The Circuit: Washington University Undergraduate Law Journal, Volume 2, Issue 1

THE CIRCUIT WAS H I N G T O N U N I V E R S I TY U N D E R G RAD UAT E LAW J O U R NAL

VOLUME 2, ISSUE 1

SPRING 2012

THE CIRCUIT WA S H I N G TO N U N I V E R S I T Y U N D E R G R A D U AT E L AW J O U R N A L

VO LU M E 2 , I S S U E 1 SPRING 2012

The Circuit: Washington University Undergraduate Law Journal is an interdisciplinary publication comprised of student essays that grapple with law, legal concepts, institutions or issues from any time period or place. The mission of the publication is to promote greater understanding of the legal puzzles that face or have faced the nation and globe. It aims to reward undergraduates beyond the classroom for their intellectual explorations and advancement of law-related knowledge.

We welcome essays written for any course, from any semester, from all Washington University undergraduates, regardless of academic division, major, minor or year.

Essays are evaluated on the following criteria: Quality of analysis Clarity of structure Originality of thought Concision of language Voice Copyright 2012 The Circuit: Washington University Undergraduate Law Journal Volume 2, Issue 1 All rights reserved.

Printed by Midtown Printing Compnay For more information or to request issues of the print version: circuitjournal@gmail.com www.prelawsociety.wustl.edu/circuit.html

Contents Foreign Tongues

Differing Approaches to Hate Speech Criminalization in International Law David Hoffman

Help Beyond Reach

Attempts to Address Battered Immigrants’ Barriers to Help-Seeking in the United States Anna Austenfeld & Kaitlin Freedman

Don’t Oppress the Right to Dress Hobbes, Locke and the Philosophy Behind Banning Religious Garments Daniel Flaherty

Crops as Intellectual Property International Copyright Compliance and Protection in Asia and South America Christine Diepenbrock

By the Powers Vested in Me

Online Ministers, the Legitimacy of Marriage Ceremonies and the First Amendment Divya Moolchandani

Tweaking Toxic Torts

Using a Modified Market Share Approach to Better Address Environmental Externalities Will Bucher

Brutality, Betrayal and Baseball Conformity and the Needs of Americans in Court Decision Making Ariel Dobkin

6 39 53 61 75 81 93

Editorial Board Editor-in-ChieF Aaron Kacel

Associate Editors Jun Yoon Luke Schiel Tiana Walden

Line Editors Laura Dietrich Erin Amato Max Silver John Rostom Curran Hennessey

Layout Editors Skylar Shyu John Rostom Lianna Cohen Xiao “Betty� Wang

Faculty Advisor

David T. Konig, Professor of History and Law

Donors College of Arts and Sciences Office of Undergraduate Research Legal Studies Program Student Union

Editor’s Note Dear Reader, On behalf of the editorial board, I am pleased to present the second issue of The Circuit. After a successful inaugural year marked by critical learning, we are excited to share with you the next step in the evolution of our publication.

In each issue, we hope to offer you essays rich with discussion on complex and interesting legal topics. The essays in this issue are of no exception. They tackle ethical, moral and philosophical questions at the heart of today’s most pressing issues, including hate speech, environmental pollution, intimate partner violence for immigrant women, the suppression of religious dress, online ordainment, international copyright compliance and courts acting as social tools.

Whether you read all essays or just one, we hope you leave the publication with a better understanding of how and why these issues matter in our daily lives.

We hope the essays inspire you to rethink, change or defend your views on the larger legal system in which we coexist.

I would like to thank the editors for their dedication, enthusiasm and tireless work in bringing this issue together. I would also like to thank Professor Konig for his continued support. His shrewd advice plays a fundamental role in the journal’s execution. Last, I would like to thank Dean Sharon Stahl with the College of Arts and Sciences and Ms. Kristin Sobotka with the Office of Undergraduate Research for their financial support. Thank you for continuing to believe in our work.

Without further delay, please enjoy this second issue of The Circuit.

Best,

Aaron Kacel Editor-in-Chief

Foreign Tongues Differing Approaches to Hate Speech Criminalization in International Law David Hoffman College of Arts & Sciences, 2014 Anti-Defamation League Internship Advisor: Professor David T. Konig

Abstract The following research memorandum, prepared for use by the Associate Director of the Legal Affairs Department at the Anti-Defamation League, provides a comprehensive survey and analysis of different approaches to freedom of expression, vis-à-vis the restriction of hate speech in international law. My research supports the hypothesis that the United States has the most permissive legal philosophy with regard to hate speech, allowing speech which would be criminalized in other countries. My findings highlight the inconsistency of international hate speech criminalization, the complexity of jurisdictional questions created by “cyberhate,” and the need for standardization throughout the international community.

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Here I provide a comprehensive survey and analysis of different approaches to freedom of expression, vis-à-vis the restriction of hate speech in international law.1 My research supports the hypothesis that the United States of America has the most permissive legal philosophy with regard to hate speech, allowing speech which would be criminalized in other countries. To demonstrate this finding, I will outline the differing approaches to hate speech in (I) the United States of America, (II) supranational organizations, and (III) various countries with notable hate speech regulations. The examination of these governmental entities will be subdivided in order to analyze their (a) fundamental charters and legislation; (b) hate speech jurisprudence emanating from case law; and (c) specific limitations on “cyberhate,” with a focus on the immunization of Internet service providers.2,3 The presentation of my research will highlight the inconsistency of international hate speech criminalization, the complexity of jurisdictional questions created by “cyberhate,” and the need for standardization throughout the international community.

Hate Speech in the United States Fundamental Charters and Legislation

The First Amendment of the Bill of Rights guarantees,

among other things, the right of individuals to free expression. It states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”4 The primacy given to freedom of expression in the Bill of Rights is reflective of the importance that it holds in American judicial philosophy.5 Furthermore, the judiciary has adopted the standard of “strict scrutiny” for evaluating laws which attempt to restrict speech based on content, requiring that a law must be “narrowly tailored to serve a compelling state interest” in order to be constitutional.6 This exacting standard is hard to meet, requiring that the government use the least restrictive means possible for achieving a highly important governmental interest. The “strict scrutiny” standard, therefore, makes it extremely difficult for

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government to enact content-based regulations on expression.

Hate Speech Jurisprudence

Despite using “strict scrutiny,” the Supreme Court has recognized that there are certain instances where governmental restriction of speech is constitutional. In Chaplinsky v. New Hampshire (1941), the Court stated, “there are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise constitutional problems.”7 Laws restricting the following types of expression have passed constitutional review, and are relevant to the discussion of hate speech.8

First, within narrow parameters, the Supreme Court has upheld laws which restrict libelous speech.9 In New York Times v. Sullivan (1964), the Supreme Court held that in order to be guilty of libelous speech about a public figure, group of identifiable individuals, or entity, a speaker must be proven to have acted out of “actual malice” (i.e. “with knowledge that it was false or with reckless disregard of whether it was false or not.”)10 This ruling suggests that (1) it is significantly more difficult to convict a person of libel against a public figure than it is to convict a person of libel against a private individual, and that (2) ”group libel” (e.g.. derogatory statements about a particular ethnic group) is not actionable because it does not target identifiable individuals. Therefore, hate speech cannot be banned under laws which proscribe libelous speech in the United States.

Second, under limited circumstances, the Supreme Court has upheld laws which restrict threatening speech.11 A threat is defined as “a communicated intent to inflict physical or other harm on any person or on property. A declaration of an intention to injure another or his property by some unlawful act.”12 In order to be actionable, the Court has ruled that speech must constitute a “true threat,” which requires that a “a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm.”13 This standard however, has not been interpreted in a manner which would criminalize hate speech. For example, in Virginia v. Black, the Supreme Court ruled that although Virginia could outlaw cross burning directed at specific individuals with “the intent to intimidate,” it could not use that statute to outlaw all cross burning by

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claiming that the very act of burning a cross was prima facie evidence of the intent to intimidate.14

Third, under certain conditions, the Supreme Court has upheld laws which restrict harassing speech.15 In order to be restricted under harassment law, speech “must be (1) persistent and pernicious,” (2) “must inflict significant emotional or physical harm,” and (3) “must be directed at specific individuals.”16 As with both libelous and threatening speech, overarching hateful speech about an amorphous group is not actionable under harassment law.

Fourth, under specific preconditions, the Supreme Court has upheld laws which restrict speech that incites violence. Although the categories of speech mentioned above certainly pertain to the restriction of hate speech, incitement is the category of speech which has traditionally been the most relevant to its criminalization. Therefore, the following paragraphs outline the evolution of relevant Supreme Court jurisprudence.

In Chaplinsky, the Supreme Court initially established the “fighting words” doctrine, which stated that the Court would uphold laws restricting the expression of words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”17 In this decision, the Court ruled that certain words were not entitled to protection under the First Amendment, because they are devoid of intellectual or moral value and disturb societal order. The Chaplinsky Court opined that, “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”18 This decision suggests that the public benefits drawn from the restriction of hate speech trump the speaker’s right to free expression, and potentially grants wide leeway to the governmental restriction of hate speech.19

The “fighting words” doctrine, however, was narrowed in Beauharnais v. Illinois (1952), when the Court ruled that only words presenting a “clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest” could be restricted.20 This decision removed the balancing test of Chaplinsky, and instituted the “clear and present danger” requirement—a stronger nexus between speech and violence.

The Court further diminished the government’s ability to limit

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hate speech in Brandenburg v. Ohio (1969), when it established the “imminent lawless action” test.21 This test stipulates that speech may only be restricted if “it (1) is directed (i.e. intent) to inciting or producing (2) imminent lawless action and (3) is likely to incite or produce such action.”22 This standard makes it extremely difficult for the government to limit hate speech, because it must prove that the speaker intended to motivate his audience to violence, and that such violence was likely to happen immediately.23

Additionally, in R.A.V. v. St. Paul (1993), the Supreme Court struck down an ordinance which banned speech that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”24 The Court reasoned that the ordinance constituted illegal viewpoint discrimination because it “prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”25 Furthermore, Justice Scalia wrote: “the exclusion of “fighting words” from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a “nonspeech” element of communication.”26 This reasoning reinforces the notion that under American law hate speech can only be criminalized if it is paired with immediate criminal action, because the speech itself is protected.

American jurisprudence regarding the criminalization of hate speech can be synthesized into the following standard: hate speech is only actionable if it intends to (1) incite imminent violence against a group, and is likely to do so (Brandenberg) or (2) intimidate or libel a particular individual or group of identifiable individuals (Black).27 This standard makes it exceedingly difficult for the American government to prosecute hate speech, particularly when it is disseminated over the Internet. This reality has led to an explosion of hate speech on the Internet, used by hate groups as a “safe” mechanism for disseminating their materials.

Cyberhate and Immunization

Cyberhate may be defined as “any use of electronic communications technology to spread anti-Semitic, racist, bigoted, extremist or terrorist messages or information.”28 For the most part, United States law applies the standards mentioned above to cyberhate, just as it would apply them to hate speech disseminated through any other media.29 How-

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ever, those standards apply only to the author of the cyberhate, because the government has granted broad immunity to Internet service providers. The “Good Samaritan” clause of Section 230 of the Communications Decency Act (1996) states that: (1) Treatment of publisher or speaker No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.30

This clause protects Internet service providers from criminal liability for publishing actionable cyberhate which was written by one of their users. The Courts have ruled that this immunity is broad, stating that the act “creates a federal immunity to any cause of action that would make service providers liable for information originating with a thirdparty user of service.”31 The “Good Samaritan” clause also shields service providers from civil liability if they choose to deny access to materials which they consider to be offensive. It states: (2) Civil liability No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph A.32

In summary, under American law, service providers are immunized from both criminal liability for the publication of actionable cyberhate emanating from a third party, and from civil liability if they choose to limit access to such material, or anything else they find to be offensive.

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Supranational Organizations Fundamental Charters and Legislation

Supranational organizations have taken an approach to hate speech criminalization which conflicts with the American approach, allowing governments to enact tight regulation and harsh penalties. Although the United States often belongs to these supranational organizations, it usually signs on to agreements implicating hate speech with reservations, declaring that it will maintain the interpretation of free speech promulgated by its own supreme court. The following sections will outline four principal charters of supranational organizations, which are most important to the understanding of the international approach to freedom of expression, and to the criminalization of hate speech. They will also illustrate that (a) the differing language in the various charters creates a confusing standard for the restriction of hate speech in international law; and that (b) regardless of which charter, or synthesis of charters, is used to formulate that standard, international law allows for greater governmental restriction of hate speech than American law.

Universal Declaration of Human Rights (UDHR)

In 1948 the United Nations passed the UDHR which guarantees that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.�33 Although this guarantee of free expression appears broad, Article 29 of the charter creates an overarching loophole for government to restrict the other freedoms promised in the UDHR. Article 29 states: In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.34

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The broad language of this article gives generous leeway to government to curtail personal liberties when the exercise of said liberties infringes upon ill-defined concepts such as “the rights and freedoms of others” and “morality.” This article is indicative of the international approach to hate speech regulation because it suggests that the aforementioned ambiguous concepts outweigh the right to free expression.

International Convention on the Elimination of all Forms of Racial Discrimination (CERD)

In 1965, the United Nations General Assembly passed the CERD, the first major international charter to institute provisions explicitly allowing for the governmental restriction of hate speech.35 Article 4 of the Convention states: Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof.36

Although this Article mandates that all governmental censorship of speech comply with the free expression clause of the UDHR, this provision requires governments to enforce expansive restrictions on hate

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speech.37 Under this provision, even when speech has no intent to incite racial discrimination or violence, but merely espouses “ideas based on racial superiority or hatred,” it must be criminalized. For this reason, the CERD is considered to be the most permissive international charter in terms of allowing government to limit hate speech.38

In General Recommendation 30 on the Convention, the United Nations explains the rationale behind CERD’s mandate that governments punish hate speech. The comment opens by “recalling the Charter of the United Nations and the Universal Declaration of Human Rights, according to which all human beings are born free and equal in dignity and rights and are entitled to the rights and freedoms enshrined therein without distinction of any kind.”39 For the United Nations, the concept of human dignity is the most fundamental of all rights and is violated by hate speech.40 Therefore, government must “take steps to address xenophobic attitudes and behavior towards non-citizens, in particular hate speech and racial violence, and to promote a better understanding of the principle of non-discrimination.”41 Government must restrict the lesser right of free speech in order to protect the greater right to human dignity.42 International Covenant on Civil and Political Rights (ICCPR)

Passed by the United Nations in 1966, the ICCPR is the most important international charter governing the restriction of hate speech.43 Article 19 of the Covenant guarantees the right to free expression, stating: 1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as

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are provided by law and are necessary: a. For respect of the rights or reputations of others; b. For the protection of national security or of public order, or of public health or morals.44

This guarantee of free expression has a built in exception, allowing for governmental suppression of speech when it infringes upon the “rights or reputations of others,” “public order,” or “public health and morals.”45 Once again, an international charter uses ambiguous terms and poorly defined conditions to grant governments the power to limit free expression.

Furthermore, the next provision of the ICCPR, Article 20, explicitly requires nations to restrict hate speech in certain instances, stating: 1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.46

Although this provision for the restriction of hate speech is less far reaching than CERD, it still grants governments latitudinous authority to restrict hateful expression. Unlike CERD, the ICCPR requires “advocacy” and “incitement,” and does not allow government to restrict speech that merely argues theories of racial “superiority.”47 However, the ICCPR still provides government with expansive authority to restrict hate speech, granting the power to restrict speech that incites “hostility” (i.e. hatred).48

Since the enactment of the ICCPR, the relationship between Articles 19 and 20 has been a point of great contention. However, in 1983 the United Nations declared that Articles 19 and 20 of the ICCPR are compatible, meaning that Article 20 is considered a continuation and explanation of the exceptions granted in Article 19.49 The juxtaposition of the two articles clarifies the meaning of the ambiguous terms used in Article 19 and demonstrates its intent. Therefore, courts have ruled that government may not use Article 20.2 to institute any regulations of hate speech that reach beyond the permissible scope of limitations permitted

by Article 19.3.50 Conversely, they have also ruled that Article 19.3 must be interpreted as sufficiently broad to accommodate the prohibitions detailed in Article 20.2.51

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For example, in Ross v. Canada (2000), the Human Rights Committee ruled that any law which states implemented in order to restrict hate speech, in accordance with Article 20 of the ICCPR, must also align with the exceptions to free speech granted in Article 19. It ruled that “with regard to the author’s claim under article 19 of the Covenant, the Committee observes that, in accordance with Article 19 of the Covenant, any restriction on the right to freedom of expression must cumulatively meet several conditions set out in paragraph (19) 3.”52 Government cannot invoke Article 20 in order to enact laws which trample on the freedom of expression granted in Article 19, unless those laws fall under the exceptions granted in Article 19 itself. Proposals to shrink the scope of Article 20 to only include speech which incites violence, and to extend Article 20, to restrict speech which advocates ‘racial exclusiveness’, have been rejected by the courts.53 Jurisprudence relating to the ICCPR suggests that Articles 19 and 20 are legally contiguous and nearly identical.

European Covenant for the Protection of Human Rights and Fundamental Freedoms (ECHR)

Passed by the Council of Europe in 1953, the ECHR does not contain an explicit provision for the restriction of hate speech, although it implicitly grants such power to governments.54,55 The provision granting freedom of expression states: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation

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or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.56

This provision continues the trend of supranational organizations using indeterminate language (e.g. “necessary in a democratic society”; “for the protection of health and morals,”) in order to provide governments with generous power to enforce content-based regulations on expression.

Furthermore, Article 17 of the ECHR states that: “nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”57 This similarly broad article reinforces the power of government to limit hate speech, allowing it to restrict expression which violates other rights in the convention.

Hate Speech Jurisprudence58

For the most part, international courts have upheld laws criminalizing hate speech by interpreting the ambiguous wording of the provisions outlined supra as granting government wide authority in restricting expressions of hate. Given that international courts interpret many international charters which often present differing approaches to hate speech, it is difficult to identify a uniform standard from their rulings.

However, under most circumstances, international courts rely most heavily on the ICCPR, and require government to prove that the impugned speech had the (1) intent to (2) incite a (3) legally prohibited result.59,60 These three components will be evaluated sequentially, and the analysis will demonstrate that all three have poorly defined, elastic standards, which have given broad leeway to international courts in upholding the governmental restriction of hate speech.

Intent

Most international courts have held that in order to lawfully convict an individual of hate speech, government must demonstrate that the speaker intended to convey expressions of hate. These rulings are based

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on the word “advocacy” in Article 20.2 of the ICCPR, which has been interpreted as a requirement of intent to incite hatred.61 Contrastingly, CERD does not require advocacy, suggesting that it conflicts with the ICCPR because it does not afford enough protection to free expression.

This requirement of intent is highlighted in the case Jersild v.

Denmark (1994), in which the European Court of Human Rights struck down the conviction of a journalist, who had televised a program containing hate speech in order to expose racism in Denmark. The Court stated, “an important factor in the Court’s evaluation will be whether the item in question, when considered as a whole, appeared from an objective point of view to have had as its purpose the propagation of racist views and ideas.”62 This ruling suggests that although hate speech can be limited, because it violates “the protection of the reputation of others,” it must have the intent to incite a legally prohibited result in order to be criminalized.63,64

Several judgments made by the International Criminal Tribunal for Rwanda (ICTR) also emphasize the necessity of intent in all hate speech convictions. In Prosecutor v. Akayesu (1998), the ICTR held that in order to convict someone of inciting genocide, the government must prove that said individual had the intent to incite genocide.65 Similarly, in Prosecutor v. Ruggiu (2000), the ICTR ruled that euphemisms could qualify as an incitement to genocide if that was their intent, and in Prosecutor v. Nahimana, Barayagwiza and Ngeze (2003), the Court ruled that legitimate journalism is protected from prosecution under incitement to genocide provisions, because it does not intend to spread hate.66,67 Incitement

Most international courts have required that, consistent with article 20.2 of the ICCPR, government demonstrates incitement in all cases of hate speech suppression. This requirement suggests that international courts have adopted the ICCPR as their standard for judgment, rather than the CERD. In contrast to the ICCPR, two out of the four provisions in CERD Article 4 do not demand incitement for limiting hate speech, rather, they merely require the dissemination of hatred or racial superiority theories. The non-requirement of incitement demonstrates that, once again, CERD is not as stringent as the ICCPR, and perhaps infringes upon free speech guarantees. Therefore, international courts have

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relied most heavily on the narrower ICCPR for their adjudication of hate speech cases.

Despite requiring “incitement” for the prosecution of hate speech, the international judiciaries have not established a consistent standard for “incitement.” In fact, the UN High Commissioner for Human Rights has expressed concern that the term “incitement” lacks definitional consistency in international law.68 Despite this inconsistency, however, it is clear that international courts evaluate incitement by examining the nexus between the impugned speech and the prohibited results, with a focus on the factors of (i) causation and (ii) context.69 This loose standard gives judges broad discretion in deciding whether or not particular expression incites hatred.

Causation

International tribunals often look at causation-related factors when assessing whether or not speech incites a prohibited result. However, like the standard for incitement itself, the standard for causation lacks clear definition in international law. Although courts have occasionally required government to demonstrate a direct link between the defendant’s speech and the legally proscribed outcome, international courts usually rely on various lax standards for determining causation.70 In Ross v. Canada (2000), the HRC upheld a ruling by the Canadian Supreme Court which determined that the defendant’s speech constituted incitement, based on causation-related factors. The Court reasoned that because it was “possible to ‘reasonably anticipate’ the causal relationship” between the defendant’s speech and the “poisoned environment,” he was guilty of incitement.71

In some circumstances, international courts have not even required that government demonstrates the loose nexus described in the Ross decision, embracing far more flexible standards. This point was stated explicitly in Prosecutor v. Nahimana, Barayagwiza and Ngeze (2003), when the ICTR wrote, “the question considered is what the likely impact might be, recognizing that causation in this context might be relatively indirect.”72 Furthermore, in Faurisson v. France (1993), the HRC determined that the defendant’s statements constituted incitement because they “were of a nature as to raise or strengthen anti-Semitic feelings.”73 Under this malleable standard, an individual may be convicted of hate

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speech, even if the link between his/her speech and the proscribed outcome is indirect.

