing its denials, and at least with regard to Fontem's unflavored products, the D.C. Circuit agreed, finding the FDA failed "to engage in the holistic public health analysis required by the statute."
From Judge Rao's opinion for the court (joined by Judge Walker and Senior Judge Ginsburg):
With respect to Fontem's unflavored products, the FDA also denied Fontem's applications on the public health ground. While the FDA identified multiple "deficiencies," it failed to analyze the tradeoffs necessary to make a public health finding. Nor did the agency explain how the specific deficiencies relate to its overall conclusion that Fontem failed to demonstrate its unflavored products were appropriate for the protection of public health. The agency's denial therefore failed to comport with the requirements of the Tobacco Control Act.
In denying Fontem's unflavored products, the FDA relies solely on the public health ground. The FDA could have promulgated regulations imposing consistent requirements on the composition and manufacturing of tobacco products. Had the agency done so, Fontem's failure to meet those standards would be an independent and sufficient ground for denying the applications, regardless of the overall public health consequences of Fontem's products. But the agency has not exercised its regulatory authority. Because the FDA has chosen to proceed application by application under the public health ground, it must undertake the holistic inquiry required by the statute. . . .
Instead of making an overall assessment that Fontem had not shown its products were beneficial to the public, the agency identified five highly technical deficiencies. But nothing in the denial order explains how the deficiencies relate to the overall public health consequences of Fontem's unflavored products. And despite the express statutory requirement that the agency consider the "risks and benefits to the population as a whole," including the "increased or decreased likelihood that existing users of tobacco products will stop using such products," 21 U.S.C. § 387j(c)(4), nowhere in the denial order did the FDA address the potential benefits of Fontem's products for the public at large. Nor did it consider the possibility that existing users of combustible tobacco products such as cigarettes would reap health benefits by transitioning to Fontem's vaping products. . . .
And, as noted above, the D.C. Circuit found that the FDA has had difficulty following its own guidance about what sorts of information and analyses companies must submit when seeking product approval.
The FDA's failure to correctly apply the public health inquiry to Fontem's unflavored products led it to make another serious error. In its initial deficiency letter, the FDA requested certain information from Fontem, thereby indicating such information would be sufficient for the agency to approve Fontem's products. Cf. 21 U.S.C. § 387j(c)(3) (providing an application denial "be accompanied by a statement informing the applicant of the measures required to remove such application from deniable form"). But in several instances, the FDA changed its tune in the denial order, reproaching Fontem for failing to provide information the agency had never explicitly sought. With respect to Deficiency 2, for instance, the FDA initially requested a "scientific justification for why consecutive puffing does not cause an increased risk of user injury" and "[t]he target value, upper and lower range limits, and test data" for the studies employed by Fontem. But after Fontem provided that information, the FDA faulted Fontem for failing to provide "scientific justifications" for its puff counts or the "maximum values" of "aerosol temperature measurements." Similarly, with respect to Deficiency 3, the FDA's letter requested information about the quality control processes at one facility. Yet the denial order faulted Fontem for failing to provide information about the processes at a different facility.
Shifting the regulatory goalposts without explanation is arbitrary and capricious. By indicating in its deficiency letter that Fontem could resolve issues with its applications by providing specific information, the FDA represented such information would be sufficient to secure approval. By later requiring different information, the agency "pull[ed] a surprise switcheroo." Env't Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005). The lack of consistency and notice to regulated entities is another unlawful consequence of the agency's departure from the holistic public health inquiry.
The D.C. Circuit upheld the FDA's denial of Fontem's applications for flavored products, likely (in part) because of prior D.C. Circuit precedent affirming the FDA's conclusion that "flavored products present greater risks than other tobacco products" in that they may be more attractive to non-tobacco users, and youth in particular. In Prohibition Juice v. FDA, a prior D.C. Circuit panel broadly embraced sweeping (although not particularly well substantiated) claims about the appeal of flavored vaping products to youth and paid little attention to the FDA's need to consider the negative health consequences of making non-combustible products less attractive to current and prospective smokers. While this may have boxed in the current panel with regard to flavored vaping products, largely because (as the panel noted) the FDA's analysis of Fontem's flavored products was "consistent . . . with the balance" struck in that prior opinion, it did not prevent the court from carefully scrutinizing the FDA's treatment of unflavored products.
