Princeton Legal Journal Vol. I Issue 2 (Fall 2021) by princetonlegaljournal

PRINCETON LEGAL JOURNAL Princeton's Undergraduate Law Review VOLUME I

ISSUE II

FALL 2021

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EDITORIAL TEAM 2021-2022 President Susan Baek Vice President Gail Parambi FORUM Managing Editor Myles McKnight

Editor-in-Chief Srishti Ghosh Secretary Melody Choi REVIEW Managing Editor Danielle Samake

Associate Editors Hannah Hedley Uma Menon

Associate Editors Kareena Bhakta Rebecca Cao

Writers Alexandra Orbuch Anna Shin Ava Peters Beck Reiferson Benjamin Edelson Cecilia Quirk Jessica Lee Madeleine Polubinski Melody Choi Nalin Ranjan Noura Shoukfeh Shamma Pepper Fox

Writers Alba Bajri Christopher Lidard Davina Thompson Ethan Magistro Gail Parambi Georgia Nabors Isaac Cape Mia Medic Rishi Khanna

Marketing Officers Ana Villada Ava Peters

Treasurer Elliot Hyon

TABLE OF CONTENTS Letter from the Board___________________________________________5 Privacy Protection via Antitrust Law in the Era of Tech Dominance______6 By Georgia Nabors ‘23 Social Media Censorship: A Leviathan That Must Be Controlled_______ 22 By Alba Bajri ‘25 Gray Zone: The Case for Clarity in International Cyber Conflict________40 By Christopher Lidard ‘25 A Saving Grace: Escaping the Death Penalty Using Tandon v. Newsom__56 By Ethan Magistro ‘23

Letter from the Board Dear Reader, On behalf of the Editorial and Executive Boards at the Princeton Legal Journal, we are so excited to present the second issue of the first volume of the Princeton Legal Journal. This past year, we have all lived through a truly unprecedented time in history — the very foundations of our lives have been shook and our most core beliefs have been challenged. The journal, during this time, has served as a community for innovative thought, a space for meaningful reflection and an impetus for stimulating reform. Over the last semester, we published a plethora of articles on our online forum ranging from the recognition of bitcoin as legal tender to the empowerment of women enabled by Sharia law. We also hosted some of our most enthralling speakers yet for our campus-wide legal workshops and are starting the new year publishing the second printed issue of the journal. In this issue, we are proud to offer four diverse and thought-provoking articles. Respectively, the articles call for reform in the legal protection of privacy through antitrust law, scrutinize the increasing legal emphasis on social media censorship, evaluate the ambiguity in the way in which international cyber conflicts are considered, and examine the politicisation of the US Courts through a close study of Tandon v, Newsom. As always, but especially through the trials of the last year, we are so grateful to the entire village that worked endlessly to make this issue a reality. To all the writers, Editorial staff, Marketing team and the rest of the Executive Board, this issue is a tribute to your unwavering commitment and passion for our community. We are honored to present an issue that embodies the culture of critical thought, curiosity and innovation that we are committed to nourishing in the Princeton Legal Journal through this year and many, many more. Sincerely, Srishti Ghosh, Editor-in-Chief Susan Baek, President

PRIVACY PROTECTION VIA ANTITRUST LAW IN THE ERA OF TECHNOLOGY DOMINANCE WRITTEN BY: G. NABORS EDITED BY: K. BHAKTA, R. CAO, D. SAMAKE & S. GHOSH

PRIVACY PROTECTION VIA ANTITRUST LAW IN THE ERA OF TECHNOLOGY DOMINANCE GEORGIA NABORS I. INTRODUCTION In 2013, amidst ongoing controversy about the growing power and influence of large technology companies, the Federal Trade Commission (FTC) dropped its antitrust investigation of Google, despite a leaked report authored by the agency itself confirming evidence of monopoly power and deliberate anticompetitive actions against vertical firms. The decision was immediately followed by public outrage, particularly fueled by Google’s back-room dealings, which included 427 visits to the White House, 21 of which were “intimate meetings with President Obama” himself. 1 Large corporations, particularly technology companies, undoubtedly enjoy a fair amount of market power, certainly more than would be competitively optimal and studies have shown that two-thirds of Americans support breaking up “big tech,” a colloquial umbrella term for the largest technology companies in the United States (Facebook, Alphabet, Amazon, etc.). 2 The economic and legal grounds for sanctions against big tech are clear, but, historically, the courts and the U.S. government have consistently ruled in favor of

Luigi Zingales, “Towards a Political Theory of the Firm.” The Journal of Economic Perspectives 31, (Summer 2017), 123. 2 Emily Stuart, “Poll: Two-thirds of Americans want to break up companies like Amazon and Google.” Vox, September 18, 2019, https://www.vox.com/policy-andpolitics/2019/9/18/20870938/break-up-big-tech-google-facebook-amazon-poll.

large corporations.3 The implications of this lack of concern are alarming for the competitive economy as a whole, but also for the protection of consumer data, leading to a broad and systematic degradation of the privacy of American households. Competition between firms is the cornerstone of the American capitalist economic system and works as the driving force behind economic growth and innovation. The past century of antitrust law has been dedicated to this proposition: that is, ensuring that American markets are competitive and that no one trust has power over too large a share of the market. A trust, in the eyes of the law, is a “legal device used to coordinate multiple property owners through a unified management structure.”4 Multiple businesses “combine their interests into a single legal entity— the trust,” but the U.S. government has devised countermeasures to prevent such consolidation of power.5 The motivation for antitrust statutes is twofold. First, monopolies, because they have pricing power, will charge more for goods and services than would be charged in a competitive market. Second, in the absence of competition, firms will be incentivized to lower the quality of their products. These two outcomes together hinder economic growth and limit welfare.

Mark MacCarthy, “Facebook’s FTC court win is a much-needed wake-up call for Congress,” Brookings, July 7, 2021, https://www.brookings.edu/blog/techtank/2021/07/07/facebooks-ftc-courtwin-is-a-much-needed-wake-up-call-for-congress/. 4 Laura P. Sawyer. 2019. “US Antitrust Law and Policy in Historical Perspective.” Working Paper 19-110. Harvard Business School, Cambridge MA, 2 https://www.hbs.edu/ris/Publication%20Files/19-110_e21447ad-d98a-451f-8ef0ba42209018e6.pdf. 5 Ibid.

Government policy thus recognizes that monopolies must be prevented in order to ensure efficient allocation of resources, and antitrust statutes are aimed at eliminating such market distortions to preserve the well-being of the American economy. The digital market presents a unique opportunity for firms to optimize their profit-maximizing practices through the use of digital consumption data, which exacerbates the power of incumbents and restricts the ability of new entrants that do not have an arsenal of consumer data to put to use. Large firms that operate in the technology sector, such as internet commerce, social media, and internet databases, pose an even larger threat than historically posed by monopolies because of their control of data. Not only do they monopolize the technology sector, but technology firms also retain a growing amount of power in related markets, such as the markets for consumer attention and consumer data. According to a House Committee of the Judiciary report on the current state of the digital market, “venture capitalists lose the incentive to invest in new entrants willing to challenge the dominance of incumbent firms through direct competition. What we are left with are so-called “kill zones” —the near-complete absence of competition.”6 The House Judiciary committee names several tech giants in its report including Facebook, Alphabet (the parent company of Google), and

U.S. Congress, House, Subcommittee on Antitrust, Commercial and Administrative Law of the Committee on the Judiciary, 116th Congress, 2nd Session, 2020, p. 18 https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf?utm_campaign=4493 -519.

Amazon, all firms that possess a dangerous amount of market power and have access to myriad consumer data. 7 The emergence of technology monopolies, which are unique in that they control not only a large share of the market but also retain a plethora of information that can be used for the further consolidation of market power, has created concern amongst legal and economic scholars alike. Therefore, today, big tech has a unique ability to rapidly accumulate additional influence through its control over data, creating a novel and generally unchecked threat to the wellbeing of consumers. An additional cost emerges from the exacerbation of market power, namely the significant negative impact on the protection of consumer data and the privacy of American households. Monopolies have a natural incentive to reduce the quality of their products because competition is limited, meaning that the quality of consumer data protection, a service provided by these firms, is reduced. Scholars have noted that “a platform’s ability to maintain strong networks while degrading user privacy can reasonably be considered equivalent to a monopolist’s decision to increase prices or reduce product quality.”8 Without the threat of competition, there is no legitimate incentive to protect consumer data. Traditional measures of market failure, such as control of prices, are not sufficient in describing the unique ability of big tech to monetize the attention and data of consumers while also diminishing

7 8

Ibid. Ibid, 42.

the standards for privacy services. The economics are simple; as the data monopoly continues to grow, privacy rights will be degraded. And yet, recent antitrust litigation shows a disturbing lack of concern for the implications of the big tech’s data monopoly on data privacy. Given the nature of antitrust statutes, most class-action suits filed against large technology corporations reference the two fundamental implications of monopoly power— the increasing portion of the market that these companies occupy and their anticompetitive access to consumer data. And while these are both important, they lack an important consideration for the underlying impact on the privacy of American consumers. Trusts have evolved significantly since the legislation enacted during the 19th century and they now not only hoard a large share of the market but also intelligence on the consumption patterns and personal information of American households. Thus, the permeation of data into the market has widened the gap, disrupting the existing imbalance of power in the market by further abetting technology monopolies. While the courts have expressed concern for this, they have so far failed to consider how tech trusts may be violating fundamental rights to privacy as well. In the modern era, new statutes are necessary, designed to regulate the unique threat that monopolies in the technology market pose to American consumers and nuanced enough to mitigate big tech’s ability to consolidate further economic control.

II. A REVIEW OF ANTITRUST STATUES Before examining the implications of big tech’s data monopoly, it is first important to understand the current state of antitrust law, particularly the Sherman Act, the statute invoked in a vast majority of antitrust litigation, which has become the basis for American law targeted at breaking up monopolies. The statute was passed in 1890, amidst the large-scale industrial consolidation of the Gilded Age, and outlaws “every contract, combination or conspiracy in restraint of trade.”9 It also prohibits “monopolization, attempted monopolization, or conspiracy or combination to monopolize.”10 The interpretation and implementation of the Sherman Act has been altered greatly since its 19th-century enactment. The Supreme Court has since stated that the Sherman Act “does not prohibit every restraint of trade, only those that are unreasonable.”11 This interpretation grants large firms a considerable amount of freedom in their operations. Many of the largest technology firms, namely Microsoft, Google, Apple, Facebook, and AT&T, have survived antitrust litigation for their alleged violations of the Sherman Act. The Sherman Act continues to be a highly cited piece of legislation, despite its age, and remains fundamental for most antitrust class action suits. The Clayton Act of 1914 is the second piece of antitrust legislation that is vital for the regulation of large firms with extensive market power. The extensive

“The Antitrust Laws,” Federal Trade Commission, accessed October 8, 2021, https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws. 10 Ibid. 11 Ibid.

bill regulates antitrust violations more comprehensively. Specifically, it regulates conduct that distorts markets, including certain types of price discrimination, exclusive dealings, tying, and mergers and acquisitions that impede on competitive markets.12 The Sherman Act, because of its lack of specificity and the Supreme Court’s “rule by reason” decision, is filled with loopholes and imperfections that allow firms to engage in anticompetitive practices without fear of consequences. The Clayton Act, which is far more comprehensive, strives to remedy those shortcomings. Specifically, it targets various practices that have the potential to create monopolies or cartels, while the Sherman Act prohibits only monopolies themselves.13 The Clayton Act has been modified over time to include more stringent financial regulations with the aim of ensuring consumer safety. The Clayton Act, like the Sherman Act, is a critical piece of legislation for the regulation of large firms and is also commonly invoked in modern antitrust litigation. With the identified need for new antitrust legislation to address the problems presented from big tech, two distinct veins of thought have emerged regarding the current state of antitrust legislation: (1) big tech has too much control over the market and (2) big tech adopts unethical business practices when it

U.S. Congress, House, An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes. HR 15657, 63rd Congress, 2nd Session, Introduced in House June 5, 1914, https://fraser.stlouisfed.org/title/antitrust-laws-amendments-1890-1956-1136/claytonantitrust-act-1509 13 Ibid.

violates the privacy of its consumers. These ethical and antitrust concerns need not be disjoint, and it is necessary to view privacy violations through the lens of antitrust law. New statutes adopted cannot simply address privacy, nor can they solely address the formation of digital trusts, they must incorporate legitimate sanctions for firms that acquire too much market power specifically in the market for consumer data

III. RECENT ANTITRUST CASES In recent cases, the courts have shown a lack of commitment to protecting consumer data and ensuring that the technology oligopoly does degrade standards of privacy protection simply because they have significant control over the market. This occurs mainly because statutes are not yet evolved to regulate power over data. In a 2021 case State of New York v. Facebook, Inc.14, the state brought a class action suit against the social media conglomerate, alleging that the network’s recent acquisitions of WhatsApp and Instagram were in violation of the Clayton and Sherman Acts.15 The state argued that Facebook violated “Section 2 of the Sherman Act, through two different kinds of actions: first, by acquiring firms that it believed were well position to erode its dominance— most notably Instagram and WhatsApp; and second, by adopting policies preventing interoperability between

New York v. Facebook, Inc., No. 20-3589, 2021 WL 2643724 (D.D.C. June 28, 2021), appeal docketed, No. 21-07078 (D.C. Cir. July 29, 2021). 15 New York v. Facebook, Inc., No. 20-3589, 2021 WL 2643724 (D.D.C. June 28, 2021), appeal docketed, No. 21-07078 (D.C. Cir. July 29, 2021).

