Minnesota Voters Alliance v. Mansky: Upholding Grounds for Free Speech

By DUSTIN HARTUV


     Before 2018, Minnesota Statute § 211B.II prevented individuals from wearing politically affiliated symbols/clothing at polling booths on election days.[i] The statute was relatively broad, and so officials would distribute information to polling booth administrators to define specific articles of clothing that failed to uphold the rules outlined in the statute. If members of the public were caught disregarding the statute, the individual would still be allowed to vote, but could face misdemeanor prosecution.

         The Minnesota Voters Alliance (MVA) is a non-partisan organization that seeks to encourage voting by all members of the population. To challenge the statute, executive director Andrew Cilek wore a t-shirt with a logo representing the Tea Party, and was barred from voting in 2010.[ii] The MVA, along with Minnesota Majority, Minnesota Northstar Tea Party Patriots, and Election Integrity Watch, sued the Minnesota Secretary of State for violating the First Amendment.

         The case was first taken to a district court, and the MVA’s case was denied. On appeal, the Eighth Circuit upheld the district court’s determination, though it was nearly persuaded by some of the arguments before agreeing with the district court. In addition to the arguments of free speech, the MVA claimed that since the Tea Party was not a political party, the apparel did not count under the law. The Eighth Circuit claimed that while that was true, a reasonable interpretation of the statute would include the Tea Party even while it was not officially a political party in Minnesota.[iii]

         The MVA then took the case to the Supreme Court, arguing that Minnesota was imposing a “speech-free zone” at polling locations. The notion of a “speech-free zone” has its history in the Vietnam protests in the 1960s, when universities began to designate specific zones where protests would be allowed.[iv] Even though there have been constant debates about these zones, there has yet to be a broad ruling by the Supreme Court specifically on these zones. The Supreme Court has, however, decided on issues related to the matter.

         For example, in cases such as Police Department of Chicago v. Mosley, the Supreme Court used language involving time, place, and manner restrictions.[v] As the name suggests, the court determined that restrictions of public speech depend on the time, place, and manner of the speech. Another doctrine of the Supreme Court used in manners of public speech is the public forum doctrine, which was adopted from 1939’s Hague v. Committee for Industrial Organization.[vi] The public forum doctrine limits the ability of governments to restrain speech in areas that have historically been places of public congregation for debate. Along these lines, “speech-free zones” could be determined to be unconstitutional if one can prove that universities are historic areas of public debate.

         In the Supreme Court’s announcement of Minnesota Voters Alliance v. Mansky on June 14, 2019, the Court reversed the decision of the Eight Circuit, stating that the statute violated the Free Speech Clause of the First Amendment.[vii] The opinion was written by Chief Justice John Roberts, and the Court argued that a polling place is not a public forum. However, based on the precedented time, place, and manner restrictions, while the statute was reasonable, it was too broad and did not properly define the term “political.”[viii] Therefore, although the decision was reversed, it set a precedent that polling places are not public forums, and that speech may be inhibited as long as the statute is not too broad and covers the time, place, and manner restrictions.


[i] Minnesota Voters Alliance v. Mansky, Oyez, https://www.oyez.org/cases/2017/16-1435 (last visited Nov 18, 2019).

[ii] Id.

[iii] Id.

[iv] David L. Hudson, Jr. and Andrew Gargano, Free-Speech Zones, Freedom Forum Institute (Nov. 8, 2017), https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/free-speech-on-public-college-campuses-overview/free-speech-zones/.

[v] Kevin Francis O’Neill, Time, Place and Manner Restrictions, The First Amendment Encyclopedia (last visited Nov. 18, 2019), https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions.

[vi] David L. Hudson, Jr., Public Forum Doctrine, The First Amendment Encyclopedia (2017), https://www.mtsu.edu/first-amendment/article/824/public-forum-doctrine.

[vii] Minnesota Voters Alliance v. Mansky, 585 U.S. 1 (2018).

[viii] Minnesota Voters Alliance v. Mansky, Oyez, https://www.oyez.org/cases/2017/16-1435 (last visited Nov 18, 2019).

Raising the Bar: Retaliation in the wake of University of Texas Southwestern Medical Center v. Nassar

whistlehurter (1)

Sharon Mo
Columnist

“[F]ear of retaliation is the leading reason why people stay silent about the discrimination they have encountered or observed.” – Justice Ginsburg in dissent[1]

Retaliation claims are now the bread and butter of employment discrimination actions. In 2014, retaliation claims brought under Title VII of the Civil Rights Act of 1964 accounted for 34.7% of all charges filed to the U.S. Equal Employment Opportunity Commission (EEOC).[2] Following a line of pro-employee decisions that afforded broad protections to plaintiffs,[3] the Supreme Court’s decision in University of Texas Southwest Medical Center v. Nassar [4] is a surprising development that has left employees scratching their heads and employers cheering. Plaintiffs are now required to prove that an employer’s adverse employment action would not have been taken “but for” an employee’s protected activity.[5] This move imports a strict tort law causation test into the market of employment discrimination, with problematic consequences. The following note aims to provide a brief summary of retaliation law, break down the Supreme Court’s decision and discuss its implications.