Despite the FDA's partial victory in Fontem, this decision is another potentially significant setback for the agency. The FDA is facing multiple lawsuits challenging its product application denials, and while it has prevailed in some cases, it has had significant losses in the Eleventh and Fifth Circuits, with another significant case pending before the Fifth Circuit sitting en banc.
And while the FDA may not be eager for Supreme Court review of its vaping product handiwork, these cases have created a circuit split over how the FDA's application denials should be evaluated, making it more likely a vaping product application denial eventually makes its way to One First Street. And insofar as these cases shine a light on the FDA's inconsistent and arbitrary decisionmaking, one might wonder whether these cases could influence how courts evaluate other controversial policy decisions the FDA is currently trying to defend in court.
From yesterday's Fifth Circuit order in In re Mesaros, decided by Judges Edith Brown Clement, Kurt Engelhardt, and Andrew Oldham:
Respondents allege that on October 30, 2020, they were travelling through Texas in a Biden-Harris tour bus. According to respondents' complaint, Delores Park, Joeylynn Mesaros, and Robert Mesaros (collectively "petitioners") coordinated with others to form a "Trump Train" that surrounded the Biden-Harris bus, blocked its path, and forced it to slow down to 15-25 miles per hour. One participant in the "Train" (not a party to these mandamus proceedings) allegedly side-swiped another vehicle. On respondents' telling, the "Trump Train" caused "significant psychological harm" and resulted in the cancellation of the remaining Biden- Harris campaign events in Texas.
Respondents filed a complaint asserting the "Trump Train" amounted to an actionable conspiracy to thwart, by intimidation, their lawful support of the Biden-Harris campaign. For their cause of action, respondents relied on 42 U.S.C § 1985(3)'s Support-or-Advocacy Clause. Congress passed the Support-or-Advocacy Clause in the Ku Klux Klan Act of 1871. It provides, in relevant part, that one "injured in his person or property" by "two or more persons conspir[ing] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President … may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."
Petitioners moved to dismiss respondents' claim on the ground that the Support-or-Advocacy Clause only supplies a cause of action against conspiracies that involve state action or are motivated by racial animus, which respondents did not allege. The district court denied the motion ….
Generally speaking, such denials of motions to dismiss aren't immediately appealable—the defendants have to wait until a final judgment (for instance, after a trial, if the case goes that far), and then appeal if they have lost at that point. Nonetheless, there are exceptions to that principle:
In this Nov. 30, 2005 file photo, an anti-abortion supporter stands next to a pro-choice demonstrator outside the U.S. Supreme Court in Washington. (AP Photo/Manuel Balce Ceneta)
In an article published on the Federalist Society website, pro-life conservative legal scholar William Hodes argues that any such federal legislation would be unconstitutional, because it would exceed the scope of congressional power:
There are weighty legal, moral, medical, and political or policy arguments both for and against abortion, at different points during the gestation period and under varying maternal and fetal circumstances. But those are not the stuff of constitutional adjudication. The point of Dobbs, as the Court repeatedly said, was to return those arguments to the political process, meaning "to the people and their elected representatives." Moreover, the Court repeatedly made clear its assumption that those elected representatives would be state legislators….
The chief reason that the proposed federal law cannot survive a constitutional challenge is that Congress lacks power to punish individual abortionists for plying their trade….
The government of the United States is a government of limited, enumerated powers. It has no power under the Fourteenth Amendment to criminalize the actions of individuals unless they are state or local government operatives or can be said to be acting "under color of state law." To be sure, non-government actors can become state actors by conspiring with state or local officials or acting on their behalf, at their direction, or in response to their coercion.
But mere government "facilitation" or "encouragement," such as, perhaps, the payment of Medicaid dollars, is not enough to turn private action into state action, unless it can fairly be said that the action—the abortion—is attributable to the state….