Facebook and certain other apps that it saw as threats.”16 The state also alleged that Facebook violated the Clayton Act’s provisions that regulate business strategies that could potentially create a monopoly. Facebook moved to dismiss both counts. The court ruled in Facebook’s favor, stating “although the court does not agree with all of the Defendant’s contentions here, it ultimately concurs with Facebook’s bottom-line conclusion: none of the State’s claims may go forward.” 17 This case was highly controversial because Facebook’s acquisition of Instagram was seen by many as an action with the intent of monopolizing, but what is equally objectionable is the power that Facebook acquired over consumer data. Concerns over consumer data tend to be addressed in terms of privacy law and business ethics, but there appears to be a concerning lack of attention paid to how these issues arise specifically because of decisions made in antitrust suits. Facebook’s actions were viewed unfavorably because of its $19 billion purchase of WhatsApp and $1 billion acquisition of Instagram, which constituted about onefifth of Facebook’s market cap. This was perceived as an aggressive takeover of the social media market. Further, Facebook’s actions were speculated to be in reaction to Twitter’s plans to acquire Instagram, again implicating Facebook in a takeover scheme meant to acquire market power. 18 Outside the realm of antitrust

Ibid. Ibid. 18 Salvador Rodriguez, “As calls grow to split up Facebook, employees who were there for the Instagram acquisition explain why the deal happened,” CNBC, September 24, 2019 https://www.cnbc.com/2019/09/24/facebook-bought-instagram-because-it-was-scared-of-twitterand-google.html. 17

law, Facebook, over the past two decades, has been the subject of a barrage of suits and criticisms over its lack of protective measures for consumer privacy. In 2019, the FTC imposed a $5-billion penalty for Facebook’s lack of adequate privacy measures, in violation of the FTC’s 2012 order that required Facebook to maintain certain privacy and security measures for consumer information. 19 The FTC determined that Facebook did not disclose to the app’s users that the information that they shared with friends would also be shared with third parties. Further, the FTC found that Facebook’s confusing privacy policies misled consumers because even when users chose restricted privacy settings, their data could be shared with third party apps.20 The FTC’s investigation and decision, which required Facebook to make its privacy standards more stringent and transparent, was executed distinctly in the domain of privacy law. 21 Thus, as evident, the responses of the courts and federal government explicitly miss the crucial link between antitrust decisions and consequent privacy implications. Importantly, cases need not explicitly involve privacy to have privacy implications, as seen in United States v. Apple Inc., another recent antitrust case. In a suit brought by 33 U.S. states, Apple was accused of engaging in a price-fixing conspiracy, specifically by colluding with five other major e-book publishers to

“FTC Imposes $5 Billion Penalty and Sweeping New Privacy Restrictions on Facebook,” Federal Trade Commission, Last modified July 24, 2019, https://www.ftc.gov/news-events/pressreleases/2019/07/ftc-imposes-5-billion-penalty-sweeping-new-privacy-restrictions. 20 Ibid. New York v. Facebook, Inc., No. 20-3589, 2021 WL 2643724 (D.D.C. June 28, 2021), appeal docketed, No. 21-07078 (D.C. Cir. July 29, 2021). 21 Ibid.

raise the prices of digital publications. The court ruled in favor of the states, finding that Apple violated section 1 of the Sherman Act in a horizontal price-fixing scheme. The court successfully blocked Apple’s attempt to conspire to accumulate market power.22 This case acts as an example of antitrust litigation that does not explicitly involve privacy violations but still has implications for the protection of consumer data. Apple, if it had been permitted to collude with e-book sellers, would have gained access to a well of consumption pattern data. Apple would have crushed smaller e-commerce retailers, capturing their customers in the process, and unlocking access to a new subset of consumer data. Should Apple have been given the right to fix prices, its additional market power would have drastically increased its ability to degrade and manipulate consumer privacy. Because Apple was clearly in breach of the Sherman Act, the court prohibited its anti-competitive actions which in turn protected consumer data. Unfortunately, in cases that involve less transparent violations of antitrust laws, this will never be the case. Because of the nature of large technology companies and their inherent ability to access consumer data, court decisions that provide leeway for market distorting monopolies automatically show a lack of consideration for privacy— it is simply the nature of regulating big tech.

United States v. Apple, Inc., 791 F.3d 290 (2.D. CIR., 2014).

IV. SOLUTIONS TO THE UNIQUE THREATS PRESENTED BY BIG TECH The question that arises from this discussion is what can be done to protect consumer privacy. The answer is twofold: first, new antitrust legislation must be enacted to accommodate the unique threats presented by big tech, and second, government regulatory agencies must adopt a more nuanced approach to antitrust violations when bringing suits against technology corporations— one that accounts for consumer privacy concerns not just in the sphere of market power, but also privacy law in general. Congress must act so that the courts are no longer hampered by outdated legislation to effectively regulate large technology firms. Antitrust law must firstly adopt an evolved understanding of the specific threats that big tech monopolies create today’s technologically led society today. Legislation designed to combat aggressive attempts to maintain or gain market power must consider implications across multiple markets, including the market for data. Further, I argue that it is necessary to enact statutes that are specifically aimed at regulating technology conglomerates, rather than firms in general. Because the threat of big tech is unique, antitrust law must respond accordingly. A technology-industry-specific antitrust statute must eliminate the shortcomings of the Sherman Act, which effectively prevents a large number of market-distorting actions, but still has flaws that impede the court's ability to ensure fully competitive markets. Those impediments are particularly pronounced in the technology industry. The Sherman Act is notoriously vague, a feature that

will not be acceptable for technology antitrust statutes. The Clayton Act attempts to rectify the shortcomings of the existing antitrust paradigm, and many of its provisions can be applied to big tech and its use of data specifically, including language that adequately addresses how data can be used. However, a new antitrust statute must be enacted to effectively eliminate possible loopholes for tech giants looking to gain favorable terms. The Clayton Act can serve as an effective template for future antitrust legislation, but new legislation must provide more nuance that pertains to the technology sector specifically. For example, the Clayton Act prevents mergers and acquisitions by firms that restrict market competition. Verbiage specific to the challenges of social media companies acquiring other social media platforms, such as the Facebook acquisition of Instagram, seems appropriate because of the drastic and unparalleled power over consumer data such acquisitions entail. Even if Facebook’s acquisition of Instagram is not seen to be a violation of standard antitrust laws, it seems appropriate to outline sanctions for privacy violations that will naturally emerge as a result of the formation of larger trusts via mergers and acquisitions. Additionally, the Hart-Scott-Rodino Antitrust Act, a corollary to the Clayton Act meant to augment the strength of the initial legislation, requires companies to notify the FTC and Justice Department and gain approval before

undergoing certain mergers or acquisitions. 23 More stringent preventative measures seem appropriate for mergers and acquisitions involving vast amounts of consumer data. Ultimately, the Clayton Act can be used as a foundation for future antitrust law that is geared towards regulating big tech companies. Finally, it is imperative that regulatory agencies investigating technology companies adopt a more holistic understanding of the danger of technology trusts. The FTC, for example, should consider privacy implications each time it brings a suit against companies with access to significant consumer data, regardless of whether the issue in question directly pertains to data protection. Privacy concerns are ever-present in the technology industry, and antitrust investigations should reflect this fact. There are several obstacles that arise from a reliance on the legislature to protect consumer data and privacy in antitrust suits, particularly the large amount of influence that firms can exert over both regulators and legislators. This phenomenon has been termed “capture” by scholars and refers specifically to when powerful firms are able to dominate policy decisions and steer regulations towards the interests of that regulated industry rather than the interest of the general public.24 There are several traditional vehicles for capture that industries can adopt

“Hart-Scott-Rodino Antitrust Improvements Act of 1976.” Federal Trade Commission. Accessed November 11, 2021, https://www.ftc.gov/enforcement/statutes/hart-scott-rodino-antitrustimprovements-act-1976 24 Daniel Carpenter and David Moss. “Introduction,” in Preventing regulatory capture: Special interest influence and how to limit it. (Cambridge: Cambridge University Press, 2013), 13.

in order to secure influence over regulations, specifically monetary incentive, political intimidation, or through the information that commercial experts provide. Capture may occur through legal and extralegal bribery, that is, when firms make use of monetary incentives to influence regulators. Government agencies can be reliant on firms for funding, firms can provide campaign donations to legislators, and they can also offer lucrative job opportunities for regulators who hope to leave civil service for private industry. 25 It is also possible that regulators are intimidated by powerful industries with an arsenal of economic and political resources, or that regulators are influenced by legislators who receive campaign contributions from persuasive firms.26 Despite the issues that arise from regulatory capture, it is imperative that antitrust statutes evolve to properly mitigate the adverse implications for consumer privacy that large technology trusts create. Because large technology firms by nature pose a threat to consumer privacy, antitrust laws need provisions for cases in which these companies attempt to accumulate too much market power. Antitrust statutes must contain language particularly regulating cases in which consumer privacy is sufficiently threatened, and the courts must evaluate antitrust suits by taking the privacy of American households into account.

Ibid, 18. James Kwak, “Cultural Capture and the Financial Crisis,” in Preventing regulatory capture: special interest influence and how to limit it, ed. Daniel Carpenter and David Moss. (Cambridge: Cambridge University Press, 2013), 76. 26

BIBLIOGRAPHY Carpenter, Daniel and Moss, David. “Introduction” in Preventing regulatory capture: special interest influence and how to limit it. Cambridge: Cambridge University Press, 2013. Federal Trade Commission. “FTC Imposes $5 Billion Penalty and Sweeping New Privacy Restrictions on Facebook.” Last modified July 24, 2019, https://www.ftc.gov/news-events/press-releases/2019/07/ftc-imposes-5-billion-penaltysweeping-new-privacy-restrictions

Federal Trade Commission. “Hart-Scott-Rodino Antitrust Improvements Act of 1976.” Accessed November 11, 2021, https://www.ftc.gov/enforcement/statutes/hart-scott-rodino-antitrustimprovements-act-1976 Federal Trade Commission. “The Antitrust Laws.” Accessed October 8, 2021, https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrustlaws/antitrust-laws Kwak, James. “Cultural Capture and the Financial Crisis,” in Preventing regulatory capture: special interest influence and how to limit it, edited by Daniel Carpenter and David Moss. Cambridge: Cambridge University Press, 2013. New York v. Facebook, Inc., No. 20-3589, 2021 WL 2643724 (D.D.C. June 28, 2021), appeal docketed, No. 21-07078 (D.C. Cir. July 29, 2021). Rodriguez, Salvador. “As calls grow to split up Facebook, employees who were there for the Instagram acquisition explain why the deal happened.” CNBC, September 24, 2019, https://www.cnbc.com/2019/09/24/facebook-boughtinstagram-because-it-was-scared-of-twitter-and-google.html

Sawyer, Laura P. 2019. “US Antitrust Law and Policy in Historical Perspective.” Working Paper 19-110. Harvard Business School, Cambridge MA, 2 https://www.hbs.edu/ris/Publication%20Files/19-110_e21447ad-d98a-451f8ef0-ba42209018e6.pdf Stuart, Emily. “Poll: Two-thirds of Americans want to break up companies like Amazon and Google.” Vox, September 18, 2019, https://www.vox.com/policy-and-politics/2019/9/18/20870938/break-upbig-tech-google-facebook-amazon-poll U.S. Congress, House, An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes. HR 15657, 63rd Congress, 2nd Session, Introduced in House June 5, 1914, https://fraser.stlouisfed.org/title/antitrust-laws-amendments-1890-19561136/clayton-antitrust-act-1509 U.S. Congress, House, Subcommittee on Antitrust, Commercial and Administrative Law of the Committee on the Judiciary, 116th Congress, 2nd Session, 2020, https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.p df?utm_campaign=4493-519 United States v. Apple, Inc., 791 F.3d 290 (2.D. CIR., 2014). Zingales, Luigi. “Towards a Political Theory of the Firm.” The Journal of Economic Perspectives 31, No. 3 (Summer 2017): pp. 113-130.

SOCIAL MEDIA CENSORSHIP: A LEVIATHAN THAT MUST BE CONTROLLED WRITTEN BY: A. BAJRI EDITED BY: K. BHAKTA, R. CAO, D. SAMAKE & S. GHOSH

SOCIAL MEDIA CENSORSHIP: A LEVIATHAN THAT MUST BE CONTROLLED Alba Bajri I. INTRODUCTION Free speech is arguably the most important individual liberty guaranteed by the U.S. Constitution: it facilitates the open discussion of different, often opposing, ideas in order to better understand the issues of the day and express one’s opinions in a way that is idiosyncratic to a democratic society. Yet, in the technology-driven 21st century, free speech is under constant threat, largely on platforms like social media, which have become an increasingly widespread phenomenon – 72% of US adults use at least one social media site1. Social media applications are the 21stcentury version of the public square: for many Americans they represent the spaces in which they are free to express their thoughts, opinions, and political views. However, social media companies have increasingly started to censure discourse and regulate speech, naturally limiting the open transmission of ideas. This paper explores the legal arguments for restraining social media companies from censuring speech as protected by the First Amendment to the Constitution of the United States. The paper will also explore how the “state action doctrine” may

“Demographics of Social Media Users and Adoption in the United States,” Pew Research Center: Internet, Science & Tech (Pew Research Center, April 26, 2021), https://www.pewresearch.org/internet/fact-sheet/social-media/?menuItem=81867c91-92ad-45b8a964-a2a894f873e.

apply to social media companies, therefore making them subject to the limitations imposed by the First Amendment. In order to understand the salience of this argument, it is important to first establish the role that social media plays in the transmission of information among citizens. In 2005 only 5% of U.S. adults used social media, whereas today, the use has risen to 72% of U.S. adults (as of February 8, 2021).2 The trend is broad across different ages, races, education levels, incomes, etc. Social media apps such as Facebook, Instagram, and Youtube have become ingrained in the daily social activities of most Americans, with “seven-in-ten Facebook users saying they use the site daily, and close to half saying they use the site several times a day”. 3 Social media is also used by politicians to inform their constituents on various issues – 100% of the U.S. Congress members posted on Facebook in 2020, 99% of U.S. Senators and 98% of U.S. House representatives posted on Twitter in 2020. 4 Users post about a different array of topics: “they can debate religion and politics with their friends and neighbors, share vacation photos”, or “ petition and engage directly with their elected representatives” 5. It is reasonable to suggest that a considerable amount of information is shared and absorbed through social media.