Title VII and The Law of Retaliation

Title VII defines an unlawful employment practice as discrimination against any individual because of their race, color, religion, sex, or national origin.[6] Within Title VII is an anti-retaliation provision that prohibits employers from engaging in adverse retaliatory action in response to an employee’s objection to a prohibited practice or participation in a Title VII investigation or proceeding.[7] To be awarded damages, the plaintiff bears the burden of proving the following elements: (1) the plaintiff engaged in or was engaging in a protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the plaintiff was subjected to the adverse employment action because of his or her participation in the protected activity.[8]

Shift from “Motivating Factor” to “But-For” Standard

Addressing the third element, the issue before the Supreme Court in, was the proper standard of causation for Title VII activity-based discrimination i.e. retaliation claims. A divided 5-4 bench determined in favour of the “but-for” threshold, over the lesser “motivating factor” standard applied to status-based discrimination claims.[9] The latter is less onerous on the employee for two reasons. First, while the “motivating factor” model would only require that retaliation be one motivating factor, amongst others, for an employer’s adverse action, the “but-for” test requires that it be the cause of the adverse action.[10] The second reason is that the “but-for” threshold rests the burden of persuasion entirely on the plaintiff, who often will not have the resources to investigate the employer’s deliberations.[11] In contrast, the “motivating factor” test places the initial burden on the plaintiff to prove that his or her protected activity was a motivating factor, before shifting the burden on the defendant to demonstrate that they would have taken the adverse action even in the absence of the protected activity.

The majority opinion, penned by Justice Kennedy, presented four arguments to justify the heightened standard.[12] The first was that retaliation is not identified in 42 U.S.C. §2000e-2(m) with other types of discrimination to which the “motivating factor” standard applies.[13] Secondly, the majority interpreted that “because” equated to “but-for” causation. In other words, if an action occurs “because of” another action, then that action is “the reason” for it.[14] The third argument aligned with policy concerns regarding the high volume of frivolous retaliation charges filed in the EEOC and the resultant resource inefficiencies, if the lesser standard was to be applied.[15] The majority’s final argument was that deference to generic EEOC guidelines favoring the “motivating-factor” test was not warranted.[16]

In a rather scathing opinion for the dissent, Justice Ginsburg favored the lesser standard. Specifically, she placed the meaning of “because” in the context of a multiple-motive decision, and countered that the omission of retaliation claims from 42 U.S.C. §2000e-2(m) did not automatically exclude employers from liability.[17] Justice Ginsburg denounced the majority’s divergence from both precedent and congressional intent to strengthen anti-discrimination laws in formulating Title VII.[18] In her closing remarks, she called out the majority for their unspoken motive and “zeal to reduce the number of retaliation claims filed against employers.”[19]

The Tortification of Retaliation

Perhaps the most significant layer to the Nassar decision is the majority’s importation of a tort law standard into the employment discrimination context. The tortification of employment discrimination law is not a new phenomenon,[20]with the transplant of vicarious liability to sexual harassment cases,[21] and the adoption of proximate cause to prove employer liability for subordinate bias.[22] Justice Kennedy is explicit in his treatment of Title VII retaliation claims as “textbook tort law”[23] and indeed, the Nassar opinion reads more like a tort decision than a case of statutory interpretation.[24]

However, imposing tort law’s strict “but-for” standard on retaliation claims is ill founded for two key reasons. The first reason is that in tort, the “but-for” test considers the cause and effect of physical forces to which reasonably common-sense and scientific theories of physical causation can be applied.[25] This is quite different to the mental investigation necessary in the context of employment discrimination to establish motive.[26] As Justice Ginsburg articulates, to apply the standard is to engage in a near-impossible “hypothetical inquiry about what would have happened if the employer’s thoughts and other circumstances had been different”.[27] The inquiry also fails to expose false reasons provided by the employer or uncover hidden motives.[28] The second reason is that the “but-for” standard asks the plaintiff to prove that his or her protected activity was the sole cause for the employer’s adverse action. Even in tort, the plaintiff faces similar problems pinpointing one “but-for” cause amongst a multitude of variables. It is therefore misguided to think that at any time within the dynamic setting of workplace relations, employers take adverse action based on a solely identifiable reason. Even Congress at the enactment of Title VII commented that a “sole cause” standard would render the Act “totally nugatory”.[29] Justice Ginsburg cites Senator Case, a key sponsor of Title VII who stated that “[i]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.”[30] For all Justice Kennedy’s push for the tortification of retaliation, the employment discrimination context is, by its very nature, incongruous with the “but-for” model.

What now and where from here?

All this leaves a plaintiff bringing a Title IV retaliation claim in a tricky spot. Nassar’s “but-for” threshold asks employees to retrospectively speculate about employers’ motivations at the time of their adverse action, without the resources to do so.[31] Worse, it precludes remedies to employees who cannot prove that their protected activity was the reason for the adverse action, and protects employers whose actions were only partially motivated by retaliation.[32] The high bar contradicts the public policy behind Title VII to allow employees to engage in protected activity without fear of retaliation, and to deter employers against retaliatory action.[33] It would seem that Justice Ginsburg’s dissent was right to be as charged as it was.

Since Nassar, the Supreme Court has only further qualified that “but-for” means more than “contributing” and “substantial”, and exists where the retaliatory action is the “straw that broke the camel’s back”.[34] Thus, the best way forward is to, as Justice Ginsburg suggests, call on Congress to intervene and codify the “motivating factor” test through an amended Civil Rights Restoration Act.[35] Unlike tort law, employment discrimination and Title VII are creatures of statute, and best amended by statute. To recognize the distinction between tort and employment discrimination is to recognize that the “but-for” standard is ultimately unworkable in the workplace.