Although the state action doctrine prevents Congress from passing laws regulating or criminalizing private conduct pursuant to its Fourteenth Amendment enforcement power, there are many federal statutes, both criminal and civil, that do directly prohibit private actors from interfering with or violating the federal rights of others. Congressional power to pass those laws is derived from the Necessary and Proper Clause as applied to bankruptcy, federal taxation, patents, the post office, and much more. But the default go-to source of power is the Interstate Commerce Clause—frequently the constitutional elephant in the room…..
In the 1995 case of U.S. v. Lopez, for example, the Supreme Court invalidated the Gun-Free School Zones Act of 1990, which Congress had passed relying solely on the authority of its Commerce Clause power. A narrow majority of the Court held that talismanic invocation of the Commerce Clause was not enough: the mere possession of a firearm near a school could not "affect" any commercial or economic activity, even in the aggregate, although it is easy to list almost endless possible follow-on economic consequences of guns in schools, such as an increase in overall medical costs. But those consequences could just as easily follow from the commission of almost any crime, which demonstrated that the 1990 Act was a "police power" regulation, pure and simple. And the Constitution does not assign police powers to the federal government that it can bring to bear against individual citizens.
For the same reason, the Supreme Court invalidated the part of the Violence Against Women Act of 1994 that allowed a victim of sexual assault to sue her attacker, whether the attack was perpetrated under color of state law or not. In the 2000 case of U.S. v. Morrison, the Court again found that punishing the actor in such situations was beyond the scope of Congress's Commerce Clause power, because the act itself had no economic or commercial element to it.
Perhaps most significant was the 2012 decision in National Federation of Independent Business v. Sebelius, which famously (or infamously) upheld the Affordable Care Act (Obamacare) requirement that individuals buy a certain level of pre-paid health care services as a valid exercise of Congress's power to tax. But the Court only addressed the tax question because it had first held that Congress had exceeded its power under the Commerce Clause.
That initial part of the NFIB decision had major implications for the future development of the Court's approach to the Commerce Clause, because although the economic and commercial impact of the individual mandate could not have been clearer, Chief Justice Roberts cogently explained that Congress was not engaging in any regulation of commerce. It was imposing a health and welfare regulation pursuant to a police power it did not have, and trying to pass it off as regulating commerce simply because so much money was involved.
Put Lopez and Morrison and NFIB together, and the pathway to invalidating a potential federal 15-week abortions restriction as an exercise of the Commerce Clause power is easy to see.
I agree with Hodes' conclusion and with most of his arguments. It's worth noting that, if a federal law banning abortion is beyond the scope of Congress' power, the same is also true of laws proposed by Democrats mandating nationwide protection for abortion rights, overriding contrary state laws. Before Dobbs, such a law might have been defensible as a tool for enforcing individual constitutional rights protected by the Fourteenth Amendment. But under Dobbs, there is little, if any such right, remaining, and therefore Congress could not legislate to protect it using its Section 5 power to enact "appropriate" legislation to enforce the Fourteenth Amendment. There is likely an exception for laws protecting individuals' rights to travel out of state to get an abortion, a right Justice Kavanaugh emphasized remains protected in a key concurring opinion in Dobbs. The same might be true for cases where an abortion is needed to protect the life of the pregnant woman.
I would, however, qualify Hodes' argument in three ways. First, I am not as convinced as he is that Dobbs limits abortion regulation to the states. I think the Court simply did not address the extent to which (if any) Congress has power in this area.
Second, I believe current Supreme Court Commerce Clause precedent (which I believe is badly wrong on some points) leaves more room for federal abortion regulation than Hodes allows, though I also think it likely that the Court might overrule or pare back the relevant precedent if the issue comes up. I covered some of these issues here:
Under cases such as Gonzales v. Raich (2005), the Supreme Court has held that Congress' power to regulate interstate commerce includes the authority to restrict almost any "economic activity," so long as it has a "substantial effect" on interstate trade. And [in Raich] "economic activity" is defined very broadly to include anything that involves the "production, distribution, and consumption of commodities." That definition allowed the Court to use the Commerce Clause to uphold a federal ban on the possession of marijuana that had never crossed state lines or been sold in any market (even an intrastate one). Nearly all abortions involve the "consumption" and "distribution" of commodities, such as medical supplies. In addition, most abortions qualify as "economic" transactions because doctors, nurses, and others are paid to perform them.