Ibid. Brooke Auxier and Monica Anderson, “Methodology,” Pew Research Center: Internet, Science & Tech (Pew Research Center, April 7, 2021), https://www.pewresearch.org/internet/2021/04/07/social-media-use-methodology/. 4 Published by Statista Research Department and Feb 15, “U.S. Congress Official Social Media Presence 2020,” Statista, February 15, 2021, https://www.statista.com/statistics/958794/congressmembers-posted-official-social-media-accounts-usa/. 5 “Packingham v. North Carolina, 582 U.S. ___ (2017),” Justia Law, https://supreme.justia.com/cases/federal/us/582/15-1194/. 3

In fact, in Packingham v. North Carolina 582 U.S. (2017), Justice Kennedy wrote in the majority opinion that “these websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”6 In Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997) Justice Stevens, writing for the majority, called the internet a “new marketplace of ideas”, and agreed with the finding of the District Court that "the content on the Internet is as diverse as human thought''.7 It is thus evident that social media is absolutely essential for the free communication of ideas and speech today. II. CURRENT SOCIAL MEDIA POLICIES ON REGULATING SPEECH In order to elucidate the existing problem, it is necessary to first describe some of the current speech regulating policies employed by social media companies such as Facebook, Twitter, and Instagram. A majority of regulations on these platforms like the removal of posts or suspension of accounts are related to speech classified as “hate speech” and “misinformation”. Facebook defines hate speech as “a direct attack against people — rather than concepts or institutions— on the basis of what we call protected characteristics: race, ethnicity, national

Ibid. “Janet Reno, Attorney General of the United States, Et Al., Appellants v. American Civil Liberties Union Et Al..,” Legal Information Institute (Legal Information Institute), https://www.law.cornell.edu/supremecourt/text/521/844. 7

origin, disability, religious affiliation, caste, sexual orientation, sex, gender identity and serious disease.”8 It goes on to outline specific examples of speech that are not allowed, for example, content that targets a person or a group of people on the basis of “moral deficiency”, which is defined as “character traits culturally perceived as negative, including but not limited to: coward, liar, arrogant, ignorant.” Rules regarding misinformation, perhaps more problematic, are also outlined by the companies. Twitter updated their misinformation policies before the 2020 election by implementing the “Civic Integrity Policy”. This policy was meant to protect the integrity of the elections and not allow false information to discourage citizens from voting – “You may not use Twitter’s services for the purpose of manipulating or interfering in elections or other civic processes. This includes posting or sharing content that may suppress participation or mislead people about when, where, or how to participate in a civic process. In addition, we may label and reduce the visibility of Tweets containing false or misleading information about civic processes in order to provide additional context.” 9 At face value, these policies may seem beneficial to the promotion of a safe online environment; in reality however, they are often more damaging than helpful. Through the policies regarding misinformation, social media companies assume the

“Hate Speech,” Transparency Center, https://transparency.fb.com/en-gb/policies/communitystandards/hate-speech/?from=https%3A%2F%2Fengb.facebook.com%2Fcommunitystandards%2Fhate_speech. 9 “Twitter's Civic Integrity and Election Fraud Policy | Twitter Help,” Twitter (Twitter), accessed December 10, 2021, https://help.twitter.com/en/rules-and-policies/election-integrity-policy.

role of “arbiter of truth”10, even in ambiguous or developing situations. Even if something is false it merits consideration; by removing content under the guise that it is misinformation, social media companies are limiting people from assessing information for themselves and determining what is more worthy of their belief. Only by considering all points of view and the information available can one confidently arrive upon a sound conclusion. As the Supreme Court, quoting John Stuart Mill’s On Liberty, noted in New York Times Co v. Sullivan, “even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’”11 And as Judge Learned Hand wrote in United States v. Associated Press, "right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all." 12 Justice Louis D. Brandeis similarly wrote in his concurring opinion in Whitney v. California (1927), “If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”13 It is often stated that

“Zuckerberg Says Facebook Won't Be 'Arbiters of Truth' after Trump Threat,” The Guardian (Guardian News and Media, May 28, 2020), https://www.theguardian.com/technology/2020/may/28/zuckerberg-facebook-police-online-speechtrump. 11 New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 12 United States v. Associated Press, 52 F. Supp. 362 (S.D.N.Y. 1943). 13 Whitney v. California, 274 U.S. 357 (1927).

misinformation is bad for democracy, yet suppression of information—even if false—and a self-righteous sense of superiority to guide the way society thinks is much worse, not only for democracy but for humanity itself. Plato would not have achieved his immortality if The Republic was flagged for misinformation, nor would have Newton, nor Darwin. Of course, this is not to suggest that social media posts merit the same distinction or that they will reach an especially excellent advancement of society; but they do contribute to the attitude society has towards the consideration of truth and the exploration of different issues. The removal of U.S. Senate candidate Josh Mandel’s post is a great example of how these policies may be counterproductive. The candidate asked his followers whether more crimes will be committed by Mexican “gangbangers” or Muslim “terrorists”; the post was later removed by Twitter for violating its rules regarding hateful content.14 Many would celebrate this removal of “hate speech”, but even hate speech is protected speech. 15 “One citizen’s hateful screed is another’s religious text; one citizen’s slur is another’s term of endearment; or, as the Court put it, ‘one man’s vulgarity is another’s lyric.’As a result, crafting a generally applicable definition of ‘hate speech’ is all but impossible without silencing

WSYX Staff, “Twitter Removes Post from U.S. Senate Candidate Josh Mandel,” WSYX (WSYX, March 19, 2021), https://abc6onyourside.com/news/local/twitter-removes-post-from-ussenate-candidate-josh-mandel. 15 As most recently affirmed in the Supreme Court case Matal v. Tam, 582 US _ (2017) unanimously.

someone’s “legitimate” speech.”16 In this specific example, although the post is clearly hateful and discriminatory, it also represents what that candidate thinks, something which is essential for voters to consider when making their decision. This post may convince them to vote for this candidate, or it may completely steer them away from him. In essence, it is important for the electorate to know the views of their prospective or present governmental officials, even if these views are “misinformation” or “hateful”. As knowledge of these views gives them a true understanding of the beliefs the candidate holds, something which may even dissuade them from voting for that candidate. Many argue that hateful views should not be given a platform as they can multiply hatred, but “fear of serious injury cannot alone justify suppression of free speech”17. If hate is displayed in public, it can also be through reason battled in public. This phenomenon of post removal is not contained in this example. In another case, the Democratic National Convention was forced to remove a tweet satirizing then-President Donald Trump by quoting him, because it violated Twitter’s guidelines.18 In this case, the DNC was holding then-President Trump accountable for his statements, yet Twitter considered that post to be spreading misinformation rather than battling it. Similarly, Twitter forced U.S. House

FIRE, “Is Hate Speech Legal?,” FIRE, March 28, 2019, https://www.thefire.org/issues/hatespeech/. 17 Whitney v. California, 274 U.S. 357 (1927). 18 Donie O'Sullivan, “Twitter Temporarily Stops DNC from Tweeting after Calling out Trump,” CNN (Cable News Network, August 6, 2020), https://www.cnn.com/2020/08/06/politics/twitterdemocratic-national-committee-trump/index.html.

candidate Elizabeth Hernandez to remove a tweet saying “Thank you! And remind all of your Trump-supporting relatives to vote on Wednesday, November 4! (Since they’re Trump supporters, they might fall for it. Just saying....)”. 19 This example is similar to the first one in that it allows the electorate to know more about the candidates whom they will be voting for. III. ARGUMENT FOR SOCIAL MEDIA CENSORSHIP I will now proceed to explain the most common arguments used to claim that social media companies have the right to and should censor users on their platforms. First and foremost, “the Free Speech Clause of the First Amendment constrains governmental actors and protects private actors”,20 in other words, the First Amendment can only be violated by the government, not by private institutions or private citizens. Social media companies are of course private companies, and therefore have the right to censor and to remove whatever content they see fit; in this way, they practice their own freedom of expression. Many also argue that if the government takes action to prevent social media companies from censoring, that would open the door for more governmental regulation in the

Cristiano Lima, “Twitter Forces Democratic Candidate to Delete Post Flouting Voter Suppression Rules,” Politico (Politico, September 1, 2020), https://www.politico.com/news/2020/09/01/texasdemocrat-deleted-twitter-post-407031. 20 Manhattan Community Access Corporation, e al., Petitioners v. Deedee Halleck, et al., 587 U. S. (2019).

operations of private businesses, violating their property rights guaranteed by the Fifth and Fourteenth Amendments. 21 IV. SOCIAL MEDIA COMPANIES AS STATE ACTORS In response to these arguments, Professor Jed Reubenfield – Robert R. Slaughter Professor of Law at Yale Law School – argues that social media companies be considered as state actors because of 47 U.S. Code § 230 and repeated governmental encouragement for censorship, thus they are also constrained by the First Amendment.22 A private entity is a state actor “[1] when the private entity performs a traditional, exclusive public function; [2] when the government compels the private entity to take a particular action; or [3] when the government acts jointly with the private entity.”23 In the case of social media companies, the second reason is the one that most fully applies. For instance, the Communication Decency Act was passed by Congress in 1996 to regulate pornographic content on the internet. The Act was instrumental in protecting sites from liability, but it also had overly-broad regulations over “indecency”, causing criticism and lawsuits from many Free Speech advocates.

Kenneth Simon Chair, “Property Rights and the Constitution,” Cato.org, accessed December 10, 2021, https://www.cato.org/cato-handbook-policymakers/cato-handbook-policy-makers-8th-edition2017/property-rights-constitution#what-congress-should-do. 22 Jeb Rubenfeld, “Are Facebook and Google State Actors?,” Lawfare, November 8, 2019, https://www.lawfareblog.com/are-facebook-and-google-state-actors. 23 Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. ___, No. 17-702, slip op. at 6 (2019) (internal citations omitted) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 352–54 (1974), Blum v. Yaretsky, 457 U.S. 991, 1004–05 (1982), and Lugar v. Edmondson Oil Co., 457 U.S. 922, 941–42 (1982), respectively).

Eventually, Title 47 U. S. C. § 223(a)(I)(B)(ii) (1994 ed., Supp. II) and 223(d) of the Act were held as unconstitutional by the Supreme Court in Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997) because they abridged the free speech clause of the First Amendment. Writing for the majority of the Court, Justice Stevens noted that, “As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.” Indeed, these kinds of overly broad regulations have a “chilling effect on free speech”. 24 Section 230(c) is the essential piece of the act, from which the state actor argument can be built. The “Good Samaritan” clause gives social media companies blanket protection from civil liability whenever they remove or restrict content that “the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”. 25 The government effectively granted a green check to social media companies to police speech. As the William Wallace Kirkpatrick Research Professor Dawn Nunziato of George Washington School of Law states, “Congress encouraged private Internet actors to do what it could not do itself—

Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997). “47 U.S. Code § 223 - Obscene or Harassing Telephone Calls in the District of Columbia or in Interstate or Foreign Communications,” Legal Information Institute (Legal Information Institute), https://www.law.cornell.edu/uscode/text/47/223. 25

restrict harmful, offensive, and otherwise undesirable speech, the expression of which would nonetheless be protected by the First Amendment.”26 Considering that these “educational and informational” companies “offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity”27, as Congress acknowledges in Section 230, it seems illogical that speech is removed based on its content. Just as students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate"28, so users must not shed them at the gates of the Internet. Moreover, there have been public demonstrations of the government “compelling” social media actions to restrict speech. In the July 16th, 2021 White House press briefing, Press Secretary Jen Psaki expressed discontent with the steps that Facebook had taken to combat COVID-19 vaccine misinformation and that the administration would like to see further steps taken. She noted that the White House is “in regular touch with social media platforms” and that the administration is “regularly making sure social media platforms are aware of the latest narratives

Jeb Rubenfeld, “Are Facebook and Google State Actors?,” Lawfare, November 8, 2019, https://www.lawfareblog.com/are-facebook-and-google-state-actors. 27 “47 U.S. Code § 223 - Obscene or Harassing Telephone Calls in the District of Columbia or in Interstate or Foreign Communications,” Legal Information Institute (Legal Information Institute), https://www.law.cornell.edu/uscode/text/47/223. 28 Fortas, Abe, and Supreme Court Of The United States. U.S. Reports: Tinker v. Des Moines School Dist., 393 U.S. 503. 1968. Periodical. https://www.loc.gov/item/usrep393503/.

dangerous to public health”.29 She suggested that users who are banned from one platform should automatically be banned by other platforms –“You shouldn’t be banned from one platform and not others if you — for providing misinformation out there”– thus further limiting their access to a forum. Further, when asked by the press if Facebook’s removal of 18 million pieces of COVID misinformation was sufficient, Secretary Psaki responded “Clearly not, because we’re talking about additional steps that should be taken.”30 President Joe Biden himself condemned social media companies’ modest censoring by saying “they’re (Facebook and other social media companies) killing people”31. Although Facebook responded by telling the administration to stop “finger-pointing”, they felt the need to reassure that “so far we've removed more than 18 million pieces of COVID misinformation, removed accounts that repeatedly break these rules, and connected more than 2 billion people to reliable information about COVID-19 and COVID vaccines across our apps.”32 Youtube, too, followed suit, and they more drastically banned all “anti-vaccine misinformation” on September 29th.33 Even during Senate and House hearings, government officials have openly challenged Social Media CEOs.

