Princeton Legal Journal Vol. I Issue 1 (Spring 2021) by princetonlegaljournal

PRINCETON LEGAL JOURNAL

EDITORIAL TEAM 2020-2021 President Susan Baek Vice President Srishti Ghosh Secretary Gail Parambi

Managing Editor Danielle Samake

FORUM

REVIEW

Associate Editors Alexa Underwood Bianca Ortiz

Associate Editors Aishwarya Kalyanaraman Joanna Zhang

Writers Anna Shin Beck Reiferson Benjamin Edelson JC Martinez Jessica Lee Madeleine Polubinski Margaret Murphy Myles McKnight Sam Pathak

Writers Ana Villada Hannah Hedley Jonathan Lee Kareena Bhakta Rebecca Cao Rishi Khanna Sydney Johnson Uma Menon

Marketing Officers Ava Peters Xander de los Reyes

Treasurer Elliott Hyon

TABLE OF CONTENTS Letter from the Board___________________________________________5 The Gambia v. Myanmar: Enforcing Justice on the International Stage____6 By Kareena Bhakta ’24 & Uma Menon ‘24 Controversy and Cover-Ups: The Case Against Confidentiality Agreements Pertaining to Sexual Misconduct_________________________________22 By Hannah Hedley ‘24 A Responsibility to Uplift: Why the Supreme Court Must Stop Section 2 Attacks_____________________________________________________40 By Rishi Khanna ‘24 GUEST FEATURE | “Those Who Won Our Independence”: Free Speech, Sedition, and the American Rejection of English Jurisprudence_________56 By Juan José López Haddad ‘22

Letter from the Board Dear Reader, On behalf of the Editorial and Executive Boards at the Princeton Legal Journal, we are delighted to present the inaugural issue of the first-ever printed volume of our journal. The Princeton Legal Journal was founded to create opportunities for undergraduate students at Princeton to explore and deepen their understanding of the law. This past year, we have launched a website featuring articles in our Forum section, hosted a series of campus-wide workshops on legal writing, and now, published our first issue of the journal. In this issue, we are proud to offer three articles that explore a wide range of legal thought. Respectively, the articles scrutinize the accountability structure of the International Court of Justice, evaluate the way in which non-disclosure agreements systematically enable perpetrators of sexual misconduct, and highlight the U.S. government’s moral obligation to relax voting restrictions in order to combat racism. We are also excited to feature a guest contribution from Juan José Lopez Haddad about free speech, sedition, and the American rejection of English jurisprudence. We would like to convey our sincerest gratitude to everyone who has contributed to making this issue a success. The journal is a culmination of the efforts of our Executive Board, Editorial staff, Marketing team, and writers, all of whom have demonstrated an unparalleled commitment and passion to breathing life into this issue. We are honored to present a humble representation of the spirit of curiosity, intellectual zeal, and earnestness that we hope to nurture in the Princeton community and beyond through many volumes to come. Sincerely, Srishti Ghosh, Editor-in-Chief Susan Baek, President 5

THE GAMBIA V. MYANMAR: ENFORCING JUSTICE ON THE INTERNATIONAL STAGE WRITTEN BY: K. BHAKTA & U. MENON EDITED BY: A. KALYANARAMAN, J. ZHANG, D. SAMAKE & S. GHOSH

THE GAMBIA V. MYANMAR: ENFORCING JUSTICE ON THE INTERNATIONAL STAGE Kareena Bhakta and Uma Menon I. INTRODUCTION The genocide of Rohingya Muslims in the Buddhist-majority country of Myanmar began on August 25, 2017 and has led to an international crisis, killing approximately 24,000 people by mid-2019.1 The Rohingya people are an ethnic minority in Myanmar, where they have been denied citizenship and treated as outsiders since the passing of the Citizenship Law in 1982.2 This law requires an extensive amount of evidence to demonstrate a familial connection to Myanmar, which is necessary to be recognized as a citizen. 3 Mass murder, the destruction of Rohingya villages, and the rape of Rohingya women constitute some of the egregious actions undertaken by the Myanmar military.4 The 2019 Human Rights Watch World Report found that thousands of Rohingya were forced to seek refuge in Bangladesh, a neighboring country, while those who remained in Myanmar continued to endure a life in peril.5

“Former UN chief says Bangladesh cannot continue hosting Rohingya,” Aljazeera, July 10, 2019, https://www.aljazeera.com/news/2019/7/10/former-un-chief-says-bangladesh-cannot-continuehosting-rohingya. 2 Nurul Islam, “Rohingya: A People Under Endless Tyranny,” Asian Affairs: An American Review vol. 48, no. 1 (2021): 20. 3 “Discrimination in Arakan,” Human Rights Watch vol. 12, no. 3 (2000): 3. 4 “Myanmar Rohingya: What you need to know about the crisis,” BBC News, January 23, 2020, https://www.bbc.com/news/world-asia-41566561. 5 World Report 2020: Events of 2019 (New York: Human Rights Watch, 2020), 409, https://www.hrw.org/sites/default/files/world_report_download/hrw_world_report_2020_0.pdf.

These dangerous conditions stem from a history of mistreatment. The aforementioned Citizenship Law has resulted in the statelessness of thousands of refugees today.6 Moreover, the Myanmar government has continually denied these allegations and has made moves to prevent the spread of information about the genocide.7 From jailing reporters to refusing aid from the United Nations (UN), the Myanmar government has gone to great lengths to thwart any critique of their military and hide evidence of genocide. 8 The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) was a case filed at the International Court of Justice (ICJ) by The Gambia against Myanmar for violating international law by committing genocide. We argue that the case of The Gambia v. Myanmar demonstrates the importance of accountability in enforcing international law and expand on how the ICJ may be improved to better reflect this goal. II. GROUNDS FOR THE GAMBIA’S INVOLVEMENT A. Obligations under the Convention on the Prevention and Punishment of the Crime of Genocide International responses to the oppression of the Rohingya people in Myanmar have been largely limited to public statements and condemnations, which have not discouraged the Myanmar government from perpetrating violence. 9 The 6

World Report 2020: Events of 2019, 410. World Report 2020: Events of 2019, 412-413. 8 World Report 2020: Events of 2019, 412-413. 9 Stephanie Nebehay and Simon Lewis, “U.N. brands Myanmar violence a 'textbook' example of ethnic cleansing,” Reuters, September 11, 2017, https://www.reuters.com/article/us myanmar7

Gambia v. Myanmar thus turned the tide in this regard. In November of 2019, The Gambia initiated legal action against Myanmar for committing genocide against the Rohingya minority. The UN Convention on the Prevention and Punishment of the Crime of Genocide recognizes genocide as “a crime under international law,” and has been ratified by both countries.10 Under Article IX of the Convention, any disputes regarding “the interpretation, application or fulfillment” of its contents are to be handled by the ICJ.11 However, the legal definition of such a dispute is significantly limited as it applies only when states possess “clearly opposite views concerning the question of the performance or non-performance of certain international obligations.”12 To evaluate the existence of such a dispute, the ICJ relied upon (1) factual proof of genocide and (2) communication between The Gambia and Myanmar, which indicated clear disagreement on whether Myanmar’s actions constituted genocide. 13 On the grounds that preventing genocide is an erga omnes (“towards everyone”) obligation, as delineated in the Genocide Convention, The Gambia indicated that Myanmar has committed crimes against the Rohingya people and has

rohingya/u-n-brands-myanmar-violence-a-textbook-example-of-ethnic-cleansingidUSKCN1BM0QF. 10 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951). 11 Convention on the Prevention and Punishment of the Crime of Genocide, art IX. 12 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gam. v. Myan.), Request for the Indication of Provisional Measures, 23 January 2020, I.C.J. Rep. 178, ¶ 10. 13 Gam. v. Myan., 2020 I.C.J. ¶ 12-13.

threatened universal human rights. 14 Appealing to the erga omnes nature set an important precedent: the obligation to prevent genocide ought to be a universal humanitarian concern as opposed to one that only belongs to affected states. The ICJ’s order, issued in January 2020, declared that “any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.”15 This decision signaled an important step toward codifying the international responsibilities that states owe to one another. While states have previously intervened through military action in cases of genocide, The Gambia v. Myanmar has further paved the way for legal intervention to prevent genocide. B. Requesting Provisional Measures Following reports of genocide among the Rohingya population, The Gambia attempted to put pressure on the Myanmar government by requesting provisional measures to stop on-going atrocities while the ICJ deliberated on a final decision.16 These measures can only be approved after meeting the following three conditions: (1) prima facie jurisdiction, meaning the Court must decide at first glance whether Gambia’s request is necessary; (2) there is a “link between those

Gam. v. Myan., 2020 I.C.J. ¶ 5. Gam. v. Myan., 2020 I.C.J. ¶ 16. 16 D. Wes Rist, “What Does the ICJ Decision on The Gambia v. Myanmar Mean?” American Society of International Law, February 27, 2020, https://www.asil.org/insights/volume/24/issue/2/what-does-icj-decision-gambia-v-myanmar-mean. 15

rights,” which are considered to be in danger, “and the measures requested”; and (3) there exists “a real and imminent risk.”17 Four provisional measures were subsequently approved by the ICJ: (1) Myanmar must “prevent the commission of all acts within the scope of Article II of the Convention,” including, but not limited to, “killing members of the group”; (2) Myanmar must prevent its military from engaging in genocide; (3) Myanmar must not destroy evidence of the genocide; and (4) Myanmar must submit a report in response to the court order.18 By approving the institution of provisional measures, the ICJ’s decision provided international, legal recognition of the need to hold Myanmar accountable and to put an end to conflict. However, all four measures requested action on the part of Myanmar’s government, raising concerns as to whether Myanmar would comply and what would happen if they failed to do so. III. EVALUATING ENFORCEMENT MECHANISMS A. Current Enforcement of ICJ Rulings Although the ICJ is the highest court to adjudicate issues between states, it has little impact beyond setting precedent. While ICJ rulings and authorizations of provisional measures are legally binding according to the 2001 LaGrand judgment (Germany v. United States of America), the ICJ has no independent authority to 17

Press Release, International Court of Justice, “The Court indicates provisional measures in order to preserve certain rights claimed by The Gambia for the protection of the Rohingya in Myanmar” (January 23, 2020), https://www.icj-cij.org/public/files/case-related/178/178-20200123-PRE-01-00EN.pdf. 18 Gam. v. Myan., 2020 I.C.J. ¶ 28.; Convention on the Prevention and Punishment of the Crime of Genocide, art II.

ensure enforcement beyond issuing these judgments. 19 Article 94 of the UN Charter also confers upon member states a duty “to comply with the decision of the International Court of Justice in any case to which it is a party,” and effectively grants the UN Security Council—which consists of the United States, the United Kingdom, France, Russia, and China—the ability to enforce rulings when deemed necessary.20 The Council is specifically allowed to “make recommendations or decide upon measures to be taken to give effect to the judgment.” 21 However, according to the 2016 Security Council Report, “the Council has never used its power to enforce an ICJ judgment.”22 In the case of provisional measures for Myanmar, it is easy to see how the ICJ’s lack of enforcement power can lead to the continuation of global atrocities. Without enforcement, compliance with the ICJ’s verdict depends entirely on the Myanmar government, which has denied the existence of a genocide. A press release by the Myanmar government after the ICJ’s ruling on provisional measures revealed that they felt subject to “unsubstantiated condemnation,” which has led to “a distorted picture of the situation.”23 This statement concluded by implying that

Press Release, International Court of Justice, “The Court finds that the United States has breached its obligations to Germany and to the LaGrand brothers under the Vienna Convention on Consular Relations” (June 27, 2001), https://www.icj-cij.org/public/files/case-related/104/104-20010627PRE-01-00-EN.pdf. 20 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, art. 94, ¶ 1. 21 United Nations, Charter of the United Nations, art. 94, ¶ 1. 22 Rist, “What Does the ICJ Decision on The Gambia v. Myanmar Mean?” 6. 23 Press Release, Myanmar Ministry of Foreign Affairs, “Myanmar Takes Note of ICJ Decision: There was No Genocide in Rakhine” (January 23, 2020), https://www.gnlm.com.mm/pressstatement-on-the-decision-by-the-icj-on-provisional-measures-in-the-case-brought-by-the-gambiaagainst-myanmar/.