One could argue that a federal law banning or severely restricting abortions isn't "really" aimed at regulating interstate commerce. The true motive would be to restrict abortion regardless of whether it involved interstate transactions or not. But much the same can be said for the marijuana ban upheld in Raich, and other federal laws enforcing the War on Drugs. They go far beyond targeting actual interstate trade in drugs, and instead forbid even in-state distribution and possession of illegal narcotics.
If, as is likely, the interstate abortion market expands in the wake of a Supreme Court decision overruling Roe [update: it has indeed done so] Congress could claim that suppression of intrastate abortions is necessary in order to enforce restrictions on those that involve crossing state lines. If abortion is banned in State A, but legal in neighboring State B, that creates an incentive for residents of A to cross into B in order to get abortions—even if the feds enact a ban on such crossing. That ban might be more effectively enforced if abortion were illegal in B as well as A…..
The Commerce Clause rationale for abortion restrictions might not apply to abortions that are performed on a noncommercial basis by staff who provide their services for free. But such cases are only a small percentage of the total. Moreover, in Raich, the Court upheld the ban on Angel Raich's possession of marijuana even though the producers had in fact provided it to her for free. The theory was that even such completely noncommercial production and distribution of an illegal drug could impact the interstate market.
These…. Commerce Clause arguments may strike some readers as the kind of sophistry that gives lawyers a bad name. I sympathize with that reaction! I hate these arguments myself, and have long argued that Raich is a terrible decision that should be overruled. But this is exactly the sort of reasoning that prevailed in Raich, and provides a constitutional rationale for much of the federal War on Drugs.
As Hodes points out, Justice Clarence Thomas (a man not normally considered a champion of abortion rights!) has suggested (in a 2007 concurring opinion) he believes federal abortion restrictions may go beyond the scope of congressional power. And I think there is a good chance Thomas and at least some other conservative justices would vote to invalidate such laws on federalism grounds, if the issue comes before them. It's even possible such a law would be invalidated by a coalition of conservative justices who believe it exceeds the scope of federal power, and liberal ones who vote against on individual rights grounds (because they are willing to overturn or limit Dobbs, a precedent they have little respect for).
Finally, for reasons I summarized here, Congress could potentially use its Spending Clause power to restrict abortion by conditioning federal grants to state and local governments on the latter's willingness to enact abortion restrictions. Of course, states could potentially refuse the grants (and associated conditions), and many blue states might well do exactly that.
Even if a Republican wins the presidency in 2024, it's far from clear that any federal abortion ban will be enacted anytime soon. Such a law would, among other things, likely have to overcome a filibuster in the Senate (or GOP senators would have to change the filibuster rules). But the idea of a federal ban is mainstream enough to be taken seriously. Thus, it's also worth considering the constitutional case against it. Hodes has performed a useful service in summarizing it. And, as a pro-life conservative, he cannot easily be accused of just bending the law to support his policy preferences.
Earlier this year, President Biden issued an Executive Order seeking to "modernize the regulatory process to advance policies that promote the public interest and address national priorities." Among other things, this EO called upon the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) to revise OMB Circular A-4, which provides agencies with guidance as to how they should conduct regulatory analysis when considering and proposing new regulations.
As called for in the EO, OIRA has proposed a range of revisions to Circular A-4 to update its requirements. Many of the changes are welcome revisions. Others, however, have prompted concerns, particularly with regard to how the revisions would affect cost-benefit analyses of proposed agency regulations.
On Monday, all former Presidents of the Society for Benefit-Cost Analysis submitted a letter to OIRA identifying concerns with the proposed revisions that, in their view, could unnecessarily politicize cost-benefit analyses, and reduce the value of centralized executive branch review of agency regulations. They write:
Circular A-4 (OMB 2003) provides guidance to agencies for considering the impacts of alternative regulatory actions as required by Executive Order 12866 (Clinton 1993). That order directs agencies to "promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people." It further directs agencies to "assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating," and to "select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity), unless a statute requires another regulatory approach" (Clinton 1993, Sec.1.a). It recognizes that all significant impacts should be considered, although some may be difficult to quantify or monetize.