“Press Briefing by Press Secretary Jen Psaki, July 16, 2021,” The White House (The United States Government, July 16, 2021), https://www.whitehouse.gov/briefing-room/pressbriefings/2021/07/16/press-briefing-by-press-secretary-jen-psaki-july-16-2021/. 30 Ibid. 31 “‘They’Re Killing People’: Biden Denounces Social Media for ...,” https://www.nytimes.com/2021/07/16/us/politics/biden-facebook-social-media-covid.html. 32 Person, “White House Slams Facebook as Conduit for Covid-19 Misinformation,” Reuters (Thomson Reuters, July 15, 2021), https://www.reuters.com/world/us/us-surgeon-general-warnsover-covid-19-misinformation-2021-07-15/. 33 “YouTube Bans Anti-Vaccine Misinformation - The New York Times,” The New York Times, https://www.nytimes.com/2021/09/29/technology/youtube-anti-vaxx-ban.html.

At a hearing of the U.S. House Financial Services Committee on October 23rd, 2019, Representative Alexandria Ocasio-Cortez confronted Facebook CEO Mark Zuckerberg: “So you won’t take down lies or you will take down lies, it’s just a pretty simple yes or no?”, he replied “In a democracy, I believe that people should be able to see for themselves what politicians, who they may or may not vote for, are saying.”34 It is true that Facebook has fewer restrictions on posts than Twitter, which tracks “misinformation” more severely as shown in the examples provided before, but they do not always follow this principle that Zuckerberg laid out. V. ALTERNATIVE ARGUMENT FOR HOLDING SOCIAL MEDIA COMPANIES LIABLE TO THE FIRST AMENDMENT Even if social media companies weren’t state actors, there would still be precedent to hold them liable to the First Amendment. In Marsh v. Alabama 326 U.S. 501 (1946) the Supreme Court ruled that Chickasaw, a town in Alabama owned by the Gulf Shipbuilding Corporation, was violating the First Amendment when it refused to allow the appellant, Grace Marsh, to distribute religious material inside the town. The Court found that: “Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” In other words, constitutional rights generally trump private property rights in cases such as this. Moreover, Justice

“Hearings,” U.S. House Committee on Financial Services, https://financialservices.house.gov/calendar/eventsingle.aspx?EventID=404487.

Black wrote for the majority that “To act as good citizens, they must be informed. In order to enable them to be properly informed, their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.” 35 Social media companies could be compared to the town of Chickasaw– even though privately owned, they are open platforms for general use by the public. Twitter’s ex-CEO Jack Dorsey himself has acknowledged that “Twitter’s purpose is to serve the public conversation. People from around the world come together on Twitter in an open and free exchange of ideas”, and that Twitter is a “digital public square”36. So, just as Grace Marsh had the right to distribute religious fliers even though the private town disapproved, so do users have the right to post on social media what may not align with the values of those companies. Naturally, this essay doesn’t argue that no post should ever be removed, only what is protected by the First Amendment. The Supreme Court has established guidelines to assess what speech is not protected under the First Amendment in Brandenburg v. Ohio, 395 U.S. 444 (1969), these guidelines are a good standard to follow in order to determine whether a post should be removed from a site or not.

Marsh v. Alabama, 326 U.S. 501 (1946). Valerie C. Brannon, “Free Speech and the Regulation of Social Media ... - Congress,” accessed December 10, 2021, https://crsreports.congress.gov/product/pdf/R/R45650. 36

VI. CONCLUSION Social media apps aren’t inherently evil. Ultimately, they are a reflection of the people behind the screens. They are only tools. Social Media can be bettered by upholding the democratic values of the nation and fulfilling its own standards of being a “digital public square”37 with “an open and free exchange of ideas”38. The solution proposed in this paper would allow for fewer restrictions on what users can post online, thus leading to a greater share of ideas and a healthier attitude towards speech people may disagree with. While this solution is far from perfect, it is the only one that can protect the sanctity of free expression in a digital age.

Ibid. Breaking the News: Censorship, Suppression, and the 2020 Election, United States Senate Judiciary Committee, 116th Congress, Nov 17, 2020 (Testimony of Jack Dorsey Chief Executive Officer Twitter, Inc.). 38

BIBLIOGRAPHY “17-1702 Manhattan Community Access Corp. v. Halleck (06/17/2019),” 2019, 39. “47 U.S. Code § 223 - Obscene or Harassing Telephone Calls in the District of Columbia or in Interstate or Foreign Communications | U.S. Code | US Law | LII / Legal Information Institute.” Accessed October 8, 2021. https://www.law.cornell.edu/uscode/text/47/223. “An Examination of Facebook and Its Impact on the Financial Services and Housing Sectors | Financial Services Committee.” Accessed October 8, 2021. https://financialservices.house.gov/calendar/eventsingle.aspx?EventID=404487. “Are Facebook and Google State Actors? - Lawfare.” Accessed October 8, 2021. https://www.lawfareblog.com/are-facebook-and-google-state-actors. Auxier, Brooke, MONICA, and ERSON. “Methodology.” Pew Research Center: Internet, Science & Tech (blog), April 7, 2021. https://www.pewresearch.org/internet/2021/04/07/social-media-use-methodology/. Brannon, Valerie C. “Free Speech and the Regulation of Social Media Content,” n.d., 46. Chair, Kenneth Simon. “Property Rights and the Constitution.” Cato.org. Accessed December 10, 2021. https://www.cato.org/cato-handbook-policymakers/catohandbook-policy-makers-8th-edition-2017/property-rights-constitution#whatcongress-should-do. “Demographics of Social Media Users and Adoption in the United States.” Pew Research Center: Internet, Science & Tech. Pew Research Center, November 23, 2021. https://www.pewresearch.org/internet/fact-sheet/social-media/.

“Dorsey Testimony.Pdf.” Accessed October 8, 2021. https://www.judiciary.senate.gov/imo/media/doc/Dorsey%20Testimony.pdf. FIRE. “Is Hate Speech Legal?” FIRE, March 28, 2019 https://www.thefire.org/issues/hate-speech/. “Hate Speech | Transparency Center.” Accessed October 8, 2021. https://transparency.fb.com/en-gb/policies/community-standards/hatespeech/?from=https%3A%2F%2Fengb.facebook.com%2Fcommunitystandards%2Fhate_speech. “Janet RENO, Attorney General of the United States, et al., Appellants v. AMERICAN CIVIL LIBERTIES UNION et al. | Supreme Court | US Law | LII / Legal Information Institute.” Accessed October 8, 2021. https://www.law.cornell.edu/supremecourt/text/521/844. Justia Law. “Marsh v. Alabama, 326 U.S. 501 (1946).” Accessed October 8, 2021. https://supreme.justia.com/cases/federal/us/326/501/. Justia Law. “Packingham v. North Carolina, 582 U.S. ___ (2017).” Accessed October 8, 2021. https://supreme.justia.com/cases/federal/us/582/15-1194/. The White House. “Press Briefing by Press Secretary Jen Psaki, July 16, 2021,” July 16, 2021. https://www.whitehouse.gov/briefing-room/pressbriefings/2021/07/16/press-briefing-by-press-secretary-jen-psaki-july-16-2021/. Justia Law. “Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).” Accessed October 8, 2021. https://supreme.justia.com/cases/federal/us/521/844/. New York Times Co. v. Sullivan, 376 U.S. 254 (1964) United States v. Associated Press, 52 F. Supp. 362 (S.D.N.Y. 1943)

“‘They’Re Killing People’: Biden Denounces Social Media for Virus Disinformation The New York Times.” Accessed October 8, 2021. https://www.nytimes.com/2021/07/16/us/politics/biden-facebook-social-mediacovid.html. “Twitter Forces Democratic Candidate to Delete Post Flouting Voter Suppression Rules - POLITICO.” Accessed October 8, 2021. https://www.politico.com/news/2020/09/01/texas-democrat-deleted-twitter-post407031 “Twitter Removes Post from U.S. Senate Candidate Josh Mandel | WSYX.” Accessed October 8, 2021. https://abc6onyourside.com/news/local/twitter-removes-postfrom-us-senate-candidate-josh-mandel. “Twitter Temporarily Stops DNC from Tweeting after Calling out Trump CNNPolitics.” Accessed October 8, 2021. https://www.cnn.com/2020/08/06/politics/twitter-democratic-national-committeetrump/index.html. “Twitter’s Civic Integrity and Election Fraud Policy | Twitter Help.” Accessed October 8, 2021. https://help.twitter.com/en/rules-and-policies/election-integrity-policy. Statista. “U.S. Congress Official Social Media Presence 2020.” Accessed October 8, 2021. https://www.statista.com/statistics/958794/congress-members-postedofficial-social-media-accounts-usa/. “White House Slams Facebook as Conduit for COVID-19 Misinformation | Reuters.” Accessed October 8, 2021. https://www.reuters.com/world/us/us-surgeon-generalwarns-over-covid-19-misinformation-2021-07-15/.

“YouTube Bans Anti-Vaccine Misinformation - The New York Times.” Accessed October 8, 2021. https://www.nytimes.com/2021/09/29/technology/youtube-antivaxx-ban.html. “Zuckerberg Says Facebook Won’t Be ‘arbiters of Truth’ after Trump Threat | Mark Zuckerberg | The Guardian.” Accessed October 8, 2021. https://www.theguardian.com/technology/2020/may/28/zuckerberg-facebookpolice-online-speech-trump.

GRAY ZONE: THE CASE FOR CLARITY IN INTERNATIONAL CYBER CONFLICT WRITTEN BY: C. LIDARD EDITED BY: K. BHAKTA, R. CAO, D. SAMAKE & S. GHOSH

GRAY ZONE: THE CASE FOR CLARITY IN INTERNATINOAL CYBER CONFLICT Christopher D. Lidard I. INTRODUCTION It was on November 24th, 2014, that the American people first got a glimpse of a threat that would affect their lives radically for the rest of the decade. As employees of Sony Pictures, Inc. (referenced here as Sony) clocked into an expectedly ordinary pre-thanksgiving work week, they were met with one of the most devastating and highly publicized cyber-attacks on a private entity ever to have occurred. A group calling themselves ‘Guardians of Peace’ launched a series of attacks on Sony’s servers, exfiltrating up to 100 terabytes of data, posting it to a newly created subdomain of Sony’s public website, and plastering employee workstations with disturbing images and messages proclaiming the hack. 1 The attack, as is often the case in cybersecurity incidents, began with a breach of Sony’s network facilitated through simple phishing emails sent to employees. Once network access was gained, however, the execution of data theft and damage “displayed a level of targeting, preparation, and planning beyond the nowcommon...attacks.”2 The actors, through the success of the phishing attempts, gained relatively free reign over the Sony network, thus being able to both steal

Antonio DeSimone, “Sony’s Nightmare before Christmas: The 2014 North Korean Cyber Attack on Sony and Lessons for US Government Actions in Cyberspace,” n.d., 44. 2 DeSimone.

data and disrupt operations. The following weeks were filled with international press attention around the earth-shattering attack-- never before had a state actor attacked a private business in such a destructive, high-profile way. While thenPresident Obama officially stopped short of deeming the attack an act of war 3, the public had been made aware of the dangerous potential of intensive cyber operations against domestic targets. The nature of the attack was complex given that North Korea did not officially claim responsibility for it, choosing to instead hide behind a pseudonymous subgroup that did not have to face international responsibility for its actions. They reinforced this image through tactics like defacing workstations with low-resolution skull drawings, thus resembling the work of low-tech hacktivists 4 rather than a state actor. The complexity of an attack involving both a state and private entity was unprecedented, making it difficult to justify a state response from the United States government. Since 2014, several more high-profile cyber-attacks have occurred, at a seemingly skyrocketing rate. Savvier actors keen on disrupting security and economic ability in the United States have engineered a variety of extremely effective attacks against important players in the political, business, and infrastructure spheres. Some, such as the hack of SolarWinds 5, a major federal

Steve Holland and Doina Chiacu, “Obama Says Sony Hack Not an Act of War,” Reuters, December 21, 2014, https://www.reuters.com/article/us-sony-cybersecurity-usa/obama-says-sonyhack-not-an-act-of-war-idUSKBN0JX1MH20141222. 4 Individuals that make political statements through cyber crime. 5 Vijay D’Souza, “SolarWinds Cyberattack Demands Significant Federal and Private-Sector Response (Infographic),” Government Accountability Office, WatchBlog, April 22, 2021,

government IT service provider, proved extremely dangerous to American institutions and the ability for the government to operate safely. Others, such as the attack on the Colonial pipeline infrastructure in early 20216, had wide-reaching effects on Americans in every part of society through the sheer universality of the market it brought down. These examples are instances of state-sponsored or stateaffiliated attacks on U.S. interests, whether they be perpetrated by governments themselves or by groups working in close concert with leaders or aims aligned with government interests. It is important to define the fundamental terms and concepts that exist in the domain of cyber operations. While many of the definitions are still debated, the definition chosen by the United States government is a sufficient baseline to describe its actions and that of its peer adversaries: Cyberspace operations are composed of the military, intelligence, and ordinary business operations of the DOD in and through cyberspace. Military cyberspace operations use cyberspace capabilities to create effects that support operations across the physical domains and cyberspace. Cyberspace operations differ from information operations (IO), which are specifically concerned with the use of information-related capabilities during military operations to affect the decision making of adversaries while protecting our own. IO may use cyberspace as a medium, but it may also employ capabilities from the physical domains.7

https://www.gao.gov/blog/solarwinds-cyberattack-demands-significant-federal-and-private-sectorresponse-infographic. 6 Stephanie Kelly and Jessica Resnick-Ault, “One Password Allowed Hackers to Disrupt Colonial Pipeline, CEO Tells Senators,” Reuters, June 8, 2021, https://www.reuters.com/business/colonialpipeline-ceo-tells-senate-cyber-defenses-were-compromised-ahead-hack-2021-06-08/. 7 Catherine Theohary, “Defense Primer: Cyberspace Operations” (Congressional Research Service, December 1, 2021), https://crsreports.congress.gov/product/pdf/IF/IF10537.