the ICJ had approved these measures in order “to protect the Court against possible accusations of failure [to] take preventive action at the start of a case.” 24 Thus, Myanmar’s government does not seem to have any intention of complying with these measures. In addition, there have been continued reports on the worsening situation for the Rohingya following the decision, demonstrating the conditional impact of ICJ rulings.25 Myanmar is also supported by China, which could pose additional complications for enforcement by the Security Council. China, with Russian support, has previously blocked a statement on Myanmar, which had indicated a need to address turmoil in the country. 26 B. Security Council Pitfalls: The Significance of Nicaragua v. United States There has been precedent of non-compliance with ICJ court rulings involving Security Council members, which we believe also extends to their allies. In 1984, Nicaragua filed a case against the United States through the ICJ over “a dispute relating to responsibility for military and paramilitary activities in and against Nicaragua.”27 Despite the ICJ having jurisdiction to rule on the case, approving provisional measures against the United States, and later deciding the case in support of Nicaragua, the U.S. declared its intention to no longer participate

Myanmar Ministry of Foreign Affairs, “Myanmar Takes Note of ICJ Decision: There was No Genocide in Rakhine.” 25 “Myanmar: Government fails to protect Rohingya after world court order,” Amnesty International, May 22, 2020, https://www.amnesty.org/en/latest/news/2020/05/myanmargovernment-fails-to-protect-rohingya-after-world-court-order/. 26 “China, Russia block U.N. council concern about Myanmar violence,” Reuters, March 17, 2017, https://www.reuters.com/article/uk-myanmar-rohingya-un-idUKKBN16O2J0. 27 “Overview of the Case,” International Court of Justice, https://www.icj-cij.org/en/case/70.

in the case.28 As the 2016 Security Council Report notes, the U.S. vetoed any enforcement, which illustrates the limitations of having the Security Council vote on compliance measures in cases involving member states and/or allies. 29 Connecting this example to Myanmar, the relationship between Myanmar and China reduces the likelihood that the Security Council would vote for the enforcement of the ICJ’s ruling. And in the case of Myanmar, the lives of the Rohingya people remain at risk. Given the severity of the consequences, there is a clear need to resolve the issue of non-compliance with the ICJ. IV. POTENTIAL AREAS FOR IMPROVEMENT A. Considering the ICJ’s Jurisdiction In considering solutions to ameliorate the tension between the ICJ and the Security Council, one area to address is jurisdiction. Currently, the ICJ’s jurisdiction at its core is limited to either (1) obtaining the consent of both states or (2) as stated within a particular convention or treaty. 30 Their jurisdiction is conditional on the method by which a case is brought to the court. If Myanmar were not a ratifying member of the Genocide Convention, their consent would be required for the ICJ to have jurisdiction over the case. Given that the Myanmar

“Overview of the Case.” United Nations, Security Council Report Staff, The Rule of Law: Can the Security Council make better use of the International Court of Justice? (New York: Security Council Report, 2016), 6, https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/research_report_5_rule_of_law_2016.pdf. 30 “Basis of the Court’s Jurisdiction,” International Court of Justice, https://www.icjcij.org/en/basis-of-jurisdiction. 29

government is not currently complying with the ICJ, they would be unlikely to consent. Additionally, there have been instances where jurisdiction is contended by the accused state as seen in the case of Nicaragua v. United States when the U.S. rejected the ICJ’s jurisdiction. 31 These disputes are often voted upon by the Security Council, which again leads to the same issues of non-compliance. The only alternative to the status quo appears to be granting universal jurisdiction to the ICJ. In this way, they can try cases without the explicit consent of the accused state in the scenario that they are not bound by a convention or treaty. While such jurisdiction would increase the efficiency of Court proceedings and reduce bias from Security Council votes, this alternative possesses some flaws of its own, including undermining national sovereignty and international support for the Court. Instead, we believe that it is necessary for the ICJ to rely more heavily on its member states to hold one another accountable through the use of soft power. B. Encouraging Accountability Through Member States The Gambia v. Myanmar demonstrates two necessary conditions for the enforcement of international obligations to be effective: (1) the erga omnes nature of human rights must be recognized and (2) states must have the ability to hold one another accountable in legal settings. The ICJ could be much more effective in

Security Council Report Staff, The Rule of Law: Can the Security Council make better use of the International Court of Justice?, 6.

enforcing its legal rulings if it did not rely upon the Security Council, which is susceptible to gridlock and voting for personal gain, but instead upon its international coalition of member states. Designating sole enforcement capabilities to a body, as in the case of the Security Council, raises questions about the long-term viability of the ICJ as a stable and independent institution. The ICJ may benefit from allowing member states to hold one another responsible regardless of Security Council status, so that countries like The Gambia may object to and respond to human rights violations. When authorizing provisional measures, the ICJ typically only requests action by the state in violation. But, by providing recommendations for international action that can be followed at each state’s discretion — whether in the form of economic, diplomatic, or humanitarian pressure — the ICJ may (1) increase international involvement in justice enforcement and (2) increase the likelihood of compliance by states that are committing war crimes, crimes against humanity, or genocide. V. CONCLUSION The overall impact of our proposed solution is two-fold: (1) there will be reduced bias from Security Council votes and (2) there will likely be an increase in compliance for Court rulings both in the case of provisional measures and final decisions. The former will boost the efficiency of the court and increase fairness in the judicial process. The latter will expand the impact of legal instruments to allow for the prosecution of war criminals after the fact and for stopping war crimes as

they happen. The enforcement of provisional measures also helps to then support the enforcement of final rulings as well. The positive benefits of compliance, as seen from The Gambia v. Myanmar, include saving lives, promoting a better quality of life, and deterring future genocide. By setting a strict precedent of compliance, the power of the ICJ will be strengthened. The international community needs to come together in supporting a more robust judicial body for the betterment of society and for the protection of all peoples.

BIBLIOGRAPHY Al-Jazeera. “Former UN chief says Bangladesh cannot continue hosting Rohingya.” July 10, 2019. https://www.aljazeera.com/news/2019/7/10/former-un-chief-saysbangladesh-cannot-continue-hosting-rohingya. Amnesty International. “Myanmar: Government fails to protect Rohingya after world court order.” May 22, 2020. https://www.amnesty.org/en/latest/news/2020/05/myanmar-governmentfails-to-protect-rohingya-after-world-court-order/. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gam. v. Myan.). Request for the Indication of Provisional Measures. 23 January 2020. I.C.J. Rep. 178. BBC News. “Myanmar Rohingya: What you need to know about the crisis.” January 23, 2020, https://www.bbc.com/news/world-asia-41566561. Convention on the Prevention and Punishment of the Crime of Genocide. 9 December 1948. 78 U.N.T.S. 277 (entered into force 12 January 1951). “Discrimination in Arakana.” Human Rights Watch vol. 12, no. 3 (2000): 3. https://www.hrw.org/reports/2000/burma/burm005-02.htm#P132_34464. International Court of Justice. “Basis of the Court’s Jurisdiction.” https://www.icj-cij.org/en/basis-of-jurisdiction. International Court of Justice. “Overview of the Case.” https://www.icjcij.org/en/case/70. Islam, Nurul. “Rohingya: A People Under Endless Tyranny.” Asian Affairs: An American

Review vol. 48, no. 1 (2021): 14-48. https://www-tandfonline-com.ezproxy. princeton.edu/doi/pdf/10.1080/00927678.2020.1793631?needAccess=true. Nebehay, Stephanie and Simon Lewis. “U.N. brands Myanmar violence a 'textbook' example of ethnic cleansing.” Reuters. September 11, 2017. https://www.reuters.com/article/us-myanmar-rohingya/u-n-brandsmyanmar-violence-a-textbook-example-of-ethnic-cleansingidUSKCN1BM0QF. Press Release. International Court of Justice. The Court finds that the United States has breached its obligations to Germany and to the LaGrand brothers under the Vienna Convention on Consular Relations (June 27, 2001). https://www.icj-cij.org/public/files/case-related/104/104-20010627-PRE01-00-EN.pdf. Press Release. International Court of Justice. The Court indicates provisional measures in order to preserve certain rights claimed by The Gambia for the protection of the Rohingya in Myanmar (January 23, 2020). https://www.icj-cij.org/public/files/case-related/178/178-20200123-PRE01-00-EN.pdf. Press Release. Myanmar Ministry of Foreign Affairs, Myanmar Takes Note of ICJ Decision: There Was No Genocide in Rakhine (January 23, 2020). https://www.gnlm.com.mm/press-statement-on-the-decision-by-the-icj-onprovisional-measures-n-the-case-brought-by-the-gambia-against-myanmar/. Reuters. “China, Russia block U.N. council concern about Myanmar violence.” March 17, 2017. https://www.reuters.com/article/uk-myanmar-rohingya-unidUKKBN16O2J0.

Rist, Wes D. “What Does the ICJ Decision on The Gambia v. Myanmar Mean?” American Society of International Law. February 27, 2020. https://www.asil.org/insights/volume/24/issue/2/what-does-icj-decisiongambia-v-myanmar-mean. United Nations. Charter of the United Nations. 24 October 1945. 1 UNTS XVI. United Nations, Security Council Report Staff. The Rule of Law: Can the Security Council make better use of the International Court of Justice? New York: Security Council Report, 2016. https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C8CD3-CF6EFF96FF9%7D/research_report_5_rule_of_law_2016.pdf. World Report 2020: Events of 2019. New York: Human Rights Watch, 2020. https://www.hrw.org/sites/default/files/world_report_download/hrw_world _report_2020_0.pdf.

CONTROVERSY AND COVERUPS: THE CASE AGAINST CONFIDENTIALITY AGREEMENTS PERTAINING TO SEXUAL MISCONDUCT WRITTEN BY: H. HEDLEY EDITED BY: A. KALYANARAMAN, J. ZHANG, D. SAMAKE & S. GHOSH

CONTROVERSY AND COVER-UPS: THE CASE AGAINST CONFIDENTIALITY AGREEMENTS PERTAINING TO SEXUAL MISCONDUCT Hannah Hedley I. INTRODUCTION In the wake of the #MeToo Movement, condemnation of sexual misconduct is at an all-time high and society is finally standing up for the rights of sexual misconduct victims. Yet this effort has one critical shortcoming: little legal recognition for the censure of victims via confidentiality agreements. While the law prevents confidentiality agreements from being used to cover up a crime, several loopholes exist which both prevent certain types of misconduct from being classified as criminal and restrict the scope of a “cover up” itself. Thus, in the status quo nature of non-disclosure agreements, perpetrators of sexual misconduct have many avenues to prohibit their victims from speaking out or seeking support. Given the lack of precedent, there are many complexities involved in the covering of sexual misconduct in confidentiality agreements, and current protections are failing victims. Case law from University of Pennsylvania v. EEOC (1990), EEOC v. Astra USA, Inc. (1996), and Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee (2009) support the conclusion that confidentiality agreements covering sexual misconduct in any work environment should be illegal and unenforceable.