E.O. 12866 and Circular A-4 have proven durable across different presidential administrations2 because they are based on objective and nonpartisan principles and are designed to provide information to policymakers on an important dimension of policy decisions—the efficiency of different approaches to achieving policy goals. It is appropriate to update the Circular to reflect new data and advancements in economic understanding of regulatory impacts over the last 20 years, and we commend OMB for its efforts. However, to retain the Circular's acceptance and stability, it will be important not to stray from widely accepted principles and methods.
The proposed revisions contain worthwhile updates, but also some guidance that deviates from the best available current economic science. To the extent that the Circular is perceived as not being neutral, or as embedding practices that favor certain policy preferences, it risks the stability of the longstanding bipartisan support for regulatory impact analysis. . . .
Some of the proposed changes depart from widely accepted practices, principles, and evidence, and could be perceived as favoring particular policy preferences. If that is the case, a future administration with a different set of policy preferences would likely replace this circular with another designed to support its preferred policies, leading to wide swings in regulatory actions. We believe that after 20 years, revisions to Circular A-4 are appropriate and timely. However, we also believe that the Circular should have bipartisan support and not be subject to revision with each incoming administration.
Among the particular concerns raised in the letter is the proposal to weight cost-benefit analyses to account for particular normative concerns, such as the potential distributional consequences of proposed regulations. While consideration of such concerns is appropriate when making policy, the letter writers warn, it distorts the role of cost-benefit analysis to embed such value judgments in what is supposed to be a neutral assessment of a regulatory measure's expected impacts.
Two of the letter's signatories, Susan Dudley and W. Kip Viscusi, make a similar point in a WSJ op-ed:
OMB's draft revisions to longstanding guidance stray from widely accepted principles and methods in several areas, including by assuming individuals don't act in their own best interests (and that regulators know better), by counting global effects instead of distinguishing between domestic and foreign ones, by "weighting" impacts by income to exaggerate their benefits to low earners, and by lowering the discount rate to create a better benefit-cost picture of costly regulations that promise future benefits.
Each of these changes would embed values other than economic efficiency in the benefit-cost analysis, rather than encourage career staff to present the best evidence and leave value judgments to politically accountable officials. OMB's draft opens the door to putting scientific-sounding numbers on inherently qualitative values like social justice, environmental stewardship and human dignity. That would vitiate the transparency and integrity of regulatory-impact analysis, which for decades has served as a ballast across administrations with widely varying policy objectives.
The argument here is that cost-benefit analyses should inform regulatory policy decisions, not determine them, and for cost-benefit analyses to play that role, they should not embed contested normative assumptions.
For more on the proposed changes to Circular A-4 and other Biden Administration proposals to modernize regulatory review, check out the Yale Journal of Regulation Notice & Comment Blog's symposium on the subject, which contains a range of views from multiple perspectives.
I recently finished reading Carson McCullers' great 1940 novel, "The Heart is a Lonely Hunter"—a real masterpiece, by the way, and one I highly recommend—and I was startled to read the following passage, which I pass along to mark the 60th anniversary (yesterday) of the March on Washington.
The context: the book describes life in a small town in the Deep South in the 1930s through the eyes of five main characters: John Singer, a deaf-mute employed as a jewelry engraver; Mick Kelly, a 13 year-old girl; Jake Blount, a drifter/labor agitator; Biff Brannon, the owner of a local cafe; and Benedict Copeland, an elderly African-American doctor.
Copeland is consumed by bitterness and rage—rage at what white society had done and was doing to his people, rage at his fellow blacks who submit to these outrages, and rage at his own inability to alleviate their suffering or effect meaningful change. He and Blount, the labor agitator, confront one another towards the end of the book, after a particularly searing episode of racial violence at the local jail. They both agree: conditions have become intolerable, and something must be done. No more "prudence." Copeland says:
In the face of brutality I was prudent. Before injustice I held my peace. I sacrificed the things in hand for the good of the hypothetical whole. I believed in the tongue instead of the fist. As an armor against oppression I taught patience and faith in the human soul. I know now how wrong I was. I have been a traitor to myself and to my people. All that is rot. Now is the time to act and to act quickly. Fight cunning with cunning and might with might.