This definition is broad, and also creates many possibilities for ambiguity, especially for the delineation of information and cyberspace operations. Additionally, while “the ordinary business” of the DOD through cyberspace technically qualifies as cyberspace operations, there is a high threshold for which of those activities actually constitute warfighting—electronic payroll, for example, is a cyberspace activity that is not relevant to this discourse. Another essential distinction is between kinetic and physical methods of war. Generally, when discussing cyber warfare, any warfighting method that does not involve cyberspace is classified as kinetic-- e.g. tanks, bullets, and planes when viewed as independent capabilities. This does not preclude cyber operations from having a physical effect, such as the destruction of sensitive electronic equipment or important critical infrastructure, which is often the overarching goal of disruption-seeking actors.8 Because of the proliferation of cyber operations and their variability of classification, state actors have often been deeply affected but simultaneously unable to effectively respond to threats on their networks. The fundamental question asked by these actors: should cyber operations be considered acts of war? If so, which? Do they warrant a response accordingly? The Geneva Convention, as well as its additional Protocols, is accepted in the international community as the main document that should govern the international legality of warfare and help 8

David Wallace, “Scenario 22: Cyber Methods of Warfare,” Cyber Law Toolkit, September 19, 2021, https://cyberlaw.ccdcoe.org/wiki/Scenario_22:_Cyber_methods_of_warfare#cite_note-35.

define its boundaries 9. However, with the most applicable sections only having been last updated in 197710, the documents are understandably outdated, and states are still left with considerable uncertainty as to their status when engaging in cyber operations. In response to this ambiguity, Microsoft President and Chief Legal Officer Brad Smith proclaimed in a 2017 speech the need for a “Digital Geneva Convention” that more directly addresses and shortcomings of the original document and provides specific clarity to cases of cyber conflict as to what qualifies as warfare, and in cases that do qualify, what actions can or cannot be taken by states 11. Smith outlined a six-point framework for an international agreement establishing regulations for cyber conflict, with the technology industry serving as an allegedly neutral “Digital Switzerland” to arbitrate disputes. 12 Smith identified a major gap in contemporary international law, and his call for a new era of solutions to the legally uncharted domain of cyber conflict is welltimed. However, his plan of addressing an outdated, universally applicable Convention with another broad, sweeping document represents the same clunky methodologies of international law that led to the original problem. While the Geneva Convention is no longer sufficient to address the legal implications of

Krystyna Blokhina and Stephanie Jurkowski, “Geneva Conventions and Their Additional Protocols,” Legal Information Institute, June 10, 2019, https://www.law.cornell.edu/wex/geneva_conventions_and_their_additional_protocols. 10 “The Geneva Conventions of 1949 and Their Additional Protocols,” Intl Committee of the Red Cross, 2014, https://www.icrc.org/en/document/geneva-conventions-1949-additional-protocols. 11 Brad Smith, “The Need for a Digital Geneva Convention,” Microsoft On the Issues, February 14, 2017, https://blogs.microsoft.com/on-the-issues/2017/02/14/need-digital-genevaconvention/#sm.0001hkfw5aob5evwum620jqwsabzv. 12 Smith.

cyber warfare, the future of international humanitarian law in this domain should be governed not by an updated Digital Geneva Convention, but by directed, smallscale multilateral agreements that are more effective, dynamic, and tailored to states’ interests. II. THE GENEVA CONVENTION Finalized in its current form in 1949 in the wake of extensive collateral damage wrought by World War II, the Geneva Convention has served to this day as the central legal framework for international humanitarian law governing warfare13. Structurally, the Convention is simply a multilateral treaty with 196 signatories, encompassing all United Nations member states 14. Applied to states as a whole through the International Court of Justice 15 and to individuals through the International Criminal Court16, the Convention is recognized as the basis of all of international humanitarian law and is the primary source of governance for armed conflict. Additional Protocols I and II to the Convention were signed in 1977 as updates to account for paradigmatic shifts in warfighting practices, in particular reflecting concerns over widespread less-formalized “armed conflicts” as opposed to wars, and fears about the rapid development of new warfighting technologies 17.

“The Geneva Conventions of 1949 and Their Additional Protocols.” “Treaties and Documents By State,” International Committee of the Red Cross, accessed January 27, 2022, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountry.xsp. 15 Vincent Chetail, “The Contribution of the International Court of Justice to International Humanitarian Law” 85, no. 850 (2003): 35. 16 “Rome Statute of the International Criminal Court” (International Criminal Court, Nov 29, 2010). 17 “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.,” International 14

Both documents lack explicit references to cyber operations as they predate their development and employment as a warfighting tactic. That being said, certain provisions can be applied to cyber warfare as they were developed to be applicable regardless of methodology or technological advancement 18. Core values of the Convention such as proportionality, protection of non-combatants, and prohibitions on inhuman punishments are universally applicable and important foundational warfighting principles. One example, Article 36 of the Additional Protocol I 19, mandates that a party to the Protocol perform a legal review of all newly developed weapons to determine their viability under international law, including the Convention and its Protocols. Because these principles apply to all weapons, they apply to cyber weapons and capabilities as well. While such reviews are necessary and important to ensure innovation does not exceed established standards, the specific language within Article 36 is a holdover from an outdated, kinetic-centric way of war. In the virtual battlefield where weapons can be self-replicating, copied and modified by a sufficiently industrious civilian, or have unintended effects on groups beyond the initial target, such a requirement could be ambiguously applied at best and wholly disqualifying for most cyber weapons at worst. It follows that many of the other Committee of the Red Cross, accessed January 27, 2022, https://ihldatabases.icrc.org/ihl/INTRO/470. 18 “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.” 19 “NEW WEAPONS,” June 8, 1977, https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=FEB84E9C01 DDC926C12563CD0051DAF7.

articles in the Protocol are likewise outdated or otherwise incompatible with this new domain—in general, they address a narrow scope of innovation that has now been shattered by entirely different warfare tactics. In addition to the frameworks of the Geneva Convention and its Protocols not being directly tailored to the world of cyber operations, there are also many instances worldwide where the foundations of a state’s cyber operations capabilities are in direct conflict with fundamental assumptions made by these documents. Chief among these is the differentiation between “civilians” and “combatants.” The U.S. government currently has dedicated military personnel who serve as cyber warfare specialists either in defensive or offensive operations, as well as a multitude of federal employees who work closely alongside military actors to support information and cyber operations20. The majority of these federal employees, or civilians, serve at the National Security Agency (NSA), which is traditionally directed by the military commander of U.S. Cyber Command 21. Thus, there is a highly entangled relationship between military combatants and civilian workforce in the accomplishment of cyber objectives. In the context of the United States’ adversaries, this obfuscation tends to be even worse, especially as they employ actors beyond the bounds of their own government. For example, the Russian domestic intelligence service, known as the Federal Security Service (FSB), has been clearly implicated in paying known 20 21

Theohary, “Defense Primer: Cyberspace Operations”. Theohary.

Russian criminal groups to perform international cyber operations on its behalf 22. The Chinese government has also been reported as engaging in similar contracting23. That being said, due to the rather secretive nature of both governments and their relative opacity with respect to the United States, it is difficult to paint a truly accurate picture of the robustness of their capabilities. These facts present several challenges. The Geneva Convention and accompanying Protocols necessitate a clear differentiation between combatants, who are uniformed members of a military, and civilians, who are presumed to be unaffiliated, except only when taking up arms spontaneously24. This binary represents an insufficiently robust definition of civilian. It is important that there be protected groups of citizens who are entirely unaffiliated with the warfighting process that are not able to be intentionally targeted or otherwise subjected to combat. However, it is not unreasonable to employ civilians in the warfighting effort without having to categorize them as full-fledged uniformed combatants. At best, this represents a large ambiguity. At worst, by a strict application of the Convention, this would mean that civilians engaged in cyber warfare forfeit their protections from intentional targeting by kinetic capabilities.

“U.S. Charges Russian FSB Officers and Their Criminal Conspirators for Hacking Yahoo and Millions of Email Accounts,” The United States Department of Justice, March 15, 2017, https://www.justice.gov/opa/pr/us-charges-russian-fsb-officers-and-their-criminal-conspiratorshacking-yahoo-and-millions. 23 Paul Mozur and Chris Buckley, “Spies for Hire: China’s New Breed of Hackers Blends Espionage and Entrepreneurship,” The New York Times, August 26, 2021, https://www.nytimes.com/2021/08/26/technology/china-hackers.html. 24 “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.”

It turns out the aforementioned Sony Pictures hack serves as an excellent case study on the shortcomings of international humanitarian law in the realm of cyber conflict. Neither the United States nor Russia is in fact current parties to Additional Protocol I of the Geneva Convention, making most of the recent attacks recognizable to the American public not applicable to its provisions. However, the Democratic People’s Republic of Korea is a signatory to both the original Geneva Convention as well as Additional Protocol I, making it subject to those regulations in all conflicts, with cyber operations not exempted. In the case of the Sony Pictures hack, which has been authoritatively linked to state-sponsored North Korean actors 25, the effects of the attack could be construed to signify multiple violations of International Humanitarian Law, including an unprovoked, disproportionate attack and an offensive operation on a private corporation composed of non-combatants. However, no penalties were brought forth in international court. The Geneva Convention and its Additional Protocols served an important purpose in a post-World War II world to protect the vulnerable from the increasing havoc of warfare. Now, these documents are insufficient for the new generation of conflict – without worldwide participation and with obvious potential for circumvention, Smith’s argument that a new solution is in order is well supported.

DeSimone, “Sony’s Nightmare before Christmas: The 2014 North Korean Cyber Attack on Sony and Lessons for US Government Actions in Cyberspace”; “PARK JIN HYOK,” FBI Most Wanted, accessed January 27, 2022, https://www.fbi.gov/wanted/cyber/park-jin-hyok.

III. A DIGITAL GENEVA CONVENTION When presenting his pitch for the Digital Geneva Convention in 2017, Smith outlined six key components: 1. 2. 3. 4.

No targeting of tech companies, private sector, or critical infrastructure. Assist private sector efforts to detect, contain, respond to, and recover from events Report vulnerabilities to vendors rather than to stockpile, sell, or exploit them Exercise restraint in developing cyber weapons and ensure that any developed are limited, precise, and not reusable. 5. Commit to nonproliferation activities to cyberweapons 6. Limit offensive operation to avoid a mass event26

While the tenets of Smith’s proposals are intelligently derived solutions to some of the most pressing issues derived from cyber conflict, the basis of his proposal does not account for the complexity of the domain that has left the international community without an international agreement to this point. In particular, the borderless nature of the internet, the extreme difficulties and ambiguities resulting from attempts to attribute attacks, and the extreme military advantage of subverting existing rules of warfare in a relatively lawless space all make for issues that will not go away by a few more restrictions on engagement. Much larger of an issue, however, is the altogether democratization of warfare out of the hands of military actors and into the capabilities of private citizens in the comfort of their own homes. Creating sweeping generalizations of international law to expand regulation on acts of war means that those requirements will have to be extended to civilians, which while already part of the existing Protocol I, have

Smith, “The Need for a Digital Geneva Convention”.

not yet been experienced at such a scale. Just as the tenets of the Geneva Convention are unsuitable for this new domain of warfare, so too is the creation of all-encompassing international Conventions to define universal standards. IV. ANOTHER WAY FORWARD Faced with the uncomfortable dilemma of insufficient existing law and the structural barriers to updating that law in the same format, there is much debate regarding the best way forward. On the one hand, many proponents advocate that now more than ever warrants the creation of more broad-sweeping protocols, documents, or other agreements that govern the use of cyberspace in warfighting. After all, with a domain so fundamentally distinct from the majority of human history, it makes sense that a whole new perspective on war itself may be warranted to fully reconcile the role of cyberspace within. Further, with the ability to be heavily anonymized during the execution of cyber operations, the lines between classifications of actors are increasingly blurred as civilians and criminals regularly work alongside uniformed actors in pursuit of the same missions. On the other hand, many proponents of the existing international precedent argue that additional agreements are unnecessary—after all, the convention and its ensuing protocols were designed to be heavily adaptable to the ever-evolving landscape of warfighting technology. They argue that with the existence of particular provisions that outline guardrails along the capability development process, there is no need for a fundamentally different agreement at this stage. The durable and flexible text

of the current Convention and Protocol I were designed to safeguard against such a mindset. That being said, the aforementioned examples show that there is still undeniable evidence of either in-adherence to these documents or their overall failure. Instead, the international community would be better served by an approach that has already slowly begun: the creation of strong yet flexible multilateral agreements that substantively address issues without the overbearing role of onesize-fits-all international law. In 2015, the Group of 20 established standards against the digital theft of intellectual property and the encroachment on personal privacy, using a framework implemented by a US-China agreement made only a few months earlier27. Similar agreements have followed, and usually address specific topics or needs and are limited in scope to the direct objectives of each party. While these multilateral agreements are less enforceable than standards of international law, this gives parties the leeway to profess principles they are actually mutually agreeable, rather than defining regulations with sharper consequences that would be drafted much more conservatively to avoid any of the signatories’ self-sabotage. Through the use of flexible and topic-specific