Notes

[1] University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2534-35 (2013) (Ginsburg, J. dissenting).

[2] EEOC, Charge Statistics FY 1997 Through FY 2014, EEOC (2014), http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm

[3] See Burlington & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) and Thompson v. North American Stainless, LP 131 S. Ct. 863 (2011).

[4]  Nassar, 133 S. Ct. at 2517.

[5] Id. at 2533.

[6] 42 U.S.C. § 2000e-2(a).

[7] 42 U.S.C. § 2000e-3(a).

[8] United States Courts for the Ninth Circuit, Manual of Model Civil Jury Instructions – 10.3 Civil Rights—Title VII—Retaliation—Elements and Burden of Proof, United States Courts for the Ninth Circuit (2013), http://www3.ce9.uscourts.gov/jury-instructions/node/173.

[9] 42 U.S.C. § 2000e-2(a).

[10] Nassar, 133 S. Ct. at 2526.

[11] Gross v. FBL Financial Services Inc., 557 U.S. 167, 177-78 (2009)

[12] Garth E. Flygare, Title VII Retaliation Claims: But-For Causation Gets Back At Price Waterhouse In The Wake Of University Of Texas Southwest Medical Center v. Nassar, 39 S. Ill. U. L.J. 557, 563-564 (2015).

[13]Nassar, 133 S. Ct at 2526.

[14] Id. at 2527; Garth E. Flygare, Title VII Retaliation Claims: But-For Causation Gets Back At Price Waterhouse In The Wake Of University Of Texas Southwest Medical Center v. Nassar, 39 S. Ill. U. L.J. 557, 564 (2015).

[15] Nassar, 133 S. Ct. at 2531.

[16] Id. at 2533.

[17] Id. at 2546; Price Waterhouse v. Hopkins, 490 U.S. 228, 281-82 (1989).

[18] Darren Stakey, The Supreme Court’s Heightened Retaliation Standard In Nassar: A Prudent Limitation Or A Misguided Restriction To Title VII Claims? 30 TOURO L. REV. 923, 941 (2014).

[19] Nassar, 133 S. Ct. at 2547.

[20] Deborah L. Brake, Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation 75 OHIO ST. L.J. 1375, 1381 (2014).

[21]See Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998)

[22] See Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)

[23] Nassar, 133 S. Ct. at 2525.

[24] Deborah L. Brake, Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation 75 OHIO ST. L.J. 1375, 1381 (2014).

[25] Gross v. FBL Financial Services Inc., 557 U.S. 167, 190 (2009) (Breyer, J., dissenting). 

[26] Id.

[27] Nassar, 133 S. Ct. at 2546.

[28] Matthew A. Krimski, University Of Texas Southwestern Medical Center v. Nassar: Undermining The National Policy Against Discrimination, 73 MD. L. REV. 132, 144 (2014).

[29] 110 Cong. Rec. 2728, 13837–13838 (statement of Sen. Case).

[30] Id.

[31] Matthew A. Krimski, University Of Texas Southwestern Medical Center v. Nassar: Undermining The National Policy Against Discrimination, 73 MD. L. REV. 132, 148 (2014).

[32] Id. at 147.

[33] Kimberly A. Pathman, Protecting Title VII’s Antiretaliation Provision In The Wake Of University Of Texas Southwestern Medical Center v. Nassar, 109 NW. U. L. REV. 475, 479 (2015).

[34] Timothy M. Holly, The Causation Standard For Retaliation Claims Under Employment Discrimination Statutes: Ambiguity Of “Central Importance, 15 DEL. L. REV. 71, 75 (2014) citing Burrage v. United States, No. 12-7515, 2014 WL 273243 (U.S. Jan. 27, 2014).

[35] Nassar, 133 S. Ct. at 2547.

Why is it always the wrong time to talk about gun control?

Sydney Winkler
COL ’16

When ten people were killed and nine others were injured in a shooting at Umpqua Community College in southwestern Oregon this past Thursday, people criticized the President for making the issue “political.”  But there is no time to spare when it comes to saving lives from the next mass shooting.

Sadly, many predict that once again, nothing will be done.  Some have grown pessimistic of meaningful change in gun control.  Others have grown more protective of their right to bear arms.  Both sides refuse to meet in the middle and gridlock occurs.  So what is the result of our inaction?

Experts across the board believe that the consequence of America’s soft policy approach to guns is making more guns more accessible, which means more gun deaths.  Research has found that this is true for many types of gun violence: gun homicides, suicides, domestic violence, and even violence against police.

Looking at mass shootings in particular, like the one that occurred at UCC, there have been at least 986 mass shootings since Newtown in December 2012.  Mass Shooting Tracker, a crowd-sourced database, defines a mass shooting as “shootings in which four or more people were shot at all, not necessary murdered.”  This broader definition is essential to truly capture the threat of mass gun violence.

Some people argue that in order to respect those who have been affected by this tragedy we should not talk about gun control in light of the recent tragedy at UCC.  But if we always left time after a tragedy before bringing up a possible political solution, it would also lead to a conversation that never occurs.  According to Vox, “Under the Mass Shooting Tracker’s definition of mass shootings, America has nearly one mass shooting a day.  So if lawmakers are forced to wait for a time when there isn’t a mass shooting to talk gun control, they could find themselves waiting for a very long time.”[1]

Let me also just lay down some facts that people might find shocking… States with more guns have more gun deaths [shocker]. States with tighter gun control laws have fewer gun deaths [shocker].