II. CURRENT LAW REGARDING DISCLOSURE OF SEXUAL MISCONDUCT A. What are Confidentiality Agreements, and When are they Enforceable? Confidentiality agreements, often referred to simply as non-disclosure agreements, are legally binding settlements commonly required by employers which preclude the disclosure of sensitive information.1 These documents, though originally intended to protect proprietary information, may also bar other types of disclosures.2 Such settlement agreements almost always include a number of restrictions, including non-disclosure provisions, which require that parties agree not to disclose covered information; non-disparagement provisions, which require that parties are prohibited from making injurious statements about each other; and non-cooperation provisions, which require that parties agree not to assist others in pursuing any litigation against the other. 3 Importantly, they cannot prohibit the disclosure of a crime,4 which includes criminal sexual misconduct under Equal Employment Opportunity Commission (EEOC) statutes.5

EJ Dickson, What, Exactly, Is an NDA?, ROLLING STONE (Mar. 19, 2019, 6:17 PM), https://www.rollingstone.com/culture/culture-features/nda-non-disclosure-agreements-809856/. 2 Id. 3 Elizabeth Tippett, Non-Disclosure Agreements and the #MeToo Movement, Winter 2019 A.B.A. Dɪsᴘᴜᴛᴇ Rᴇsᴏʟᴜᴛɪᴏɴ Mᴀɢᴀᴢɪɴᴇ (2019), https://www.americanbar.org/groups/dispute_resolution/publications/ dispute_resolution_magazine/2019/winter-2019-me-too/non-disclosure-agreements-and-the-metoomovement/. 4 Nicole Einbinder, What Happens If Someone Breaks a Non-Disclosure Agreement?, FRONTLINE (Mar. 2, 2018), https://www.pbs.org/wgbh/frontline/article/ what-happens-if-someone-breaks-a-non-disclosure-agreement/. 5 42 U.S.C.A. § 2000e-2 (West)

B. Relevant Information Regarding Sexual Assault Several statistics regarding criminal justice and sexual assault are relevant for consideration. Recent statistics on sexual assault show that, on average, for every 1,000 sexual assaults, only 230 are reported to the police. Further, of these, only 46 reports lead to arrests, 5 cases lead to a felony conviction, and 4.6 rapists will be incarcerated.6 This is contrasted with 619 reports to police and 20 incarcerations per 1,000 robberies, and 627 reports and 33 incarcerations per 1,000 assault and battery crimes. 7 As evident, sexual assaults are significantly less likely than other crimes to be reported and to result in a conviction. III. CASE LAW AGAINST NON-DISCLOSURE AGREEMENTS REGARDING SEXUAL MISCONDUCT A. Case Law Rejecting Confidentiality Protections Relating to Sexual Misconduct First, the law suggests that there should be no confidential privilege which could cover sexual misconduct. Under Federal Rules of Evidence Rule 501, common law governs claims of privilege unless the Constitution, federal statute, or rules prescribed by the Supreme Court provide otherwise.8 Supreme Court decisions suggest that confidentiality is not protected when it concerns issues of

The Criminal Justice System: Statistics, RAINN, https://www.rainn.org/statistics/criminal-justicesystem (last visited Mar. 27, 2021). 7 Id. 8 Fed. R. Evid. 501

discrimination or other violations of Title VII of the Civil Rights Act of 1964. 9 In one notable example, University of Pennsylvania v. EEOC, the Court held that it would not recognize a common-law privilege to protect peer review materials (which, in this case, were confidential) from disclosure.10 The EEOC was permitted to access these confidential documents for the purposes of their investigation into unlawful discrimination on the basis of race and sex. 11 Thus, when pertaining to the investigation of sexual assault, unlawful in all circumstances, and sexual harassment, unlawful in certain workplaces under Title VII of the Civil Rights Act, confidentiality agreements should not be enforceable. Further, according to the Federal Rules of Evidence, state law governs privilege in civil cases where state law supplies the rule of decision. 12 Since contract violations are civil issues, state law controls the privilege covering confidentiality agreements. Although not universal, several states have enacted legislation which prevents non-disclosure agreements from protecting sexual misconduct.13 Under Article IV, Section 1 of the United States Constitution, “Full Faith and Credit shall be given in each State to the public Acts, Records, and 9

see, e.g., Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182, 110 S. Ct. 577, 107 L. Ed. 2d 571 (1990) 10 see generally, Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182, 110 S. Ct. 577, 107 L. Ed. 2d 571 (1990) 11 Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182, 202, 110 S. Ct. 577, 589, 107 L. Ed. 2d 571 (1990) 12 Fed. R. Evid. 501 13 Nicole Einbinder, What Happens If Someone Breaks a Non-Disclosure Agreement?, FRONTLINE (Mar. 2, 2018), https://www.pbs.org/wgbh/frontline/article/ what-happens-if-someone-breaks-a-non-disclosure-agreement/.

judicial Proceedings of every other State.” 14 Thus, if a ruling on a non-disclosure agreement is rendered in a state which deems all privilege regarding sexual misconduct unenforceable, that ruling is enforceable in all states. Further, if an individual speaks out regarding sexual misconduct covered in such an unenforceable agreement, there is no control of media outlets and communication to prevent that information from becoming known elsewhere. Therefore, since several states are able to overrule common-law privilege when it pertains to sexual misconduct, that information can become known in all states. However, in contract law, there are “choice of law” and “governing law” provisions, where a contract signed in one state can request disputes to be considered in another state. 15 While several states may have legislation rendering unenforceable any confidentiality agreements pertaining to sexual misconduct, an abuser could control the dispute venue and further prevent justice. Therefore, in order to respect the decisions of state legislatures and provide reasonable uniformity to this confusing set of precedents, universal guidance on the enforceability of confidentiality agreements pertaining to sexual misconduct is necessary. B. When Non-Disclosure Agreements are Unenforceable While a non-disclosure agreement may be written to cover certain information, significant legal exceptions exist which could render a non-disclosure 14

U.S. Const. art. IV, § 1 Richard Stim, Choice of Law Provisions in Contracts, NOLO, https://www.nolo.com/legalencyclopedia/choice-of-law-provisions-contracts-33357.html (last visited Mar. 27, 2021). 15

agreement unenforceable. Of these many exceptions, two are relevant to nondisclosure agreements covering sexual misconduct claims, both based in Title VII of the Civil Rights Act of 1964. Under this statute, it is unlawful for an employer to discriminate against an employee or an employee applicant “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 16 This statute creates two legal exceptions to non-disclosure agreement enforceability: first, that the non-assistance provision of an agreement is unenforceable when it precludes employees from assisting the EEOC with misconduct investigations by answering questions or volunteering information;17 and second, that agreements cannot prevent employees from filing charges with the EEOC.18 Essentially, confidentiality agreements cannot prevent employees from reporting a crime to or assisting in the investigation of that crime by the EEOC. These exceptions suggest that it is arbitrary to allow confidentiality agreements to cover sexual misconduct. If the contents of a non-disclosure agreement can be disclosed in some circumstances, these agreements already fail to serve any real purpose aside from perpetuating further abuse. However, these exceptions are marred by several loopholes which do not protect victims of sexual misconduct.

42 U.S.C.A. § 2000e-3 (West) E.E.O.C. v. Astra U.S.A., Inc., 94 F.3d 738, 745 (1st Cir. 1996) 18 E.E.O.C. v. Astra U.S.A., Inc., 94 F.3d 738, 746 (1st Cir. 1996) 17

C. The Loopholes of the Astra Ruling Some victims are protected from confidentiality agreements under EEOC guidelines, but these protections are not universal. Although, by the First Circuit’s decision in EEOC v. Astra USA, Inc., employees cannot be prevented from reporting or aiding the investigation of crimes as defined by the EEOC, there remain several loopholes when it comes to sexual misconduct. First, workplace sexual harassment is only a crime as it is defined by the EEOC statutes. While by law sexual assault is a crime, and certain states have enacted legislation to combat sexual harassment, victims of sexual harassment are only universally protected under EEOC statutes. 19 However, the EEOC rules apply only to employers whom they define to be “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person,”20 and does not include the government or any corporations owned by the United States or tax-exempt private membership clubs.21 Notable for the #MeToo movement is the fact that actors are considered independent contractors. Since they do not work for an employer as defined by the EEOC, independent contractors (typically trade specialists such as construction

Nicole Einbinder, What Happens If Someone Breaks a Non-Disclosure Agreement?, FRONTLINE (Mar. 2, 2018), https://www.pbs.org/wgbh/frontline/article/ what-happens-if-someone-breaks-a-non-disclosure-agreement/. 20 42 U.S.C.A. § 2000e (West) 21 Id.

workers or beauticians) are not afforded this protection by the agency.22 Further, while sexual harassment is outlawed in the workplace only by EEOC standards, the EEOC definition of an “employer” is more stringent than for other workplace regulations. The Occupational Safety and Health (OSH) Act of 1970, most wellknown for its job safety requirements, applies to “employers” as “a person engaged in a business affecting commerce who has employees, but does not include the United States (not including the United States Postal Service) or any State or political subdivision of a State.”23 This law does not maintain that an employer must have 15 employees, nor does it have a calendar requirement, both of which the EEOC requires when considering a business to be an employer. Therefore, to receive the OSH Act protections, an individual simply has to work for a business affecting commerce. But to be protected from sexual harassment in the workplace, that workplace must fall under the much-stricter EEOC guidelines. It is striking that the Federal government defines the workplace more stringently for worker protection against sexual misconduct than for other types of worker protection. But more importantly, it seems unethical that victims of sexual misconduct are only protected from non-disclosure agreements when their workplace fits certain standards — standards which are not the same in other federal worker protection laws. The presence of these loopholes, which preclude a subset of victims from 22

protection, suggests that the law should make all confidentiality agreements regarding sexual misconduct unenforceable. It is unreasonable that a contract worker or an employee of a smaller business deserves less protection from cruel and silencing non-disclosure agreements. D. The Preclusion of Assault Victims from Seeking Support Additionally, while Astra enables victims of sexual misconduct to break a non-disclosure agreement and discuss the content of a contract with the enforcement agency, it does not explicitly permit discussion of covered trauma for the purpose of emotional support.24 This concept seems ethically flawed — victims may violate the terms of their non-disclosure agreements to report and assist in an investigation, but they are barred from accessing any form of emotional support, since these agreements prevent any discussion of their contents with the public. Even with regards to therapy, while doctor-patient confidentiality makes it unlikely that misconduct details will be revealed, it is still technically a contract violation to discuss the confidential misconduct with a psychologist or psychiatrist, since confidentiality agreements preclude the discussion of their contents with any third party, except regarding the aforementioned exceptions. However, case law suggests this principle is flawed as well, as evidenced in the Court’s ruling in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee. The

see generally, E.E.O.C. v. Astra U.S.A., Inc., 94 F.3d 738 (1st Cir. 1996)

Court held that Title VII of the Civil Rights Act’s opposition clause, which protects an employee from being discriminated against for opposing an unlawful employment practice,25 applies beyond “active, consistent” behavior. 26 This means the opposition clause applies to someone who had taken no action against this unlawful behavior aside from disclosing it. Therefore, mentioning an instance of sexual misconduct is sufficient to warrant protection against retaliation. Hence, Crawford suggests that, even when disclosing sexual misconduct covered by a nondisclosure agreement outside the scope of an investigation, a victim should be protected. Thus, the non-disclosure provision is essentially invalid for victims of sexual misconduct. Confidentiality agreements covering sexual assault, by these standards, are reduced so considerably in power that they border on being inherently null. E. Further Arguments Against Confidentiality Agreements Pertaining to Sexual Misconduct However, while these cases suggest confidentiality agreements covering sexual misconduct in the workplace are essentially null, certain facts suggest that a statute is needed to more decisively preclude any confidentiality agreement from covering sexual misconduct. A select few cases do not maintain the aforementioned protections, so one cannot simply claim that all confidentiality

42 U.S.C.A. § 2000e-3 (West) Crawford v. Metro. Gov't of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 129 S. Ct. 846, 848, 172 L. Ed. 2d 650 (2009) 26

agreements covering sexual misconduct are null by default and thus do not need a law to prevent their creation. First, the EEOC statutes on which these stipulations rely only apply to employees in workplaces of more than fifteen workers, and thus do not apply to employees in smaller workplaces or contract workers like actors. 27 It seems unreasonable and unethical that, while most victims of sexual harassment have legal recourse if they are made to sign a confidentiality agreement, several types of workers do not have this recourse. The guidelines appear to be arbitrarily defined, which suggests the law must arise to resolve these inconsistencies. Further, there is the question of legal retaliation. Statistics show that victims are unlikely to report sexual assault and, when they do, it is unlikely that their cases will be pursued by police, and even more so that their attackers would be convicted.28 Thus, by legal standards, most victims would not be considered as victims of a crime. The exceptions to common-law privilege rely on the covering of a crime. If there is no crime in the eyes of the courts, a victim would lose protection against the non-disparagement provision of confidentiality agreements. This constitutes another tragic loophole that occurs when confidentiality agreements are made to cover sexual misconduct: if the court does not find a criminal act to have occurred (which, it seems, is probable in consideration of sexual assault), the victim may be liable to breach of contract and disparagement