By altering the prohibited result, however, some international courts have ruled that causation, and therefore incitement, can be assumed in all cases of hate speech. In Glimmerveen and Hagenbeek v. Netherlands (1979), the European Commission on Human Rights established the “abuse of rights” doctrine. The court ruled that a political candidate could not advocate a hateful immigration policy, because Article 17 of the ECHR prohibits individuals from infringing upon the rights of others.

The court states: Article 17 covers essentially those rights which would facilitate the attempt to derive therefrom a right to engage in activities aimed at the destruction of the rights and freedoms set forth in the Convention. In the present case, Article 17 does not permit the use of Article 10 to spread ideas which are racially discriminatory.”74

This ruling suggests that hate speech is always likely to cause a proscribed result, namely the infringement on the rights of others, because it runs counter to the text and spirit of the Convention. This ruling creates an extremely lax standard, and is indicative of the international approach to the restriction of hate speech, which gives greater weight to concepts such as “equality” or “human dignity,” than it gives to free expression.

Context

The second element used by international courts to determine whether or not expression incites a prohibited result, is the context surrounding said expression.75 Once again, the courts have not created a clear standard for which contexts qualify as sufficiently egregious as to merit constituting incitement, leaving each case open to judicial discretion. For example, in Faurisson, the HRC ruled that the speaker’s specific use of Holocaust denial qualified as incitement because: The notion that in the conditions of present-day France, Holocaust denial may constitute a form of incitement to anti-Semitism cannot be dismissed.

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This is a consequence not of the mere challenge to well-documented historical facts, established both by historians of different persuasions and backgrounds as well as by international and domestic tribunals, but of the context, in which it is implied, under the guise of impartial academic research, that the victims of Nazism were guilty of dishonest fabrication, that the story of their victimization is a myth and that the gas chambers in which so many people were murdered are “magic.”76

In this case, the Court ruled that given the conditions of French anti-Semitism, and the status of academic research on the Holocaust, any denial of evidence of the Holocaust qualifies as an expression which incites anti-Semitism.

In Ross, the HRC decided that the speaker’s position as a teacher made his hate speech particularly flagrant, stating, “In the circumstances, the Committee recalls that the exercise of the right to freedom of expression carries with it special duties and responsibilities. These special duties and responsibilities are of particular relevance within the school system, especially with regard to the teaching of young students.”77 Because Ross was conveying his hateful ideas to an audience of children, his speech was particularly inciting, and could therefore be criminalized by the government.

Furthermore, a comparison of two cases from Turkey demonstrates how context determines the international adjudication of hate speech. First, in Zana v. Turkey (1997), the European Court of Human Rights determined that the government did have the right to restrict the defendant’s hate speech, based on context. The defendant was deemed to have great influence because he was formerly a soldier, and because his hateful speech was expressed in an area of the country that was simultaneously suffering from terrorism, making him guilty of “endangering public safety.”78

Conversely, in Incal v. Turkey (1998), the European Court of Human Rights ruled that Turkey could not restrict similar speech. “The circumstances of the present case are not comparable to those found in the Zana case. Here the Court does not discern anything which would warrant the conclusion that Mr. Incal was in any way responsible for the problems of terrorism in Turkey, and more specifically in Izmir.”79 The

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antithetical rulings in these two cases demonstrate the importance given to the case by case judicial analysis of context in the international adjudication of hate speech.

Two recent cases also emphasize the importance of context.

First, in Hagan v. Australia (2003), a United Nations committee ruled that the word “nigger” violated the “circumstances of contemporary society”, and therefore any use of that word could be restricted by government.80 Like Faurisson, this ruling suggests that certain types of hate speech can always be considered inciting, based on their prevalence and position in society.

Second, in Willem v. France (2009), the European Court of Human Rights ruled that the mayor of Seclin was not allowed to declare a boycott on Israeli products. The press release issued by the Court states: The Court observed that the interference with the applicant’s freedom of expression had been provided for by law, being based on Articles 23 and 24 of the Press Act 1881, and that it pursued a legitimate aim, namely to protect the rights of Israeli producers. The Court reiterated that for interference with freedom of expression, especially that of an elected representative, to comply with the Convention, it had to be “necessary in a democratic society.” Like the French courts, the Court took the view that Mr. Willem had not been convicted for his political opinions but for inciting the commission of a discriminatory, and therefore punishable, act... The Court further noted that, under French law, the applicant was not entitled to take the place of the governmental authorities by declaring an embargo on products from a foreign country…81,82

The defendant’s status as mayor of the municipality gave him the power to influence his constituency, giving greater potency to his illegal discriminatory speech. The court also noted that the speech was illegal because the mayor could not legitimately usurp the power of the French government to declare an embargo on a foreign nation. This ruling highlights the importance of context surrounding hate speech, because it emphasizes the defendant’s position as the mayor of a municipality, making

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his speech more likely to incite a proscribed result.83 Prohibited Results

In order to uphold the restriction of hate speech, most international courts have demanded that governments demonstrate that the impugned speech led to a legally prohibited result.84 Although there has been much disagreement over what constitutes a legally proscribed result, the international courts have seemingly adopted the ICPR standard of outlawing speech that leads to “hostility” (i.e. hatred).85 Although they have recognized hatred as a legally proscribed result,86 hatred’s emotive nature has been difficult for courts to clearly identify and define.

One possible definition for hate is provided in policy by the European Council: The term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, antiSemitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.87

This definition outlines in vague terms the different opinions which may qualify as “hostility” according to the ICPR. Such a definition lacks clarity because it attempts to objectify a subjective emotion, which is inherently difficult to use as the legal backbone for hate speech regulation. The direct impact of speech on “hatred” is extremely difficult to quantify, and subsequently difficult to try fairly in a court of law.

A second possible definition for hatred is found in a ruling by the ICTR. In Prosecutor v. Nahimana, Barayagwiz and Ngeze, the Court ruled that hate speech incites the “stereotyping of ethnicity combined with its denigration.”88 This definition is also ambiguous, and has left courts with an elastic standard for case by case interpretations.89,90

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Cyberhate and Immunization

Many supranational organizations have taken an aggressive stance on cyberhate through the enactment of specific policy and legislation. For example, in 2010, the Office for Democratic Institutions and Human Rights (ODIHR), an offshoot of the Organization for Security and Cooperation in Europe (OSCE), issued the Report of the OSCE-ODIHR Expert Meeting, detailing the role of the Internet industry in addressing hate on the Internet. That policy declaration recommends, inter alia, that governments “strengthen enforcement of existing legislation addressing “cyberhate,” including investigating and fully prosecuting criminal incitement to violence on the Internet.”91

Furthermore, in 2003, the Council of Europe issued the Protocol to Convention on Cybercrime, Concerning the Criminalization of Acts of Racist and Xenophobic Nature Committed through Computer. This legal protocol criminalized the “Dissemination of Racist and Xenophobic Material through Computer Systems” (Article 3), “Racist and Xenophobic Motivated Threat” (Article 4), “Racist and Xenophobic Motivated Insult” (Article 5), and “Denial, Gross Minimization, Approval or Justification of Genocide or Crimes Against Humanity” (Article 6).92 Each of these articles describes tough measures to be taken by nations in order to effectively enforce hate speech law on the Internet.

Additionally, in 2000, the European Union enacted legislation which shields service providers from criminal liability for the publishing of hate speech. Article 14 of the ‘Directive on Electronic Commerce’ states: Hosting 1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

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(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.93

This legislation is narrower in its protection of service providers than its American counterpart because it (1) does not protect service providers from civil liability and (2) only protects service providers who (a) are unaware of the illegal hate speech being espoused on their site, and (b) act quickly to remove such speech once they are informed of its presence. Unlike the analogous American legislation, this act does allow service providers to be prosecuted for publishing hate speech, even if the hateful content originated with a third party.

Specific Countries94

Having outlined the differing approaches of the United States and supranational organizations to the suppression of hate speech, the following section will focus on the approaches of four individual countries that have enacted notable hate speech regulation. This section will demonstrate how the statutes and court rulings of these countries reflect the international approach and will continue to use the format from the previous sections, although, in some instances, the section on jurisprudence (section B) and/or cyberhate (section C) will not be applicable.

Canada Fundamental Charters and Legislation

Although the Canadian Charter of Rights and Freedoms explicitly guarantees freedom of expression, Canada has enacted legislation which grants far-reaching power to the government to censure hate speech.95 The Canadian Criminal Code 319 states: (1) Every one who, by communicating statements in a public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

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(b) an offence punishable on summary conviction.

(2) Every one who, by communicating statements, other than in private conversation, willfully promotes hatred against an identifiable group is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.96

Despite providing some exceptions for statements made in “good faith,” this law gives broad authority to the government to curtail hate speech, and is representative of the international approach.97 This law allows for the conviction of speakers who not only incite “a breach of the peace,” but also those who “willfully promote hatred against an identifiable group.”98 The Canadian use of the emotion of hatred as the proscribed result is consistent with the international approach, and, unlike American law, allows the government to punish individuals for group libel.

Hate Speech Jurisprudence

For the most part, the Canadian judiciary has upheld the government’s enforcement of hate speech restriction under 319. Most prominently, in R. v. Keegstra (1990), the Supreme Court of Canada upheld the conviction of a teacher who taught students anti-Semitic rhetoric. The Court denied his claim that such restriction violated his right to free expression, stating: In so far as its purpose is to prohibit the expression of certain meanings, s. 319(2) of the Criminal Code infringes the guarantee of freedom of expression found in s. 2(b) of the Charter. Given the importance of Parliament’s purpose in preventing the dissemination of hate propaganda and the tenuous connection such expression has with s. 2(b) values, however, I have found the narrowly drawn parameters of s.319(2) to be justifiable under.

(1) Substantial need (2) Regulated in a minimal way (3) Narrowly tailored to effectuate that need (4) Required the actual intent to promote hatred.99

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Although this ruling outlines narrow parameters for the legal suppression of hate speech (i.e. requirements 1-4), it still upholds statute 319, and affirms that the government is justified in restricting hate speech, given the “importance of Parliament’s purpose in preventing the dissemination of hate propaganda.”100,101 Germany Fundamental Charters and Legislation

The Basic Law of the Federal Republic of Germany guarantees the freedom of expression, stating in Article 5: 1. Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.

2. These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.102

This provision has a built-in loophole, allowing the government to limit hate speech in order to protect the “right to personal honor.” This “right to personal honor” is not a right which is explicitly enumerated in the Basic Law, rather, it likely stems from Article 1, the fundamental tenant of the Charter. Article 1 guarantees that “human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”103 Under the German legal philosophy, “human dignity” is paramount, and since hate speech violates human dignity, it must be restricted by government.104

The manifestation of this philosophy is Article 130 of the German Penal Code (STGB). The “Incitement to Hatred” clause of that provision mandates that: (1) Whosoever, in a manner capable of disturbing the public peace

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(a) incites hatred against segments of the population or calls for violent or arbitrary measures against them; or (b) assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population, shall be liable to imprisonment from three months to five years.105

This provision is followed by similar provisions, outlawing hate speech in written, radio, and televised material; Holocaust denial; and Holocaust glorification.106,107,108 These laws ban the use of expression to incite hatred, and emphasize the ascendancy of human dignity over free expression.

Hate Speech Jurisprudence

In 30 BVerfGE 173 (1971), the Federal Constitutional Court ruled that Article 5 (free expression) of the constitution could be violated by government in order to maintain human dignity. Although this ruling was fundamentally concerned with the freedom of art, rather than the freedom of expression, it nevertheless demonstrates the Court’s willingness to rely on human dignity as a pretext for allowing the government to intrude upon less important rights.109 Cyberhate and Immunization

Germany has enacted specific legislation meant to address cyberhate. Section 86 of the German Penal Code declares that, “Whoever domestically disseminates or produces, stocks, imports or exports or makes publicly accessible through data storage media for dissemination domestically or abroad, means of propaganda” will be held criminally liable.110 The next sub-provisions detail what propaganda falls into this category, and emphasizes especially Nazi propaganda.111 Additionally, the subsequent provision explains the rationale behind the criminalization of cyberhate, stating, “(2) Means of propaganda within the meaning of subsection (1) shall only be those writings the content of which is directed against the free, democratic constitutional order or the idea of international understanding.”112 Once again, Germany uses the violation of the “free, democratic constitutional order” (i.e. human dignity) as a

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justifiable rationale for banning hate speech.

Germany has granted limited immunity to service providers who publish cyberhate. Article 1 section 5 of the Information and Communications Services Act (luKDG) states: § 5: Responsibility (1) Providers shall be responsible in accordance with general laws for their own content, which they make available for use.

(2) Providers shall not be responsible for any thirdparty content which they make available for use unless they have knowledge of such content and are technically able and can reasonably be expected to block the use of such content.

(3) Providers shall not be responsible for any thirdparty content to which they only provide access. The automatic and temporary storage of third-party content due to user request shall be considered as providing access.

This law grants immunity to service providers who (1) unknowingly publish illegal material, (2) rapidly remove such content when they are capable, and (3) merely provide access to third party content. Although this law provides relatively broad protection to service providers, it nevertheless allows for the prosecution of service providers who publish illicit materials, making it less inclusive than its American analogue.

The application of this law, as with most service provider immunization legislation, has been complex due to jurisdictional complications. For example, in The People v. Felix Somm, the Munich regional court overturned the conviction of an Internet service provider who had provided access to child pornography and neo-Nazi propaganda.113 The Court ruled that, “An Internet Service Provider who provides access to material without being able to influence its content should not be responsible for that content.”114 Although Somm had provided access to illegal content, and was therefore ordinarily punishable under German law, the content had been routed through a United States-based father company.

Because there are fewer restrictions on hate speech in the United States, Somm was not “technically able” to remove the content, as is required under Article 1 section 5 of the Information and Communications Services

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Act (luKDG), and was therefore exonerated.

United Kingdom Fundamental Charters and Legislation

Although the United Kingdom has no written constitution, it guarantees the right to free expression, and has criminalized hate speech through multiple pieces of legislation. First, with the Race Relations Act of 1965, Parliament enacted legislation which prohibited speech which is “threatening, abusive or insulting” when it strives to “incite hatred on the basis of race, colour or national origin.”115 The act also criminalizes expression which “promotes hatred through persuasion of non-target audiences” that qualifies as “harassment of a target group or individuals.”116

Additionally, Parliament has enacted further legislation in order to protect the public from hate speech. The Public Order Act of 1968 outlawed the expression of hate speech and/or possession of hate speech materials, including attacks on individuals based on their sexual orientation.117 The act provides the standard for convicting an individual, stating: In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the written material or recording and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.118

Therefore, the possession of hate material is only punishable if the possessor is proven to have (1) intended to incite racial hatred, or (2) could have reasonably surmised that such incitement would occur.119 Furthermore, in the Racial and Religious Hatred Act of 2006, Parliament added additional legislation criminalizing the expression, possession, and dissemination of hate speech materials.120

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Cyberhate and Immunization121

For the most part, the United Kingdom treats the dissemination of hate speech over the Internet as it would hate speech disseminated through any other medium. However, under limited circumstances, the United Kingdom has enacted specific legislation to immunize Internet service providers from criminal liability if they publish hate speech. The Defamation Act of 1996 states: Responsibility for publication.

(1)In defamation proceedings a person has a defence if he shows that (a) he was not the author, editor or publisher of the statement complained of, (b) he took reasonable care in relation to its publication, and(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.122

Additionally, a later provision mandates that in order to determine “reasonable care,” a court must evaluate “(a) the extent of his responsibility for the content of the statement or the decision to publish it, (b) the nature or circumstances of the publication, and (c) the previous conduct or character of the author, editor or publisher.”123 Although this act does provide some immunity for a publisher of illegal material, it is less far reaching than its American counterpart. The Act still allows for the conviction of an Internet publisher if they do not meet all three exceptions.

The judiciary has also made it easier to convict the publishers of illegal speech. In Goldsmith v. Sperrings Ltd. (1977), the Court ruled that in order to be acquitted of the publication of hate speech, a publisher must demonstrate that they did not know that the speech was illegal, and that they were not negligent in failing to know. By transferring the onus of proof onto the defendant, the courts have made it easier for the government to prosecute Internet service providers who publish hate speech.124

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South Africa Fundamental Charters and Legislation125

The constitution of South Africa guarantees freedom of expression, but simultaneously contains a ban on speech which is considered “(1) propaganda of war, (2) incitement of imminent violence, (3) or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to harm.”126 These limitations on free expression are once again indicative of the international approach, and are likely justified by claiming that hate speech infringes upon the human “dignity” guaranteed by Article 10 of the constitution.127

Additionally, the South African legislature enacted the Promotion of Equality and Prevention of Unfair Discrimination Act (2000): 10. (1) Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to— (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred.

(2)Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation.128 This legislation is particularly broad because it merely requires the intent to “be hurtful” in order to criminalize hate speech. This provision sets an extremely low threshold for the restriction of hate speech, and has given the government wide discretion in prosecuting offenders.

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Conclusion

As I have demonstrated above, the international approach towards the suppression of hate speech is far more restrictive than the American approach. This difference in philosophy is illuminated through a comparison of the differing, and often conflicting, legislation and jurisprudence which has been established in the United States and abroad.129 The American approach gives preeminence to the freedom of expression, whereas the international approach places a greater value on concepts such as ‘human dignity’ and ‘equality’. Regardless of which approach is superior, the ambiguity of international law on this subject has made the adjudication of criminal hate speech complex. This problem is magnified by cyberhate, because the dissemination of hate speech over the Internet creates difficult jurisdictional questions. For example, international hate groups have begun to use American IP addresses for their websites in order to avoid prosecution under the hate speech laws of their own countries. Should the individuals who create those sites, who operate virtually in America while physically living abroad, be sheltered by lenient American laws? Given difficult questions like these, it is increasingly important that the evolution of hate speech legislation and jurisprudence be monitored closely, and that the international community works together to clarify and standardize the conditions for the legal restriction of hate speech.

Notes 1.

2.

3.

4.

For the purpose of this memorandum I will operate using the following basic definition of hate speech: Hate speech is a communication that carries no meaning other than the expression of hatred for some group, especially in circumstances in which the communication is likely to provoke violence. It is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like. Hate speech can be any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities or to women. (http://definitions.uslegal. com/h/hate-speech/).

For the purpose of this memorandum, I will operate using the Anti-Defamation League’s (ADL) definition of ‘cyberhate’ (i.e. any use of electronic communications technology to spread anti-Semitic, racist, bigoted, extremist or terrorist messages or information).

For the purpose of this memorandum I will label any company which allows third parties to post information on its website (e.g. facebook) as an ‘Internet service provider’. This particular focus will not be applicable to all of the individual countries presented. Kenneth Rigby, Alternate Dispute Resolution, 44 La. L. Rev. 1725 (1983-1984) http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.htmlJean R. Sternlight, Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury

34 5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

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Trial, 15 Ohio St. J. Disp. Resol. 669 (2000-2001) Although some might counter this argument by suggesting that freedom of expression was initially the Third Amendment (originally Twelve Amendments were proposed—the first two of which were discarded), for the purpose of this memorandum, my argument retains its merit because (1) even if free speech was granted in the Third Amendment, that is well before its positioning in most international charters; and (2) ultimately it was passed as the First Amendment. See, http://www.archives.gov/exhibits/charters/bill_of_rights.html See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 655 (1990).

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

This memorandum will not detail the Supreme Court’s decisions to uphold laws which censor obscenity (See, Miller v. California (1973): creating a three part standard for the identification of obscenity which can be restricted), because obscenity is not usually applicable to the censorship of hate speech.

For more information see, “Responding to Cyberhate: Toolkit for Action” by the ADL, p. 14.

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

For more information see, “Responding to Cyberhate: Toolkit for Action” by the ADL, p. 12.

Black’s Law Dictionary: with Pronunciations, 6th edition.

Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc). Holding that the posting of information about specific abortion providers constituted a “true threat” given past attacks, and through the use of FACE legislation.

Virginia v. Black, 538 US 343 (Supreme Court) (2003).

For more information, see “Responding to Cyberhate: Toolkit for Action” by the ADL. Ibid. at p. 13.

Chaplinsky v. New Hampshire, 315 US 568 - Supreme Court 1942.

Ibid.

This conclusion to the balancing test is prevalent in the European approach, as will be demonstrated infra.

Beauharnais v. Illinois, 343 US 250 - Supreme Court 1952.

Brandenburg v. Ohio, 395 US 444 - Supreme Court 1969.

Ibid.

This standard makes it extremely difficult to restrict cyberhate because it does not usually incite immediate lawless action.

R.A.V. v. St. Paul, 505 US 377 (Supreme Court) (1992).

Ibid.

Ibid.

Webb, Thomas. “Verbal Poison—Criminalizing Hate Speech: A Comparative Analysis and a Proposal for the American System.” 50 Washburn L.J. 445 (Winter 2011).

See, “Responding to Cyberhate: Toolkit for Action” by the ADL. Cyberbullying, cyberhate in the school context, may be more easily prosecuted and restricted under certain circumstances. For more information, see http://www.adl.org/education/cyberbullying/.