But the second that I say “gun control,” half of you will stop reading this article.  It has become a buzz-phrase used by the left that causes the right to tune them out.

But what if I framed it in terms of how you obtain your driver’s license?  You go to the DMV, show proof of ID by presenting them with your Social Security number, date of birth, and residency.  Then you must pass a vision exam, written exam, and driving test.  Furthermore, drivers with vision, physical, or mental health issues must complete (along with their medical professionals) a Medical Report (Form DSD DC-163).  Oh, and you have to pay a fee too.

So what do I have to do to get a gun?  Nothing.

Federal law does not require any sort of licensing to own a gun. In most states, a license is not required to own a gun but is required to carry a gun on your person.

Some people will ask if permits will have any effect on gun homicides.  They argue that they are a hassle for law-abiding citizens and that criminals will still get their hands on guns.

Well, let’s look at a case in point: In the summer of 1994 in Connecticut, lawmakers passed a gun control bill in a special session after numerous gang shootings.  The bill requires a purchasing license before a person can buy a handgun. The state would issue these permits to people who passed a background check and a gun safety-training course.  Permit-to-purchase laws make it a crime for anyone to sell or give a gun to someone without a permit.

So what happened? Two decades later, researchers at Johns Hopkins University and the University of California Berkeley say that Connecticut’s law was actually a huge success for public safety.  They estimate that the law reduced gun homicides by 40 percent between 1996 and 2005. That’s an estimated 296 lives saved in 10 years.[2]

Permit-to-purchase laws make it harder for guns to enter the black market, too.  As Connecticut exemplifies, lower supply means higher prices.  If someone wants to get their hands on a gun through the black market, they will have to overcome a higher barrier to entry and invest more time and resources.

The process of acquiring a permit to purchase a gun is not to eliminate guns.  We don’t need to eliminate them; we need to make the process of owning them safer.  We require licenses to drive and we require seatbelts in cars.  Is it so different to require licenses to own a gun?  This is a public health issue and we should treat it like one.

It’s not clear that these steps would have prevented the Oregon shooting. But smarter gun policies could reduce murder rates by up to 50 percent, according to Dr. Daniel Webster, director of the Johns Hopkins Center For Gun Policy.

The difficult part is, while a couple states have permit-to-purchase laws, not all of them do.  And there is even a lack of credibility of permits between states.  For example, if you take your Idaho gun permit into Oregon, they won’t recognize it but Idaho will recognize an Oregon gun permit.   This type of system is disjointed and provides too many loopholes for individuals.  If an individual’s state doesn’t allow a purchase without a permit, they could just hop over to a neighboring state with more lax laws.

We need federal action.  We need Congress to act.

But we cannot only blame politicians for inaction.  It is our voices that grow silent mere weeks after a mass shooting.  If constituencies are not in favor of more gun control, then elected officials are stuck in a hard place.

After Newtown in December 2012, Pew Research Center found that “the public’s attitudes toward gun control have shown only modest change in the wake of last week’s deadly shooting at an elementary school in Newtown, Connecticut. 49% say it is more important to control gun ownership, while 42% say it is more important to protect the right of Americans to own guns.”[3]

Seriously?!  Were you silent after 9/11?  Did you say that it isn’t the right time to talk about homeland security or the threat of terrorism?

It may seem easier to just grow numb to the issue, to make it easier to deal with when the next mass shooting occurs.  But what if we could prevent that next time and the time after that?  Will you wait until the mass shooting affects your friend?  Your brother?  Your sister?  Your child?  How would you act then?

[1] http://www.vox.com/2015/8/24/9183525/gun-violence-statistics

[2] http://www.washingtonpost.com/blogs/govbeat/wp/2015/06/12/gun-killings-fell-by-40-percent-after-connecticut-passed-this-law/

[3] http://www.people-press.org/2012/12/20/after-newtown-modest-change-in-opinion-about-gun-control/

The Trouble With Anti-Vaxx and the Role of the Courts

Anthony Albanese
COL ’16

Introduction

Vaccines have become a staple of public health interventions over the past century. Epidemics from smallpox to the measles have been stifled through compulsory vaccination. Yet the anti-vaccination movement is the strongest it has ever been. 48 of 50 states have carved out some sort of exemption to mandatory vaccination, whether it is philosophical, medical, religious, or some combination of the three.[1] The result is a serious public health threat. Herd immunity requires up to 94% vaccination rate for a disease such as measles.[2] Given the relatively low percent of people who file for exemptions, herd immunity could remain intact despite these opt-out laws. However, many of the people who tend to file these exemptions also tend to live near each other. This in turn creates communities that are dangerously below the threshold for immunity. Recently, in California—the poster child for this phenomenon—99 cases of measles have popped up via an infection at Disneyland. This is the highest infection rate for measles in twenty years.[3]

The issue could be tackled solely in the political realm. Exemptions can be removed just as easily as they are created, yet the unlikely alliance between liberal-leaning naturopaths and conservative religious groups, as well as libertarians who argue that mandatory vaccination is a violation of personal freedom, has made change difficult. Politicians have declined to take a strong stance on mandatory vaccinations. Presidential hopeful Rand Paul recently stated, “I don’t think there is anything extraordinary about resorting to freedom….The state doesn’t own your children. Parents own the children. And it is an issue of freedom and public health.”[4] Paul is a graduate of medical school, so the fact that he has taken this stance emphasizes that the political calculus of taking a stand against the anti-vaccination movement simply does not work out to be positive.