Daniel Paltiel, “G20 Communiqué Agrees on Language to Not Conduct Cyber Economic Espionage,” Center for Strategic and International Studies, November 16, 2015, https://www.csis.org/blogs/strategic-technologies-blog/g20-communiqu%C3%A9-agrees-languagenot-conduct-cyber-economic.

agreements, countries will be able to hold themselves accountable to ethical standards of warfare in ways that are applicable and feasible for them. V. CONCLUSION Cyber warfare is incredibly new, rapidly advancing, and dismally understood. Within its role as a corollary to kinetic warfare, it is well-defined as a tool with bounds that lie within existing international law. But in the face of new advancements in both technology and tactics, its use has become increasingly singular and in ways that start to blur the lines of reasonable use of force. It is essential that these edge cases be controlled to ensure that unaffiliated civilians remain protected and that the scope of war is dependent on specific objectives. These regulations must come from international agreements that can set guidelines for specific rules of engagement that are actually applicable to the specific signatories, as well as engage non-military stakeholders in the corporate and private spheres. Perhaps in the future, a newer, even more nebulous style of warfare will be developed, and once again international law will be obsolete. This modular approach to international agreements will then serve as a framework for expansion and revalidation of the agreements set forth by original signatories. The tools of the profession of arms will continue to advance, and it is up to our leaders to define the standards by which they will be used justly. *The above article is the sole opinion of the author and does not necessarily reflect the views of the U.S. Department of Defense or any of its subsidiaries.

BIBLIOGRAPHY Blokhina, Krystyna, and Stephanie Jurkowski. “Geneva Conventions and Their Additional Protocols.” Legal Information Institute, June 10, 2019. https://www.law.cornell.edu/wex/geneva_conventions_and_their_additiona l_protocols. Chetail, Vincent. “The Contribution of the International Court of Justice to International Humanitarian Law” 85, no. 850 (2003): 35. DeSimone, Antonio. “Sony’s Nightmare before Christmas: The 2014 North Korean Cyber Attack on Sony and Lessons for US Government Actions in Cyberspace,” n.d., 44. D’Souza, Vijay. “SolarWinds Cyberattack Demands Significant Federal and Private-Sector Response (Infographic).” Government Accountability Office. WatchBlog, April 22, 2021. https://www.gao.gov/blog/solarwindscyberattack-demands-significant-federal-and-private-sector-responseinfographic. Holland, Steve, and Doina Chiacu. “Obama Says Sony Hack Not an Act of War.” Reuters, December 21, 2014. https://www.reuters.com/article/us-sonycybersecurity-usa/obama-says-sony-hack-not-an-act-of-waridUSKBN0JX1MH20141222. Kelly, Stephanie, and Jessica Resnick-Ault. “One Password Allowed Hackers to Disrupt Colonial Pipeline, CEO Tells Senators.” Reuters, June 8, 2021. https://www.reuters.com/business/colonial-pipeline-ceo-tells-senate-cyberdefenses-were-compromised-ahead-hack-2021-06-08/.

Mozur, Paul, and Chris Buckley. “Spies for Hire: China’s New Breed of Hackers Blends Espionage and Entrepreneurship.” The New York Times. August 26, 2021. https://www.nytimes.com/2021/08/26/technology/chinahackers.html. “NEW WEAPONS,” June 8, 1977. https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&doc umentId=FEB84E9C01DDC926C12563CD0051DAF7. Paltiel, Daniel. “G20 Communiqué Agrees on Language to Not Conduct Cyber Economic Espionage.” Center for Strategic and International Studies, November 16, 2015. https://www.csis.org/blogs/strategic-technologiesblog/g20-communiqu%C3%A9-agrees-language-not-conduct-cybereconomic. FBI Most Wanted. “PARK JIN HYOK.” Accessed January 27, 2022. https://www.fbi.gov/wanted/cyber/park-jin-hyok. International Committee of the Red Cross. “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.” Accessed January 27, 2022. https://ihl-databases.icrc.org/ihl/INTRO/470. “Rome Statute of the International Criminal Court.” International Criminal Court, November 29, 2010. Smith, Brad. “The Need for a Digital Geneva Convention.” Microsoft On the

Issues, February 14, 2017. https://blogs.microsoft.com/on-theissues/2017/02/14/need-digital-genevaconvention/#sm.0001hkfw5aob5evwum620jqwsabzv. International Committee of the Red Cross. “The Geneva Conventions of 1949 and Their Additional Protocols,” January 1, 2014. https://www.icrc.org/en/document/geneva-conventions-1949-additionalprotocols. Theohary, Catherine. “Defense Primer: Cyberspace Operations.” Congressional Research Service, December 1, 2021. https://crsreports.congress.gov/product/pdf/IF/IF10537. International Committee of the Red Cross. “Treaties and Documents By State.” Accessed January 27, 2022. https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountry.xsp. The United States Department of Justice. “U.S. Charges Russian FSB Officers and Their Criminal Conspirators for Hacking Yahoo and Millions of Email Accounts,” March 15, 2017. https://www.justice.gov/opa/pr/us-chargesrussian-fsb-officers-and-their-criminal-conspirators-hacking-yahoo-andmillions. Wallace, David. “Scenario 22: Cyber Methods of Warfare.” Cyber Law Toolkit, September 19, 2021. https://cyberlaw.ccdcoe.org/wiki/Scenario_22:_Cyber_methods_of_warfare #cite_note-35.

A SAVING GRACE: ESCAPING THE DEATH PENALTY USING

TANDON V. NEWSOM WRITTEN BY: E. MAGISTRO EDITED BY: K. BHAKTA, R. CAO, D. SAMAKE & S. GHOSH

A SAVING GRACE: ESCAPING THE DEATH PENALTY USING TANDON V. NEWSOM Ethan Magistro I. INTRODUCTION The past decade has seen multiple victories for proponents of an expansive Free Exercise Clause of the First Amendment. Masterpiece Cakeshop v. Colorado Civil Rights Commission1 and Fulton v. City of Philadelphia 2 are two of the most commented on and most recent cases the United States Supreme Court has used to expand religious rights. Yet it was the COVID-19 pandemic that helped expansive religious freedom advocates the most; the pandemic wrought a multitude of cases where the Court sided with religious liberty over government safety protocols. Political motives potentially shadowed these cases, but, bracketing that concern, the cases indicate that the Court is moving away from its current established precedent under Employment Division of Oregon v. Smith3 into unknown waters. One of the less-discussed cases to come out of the spat of COVID-19 religious-liberty cases is Tandon v. Newsom.4 The Court’s ruling in the decision is relatively new, and much of the attention the shadow docket case deserved was usurped by Fulton v. City of Philadelphia.5 The issue in Tandon was decided

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. __ (2018). Fulton v. City of Philadelphia, 593 U.S. __ (2021). 3 Employment Div. of Oregon v. Smith, 494 U.S. 872 (1990). 4 Tandon v. Newsom, 593 U. S. ____ (2021). 5 Fulton v. Philadelphia, 593 U.S. ___ (2021). 2

through a short, per curiam opinion in April of 2021. The case dealt with COVID19 restrictions implemented by California Governor Gavin Newsom which curtailed at-home religious gatherings, although the restrictions allowed various stores and services to remain open. 6 The Court ruled that Governor Newsom’s restrictions unfairly burdened free exercise, and reversed the Ninth Circuit’s judgment, granting injunctive relief to the petitioner. The shocking thing about Tandon was how much it opened the door for religious liberty conduct exemptions. Tandon remained within the Smith paradigm, which sets a high bar for religious conduct exemptions by allowing them only if a law is not neutral and generally applicable (with some exceptions to that rule).7 Nonetheless, Tandon pushed the limits of this framework. The majority in Tandon articulated that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.” 8 In more straightforward terms, the ruling seems to indicate that any law fails the Smith test when it has an exemption for a secular activity but not a religious activity.9 Considering how many laws have secular exceptions (a variety of state

Tando,n 593. Smith, 494. 8 Tandon, 593. 9 Michael A. Helfand, “Religious Liberty and Religious Discrimination: Where Is the Supreme Court Headed?,” University of Illinois Law Review Online 98, Pepperdine University Legal Studies Research Paper No. 2021/6 (2021): 103, accessed November 23, 2021, https://ssrn.com/abstract=3849610. 7

laws, for example, governing taxes to mask-wearing, have built-in exceptions), it is pure speculation how far the Court’s reasoning in Tandon can be taken. My main aim here is to investigate how far the reasoning can go. In this article, I take the Tandon ruling to its limit by presenting a path one could use to argue for a religious exemption to the death penalty. While I acknowledge that any exception to the death penalty would be difficult to justify under strict scrutiny, I want to make clear that the overarching point of this article is to show the Court’s ruling in Tandon gives far too much leeway to religious liberty claims, ingraining into Court precedent that any law can be considered for an exception, clearing the way for further politicization of the Court. I begin by sketching out a brief history of the Court’s free exercise jurisprudence from Smith until Tandon. I then argue that the Court’s logic in Tandon runs into many difficulties, both practical and logical. I then present a test case of a death penalty under Utah law to demonstrate how the Court’s Tandon ruling quickly leads to absurd consequences. In the final part, I speculate about the many other crucial laws the Court’s ruling in Tandon potentially undermines. II. FREE EXERCISE FROM SMITH TO TANDON To understand how Tandon changes the religious freedom legal landscape, we ought to go back to the case which cemented the past 30 years of Supreme Court free exercise jurisprudence. In the 1990 case Employment Division v. Smith, the Court harshly limited its previous free exercise precedent of the “compelling

interest” test, set in 1963 by Sherbert v. Verner.10 In Smith, the Court instituted the philosophy that exemptions can only be granted to laws that fail to be neutrally and generally applicable. Should a law fail that test, it becomes subject to strict scrutiny, meaning that the government must show a “compelling interest” for why the law must burden religion and that the law is “narrowly tailored” so as to minimize its burden upon religion (the Sherbert test).11 In the 6-3 opinion,12 Justice Antoin Scalia wrote that “an individual's religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”13 In other words, Scalia articulated that if laws were neutral and generally applicable, they could freely regulate religious conduct even if they significantly burdened it. In one of the sharper passages of the opinion, Scalia offered a rationale for his narrow reading of the first amendment. “The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service . . . to the payment of taxes . . . to health and safety regulation such as manslaughter and child neglect laws . . . compulsory vaccination laws . . . drug laws . . . and traffic laws . . . to social welfare legislation such as minimum wage laws . . . child labor laws . . . animal cruelty laws . . . environmental protection laws . . . and laws providing for equality of opportunity for the races. . . . The First Amendment’s protection of religious liberty does not require this.”14

Sherbert v. Verner, 374 U.S. 398 (1963). Smith 494 at 888. 12 Justice Sandra Day O’Connor concurred but wanted to preserve the Sherbert test. 13 Smith 494 at 895. 14 Smith 494 at 888-889. 11

To Scalia, a law was neutral and generally applicable so long as it did not intentionally burden religion. Anything more than that, he worried, would lead to a world where religious exemptions could be demanded, and granted, for nearly any law. Smith was even more specific when it came to criminal laws. Scalia wrote that criminal laws are “generally applicable” when they apply across the board regardless of the religious motivation of the prohibited conduct, and “are not specifically directed at . . . religious practices.” 15 Smith restricted the protection of the Free Exercise Clause vigorously, attempting to limit both the Court’s involvement in what Scalia saw as legislative business as well as prevent a regime of religious exemptions from running wild. The Smith precedent was put clearly to practice in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, a case where the Court unanimously found a Floridian city law to be neither neutral nor generally applicable, thereby triggering strict scrutiny.16 In Lukumi, Justice Anthony Kennedy made apparent that Court cases had cemented the Court’s understanding that “the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”17 Lukumi also helped clarify what counted as neutral and generally applicable. The standard for neutrality and general applicability

Smith 494 at 878. Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). 17 Lukumi 508 at 531. 16

under Lukumi and Smith is that a law must apply equally to all and not provide “a mechanism for individualized exemptions.”18 Yet Smith was far from perfect. To prevent the overruling of Wisconsin v. Yoder, Pierce v. Society of Sisters, and Sherbert, Justice Scalia asserted not only the existing mechanism (which he used to justify Sherbert, post hoc), but also the notion of “hybrid” cases (which he used to save Yoder and Pierce). Hybrid cases, according to Scalia, occur when another constitutional right is violated along with a First Amendment free exercise violation. 19 These cases circumvent Smith’s neutral and general applicability standard and instead demand strict scrutiny. I mention the exemption system and hybrid cases here only to show that Scalia incorporated them into Smith to save Yoder and Pierce, and that both of the standards come with seemingly intractable logical difficulties.20 Criticism of Smith came swiftly from both rights-activist groups, such as the ACLU, as well as the religious right, with some constitutional law scholars even pushing the Court to rehear the case. 21 Soon after Smith, Congress nearly unanimously passed the “Religious Freedom Restoration Act of 1993” (RFRA)