47 U.S.C. § 230 Zeran v. America Online Inc., 129 F 3d 327—Court of Appeals, 4th Circuit 1997.

47 U.S.C. § 230.

See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/ RES/217(III) (Dec. 10, 1948), Article 19.

Id. Article 29.

See: Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, a previous charter which outlawed “direct or public incitement to commit genocide” (Article 3).

International Convention on the Elimination of All Forms of Racial Discrimination, Jan. 4, 1969, 660 U.N.T.S. 195. Article 4.

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37. Suggesting that hate speech qualifies under the “morality” exception of Article 20 of the UDHR (Supra page 7).

38. Unsurprisingly, the United States ratified CERD with reservations, stating: “The Constitution of the United States contains provisions for the protection of individual rights, such as the right of free speech, and nothing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with the provisions of the Constitution of the United States of America.” See, (CERD Stats, Supra Note 9).

39. Committee on the Elimination of Racial Discrimination, General Recommendation 30, Discrimination against Non-citizens (Sixty-fourth session, 2004), U.N. Doc. CERD/C/64/ Misc.11/rev.3 (2004).

40. This preeminence is evidenced by its primacy in the UDHR. Article 1 states, “All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

41. Committee on the Elimination of Racial Discrimination, General Recommendation 30, Discrimination against Non-citizens (Sixty-fourth session, 2004), U.N. Doc. CERD/C/64/ Misc.11/rev.3 (2004).

42. Webb 457.

43. As will be demonstrated infra, most international courts have used the ICCPR as their standard for judging the legality of hate speech restriction.

44. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316, at 52 (Dec. 16, 1966). Article 19.

45. These rights probably include the human dignity described in Article 1 of the UDHR. 46. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, Supp. No. 16, U.N. Doc. A/6316, at 52 (Dec. 16, 1966). Article 20.

47. These concepts will be explicated infra in the section on jurisprudence.

48. Once again, the United States chose to sign this international treaty with reservations, stating: “(1) That article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States. See, http://treaties.un.org/Pages/ViewDetails. aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en#EndDec 49. General Comment 11: Prohibition of propaganda for war and inciting national, racial or religious hatred (Art. 20), 29 July 1983.

50. I chose to include these judicial issues here, rather than in the section about jurisprudence, because they are fundamental to any understanding of the charter itself.

51. Mendel, Toby. “Hate Speech Rules Under International Law.” Cenetre for Law and Democracy, 2010. page 4.

52. Malcolm Ross v. Canada, CCPR/C/70/D/736/1997, UN Human Rights Committee (HRC), 26 October 2000, paragraph 11.1.

53. Mendel 4. (See also, Mendel’s explanation on the narrow interpretation of Article 20 in Faurisson v. France).

54. It is important to note that the Council of Europe is a distinct organization from the European Union, and is in charge of the administration of the European Court of Human Rights.

55. Contrastingly, the American Convention on Human Rights, which was enacted by the Organization of American States (OAS) in 1978, does have a specific provision allowing governments to restrict hate speech. Article 13e states, “Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.” (http://www.cidh.org/Basicos/English/Basic3.American%20Convention.htm).

See also, African Charter on Human and Peoples’ Rights, which contains no provision for the restriction of hate speech (http://www.achpr.org/english/_info/charter_en.html).

56. Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14 Rome, 4XL1950. Article 10.1 and 10.2.

36 57.

58.

59.

60.

61.

62.

63.

64.

65.

66.

67.

68.

69.

70.

71.

72.

73.

74.

75.

76.

77.

78.

79.

80.

81.

82.

83.

84.

85.

86.

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Ibid. Article 17.

This section relies heavily on Mendel.

European courts will often also use the ECHR. Mendel 5-10.

Ibid. 5.

Jersild v. Denmark, 22 August 1994, Application No. 15890/89 par. 21 and 30.

Ibid.

See also, Robert Faurisson v. France, Communication No. 550/1993 , U.N. Doc. CCPR/ C/58/D/550/1993(1996). paragraph 10. The HRC ruled that Faurisson could be convicted because he had the intent to incite anti-Semitic hatred through his denial of the Holocaust. http://www.unhcr.org/refworld/publisher,ICTR,,,40278fbb4,0.html http://www.unhcr.org/refworld/country,,ICTR,,KEN,,415920394,0.html http://www.unhcr.org/refworld/publisher,ICTR,,,48b5271d2,0.html Study of the United Nations High Commissioner for Human Rights compiling existing legislations and jurisprudence concerning defamation of and contempt for religions, UN Doc. A/ HRC/9/25, 5 September 2008, paragraph. 24.

Mendel 6.

See, Erbakan v. Turkey, 6 July 2006, Application No. 59405/00, paragraph. 68. Unofficial translation from the original French. This ruling was unusually strict, holding that the speech in question did not constitute incitement because, “[I]t was not established that at the time of the prosecution of the applicant, the impugned statements created an “actual risk” and an “imminent” danger for society... or that they were likely to do so.”

Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, paragraph. 101.

Prosecutor v. Nahimana, Barayagwiz and Ngeze, 3 December 2003, ICTR-99-52-T (Trial Chamber), para. 1007.

Robert Faurisson v. France, Communication No. 550/1993 , U.N. Doc. CCPR/ C/58/D/550/1993(1996) Note 15, para. 9.6.

The full transcript was not available in English. (See, http://eu.vlex.com/vid/glimmerveenand-hagenbeek-netherlands-27429406) Mendel, 7.

Note 15, paragraph 6.

Note 15, paragraph 6.

Zana v. Turkey, 25 November 1997, Application No. 18954/91, para. 26.

Incal v. Turkey, 9 June 1998, Application No. (41/1997/825/1031).

Hagan v. Australia, U.N. GAOR, Elim. of Racial Discrim. Comm., 62d Sess., U.N. Doc. CERD/C/62/D/26/2002 (2003).

The full text of the ruling is available in French at http://cmiskp.echr.coe.int/tkp197/portal. asp?sessionId=73181039&skin=hudoc-en&action=request http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=852555&portal=hbk m&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 This ruling may also be of particular interest to the Anti-Defamation League, because it classifies BDS campaigns as inciting discrimination.

These arguments flow from the differing standards created in international charters. For example, the ACHR outlaws speech which leads to the incitement of violence, while the ICCPR prohibits speech which incites discrimination or hatred, whereas the CERD bans speech which also espouses racial superiority.

Herein lies a major distinction between the American and the international approaches to the criminalization of hate speech—the American approach only outlaws speech which can be directly linked to ensuing violence and lawless action, whereas the international approach assumes the emotion of hatred will eventually lead to violence and lawless action, and must therefore be outlawed preemptively.

This is a rare instance of international law not protecting an opinion.

Council of Europe, Committee of Ministers. recommendation No. R (97) 20. 1997.

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88. http://www.unhcr.org/refworld/publisher,ICTR,,,48b5271d2,0.html 89. This ambiguity leads Mendel to note that many comedy routines would be banned under this standard. (See, Mendel, 9).

90. In some circumstances international courts have been willing to tolerate hateful speech which is not specifically targeted at individuals. For example, in Giniewski v. France, the European Court of Human Rights ruled that the defendant’s speech was permissible because it was not a hateful attack on religion, rather it was a ‘débat d’idées’ (clash of ideas).

91. Report of OSCE-ODIHR Expert Meeting: Role of the Internet industry in addressing hate on the Internet. Amsterdam, 10 May 2010.

92. I have merely provided the titles of each article, for a complete enumeration of each provision under these articles, see the full text at: http://conventions.coe.int/treaty/en/treaties/ html/189.htm 93. Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’). Article 14.

94. This section relies heavily on Webb.

95. http://laws.justice.gc.ca/eng/Charter/page-1.html#anchorbo-ga:l_I-gb:s_1. See, Fundamental Freedoms.

96. Criminal Code (R.S.C., 1985, c. C-46). Provision 319: Public Incitement of Hatred.

97. Provision 319 (3) reads:

No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion on a religious subject;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters pro ducing or tending to produce feelings of hatred toward an identifiable group in Canada.

98. It is interesting to note that an analysis of Canadian law suggests that under this “identifiable group” standard, hate speech against homosexuals is criminalized. The 1996 Amendment to the Canadian Human Rights Act states that, “3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.” In this respect, Canadian hate speech law is distinct from most other countries.

99. R. v. Keegstra, [1990] 3 S.C.R. 697.

100. Ibid.

101. Canada has not enacted legislation dealing with immunization (part c).

102. The Basic Law for the Federal Republic of Germany (Grundgesetz der Bundesrepublik Deutschland). Article 5.

103. Ibid, Article 1.

104. Webb 462.

105. STRAFGESETZBUCH [STGB] [PENAL CODE], supra note 23, at § 130(1).

106. Ibid. § 130(2).

107. Ibid. § 130(3).

108. Ibid. § 130(4).

109. A freedom which is guaranteed later on in Article 5, after the guarantee of free expression.

110. (straf- und jugendschutzrechtlichen Verbote und Auflagen bei Infomations- und Kommunikationsdiensten). English version at: http://www.inach.net/content/german-penal-code.html 111. Ibid. provision 1.1. “means of propaganda, the contents of which are intended to further the aims of a former National Socialist organization, shall be punished with imprisonment for not more than three years or a fine.”

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112. Ibid. provision 2.

113. See, http://www.article19.org/handbook/jurisprudence/germany-the-people-v-felix-somm. html 114. Local Court [Amstgericht] Munich. File No.: 8340 Ds 465 Js 173158/95.

115. Race Relations Act, 1965, c. 73, § 6(1) (Eng.).

116. Ibid.

117. Public Order Act, 1986, c. 64, § 5 (Eng.).

118. Ibid. § 23(3).

119. Webb 465.

120. Racial and Religious Hatred Act, 2006, c. 1, § 29A–G (Eng.). See, “29B Use of words or behaviour or display of written material (1) A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.”

121. Although there have been some semi-notable hate speech cases in England, I have chosen to exclude the section on case law. In many instances, hate speech criminalization never reaches the judiciary, because the crown has often decided not to pursue the prosecution of religious ministers who condemn homosexuality (See¸the McAlpine affair). For more information on British hate speech jurisprudence, see “’If a Charge was Brought Against a Saintly Religious Leader Whose Intention Was to Save Souls . . .’: An Analysis of UK Parliamentary Debates over Incitement to Hatred on the Grounds of Sexual Orientation” by Paul Johnson 122. The Defamation Act of 1996: Responsibility for Publication. Provision 1.

123. Ibid, Provision 5.

124. Goldsmith v Sperrings Ltd (1977) 2 All ER 566.

125. This will be the only section provided concerning South Africa.

126. Constitution of the Republic of South Africa, 1996. Article 16.

127. Ibid. Article 10.

128. No. 4 of 2000: Promotion of Equality and Prevention of Unfair & Discrimination Act. 2000.

129. This is not to suggest that hate speech legislation and jurisprudence is, by any means, uniform outside of the United States.

Help Beyond Reach Attempts to Address Battered Immigrants’ Barriers to Help-Seeking in the United States

Anna Austenfeld Kaitlin Freedman College of Arts & Sciences, 2012 The Welfare State and Social Policy in America Professor Ryan T. Moore

Abstract Domestic violence currently affects 1.3 million women each year and is particularly prevalent among immigrant women. While all victims of intimate partner violence (IPV) experience numerous barriers to help-seeking, immigrant women face a particularly complex set of obstacles. In this paper, we will summarize these financial, linguistic and logistical barriers and explore legislative acts intended to address them. We argue that, although this legislation has increased legal protection for immigrant victims of IPV, certain barriers have yet to be addressed. We proceed by analyzing the origins of these laws and the reasons for their failures. Our paper concludes with recommendations for policy development and future research of this topic.

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Intimate partner violence (IPV), defined by the Centers for Disease Control (CDC) as the “threatening or initiation of physical, sexual or emotional abuse against a current or former dating partner or spouse,� burdens the American public with a pervasive and notably injurious set of public health issues.1 Acts of IPV currently account for 64% of all incidences of rape, stalking and physical assaults experienced by adult women in the United States and lead to severe emotional distress.2 Beyond the harm that IPV inflicts upon victims and their children, acts of IPV cost the U.S. $12.6 billion annually.3 Because 85% of IPV victims are women, this paper will focus solely on female victims of domestic abuse.4

Despite the severe consequences of IPV, only about half of victims ever report their abuse to officials.5 This is due to a complex set of barriers to help-seeking, which include the belief that aid services will be unhelpful, financial concerns, logistical barriers, fear of retaliation by the abusive spouse, and fear of child protective services. These barriers will be further discussed in Section II of this paper.

Immigrant women experience IPV at rates nearly twice as high as U.S. residents but are less than one-third as likely to call the police.6,7 Barriers to help-seeking for these women are compounded by a myriad of cultural, financial and linguistic inadequacies that leave them ill-equipped to navigate the U.S. legal system. Immigrant women often face language barriers, problems associated with undocumented legal status, expected compliance with traditional gender roles, and social or cultural isolation.

These immigrant-specific barriers will also be discussed in Section II.

In the past twenty years, several laws have passed that recognize immigration’s influence on domestic violence. These laws, which we outline in Section III of this paper, suggest a growing desire among politicians to address the specific needs of battered immigrants. We believe, however, that although these laws have made useful services available to immigrant women who seek them, the legislation does not address the barriers to help-seeking that exclude many immigrant women from interacting with the U.S. legal system. Section III will also explore the inadequacies of these legislations.

Section IV will present numerous reasons why we believe these legal inadequacies have come to exist. Firstly, we will present evidence that initial legislation preventing battered immigrants from obtaining

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legalization resources stem from the United States’ history of coverturebased laws. We then suggest that reforms within the Violence Against Women Act (VAWA) took place at a time when a Kingdonian policy window had been opened by several forces, including increased female participation in federal lawmaking and the high publicity of O.J. Simpson’s domestic murder trial.

We will conclude with suggestions for future action, such as the creation of public outreach campaigns and legislation addressing undocumented immigrant victims of IPV. Barriers to Help-Seeking

Of the 1.3 million women who experience intimate partner violence each year, only slightly more than half seek help or report their abuse to officials.8,9 When they choose to reach out for help, the facilities victims contact are often the least capable of addressing their needs.10 Victims of IPV are most likely to contact friends or family members to discuss their abuse, followed in likelihood by police, medical staff and, lastly, agencies or counselors.11 This hierarchy poses several problems to victims, as personal acquaintances may not be aware of available resources for victims of domestic abuse or may not support the victim’s efforts to seek help. Friends and family that have close personal relationships with both the victim and abuser may sympathize with the perpetrator and engage in victim blaming. Personal acquaintances could also dissuade victims from seeking help if they hold strong beliefs concerning the sanctity of marriage. Conversely, well-meaning friends or family members may unknowingly encourage dangerous behavior, such as immediate termination of abusive relationships. The end of an abusive relationship is the most dangerous time for victims, requires careful planning, and should not be attempted hastily.12

Despite potentially hazardous consequences, there are numerous reasons why victims of IPV would avoid seeking formal aid. These barriers to help-seeking will vary according to the victim’s sociological, demographical and geographical position, but certain barriers are more likely to be ubiquitous among victims of IPV than others. Belief that services or resources are not needed or would not be helpful is, according to one study, the most common reason that victims of IPV do not seek assis-

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tance.13 Also, because victims’ financial and residential stability are often dependent on their abusive partner, monetary and housing concerns are frequent among victims seeking to end an abusive relationship. Logistical barriers, such as lack of transportation or childcare, are also problematic.14 Other common barriers to help-seeking include fear of retaliation by a partner or partner’s family, fear of intervention by child protective services, and fear of consequences for the abuser.

While immigrant women, who experience IPV at rates more than twice as high as permanent residents, are likely to experience the aforementioned barriers to help-seeking, their unique situation presents them with an additional set of obstacles.15 Language barriers can impose severe limitations, which may be social, professional or legal in nature. Undocumented residential status and compliance with traditional gender roles can further inhibit immigrant women’s employability and compound financial and social dependence on abusive spouses.16 Abusive husbands can augment this social dependency by exploiting the isolation that recent immigrants often experience.17

Further, interpersonal interactions outside the home may be limited to conversations with culturally similar immigrants, who may hold strict beliefs about gender roles and compound a victim’s acceptance of abuse.18,19 This social and cultural seclusion can obscure victims’ awareness of available resources and may even conceal the fact that IPV is illegal.20

Fear of deportation further discourages many immigrants from seeking legal advocacy.21 Because legal resident status is often tied to the citizen or legal permanent resident, batterers often use deportation as a threat against immigrant spouses.22

Together, these emotional, financial, social, and logistical barriers prevent many victims from seeking the aid they need. Because victims of IPV contact friends and family before law enforcement or counseling services, these women may seek the most helpful aid last or be dissuaded from pursuing legal action. Additionally, the perpetrator is often financially responsible for the family. Victims attempting to end the domestic violence may not have access to the monetary resources required to leave the abuser. Moreover, because terminating abusive relationships often leads to violent retaliations, women attempting to escape the relationship may be placing themselves and their children at greater risk.

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Although immigrant women also face these barriers, the difficulty of their situation is compounded by other factors related to their status as immigrants. Language barriers and cultural isolation often prevent immigrant victims of IPV from understanding their legal rights and other services available to them. Undocumented immigrants have difficulty seeking employment and may be more financially dependent on the abuser. Additionally, undocumented immigrants fear deportation, which greatly discourages these victims from seeking formal aid.

Summary of Legislation

One of the first legislative acts to effect immigrant victims of IPV was The Immigration Marriage Fraud Act of 1986 (IMFA), which was introduced as an attempt to reduce the number of immigrants acquiring U.S. citizenship through fraudulent marriages. Though the IMFA may have reduced the number of sham marriages, it also created significant problems for immigrant women seeking respite from domestic violence.23 The law stated that non-resident spouses were limited to a conditional residency period of two-years, after which the couple could, but was not required to, file a joint petition for the immigrant to obtain permanent residency. This petition was valid only if the marriage still existed and was deemed legitimate by an USCIS officer.24 Failure to file this petition resulted in loss of conditional status and legal documentation.

By forcing victims to choose between continued violence and deportation, the restrictions imposed by IMFA may have incentivized many immigrants to remain in abusive relationships. Given the high emotional and financial costs of re-establishing oneself in a country of origin, many immigrant women may have considered sustained American residency a more desirable option than deportation, even in the presence of abuse. Costs of re-location are further compounded if the immigrant has a child. If both partners in the abusive relationship are the child’s biological parents, the immigrant may have reasonable concerns regarding custody in the case of deportation. Even with assured custody, the costs of acclimating a child to a new social and academic setting may be high.

If the costs of personal and custodial relocation are higher than those of continued abuse, immigrants are likely to maintain dangerous relationships under IMFA policies. Worse still, an immigrant’s dependency

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on an abusive spouse for legal residency is not chronologically bounded.

Even after the two-year conditional period, a resident-spouse could maintain control over the immigrant’s citizenship by refusing to cooperate with the joint petition for permanent residency.

Two IMFA provisions, the Hardship Waiver and the Good Faith/ Good Cause Waiver, attempted to ameliorate these problems by stating that a conditional immigrant could file for her own legal residency if deportation would cause extreme hardship, if the marriage was entered in good faith and if there was good cause for its termination.25 While these waivers had potential to aide battered immigrants, INS officials often felt that cases of IPV did not merit waiver use because abuse endured in the U.S. likely caused more suffering than would deportation.26

Furthermore, because the Good Faith/Good Cause waiver required victims to initiate divorce, suspicious batterers often rushed to file for divorce before their immigrant wives could.27 As immigrants often lacked the financial and logistical resources needed to initiate divorce, barriers to help-seeking frequently led them to lose the “race to the courthouse” and forfeit their eligibility for the waiver.28

Fortunately, The Immigration Act of 1990 (IMMACT) mitigated some of these complications by removing the IMFA stipulation that immigrants initiate divorce proceedings.29 IMMACT also introduced the Battered Spouse Waiver, a provision that allowed victims of IPV, if their spouse had initiated a petition for permanent residency but failed to complete it, to petition on their own for permanent residency.30 Users of this waiver had to prove they were subject to extreme cruelty perpetrated by their spouse, that the Extreme Hardship and Good Faith clauses applied and that they were not at fault for the lack of prior petitioning.31

While these amendments addressed some of the problems in the original Hardship Waiver, they continued to disregard immigrant women’s most common barriers to help-seeking. The law’s requirement of an affidavit from a mental health professional to verify “extreme mental cruelty” failed to consider the linguistic, cultural and financial barriers that prevent immigrant women from obtaining a psychological diagnosis.32,33 Further, the waiver only applied to immigrants who had already obtained conditional residency status, excluding all whose spouses had failed to document them previously. The stringency of these evidentiary requirements restricted the number of women who could benefit from the Battered Spouse Waiver.

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The Violence Against Women Act (VAWA I), included as Title IV of the Violent Crime Control and Law Enforcement Act of 1994, brought the next major reform to immigrant-related IPV law. It allowed victims to file for legal permanent residency prior to the completion of the two-year waiting period without their abusive spouses knowledge or cooperation. By striking the joint petition requirement, immigrant victims’ dependency on their abusers for residency was drastically reduced, though not eliminated. Several conditions had to exist before the immigrant was allowed to self-petition; the victim must have lived in the United States, been battered or subject to extreme mental cruelty, demonstrated good moral character according to the Attorney General, and the good faith and extreme hardship conditions continued to apply.34

The requirement that an affidavit be provided by a mental health professional was also removed; VAWA stated that any evidence the Attorney General deemed credible could now be used to prove mental abuse. While this reform helped women seek protection under the Battered Spouse Waiver, victims still had to procure evidence to prove their hardship.35 The subjective nature of what constituted credible evidence created uncertainty about what was considered IPV by the UCIS and may have deterred victims who did not consider their abuse sufficient enough to warrant the Battered Spouse Waiver.36

Legislators attempted to address these problems with the Violence Against Women Act of 2000 (VAWA II), which included The Battered Immigrant Women Protection Act of 2000. This section of VAWA II strove to increase legal protection for non-citizen victims, remove the extreme hardship requirement to prevent deportation, reduce obstacles not addressed by VAWA I, and expedite the self-petitioning process.37

VAWA II also increased the accessibility of benefits recently made available to non-citizens by The Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA). Before this legislation, immigrant women who utilized public benefits were considered an economic liability to the United States and were consequently inadmissible for legal permanent residency.38 VAWA II increased the availability of IIRIRA benefits by prohibiting the UCIS from counting them as “public charge.”