This has left a significant portion of the fight against the anti-vaccination movement to play out in court. An analysis of past precedent involving vaccines is essential to understanding what challenges to compulsory vaccination have been thwarted, and what legal options are available to fight the anti-vaccination movement today.

Supreme Court Precedent — Conflicting Principles

The main source of precedent relating to vaccines comes from the Supreme Court’s decision in the 1905 case of Jacobson v. Massachusetts. This took place before the time of exemptions of any sort, and challenged the principle of compulsory vaccination at its core. Chief Justice Harlan’s majority opinion asserted the idea that such mandates fell under the states’ police powers. Even in 1905, Harlan understood the public health threat that arises when people refuse to vaccinate. He argued that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”[5] This is a ringing endorsement of the social compact in public health, and a rejection of the “freedom” argument of anti-vaccination advocates.

The decision in this case had two effects. First, it essentially ended challenges to the constitutionality of mandatory vaccination. It also galvanized the anti-vaccination movement. The Anti-Vaccination League of America was founded not three years later.[6] Pressures from these types of groups were the cause of the prominence of exemptions, and therefore opened the door to future legal challenges.

Pierce v. Society of Sisters, while not directly involving vaccinations, provides an important precedent that plays well with the anti-vaccination argument. See the following from the majority:

“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”[7]

Simply put, in Pierce, the Court made a powerful assertion that parents have a general right to raise their children as they please. This is pertinent considering that vaccinations today are primarily spread through mandatory vaccination of children as a condition to enter school. The principle established in Pierce is one that rings true with liberal naturopaths and conservatives alike.

Prima facie, these cases may seem unrelated. Upon closer inspection, one can see a conflict in court doctrine between upholding the right of the parent to rear their own children, and asserting the ability of the state to intrude via its police powers for the sake of the common good.[8] Primarily, the argument of the state has been favored by the Court. For example, in Prince v. Society of Sisters (1944), it was made clear that the states have some significant power to intervene over parental will for the well-being of the child—even to the point where religious freedoms are restrained.[9] Still, the logic in Pierce is one that resonates with anti-vaccination arguments.

Current Challenges: Who’s winning?

While Pierce has arguably been the more significant case in terms of overall influence, Jacobson has ruled in the realm of vaccinations. In the most recent challenge of Philips v. City of New York, the US Court of Appeals of the 2nd Circuit upheld the right of schools to bar unvaccinated children from school if another student contracts a disease preventable by vaccine—even if the child has received an exemption. The precedent invoked was none other than Jacobson. Further, the Court asserted that New York could constitutionally mandate all vaccinations, and that the allowance of an exemption is above and beyond what is required by the Constitution.

It is clear that the sentiment of Pierce factored into the plaintiff’s argument. As the makeup of the high courts change, it’s foreseeable that this argument could become more favorable in the courtroom. While it is an uncommon occurrence for the Court to completely overturn precedent, there have been many times when doctrines have been loosened and expanded, such as the applicability of the Commerce Clause. It is especially prudent to consider that rulings against vaccine critics will only further galvanize the movement, as it did in 1905 after Jacobson. Indeed, the appeals will not simply cease overnight. According to the New York Times, Philips is already looking to appeal to the Supreme Court.[10]

 What’s Next? Options in Tort Law and the NFIB Decision

From the previous analysis, it’s clear that the courts have built a strong first defense against those who refuse to be vaccinated in championing the police powers of the states. On the other hand, these same police powers are what allow anti-vaccination organizations to lobby for exemptions. A second line of defense is now necessary. How can the courts, in tandem with policymakers, further efforts to raise vaccination rates?

One option involves tort law. If one could trace back the contraction of a preventable disease to someone who wasn’t vaccinated, they could be sued for damages. Anthony Ciolli, faculty at the University of Pennsylvania Law and Medical Schools, notes that this method would be particularly useful regarding HPV vaccination.[11] Since HPV is translated sexually, it could be traced back to a specific partner. Ciolli argues that the use of tort law in the realm of vaccines could be a significant deterrent to filing for exemptions, as people fear high costs of liability. Yet, not all agree with this assessment. Ross Silverman of Indiana University speculates that the application of tort law would have quite the opposite effect. According to Silverman, not only would it not increase vaccination rates, but would also undermine faith in the public health system and trigger further polarization of the pro and anti-vaccine camps.[12] No matter which assessment is right, one thing is clear: the tort approach has little application in regard to most diseases. Tracing a case of measles, which can spread through the air, is much more difficult and far less practical.

In the wake of NFIB v. Sebelius, another option seems to have emerged. The majority opinion, in interpreting the individual mandate as a tax on inactivity as opposed to a penalty, has opened up a new legislative avenue for regulating health policy.[13] If the government can mandate that all individuals buy health insurance or face a tax, it doesn’t seem too hard to believe that the federal government could legitimately create a similar mandate for vaccinations. Little commentary has been made regarding this possibility, most likely because the doctrine passed down in NFIB is still rather untested. Unfortunately, there would need to be some political movement for this to become a realistic possibility, and as the aforementioned comments by Rand Paul demonstrate, there is currently little political will. However, the same argument could have been made about health care reform prior to 2009. If the stars align and vaccine policy reform reaches the national agenda, it is possible given the decision in NFIB that a federal mandate could be upheld in court.