Smith 494 at 884. Smith 494 at 882. 20 Richard F. Duncan, “Free Exercise is Dead, Long Live Free Exercise: Smith, Lukumi and the General Applicability Requirement,” University of Pennsylvania Journal of Constitutional Law 3, no. 3 (May 1, 2001): 850., accessed November 25, 2021, https://scholarship.law.upenn.edu/jcl/vol3/iss3/3. 21 Michael W. McConnell, “Free Exercise Revisionism and the Smith Decision,” The University of Chicago Law Review 57, no. 4 (1990): 1109–53, accessed October 7, 2021, https://doi.org/10.2307/1599887. 19

which essentially sought to re-institute the Sherbert compelling interest test. 22 Yet RFRA was invalidated six years later in City of Boerne v. Flores, where the Court claimed the RFRA abused federal power if it was applied to state laws (although the ruling upheld RFRA federally). 23 Many states have since adopted their own RFRAs, and these serve as the current law. In recent years, however, the Court has been whittling away at the Smith religious-discrimination paradigm. In Fulton, the Court refined what it means for a law to fail the general applicability test. Fulton declared that a law is not generally applicable if it “prohibits religious conduct while permitting secular conduct that undermines the government's asserted interests in a similar way.”24 The Fulton Court also breathed life into the idea that, if the government has “a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason,” the standard Justice Scalia implemented mostly just to save Sherbert.25 Fulton also revealed that some members of the current Court are ready to overrule Smith.26 Before the Fulton decision, the Court had already added another criterion for determining neutrality in Masterpiece. In Masterpiece, the Court decided that, if there is clear and impermissible hostility

Eugene Volokh, “1A. What Is the Religious Freedom Restoration Act?,” The Volokh Conspiracy (blog), December 2, 2013, accessed October 26, 2021, https://volokh.com/2013/12/02/1a-religiousfreedom-restoration-act/. 23 City of Boerne v. Flores, 521 U.S. 507 (1997). 24 Fulton, 593. 25 Fulton, 593. 26 Fulton, 593, Thomas J, Alito J, and Gorsuch J, dissenting.

towards religion in the making of a law, the neutrality of that law is questionable.27 Despite these changes, Fulton and Masterpiece opted to stay in the shallow end and were supremely narrow rulings that, while pushing the edges of the Smith framework, did not overturn it. Tandon, which preceded the decision in Fulton, is similar to Fulton in many respects. Oddly enough, however, Tandon pushes the envelope of Smith far more than Fulton. Tandon was one of many challenges to California’s COVID-19 restrictions. Originally, the Court sided with the government in these cases. However, upon Justice Ruth Bader Ginsburg’s death and replacement with Justice Amy Coney Barrett, the Court began to side with free exercise petitioners. 28 Tandon found its way up to the Court in the form of an emergency application for injunctive relief.29 In April of 2021, the Court reversed the Ninth Circuit’s ruling in Tandon and granted injunctive relief to the petitioner. What sets Tandon apart from Fulton most visibly is that it fully adopts a broad, highly expansive view of religious freedom rather than focusing narrowly on the facts of the case. The majority in Tandon institutionalized what is known as the “most-favored-nation theory (MFN)” of free exercise exemptions, a theory articulated by Professor Douglass Laycock. 30 MFN is a legal theory that gives

Masterpiece, 584. Helfand, Religious Liberty and Religious Discrimination, 101. 29 Jim Oleske, “Tandon Steals Fulton’s Thunder: The Most Important Free Exercise Decision since 1990,” SCOTUSblog (blog), April 15, 2021, https://www.scotusblog.com/2021/04/tandon-stealsfultons-thunder-the-most-important-free-exercise-decision-since-1990/. 30 Douglas Laycock, The Remnants of Free Exercise, 1990 SUP. CT. REV. 1, 10 (1990). 49. 28

broad leeway to religious liberty. Professors David Amar and Alan Brownstein describe it lucidly:

What MFN status for religious activity means is that if a state grants an exemption for the exercise of any other right such that the law at issue is deemed underinclusive, the state would be constitutionally required to grant an exemption for comparable free exercise activities. 31 In other words, MFN dictates that, if a state grants any exemption to a law at issue, it must provide an equal exemption for a comparable religious activity. Although it is not entirely clear that Tandon institutionalized MFN into the Court’s jurisprudence, MFN reasoning runs through the opinion. One reading of Tandon portrays the Court as shrewdly assessing the risk COVID-19 posed, finding that businesses at 50% capacity were no different in risk than houses of worship, warranting the religious exemption. 32 Yet while this three-dimensional reading may have ruled in earlier COVID-19 cases, it plays less of a role, if any, in Tandon. The language of Tandon is too obviously bound up with the idea that secular exemptions demand religious exemptions. The Court made this clear when writing, “It is unsurprising that such litigants are entitled to relief. California’s Blueprint System contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny.” 33 The focus on comparable secular 31

Vikram David Amar and Alan E. Brownstein, “‘Most Favored-Nation’ (‘MFN’) Style Reasoning in Free Exercise Viewed Through the Lens of Constitutional Equality:,” Verdict (blog), May 21, 2021, accessed October 28, 2021, https://verdict.justia.com/2021/05/21/most-favored-nation-mfnstyle-reasoning-in-free-exercise-viewed-through-the-lens-of-constitutional-equality. 32 Helfand, Religious Liberty and Religious Discrimination, 102. 33 Tandon, 593.

exemptions, and, in turn, the presence of MFN -tyle reasoning, is what drives the Court’s ruling in Tandon. The majority opinion in Tandon is likely the best indicator of where the Court stands regarding free exercise jurisprudence, considering that Fulton was decided on narrowly on facts of the case, potentially weakening its precedential value. While the Smith religious discrimination framework still stands, Tandon seems to have altered and weakened it, dramatically. I will explain my nervousness about this in the following section. III. THE DANGERS OF MOST FAVOURED NATION REASONING Adopting MFN reasoning into Court jurisprudence creates a myriad of problems. The first problem is that an MFN theory within the boundaries of Smith, which Tandon creates, swallows the Smith rule whole. Smith arguably had two aims: restore power to the legislature and limit the ability of free exercise claimants to be granted conduct exemptions. MFN does the exact opposite of those aims; it increases the risk of free exercise-anarchy and encourages judicial overreach. Amar and Brownstein articulate this problem well: The primary rationale the Smith majority offered to support its holding was that alternative approaches to free exercise were, as a practical and doctrinal matter, untenable. If courts applied strict scrutiny with full rigor to all laws that substantially burdened religious exercise and conferred accommodations whenever judges honestly concluded this rigorous test was not satisfied, society would devolve into anarchy as religious individuals could avoid complying with any law that allegedly interfered with their beliefs or practices. And if strict scrutiny was applied more leniently, judges would have to engage in a subjective, indeterminate balancing of interests; a task for which the judiciary is ill suited (and which lies outside

its proper institutional role) and which, accordingly, is better assigned to the political branches of government. 34 Smith tried to limit the Court’s involvement in exemption granting by leaving it up to the states to decide whether their laws warranted exemptions. This would keep the Court from having to make subjective judgements while also preventing the creation of a de facto constitutional right to a religious conduct exemption from any law. Yet Tandon brings back these ills. If Tandon is used broadly, then nearly every law, since nearly every law has exemptions, triggers strict scrutiny. This is precisely what Scalia feared in Smith when he wrote that any society who committed such a system would be “courting anarchy.”35 If used narrowly, which seems logically impossible considering what the theory demands, Tandon abandons any veneer of judicial restraint and makes the Court into an ill-equipped policymaking body. Scalia also foresaw the problem of overusing strict scrutiny, writing in Smith that “if ‘compelling interest’ really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test.” 36 It would become wholly the Justices’ decision if law passes the strict scrutiny test, and that subjectivity does not square with the Court’s ideal role.

Amar and Brownstein. Smith 594 at 888. 36 Smith 594 at 888. 35

It is important to note again that Tandon does not expressly overrule Smith or return to the compelling interest test. Tandon is similar to Fulton in the sense that it protects free exercise while remaining in the Smith framework, which intended to clamp down on free exercise claims. 37 Yet while this is true on a semantic level, refining the neutral and general applicability test of Smith to the point where the test is nullified is illogical. If the neutrality and general applicability are swallowed up by another part of Smith and never used, the Smith precedent is left with no teeth. Tandon undermines Smith in this way. Tandon does not restore the rickety framework of Sherbert, but takes it a step further.38 Tandon's use of MFN reasoning gives more weight to exemptions than either Sherbert or the RFRA, declaring that any secular exemption to any law warrants a religious conduct exemption. As Scalia might put it, Tandon creates “a private right to ignore generally applicable laws… [which] is a constitutional anomaly.”39 Another problem with Tandon is that it relies deeply on the mechanism for individualized exemptions standard in Smith. Although it appears in Smith, it is unclear if that standard was ever to do more than save Sherbert. After all, if the standard was taken seriously, then Smith itself should have been decided on exemption grounds in favor of the petitioners, since the Oregon law did have a

Helfand, Religious Liberty and Religious Discrimination. Amar and Brownstein. 39 Smith at 886. 38

system for exemptions. On logical grounds, the standard falters, too. Justice David Souter offers a critique like this in his concurrence in Lukumi: Smith sought to confine the remaining free-exercise exemption victories, which involved unemployment compensation systems…as "stand[ing] for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason."... But prior to Smith the Court had already refused to accept that explanation of the unemployment compensation cases… 40 Justice Souter is clear that Smith’s individualized exemption standard, which existed to preserve cases like Sherbert from being expressly overruled, also ignores judicial stare decisis. Before Smith, the Court found the individualized exemption argument weak. The MFN theory, however, is built on this flawed “a mechanism for individualized exemptions.” The Court has now embraced that reasoning in its strongest form. Nonetheless, there are tough questions left unanswered. Which secular exceptions are comparable to religious ones? If houses of worship are the same as grocery stores, for example, what is the standard for “comparable”? Is it that the existence of any exception is enough to trigger strict scrutiny? That is what Tandon can be taken to mean. This kind of mentality, as Amar and Brownstein put it, “would seem to give courts tremendous power and leeway to essentially rewrite legislative schemes, something conservative jurists have long been wary of when it comes to claims of constitutional liberty infringements.”41 With such hard 40 41

Lukumi 508 at 567, Souter J concurring. Amar and Brownstein. The Court has moved far from its heydays of “judicial restraint.”

questions and such an expansive theory in the law, one should be nervous about how the Court will come to legislate from the bench. To demonstrate this even further, we ought to put to the test just how far Tandon would let the Court rewrite legislative schemes. To do so, I employ a test case of an attempt to grant a religious exemption to the death penalty. I use the death penalty because it serves as a standard enshrined deeply in our laws, and one which many believe immensely hard to escape. If I can show that a religious exemption to the death penalty, which I believe I do successfully, then, a fortiori, weaker cases, such as civil rights laws and abortion legislative schemes could easily be rewritten by the Court. IV. FREE EXERCISE FROM SMITH TO TANDON A. Exemptions to the Death Penalty For our test case, I will be using the Utah death penalty law. At the time of writing, Utah’s death penalty law has an explicit section preventing the use of the death penalty on all people younger than 18 years old.42 The law looks as follows: (a) (i) (ii) (iii)

If the person described in Subsection (1) was 18 years of age or older at the time the offense was committed, the sentence shall be: death; an indeterminate prison term of not less than 25 years and that may be for life; or on or after April 27, 1992, life in prison without parole.

Some states, such as Texas, have laws expressly forbidding the use of the death penalty for people under 18 years old. Although that would probably cross the threshold of being an “exemption,” for the sake of ease I am using a state law with an exemption clearly built into it. Utah may soon forbid the death penalty, but, at the time of writing, it is still in effect.