According to 8 U.S.C. § 1631(f)(1)(A)(i), however, immigrant women are ineligible to receive IIRIRA benefits if they are currently residing with the perpetrator of abuse. As discussed in Section II, leaving abusive relationships is not feasible for all victims due to financial and

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logistical barriers, as well as issues of physical safety.

The most recent amendment to VAWA, The Violence Against Women Act of 2005 (VAWA III), allowed immigrant victims to reopen motions to prevent deportation. Ordinarily, a motion to reopen must be filed within three months of the order for removal; however, VAWA III exempted battered immigrants from this deadline.39 Battered immigrants had one year to file a motion to reopen and self-petition for legal residency. With this extension, immigrants now had additional time to complete the paperwork necessary for VAWA protection. VAWA III also increased financial prospects for battered immigrants by granting them work eligibility as soon as they received VAWA self-petitioner status.40

Though VAWA provided relief to immigrant victims of IPV, it must be noted that VAWA provisions mostly apply to documented immigrants, despite the fact that approximately 70% of battered immigrants’ spouses fail to file the initial conditional residency petition.41 For undocumented immigrants to petition for VAWA protection they must enter into deportation proceedings, where there is no guarantee a motion to reopen will be granted.42

The evolution of the aforementioned legislation has led to greater legal protection for battered immigrants, but there are further barriers to help-seeking that have yet to be addressed. VAWA I eliminated the requirement that victims produce a medical affidavit to prove domestic violence. Although this legislation increased the flexibility of what constituted credible evidence, most documentation of abuse is still difficult to acquire. As described in Section II, immigrant women are less likely to seek medical attention due to logistical and financial barriers. Health care is often prohibitively expensive, especially for immigrant women who lack health insurance. Police reports are also considered credible evidence of abuse, but immigrant victims of IPV generally avoid interactions with law enforcement. Battered immigrant women with undocumented or conditional legal status face the immediate threat of deportation, which causes intense fear and mistrust of the police.43 Background

There are several reasons that, though domestic violence was a known problem since the 1970’s, federal legislation addressing domestic violence on a comprehensive scale was not introduced until 1990 and not

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passed until 1994.44,45 For the purposes of our paper, we will focus mainly on the legislation with the largest impacts on immigrant victims of domestic violence. We will refer to the political framework outlined in John Kingdon’s Agendas, Alternatives and Public Policies (2003).

Prior to the mid-1900s, the majority of U.S. immigration and domestic violence laws were based on the principle of coverture, a political ideology asserting that “the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband.”46,47 Coverture was incorporated into immigration law between 1907 and 1922 to justify stripping American women of their U.S. citizenship if they married men from abroad.

It also maintained a husband’s right to “chastise” his wife to prevent her “misbehavior.”48

The initial legislative acts associated with immigrant’s right to protection from IPV suggest vestiges of coverture were present in the minds of policy makers when drafting such reforms, namely the IMFA of 1986, which promoted immigrants’ dependence on their spouses through several mechanisms previously described. The act’s requirement that an immigrant complete a two-year marriage to a potentially abusive spouse, who is not obliged at the end of the conditional residency period to file for his spouse’s permanent citizenship, highlights the near complete control that a legal citizen held over his spouse’s residential status under the IMFA. Though the laws apply equally to both sexes, the fact that 85% of IPV victims are female suggests both a disproportionate gender burden of this restriction and the coverture-based nature of the IMFA.

Though the restrictions imposed by the IMFA were damaging to many immigrants, we assert that they transformed this immigrant IPV from a previously ignored condition to a noted political problem.

Through the efforts of Louise Slaughter, a Congresswoman who worked closely with battered immigrants, the Immigration Act of 1990 included the aforementioned amendments intended to ameliorate the plight of battered immigrants.49 This act, one of the first to formally acknowledge the problem of citizen-immigrant IPV, was implemented in 1990, the same year that Senator Joe Biden introduced the reform legislation later inaugurated as VAWA 1999. Though we were unable to find evidence to support the notion that Biden’s efforts were directly motivated

by Slaughter’s, it is possible that the congresswoman’s advocacy for battered immigrant women influenced, if only slightly, the political psyche

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of the time.

While Slaughter and Biden’s entrepreneurial efforts compelled legislation to protect immigrant women, the 1992 congressional and presidential election may have forced open the policy window that allowed VAWA I to pass. Media pundits have called the year of Bill Clinton’s election “The Year of the Woman,” largely because more women ran and were elected into Congress in 1992 than ever before.50,51 Clinton further augmented women’s participation in federal government by granting 113 of his 378 federal appointments to females.52 While some argue Clinton played the dominant role in creating a political atmosphere that was more welcoming to women, it is possible that the American public in 1992 was more willing than previous electorates to support females in political office, an acceptance reflected by record-breaking campaign donations to female politicians in 1992.53,54

Regardless what motivated this demographic shift, the high involvement of female politicians at the federal level further opened the policy window that helped pass VAWA I. Female politicians at this level are more than one and a half times more likely than men to work on women’s rights bills and more than twice as likely to name women’s rights as their top priority.55 Thus, the increased proportion of women in Congress may have aided the enactment of VAWA I.

Additionally, during VAWA’s passage through Congress, the high-profile O.J. Simpson murder case was piquing the public’s awareness of domestic violence. Many popular newspapers published articles associating Simpson’s crime with domestic violence, and some referred to VAWA legislation specifically.56,57 Time Magazine even published an entire issue on domestic violence on July 4, 1994. By raising public awareness of domestic violence and VAWA, the O.J. Simpson trial may have been one of the final pushes that fully opened the policy window.

These conditions partially explain why VAWA was so heavily promoted in the early 1990’s. Why it passed with near unanimity is well-summarized by former Congresswoman Susan Molinari who asked, “what member of congress wants to risk being characterized by one of the women’s groups as being for violence against women”.58

These events do not explain, however, why policies have failed to address immigrants’ barriers to help-seeking. Assuming that overcoming these barriers requires the development of governmental outreach programs providing information on the legal rights of battered immigrants,

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this failure to address help-seeking may result from the necessarily visible and traceable nature of such campaigns. Through these programs, the general public would become increasingly aware of the services politicians are affording to illegal immigrants, such as access to public benefits and work eligibility. The traceability that results from this heightened awareness may be undesirable to the members of Congress who supported VAWA reform but otherwise oppose liberalization of immigration law.

Conclusion

In the past two decades, immigration laws have made great strides in increasing legal protection for battered immigrants. Though the IMFA initially increased barriers to help-seeking, the increased obstacles the law produced also motivated Congressional action to address the legal difficulties of immigrant IPV victims. The legislative trend is one of increased sensitivity to the realities of immigrant victims of IPV and of continued attempts to mitigate these obstacles. Although not a law specifically targeted towards battered immigrants, VAWA legislation has given immigrant women the most viable options to escape abuse by offering self-petitioning and other provisions. While each new amendment to these laws increases protection for battered immigrants, barriers to help-seeking still exist and prevent many women from getting relief.

Public outreach campaigns are needed to reduce these barriers would, by definition, require high visibility as immigrants already experience greater barriers to acquiring public information than does the general population. An effective program would need to be accessible to any immigrant, provide for a linguistically and culturally diverse group of women, and incorporate a thorough, though manageable, summary of the legal protections granted to battered immigrants.

The intersection of low visibility and lack of protection from IPV is most pronounced in the case of undocumented women experiencing domestic violence. Undocumented battered immigrants have not been afforded the same benefits as those with conditional resident status.

Wives of abusive undocumented immigrants have also been excluded from the legislation. Laws ought to address battered undocumented immigrants, not as illegal aliens, but as women whose human rights are being violated on U.S. soil. Creating this protection in the form of increased access to legal permanent residency is likely controversial. Ignoring vic-

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tims of abuse, however, is certainly unethical.

This topic warrants future exploration. Based on theory discussed in this paper, educational outreach models may offer a viable means of reducing IPV among immigrant women. These models, however, should be empirically verified to ensure that they achieve the anticipated effects. Moreover, research must be conducted in various urban, suburban and rural environments to verify that the model is effective in the diverse settings in which IPV occurs. Outreach designs should be considered successful if more immigrant women step forward to take advantage of their rights to IPV protection. Further empirical research should attempt to identify additional barriers to help-seeking. A more comprehensive understanding of barriers is necessary to guide future policy design.

Notes 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

Centers for Disease Control and Prevention. (2006). Understanding intimate partner violence: Fact sheet. Washington, DC. Retrieved from http://www.cdc.gov/Violence Prevention/intimatepartnerviolence/datasources.html Reno, J., Marcus, D., Leary, M. L., & Samuels, J. E. (2000). Extent, Nature, and Consequences of Intimate Partner Violence: Findings From the National Violence Against Women Survey (NCJ 181867). Washington, DC: U.S. Department of Justice.

Waters, H., et al. (2004). The economic dimensions of interpersonal violence. Geneva: World Health Organization, Department of Injuries and Violence Prevention. Retrieved from http://www.who.int/violence_injury_prevention/publications/violence/economic_ dimensions/en/ Rennison, C.M. U.S. Department of Justice, Bureau of Justice Statistics. (2003). Intimate partner violence, 1993-2001 (NCJ 197838). Washington, DC: Office of Justice Programs.

West, C.M., Kaufman-Kantor, G., & Jasinski, J.L. (1998). Sociodemographic predictors and cultural barriers to help-seeking behavior by latina and anglo american battered women.

Violence and Victims, 13(4), 361-375.

Reno, Extent, Nature, and Consequences of Intimate Partner Violence, Department of Justice Maher, H., & Pendleton, G. (2000). Domestic violence and immigration in the criminal justice system. ABA Commission on Domestic Violence Report, 1, 17-25.

Reno, Extent, Nature, and Consequences of Intimate Partner Violence, Department of Justice West, C.M., Kaufman-Kantor, G., & Jasinski, J.L. (1998). Sociodemographic predictors and cultural barriers to help-seeking behavior by latina and anglo american battered women.

Violence and Victims, 13(4), 361-375.

Hamilton, B., & Coates, J. (1993). Perceived helpfulness and use of professional services by abused women. Journal of Family Violence, 8(4), 313-324.

Fugate, M., et al. (2005). Barriers to domestic violence help seeking: Implications for intervention. Violence Against Women, 11(3), 290-310.

Gold , S. (2002). Why are Victims of domestic violence still dying at the hands of their abusers? Filling the gap in state domestic violence gun laws. Kentucky Law Journal, 91(935), 935-956.

Fugate, M., et al. (2005). Barriers to domestic violence help seeking: Implications for intervention. Violence Against Women, 11(3), 290-310.

Ibid.

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15. Reno, Extent, Nature, and Consequences of Intimate Partner Violence, Department of Justice 16. Raj, A., & Silverman, J. (2002). Violence against immigrant women: The roles of culture, context, and legal immigrant status on intimate partner violence. Violence Against Women, 8(3), 367-398.

17. Orloff, L.E., & Kaguyutan, J.V. (2002). Offering a helping hand: Legal protections for battered immigrant women: A history of legislative responses. American University Journal of Gender, Social Policy and the Law, 10(1), 95-184.

18. Balram, I.K. (2005). The evolving, yet still inadequate, legal protections afforded battered immigrant women. University of Maryland Law Journal of Race, Religion, Gender, and Class, 5(2), 387-410.

19. Dasgupta, S.D. (2005). Women’s realities: Defining domestic violence against women by immigration, race, and class. In N.J. Sokoloff, & C. Pratt (Eds.), Domestic violence at the margins: Readings on race, class, gender, and culture (pp. 56-70). New Brunswick, NJ: Rutgers University Press.

20. Raj, A., & Silverman, J. (2002). Violence against immigrant women: The roles of culture, context, and legal immigrant status on intimate partner violence. Violence Against Women, 8(3), 367-398.

21. Orloff, L.E., & Kaguyutan, J.V. (2002). Offering a helping hand: Legal protections for battered immigrant women: A history of legislative responses. American University Journal of Gender, Social Policy and the Law, 10(1), 95-184.

22. Calvo, J.M. (1991). Spouse-based immigration laws: The legacies of coverture. San Diego Law Review, 28, 593-644.

23. Jones, J.A. (1997). The Immigration marriage fraud amendments: Sham marriages or sham legistlation?. Florida State University Law Review, 24(3), 679-701.

24. Immigration Marriage Fraud Act of 1986, 8 U.S.C. § 1186a (c)(1)(A) 25. Ibid., (c)(4)(B) 26. Orloff, L.E., & Kaguyutan, J.V. (2002). Offering a helping hand: Legal protections for battered immigrant women: A history of legislative responses. American University Journal of Gender, Social Policy and the Law, 10(1), 95-184.

27. Jones, J.A. (1997). The Immigration marriage fraud amendments: Sham marriages or sham legistlation?. Florida State University Law Review, 24(3), 679-701.

28. Calvo, J.M. (1991). Spouse-based immigration laws: The legacies of coverture. San Diego Law Review, 28, 593-644.

29. Immigration Act of 1990, Pub. L. 101-649. 29 November. Stat. 4978.701 (1990).

30. Jones, J.A. (1997). The Immigration marriage fraud amendments: Sham marriages or sham legistlation?. Florida State University Law Review, 24(3), 679-701.

31. Immigration Marriage Fraud Act of 1986, 8 U.S.C. § 1186a 32. Nadeem, E., et al. (2007). Does stigma keep poor young immigrant and U.S.-born black and latina women from seeking mental health care?. Psychiatric Services, 58(12), 1547-1554.

33. Orloff, L.E., & Kaguyutan, J.V. (2002). Offering a helping hand: Legal protections for battered immigrant women: A history of legislative responses. American University Journal of Gender, Social Policy and the Law, 10(1), 95-184.

34. Violence Against Women Act of 1994, 8 U.S.C. 1154(a). (1)(A)(iii)(I)

35. Orloff, L.E., Jang, D., & Klein, C.F. (1995). With no place to turn: Improving legal advocacy for battered immigrant women. Family Law Quarterly, 29(2), 313-330.

36. Raj, A., & Silverman, J. (2002). Violence against immigrant women: The roles of culture, context, and legal immigrant status on intimate partner violence. Violence Against Women, 8(3), 367-398.

37. Orloff, L.E., & Kaguyutan, J.V. (2002). Offering a helping hand: Legal protections for battered immigrant women: A history of legislative responses. American University Journal of Gender, Social Policy and the Law, 10(1), 95-184.

38. 8 U.S.C. § 1182 (4)(A)

39. Violence Against Women Act of 2005, 8 U.S.C. 1129a(c)(7)(C)(i)

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40. (8 U.S.C. 1105a (a))

41. Raj, A., & Silverman, J. (2002). Violence against immigrant women: The roles of culture, context, and legal immigrant status on intimate partner violence. Violence Against Women, 8(3), 367-398.

42. Shaw, K. (2009). Barriers to freedom: continued failure of U.S. immigration laws to offer equal protection to immigrant battered women. Cardozo Journal of Law & Gender, 15(3), 663-690.

43. Maher, Domestic violence and immigration, ABA Commission on Domestic Violence Report, 18 44. Laney, 2005 45. Calvo, J.M. (1991). Spouse-based immigration laws: The legacies of coverture. San Diego Law Review, 28, 593-644.

46. Ibid.

47. Blackstone, W. (1765). Commentaries on the laws of England 1765-1769 (ch. 15). Retrieved from http://www.lonang.com/exlibris/blackstone/bla-115.htm 48. Ibid.

49. Jones, J.A. (1997). The Immigration marriage fraud amendments: Sham marriages or sham legistlation?. Florida State University Law Review, 24(3), 679-701.

50. Tiefenbrun, S. (2006). The cultural, political, and legal climate behind the fight to stop trafficking in women: William J. Clinton’s legacy to women’s rights. Cardozo Journal of Law & Gender, 12(3), 855-884.

51. Carroll, S.J. (1994). The politics of difference: Women public officials as agents of change.

Stanford Law and Policy Review, 5(2), 11-20.

52. Tiefenbrun, S. (2006). The cultural, political, and legal climate behind the fight to stop trafficking in women: William J. Clinton’s legacy to women’s rights. Cardozo Journal of Law & Gender, 12(3), 855-884.

53. Tiefenbrun, S. (2006). The cultural, political, and legal climate behind the fight to stop trafficking in women: William J. Clinton’s legacy to women’s rights. Cardozo Journal of Law & Gender, 12(3), 855-884.

54. Carroll, S.J. (1994). The politics of difference: Women public officials as agents of change.

Stanford Law and Policy Review, 5(2), 11-20.

55. Ibid.

56. Rimer, S. (1994, June 18). The Simpson case: The marriage: Handling of 1898 wife-beating case was a ‘terrible joke,’ prosecutor says. The New York Times. Retrieved from http://www. nytimes.com/1994/06/18/us/simpson-case-marriage-handling-1989-wife-beating-case-wasterrible-joke.html 57. Smolowe, J., et al. (1994, July 4). When violence hits home. Time Magazine, 144(1).

58. Rosenthal, C.S., & Bell, L.C. (1989). Invisible power: Congressional staff and representation behind the scenes. In C.S. Rosenthal (Ed.), Women transforming congress (pp. 341-369).

Oklahoma City, OK: University of Oklahoma Press.

Don’t Oppress the Right to Dress Hobbes, Locke and the Philosophy Behind Banning Religious Garments Daniel Flaherty

College of Arts & Sciences, 2012 History of Political Thought II Professor Andrew Rehfeld

Abstract Do governments have the right to ban the wearing of religious dress? In this paper, I consider this question using the social contract theories of Thomas Hobbes and John Locke and conclude that, in general, governments lack this right. Hobbes and Locke disagree on what laws governments may rightfully make. Hobbes claims that a government’s legislative authority is unlimited in scope, while Locke believes that legislation must be limited to the protection of property. I argue that Locke’s limited view is preferable, and I analyze the question from a Lockean perspective. On his view, governments may not ban religious dress because it violates property rights and because it violates religious freedom. Locke makes an exception in cases where a violation of religious freedom protects the broader public good, but makes no such exception for a violation of property rights. As such, governments may not ban religious dress.

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Do governments have the right to ban the wearing of religious clothing and accessories by their citizens? I believe the answer to be no, and in this paper, I consider this question from the perspectives of social contract theorists Thomas Hobbes and John Locke. In section one, I will briefly describe the significance of the issue and identify major questions about property, religious freedom, and the public good, which will occupy the remainder of this paper. In section two, I will consider both Hobbes’ and Locke’s respective accounts of the nature of legislative authority, from which I will conclude that Locke’s account is limited to the public good and, therefore, preferable. In section three, I will use his account to explore two lines of argument that support my thesis, one based on property rights and one based on religious freedom. I will also consider one possible objection grounded in the preservation of the public good. Finally, in section four, I will conclude by reiterating these points and summarizing my argument that the protection of property rights forbids the banning of religious dress.

The Problem

The issue of whether governments have the right to outlaw religious dress is a manifestation of the tension between the individual liberties of citizens and the legislative authority of the government. To forbid a citizen from performing a certain action or practice is to deny that citizen the liberty to perform it. Thus, the more actions and practices that a government outlaws, the fewer personal liberties that each citizen has. More fundamentally, the more actions and practices that a government may outlaw (i.e. the fewer that are considered inalienable), the fewer guarantees of future liberty that each citizen has. The same can be said for any positive law requiring, rather than prohibiting, the performance of an action or practice.

To determine whether governments may (i.e. have the right to) outlaw the specific practice of wearing religious dress, we must first explore the nature of their legislative authority. What is its origin? To what ends is it directed? What is the extent of its reach? Once we have examined the origin, end, and extent of that authority, we can consider whether religious dress is an appropriate target for government legislation. The following three questions are crucial in determining the answer.

(1) Do governments have the right to confiscate a citizen’s property? (2)

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May governments interfere with religious practices, even if no part of the act is, in itself, illegal? (3) Is the pursuit of the public good (i.e. the protection of life and liberty) sufficient to override either of these considerations? As I shall argue below, the answer to each is no. The protection of individual property rights is paramount, and therefore, governments may not outlaw religious dress.

Origin, End, and Extent of Legislation

When considering whether the government has the right to make a particular kind of law, we must first consider whether the government has the right to make any kind of law at all, for if they have no right to make any law, then they have no right to make a particular law. According to the social contract theories of both Hobbes and Locke, governments do indeed have the right to make at least some kinds of laws. According to both, this right stems from the initial agreement, made by individuals in a pre-societal state of nature, to lay down some of their personal rights, institute a governing body, and invest it with those rights, by which they will be governed. In this state of natue, first introduced by Hobbes, individuals live without the order and protection of a common authority. It is, as he describes it, “a condition of war of everyone against everyone,” in which “everyone is governed by his own reason,” and as such, “has a right to everything, even to one another’s body” in the pursuit of self-preservation. In such a state, he goes on, “there can be no security to any man,” nor liberty, which he defines as “the absence of external impediments,” which, in the state of nature, every other man would certainly be.1,2,3 For these reasons, security and liberty, men are willing to join together, and by mutual consent, give up some portion of their individual rights of self-governance to a common, external body in whom that right will be vested. The extent of that right, differs between Hobbes and Locke, but its origin is, for both, the initial act of consent by which the governing body is instituted and by which the subjects agree to be governed.