Despite the challenges of these proposals, the significance of the role of the court system is clear. Upholding mandatory vaccinations under the police powers over the past century has been crucial in ensuring broad vaccination against preventable disease. Fighting exemptions, however, will require more nuanced legal approaches. How the courts deal with the legacy of NFIB, and whether tort law can successfully be applied will be the next important determinants in improving vaccination rates—and as a result, public health.

Notes

[1] Mariano Castillo, What vaccination exemptions does your state allow? CNN (2015), http://www.cnn.com/2015/02/03/health/vaccination-exemptions-state-by-state/.

[2] Jonathan Cohn, Rand Pauls Vaccine Comments Are Latest Chapter In 136-Year-Old Debate Huffpost Politics, http://www.huffingtonpost.com/2015/02/03/rand-paul-vaccination_n_6604498.html.

[3] Lisa Krieger & Jessica Calefati, Measles outbreak: vaccination exemption would end under proposed California law San Jose Mercury News (2015), http://www.mercurynews.com/health/ci_27458564/measles-california-outbreak-vaccination-exemption-religious-belief.

[4] See Cohn, supra at note 2.

[5] Jacobson v. Massachusetts, 197 U.S. 11, (1905)

[6] Toward a Twenty-First Century Jacobson v. Massachusetts, 121 Harvard Law Review 1820–1841 (2008).

[7] Pierce v. Society of Sisters, 268 U.S. 510, (1925)

[8] Jonathan Cohn, Rand Pauls Vaccine Comments Are Latest Chapter In 136-Year-Old Debate Huffpost Politics, http://www.huffingtonpost.com/2015/02/03/rand-paul-vaccination_n_6604498.html.

[9] Prince v. Massachusetts, 321 U.S. 158, (1944)

[10] Patrick McGeehan, New York Vaccine Requirement Is Lawful, a 2nd Court Says The New York Times (2015), http://www.nytimes.com/2015/01/08/nyregion/state-vaccine-requirement-is-lawful-a-2nd-court-says.html?_r=0.

[11] Anthony Ciolli, Mandatory School Vaccinations: The Role of Tort Law, 81 Yale Journal of Biology and Medicine 129–137 (2008).

[12] Noah Berlatsky, Fighting the Anti-Vax Movement With Lawsuits The Atlantic (2015), http://www.theatlantic.com/health/archive/2015/02/fighting-the-anti-vax-movement-with-lawsuits/385130/.

[13] National Federation of Business v. Sebelius, 567 U.S. ___, (2012)

Medicaid Expansion and the Supreme Court

John Channing Ruff
Student Contribution

The Affordable Care Act (ACA) offers states the option of a completely federally-funded expansion of Medicaid for the next three years, but many governors have declined that expansion. As a result, there are approximately fifteen million potential Medicaid-eligible people without insurance coverage. The federal government has been unable to compel wayward governors to expand Medicaid due to a ruling by the Supreme Court and political realities. I explain and outline the controversial provisions and their impacts while explaining the Supreme Court’s impact on the legislation’s effectiveness.

When passed in 2010, the Affordable Care Act called for states to begin expanding their Medicaid programs, gave Health and Human Services (HHS) the authority to enforce the expansion, and instituted a system by which states that refused to comply would see a reduction in federal aid (Musumeci 1). The Supreme Court famously upheld the individual mandate which required most people to maintain a minimum level of coverage in its 2012 ruling. The Court’s logic was that the penalty assessed to those who failed to meet the coverage requirement fell under the federal government’s constitutional authority to tax. The Supreme Court had ruled that the ACA’s Medicaid expansion was unconstitutional because states had not received “adequate notice to voluntarily consent” to expansion, and a state’s entire federal Medicaid funds were at risk for non-compliance; they called the Medicaid expansion “unconstitutionally coercive” (Musumeci 1; Kliff). The Court’s decision meant that the expansion of Medicaid was left to the discretion of individual states. Predictably, the majority of Republican governors chose not to accept the additional funds, meaning their state programs maintained the status quo, while Democratic governors happily expanded their Medicaid programs.

The most obvious obstacle to the federal government now faces to mandating an expansion of Medicaid is the “constitutional” barrier set forth by the Supreme Court. That being said, an extraordinary impediment more significant than the Court’s decision would need to be overcome in order to expand Medicaid. The political chasm that runs through the heart of healthcare policy would prevent such an expansion even if the political will existed in Congress and plenty of notice were given to states (effectively resolving the Court’s concern with the mandate). It is therefore necessary to define and quantify the nature of this political fracas.

The crux of the disagreement between Democrats and Republicans is over the issue of revenue and personal responsibility. Practically every Republican that is elected to the House of Representatives and Senate is goaded into signing a pledge to never raise taxes; they are then obliged to abide by this pledge or be financially severed from the party and left to wither in the political wilderness (60 Minutes). Their anti-tax stance means that an entitlement program such as Medicaid is the bane of the Republican Party’s existence and the object of their most vitriolic ridicule. Republican governors view Medicaid expansion with suspicion; forty-three percent of the nation’s budget is already fixed on entitlements and though their states would not have to bear the burden of expansion, they recognize that additional revenues must come from somewhere (Week 9, slide 4). They also recognize that “revenue” is political doublespeak for taxes, from their point of view, a Medicaid expansion means either growth in the national debt or a Federal tax increase on their constituents. Democrats argue that the Federal government extracts the revenues that would be used for Medicaid expansion anyways and that these funds might as well be brought back to the states. (Bluestein)

It would be foolish to assume that the nature of the political conflict over healthcare is based solely on principle. Alas, healthcare accounts for about $2.7 trillion of our economy every year (which is about one-sixth of our total GDP). It is a massive industry, which means it spends handsomely on lobbying efforts (World Bank, The Toxic Politics of Healthcare). It makes it much easier for politicians to support certain healthcare policies over others when upwards of $400 million is spent lobbying them, more than any other industry (Steinbrook 3). It is important to remember that there are many stakeholders in the healthcare industry and that they often possess opposing interests.