42 U.S.C.A. § 2000e (West) The Criminal Justice System: Statistics, RAINN, https://www.rainn.org/statistics/ criminal-justice-system (last visited Mar. 27, 2021). 28

lawsuits. When the courts do not believe victims, the law ceases to protect them from retaliatory lawsuits. In contrast, preventing any confidentiality agreement from covering sexual misconduct (even when it is not criminal) encourages victims to come forward without fear of legal retaliation. F. On Counterarguments in Favor of Sexual Misconduct Non-Disclosure Nonetheless, arguments remain as to why it is beneficial for confidentiality agreements to cover sexual misconduct. In many cases, some claim, these agreements protect victims from disparagement by their employers. However, the anti-retaliation clause of Title VII criminalizes retaliation against an employee who “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” into unlawful employment practices as defined by the EEOC statutes. 29 Thus, it is already criminal to retaliate against an employee for disclosing sexual misconduct in the workplace even when it is not covered by a confidentiality agreement. Even so, these stipulations only apply to workplaces as defined by the EEOC, and thus do not protect workers in smaller workplaces or contract workers, nor do they help victims of sexual misconduct that does not occur in the workplace. Also, this does not provide much recourse to victims who have been publicly slandered or defamed by their employers. Further, some victims of sexual misconduct may be able to use confidentiality agreements to receive financial settlement. While they cannot 29

42 U.S.C.A. § 2000e-3 (West)

reverse a victim’s trauma, these financial compensations may recoup some of the damages, and abusers are more likely to pay a settlement if their actions were sealed. However, even if confidentiality agreements are unenforceable when pertaining to sexual misconduct, it would not invalidate settlement agreements without a non-disclosure provision nor does it prohibit civil suits. Further, confidential sexual harassment settlements and related attorney’s fees are no longer tax deductible.30 Employers, now unable to receive a deduction, are less likely to cover a victim’s attorney’s fees, which is likely to limit the value of any settlement the victim receives. Additionally, even if the non-disclosure provision may make it more likely for an abuser to settle, rendering these agreements unenforceable makes a would-be abuser less likely to commit sexual misconduct to begin with. Furthermore, this action would discourage false accusations of sexual misconduct. Without the opportunity to receive a financial settlement through a confidentiality agreement, would-be false accusers may be less likely to make unsubstantiated accusations. Allowing confidentiality agreements to cover instances of sexual misconduct hurts victims of sexual abuse and false allegations. The proper solution to these issues is not to permit confidentiality agreements to cover sexual misconduct; that would hurt more victims than it aided. While these agreements may lead to financial settlements for some, they have the potential to create far

Steven Gutierrez, Confidential Sexual Harassment Settlements No Longer Tax Deductible, Hᴏʟʟᴀɴᴅ & HᴀƦᴛ, LLP. (Jan. 9, 2018), https://www.hollandhart.com/showpublication.aspx?Show=33906.

more victims by encouraging abusers and perpetuating trauma. The solution is to extend the EEOC definition of workplace as to cover all workers, which would by default invalidate all confidentiality agreements covering workplace sexual assault. Even stronger, though, is the solution to simply prohibit all confidentiality agreements pertaining to sexual assault, both in and out of the workplace. IV. CONCLUSION In many cases, non-disclosure agreements serve as a continuation of abuse. Most victims do not realize that the EEOC statutes prevent their abusers from enforcing any confidentiality agreements pertaining to their assault. Making all confidentiality agreements pertaining to sexual misconduct unenforceable, both in and out of the typical workplace, encourages victims to come forward with their stories, which is an important step in the fight against sexual violence. Nonetheless, rendering these agreements unenforceable does not wholly solve the problem. Such a change may make it more difficult to pressure victims into staying silent, and abusers may be less inclined to commit misconduct if they cannot cover it up. But shockingly low reporting and conviction rates for sexual assault still remain. Eliminating confidentiality agreements covering sexual assault and harassment is a promising step, but the legal system needs to significantly improve the handling of sexual misconduct. Victims deserve the full protection of the law — the protection which abusers receive. They certainly shouldn’t be punished for being victims.

BIBLIOGRAPHY 29 U.S.C.A. § 652 (West). 42 U.S.C.A. § 2000e (West). 42 U.S.C.A. § 2000e-2 (West). 42 U.S.C.A. § 2000e-3 (West). Crawford v. Metro. Gov't of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 129 S. Ct. 846, 848, 172 L. Ed. 2d 650 (2009) “The Criminal Justice System: Statistics.” RAINN. Accessed March 27, 2021. https://www.rainn.org/statistics/criminal-justice-system. Dickson, EJ. “What, Exactly, Is an NDA?” Rolling Stone. March 19, 2019. https://www.rollingstone.com/culture/culture-features/nda-non-disclosureagreements-809856/. E.E.O.C. v. Astra U.S.A., Inc., 94 F.3d 738 (1st Cir. 1996) Einbinder, Nicole. “What Happens If Someone Breaks a Non-Disclosure Agreement? Share:” FRONTLINE. March 2, 2018. https://www.pbs.org/wgbh/frontline/article/what-happens-if-someone-breaks-anon-disclosure-agreement/. Fed. R. Evid. 501 Gutierrez, Steven. “Confidential Sexual Harassment Settlements No Longer Tax Deductible.” Holland & Hart LLP, January 9, 2018, https://www.hollandhart.com/showpublication.aspx?Show=33906.

Stim, Richard. “Choice of Law Provisions in Contracts.” NOLO. Accessed March 27, 2021. https://www.nolo.com/legal-encyclopedia/choice-of-law-provisionscontracts-33357.html Tippett, Elizabeth. “Non-Disclosure Agreements and the #MeToo Movement.” American Bar Association Dispute Resolution Magazine, Winter 2019. https://www.americanbar.org/groups/dispute_resolution/publications/dispute_resol ution_magazine/2019/winter-2019-me-too/non-disclosure-agreements-and-themetoo-movement/. U.S. Const. art. IV, § 1 Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182, 110 S. Ct. 577, 107 L. Ed. 2d 571 (1990)

A RESPONSIBILITY TO UPLIFT: WHY THE SUPREME COURT MUST STOP SECTION 2 ATTACKS WRITTEN BY: R. KHANNA EDITED BY: A. KALYANARAMAN, J. ZHANG, D. SAMAKE & S. GHOSH

A RESPONSIBILITY TO UPLIFT: WHY THE SUPREME COURT MUST STOP SECTION 2 ATTACKS Rishi Khanna The aftermath of the 2020 presidential election has brought on a flurry of legal questions on how to ensure the legitimacy of the election process. Despite the fact that these questions are largely fueled by false claims from former-President Trump, the Supreme Court and many federal courts have heard cases on the legality of certain voting practices. Most recently, the Supreme Court heard arguments for Brnovich v. Democratic National Committee (DNC) and Arizona Republican Party v. DNC; both of these cases had monumental implications regarding the future strength of the Voting Rights Act of 1965, and in both instances, the court ruled against the DNC and pro-voter efforts.1 2 Crafted in response to issues of voter suppression during the Jim Crow era, Section 2 of the Voting Rights Act states that “no voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 3 In

Amy Howe, Majority appears poised to uphold Arizona voting rules, SCOTUSBlog (Mar. 2, 2021, 4:59 pm.), https://www.scotusblog.com/2021/03/majority-appears-poised-to-uphold-arizonavoting-rules/. 2 David Gans, Selective originalism and selective textualism: How the Roberts court decimated the Voting Rights Act, SCOTUSBlog (July 7, 2021, 11:10 am.), https://www.scotusblog.com/2021/07/selective-originalism-and-selective-textualism-how-theroberts-court-decimated-the-voting-rights-act/. 3 52 U.S.C. § 10301- Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation (1965).

spite of this legislation, numerous cases inherently weakening the Voting Rights Act have seethed in the background of the national conversation concerning both historical and current racial inequity. Such cases pose an extreme danger to the United States’ fight for racial justice, fostering covert voter suppression practices that may be even more dangerous than past overt ones. Through the lens of a less-common constitutional interpretation of the Fourteenth Amendment, this paper discusses the government’s normative responsibility to combat systemic racism. Further examining the two aforementioned ongoing cases and evaluating the interpretation of racism in voting practices leads to a conclusion condemning any sort of restrictive voting legislation. This paper considers the United States’ checkered racial history and posits that race should be placed at the forefront of voting legislative decisions. To fight systemic racism and improve the American voting system, governments have a moral obligation to enact policies relaxing voting restrictions; on the judicial side, federal courts should rule against strict voting laws. Most of the legal analysis on voting rights concerns interpretations of the Fifteenth Amendment; after all, the amendment does directly speak about voter equality for all citizens, regardless of identity. The Fourteenth Amendment perspective, however, takes into account the government’s responsibility to uplift underprivileged communities; if not done by the government, then certainly no laws should be passed to prevent external efforts at doing so during elections. With

the amendment stating that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” the government and courts are clearly obliged to prevent the passing of any legislation that exacerbates inequality. 4 With regards to race, however, the government also has a normative obligation and the legal ability to go above and beyond, elevating underrepresented minorities to equalize privilege across the board and ensure that their voices are amplified. To justify this position on the legal side, one can turn to a similar controversial example: affirmative action. The contentiousness of affirmative action has spilled over into the Supreme Court on multiple occasions, with the court, while not necessarily ruling in favor of all forms of affirmative action, implying that race can be considered in university admissions decisions. 5 Regents of the University of California v. Bakke (1978), the first and most prominent affirmative action case, writes that “an admissions program which considers race only as one factor is simply a subtle and more sophisticated—but no less effective—means of according racial preference” than a quota system. 6 Such a ruling gives leeway for the government, through its schools, to attempt to equalize the playing field for minority applicants; the Bakke concurrence makes this point clear in saying that the “government may take race into account when it acts not to

U.S. Const. amend. XIV, § 1. Regents of the University of California v. Bakke, 438 U.S. 265 (1978). 6 Ibid. 5

demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice.”7 “Remedy[ing] disadvantages” with regards to voting access discrepancies certainly falls within the government’s power. Moreover, given that 109 public universities (18.9%) and many private schools have affirmative action admissions policies, the government has demonstrated an incentive to implement or allow major policies that counter racial inequality. 8 How exactly voter laws combating racism would manifest is out of the scope of this paper; regardless, government support for affirmative action demonstrates a state interest in uplifting minority communities that can be applied to voting restrictions. On the normative side, the US government has consistently found ways to perpetuate systemic racism since the country’s inception. Given the already-present barriers faced by underrepresented minorities today, any policies that do not actively uplift these communities inherently “abridge” their rights and privileges. Take the example of mass incarceration, one of the primary issues facing the US today. Even after centuries of slavery and decades of Jim Crow segregation, President Nixon’s War on Drugs allowed government-run law enforcement agencies to actively undermine Black and Hispanic communities through overpolicing and prison sentence discrepancies. In light of George Floyd and Breonna Taylor’s murders in June 2020, one of the more popular solutions to

Ibid. State data on colleges considering race in admissions, Ballotpedia (Mar. 30, 2015), https://ballotpedia.org/State_data_on_colleges_considering_race_in_admissions. 8

police brutality involves ending qualified immunity and retraining police officers (possibly through implicit-bias training). In addition to placing the onus on police officers to act responsibly, reworking the training system actively combats discrimination issues in policing and betters law enforcement’s relationship with minorities; implementing such programs – though they currently fail to do so – is the government’s responsibility. Applying this principle to voting, despite the fact that all underrepresented minorities can technically vote, numerous obstacles exist; these include proximity to polling stations and transportation, as well as gerrymandering (a practice outside of the scope of this paper). Not enacting legislative exceptions that account for the voting disparity – though improving, white people still made up 67% of the electorate in the 2018 midterm elections despite making up only 60% of the total population – disregards the government’s normative responsibility as an active participant in the fight against discrimination. 9 Being the root cause of issues for underprivileged minorities (namely members of the Black community) places a moral onus on the government to uplift certain groups of people. Those against this stance argue that states “cannot indefinitely be held responsible for every extant