The end of government legislation is the establishment of the security and liberty whose absence in the state of nature initially drove men to covenant with one another and create a government. To achieve them, legislation should codify the laws of nature, which incline men toward peace, thereby providing security through fear of punishment for

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breaking them.4,5 In so doing, laws also provide liberty by restraining the actions of other men, thereby ensuring the absence of external impediments. For Locke, however, government legislation serves an additional function that highlights a crucial difference between Locke’s account of the state of nature and Hobbes’ account. Just like Hobbes, Locke claims that these functions are the preservation of man’s life and liberty, but he argues that it is also the preservation of man’s estates, all three of which he refers to collectively as “property” and defines as whatever you remove from the state of nature and mix with your own labor.6 This differs significantly from Hobbes, in whose state of nature there does not include property.7 As we shall see next, this inclusion of property rights is a restriction on the extent of legislative authority in Locke’s commonwealth that does not exist in Hobbes’.

Given the distinct ends for which governments are created and legislation enacted, in how far may laws reach in achieving those ends? In Hobbes’ view, the government’s legislative power is effectively limitless.

He states, “nothing the sovereign representative can do to a subject, on what pretence soever, can properly be called injustice, or injury, because every subject is the author of every act the sovereign doth”.8 The consequence is that, by the single, initial act of consent, each subject authorizes any law the government might wish to make, effectively signing a legislative “blank check” to the sovereign. In Hobbes’ view, the government is not even obliged to respect the lives of its citizens. He identifies the right to resist bodily harm or death as an inalienable right, by virtue of man’s inability to transfer it, but this does not constrain the government’s right to cause bodily harm or death.9 Instead, it merely allows that, in such a case, the government and the subject have simultaneous and conflicting rights, and so neither does injustice to the other.

By contrast, Locke argues that since the government’s legislative authority consists only in the rights given to it by the consenting members of the society, and that since no individual can have an “absolute arbitrary power” over himself, then the government may neither have such a power, thus limiting its legislative to “the public good of the society.”10 And since this public good, specifically the preservation of property, is the end for which individuals covenanted to form the government, it follows that the government “cannot take from any man part of his property without his own consent.”11 In essence, Locke’s legislative authority

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regarding subjects is restricted to the public good, whereas Hobbes’ is not restricted at all. A Lockean legislative may make only laws that preserve the life, liberty, and estate of the citizenry. A Hobbesian legislative, once given power through the sort of covenant described above, may immediately abandon the public good and rightfully make any law he pleases.

The issue of banning religious dress will at last be considered in the following section. However, as I have just argued that a Hobbesian view grants the legislative an unlimited right to make laws regarding the property of its subjects, it is clear that my thesis could stand only on a Lockean view, thus I owe an explanation of why I think it more appropriate. My reasons are twofold. First, on a Lockean view, the government’s legitimacy is contingent upon the continuous consent of the governed, which may be withdrawn if the governance turns contrary to the interests of the people.12 However, on a Hobbesian view, subjects have no recourse against cruel or tyrannical governance, reducing their initial covenant to a dangerous wager, the stakes of which are their very lives.

It may be argued that such a tyrannical government is unlikely to arise, but it seems to me obviously preferable to live in a society, in which, in that unlikely event, citizens could be said justly to rebel.

Second, the Hobbesian view defines justice as performing one’s covenants, provided a sovereign exists to enforce them. With that sovereign in place, justice becomes mere obedience to its laws. Though Hobbes claims that the right to resist bodily harm or death is non-transferrable, and thus could be termed an inalienable right, his insistence that the sovereign would still be just in attempting to take it from you renders this label inapt. I submit that inalienable rights are those rights whose dispossession is, by definition, unjust. Hobbes’ notion of justice leaves no room for any standard of justice beyond the express will of the sovereign, and thus leaves no room for inalienable rights. For these two reasons, I believe Locke to have the better account of legislative authority, and since Hobbes’ view on the question of religious dress is already clearly in favor of such legislative power, I will henceforth be exploring the matter solely from a Lockean perspective.

Property, Toleration, and the Public Good

With a firm grasp on Locke’s account of legislative authority, let us finally examine the question of whether governments, on his account,

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have the right to prohibit religious dress. The first argument that governments lack this right follows directly from Locke’s notion of property rights. To reiterate, Locke claims that the preservation of property is the end of government, and thus governments may not make laws that strip citizens of their property.13 Consider, then, a proposed law to ban the wearing of religious clothing and accessories. Would such a law take a man’s property from him? Presumably, it would not prohibit the mere ownership of the religious item in question, just the wearing of it, but fundamentally, there is no difference between the two. The right of someone to use their property as they will is an indispensable characteristic of ownership. Their right to wear the property in question is one such use. Thus, the right to forbid someone from wearing their property is the right to dictate how they use it, and therefore, the right to deny them ownership of it. It is clear then that the item in question is not truly their property at all. By analogy, if in my garage sits “my” car, but only my friend Joe, not I, gets to decide where it is kept, where and when it is driven, and by whom, is not the claim that it is “mine” really an empty claim? The same holds true for religious dress, or dress of any kind. If it is truly “my” headscarf, yarmulke, crucifix, etc., then I may wear it as I please, and if the government tells me I cannot, then it is infringing on my property rights.

Next, consider Locke’s argument for religious toleration, as expounded in his “A Letter Concerning Toleration”. In general, Locke argues that governments ought to tolerate churches because “the business of these assemblies of the people is nothing but what is lawful for every man in particular to take care of; I mean the salvation of their souls.”14 Regarding legislation specifically, governments may only legislate on matters that are incidental to an act of worship (e.g. time, place, and posture of prayer) and only if they have some bearing on the public good, with the caveat that it may forbid practices that are not merely incidental if the act would, in a secular context, be illegal.15,16 Thus, when Locke asserts that the government has no authority to forbid any rites or ceremonies of the church, of which we might consider religious dress an extended, continuous type, he counters the objection that some churches might claim infanticide as a ceremony by recalling that child murder is contrary to the public good and already illegal, and thus its religious association earns it no special privilege.17 On this view it is clear that, on grounds of religious toleration as well as grounds of property rights,

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governments may not outlaw religious dress, provided the dress is essential to an act of worship and is not otherwise unlawful. For instance, the precise shape and color of yarmulkes and headscarves may be incidental, and thus (if found contrary to the public good) subject to legislation, but the presence of some kind of head covering is central to those acts of worship in Judaism and Islam, and is thus not subject to legislation.

The question arises, what if the very act of wearing some religious article, such as a full burqa, posed a threat to the public good? The act of covering the entire female body, including the head and face, is, according to some Muslims, central to an act of worship. Locke considers an analogous dilemma in which churches might be temporarily forbidden from slaughtering calves so as to let the population rebuild, and he deems such a law appropriate because it is necessary for the public good, despite its interfering with a central feature of an act of worship.18 In both cases, the practice in question is claimed by its practitioners to be necessary for the fulfillment of their religious duties. In the latter case, the fulfillment of that religious duty poses a threat to the public welfare, and so, according to Locke, is subject to legislation. Could the same be said, in the former case, for the burqa? One might argue that covering the head and face prevents easy identification by the authorities, possibly obstructing law enforcement, or that covering the head and face creates a sense of general mistrust among members of society. If true, both effects would be contrary to the public good of society. I must concede then that there are conceivable extenuating circumstances, and should the burqa, or any other article, qualify, then there may be grounds for a legal ban. However, I must concede the point only on the grounds of religious toleration, by which Locke makes exceptions for threats to the public good. Questions of toleration aside, Locke makes no qualifications about the individual’s right to retain her property, and as demonstrated above, that right guarantees her the freedom to wear any religious article she pleases.

Conclusion

I believe I have convincingly demonstrated above that governments lack the right to outlaw religious dress for the following reasons.

Locke is correct in arguing that a government’s legislative authority ought to be contingent upon and confined to the public good, for otherwise, individuals, in their covenant, risk tyranny with no recourse.

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Because legislation is directed at the public good, it cannot target the property of individuals, the preservation of which is a public good. Thus, since religious dress is property, its wear cannot be outlawed. Supplementally, because the government has a duty to tolerate religious practices, lest they threaten the lives and/or liberties of others, religious dress may not be outlawed. As stated above, Locke believes the salvation of one’s soul by the fulfillment of religious duty is a lawful pursuit for every man.

Consequently, that duty may not be arbitrarily obstructed.

To summarize, the preservation of the public good, according to Locke, outweighs religious freedom, but not the protection of property, since the public good is defined as such. However, in the event that some article of religious dress does threaten the public good, we must consider whether the public good of protecting an individual’s property rights is outweighed by the purported broader public good of banning the article in question. Such questions must be handled on a case-by-case basis, but the result remains that, at least in general, governments lack the right to outlaw religious dress.

Notes 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

Hobbes, Thomas. Leviathan. Ed. Edwin Curley. Indianapolis, IN: Hackett Publishing Company, Inc. 1994. 80.

Ibid.

Ibid., 79.

Ibid., 174.

Ibid., 106.

Locke, John. Two Treatises of Government and A Letter Concerning Toleration. Ed. Ian Shapio. New Haven, CT: Yale University Press. 2003. Second Treatise 154, 111-12.

Hobbes, Thomas. Leviathan. Ed. Edwin Curley. Indianapolis, IN: Hackett Publishing Company, Inc. 1994. 78.

Ibid., 138.

Ibid., 82.

Ibid., 159.

Ibid., 161-162.

Ibid., 195.

Locke, John. Two Treatises of Government and A Letter Concerning Toleration. Ed. Ian Shapio. New Haven, CT: Yale University Press. 2003. Second Treatise 161.

Ibid., 232.

Ibid.

Ibid., 236.

Ibid., 235-236.

Ibid., 236.

Crops As Intellectual Property International Copyright Compliance and Protection in Asia and South America Christine Diepenbrock

College of Arts & Sciences, 2013 Independent Study Advisor: Professor Glenn Stone

Abstract The Agreement on Trade-related Aspects on Intellectual Property Rights (TRIPS Agreement) became effective in 1995 as a product of the World Trade Organization’s Uruguay Round. While requiring notification of any legislation relating to intellectual property (IP), the TRIPS Agreement defers to member nations in specific method of implementation. This article surveys the measures taken by China, India, the Philippines, Brazil, and Argentina—five of the six nations with highest planted acreage of genetically modified crops in 2010—to come into compliance with TRIPS and to begin to relate ongoing concerns related to these developing patent regimes to adoption of genetically modified crops. Given the demonstrated difficulty of obtaining quantitative data regarding strength of IP rights enforcement, continued use of case study approaches will be increasingly important in extent of compliance with TRIPS, especially when compliance of least developed nations is reviewed by the Council for TRIPS beginning in 2013.

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The Agreement on Trade-related Aspects on Intellectual Property Rights, or TRIPS Agreement, became effective on January 1, 1995, as a product of the World Trade Organization’s Uruguay Round. Often referred to as the Berne and Paris-Plus Agreement, TRIPS calls for adherence to established standards for copyright protection in the World Intellectual Property Organization’s Berne Convention and for industrial property in its Paris Convention. Standards appearing in TRIPS for the first time include copyright protection for databases containing data not protected under copyright, including expressions, ideas, mathematical concepts, procedures, or methods of operation, and computer programs, which TRIPS categorizes as literary works.1

While Article 63.2 of TRIPS requires nations to notify the Council for TRIPS of any legislation relevant to intellectual property that is passed, the agreement defers to each member nation’s “own legal system and practice” in specific method of implementation.2,3 In this paper I will summarize the measures taken by China, India, the Philippines, Brazil, and Argentina to come into compliance with TRIPS. I will also highlight key concerns the U.S. Trade Representative’s Office has cited in placing these nations on its annual Special 301 Watch and Priority Watch lists of intellectual property rights (IPR) violators; these lists are compiled in accordance with the Trade Act of 1974 and subsequent amendments.4,5 As an overview of the current state of national IPR frameworks, this summary will inform ongoing and future studies conducted in these five nations by Dr. Glenn Stone of Washington University’s Department of Anthropology concerning the factors surrounding adoption or non-adoption of genetically modified (GM) crops such as golden rice, which has been field-tested in the Philippines since 2008 and is expected to be up for approval for commercial sale in the same within the next two years.

China

In its review by the Council for TRIPS in 2002, the Chinese delegation pinned the start of China’s IPR protection framework to the 1970s and noted the country’s participation since the 1980s in a long list of international IPR agreements. Following the passage of TRIPS, the Chinese government passed a collection of amendments to bring its

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IPR framework into compliance: copyright protection was expanded and specified, provisional measures installed to halt infringers prior to trial in court, and enforcement of trademarks strengthened, among other changes.

Enforcement occurs through a system characterized by the Chinese delegation as “Parallel Channels and Coordinated Operation,” in which inventors with IPR protection can either file a lawsuit in court or submit a complaint to the appropriate administrative agency. A list is kept by the government of well-known marks, or brands, but this list includes only marks that have been defended in court and therefore is not plenary.6

Despite the progress cited by China in its initial and subsequent appearances before the WTO, the country remains on the USTR’s Special 301 Priority Watch List. Especially of interest to the USTR is China’s Special Campaign. Begun by Premier Wen Jiabao in October 2010, the program, titled “Program for Special Campaign on Combating IPR Infringement and Manufacture and Sales of Counterfeiting and Shoddy Commodities” in full, is reported by the USTR to have drastically improved prosecution of pharmaceutical counterfeits and licensing of videos. However, online piracy and counterfeit goods continue to be prevalent. Also of concern to USTR is the accreditation system in place for public procurements, designed such that the Chinese government preferentially purchases the products of Chinese-owned enterprises as “indigenous innovations” over otherwise competitive foreign products.7,8

China is becoming an increasingly significant player in the global patent regime, not only on the defensive side but also as a litigant.

Dr. Andrew Torrance, Professor of Law at the University of Kansas, notes that Chinese companies have recently become the largest litigants in the U.S. patent system. In addition, the number of applications for U.S. utility patents originating in mainland China was cited by the U.S. Patent and Trademark Office to increase from 469 in 2000 to 8162 in 2010— a more than seventeen-fold increase.9 As a nation that is a growing technology giant but faces still rampant counterfeiting and piracy, China will continue to be of import on both sides of the patent litigation coin.

With respect to GM crops, Bt cotton—that is, cotton containing a Cry gene from Bacillus thuringensis that, when expressed, will degrade the innards of any cotton bollworms that consume the transformed plant10 —was the singular GM crop planted in China in 2009.11 It is

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important to note that, unlike GM crops in much of the rest of the world, Bt cotton varieties were developed predominantly through public sector science with only limited involvement by multinational corporations.12 However, many additional illegal varieties are being grown in China as well, suggesting that patenting and regulation of GM crops in China will not be immune from the complications the nation has faced in controlling intellectual property in the entertainment, retail, and pharmaceutical sectors.

India

The Indian delegation to the Council of TRIPS dated the beginnings of its IPR system to 1859. India’s Parliament adapted its already existing IPR legislation in 1999 and 2000 to be consistent with the statutes of TRIPS: the Designs Act (1911) and Trade and Merchandise Marks Act (1958) were repealed and replaced, and the Copyright Act (1927) and Patent Act (1970) were revised.

Supplementary legislation was passed to provide sui generis protection of geographical indications of goods and to declare that new plant varieties that are distinctive, uniform, and stable are eligible for Plant Breeder Rights, as called for in Article 27.3(b) of TRIPS and the International Union for the Protection of New Varieties of Plants (UPOV) Act (1978.)13,14

Enforcement of law in India is carried out at the state level.

As such, the central government requested that state governments set up cells for enforcement of copyright and other IPR issues and has provided trainings for the officials in charge of these cells. The central government also established a Copyright Enforcement Advisory Council within its Ministry of Human Resource Development.15

India also remains on the USTR’s Priority Watch List.

However, the USTR’s report acknowledges significant progress in 2010: India’s Parliament passed a Copyright Amendment Bill to combat online piracy and drafted an optical disc law targeted at piracy of music, films, software, and reference materials, particularly textbooks.16 While some industries reported better cooperation with state governments’ enforcement cells, the USTR calls for further strengthening of enforcement mechanisms. Among the report’s other recommendations are passage of the drafted optical disc law and revision of a current provision that allows

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only those chemical forms showing increased efficacy to be patented, a provision which precludes protection of potentially beneficial alterations to pharmaceuticals such as temperature stability.17

Like China, India has been on both sides of the table in the international patent system, serving as a successful plaintiff in a number of key biopiracy cases in the past fifteen years. The U.S. Patent and Trademark Office revoked a patent on the use of turmeric for wound healing in 1997, a patent on the use of the term “basmati” to market American-grown aromatic rice was narrowed in 2001, and the revoked patents on Nap Hal wheat in 2004 and the emulsification of neem seeds for fungicide in 2005.18,19,20,21,22,23 While some of these challenges—all made on the basis of prior art in the form of longstanding traditional knowledge—were brought directly by the Indian government, others were taken up by non-governmental organizations (NGOs) such as Greenpeace and the Research Foundation for Science Technology and Ecology.

Through the publicity drawn by these cases and other controversies such as whether GM crops were implicated in an epidemic of farmer suicides in the Indian state of Andhra Pradesh that peaked in 1998, the crops and patenting of them have been thrust onto the public agenda in recent years and will be a question of continuing debate.

India’s 2008 Patent Manual illustrates this debate in that it lists Terminator gene technology as unpatentable because its primary or intended use “could be contrary to public order or morality” or…could cause serious prejudice to human, animal or plant life,” but at the same time it states that a method of expressing those sequences, antibodies against them, or kits made from them are patentable provided that the GM sequence of interest meets the usual patent eligibility criteria of novelty, industrial application, and inventive step.24,25 The Philippines

The Philippine delegation to the Council for TRIPS dates its judicial system to the sixteenth century. The Intellectual Property Code of the Philippines, passed after TRIPS and effective as of January 1, 1998, established the Intellectual Property Office of the Philippines and consolidated current IPR laws and amendments. Patent protection was c-

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hanged from seventeen years from receipt of patent to twenty years from date of filing. The IP Code also extended copyright protection to literary and artistic works, including software, and intensified penalties for copyright infringement.26

Enforcement of law in the Philippines is governed by five government agencies: the Bureau of Customs, National Bureau of Investigation, Philippine National Police, Videogram Regulatory Board, and Department of Justice. These agencies along with numerous other executive branch officials comprise a Presidential Inter-agency Committee on IPRs, which coordinates enforcement.27

The Philippines was placed on the USTR’s Watch List from 1989 to 1991, Priority Watch List for two years, then back to the Watch List from 1993 to present. The change was mainly due to high incidence of software piracy—as high as ninety-four percent in 1994 —and lack of IPR enforcement.28,29 Inclusion of the Philippines on the Special 301 lists has been challenged as a potential case of undue influence of the U.S. software industry on USTR rulings. Nonetheless, it is largely due to both pressure from the United States through Special 301 and the obligation as a WTO member nation to comply with TRIPS that the Philippines passed the IP Code described above.

The U.S. has kept the Philippines on its Watch List despite passage of the IP Code, citing the nation’s need to reform its judicial system for greater efficiency—measured in terms of number of convictions resulting from criminal IPR cases—and consistency. The Philippine Patent Bill also includes the USTR-contested provision appearing in India’s Patent Act that requires chemical forms to show increased efficacy to be patented.30

The Philippines is on the path to becoming the first nation to deregulate a crop engineered for improved nutrition. As mentioned in the introduction to this analysis, field tests of golden rice, a GM rice strain engineered to have elevated levels of beta-carotene in its endosperm, have been conducted since 2008 in the Philippines. Data from these trials is pending submission in 2013 for the crop’s approval for commercial sale.31 As the product of a humanitarian project with strong funding, golden rice has not been the subject of as much patent controversy as other GM crops developed by private industry. Golden rice was initially sponsored by the Rockefeller Foundation as part of the foundation’s Asia Rice Initiative. It has since received secondary

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funding from the European Commission, the Gates Foundation, and the United States Agency for International Development.32,33 In addition, golden rice has served as the poster child for GM crop proponents since it was featured on the cover of Time magazine in 2000.

All in all, golden rice will likely not bring as many patent skirmishes to the Philippines as biopiracy has brought to India, because patents obtained for crops engineered for humanitarian purposes such as improved nutrition are typically obtained only for defensive purposes, i.e. to prevent another researcher from patenting the same technology at a later date, and are not typically litigated.