In fact, when it comes to issues like Medicaid expansion individual stakeholders may have internalized opposing interests; they often must choose between the lesser of two evils. For instance, one might logically assume that insurers would support an expansion of Medicaid. The government would pick up the tab for an expensive previously uninsured segment of the population, possibly driving prices down. Insurers save a pretty penny in this scenario, but since the late 1990s many states have pursued a managed care model with their Medicaid programs. This means they pay a flat fee per Medicaid recipient to private insurance companies, who then “manage” the care of each recipient (Week 4, Slide 12). States instituted this model because they believed it would save money, but costs have risen significantly despite the implementation of managed care (Week 4, Slide 15). Any expansion of Medicaid would introduce something that insurance companies despise and spend considerable time trying to mitigate, uncertainty. Expanding the number of recipients also expands the risk pool; this change in insures calculus could make managed care much less lucrative.

Surely there must be a stakeholder that would welcome an expansion of Medicaid, hospitals and providers for instance. It’s natural to think that an expansion would mean an increase in the number of insured patients and therefore an increase in revenues. If only the economics of healthcare were that simple, Medicaid pays about 59 percent of what Medicare does and the ACA calls for a yearly reduction in provider reimbursements; many providers are already refusing to accept Medicaid patients (Matthews). Doctors and hospitals view Medicaid expansion as a double-edged sword that may cut profits instead of costs.

A duality of self-interest permeates the entire system, as care at a lower cost means that somebody gets paid less and jobs are lost; however, when $2.7 trillion changes hands “no one will happily receive less” (Berwick). The political toxicity of healthcare is readily apparent; the Supreme Court will hear yet another ACA case this session. Republicans driven by big lobbying dollars and their constituents’ suspicion of science, ambivalence about federalism, and ambivalence about the poor are intent on ensuring that the failure of the ACA becomes a self-fulfilling prophecy (Berwick).

Republicans have been successful at stopping the expansion of Medicaid and allowing employers to pick and choose what they will cover; now they are challenging the federal government’s authority to provide subsidies to individuals who did not buy their insurance through a state exchange. About eighty-seven percent of those who bought plans on HealthCare.gov received subsidies that limit the cost of coverage to no more than nine-point-five percent of their income. Almost five million people received subsidies through the Federal exchange and paid an average of $82 a month while their premiums would have been $346 without assistance (Mears).

Sarah Palin coined the term “death panels” after the ACA was enacted. Since that time the Supreme Court has been the only government body to restrict access to healthcare. Their decisions have severely curtailed the law’s effectiveness and left millions stranded without insurance. The disjointed nature of the American healthcare industry is indicative of interstate commerce gone awry.  Rather than upholding the federal government’s constitutional authority to legislate on this issue, the Court left the law hamstrung. The Court’s decisions caused a myriad of problems with the ACA’s continuity, which has only opened the door to more litigation. The Court would have been wise to make a broad determination of the laws constitutionality; their nitpicking of provisions has transformed the Supreme Court into a quasi-legislative body. This is neither their purpose nor their strength. Lastly, the Court will decide whether to eliminate the healthcare coverage of five million more people, on top of the 15 million who have not received Medicaid coverage due to their 2012 decision, this summer (Beutler). The Supreme Court should realize that they are playing with people’s lives; it is no time to flex their judicial muscle. They should use their discretion in deciding cases involving complicated pieces of legislation, allowing legislators and the executive time to work these issues out through the democratic process.

 Works Cited

Berwick, Donald M. “The Toxic Politics of Health Care.” American Medical Association (2013): n. pag. Web. 05 Nov. 2014, accessed via Blackboard.

Beutler, Brian. “The Supreme Court Is Now a Death Panel.” New Republic. New Republic, 07 Nov. 2014. Web. 08 Nov. 2014.

Bluestein, Greg. “Jason Carter Sharpens Call for a Medicaid Expansion | Political Insider Blog.” Political Insider Blog. The Atlanta Journal Constitution, 13 June 2014. Web. 09 Nov. 2014.

Bream, Shannon. “Supreme Court to Hear New ObamaCare Challenge.” Fox News. FOX News Network, 07 Nov. 2014. Web. 07 Nov. 2014.

CBS 60 Minutes: “The Pledge” http://www.cbsnews.com/video/watch/?id=7389006n&tag=cbsnewsMainColumnArea.10

Fisher, Daniel. “Supreme Court Upholds Obamacare: What It Means, What Happens Next.” Forbes. Forbes Magazine, 28 June 2012. Web. 08 Nov. 2014.

“GDP (current US$).” Data. The World Bank, n.d. Web. 08 Nov. 2014.

Kliff, Sarah. “The Supreme Court Surprise: Medicaid Ruling Could Reduce Coverage.” Washington Post. The Washington Post, 28 June 2012. Web. 08 Nov. 2014.

Matthews, Merrill. “Doctors Face A 24% Pay Cut In Both Medicare And Medicaid Reimbursements.” Forbes. Forbes Magazine, 2 Dec. 2013. Web. 09 Nov. 2014.