Ruth Igielnik and Abby Budiman, The Changing Racial and Ethnic Composition of the U.S. Electorate, Pew Research (Sept. 23, 2020), https://www.pewresearch.org/2020/09/23/the-changingracial-and-ethnic-composition-of-the-u-s-electorate/. William H. Frey, The nation is diversifying even faster than predicted, according to new census data, Brookings Institute (Jul. 1, 2020), https://www.brookings.edu/research/new-census-data-shows-the-nation-is-diversifying-even-fasterthan-predicted/.

socioeconomic disparity.”10 This statement is correct – except that states have yet to even attempt to fully address their historical wrongdoings, at least in terms of racial equality. There is no logical reason for “forgiveness” from minority communities that have been, and continue to be harmed by, government-sanctioned discrimination. The arguments above make up the normative discussion of this paper, and save for a constitutional “awakening,” policies actively uplifting Black and brown communities are unlikely to come to fruition. At the very least, however, external attempts at equalizing the playing field (with regards to voting rights) should not be undermined. Even if the government’s obligation is up for debate, for the sake of guaranteeing the bare minimum of one’s Fifteenth Amendment rights, the government should not block efforts to help those with limited voting access. Brnovich and Arizona Republican Party, the two cases currently in consideration by the Supreme Court, concern the accuracy of ballot dropoffs. Brnovich asks whether or not ballots cast in the wrong precinct – 90% of Arizona voters are registered to a specific precinct – should be tossed out; in a similar vein, Arizona Republican Party considers the legality of “ballot-harvesting,” a practice (helpful to minorities) in which third parties mass-collect ballots and drop them off at the

Christopher Kieser, Section 2 of the Voting Rights Act: Equal opportunity vs. disparate impact, SCOTUSBlog (Feb. 17, 2021, 11:00 am.), https://www.scotusblog.com/2021/02/section-2-of-thevoting-rights-act-equal-opportunity-vs-disparate-impact/.

necessary polling locations. 11 The Court of Appeals already struck down both of these provisions on the grounds of violating Section 2. In response, Arizona Republican Party has argued in front of the Supreme Court that the policies have “not denied anyone the opportunity to vote – unlike, for example, a literacy test would.”12 The party then proceeded to contradict themselves, answering a question as to their reasoning for bringing this case: “‘Politics…is a zero-sum game, and every extra vote they get through unlawful interpretations of Section 2 hurts us. It’s the difference between winning an election 50 to 49 and losing.’'” 13 Given the advantage that the minority vote provides to Democrats, such a statement from Arizona Republican Party demonstrates that their primary goal is not “ensuring election integrity,” but restricting the minority vote. Both of these cases carry long-term implications on the strength of Section 2. Weighing various standards to apply to both this case and future Section 2 rulings, Justice Stephen Breyer referenced a test that “take[s] into account not only whether a practice disproportionately affects minorities but also would let the state provide its rationale, having nothing to do with race, for the practice.” 14 Plaintiffs Arizona Republican Party and Brnovich turned down this notion, arguing instead for an even more discriminatory test focusing solely on alleged “equal

opportunity.”15 Both of these tests fail the government’s normative responsibility to uplifting minority communities. As elaborated above, the idea that “Arizona provides a plethora of [voting] options for people,” regardless of race, ignores the difficulty of accessing said options for minorities; Jessica Amulson argued on behalf of the DNC that “Native American voters in the state needed to be able to ‘rely on ballot collection to vote’ precisely because it was difficult to vote in person and mail services are unreliable or nonexistent.” 16 The lack of infrastructure, as highlighted by Amulson, counters the Arizona Republican Party and Brnovich’s argument. Breyer’s test, cited from Harvard Law Professor Nicholas Stephanopoulos’ brief, carries two problems as applied to these cases. Firstly, the state of Arizona has no rationale for penalizing out-of-precinct voting and ballot-harvesting. Chief Justice Roberts refers to a report from former-President Carter’s commission on election law, finding in 2005 that states “prohibiting ‘third-party organizations’” would reduce voter fraud, to acknowledge Arizona’s claim that the state has a “compelled interest” in preserving election integrity. 17 The report, however, presents no evidence to support this claim. Beyond stating that mail-in and absentee ballots should provide some sort of voter identification – a task that can be completed even while using third-parties in delivering votes – the report only

Ibid. Ibid. 17 Ibid. Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform, Center for Democracy and Election Management, American University (Sept. 2005), 46. 16

discusses the potential risk of third parties “buying” votes.18 Putting aside the lack of evidence for this claim, a simple solution would be to have third-party ballot collectors register with the state so as to allow government monitoring of their delivery system. Such a process would assuage concerns of election fraud while uplifting minority communities. Regardless of whether or not this solution would be implemented, Arizona’s claim remains baseless. Secondly, the idea that the state can provide a rationale for unintended racial discrimination, both in general and with regards to voting regulations, is heavily flawed. Echoing sentiments of strict scrutiny from United States v. O’Brien (1968), the Stephanopoulos test equates systemic racism with limitations on one’s freedom of speech.19 There have been numerous justifications for curbing free speech; beyond the well-known national security reasoning, O'Brien established that the government can limit First Amendment rights “‘if it furthers an important or substantial governmental interest’” and “‘if the governmental interest is unrelated to the suppression of free expression.’” 20 The difference between infringing upon one’s freedoms and unintentional racism is that only one (free speech) is a choice, while the other (race) is an intrinsic property. People’s decisions and expressions can be restricted for good in certain cases, as recently shown through COVID-19 pandemic regulations over the past year. Intrinsic

Ibid, 46-47. United States v. O'Brien, Oyez, https://www.oyez.org/cases/1967/232 (last visited Apr. 23, 2021). 20 Ibid. 19

properties, however, have historically outweighed state interest in the eyes of the judicial system. The majority decision in Obergefell v. Hodges (2015) writes, in reference to the plaintiffs’ intrinsic sexuality, that the “immutable nature” of samesex couples essentially overrides any government interest in preserving societal morality, even overpowering the previously-conceived states’ right to define marriage for themselves. 21 Similarly, the decision in Brown v. Board of Education (1954) implies that the government’s desire to maintain “separate but equal” facilities was not enough to outweigh the inherent educational inequality faced by children of color.22 Choices are not always protected; one’s identity, however, is. The decision in Adarand v. Pena (1995), even in ruling against affirmative action (a practice helpful to minorities), writes that “the application of strict scrutiny, in turn, determines whether a compelling governmental interest justifies the infliction of that injury.”23 This is never the case with regards to intrinsic qualities; racial discrimination, intentional or not, outweighs any government interest. Even if the Stephanopoulos test passed muster, banning ballot collection passes neither this test nor the (historically more-significant) O’Brien test, as the costs far outweigh the benefits. Both tests essentially rely on “compelled interest”; the majority opinion in O’Brien, however, qualifies (and Stephanopoulos implies) that state interests only trump individual freedoms “‘if the incidental restriction

Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015). Brown v. Board of Education, 347 U.S. 483 (1954). 23 Adarand Constructors v. Pena, 515 U.S. 200 (1995). 22

on…freedoms is not greater than is essential to the furtherance of that interest.’” 24 Beyond the abundance of evidence demonstrating that voter fraud is not a major issue in American elections, voting restrictions are not the way to traverse the potentially uncertain voter landscape. 25 As mentioned above, registering third-party voter collecting organizations could just as well solve the problem of unregulated ballot harvesting. More importantly for the future, following through on the previously-discussed normative obligation for governments to uplift minority communities and increase voter participation would be the best solution to concerns over voter fraud. There has never been, and never will be, a rational or just explanation for state-sponsored racism, even if unintentional; attempting to justify discrimination through a purported worry over voter fraud is even more ludicrous. The rulings in Brnovich and Arizona Republican Party upheaved the entire voting infrastructure for minorities in Arizona, passing regulations that discriminate even more than the current ones. The Supreme Court rulings in favor of both plaintiffs harms people of color; just as importantly, such a decision further diminishes the US’ global standing as the model of democracy. As discussed above, the government has an obligation to actively uplift communities of color; at

United States v. O'Brien, 391 U.S. 367 (1968). Debunking the Voter Fraud Myth, Brennan Center for Justice at New York University, https://www.brennancenter.org/sites/default/files/analysis/Briefing_Memo_Debunking_Voter_Frau d_Myth.pdf. Jonathan Auerbach and Steve Pierson, Does voting by mail increase fraud? Estimating the change in reported voter fraud when states switch to elections by mail, Statistics and Public Policy (Mar. 23, 2021), https://doi.org/10.1080/2330443X.2021.1906806. 25

the very least, however, the American judiciary must not perpetuate racism. The court’s decision is a disaster for democracy, one that this country frankly cannot afford.

BIBLIOGRAPHY 52 U.S.C. § 10301- Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation (1965). Adarand Constructors v. Pena, 515 U.S. 200 (1995). Auerbach, Jonathan and Steve Pierson. Does voting by mail increase fraud? Estimating the change in reported voter fraud when states switch to elections by mail. Statistics and Public Policy (Mar. 23, 2021). https://doi.org/10.1080/2330443X.2021.1906806. Brown v. Board of Education, 347 U.S. 483 (1954). Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform. Center for Democracy and Election Management, American University (Sept. 2005), 46. Debunking the Voter Fraud Myth. Brennan Center for Justice at New York University. https://www.brennancenter.org/sites/default/files/analysis/Briefing_Memo_Debunk ing_Voter_Fraud_Myth.pdf. Frey, William H. The nation is diversifying even faster than predicted, according to new census data. Brookings Institute (Jul. 1, 2020). https://www.brookings.edu/research/new-census-data-shows-the-nation-isdiversifying-even-faster-than-predicted/. Gans, David. Selective originalism and selective textualism: How the Roberts court decimated the Voting Rights Act. SCOTUSBlog (July 7, 2021, 11:10 am.).

https://www.scotusblog.com/2021/07/selective-originalism-and-selectivetextualism-how-the-roberts-court-decimated-the-voting-rights-act/. Howe, Amy. Majority appears poised to uphold Arizona voting rules. SCOTUSBlog (Mar. 2, 2021, 4:59 pm.). https://www.scotusblog.com/2021/03/majority-appears-poised-to-uphold-arizonavoting-rules/. Igielnik, Ruth and Abby Budiman. The Changing Racial and Ethnic Composition of the U.S. Electorate. Pew Research (Sept. 23, 2020). https://www.pewresearch.org/2020/09/23/the-changing-racial-and-ethniccomposition-of-the-u-s-electorate/. Kieser, Christopher. Section 2 of the Voting Rights Act: Equal opportunity vs. disparate impact. SCOTUSBlog (Feb. 17, 2021, 11:00 am.). https://www.scotusblog.com/2021/02/section-2-of-the-voting-rights-act-equalopportunity-vs-disparate-impact/. Regents of the University of California v. Bakke, 438 U.S. 265 (1978). State data on colleges considering race in admissions. Ballotpedia (Mar. 30, 2015). https://ballotpedia.org/State_data_on_colleges_considering_race_in_admissions. United States v. O’Brien, 391 U.S. 367 (1968). United States v. O'Brien. Oyez, last visited Apr. 23, 2021. https://www.oyez.org/cases/1967/232. U.S. Const. amend. XIV, § 1.

GUEST FEATURE | “THOSE WHO WON OUR INDEPENDENCE”: FREE SPEECH, SEDITION, AND THE AMERICAN REJECTION OF ENGLISH W B : J. H JJ. URISPRUDENCE RITTEN Y ADDAD

WRITTEN FOR: A SEMINAR IN AMERICAN POLITICS: FREE SPEECH AND THE LAW BY PROFESSOR KEITH WHITTINGTON WRITTEN ON: MAY 10, 2021

“THOSE WHO WON OUR INDEPENDENCE”: FREE SPEECH, SEDITION, AND THE AMERICAN REJECTION OF ENGLISH JURISPRUDENCE Juan José López Haddad I.