"How?" Blount asks. Copeland continues:
By getting out and doing things. By calling crowds of people together and getting them to demonstrate. … I have a program. It is a very simple, concentrated plan. I mean to focus on only one objective. In August of this year I plan to lead more than one thousand Negroes in this country on a march. A march to Washington. All of us together in one solid body. If you will look in the cabinet yonder you will see a stack of letters which I have written this week and will deliver personally.
Blount wants no part of it:
That's not the right angle at all. In the first place, you'd never get out of town. They'd break it up, saying it's a menace to public health—or some such trumped-up reason. But even if you got to Washington it wouldn't do a bit of good. The whole notion is crazy. … Who cares whether you and your thousand Negroes straggle up to that stinking cesspool of a place called Washington? What difference does it make? What do a few people matter—a few thousand people, black, white, good, or bad? When the whole of our society is built on a foundation of lies?
Pretty amazing, for 1940. In a book written by a previously-unknown white Southern woman who was, at the time she submitted the book for publication, all of 22 years old!
And at the risk of gross over-simplification, I think it fair to say that Copeland's idea ultimately prevailed—people did care, it did matter, and it accomplished considerably more than a bit of good.
In VSMSQ Structural Engineers, LLC v. Structural Consultants Assocs., Inc., decided last month by the Texas Court of Appeals (Houston), in an opinion by Justice Richard Hightower, joined by Justices Peter Kelly and Julie Countiss, SCA alleges that ex-SCA employees formed VSMsq, and used SCA's proprietary information to compete with SCA. Both companies are structural engineering firms, and SCA argued, among other things, that VSMsq engaged in tortious misappropriation by "posting of the images of buildings engineered by SCA on VSMsq's website for the purpose of promoting Appellants' engineering services."
Appellants sought to get the case thrown out under the Texas Citizens Participation Act—Texas's "anti-SLAPP" statute:
The TCPA "protects speech on matters of public concern by authorizing courts to conduct an early and expedited review of the legal merit of claims that seek to stifle speech through the imposition of civil liability and damages." … The TCPA provides a mechanism for dismissal of a "legal action" that is "based on or is in response to" … [among other things, a] party's exercise of its right of free speech….
The TCPA excludes commercial speech. But this commercial speech exclusion itself has an exclusion, which provides that the TCPA does apply in (emphasis added)
a legal action against a person arising from any act of that person, whether public or private, related to the gathering, receiving, posting, or processing of information for communication to the public, whether or not the information is actually communicated to the public, for the creation, dissemination, exhibition, or advertisement or other similar promotion of a dramatic, literary, musical, political, journalistic, or otherwise artistic work, including audio-visual work regardless of the means of distribution, a motion picture, a television or radio program, or an article published in a newspaper, website, magazine, or other platform, no matter the method or extent of distribution.
And the court concluded that Appellants' use of the building images was commercial speech, and that the "artistic work" exception didn't apply:
It is not every day that a government minister writes to an American university president demanding that a book be immediately removed "from the curriculum of any of its courses" and "conduct a thorough review of the academic materials" used in its classes. But such is the demand that Israeli Minister of Diaspora Affairs and Combating Antisemitism has issued to President Christopher Eisgruber of Princeton University.
In recent days it has come to the attention of the national media in both the United States and Israel that an assistant professor in the Department of Near Eastern Studies at Princeton University is assigning a controversial book to students who will take a seminar at the university in the upcoming fall semester. The book in question is The Right to Maim by Rutgers University professor Jasbir Puar. The book is published by Duke University Press and is billed as an application of "Foucauldian biopolitics" to the Israeli-Palestinian conflict.
Critics see it a bit differently. Ronald Lauder of the World Jewish Congress called on Princeton to "cancel the course in question immediately" and "fire its professor" for fomenting "hate speech." International Legal Forum CEO Arsen Ostrovsky characterized the book propagating "a modern-day antisemitic blood libel" and should be banned from the class in order to avoid creating "hostile and discriminatory environments for students, such as one that will inevitably be created as a result of the use such antisemitic and inflammatory material." The university has yet to comment.