(b) Subsections (2)(a)(i) and (2)(a)(iii) do not apply if the person was younger than 18 years of age at the time the offense was committed and was sentenced on or after May 10, 2016. 43 I use this exemption rather than another secular penal exemption in Utah law since we can point to a potential rationale behind it. Naturally, Utah’s penal code does not include the reasons why a person under 18 years old is ineligible for the death penalty. Yet it is fair to assume that this law was implemented for similar reasons as to why the Court found capital punishment unconstitutional in Roper v. Simmons.44 Under Roper, people under 18 years of age are ineligible for the death penalty because they have diminished culpability. In other words, people younger than 18 had yet to develop fully, and therefore their standard of right and wrong needed time to develop. We will be assuming this rationale for the Utah exemption. With the legal basis laid down, the first thing to investigate is whether Tandon fairly applies to Utah’s criminal code. Penal codes serve as the state’s criminal code and laws, and it is obvious that these laws are just as eligible for consideration as the COVID-19 regulations in Tandon. Smith was a case about an Oregon criminal law regulating the use of peyote. Roper v. Simmons was also about a criminal law, specifically Missouri’s death penalty case. Atkins v. Virginia is perhaps the best example to compare this to; in that case Atkins, upon receiving the death penalty contended that he could not be sentenced to death because of his

43 44

Utah Crim. Code § 76-3-2-206 (2016). Emphasis added. Roper v. Simmons 543 U.S. 551 (2005).

mental deficiencies.45 The Court granted his contention, and an exemption to death penalty laws was created. It is clear, then, that an argument for ineligibility via religion can be made formally under the law. Instead of arguing for an exemption to the death penalty under the Eighth or Fourteenth Amendment, our test petitioner would be arguing for an exemption under the First Amendment free exercise clause. The petitioner would claim that the Utah law governing the death penalty fails the neutrality and general applicability test as understood by Tandon because the general penal code has a myriad secular exception, and the law enforcing the death penalty has specific and clear exemptions mandated by the Supreme Court. We have just shown why this argument would be legally possible in court. We must next ask if this would convince the courts. B. Comparability under Tandon On paper, this case facially looks like a possible case triggering strict scrutiny under Tandon. The first big hurdle this test question faces, however, is if a religious exception to the death penalty would be “comparable” to the age exception. Here a flaw with Tandon, mentioned above, is apparent: what counts as comparable? Tandon offers something of a standard for comparability: Whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies

Atkins v. Virginia, 536 U.S. 304 (2002).

the regulation at issue... Comparability is concerned with the risks various activities pose, not the reasons why people gather. 46 The latter clause is specific to the COVID-19 regulation at issue. The important clause is the idea that “comparability” comes from whether “the asserted government interest justifies the regulation.” In other words, comparability seems to rely on the authenticity of the government's interest. So, for example, to judge whether a secular exemption to COVID-19 regulations would be comparable to a religious one, the Court would look at a State’s asserted interest (keeping down the spread of COVID-19), and adjudicate whether a religious exemption would have the same effects in limiting the effects of COVID-19 as a secular one. The Court would be comparing the risks of each activity in the case of COVID-19 to decide if they were similar. However, as Justice Elena Kagan points out in her dissent to Tandon, this standard is a rather subjective one. The majority of the Court in Tandon treated stores like sectarian at-home gatherings even though, as Justice Kagan notes, there was also a blanket restriction on “at-home secular gatherings, the obvious comparator here.”47 So, if the standard for comparability is highly dependent on the judges, and strict scrutiny under the Free Exercise Clause is triggered whenever the government treats “any comparable secular activity more favorably than religious exercise,” it becomes clear that, as Helfand puts it, Tandon “provides a basis for

46 47

Tandon, 593. Tandon, 593.

deeming laws not neutral in cases where the secular and religious conduct in question were not quite comparable.”48 In more straightforward terms: the Court’s standard for compatibility is an amorphous one. This gives the Court immense subjective leeway in deciding when laws are neutral or when the presence of secular exemptions is “comparable” to possible religious ones. With this “standard” made clear, we ought to return to our test case. Is there any comparable religious exception to Utah’s age exception? As a reminder, we are using Roper as our guide, which claimed that children lack culpability for their crimes: Once juveniles’ diminished culpability is recognized, it is evident that neither of the two penological justifications for the death penalty– retribution and deterrence of capital crimes by prospective offenders…– provides adequate justification for imposing that penalty on juveniles.49 Considering this, a comparable religious exemption might be a hard sell. One attempted argument could be that a religious person is “not fully developed” in their religion to be culpable. This argument would claim that a person has not fully understood what their religion demands of them morally, or perhaps just recently converted and believes that, until they make amends and see the “light,” they cannot be culpable for their actions. An argument similar to this could be made under an IQ exception. Our religious practitioner could argue that the edicts of their

48 49

Helfand, Religious Liberty and Discrimination, 103. Roper 543 at 553.

religion have yet to fully guide them on the true path, and that they have yet to develop their “religious IQ.”50 These arguments are tenuous at best. But does that even matter? After all, the Court in Tandon said comparability “is concerned with the risks various activities pose, not the reasons why people gather.” 51 What risk would it pose to let our religious petitioner avoid the death penalty and instead get a lifelong sentence? They would still be punished, just not with death. The presence exemption may weaken a claim to deterrence by the state, since if everyone knew, they could claim to have newly seen the light they could avoid death. Yet the government already has exemptions that weaken the deterrence of the death penalty for people of a limited IQ and for people under 18. Would adding another exemption further the government's interest in deterring crimes? As Professor Laycock notes, under MFN “Even one exception for another activity that undercuts the government’s asserted interest can indicate the government does not regard the interest as compelling.” 52 It would be challenging to deny that the government has already accepted some amount of risk by allowing for age and IQ exemptions. It could be even more challenging to argue that a religious exemption poses any new risk, and that the exemption is comparable.

Thanks to Susan Baek for this phrasing. Tandon, 593. 52 Douglas Laycock and Thomas C. Berg, “Protecting Free Exercise Under Smith and After Smith”, Cato Supreme Court Review 2020-21 Virginia Public Law and Legal Theory Research Paper No. 2021-34, U of St. Thomas (Minnesota) Legal Studies Research Paper No. 21-11 (July 25, 2021, forthcoming): 17, accessed December 9, 2021, https://ssrn.com/abstract=3893231. 51

The demand for analogous risk may only apply in the COVID-19 cases, however, so comparability would have to be tested another way, perhaps by looking at other arguments presented above. Yet on both standards it is not inconceivable that a free exercise death penalty exemption could be considered comparable to a secular one. It would ultimately be up to the given judges. Arguendo, we will assume we satisfy the comparability argument because of how subjective the standard is. C. Strict Scrutiny under Tandon Surprisingly (or perhaps unsurprisingly considering the thrust of this article so far), we have made it all the way to strict scrutiny. Strict scrutiny is the highest standard of review for any law. It demands that the law must satisfy a compelling government interest while also being narrowly tailored to meet that interest. Tandon’s third principle clarifies the role of strict scrutiny in free exercise cases: The government has the burden to establish that the challenged law satisfies strict scrutiny. To do so in this context, it must do more than assert that certain risk factors “are always present in worship, or always absent from the other secular activities” the government may allow...narrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID. Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous…even when the same precautions are applied. Otherwise, precautions that suffice for other activities suffice for religious exercise. 53

Tandon, 593.

Noticeably, the Court narrows this refinement of strict scrutiny to “this context” referring to the State’s COVID-19 restrictions. Its specific use of risk analysis, then, may not apply generally. Nonetheless, this view of strict scrutiny is similar to the notion of “comparable” discussed above. After all, the comparable standard depends on the government’s asserted interest. Here, again, the argument that the government has a compelling interest in deterrence via the death penalty would be challenged by the existence of other secular exemptions. If the secular exemptions to the death penalty are not “more dangerous” than religious ones, then the government’s claim to a compelling is rickety. One compelling interest the government could claim is that it refuses to grant the secular exemption to show that religion is not enough to escape criminal justice. This argument, though, is weak since it runs counter to the letter of the law and high strict scrutiny standard in Tandon. The death penalty law may fare better under the narrow tailoring standard. It is challenging to imagine a death penalty law more narrowly tailored than the generally applicable death penalty law in question. Nonetheless, it is possible to argue that there are no adequate alternatives to the law for religious believers, and that the law needs to create those adequate alternatives in order to be truly narrowly tailored.54 By this logic, the exemption would be required via narrow tailoring.

Laycock, Protecting Free Exercise Under Smith and After Smith, 12.

Another alternative could be, as stated above, sentencing the person in question to life imprisonment rather than the death penalty. However, we should not let this law pass the strict scrutiny test so easily.55 A judge might point to Justice William Rehnquist's dissent in Thomas v. Review Board of the Indiana Employment Security Division, where he wrote that exemptions should “not have the effect of ‘inducing’ religious belief,” but should “instead merely ‘accommodate’ or implement an independent religious choice.” 56 An religious exemption to the death penalty could foreseeably see a wide range of those sentenced finding new faith to avoid capital punishment, a danger that would perfectly fit Justice Rheinquists’ category. We need not get too into the particulars of how the Court would approach the strict scrutiny question in this case, however. For our purposes, it only matters that we managed to fairly reach strict scrutiny with a law that seems prima facie neutral and generally applicable. As Amar and Brownstein point out, strict scrutiny applied in any capacity allows for either an religious exemption anarchy or an unpredictable, politicized, subjective balancing on the part of the Justices.57 Any application of strict scrutiny is unsatisfying here, yet the rule of Tandon inevitably gets us there.

Although it would make my life easier if we did. Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 727 (1981) (Rehnquist, J., dissenting on other grounds). 57 See note 34. 56

D. Summary On paper, I have shown that, according to Tandon, the legal reasoning exists for a religious exemption to the death penalty to be required. The only unpredictable factor is what a judge believes satisfies, or fails, strict scrutiny. That threshold is determined only by the judge themself. And while Sherbert may have been “‘strict in theory, feeble in fact,’” there is no indication that Tandon will be that way too.58 Like Sherbert, what is convincingly a “narrowly tailored” “compelling interest” depends entirely on a judge's subjective choice. The comparable standard is also dependent on that choice, but an even slightly generous reading of Tandon shows that a comparable exemption is more likely than not to be found. One may even find it a good thing that a religious exemption like the one we have sketched out could float if they oppose the death penalty. Yet this would be missing the point of my article. I am not presenting a case against the death penalty, but instead using the death penalty as a law that seems least likely to be granted a religious exemption. If the death penalty deserves a religious exemption, it is easy to see how many more contested laws would quickly be granted exemptions. I point here towards abortion laws, vaccination laws, civil

Christopher Eisgruber and Lawrence Sager, “The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct,” University of Chicago Law Review 61, no. 4 (September 1, 1994): p. 1307, accessed October 26, 2021, https://chicagounbound.uchicago.edu/uclrev/vol61/iss4/2.

discrimination laws, tax laws, and so on. These were all mentioned by Scalia as potential targets of religious exemptions. Indeed, those who support the death penalty may find this test case incorrigible and suffocating the rule of law. They might feel that the Court is undermining the death penalty undemocratically. Better, then, to leave the decision up to the legislature than to the Courts. Why should our solution to religious freedom problems, then, be to treat them as political issues for a non-elected body to resolve? Tandon continues a maligned tradition of giving the judiciary policy power that the legislative branch should retain. It fails a reductio ad absurdum test and clears the way for subjective, political, policy decisions to rule the Court. Even more so, it amplifies the belief that religious liberty is something that is intrinsically valuable, and not something that needs to be protected from persecution. It gives potentially dangerous religious fanatics a bona fide constitutional argument to opt out of much of the law. V. CONCLUSION This article is not a defense of Smith. The Court’s standard in that case, although helpful, comes attached with challenging problems. Rather, my aim in this article has been to show the dangerous extremes to which MFN reasoning, now in law, can take us. Tandon is a decision that shows the regrettable politicization of the Court. It came on the coattails of a conservative realignment, yet it allows for politics to drive decisions from the bench. And while Fulton may have quieted the

veracity of its rulings, it is unclear whether Tandon will become the Court’s defacto free exercise line, or if it is merely an artifact of the pandemic. 59 The purpose of this piece, regardless of that question, is to raise the alarm about the extent to which MFN reasoning may go, and to draw attention to the need for a free exercise regime that preserves the free exercise of religion while also deeply holding the truth that the United States government is one of laws and not theocratic dogmas of faith. .

Jim Oleske, “Fulton Quiets Tandon’s Thunder: A Free Exercise Puzzle,” SCOTUSblog (blog), June 18, 2021, https://www.scotusblog.com/2021/06/fulton-quiets-tandons-thunder-a-free-exercisepuzzle/.

BIBLIOGRAPHY Amar, Vikram David, and Alan E. Brownstein. “‘Most Favored-Nation’ (‘MFN’) Style Reasoning in Free Exercise Viewed Through the Lens of Constitutional Equality:” Verdict (blog), May 21, 2021. https://verdict.justia.com/2021/05/21/most-favored-nation-mfn-stylereasoning-in-free-exercise-viewed-through-the-lens-of-constitutionalequality. Duncan, Richard. “Free Exercise Is Dead, Long Live Free Exercise: Smith, Lukumi and the General Applicability Requirement.” University of Pennsylvania Journal of Constitutional Law 3, no. 3 (May 1, 2001): 850. Eisgruber, Christopher, and Lawrence Sager. “The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct.” University of Chicago Law Review 61, no. 4 (September 1, 1994). https://chicagounbound.uchicago.edu/uclrev/vol61/iss4/2. Laycock, Douglas. “The Remnants of Free Exercise.” The Supreme Court Review 1990 (1990): 1–68. Laycock, Douglas, and Thomas C. Berg. “Protecting Free Exercise Under Smith and After Smith.” SSRN Scholarly Paper. Rochester, NY: Social Science Research Network, July 25, 2021. https://papers.ssrn.com/abstract=3893231. McConnell, Michael W. “Free Exercise Revisionism and the Smith Decision.” The University of Chicago Law Review 57, no. 4 (1990): 1109–53. https://doi.org/10.2307/1599887. Oleseke, Jim. “Fulton Quiets Tandon’s Thunder: A Free Exercise Puzzle,” SCOTUSblog June 18, 2021. https://www.scotusblog.com/2021/06/fultonquiets-tandons-thunder-a-free-exercise-puzzle/. Oleke, Jim.. “Tandon Steals Fulton’s Thunder: The Most Important Free Exercise Decision since 1990,” SCOTUSblog April 15, 2021.

https://www.scotusblog.com/2021/04/tandon-steals-fultons-thunder-themost-important-free-exercise-decision-since-1990/. Volokh, Eugene. “1A. What Is the Religious Freedom Restoration Act?” The Volokh Conspiracy, December 2, 2013. https://volokh.com/2013/12/02/1areligious-freedom-restoration-act/