INTRODUCTION

Among exceptions to the First Amendment’s protection of free speech, sedition has consistently occupied a difficult position within American jurisprudence. Defined as any form of speech or conduct that “conspire[s] to overthrow, put down, or to destroy by force the Government of the United States,”1 it stands between two seemingly fundamental principles of American government: state self-preservation and freedom of expression under the First Amendment. Laws against sedition empower the state to punish and censor speech that significantly threatens the public or the government. While the Supreme Court has repeatedly affirmed that First Amendment protections are not absolute, 2 what constitutes seditious speech has been debated upon for decades, and it is still a cause for dispute and uncertainty. Recently, the question of sedition has been present in the national consciousness following the assault on the Capitol Building on January 6th, 2021. Several commentators denounced President Donald J. Trump’s speech anteceding the attack as “seditious,” and placed in him unequivocal causal responsibility for the actions perpetrated a few hours later by

1 2

18 U.S. Code § 2384 Gitlow v. New York, 268 U.S. 652 (1925)

his crowd of listeners. 3 But how can one determine whether remarks like the President’s are seditious to the point of being excluded from First Amendment protection? Throughout its history, the Supreme Court has struggled with this question, but for more than half a century now the “imminent lawless action” test has been the standard used to distinguish seditious language from protected speech. Originating in Brandenburg v. Ohio (1969), it strips speech of constitutional protection if it is “directed to inciting or producing imminent lawless action,” and if the speech in question is “likely to incite or produce such action.”4 While this test provides a useful framework to approach potentially seditious speech, instances like President Trump’s January 6th remarks still lend themselves to ambiguities as to whether they conform to the criteria set in Brandenburg. Did Trump intend to incite his supporters into imminent lawless action when he told them to “fight like hell”5 or was this just another unseemly remark in a presidency characterized by bombastic and indecorous rhetoric? Without additional evidence regarding the former president’s motivations, it is difficult to ascertain that these utterances strictly correspond to the kind of speech outlawed in Brandenburg. But how strict should the courts be in applying the “imminent lawless action” test? Answers to 3

“Conspiracy and Sedition… Are Definitely on the Table,” Politico, January 8, 2021, https://www.politico.com/news/magazine/2021/01/08/how-to-investigate-charge-capitol-rioterssedition-prosecutors-roundup-456127 4 Brandenburg v. Ohio, 395 U.S. 444 (1969) 5 “Transcript of Trump’s speech at rally before US Capitol riot,” The Associated Press, January 13, 2021, https://apnews.com/article/election-2020-joe-biden-donald-trump-capitol-siege-mediae79eb5164613d6718e9f4502eb471f27

this question can be found by looking at sedition’s place in the history of the English Common Law. However, while English precedent can answer contemporary questions such as the impeachability of a former president, 6 this paper will take a different approach. Whereas American jurisprudence inherited several systems, principles, and maxims from Great Britain, the United States’ notion of free speech marks a clear departure from the English legal tradition. Therefore, this paper will examine how America’s rejection of the historically English idea of sedition can inform present-day adjudication of seditious speech. The present paper will argue that speech can only be deemed seditious if it clearly describes the parameters set forth by the Brandenburg test. This stems from the fact that the First Amendment signifies a response to the suppression of dissenting speech that was commonplace under British rule. To illustrate its argument, this paper will first offer a brief history of sedition under English Common Law, highlighting its indiscriminate use by the Crown to punish criticism and dissent. The paper will then examine how the tenets of the American Revolution signified a rejection of the English concept of sedition, and also represented distrust toward any form of regulations on speech by the government. Subsequently, this paper will detail how this rejection persisted throughout American history, and how this can inform present interpretations of seditious speech and other forms of government control on free expression. As a 6

Keith Whittington, “Yes, the Senate Can Try Trump,” The Wall Street Journal, January 22, 2021, https://www.wsj.com/articles/yes-the-senate-can-try-trump-11611356881

conclusion, the paper will offer a short summary of key points as well as a reflection on the importance of free speech for republican governments, even during times where some speech might be perceived as dangerous. While this paper will not pretend to give a definitive answer to the accusations made against President Trump, it will offer a helpful approach to questions like these by unearthing a conception of free speech that is distinctively American. II.

“SEDITIOUS LIBEL” AND THE ENGLISH COMMON LAW

Sedition appears most prominently in 18th century English jurisprudence under the form of “seditious libel.” As William Blackstone notes in his Commentaries on the Laws of England, seditious libel constitutes “any writings, pictures, or the like, of an immoral or illegal tendency; but, in the sense under which we are now to consider them, are malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule.”7 As its name indicates, seditious libel referred to printed material that expressed anti-government sentiments. In a time before broadcasting technology, the printed word was the only means of rapid mass-communication of ideas. It was, therefore, the aim of the law in England to prevent any ideas inspiring contempt of the government from entering the public consciousness, lest they be a source of

William Blackstone, Commentaries on the Laws of England (1760-1770), Vol. 2, (New York: W. E. Dean, 1841) 111.

rebellion and unrest. Despite the United States’ break from Britain, seditious libel in the English fashion has made a few appearances in American law, especially during times where certain ideas and ideologies were deemed dangerous. One of the most notable examples occurred in 1919, when the Supreme Court decided Abrams v. United States. In this case, the defendant Jacob Abrams and other socialists were convicted for distributing leaflets criticizing the United States’ involvement in the war against Germany and its efforts to undermine the Russian Revolution. While the court ultimately upheld their conviction, Justice Holmes produced a powerful dissent in which he expressed his dismay at how loosely the standards of the Sedition Act were applied. Further along his dissent, he also declared: “I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion.”8 This remark points to an American notion of free speech that differs drastically from English sources of law—a break that was fundamentally a product of the American Revolution. Indeed, at the time of the Revolution, seditious libel was the latest in a series of offences used by the Crown to indiscriminately silence publishers it considered unfavorable. Although nominally formulated as a measure to prevent publications from stirring up violence and rebellion, it was viciously used by the government to quell ideas that challenged their own. The United States—a country born out of broadsides and pamphlets

Abrams v. U.S., 250 U.S. 616 (1919)

advocating for republicanism and rebellion against the Crown—would come to have trouble accepting seditious libel into its legal universe. Since printing came to England in the late 15th century, the Crown found itself needing an appropriate legal tool to censor and punish publishers that could threaten its power. This need for self-preservation was aggravated shortly after, as religious turmoil ensued from the English Reformation, and fears of Catholic plots against the Crown became rampant. By the late 16th century, the English government had within its reach a wide number of legal tools to prosecute those that spoke against it. The laws were treason, scandalum magnatum, heresy, libel, felony statutes, and licensing. Out of these, only licensing survived into the 17th century, as the others were eventually abandoned by the government due to them being impractical toward the purpose of censoring dissent.9 Treason was found to be difficult to prove, as it was a medieval law that only prohibited compassing the death of the king, making war against him, or aiding his enemies. Thus, publishers that merely put out harsh criticism could get away easily. Scandalum magnatum, a crime that would be roughly equivalent to the spread of disinformation was limited to content that was considered “news” and that was demonstrably false. Heresy was similarly very limited, only applying to religious ideas and publications. Despite reemerging later in the 18th century, libel was also abandoned, as the concept of when exactly a pamphlet was “published” was still not well defined, 9

Philip Hamburger, "The Development of the Law of Seditious Libel and the Control of the Press," Stanford Law Review 37, no. 3 (1985): 661-665.

allowing publishers a loophole to get away. Felony statutes were deemed to be too harsh to be applied regularly, and indeed they were. Felonies were described by Henry de Bracton as crimes against the king, and were given correspondingly severe punishments, such as death, exile, and even corruption of the blood (which would bar the criminal’s descendants from inheriting any of his properties or titles, and permanently stained the family name). 10 With the demise of all previous legal actions against the press, licensing became the chief tool for the Crown to punish what it termed “the abuses of the press.” 11 Under licensing, all publishers required previous permission by the Crown to print and circulate their publications. This gave the government the ability to screen all content prior to dissemination, allowing only that which was inoffensive to the Crown to be printed, as any materials that were critical of it were denied license. The only way to distribute media that criticized or spoke against the crown was to do so clandestinely, and the penalties upon discovery of illegally published material could be very severe, amounting to exorbitant fines and even lengthy imprisonment. Licensing started as an action of royal prerogative, a power solely under the discretionary use of the monarch, but it afterward acquired statutory force with the Licensing of the Press Act 1662. This allowed licensing to be applied more broadly and uniformly across the realm. Nevertheless, the monarch still

Frederic W. Maitland and Sir Frederick Pollock, The History of English Law Before the Time of Edward I, Vol. 1, (Cambridge: Cambridge University Press, 1895), 321-322. 11 Wendell Bird, Press and Speech under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent, (Oxford: Oxford University Press, 2016) 38.

retained the prerogative power to grant and withdraw license discretionarily. 12 However, the very nature of licensing required the government to have eyes on every publication it wished to control, a task that proved impossible as printing became cheaper and the number of publishers multiplied considerably in the late 17th century. Recognizing that the government could not monitor the increasing number of publications, Parliament allowed the last of the licensing acts to expire in 1695 and refused to renew it. Despite licensing’s termination in England, it survived in the American Colonies well into the 18th century, as in those remote lands the power of Parliament was weak, and governors acted as direct agents of the king.13 The Crown was reluctant to lose a precious resource it could use to quell dissenting ideas, and the persistence of licensing in the colonies became one of many grievances that led them to declare independence in later years. Nevertheless, in its desperate search for another legal instrument to censor the press, the Crown found and adapted another tool to serve this purpose: seditious libel. Originally, seditious libel had been merely one of many libels which, as previously mentioned, had not been widely used as an instrument for censorship. This was due to the fact that publication had been hard to prove, and this type of libel required that a pamphlet explicitly incite a breach of the peace for it to be punished. However, under Edward Coke during the early 17th century, seditious

Hamburger, "Seditious Libel,” 671-689. Harold L. Nelson, "Seditious Libel in Colonial America." The American Journal of Legal History 3, no. 2 (1959): 161. 13

libel started to become a special offense on its own, as libel against “magistrates” was given greater weight as a crime. Seditious libel would eventually acquire official status as an offense distinct from mere libel with the Sedition Act of 1661.14 Nevertheless, the crimes outlawed by this act did not yet resemble the offences that would be used to indiscriminately suppress publications in the 18th century. Originally, the Sedition Act’s provisions were applied very sparingly, as the standards for prosecution for seditious libel were relatively strict. Offenders could only be prosecuted by special command of the king, and for them to be declared guilty the material they published had to be defamatory against an individual in government and it had to be printed and distributed to the public with the intent to defame.15 Interestingly enough, the law required the testimony of two witnesses to prove an offender’s culpability, a feature that was adopted by subsequent treason statutes and would later be enshrined in the Constitution of the United States.16 While allowing the king significant power in silencing some government criticism, as defined in 1661 seditious libel only took place under relatively precise circumstances, and it did not possess the versatility that later 18 th century reinterpretations would grant it.

Hamburger, "Seditious Libel,” 691-697. "Charles II, 1661: An Act for Safety and Preservation of His Majesties Person and Government against Treasonable and Seditious practices and attempts," in Statutes of the Realm: Volume 5, 1628-80, ed. John Raithby (s.l: Great Britain Record Commission, 1819), 304-306. 16 U.S. Constitution, art. 3, sec. 3. 15

After licensing fell out of favor as an effective means for censorship, the Crown turned to seditious libel as its new chief speech-suppressing tool. In his book Press and Speech Under Assault Wendell Bird denominates seditious libel as “England’s evisceration of freedoms of press and speech.” Indeed, in the early years of the 18th century, many in the government consciously engineered the crime of seditious libel to be an effective and sweeping tool to silence and punish the press.17 This necessitated that the requirements for a conviction under seditious libel be modified so that they could be more widely applicable to publishers. This was done mainly through the reshaping of case law surrounding the issue, a task that was most notably carried out by Lord Justice Holt. To suit its new role as a government tool for mass censorship, Holt sought to do away with the strict parameters that previous jurisprudence had applied in determining whether a publication was seditious. Most notably, the requirement for publication and distribution was eliminated, meaning that an idea could constitute seditious libel as soon as ink touched paper, even if it was never handed out in the streets. Additionally, the defamation requisite was also abandoned, and publications could be deemed seditious even if they criticized the government in general, rather than an isolated individual.18 Furthermore, intent also came to not matter, as a publisher could be found personally guilty of seditious libel even if the content was

17 18

Bird, Press and Speech, 33-34. Hamburger,"Seditious Libel,” 753-757.

published by one of his servants without his knowledge nor direction. 19 What had once been a specific offense under especially delineated circumstances was now a useful blanket accusation to leverage against any and all publishers who printed content the Crown found to be against its interests. The alterations made to seditious libel doctrine in the 18th century by Lord Justice Holt created loose and ambiguous parameters for conviction. These were now so broad in scope and coverage that any type of content could be outlawed as seditious even if it did not remotely advocate for a breach of the peace, as it was previously required. Moreover, even though the veracity of a claim never mattered in adjudicating seditious libel, its rampant use by the government as a tool for suppression made truth an aggravating factor in the offence committed. This would give rise to the saying: “the greater the truth, the greater the libel.” 20 Thus, seditious libel was forever tarnished as a tool for excessive and indiscriminate government suppression of ideas. This association would live on in the minds of the founders as they lay the foundation for their new American republic, which would include an aversion toward seditious libel and generalized mistrust of any piece of legislation that sought to regulate speech.