Brazil

Brazil’s central government began providing patent protection in 1809 and has since participated in numerous international IPR agreements. Brazil revised its legislation in December 1994 to come into compliance with TRIPS. The Law on Industrial Property, enacted in 1996 to replace the Industrial Property Code of 1971, is Brazil’s keystone IPR law: among other changes, it extended patent eligibility to all areas of technology, including pharmaceutical and chemical products and processes, and placed well-known, collective, and certification marks under trademark protection. The Criminal Code of Brazil and Copyright and Related Rights Law also contain IPR provisions.34 The National Institute of Industrial Property (INPI) is responsible for reviewing patent applications and is part of the central government’s Ministry of Development, Industry, and Foreign Trade.35

Brazil asserted at the beginning of its hearing before the Council for TRIPS in 2001 that, to be meaningful, IP rights must advance the public interest, and that Brazil’s patent laws are designed to this end, particularly in their tendency to increase public and corporate access to new, improved knowledge.36 Brazil’s 1988 Constitution guarantees access to essential medicines as part of a universal right to health. In response to the HIV/AIDS epidemic prevalent among just over half of a percent of Brazil’s adult population, legislation was passed in 1996 to provide free retroviral treatment to affected Brazilians.37 Since 2001, the Brazilian government

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has used the threat of producing generic forms of patent-protected antiretroviral drugs to leverage lower prices from multinational manufacturers.38,39

Brazil appears on the USTR’s Watch List, a status which signifies existence of fewer violations than those persisting in priority watch nations. The USTR report commends Brazil’s federal attorney general for repealing Provisional Measure 2014-1 of 1999, which required that the Ministry of Health approve pharmaceutical patent applications before patents are issued by INPI.40,41 The activities of the Inter-Ministerial Committee on Combat Against Piracy created by Brazil’s central government in 2001 are highlighted in the report as representative of significant progress with regards to enforcement. However, while frequency of searches and seizures and general public awareness of IPR protections have increased since the Committee’s establishment, the USTR report calls for further measures to strengthen enforcement. As was seen in the case of China, persisting areas of IPR violation include book, compact disc, and online piracy as well as counterfeit goods.42,43

The implications of Brazil’s declaration of a universal right to health could extend to any GM crops commercialized in the country with regards to both yield and nutrition. Should the government determine that the potential for increased yields offered by GM crops is important in alleviating the hunger endemic to northeastern Brazil, the government itself could start supplying these crop varieties to farmers as a sort of homolog to generic pharmaceuticals for HIV/AIDS.

In addition, a universal right to health would likely render unpatentable any crops offering improved nutrition such as the protein- and Vitamin A-enhanced cassava currently being developed by the International Laboratory for Tropical Agricultural Biotechnology, but as discussed previously patents on crops developed through humanitarian efforts are typically only defensive in nature. Furthermore, the dominant GM crop in Brazil to date is herbicide-tolerant soy, much of which goes to non-food purposes— namely ethanol and animal feed—so humanitarian questions of the patentability of improved yield or nutrition have largely been absent from the public debate thus far, yielding more to a desire to continue exports to the anti-GM European market and concerns that

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have been voiced since the Green Revolution regarding farmer autonomy in seed production.44 Argentina

Argentina’s Intellectual Property Law (1933) was amended in 1996 to include two World Intellectual Property Organization (WIPO) treaties and again in 1998 to comply with TRIPS. The National Copyright Directorate within the central government’s Ministry of Justice is in charge of copyright and related protections, and Argentina in addition to Brazil created a National Institute of Industrial Property, this time as part of the Ministry of Economy, to oversee the nation’s patent laws. Follow-up questions raised in the areas of patents, protection of undisclosed information, and enforcement were not answered in Argentina’s hearing before the Council for TRIPS due to an ongoing settlement dispute between the United States and Argentina concerning patents and confidential information.45

Argentina was placed on the USTR’s Priority Watch List in 2011, mainly due to problems relating to copyright: pirated and counterfeit goods are endemic, and enforcement remains lax and inefficient. While Argentina began to issue patents for pharmaceutical products in 2000, the USTR recommends strengthening the pharmaceutical patent system to prevent copy-cat drugs, or lower-cost, often generic, pharmaceuticals differing only slightly from their patented counterparts.46,47 The USTR’s 2011 Special 301 report does note progress in enforcement in 2010: Argentina’s Attorney General provided guidance to enforcement agencies regarding IPR crimes; industries and law enforcement officials are becoming more cooperative in raids; and the patent backlog is slowly coming under control.48

The weakness of IP protection and enforcement has been implicated in the relative proliferance of the crops in Argentina, which is the third largest grower of GM crops behind the United States and Brazil. As was seen in the case of Brazil, herbicide-tolerant soy is the main GM crop grown in Argentina, with stacked maize—that is, maize into which traits for both herbicide tolerance and insect resistance have been introduced—in a distant second place and Bt cotton in third place in both nations. The two nations together are dominant among

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developing countries in quantity of GM crop acreage, and much of Argentina’s success with GM has been pinned to early adoption of the crops, for the nation adopted herbicide-tolerant soy in the 1996/1997 planting season—at the same time as North American markets—whereas GM soy was not planted in significant quantities in Brazil until 2001/2002.49,50

Early adoption has been attributed in part to the presence early on of political will to create a “pioneer regulatory system” to ensure the crops’ safety.51 Indeed, the nation’s strong and increasingly large-scale, industrialized agricultural sector and the rise of GM crop projects at research institutions created a strong incentive for the creation of a biosafety system which, taking effect in 1991, placed Argentina about a decade ahead of other developing nations.52 Prior industrialization of the agricultural sector also has precluded the social protest of regulation of GM crops seen in other parts of Latin America, namely Brazil, in which smaller-scale farms still proliferate.

Recapitulation and Further Considerations

China, India, and Argentina appear on the USTR’s 2011 Priority Watch List, while Brazil and the Philippines remain on the lower-level Watch List. Piracy persists in all five nations, though in different forms. Software piracy is the principal concern in the Philippines, whereas book, compact disc, and online piracy predominate in the other four nations. Counterfeit goods are particularly of issue in China, Brazil, and Argentina. Because both pharmaceuticals and GM crops dwell on the level of genes and gene products, continued development of patent protection for pharmaceutical products will be of interest in coming years in all five nations, but particularly in India, Brazil, and Argentina, which delayed patent protection until the start of 2005.53

While called for by the USTR throughout its 2011 report, improvements in the strength of IPR enforcement will be difficult to measure. The Council for TRIPS established a checklist in 1995 to evaluate the extent to which TRIPS is being enforced in practice.

Questions raised in the checklist include which courts in a nation’s judicial system have jurisdiction over intellectual property infringement cases, what the requirements are for earning standing in these courts, w-

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hat methods have been established to protect confidential information, and what types of remedies these courts are authorized to prescribe.54

The checklist also requests data regarding duration and cost of intellectual property-related proceedings.55 However, U.S. government noted in its response to the checklist that data regarding duration and cost are influenced by so many different factors that estimates cannot be provided.56,57 The limitations cited by the United States in providing data for its review suggest that access to data may prove a significant challenge for these five developing nations. In fact, India and China’s submitted checklists do not contain any form of quantitative data.

The USTR’s assessment of changes in enforcement from year to year will thus be largely qualitative, relying predominantly on member nations’ responses to the enforcement checklist and notification of new legislation. Such an approach facilitates the case study approach employed in this paper rather than a comparative analysis, which faces confoundment from factors such as legal history, delegation of power between central government and the states, and far-reaching societal events such as the HIV/AIDS epidemic that have shaped the form and function of WTO member nations’ compliance with TRIPS. Paucity of data will only increase when least-developed nations come under review beginning in 2013.58 While partially ameliorable by further standardization of the review process, the challenges faced by the Council for TRIPS and the USTR in evaluating extent of compliance among member nations are significant and growing.

Notes 1.

2.

3.

4.

5.

6.

World Trade Organization, “Overview: the TRIPS Agreement,” http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm.

World Trade Organization, Marrakesh Declaration of 15 April 1994, Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights (1994), http://www.wto.org/ english/docs_e/legal_e/27-trips.pdf.

World Trade Organization, Procedures for Notification of, and Possible Establishment of a Common Register of National Laws and Regulations Under Article 63.2 (IP/C/2), http:// www.wto.org/english/tratop_e/trips_e/ipc2_e.pdf.

Grace P. Nerona, “The Battle Against Software Piracy: Software Copyright Protection in the Philippines,” Pacific Rim Law & Policy Journal Association 9 3 (2002): 651-680, doi: 1773.1/821.

Office of the United States Trade Representative. 2011 Special 301 Report (2011), http:// www.ustr.gov/webfm_send/2841.

World Trade Organization, Review of Legislation: China (IP/Q/CHN/1, IP/Q2/ CHN/1, IP/Q3/CHN/1, IP/Q4/CHN/1) (2002), http://docsonline.wto.org:80/

72 7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

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DDFDOCUMENTS/T/IP/Q4/CHN1.DOC. Jingxia Shi, “China’s Indigenous Innovation and Government Procurement,” International Centre for Trade and Sustainable Development: China Programme 14 3 (2000), http://ictsd. org/i/news/bridges/84883.

Office of the United States Trade Representative, 2011 Special 301 Report (2011).

United States Patent and Trademark Office, “Number of Utility Patent Applications Filed in the United States, By Country of Origin, Calendar Years 1965 to Present (1),” last modified 7 September 2011, http://www.uspto.gov/web/offices/ac/ido/oeip/taf/appl_yr.htm.

United States Department of Agriculture: Agriculture Research Service, Bt Cotton & Management of the Tobacco Budworm-Bollworm Complex (ARS-154) (2001), http://www.ars. usda.gov/is/np/btcotton/btcotton.pdf.

Clive James, “Global status of commercialized biotech/GM crops: 2009,” ISAAA Brief No. 41 (Ithaca, New York: International Service for the Acquisition of Agri-Biotech Applications, 2010), as compiled in Glenn Davis Stone “The Anthropology of Genetically Modified Crops,” Annual Review of Anthropology 39 (2010): 381-400, http://artsci.wustl.edu/~anthro/research/stone/stone-annualreview-2010.pdf. Carl E. Pray, “Public and Private Collaboration on Plant Biotechnology in China,” AgBioForum 2 1 (1999): 48-53, http://www.agbioforum. org/v2n1/v2n1a09-pray.pdf.

World Trade Organization, Review of Legislation: India (IP/Q/IND/1, IP/Q2/IND/1, IP/ Q3/IND/1, IP/Q4/IND/1) (2003), http://docsonline.wto.org:80/DDFDOCUMENTS/T/ IP/Q4/IND1.DOC. International Union for the Protection of New Varieties of Plants, “What is UPOV?”, http:// www.upov.int/overview/en/upov.html.

World Trade Organization, Review of Legislation: India, 2003.

International Intellectual Property Alliance, India: International Intellectual Property Alliance (IIPA) 2010 Special 301 Report on Copyright Protection and Enforcement (2010), http://www.iipa.com/rbc/2010/2010SPEC301INDIA.pdf.

Office of the United States Trade Representative, 2011 Special 301 Report.

Alyson Slack, “Turmeric,” TED Case Studies (2004), http://www1.american.edu/ted/turmeric.htm.

Sumathi Subbiah, “Reaping What They Sow: The Basmati Rice Controversy and Strategies for Protecting Traditional Knowledge,” Boston College International and Comparative Law Review 27 2 (2004), http://www.bc.edu/dam/files/schools/law/lawreviews/journals/bciclr/27_2/12_TXT.htm.

M.R. Subramani, “Monsanto to sell wheat patent as part of cereal biz” (2004), http://www. artsci.wustl.edu/~anthro/research/india/2.15.04Monsanto.htm.

Randeep Ramesh, “Monsanto’s chapati patent raises Indian ire,” The Guardian 31 January 2004, http://www.guardian.co.uk/science/2004/jan/31/gm.food.

Sara Hasan, “The Neem Tree, Environment, Culture and Intellectual Property,” TED Case Studies (2002), http://www1.american.edu/ted/neemtree.htm.

Cormac Sheridan, “EPO neem patent revocation revives biopiracy debate,” Nature Biotechnology 23 (2005): 511-512, http://www.nature.com/nbt/journal/v23/n5/full/nbt0505-511. html.

Glenn Davis Stone, “Biotechnology and Suicide in India,” Anthropology News 43 5 (2002), http://artsci.wustl.edu/~anthro/research/biotech_suicide.html.

The Patent Office, India, Draft Manual of Patent Practice and Procedure (2008), http://ipindia.nic.in/ipr/patent/DraftPatent_Manual_2008.pdf.

Grace P. Nerona, The Battle Against Software Piracy: Software Copyright Protection in the Philippines, 2002.

World Trade Organization, Review of Legislation: Philippines (IP/Q/PHL/1, IP/ Q2/PHL/1, IP/Q3/PHL/1, IP/Q4/PHL/1) (2004), http://docsonline.wto.org:80/ DDFDOCUMENTS/T/IP/Q4/PHL1.DOC. International Planning & Research Corporation, Business Software Alliance & Software &

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Information Industry Association, 1998 Global Software Piracy Report 2 (1999), as cited in 28. Grace P. Nerona , The Battle Against Software Piracy: Software Copyright Protection in the Philippines (2002).

29. Office of the United States Trade Representative, 2011 Special 301 Report.

30. International Rice Research Institute, “New Golden Rice partners join forces against Vitamin A deficiency,” http://irri.org/news-events/media-releases/new-golden-rice-partners-joinvitamin-a-deficiency-fight.

31. Ibid.

32. Kristen Hessler et. al, “Case Study: Golden Rice,” Biotechnology Outreach Education Center at Iowa State University, in Life Science Ethics, edited by Gary Comstock (Ames, Iowa: Iowa State Press, 2002), http://www.public.iastate.edu/~ethics/GoldenRiceCaseStudy.pdf.

33. World Trade Organization, Review of Legislation: Brazil (IP/Q/BRA/1, IP/Q2/BRA/1, IP/ Q3/BRA/1, IP/Q4/BRA/1) (2004), http://docsonline.wto.org:80/DDFDOCUMENTS/T/ IP/Q4/BRA1.DOC. 34. Instituto Nacional da Propriedade Industrial, “INPI,” http://www.inpi.gov.br/index.php/ english.

35. World Trade Organization, Review of Legislation: Brazil (2004).

36. Kenneth C. Shadlen, “The Politics of Patents and Drugs in Brazil and Mexico: The Industrial Bases of Health Policies,” Comparative Politics 42 1 (2009): 41-58, http://ase.tufts.edu/gdae/ Pubs/rp/ShadlenPoliticsOfPatentsOct09.pdf.

37. Amy Stewart Nunn et al., “AIDS Treatment in Brazil: Impacts and Challenges,” Health Affairs 28 4 (2009): 1103-1113, http://content.healthaffairs.org/content/28/4/1103.full. pdf+html.

38. Jane Galvão, “Access to antirretroviral drugs in Brazil,” The Lancet 360 9348 (2002): 18621865, http://www.sciencedirect.com/science/article/pii/S0140673602117752.

39. World Trade Organization, Review of Legislation: Brazil, 2004.

40. Nuno Pires de Carvalho, The TRIPS regime of patent rights (The Hague, Netherlands: Kluwer Law International, 2005.)

41. World Trade Organization, Review of Legislation: Brazil (2004).

42. International Intellectual Property Alliance, 2011 Special 301: Historical Summary (2011), http://www.iipa.com/rbc/2011/2011SPEC301HISTORICALSUMMARY.pdf.

43. Victor Pelaez and Wilson Schmidt, “Social struggles and the regulation of transgenic crops in Brazil,” in Agribusiness and Society: Corporate Responses to Environmentalism, Market Opportunities, and Public Regulation, edited by Kees Jansen and Sietze Vellema (London: Zed Books, 2004).

44. World Trade Organization, Review of Legislation: Argentina (IP/Q/ARG/1, IP/ Q2/ARG/1, IP/Q3/ARG/1, IP/Q4/ARG/1) (2001), http://docsonline.wto.org:80/ DDFDOCUMENTS/T/IP/Q4/ARG1.DOC. 45. Jennifer Ellen Mattson, “Timeline of US-Argentina Dispute on Pharmaceutical Patents,” University of California at Berkeley: Consumer Project on Technology (2005), http://www. cptech.org/ip/health/c/argentina/argentinatimeline.html.

46. European Commission: Trade, “Country: Argentina” (2004), http://trade.ec.europa.eu/ doclib/docs/2004/august/tradoc_113203.pdf.

47. Office of the United States Trade Representative, 2011 Special 301 Report.

48. Clive James, “Global status of commercialized biotech/GM crops: 2009”, as compiled in Glenn Davis Stone, “The Anthropology of Genetically Modified Crops” (2010).

49. Dr. Eduardo J. Trigo, “Quince Años de Cultivos Genéticamente Modificados en la Agricultura Argentina,” Consejo Argentino para la Información y el Desarrollo de la Biotecnología – ArgenBio (2011), http://www.argenbio.org/adc/uploads/15_anos_Estudio_de_cultivos_ GM_en_Argentina.pdf.

50. Gabriela Levius, ArgenBio, as quoted in “Economic Impact After 15 Years of GM Crops in Argentina,” International Service for the Acquisition of Agri-Biotech Applications (2011), http://www.isaaa.org/kc/cropbiotechupdate/article/default.asp?ID=8849.

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51. Moisés Burachik and Patricia L. Traynor, “Analysis of a National Biosafety System: Regulatory Policies and Procedures in Argentina,” International Service for National Agricultural Research (2002), ftp://ftp.cgiar.org/isnar/Publicat/cr63.pdf.

52. World Trade Organization, “Fact Sheet: TRIPS and Pharmaceutical Patents: Developing countries’ transition periods” (2006), http://www.wto.org/english/tratop_e/trips_e/factsheet_pharm04_e.htm.

53. World Trade Organization, “Checklist of Issues on Enforcement: Decision of the Council for TRIPS of 21 November 1995” (IP/C/5) (1995), http://www.wto.org/english/tratop_e/ trips_e/ipc5_e.pdf.

54. Ibid.

55. Carlos M. Correa, Research handbook on the interpretation and enforcement of intellectual property under WTO rules (Cheltenham, United Kingdom: Edward Elgar Publishing, 2010).

56. World Trade Organization, Review of Legislation on Enforcement: United States (IP/Q4/ USA/1) (1998), http://docsonline.wto.org:80/DDFDOCUMENTS/T/IP/Q4/USA1.DOC. 57. World Trade Organization, “Frequently asked questions about TRIPS,” http://www.wto.org/ english/tratop_e/trips_e/tripfq_e.htm.

By the Powers Vested in me Online Ministers, the Legitimacy of Marriage Ceremonies and the First Amendment Divya Moolchandani

College of Arts & Sciences, 2012 Courts and Civil Liberties Professor Denise Lieberman

Abstract This paper will explore the opposing and supportive positions concerning the legitimacy of marriages performed by ministers ordained on the internet. By examining the current language of laws that delineate the appropriate options for marriage officiation and looking at precedential application of the Free Exercise Clause, prohibiting or penalizing these online ministers is a violation of the Constitution. This conclusion has implications for the future of laws concerning state regulation of marriage, religion, and the progression of technology.

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The most advertised service promoted by online churches is the ability to become an ordained minister. The typical online ordination, a free service, requires the potential minister to provide name, email, address, and guarantee that he or she is over the age of 13. By then clicking the “ordain me” button, the minister receives a receipt of ordination. A study found that 80% of the people who join the online Universal Life Church, a non-denominational, interfaith organization, do so for the sole purpose of marrying people.1 In the United States, marriage is a strongly protected legal institution, and the 20 million ministers of the Universal Life Church as well as the marriage ceremonies they perform have come under scrutiny regarding the questionable legality of the ceremony and officiant.2

One of the most popular online churches, the Universal Life Church (ULC), is an institution that was founded in 1959 by Kirby Hensley, who asserted that “everyone has a right to their own conviction;” ULC is a United States 501 (3)(c) religious organization that began as a mail order service in a supposed effort to remove the politics out of ordainment and welcome anyone who felt a vocational calling to join the ministry.3 Its mission is to “ensure the absolute right of freedom to practice religion based on the First Amendment… [by changing] negative perceptions of religion, faith, and spirituality.”4 To the members of its congregation, the Church offers a social networking community with online forums to discuss a variety of religious and secular topics, as well as an online chapel, in which those who belong to ULC can offer and request prayers and deliver sermons by posting them on the site. However, the most popular service that the ULC offers is ordination. It is common practice for individuals ascribing to ULC practices to become ordained, and thus as a member of the clergy, perform marital unions.

Recently, there have been a number of cases that grapple with establishment and recognition of legal marital union, which varies state by state in the United States. For example, Connecticut, Alabama, Virginia, and Tennessee “prohibit weddings performed by ministers who do not have active ministries,” and though “prosecution is unlikely,” the “penalty for unauthorized performance of marriage” in these states carries a maximum fine of $500 and up to one year in jail.5 While the intent of evaluating online ordination is motivated by respect for the “institution of fair and honest marriage,” couples whose unions are legally challenged may find difficulties when filing joint tax returns, receiving both life and

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healthcare insurance benefits, making proxy decisions, and in the case of future divorce, properly dividing assets and making alimony payments.6

Those who participate in the Church’s activities assert that failing to recognize marriages performed by ULC’s clergy is a violation of the First Amendment, particularly the Free Exercise clause. For over 50 years, the ULC has been ordaining ministers as a practice of its religion.

To prohibit the ability to perform marriage ceremonies would be in violation of the rights of ULC followers to freely practice an aspect of their religion.

Opponents to the recognition of marriages performed by ULC clergy argue that, with 20 million members ordained, there is a lack of sincerity for the profession and, thus, the religion itself.7 Clergy members that traditionally perform marriages are well-versed in doctrine and argue that they, and in turn the people for whom they officiate, exhibit much more respect for the sanctity of marriage. The compelling interest in preserving this sanctity and the legitimacy of marriage vows directly correlates to a clergy member’s “professional status, and intellectual authority” in regard to religious expertise.8 Those who oppose marriage by online ministers fear that those who are married by ULC clergy members may one day declare their marriage invalid on the grounds that it was not performed by a recognized and established church. This undesired outcome would interfere with the government’s interest in regulating couples and households for a variety of purposes, such as taxation.

It is possible to view online churches, such as the Universal Life Church, as having a comparatively diminished authority due to their novelty and lack of authoritarian dogma. Many question the legitimacy of ULC’s concept of a congregation as well as if it is considered to be truly established, as ULC does not have a physical building for its members to congregate in “a habitual basis of worship.”9 Ensuring that the clergy member or justice of the peace has a legitimate authority ensures that marriages remain fair and honest, and is not sought to be arbitrarily invalidated by couples in lieu of obtaining a divorce. It is in the interest of the state to maintain the proper procedures that it has adopted toward marriage and its potential dissolution; religious integrity of a marriage contributes to maintaining this state interest by creating an additional means of enforcement and accountability for couples.