Unfortunately, the demand that students be protected from problematic books is an age-old one and is once again a live one in the United States. Such efforts to restrict access to disturbing books has most recently focused on primary and secondary education, where the state has an unusually strong hand in setting the approved curriculum and schools must grapple with how and when difficult subjects should be introduced to minor students. It should not be surprising, however, that such demands might make their way into universities as well.
Activists on both the left and the right have insisted that universities should be made into safe spaces where students can be sheltered from disturbing and offensive speakers, materials, and ideas. Professor Stephen Kershnar is still banned from setting foot on the SUNY-Fredonia campus because he talked about his book, Pedophilia and Adult Child Sex: A Philosophical Analysis, on a podcast. It is not hard to imagine a university barring professors from assigning that book in their classes. With universities trying to stay in the good graces of conservative state legislatures, some university presidents might be tempted to prohibit their faculties from assigning Kimberle Crenshaw or Ibram Kendi to their students. With the controversy at Hamline University and the attack on Salman Rushdie fresh in mind, might a university president think it a safer course to ban professors from assigning books visually depicting or satirizing the Prophet Muhammad? If Charles Murray can be shouted down, can a professor assign students to read The Bell Curve? The controversy surrounding this seminar at Princeton might well be a sign of things to come.
We have had this fight before. Some of the earliest fights over academic freedom in American universities involved university officials prohibiting professors from assigning controversial books in their classes. In 1880, the New York Times breathlessly covered the battle between pioneering sociologist William Graham Sumner and Yale University President Noah Porter over a book assignment. Sumner had assigned Herbert Spencer's The Study of Sociology in his class. Sumner and Spencer were leading "Social Darwinists" in the late nineteenth century, and Porter had strong views about the "so-called science" of sociology. Sumner threatened to resign over Porter's "interference with my work," and they eventually found a compromise. In the early twentieth century as state legislatures debated whether evolution could be taught in public schools, a dean at the University of Tennessee rescinded a professor's book order and fired the professor for applying the theory of evolution to humans.
In response to such controversies, a fundamental demand of the emerging movement in favor of academic freedom in the United States was the insistence that university officials not interfere with how professors taught their classes. The 1940 Statement of Principles on Academic Freedom and Tenure endorsed by the American Association of University Professors and the Association of American Colleges laid out three core principles of academic freedom. One was that "teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject." That commitment has found its way into university policies across the country. We may well soon see whether the courts are also willing to recognize this as a First Amendment principle.
As a result, the right of university professors to assign their preferred books to a class without interference from university administrators is one of the fundamental features of academic freedom in the United States. The critical consideration from the university's perspective is not whether an assigned book is controversial, hateful, or wrong, but whether it is germane to the class being taught. If a book is relevant to the subject matter, it is up to the professional judgment of the faculty member as to whether it should be used.
The professor might be wise or unwise in making such an assignment, and a professor might reasonably come in for public criticism for how they design or run their classes. But criticism must stop short of interference. If a work is relevant to the subject matter of the class, it does not matter whether others regard it as offensive or wrong. Students arriving at a university should expect that they will sometimes encounter readings and ideas that they regard as contemptible or erroneous.
The outrage surrounding the Princeton seminar is also entirely premature. Professors assign readings with which they disagree all the time. It is a routine feature of university classes to criticize and analyze controversial materials and not simply to absorb them uncritically. A professor may be justly criticized for behaving incompetently or unprofessionally if that professor attempts to present roundly rejected ideas as if they were widely accepted or tries to insulate controversial ideas from criticism. Professors should not attempt to indoctrinate or misinform students. But the mere fact that a professor assigns a controversial or mistaken text for undergraduate students to read is no reason to think that the professor is engaged in unprofessional misconduct.
It would be outrageous for a university president to unilaterally prohibit the assignment of any given book in a university class. Universities address bad ideas through discussion and debate, not through gag orders.
(This post is part of a five-part series on regulating online content moderation.)