Tamara L. Hunt, “Servants, Masters and Seditious Libel in Eighteenth-Century England,” in Book History, Volume 20, pp. 83-110 (Baltimore: Johns Hopkins University Press, 2017), 83-85. 20 Fredrick S. Siebert, Freedom of the Press in England 1476-1776: The Rise and Decline of Government Control, (Urbana: University of Illinois Press, 1965), 273-275.

III.

AMERICA’S REJECTION OF SEDITIOUS LIBEL: FROM COLONIAL TIMES TO THE YOUNG REPUBLIC The reputation that seditious libel had garnered as a blanket tool for

indiscriminate censorship of the press would breed distrust in the doctrine in America starting many decades before the Revolution. Even many decades before the Bill of Rights was drafted, the people of the colonies showed marked contempt and rejection of seditious libel as antithetical to their values. The first event that manifested this sentiment was the trial of John Peter Zenger in 1735. Zenger was a New York printer who had been accused of seditious libel by the colonial governor of New York William Cosby. Zenger’s publication, the New York Weekly Journal, had printed articles and satirical advertisements that were critical of the governor. Under the English Common Law—which had been transplanted to colonial soil— this was a textbook case of seditious libel according to the expanded doctrine created by Lord Justice Holt. Conviction was all but certain—the judges were even surprised by the fact that Zenger had managed to secure attorneys willing to represent them. However, in an unprecedented development, Zenger was acquitted of the charge after Zenger’s attorneys successfully argued that truth was a defense against accusations of libel. 21 As this paper mentioned before, whether a statement was true or not was of no consequence under the English doctrine of seditious libel. In fact, the offense had become so ruthlessly instrumentalized for repression that

John Peter Zenger, The trial of John Peter Zenger, of New-York, printer; who was tried and acquitted, for printing and publishing a libel against the government. With The Pleadings and Arguments on both Sides, (London: P. Brown of Fleet Street, 1752)

true statements tended to receive harsher punishments than false ones. Nevertheless, clearly rejecting this doctrine, as well as the judge’s orders, the jury who had heard Zenger’s case declared him “not guilty.”22 This jury, composed of members of the community and not unlike the juries of today, clearly expressed the views of a colonial society tired of the Crown’s abuse of seditious libel, a doctrine they refused to acknowledge as part of the law. While this verdict did not set a legal precedent protecting printers against accusations of seditious libel—which continued to be levied by colonial governors until the Revolution 23—it instilled a memorable ideological principle that persisted in the minds of the American people and influenced the thinking of the founders. Alexander Hamilton would even come to use Zenger’s point that a true statement could not be libelous when arguing the case People v. Croswell in 1804.24 The deep commitment toward freedom of speech and the press shown in the Zenger verdict would come to be one of the driving ideologies behind the American Revolution and the struggle for independence. Freedom of speech was thus enshrined in the First Amendment of the United States Constitution which states that “Congress shall make no law… abridging the freedom of speech, or of the press.”25 But how extensive was this protection meant to be? When drafted, did

Nelson, "Seditious Libel in Colonial America," 167. Zechariah Chafee, Free Speech in the United States, (Cambridge: Harvard University Press, 1941), 499-504. 24 People v. Croswell (1804) 3 Johns. Cas. 337 (N.Y. 1804) 25 U.S. Constitution, amend. I. 23

the First Amendment mean to except seditious libel and similar charges from constitutional protection? The framers of the Constitution and the Bill of Rights possessed a diverse and sometimes disparate array of ideologies and political motivations, which makes the precise determination of their original intent a difficult—if not impossible—task.26 However, given seditious libel’s known history and reputation as a ruthless tool of censorship, it would be deeply unreasonable to think the founders would have allowed it to exist as an exception to the First Amendment. What this new constitutional provision signified was an explicit break with English jurisprudence in regard to the role of government in regulating speech. The First Amendment was a clear reply to centuries of rampant English censorship. This is further evidenced by two major approaches that the United States took to enshrine free speech and other republican values— approaches that markedly differed from the English model. In the first place, the founders provided free speech with explicit protection of the Bill of Rights, a document that produced the first ten amendments to the Constitution. While the English had a similar law, also known as “The Bill of Rights,” it did not guarantee freedom of expression for all citizens, only for members of Parliament during their debates. 27 Secondly, in the United States the

David Jenkins, "The Sedition Act of 1798 and the Incorporation of Seditious Libel into First Amendment Jurisprudence," The American Journal of Legal History 45, no. 2 (2001), 158. 27 Bill of Rights: An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne [1688], Chapter 2 1 Will and Mar Sess 2, U.K. Parliament Website, https://www.legislation.gov.uk/aep/WillandMarSess2/1/2/data.pdf

First Amendment’s protections were codified at the constitutional level. This afforded free speech the highest level of protection by being part of a document designed to be exceedingly difficult to amend or replace. In contrast, the English Bill of Rights was just an act of Parliament like any other. Britain’s lack of a codified constitution and its doctrine of parliamentary sovereignty allowed parliament to pass and repeal acts as it pleased. While they consciously acted within the bounds of precedent and convention, no higher document nor enforceable principle prevented them from repealing the Bill of Rights if a majority was willing to do so. By intentionally including freedom of speech in a distinct constitutional framework, the framers clearly expressed their desire to part with the English legal tradition. Their mistrust and rejection of doctrines such as licensing and seditious libel constituted a key feature of American constitutional design. However, despite the Revolution’s rally against English legal doctrines of speech regulation, seditious libel snuck into the American lawbook once again shortly after the Constitution’s ratification, with the passage of the Sedition Act of 1798. This act effectively codified the English common law of seditious libel by making it a crime to publish defamatory content against the Congress, President, or government of the United States.28 Nevertheless, regardless of the government’s attempts to introduce seditious libel into First Amendment jurisprudence, the act was widely repudiated by prominent figures such as Thomas Jefferson and James

Jenkins, "The Sedition Act of 1798,” 154.

Madison, as well as a large section of the general public. The act’s detractors considered it to be a gross violation of the First Amendment, and a return to the oppressive English principles that the country had fought to shed scarcely two decades before. The Adams Administration defended the act, calling it a necessary measure given escalating tensions with France and the possibility of uprisings by French sympathizers. Nonetheless, the provisions of the act were quickly used to silence and punish adherents to the Democratic-Republican faction, who were the main opponents of Adams’ Federalists. It was soon clear that the act was not meant to safeguard American interests, but rather to serve as a legal weapon to destroy political opposition—much like the way the English had used it before. 29 Britain’s abuse of seditious libel was still fresh in the American consciousness. Not only was the revolution still in recent memory, a few years before Thomas Paine—one of the champions for American independence—had been convicted of seditious libel in England following the publication of his Rights of Man in 1792.30 The American public’s overwhelming disdain of the Sedition Act cost John Adams the election of 1800, which resulted in the elevation of Thomas Jefferson—the act’s chief detractor—to the presidency. The act quickly expired in 1801 and was not renewed. President Jefferson also granted a general pardon to all those who had

Ibid., 156-159. Mark Crosby, "The Voice of Flattery vs Sober Truth: William Godwin, Thomas Erskine and the 1792 Trial of Thomas Paine for Sedition,"nThe Review of English Studies 62, no. 253 (2011). 30

been convicted under it.31 This episode in American history cemented a strong aversion for seditious libel and other English-style restrictions of speech into the legal tradition of the United States. While the Supreme Court never got to review the issue, as no one appealed and it predated the doctrine of judicial review, 32 the public’s rejection of the act was a reliable indicator of its unamerican nature. If the framers’ adoption of the Constitution and the First Amendment had not proven this definite split, the crisis generated by the Sedition Act made it firm and apparent. More than a hundred years would elapse until a similar issue was raised regarding the first amendment. However, this time the courts—not the public—would be the chief arbiter of constitutionality. IV.

THE RE-EMERGENCE OF SEDITIOUS LIBEL: THE RED SCARE AND THE “CLEAR AND PRESENT DANGER” TEST While the 19th century presented virtually no challenges to free speech at

the level of the Sedition Act of 1798, the 20th century would renew debates about the power of the government to censor and punish speech in the name of security. This originated from a new series of statutes such as the Espionage Act of 1917 and a series of amendments to it known as the Sedition Act of 1918. These statutes were passed with the intention of safeguarding the American war effort during the First World War. However, parts of these new laws—particularly the Sedition

James Morton Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties, (Ithaca, N.Y.: Cornell University Press, 1956), 268. 32 Jenkins, "The Sedition Act of 1798,” 154.

Act—were used to punish and censor those who professed communist ideologies. The jurisprudence that followed largely adhered to that mission, which would become characteristic of the United States’ paranoid persecution of communism in the first half of the 20th century—a period now known as the “Red Scare.” 33 The courts would justify that such instances of speech—those that advocated for communism, incited action against the government, and opposed the war effort— were excepted from First Amendment protection because they represented a “clear and present danger” to the public and to the United States. Nevertheless, when deciding sedition cases with the “clear and present danger” test, the Court found itself struggling to apply it consistently. Given that there was no precise definition of what exactly constituted a “clear and present danger,” the test could be used broadly to censor speech even if it did not represent a credible threat. The first case to use such a standard was Schenck v. United States (1919), in which Justice Holmes delivered an opinion stating that the defendant’s criticism of the draft was not protected under the First Amendment. Speaking against the draft was deemed criminal, as its criticism was seen as an effort to obstruct it—an action made illegal in the Espionage Act of 1917. The court held that the defendant’s speech against the draft constituted “a clear and present danger that… will bring about the substantive evils that Congress has a right to prevent.” 34 The decision of

James L. Gibson, "Political Intolerance and Political Repression During the McCarthy Red Scare," The American Political Science Review 82, no. 2 (1988) 511-520. 34 Schenck v. United States, 249 U.S. 47 (1919)

the Court was unanimous, which helped to cement the “clear and present danger” test as the standard for distinguishing sedition from protected speech. However, such unanimity would not be present in following cases. Several justices would question whether future convictions for sedition were analogous to Schenk, and others would even challenge the state’s ability to prosecute sedition in the manner outlined by the Sedition Act of 1918. The cases that followed Schenck contained some of the most powerful defenses of free speech in their dissents, and these would eventually result in the demise of the “clear and present danger” doctrine as its broadness and ambiguity became more apparent. In the following years, several convictions for sedition would be made, principally targeting those who advocated the spread of communist ideas, regardless of whether they urged immediate violence against the government or not. In Abrams v. United States (1919), the distribution of pamphlets criticizing the United States’ undermining of the Russian Revolution was considered by Justice Clark as “intended to provoke and to encourage resistance to the United States in the war.” Therefore, in the eyes of the majority, the case was seen as analogous with Schenck. Justice Holmes dissented, given that the pamphlet’s criticism did not directly intend, as the statute stipulated, “to cripple or hinder the United States in the prosecution of the war.” For him, mere condemnation of the American war effort did not constitute such action, holding that the statute had to “be taken to use its words in a strict and accurate sense.” He rejected the majority’s upholding of