Advocates of marriages by online ministers argue that it is not “in the interest of the state to have couples who thought they were married

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and then realize they [are not],” and it is important to consider the values of freedom of religion in comparison to the legal protection of marriage.10 The Church will even, for a fee, provide a letter of good standing to any governing institutions in order to establish the credibility of its ministry and, thus, allow the marriage ceremony to be legal. Ordination in ULC does not signify that the member is a religious authority but rather that the member belongs to the community. In regard to the establishment of the congregation, the ULC member can maintain that members of the wedding party who asked the member to perform the ceremony constitutes a valid congregation, as they must be maintaining the same standard of beliefs as the person conducting the ceremony. Furthermore, even if there is no physical building, the active online forum exists as a sufficient replacement. Though the state has a compelling interest in regulating marriage, this can be done by the obtaining of a marriage license, which all married couples must acquire. There is no legitimate interest in regulating who performs the ceremony, as there is no threat to community safety or order, and the faults and worth of a religion are not a consideration of a government-regulated practice. This attitude is evidenced by precedent dating to 1890. Davis v. Beason established that unless a person’s beliefs interfere with the laws for peace, prosperity, and morality, no government interference shall be permitted.11 ULC’s teaching and its followers have yet to display evidence of this level of interference with these laws.

By looking at precedential evaluation of what constitutes a religion and is thus protected by the Free Exercise clause, it is possible to determine whether ULC clergy members’ marriages are valid as well as if not recognizing these marriages is a violation. US v. Ballard (1944) put forth the question regarding the validity of beliefs of the “I Am” sect, and if they can be protected. It was determined, however, that the truth of the views could not be taken into account, only the sincerity of those views.12 Considering the truth of a religious doctrine from a legal perspective crosses into forbidden territory that potentially pits the truths of one religion against another, guaranteeing an inevitable preference to one and directly infringing on the rights guaranteed in the Free Exercise Clause. Precedential examination extends to the consideration of the state’s evaluation of its interest and whether regulation of who performs marriages is a legitimate interest of the state that needs to be regulated.

In Reynolds v. US (1878), polygamy was deemed impermissible because

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the state found a legitimate interest in regulating marriages to more than one person. The Court considered this specific practice outside of its religious context and whether it constituted a legitimate harm to the interests of the state. Most significantly, the doctrines of Mormonism itself were not questioned.13

These determinations can be applied to the facts surrounding a determination of ULC marriage validity. Unless the actions of a religion potentially harm society directly, as it was determined that polygamist practice of Mormonism did, government interference and any legal determination of a religious doctrine’s truths are prohibited. By examining the online forums, resources, and doctrines that are made available by the ULC, it is clear that the beliefs of members from the past 50 years are grounded in a group’s intention to find solace with spiritual or religious motivation. Though the Church is not in a physical place, members can post sermons and the message boards, updated daily, are active with members’ discussions of faith and higher authorities. ULC is not a traditional approach to religion, but it is a sincere belief that is parallel to an “orthodox belief in God.”14 By a combination of sincerity and evidence of beliefs that parallel worship of a higher being, the Church appears to fulfill Constitutional requirements of religious protection. Thus, prohibiting an action of the ordained members that does not conflict with state interest is a violation of the First Amendment.

Additionally, the performance of a marriage, independent of ULC’s teachings, does not change the requirements regarding obtaining a license, which the state mandates and does have a true interest in regulating. Regulating who performs marriage ceremonies is an unjust imposition by the state, as there can be no compelling interest to interfere with people’s beliefs, whether they are denominational, interfaith, or nonexistent. In Cantwell v. Connecticut (1940), the Court found that the state did have a legitimate interest in preventing fraud and preserving the peace of the community in regard to Free Exercise. Any prohibition on officiating, however, would not service a legitimate, non-religious, governmental goal, and thus not be a valid secular policy.15 Those who request a ULC clergy member cannot simultaneously choose to be willingly defrauded, as it is a valid religion with sincere beliefs, and there is no means by which the officiating could constitute a disturbance of peace.

While ULC has sufficiently established itself as a legitimate religion in the eyes of the law, the problem lies in the sincerity of all its

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members, which is particularly difficult to prove as the doctrines of the ULC are so broad. Even if most of its members are not truly sincere, ssuch lack of sincerity does not diminish the actions of those who ascribe to the community provided by the ULC, as evidenced in the extremely active message board and religious online socializing. For many years, marriages performed by these ministers have both succeeded and failed, just like marriages of other religions, and there has been no recorded harm to the community. Prohibiting ULC marriages would cause disruption, delegitimize a number of marriages, and create an undue burden on courts. By not protecting ULC marriages and dismissing them as illegitimate, it creates a threat for marriages performed by members of other religions or performed outside of a religious ceremony, jeopardizes their validity, and violates the Free Exercise clause of the First Amendment.

Notes 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

Devan Sipher, “Great Wedding! But Was It Legal?,” The New York Times. August 5, 2007.

Alexandra Marin, “Internet-Ordained Ministers and Marriage in Pennsylvania: Bucks County and York County Disagree on Legality of Marriage According to the Pennsylvania Marriage Act,” Rutgers Journal of Law & Religion (2009): 1-18.

Robert E. Rains, “Marriage in the Time of Internet Ministers: I Now Pronounce You Married, But Who Am I To Do So?,” University of Miami Law Review (2010): 1-69.

“Universal Life Church Monastery,” Universal Life Church Ministry, Last modified 2012, http://www.themonastery.org/.

Devan Sipher, “Great Wedding! But Was It Legal?,” The New York Times. August 5, 2007.

Alexandra Marin, “Internet-Ordained Ministers and Marriage in Pennsylvania: Bucks County and York County Disagree on Legality of Marriage According to the Pennsylvania Marriage Act,” Rutgers Journal of Law & Religion (2009): 1-18.

“Universal Life Church Monastery,” Universal Life Church Ministry, Last modified 2012, http://www.themonastery.org/.

Bryan S. Turner, “Religious Authority and the New Media,” Theory, Culture & Society 24 (2007): 117-34.

Alexandra Marin, “Internet-Ordained Ministers and Marriage in Pennsylvania: Bucks County and York County Disagree on Legality of Marriage According to the Pennsylvania Marriage Act,” Rutgers Journal of Law & Religion (2009): 1-18.

Devan Sipher, “Great Wedding! But Was It Legal?,” The New York Times. August 5, 2007.

Davis v. Beason, 133 U.S. 333 (1890).

United States v. Ballard, 322 U.S. 78 (1944).

Reynolds v. United States, 98 U.S. 145 (1878).

United States v. Seeger, 380 U.S. 163 (1965).

Cantwell v. Connecticut, 310 U.S. 296 (1940).

Tweaking Toxic Torts Using a Modified Market Share Approach to Better Address Environmental Externalities

Will Bucher

College of Arts & Sciences, 2012 Energy and Environmental Issues Professor William Lowry

Abstract The U.S. tort system should provide proper incentives for firms to create toxic pollution at optimal societal levels, regardless of any applicable regulations, yet this is often not true because the burden of proof can create distorted economic incentives in mass torts. This paper mathematically shows why this failure occurs for toxic torts when using a traditional tort framework. The mathematical framework is also expanded to demonstrate that this problem could be eliminated if the causation element is moved to the damage, rather than liability, phase of the trial. Legal precedent for adjusting standard tort procedures is briefly examined. Because of economic implications and the available precedent, in order to induce proper market incentives for the production of goods that produce negative externalities the U.S. tort system, the system should adopt a standard of reducing damages based on the probability of causation rather than using causation as an all-or-nothing determination of liability.

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When firms that produce dangerous chemicals do so in a harmful manner, the civil tort system can be one of the few options available to those injured to recover damages. In fact, at least theoretically, the tort system isn’t just a tool available to reimbursement. If operated correctly, the U.S. tort system should provide proper incentives for firms to create toxic pollution at optimal societal levels, regardless of any applicable regulations. Yet it appears, at least anecdotally, that the current tort system falls short of doing this because the preponderance of the evidence standard creates distorted economic incentives in mass torts.

When causation is easy to prove on a macro level but impossible to prove on an individual level – as is the case with most toxic torts – companies face a situation where they will either be legally obligated to pay more in damages than they actually created or pay nothing at all. This paper mathematically shows why this failure occurs for toxic torts when using a traditional tort framework. The mathematical framework is also expanded to demonstrate that this problem could be eliminated if the causation element is moved to the damage, rather than liability, phase of the trial.1 Legal precedent for adjusting standard tort procedures exists in many, such as the Sindell ruling to apply market share liability in California. But not all states agree, and, further, these precedents exist in cases where it was impossible to determine the injurer because there were so many companies at fault, not because of some occurrences of harm were faultless. Applying the probability of causation in the damages phase allows the underlying reasoning in Sindell to be applied to wider range of cases.

In light of the economic inplications and the available precedent, the U.S. tort system, in order to induce proper market incentives for the production of negative externalities such as toxins, should adopt a standard of reducing damages based on the probability of causation rather than using causation as an all-or-nothing determination of liability.

Economics show that, assuming no transactions costs and only one party for both the plaintiff and the defendant, that the tort system can achieve outcomes of efficient level of pollution even in the absence of any environmental regulation.2 This claim has received criticism on both practical and equity grounds, but, when fully analyzed, these criticisms cannot be shown to hinder the tort system’s ability to achieve efficient outcomes in toxic torts.3,4 Further, to the extent these criticisms are still supported, they fail to offer a better alternative given a regulatory system that is highly inefficient and that frequently fails even loose cost-benefit

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analysis.5

A third criticism of the tort system – that the burden of proof can sometimes make it impossible for victims to recover anything in mass torts – does hold merit. Because certain damages can be difficult to trace individually – for example, whether or not a person’s cancer came from a toxin or natural radiation – victims can sometimes be left without recourse even when demographic data clearly indicates that people were harmed by a company’s actions. Toxic torts often suffer this pitfall because they are usually characterized by easily proven damage across a population but insurmountable hurdles to causation on an individual level. This paper shows mathematically why this is the case and further shows how shifting the application of causation to the damages phase of the trial would eliminate situations in which just plaintiffs were left without an effective means of receiving reimbursement and provide appropriate economic incentives for companies considering polluting.

To understand why the current tort system has failings, it helps to first understand why it should, in theory, induce proper market outcomes. The problem of the tragedy of the commons is by no means a new concept in environment studies. Simply put, the theory states that when the actions of one individual cause cost to be incurred on others, the market will not be efficient until the true cost of production is born by those who reap the benefits.6 Mathematically, consider a model where a firm has two components of its true cost function: traditional costs, like labor, which we will represent as T, and negative externalities, such as environmental degradation or increased disease rates in the surrounding area, which we will denote as E. Using the theory above, we only expect to see an optimal level of production when the realized costs (C) equal the true costs. Logically: If C = T + E → production levels are efficient.

But under a traditional market structure, the externalities are not paid for by the firm so: C = T → C ≠ T + E → production levels are NOT efficient

In this simplified world in which all externalities are only spread to one other individual, and in which suing is costless7, a tort system returns the system to equilibrium.8 When an individual is harmed by externalities generated by a firm, he sues that firm. The firm is then found

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liable, and must pay damages equal to the cost of the harm. These damages get factored into the firms realized cost, C, so: C = T + Damages Damages = E C = T + E → production levels are efficient.

Yet, despite having a court system that allows for civil torts, there are still cases in which an apparent market failure occurs in the United States. An example is Anderson v. Cryovac, a case that involved pollutant leakage in Woburn, Massachusetts and was the basis for the book “A Civil Action.” A company’s improper disposal of industrial solvents contaminated the water supply, causing, in the opinion of epidemiologists, between 4 and 6 cases of leukemia in the town. In the relevant time period, the town saw 12 cases of leukemia among its entire populace from all causes, including those who contracted the disease as the result of the firm’s actions.9 Ultimately the case settled for $8 million, despite the death of at least five children from the disease. While the exact reasons for settlement are necessarily multifaceted, the timing of the settlement suggests that the relatively low sum paid to the plaintiff was a consequence of the legal hurdle they were about to face in the second phase of the trial.10

At the time of settlement, the jury was about to consider the question of causation whether or not the pollutants actually caused the appearance of leukemia. Under the legal rules of that jurisdiction as well as under the rules of most legal jurisdictions in the U.S., the firm would have been liable if the plaintiff was able to show by a preponderance of the evidence that the disease was caused by the contamination. Even given the most liberal interpretation of scientist’s estimates, the probability that any one plaintiff had contracted the disease as the result of the firm’s actions was 50%. But preponderance of the evidence is a 51% threshold, so, assuming no jury error, this meant the plaintiff could not meet this standard.11 Even though the plaintiffs sued jointly, and it was relatively clear that at least some of the plaintiffs were suffering as a result of the defendant’s actions, under current legal rules they would have still been unable to recover any damages.

The efficiency theory of torts breaks down because while there are multiple plaintiffs, and multiple causes, each individual must meet the burden of proof on their own. Expanding the simplified world above to

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more closely match how our current court system works, the reason why there is still market failure is apparent.

E will continue to represent the negative externalities, but now these externalities also occur naturally at a background rate, B. Society can measure both B and E through epidemiological studies, but an individual suffering from an affliction cannot determine whether the harm was caused by the firm or the background rate, although they can determine a probability based on societal statistics. So, under the current toxic tort system which requires a plaintiff meet a more likely than not standard to hold the firm liable, either all plaintiffs recover the cost of their disease (when E > B), or none do (when E < B). Below are the two different results this can have on the cost function of firms.

1. If B > E → E/(B+E) < .5 → plaintiffs cannot meet their burden.

Therefore:

C = T → C ≠ T + E → production levels are NOT efficient

2. Alternatively, If E > B → E/(B+E) > .5 → plaintiffs CAN meet their burden. Therefore: C = T + E + B → C ≠ T + E → production levels are NOT efficient

Regardless of how damaging the externalities are relative to the background rate, the firms cost function will not correctly capture the true cost of production, and, consequently, production levels will be inefficient. As shown in mathematical demonstration of the tragedy of the commons earlier, total costs must equal traditional costs plus externalized costs for an efficient market (C = T + E), but here C ≠ T + E so the market is not operating efficiently.

Further problems arise when there are multiple polluting firms.

Continue the logic above, except now there are multiple firms (two in the example), with costs and inputs denoted by a corresponding subscript X, such that X = 1, 2 … n, where n is the number of firms. Now E = E1 + E2 + … En. Specifically, in our example, E = E1 + E2, where E1 is the first firm’s externalities, and E2 is the second firm’s externalities.

Now the first firm can avoid liability if E1 < E2 + B. Similarly, the other firm can avoid liability if E2 < E1 + B. In the one firm framework, a company could only avoid liability so long as E < B. In a multi-

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firm framework however, a firm avoids any additional costs if E1 < E2 + … + En + B. This means firms can produce infinite levels of negative externalities and never pay additional costs, so long that firm’s levels of pollution are similar to those of others firms.

The math shows what anecdotal evidence already suggests: the current system does not induce efficient production levels when it employs a preponderance of the evidence threshold for assigning liability. But there is a simple solution that does induce proper incentives. As stated before, firms should pay a Cx = Tx + Ex in equilibrium. We can achieve this level if we move the determination of causation to the damages phase, rather than the liability phase, of the trial. Under this system, a plaintiff would recover the harm they suffered multiplied by the probability that it was actually caused by the defendant. As shown below, this creates an efficient outcome.

Damages Awarded per Plaintiff per Firm = Harm * EX/(E+B) Total Harm to Plaintiffs = E + B Total Damages Awarded per Firm = E + B * EX/(E + B) = EX CX = TX + Total Damages Awarded CX = TX + EX → production levels are efficient

This solution doesn’t require the court to acquire any more information or make any more determinations than it already does. It need simply apply those determinations at a different stage of the trial. As the math above demonstrates, the efficient level of CX = TX + EX can be reached by using the probability of causation as a moderator of damages rather than as a gatekeeper for compensation. Further, there already exists legal precedent that, at least when interpreted in economic terms, suggests the above system should be implemented in toxic torts. In the case of Sindell v. Abbott Laboratories, the plaintiffs alleged that when they took synthetic estrogen (DES) to avoid miscarriage they contracted cancer from the effects of the drug. While the fact that the drug had caused the cancer was relatively clear, it was impossible to determine which manufacturer, among nearly 200, had produced the actual DES that the plaintiff had taken. The defendants argued that, according to a traditional theory of torts, none could be found to be responsible by a preponderance of an evidence standard. The supreme court of California ruled that all the defendants were liable, but were only liable for damages equal to their market share, which, mathematically, is equal to the

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probability that they caused the harm. While it only appears near the end of the majority opinion, Justice Mosk recognizes this, stating “under this approach, each manufacturer’s liability would approximate its responsibility for the injuries caused by its own products”.12

This ruling, while directly in line with what economic theory suggests should be done, has unfortunately been interpreted narrowly in its scope, excluding many toxic torts from pursuing a similar theory of liability. In the case Skipworth v. Lead Industries Association, the plaintiff suffered from lead poisoning which had numerous potential sources, mainly lead paint manufactures. The plaintiff attempted to pursue a market share liability theory under the theory laid out in Sindell.13 The supreme court of Pennsylvania ruled against the plaintiff in the case, stating that because, unlike in Sindell, many potential defendants were not able to be included in the suite (because some had gone out of business), so it would be improper to assign market share liability. In the words of justice Cappy, “application of market share liability to lead paint cases such as this one would...make determinations of culpability arbitrary and unfair” (Skipworth)14

The ruling in Skipworth, as well as similar rulings, have limited the use of the precedent in Sindell when it is not possible to identify and try all potential inflicters of the harm suffered, either because they no longer exist or because, like in Woburn, significant background rates are present. These rulings fail to see the fundamental principle established in the case: that firms should be held responsible to an extent that induces proper market incentives for the firm’s behavior. The philosophy of a free market is that by letting firms and people behave how they want, an optimal level of goods and services will be provided. But when companies do not pay the true costs of what they produce, when they are not held responsible for the damage they do to others, the system ceases to be ideal. A society’s attempts to establish a free market a chief role of the government, and in turn the court system, is to return the market to an efficient level.

This critical principle may have been ignored because the judges viewed the Sindell decision for its importance in advancing fairness while ignoring the equally, if not more, important role it played in correcting market incentives. In the opinions of the cases, as well as in the claims made by others who advocate for the expansion of the Sindell precedent such as Rosenberg, the issue is framed as moral issue of fairness, while

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economics is mentioned only briefly.15,16 But the principle of applying economic theory to tort cases dates back at least as far as Learned Hand’s ruling in the 1947 case United States v. Carroll Towing Co. where it was established that cost benefit analysis should be used in determining negligence.17 Admittedly, Hand directly applied economics to a greater extent in his ruling than did the Sindell court, but this speaks to his perception, not to the precedent that was set. Even if one accepts that the Sindell ruling was the result of abstract moral principles such as fairness, it is logical to then determine why those moral principles are justified. At least one answer is that the Sindell ruling was fair because it induced incentives to bring a market back to equilibrium output, or, put more simply, required that firms pay the true cost of the product they produced. The inability of the court to articulate this fact should not stymie efforts to apply the precedent properly in the future. Just because the correct result was reached for the wrong reasons does not mean the wrong reasons need to be applied again.

The fact that some companies have gone bankrupt or that some of the harm was caused by background environmental factors that cannot be made a party to the case does nothing to hinder efficient assignment of damages under the modified tort system suggested above. Returning to the math, notice that when the extent of the harm is multiplied by the probability that the firm caused it, the two terms representing the system cancel out, leaving a realized cost proportional to that firm’s externalities, EX. This happens regardless of how many other firms there are, whether or not they are being sued or even still in existence. It is true that damages awarded to the plaintiff will be reduced if some companies no longer exist, but this has no effect on the Sindell precedent’s ability to induce appropriate outcomes in the market’s remaining firms.

Beyond economic rationale, the Skipworth precedent offends any sense of fairness, as a simple hypothetical demonstrates. Consider a situation in which three gunmen enter a crowd with identical weapons. They all fire only one shot. When the crowd disperses, one gunman is apprehended, two have committed suicide, and three bystanders are dead. Ignoring criminal law, how many wrongful deaths should the remaining gunman be held liable for, given that there is 100% certainty he killed one person, yet only 33% certainty he killed a given victim? The traditional tort system suggests that, unable to prove him responsible for the death of any one of the victims above a 50% threshold, he is liable for none.

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Skipworth suggests that because the two other gunmen can longer be held liable, he is responsible for none, even though if they were both still alive he would be responsible for one. It does not take the economic analysis above to see that both these determinations are absurd at best.

In toxic torts, the harm is not inflicted intentionally, chemicals replace bullets, and firms replace gunmen, but it is no less absurd to suggest that chemical company is responsible for none of the cases of leukemia in Woburn, MA, or that the lead painters are responsible for none of the lead poisoning in Skipworth. Yet this is what our current legal system, under a Skipworth interpretation of Sindell, suggests the determinations should be.

This paper is by no means the first to apply the concepts of market incentives and market share liability to the functioning of our court system. But the courts have been slow to adopt these economic rationales for their decisions often citing, as above, an appeal to inherent fairness in their delay fairness. This paper sidesteps those moral arguments and argues for another compelling reason, that of inducing proper market incentives, toxic torts should be treated differently than they currently are. It applies the broad concepts of using the law to influence proper economic incentives and applies them to the case of mass toxic torts.