Before we dream up policy recommendations for how the state might intervene when private content moderation runs amok, we should probably figure out whether the state can intervene at all. The First Amendment limits the power of governments to regulate online speech, either directly or indirectly by regulating intermediaries that host others' speech. Since most online content constitutes speech, does the First Amendment completely bar the state from regulating in this space?
That indeed is the view most academics seem to take. In support of that view—let's call it the "strong editorial rights" position—adherents often point to two cases. First, in Miami Herald v. Tornillo, the Court unanimously struck down a Florida law that required newspapers to print responses from political candidates who were criticized within their pages. Noting that a newspaper is more than a "passive receptacle for news, comment, and advertising," the Court explained that the choice of what "material [should] go into a newspaper … constitute[s] the exercise of editorial control and judgment." Interfering with that judgment, therefore, violated the First Amendment's guarantee of a free press. Nor could it be assumed that newspapers retained their editorial judgment just because the right-of-reply statute required them merely to append a small amount of additional material. Since newspapers offer only a limited number of physical pages, printing mandatory rebuttals would "tak[e] up space that could be devoted to other material the newspaper may have preferred to print." Let's call this the "space constraints" principle.
Second, in Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, the Court held that private organizers could not be compelled to include groups or messages in a public parade that they disapproved of since doing so would alter the overall message the organizers wished to convey. Eugene refers to this as the "coherent speech product" doctrine. If an entity hosts or distributes a collection of third-party content that, together, conveys an overall theme or message, then that hosting or distribution itself becomes a speech act, and the entity becomes a speech participant. The state, therefore, cannot compel the entity to host or distribute additional content if doing so would alter the overall message the entity seeks to express.
The strong editorial rights camp believes that forced carriage laws aimed at social media companies are constitutionally infirm for the same reasons. Social media companies exercise "editorial control and judgment" in deciding which user content to allow and which content to remove. Moreover, in deciding to permit certain viewpoints on their platforms (e.g., "trans women are women") while proscribing other viewpoints (e.g., "A man cannot get pregnant"), these companies are expressing an overall theme or message (e.g., trans pride or pro-LGBT sentiment) and are therefore creating a coherent speech product. Requiring them to permit trans-critical speech would effectively prevent them from communicating their preferred message and, thus, would violate their First Amendment rights.
By contrast, critics of the strong editorial rights position—let's call them the "weak editorial rights" camp—believe that certain forms of forced carriage regulation may indeed be constitutional. It isn't that these critics necessarily disagree with Tornillo or Hurley, but they aren't convinced that those precedents apply to social media. Eugene's article, Treating Social Media Platforms Like Common Carriers?, makes the skeptics' case in far greater detail, so I'll highlight just a couple distinctions here.
This is an employment case, in which Plaintiff Joshua Diemert alleges that Defendant City of Seattle, his former employer, discriminated against him and subjected him to a racially hostile-work environment because he is white. Diemert alleges the City retaliated against him when he complained about the way that he was treated, and that when he could no longer take it, he was forced to resign….
The Court accepts all facts as true from the complaint and construes them in the light most favorable to Diemert [as is required in considering a motion to dismiss]….
Diemert began working as a program intake representative for the City of Seattle, Human Services Department ("HSD") in January 2013. Although he does not describe his racial background in the complaint, Diemert alleges the City classified him as white. He claims his race became an "albatross around his neck" as a "deliberate outgrowth of the City's Race and Social Justice Initiative ('RSJI')." In effect since 2005, RSJI is a city-wide program that requires race-based thinking and decision-making, which "is based on the foundational premise that American society has 'internalized and normalized' culture and practices that are 'rooted in white supremacy, colonialism, classism, Christian hegemony, sexism, heterosexism, physical ableism, [and] mental health oppression[.]"
Diemert attended mandatory RSJI trainings. He alleges RSJI applied differently to City employees depending on their racial identity, and that it divided employes into two groups: "Black, Indigenous and People of Color (BIPOC)," on the one hand, and "white folks," on the other. Diemert alleges he experienced severe discrimination and harassment because of the City's pervasive focus on race and "supposed 'white supremacy,'" and that he was consistently treated worse than his BIPOC colleagues.