Abram’s conviction, drawing parallels with the historical abuse of seditious libel by the English. He expressed his dismay at the possible return of the doctrine into American jurisprudence, as he believed that “the United States, through many years, had shown its repentance for the Sedition Act of 1798.” 35 Justice Holmes would dissent again, joined by Justice Brandeis, in Gitlow v. New York (1925). Justice Sanford delivered the majority opinion, arguing that Socialist politician Benjamin Gitlow’s “Left Wing Manifesto” was not protected under the First Amendment, as it advocated the development of a new, communist social order. While Gitlow’s conviction for sedition was upheld using the “bad tendency” test, as opposed to the new “clear and present danger” standard, the points present in the Homes-Brandeis dissent would be repeated in future opposition to convictions made under the new standard. Holmes and Brandeis cautioned that, using the reasoning of the court, “every idea is an incitement.” In their view, this was of grave concern, as it allowed the government to censor any idea it pleased even if “it had no chance of starting a… conflagration.” Brandeis’ and Holmes’ commitment to the sanctity of free speech was such that they believed that ideas like communism should have their fair place in public discussion, as only through free debate their merits could be accurately assessed.36 Justice Brandeis’ fervent defense of free speech amidst the eroded standards of conviction caused by the Red Scare culminated in his somewhat reluctant 35 36

Abrams v. U.S., 250 U.S. 616 (1919) Gitlow v. New York, 268 U.S. 652 (1925)

concurrence in Whitney v. California (1927). Given that there was proof that the defendant was indeed linked with an anti-government conspiracy, Justice Brandeis found himself obliged to express his views as a concurrence, rather than a dissent. Nevertheless, the now-famous words of his text were still meant to denounce the court’s recent tendency to uphold the censorship and punishment of individuals merely because of their communist advocacy. In a manner similar to his once comrade-in-dissent Justice Holmes, he linked the First Amendment’s almost absolute protection of speech to be inherent in the origins of the nation, by declaring that Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth. 37 As the historical research of this paper suggests, Brandeis’ interpretation of the First Amendment’s scope aligns closely with the sentiments that prevailed among the framers. However, despite his passionate defense of free speech, the court would continue to uphold convictions of communist individuals that it believed to represent a “clear and present danger” to the nation. Nonetheless, Brandeis’ vehement concurrence was not written in vain, as its sentiments would eventually

Whitney v. California, 274 U.S. 357 (1927)

influence the court in abandoning the precedents set under the “clear and present danger” doctrine. The last of these cases to uphold convictions based on the “clear and present danger test” was Dennis v. United States (1951). The 11 people involved were convicted of sedition and conspiracy under the Smith Act of 1940. Even though their only action was convening to discuss their shared communist beliefs, with the possibility of later organizing a party, their actions were deemed seditious. Justice Black in his dissent expressed clear disbelief that their actions truly constituted a “clear and present danger,” with Justice Douglas adding that it was unlikely that these ideas would become destructive, as “communism [had] been so thoroughly exposed… that it [had] been crippled as a political force.” 38 Through this and the preceding cases, it had become apparent that the court was struggling to contain the “clear and present danger” test. Its inconsistent, overbroad, and outright abusive application had allowed the government to silence and punish individuals merely because of their beliefs, even if they possessed no likelihood of stirring violence and other threats. This resembled the tarnished reputation that seditious libel had acquired as a tool for British censorship. In Brandenburg v. Ohio (1969), the court scrambled to rectify this. The per curiam opinion stated that cases such as Whitney had been “thoroughly discredited by later decisions.” It replaced the “clear and present danger test” with the

Dennis v. United States, 341 U.S. 494 (1951)

“imminent lawless action test.” This new standard, as mentioned in the beginning of this paper, held that speech was only seditious if it was “directed to inciting or producing imminent lawless action,” and “likely to incite or produce such action.”39 This novel rule was aimed at fixing the time and likelihood elements lacking in the previous standard. Now speech could only lose protection under the First Amendment if the threat it generated was both credible and immediate. Despite its narrower focus and increased specificity, the still-current Brandenburg standard, like any piece of legal language, can still be subject to ambiguities and different interpretations. However, as this paper’s historical analysis has shown, a presumption against the constitutionality of measures that abridge free speech must prevail unless the measures are determined to be strictly necessary. The American legal tradition and the ideals it espouses demands that speech be absolutely protected under the First Amendment, unless it represents a clear, unequivocal, and unquestionable threat to public order and the preservation of the state. To ensure that only such instances receive the rare First Amendment exceptions that they require, the Brandenburg test should be applied with strict accordance to the meaning of each of its words. Only this extraordinary burden of proof can prevent America from falling back into the corrupt and abusive practice of seditious libel, which the founders and the American public throughout the nation’s history have thoroughly rejected.

Brandenburg v. Ohio, 395 U.S. 444 (1969)

CONCLUSION: FREE SPEECH AS THE RULE, NOT THE EXCEPTION.

By examining the history of seditious libel, it is evident that the offense is mainly revived during times of national crisis, such as war, civil unrest, and ideological division. Situations of adversity like these are said to put the state in a particularly fragile position, which entitles it to take extraordinary measures in the name of self-preservation, such as increasing restrictions on speech. During times of war and uncertain security, limitations on First Amendment rights have been deemed vital to the preservation of Americanness. However, I believe the contrary. While times of violence increase the vulnerability of the United States to devastating attacks, so does the act of restricting the fundamental right of its citizens to free expression. Whereas war signifies a perilous external threat to the United States, the abridgement of freedom of speech represents an equally dangerous internal threat to its national integrity. As it has been shown in the pages of this paper, even when passed with what one may call “good intentions,” measures that allow the state to punish those that speak against it are quickly adopted as a weapon against legitimate dissent. Those who are inevitably corrupted by power and paranoia tend to wield such laws in a manner that is antithetical to the free and deliberative society that the founders envisioned when they first built this nation. Only by allowing freedom of expression—even during the most extraordinary, dire circumstances—will the endurance of the American state and its principles be guaranteed. Even in times of crisis, unabridged free speech is the

most powerful tool to arrive at the truth and the solution of any problem America might face. This is why someone’s speech must be protected even if perceived by many as an attack on American institutions and freedoms. Unless this person’s actions against America are found to be completely intentional, imminent, and likely to produce severe harm, they should be allowed to speak. By virtue of the Constitution, there will be plenty of people to speak back, and they will surely condemn their destructive ideas into oblivion. Throughout its history and its reaction to English doctrines, America has proven that it regards freedom of speech as an inviolable, individual right. It is not, as some may argue, subject to “balancing” with “competing interests” that may possess the same weight in some situations. 40 The framers of the Constitution, tired of the abuses they had undergone through state censorship, designed the First Amendment to treat freedom of speech as the absolute rule, and not the exception, nor one of many “balancing factors.” It cannot be said that a fundamental principle of American republican government has equal weight to all and every consideration that a court may entertain. Only the heaviest of burdens should outbalance the incredible weight that the Constitution has put upon free speech. At times in American history when this idea has been put to the test, this original sentiment has always survived and prevailed. This is a wise approach, and one that should dominate in perpetuity. As this paper has demonstrated, laws that facilitate 40

Lauren B. Frantz. "The First Amendment in the Balance." The Yale Law Journal 71, no. 8 (1962), 1424.

charges of sedition are almost invariably used as a tool for indiscriminate censorship and oppression. The founders had learned this through their dealings with the British, and the present public should abide by these lessons, accompanied by the ones that took place in later history. Therefore, as America faces a new wave of unrest, racial tension, and ideological divisions, the sacred protections that the First Amendment confers upon free speech must prevail at every turn—even if we perceive those who think different from us as the enemy. While speech can, at very rare times, constitute a legitimate threat to security worth combatting, the standards to determine such a threat should be strict and exhaustive. Their goal should not be to facilitate conviction, but to at every point make sure that the First Amendment’s protections are not being unnecessarily excepted. This mindset should be present in the intention of any judge, whether they apply the “imminent lawless action” test or any other legal standard they might devise in the future. Only unabridged free speech will ensure that the most constructive ideals will prevail. Only unabridged free speech will allow a nation divided to reach peaceful consensus. Only unabridged free speech will preserve the individual liberty of each citizen to think, act, and learn to their full capacity. Only unabridged free speech will provide the tools necessary to continue building the nation envisioned by those who won our independence.

BIBLIOGRAPHY Court cases and laws: 18 U.S. Code § 2384 Abrams v. U.S., 250 U.S. 616 (1919) Bill of Rights: An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne [1688]. Chapter 2 1 Will and Mar Sess 2, U.K. Parliament Website. https://www.legislation.gov.uk/aep/WillandMarSess2/1/2/data.pdf Brandenburg v. Ohio, 395 U.S. 444 (1969) “Charles II, 1661: An Act for Safety and Preservation of His Majesties Person and Government against Treasonable and Seditious practices and attempts." in Statutes of the Realm: Volume 5, 1628-80. ed. John Raithby. Great Britain Record Commission, 1819. 304-306. Dennis v. United States, 341 U.S. 494 (1951) Gitlow v. New York, 268 U.S. 652 (1925) People v. Croswell (1804) 3 Johns. Cas. 337 (N.Y. 1804) Schenck v. United States, 249 U.S. 47 (1919) United States Constitution, amend. I. United States Constitution, art. 3, sec. 3. Whitney v. California, 274 U.S. 357 (1927) Secondary sources: Bird, Wendell. Press and Speech under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent. Oxford: Oxford University Press, 2016.

Blackstone, William. Commentaries on the Laws of England (1760-1770). Vol. 2. New York: W. E. Dean, 1841. Chafee, Zechariah. Free Speech in the United States. Cambridge: Harvard University Press, 1941. “Conspiracy and Sedition… Are Definitely on the Table.” Politico, January 8, 2021. https://www.politico.com/news/magazine/2021/01/08/how-toinvestigate-charge-capitol-rioters-sedition-prosecutors-roundup-456127 Crosby, Mark. "The Voice of Flattery vs Sober Truth: William Godwin, Thomas Erskine and the 1792 Trial of Thomas Paine for Sedition." The Review of English Studies 62, no. 253 (2011): 90-112. Frantz, Laurent B. "The First Amendment in the Balance." The Yale Law Journal 71, no. 8 (1962): 1424-450. Gibson, James L. "Political Intolerance and Political Repression During the McCarthy Red Scare." The American Political Science Review 82, no. 2 (1988): 511-29. Hamburger, Philip. "The Development of the Law of Seditious Libel and the Control of the Press." Stanford Law Review 37, no. 3 (1985): 661-765. Hunt, Tamara L. “Servants, Masters and Seditious Libel in Eighteenth-Century England.” in Book History, Volume 20, pp. 83-110. Baltimore: Johns Hopkins University Press, 2017.

Jenkins, David. "The Sedition Act of 1798 and the Incorporation of Seditious Libel into First Amendment Jurisprudence." The American Journal of Legal History 45, no. 2 (2001): 154-213. Maitland, Frederic W. and Sir Frederick Pollock. The History of English Law Before the Time of Edward I, Vol. 1. Cambridge: Cambridge University Press, 1895. Nelson, Harold L. "Seditious Libel in Colonial America." The American Journal of Legal History 3, no. 2 (1959): 160-72. Siebert, Fredrick S. Freedom of the Press in England 1476-1776: The Rise and Decline of Government Control. Urbana: University of Illinois Press, 1965. Smith, James Morton. Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties. Ithaca, N.Y.: Cornell University Press, 1956. “Transcript of Trump’s speech at rally before US Capitol riot.” The Associated Press, January 13, 2021. https://apnews.com/article/election-2020-joe-biden-donald-trump-capitolsiege-media-e79eb5164613d6718e9f4502eb471f27 Whittington, Keith,.“Yes, the Senate Can Try Trump.” The Wall Street Journal, January 22, 2021. https://www.wsj.com/articles/yes-the-senate-can-try-trump-11611356881 Zenger, John Peter. The trial of John Peter Zenger, of New-York, printer; who was tried and acquitted, for printing and publishing a libel against the government. With The Pleadings and Arguments on both Sides. London: P. Brown of Fleet Street, 1752.