A recent paper by Posner and Porat argued broadly that the courts should allow for aggregation of claims when there are multiple injuries or parties. Using an array of examples, like those in the paper, as well as logic, they demonstrated the advantages of such a system. Posner and Porat conclude that, “Normative aggregation should improve substantive law—in the sense of vindicating values and policy choices that are already found in the law, but which defendants can violate if claims are not aggregated.”18

This paper takes those concepts and applies them more specifically to toxic torts. More importantly, however, the above math shows a clear and formalized justification for this method. It shows why, from an economic perspective, the defendants are violating the “vindicating values and policy choices” when the claims are not aggregated. While Posner and Porat’s work is compelling, it relies heavily on an appeal to analogy and base logic. But relying on appeals to fairness can only go so far as the moral values of ones audience allows them to go. As the judges in Skipworth demonstrated, when there are competing reasons to justify a morally just ruling the underlying precedent can get lost in the transition. This paper offers an economic reason that cannot be overlooked. If

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our court system wishes to uphold the free market values the United States holds dear, there is no question that it is failing in toxic court cases if it applies a ruling comparable to that in Skipworth.

As was shown in the math above, there is also a simple way to fix the system: the Skipworth interpretation of Sindell should be discarded in favor of a toxic tort system that holds all companies who release pollutants liable, and then limiting their liability to the probability that they actually caused the harm suffered. This was, in effect, what was done in Sindell, and the precedent should be reinterpreted and applied to all toxic torts even where not all causes can be held directly accountable through solvent agents.

But the Skipworth interpretation of Sindell should be discarded in favor of a toxic tort system that holds all companies who release pollutants liable, and then limiting their liability to the probability that they actually caused the harm suffered. This was, in effect, what was done in Sindell, and the precedent should be reinterpreted and applied to all toxic torts even where not all causes can be held directly accountable through solvent agents.

There is overwhelming justification for this proposal, theoretically, practically, and politically. Economically, such a system would be much more effective then the current system for returning externality generation to an efficient level. Practically, the cost of such a change would be minimal. Courts would have to change how they functioned, but they would be tasked with investigating and determining the same set of facts (can the type of action taken by the defendant harm, what is the probability that it did, in fact, cause harm, and how much harm was suffered) and there is nothing to suggest that rearranging the order of inquiry would increase costs. Politically, such a change could occur without any additional legislation. Judges need only properly interpret the standard already set in Sindell.

In fact, the only reasonable opposition to applying the Sindell precedent to a wider range of toxic torts would have to rest in some abstract notion of equity or fairness. Such a claim may exist, but even if it were made, it would have to contend that a system that returns a failed market to an efficient equilibrium is less fair than one that does not. Such a claim would be difficult to articulate, and until such a time that it is, it would seem prudent to pursue a toxic tort system in which the probability of causation determined damages, not liability.

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Notes 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

Throughout this paper, liability refers to a determination of whether or not a defendant is responsible to pay damages to a plaintiff. Being liable does not make any suggestion about how much a defendant should pay the plaintiff. This is determined in another phase of the trial, and could, in theory, be $0.

Miceli, Thomas J. The Economic Approach to Law. Stanford, CA: Stanford Economics and Finance, 2009. Print.

Practical criticisms typically arise from the inability of our court system to handle cases involving a large number of parties and complex scientific information. For example, in regards to the damages caused by global warming, there are literally billions of offenders as well as victims, and all of whom contributed to and were effected by the harm to a different degree.

In theory, a sufficiently advanced tort system could cause GHG emissions to be reduced to efficient levels, but practically it is clear that the current court system we have is woefully unequipped to handle externalities of this scale. Critics argue that for this problem, as well as many other environmental problems, we must look to other solutions to return the market to efficient levels (Menell). But the criticism of practicality is not applicable to all environmental torts. When there are relativity few involved parties and damages are high relative to the transactions costs associated with litigation, the American tort system can be efficient. Toxic torts, the specific class of environmental tort characterized by health damage to individuals from exposure to pollutants, present a situation in which environmental problems may be best solved by our existing tort system rather than regulation. These torts typically have high damages and few involved parties, something our court system, as well as our legal profession, are adept at handling.

Equity considerations arise out of a claim, often true, that most of the monetary compensation goes to attorneys rather than victims (Menell). However true this may be, these equity concerns do not impair the ability of the tort system to induce the economy to behave efficiently, the claim that is being made. Once an economy operates efficiently, producing the optimal level of goods and services, equity considerations can be addressed in ways that do not hinder efficiency, such as wealth redistribution.

Regulations regarding the use of wood treating chemicals have been estimated to cost the economy $6.3 trillion per statistical life saved (Portney & Stavins, 250).

Hardin, Garrett. “The Tragedy of the Commons.” Science 162.3859 (1968): 1243-248. Ares.

For an explanation of why the theory still holds even if this assumption is eliminated, see the appended paper.

Miceli, The Economic Approach to Law Menell, Peter S. “The Limitations of Legal Institutions for Addressing Environmental Risks.”

The Journal of Economic Perspectives 5.3 (1991): 93-113. Web. <http://www.jstor.org/ stable/1942798>.

Bair, E. Scott. “Case Summary - Woburn Trial.” SERC. School of Earth Sciences, Ohio State University. Web. 27 Apr. 2011. <http://serc.carleton.edu/woburn/Case_summary.html>.

Menell, “The Limitations of Legal Institutions,” 99 Sindell v. Abbott Laboratories, Et Al. Supreme Court of California. 20 Mar. 1980. Sindell v. Abbott Laboratories, 607 P. 2d 924 - Cal: Supreme. Web. 26 Apr. 2011. <http://scholar.google.com/scholar_case?case=3206462791271114084&q=sindell+v. +abbott+laboratories&hl=en&as_sdt=2,26&as_vis=1>.

While Sindell and Skipworth were tried in different jurisdictions, which may account for some of the difference in interpretation, the opinion in Skipworth cites, analyzes and responds to the ruling in Sindell directly, suggesting that the precedent in Sindell factored into the court’s decisions (Skipworth).

Skipworth v. Lead Industries Association. Supreme Court of Pennsylvania. 1997. Skipworth v.

Lead Industries Association. Courtroom Connect, Inc. Web. 28 Apr. 2011. <http://lawschool. courtroomview.com/acf_cases/9057-skipworth-v-lead-industries-association>.

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15. Sindell v. Abbott Laboratories 16. Rosenberg, David; 97 Harv. L. Rev 849 (1983-1984); Casual Connection in Mass Exposure Cases: A Public Law Vision of the Tort System, The 17. Miceli, The Economic Approach to Law 18. Posner, 44

Other Sources Bucher, Will W. A Brief Analysis of Why the Tort System Is Better Equipped to Deal with

Environmental Externalities than a Regulatory Framework. Unpublished. Appended.

Coleman, Jules L. â&#x20AC;&#x153;Tort Liability and the Limits of Corrective Justice.â&#x20AC;? 2010. Philosophy of Law:

Classic and Contemporary Readings. Ed. Larry May and Jeff Brown. Chichester, U.K.:

Wiley-Blackwell, 2010. 330-37. Print.

Portney, Paul R., and R. N. Stavins. Public Policies for Environmental Protection.

Washington, DC: Resources for the Future, 2000. Print.

Brutality, Betrayal and Baseball Conformity and the Needs of Americans in Court Decision Making Ariel Dobkin College of Arts & Sciences, 2012 Law in American Life II Professor David T. Konig

Abstract In this essay, I explore ways in which American courts and juries have interpreted the law according to the culture and expectations of the population at that time. When clear facts are either missing or oppose a decision of which the public would approve, do courts and juries interpret the laws to suit American cultural needs? I consider four separate legal cases that occurred in the 19th and 20th centuries – the Haymarket Affair, the trials of Ethel and Julius Rosenberg, the Black Sox Scandal and the shifts in abortion laws in the 19th century. This analysis indicates that courts and juries often overlook facts or “bend” legal rules in order to reach a decision that appeals to the public’s attitude about the issue at hand. This finding suggests that courts often take liberties with cases that have the potential to effect Americans’ national pride or concerns about the future of the country.

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American Courts are traditionally expected to use their power to “bolster the rule of American law” while providing an appropriate avenue to fight cases of discrimination, unfair treatment and more.1 In the post-Civil War era, as Americans faced new social movements, the Court assumed an additional role in judging cases in ways that provided the American people, and usually white Protestants, with that for which they hoped or craved. In some cases, this meant the creation of scapegoats on whom the public could blame their fears (of, for example, immigrants or communism); in another instance, when the people needed to preserve the sanctity of “America’s pastime,” the Court acquitted men who had clearly committed a crime. When the American legal system was changing to become more progressive, the courts allowed the creation of stringent legislation on abortion that preserved a strain of Protestant traditionalism in the legal code. In essence, the courts in the postCivil War era assumed a social role by using their decisions to respond to the American people and alleviate fears of a changing future with little regard for the true application of the codes or precedents invoked.

Throughout the nation’s history, Americans have somewhat ironically harbored resentment or fear of immigrants. The Haymarket affair combined two intense trepidations of white, native-born Americans into one severe injustice. Fears of foreigners and of radical politics combined to spawn a serious case against eight men who were eventually convicted of murder and conspiracy. At the time, laborers everywhere were fighting for better working conditions and the right to unionize.

On May 4, 1886, a labor rally took place in Chicago’s Haymarket Square to protest police brutality against a crowd of strikers and scab workers on the previous day; the Haymarket rally was so peaceful that the mayor himself, who had come to observe the rally, walked home early because he had no concerns about safety or violence. However, when policemen came to break up the meeting, someone, whose identity had not been discovered, threw a bomb into the officers’ ranks. One policeman died from the bomb’s explosion; in the ensuing mayhem, six other officers died, as well as many civilians. The brutality in the ensuing brawl was largely due to the police force’s use of extreme force; the order was to “Fire and kill all you can!”

Less than two months later, eight men were brought to trial on charges of conspiracy and murder. Not one of the men could be concretely connected to the bomb; in fact, only two could be placed anywhere near

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Haymarket Square on May 4. However, all eight were known anarchist laborers, and seven were foreign-born; this seemed enough to convict and sentence them to death. The men were not indicted based on fact; instead, American impulses of the time led to their guilty verdicts: fear of foreigners, a demand for quick answers to terrorism, a resort to patriotic discourse, and a distrust of radical politics and anarchists. Further, without evidence of the bomber’s identity, the court and jury had no means through which to act objectively. Lacking any concrete details about who might be guilty, the court had to find outside motivation for a decision.

The case was dictated not by facts, but by conjecture and the citizenry’s need to identify a public enemy. The men were not convicted as eight conspirators on the basis of evidence of their contributions to the bomb; instead they were found guilty due to their political ideologies, which differed from those of most native-born Americans.

The threat Americans saw in these men was a symbol of the anxiety towards the growing influx of immigrants to the United States and their tendency to rally for unionization capabilities and fair working conditions. The case revolved around controversies of immigration and labor issues, making the verdict even more vulnerable to public scrutiny.

The role of the media contributed to the negative portrayal of the accused: cartoons illustrated them as animals or monsters, while articles took care to distinguish between the “Americans and the Americanized foreign elements of the working classes.”2,3 Those who put Americans in danger through protest and the bomb at Haymarket were members of the “foreign elements.” Therefore, instead of the law providing a satisfactory response to the case and a mediation violence and discrimination, the Court was manipulated by the fears of the media and the public. The United States was changing in response to immigration and new political factions based on aberrant ideas; the eight men indicted for this offense, were convicted as scapegoats, not as guilty criminals. The American public needed someone to blame for this crime; immigrants and laborers were the perfect victims, so the law conformed to the opinions and needs of the public.

Over six decades later, the courts twisted law once again to suit the American public’s need for an enemy that embodied their fears. Now, however, the fear was not of immigrants; instead, the people feared communism, treason, and radicalism in the face of the Cold War. In 1951, Ethel and Julius Rosenberg were sentenced to death for conspiracy to co-

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mmit espionage by stealing secrets concerning the atomic bomb from the United States and delivering it to the Soviet Union. In fact, the bomb had not been stolen, and any valuable information passed from the Americans to the Russians was likely done so through Klaus Fuchs, a British scientist who had worked on the Manhattan Project, a fact of which the American government was well aware. The case itself merely represented a public relations victory for the United States at the time. The American public needed to see people held responsible for the Soviet Union’s acquisition of an atomic bomb, and this case presented an avenue for blame. The court’s discussion of a large spy ring painted an image that frightened a public already wary of communism. McCarthyism and anti-communism were gaining traction, and Americans were looking for a scapegoat on whom they could to blame the United States’ foreign dilemmas; the Rosenbergs filled this role perfectly.

Furthermore, the prosecution’s careful narrative throughout the trial symbolized the “triumph of concordance over discordance.”4 The discussion of a preexisting, stable state before the Rosenbergs’ alleged crime coupled with the subsequent loss of the US’s nuclear monopoly created a need for a punishment that would deter all future espionage.

Further, the use of Ethel Rosenberg’s brother, David Greenglass, as a witness contributed to the narrative a sense of the magnitude of the Rosenbergs’ criminality. The real audience of the prosecution and the judge was not the jury or the courtroom – it was the nation. While the decision itself may have been part of the account of the case, the judge’s words accounted for the discourse; his statement that the Lord had to forgive the Rosenbergs, not the Court, was a part of the strong narrative that pitted the nation against the supposed spies.

Again, the public needed an enemy to embody a fear of communism, and the court conformed the law to convict the Rosenbergs with insubstantial evidence. Instead of being based on physical evidence, the prosecution’s case relied on the testimony of Ethel Rosenberg’s brother, in which he said that she had given the Soviets notes on US nuclear secrets; years later, Greenglass admitted that his testimony was false. At the time, however, the situation was made simple for the jury, as the prosecution defined conspiracy as the simple agreement or intent to break a law – it seemed that the Rosenbergs had done just that. All over the country, people were desperate to define and convict a known enemy; this conviction would supposedly make the public feel safer and in better con-

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trol of the situation. The Rosenberg case was an injustice spurred on by the anti-communist panic of the American people; as Robert Ferguson states, “the poison of Communist ideology had infected the land” and Americans wanted to see the Rosenbergs as “administering [this ideology] as traitorous Americans.”5 Once they had someone to blame, and that person was executed by the American government, Americans had a reason, albeit superficial and unwarranted, to feel safer.

The law was often manipulated to convict innocent people of a crime because the public needed someone to blame for their fears of new social movements, whether the change was immigration or the dissemination of communism. However, a look at baseball shows that manipulation of the law occurred for other reasons as well. Baseball was a case in which the law bent to ensure that Americans did not lose their sense of baseball as the wholesome American pastime. Originally, baseball was governed by “moral force” and there were few codified rules; the players were simply expected to act like gentlemen. As time went on and the game became vastly popular, rules were written and the Major League Baseball organization was formed. In 1919, when White Sox players accepted a bribe to intentionally lose the World Series, people hailed the scandal as coming from nowhere. While untrue, this myth is integral to baseball’s significance for Americans. The sport had been corrupt and mismanaged for years, but people refused to see it as such; they needed to believe in a myth of morality.

Charles Comiskey, the owner of the White Sox, had mistreated his players for years. They were underpaid, denied bonuses, refused salaries when injured, and lacked the ability to work as a free agent. So when the White Sox players accepted the bribe in 1919, many people blamed Comiskey for driving them to do so. While the players were banned from playing professional baseball ever again, due to missing evidence at the legal proceedings, they were acquitted of any crime. It is commonly accepted that acquittal was certain from the beginning of the trial. The law conformed to give the American public what it needed at the time. For years, baseball had been “America’s pastime;” Americans were not ready to lose the illusion of the game’s moral fiber.

A final scenario for which the law was manipulated to meet the needs of the American population was with abortion legislation after the Civil War. Unlike the Haymarket affair, the Rosenbergs’ case, or the Black Sox scandal, this was a situation that did not require the bending

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of the laws to reach the outcome that the American people desired. After the Civil War, few abortion laws were in place; those that existed were lenient and did not seriously affect people. In fact, before the 1860s, few cases against those involved in abortions were brought to court; convictions were very rare. However, after the Civil War, in an effort to improve medicine and gain control of the profession, regular physicians began a crusade against abortion that “criminalized medicine” by changing the law in reaction to scientific discovery. Most new legislation focused on the denial of quickening as a significant stage in pregnancy; this led to the belief that abortions performed before this stage were no more legitimate than those done afterwards. The aggressive movement against abortion began before the Civil War; the founding of the American Medical Association (AMA) in 1847 provided an institutionalized framework through which physicians could fight for more stringent statutes against abortion practices. The reasons for opposition to abortion were three-fold. The first standpoint against abortion stemmed from morality; if quickening was not a legitimate distinction, than at any stage of a pregnancy, an abortion constituted feticide. Second, most physicians were white, nativeborn Protestants of Northern European descent. When, in the post-Civil War era, it became apparent that many women who received abortions were of the same descent and did so for family planning reasons, physicians engaged in nativism to fight for the purity of their ethnicities and for the preservation of America’s white, Protestant-dominated population. Finally, with the recent increase in women’s rights, including females’ ability to attend some universities, file for divorce more easily, and their traction gained in the suffrage movement, physicians employed non-infanto mania, the fear that American women were becoming unwilling to remain in their “places” by raising a family.6 These three motivations combined to create a passionate campaign for stricter abortion legislation by regular physicians across the country.

As the nation geared up for the impending Civil War, legislation regarding medical practices was pushed to the wayside, but the campaign against abortion resumed quickly in the mid-1860s. Between 1860 and 1880, at least forty new anti-abortion statutes were passed, including twenty-one that revised already existing statutes into more stringent codes and thirteen that were brand new pieces of legislation. This significant increase was owed in part to the rise of a new Republican Party that was willing to use the power of the state to rationalize many facets of pu-

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blic policy. The new government was open to the influence of medical professionals, creating a more favorable climate for regular physicians.

The second factor that contributed to the increase in anti-abortion legislation was the increase in physicians’ credibility as professionals, due to the importance they placed on scientific education and research, separating them from irregular physicians. An example of legislation that tightened restrictions on abortion is the Ohio legislature’s decision in 1867 to redefine abortion as the “destruction of a vitalized embryo or foetus at any stage of utero-gestation,” an elimination of the quickening doctrine.7 The state medical society had compelled the legislature to address the issue; a formal report issued on abortion in Ohio pointed to their widespread occurrence, public tolerance of abortion as a result of the illegitimate quickening doctrine, and the fact that native-born women underwent abortions more often than immigrants did, a reminder of the concern with nativism of many physicians. One legislator attempted to amend the bill to illegalize abortion only for married women, but this amendment failed. This is indicative of the increased influence of medical professionals on the state government, as it was their impact that led to the stricter statute. Another example is in New York in 1869, where attempted abortion of any woman, “whether she be or not be pregnant,” constituted a crime, taking the burden of proof of pregnancy off of prosecutors.8

After 1860, normative policies faced a shift due to combined pressure from medical societies and the public, whose shift in opinion on abortion was sparked by regular physicians. Legislation across the US removed a distinction for quickening, revoked common law immunities for women, and enlisted the peripheral powers of the state to control abortion advertising and the definition of obscenity.9 After 1880, this transition continued more rapidly until 1900, when abortion was completely prohibited across the country. The passage of explicit anti-abortion laws was owed to the rapidly professionalizing regular physicians who had recognized their long-term goal of controlling the standards of American medicine. An illustrative comparison is that between Dr. Edward M. Browne and Dr. Thomas A. Weed; both physicians were indicted for performing abortions and faced a prosecution whose evidence was entirely circumstantial. In 1863, Dr. Browne was presumed innocent based on the premise that his ownership of the tools for abortion did not indicate that he had, in fact, performed one; ten years later, Dr. Weed was convicted in

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a case where the key evidence was merely his issuance of circular advertising his services.

The sharp contrast between Browne and Weed elucidates how quickly the Courts changed to respond to the American sentiment of the time. Throughout the first half of nineteenth century, abortion was relatively more acceptable; however, as prevalence of abortions for middle- and upper-class, white, Protestant women (who were often married) gained prevalence, doctors of the same breed began an aggressive campaign against the practice. Many courts did not have explicit laws regarding abortion; physicians seized upon this hole in the system to create legislations from scratch. While this is not a case of the Court bending the rules to accommodate the needs of the American people, it runs in the same vein. The legislatures and courts responded to medical professionals, who represented the educated, white, Protestant classes, by crafting legislation that would preserve the integrity of their women. At a time when traditional white, Protestant ideals were being forgotten due to African-American suffrage, and progressions in womenâ&#x20AC;&#x2122;s rights, abortion legislation was the governmentâ&#x20AC;&#x2122;s chance to give Americans something traditional in the new, changing world.

In these four cases, it is apparent that American courts, meant to uphold legal order and ensure equity, often take on the responsibility of assessing the needs of the people and providing an avenue for hope in the government as the solution to current problems. In many cases during the post-Civil War era, the needs that the Courts addressed were those of the majority and of white Protestants, a strain of discrimination often enforced by the judicial system. Whether the Courts are providing scapegoats for American fears, keeping a favorite pastime wholesome for the fans, or maintaining Protestant tradition, the Courts have traditionally conformed to the demands of the people they serve.

Notes 1.

2.

3.

4.

5.

6.

7.

8.

9.

Robert Ferguson, The Trial in American Life, Chicago: The University of Chicago Press, 2007, 231.

Ibid., 201.

Ibid., 198.

Ibid., 239.

Ibid., 250.

James C. Mohr, Abortion in America, New York: Oxford University Press, 1978, 168.

Ibid., 208.

Ibid., 217.

Ibid., 224-225.