Mears, William. “Supreme Court to Review Another Obamacare Legal Challenge.” CNN. Cable News Network, 07 Nov. 2014. Web. 07 Nov. 2014.

Musumeci, MaryBeth. “A Guide to the Supreme Court’s Decision on the ACA’s   Medicaid Expansion.” A Guide to the Supreme Court’s Decision on the ACA’s Medicaid Expansion, August 2012 – Brief (n.d.): n. pag. Kaiser Family Foundation. Kaiser Family Foundation, Aug. 2012. Web. 06 Nov. 2014.

Steinbrook, Robert. “Campaign Contributions, Lobbying, and the U.S. Health Sector — An Update.” Massachusetts Medical Society (2008): n. pag. Web. 07 Nov. 2014, accessed via Blackboard.

The Legality of a Short-Term Solution to the Long-Term Problem of Immigration

Sydney Winkler
COL ’16

There has been much controversy surrounding President Obama’s most recent executive action. It will expand the deferred program, also known as DACA, to parents of U.S. citizens and legal permanent residents. The program is poised to give temporary legal status to over 4.3 million illegal immigrants. While seemingly large in scope, one must also consider that the overall number of unauthorized immigrants is larger than in the past. Despite this fact, the vastness of the program has caused Congressional Republicans to ask whether the executive action is within the President’s jurisdiction. The left wing unsurprisingly disagrees and points to past presidential Administrations as examples of the justification of executive action. It is essential to determine what the President has the authority to do and what is outside of the executive branch’s power. After careful examination of the law, it is clear that the President is within his bounds by giving temporary legal status, not a path to citizenship, to parents of citizens in the U.S. or permanent residents.

Conditions of the Executive Action

President Obama signed an executive action on November 20, 2014 that will expand the deferred program to parents of immigrants who currently have legal status in the U.S.[1] Those eligible to apply for the new program must have arrived in the U.S. before 2010 and arrived in the U.S. under the age of 16, an expansion of the Deferred Action for Childhood Arrivals (DACA). Temporary legal status will also be granted to those who arrived in the U.S. before 2010 and have at least one child who is a U.S. citizens or legal resident, under the Deferred Action for Parents (DAP).[2] On a less publicized note, the Obama Administration also announced an expansion of legal immigration for skilled workers. This aspect could affect over 150,000 people moving to the U.S. to find work. Finally, the executive action also called for a revamping of the Secure Communities program, which uses local jails to enforce immigration laws and turn over undocumented immigrants to federal authorities. An important point to make about President Obama’s executive action is that does not propose granting legal status to unauthorized immigrants. In actuality, the president is giving them the opportunity to apply for deferred action, defined as protection from deportation for a certain amount of time, and this protection is only issued for three years.[3] Unauthorized immigrants who are given deferred action will only gain a work permit, not legal status or a path to citizenship.

Examination of the Immigration and Nationality Act of 1965

The Immigration and Nationality Act of 1965 governs over immigration to and citizenship of U.S. Citizens. This act amended the INA of 1952, abolishing the national origins question system. It was replaced with a preference system that focused on keeping together families and utilizing immigrants’ skills. The Immigration and Nationality Act of 1952 act defined three types of immigration: immigrants with special skills or relatives of U.S. citizens, average immigrations, and refugees.[4] Along these lines, it does not seem like too far of a stretch for the Obama Administration to justify deferred action for immigrants who are relatives of U.S. citizens and high-skilled immigrants. Since the executive action provides benefits for both groups, the Administration is also able to make the case for humanitarian reasons as well as economic reasons.

The Obama Administration’s Argument

In a 33-page memo, the Justice Department’s Office of Legal Counsel lines out President Obama’s authority in this matter. The crux of their argument falls on the idea of prosecutorial discretion.  It points out, “Since the INA was enacted, the Executive Branch has on numerous occasions exercised discretion to extend various forms of immigration relief to categories of aliens for humanitarian, foreign policy, and other reasons.”[5] The memo points the history of administrations that have also previously used executive action for immigration. For example, Jimmy Carter granted legal status to immigrants through the 1966 Cuban Adjustment Act. Furthermore, Ronald Reagan also signed the Immigration Reform and Control Act to grant amnesty to about 3 million unauthorized immigrants. Finally, George H. W. Bush granted deferral of deportation and eventually amnesty to 1.5 million immigrant children and spouses of U.S. citizens.

Furthermore, enforcement authority is vested in the executive branch. For example, the president has a constitutional duty “take care that the laws be faithfully executed.”[6] The Supreme Court case, Heckler v. Chaney, also recognizes that the faithful execution of the law does not necessarily entail acting “against each technical violation of the statute” that an agency is charged with enforcing.[7] This means that the president does not have to enforce every part of the law, within certain boundaries.

The memo argues that, if the president indeed does go past his authority, then “when Congress has been dissatisfied with Executive action, it has responded, as Chaney suggests, by enacting legislation to limit the Executive’s discretion in enforcing the immigration laws.”[8] The Heckler v. Chaney (1985) decision argued that initiating enforcement proceedings is complex and calls on the agency to balance “a number of factors which are peculiarly within its expertise.”[9] Factors include “whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all.”[10] The memo argues that the principles of enforcement outlined in Chaney apply to immigration since Congress enacted the INA with the understanding that immigration is a field that demands flexibility due to the variable conditions of the program.

The memo also acknowledges that the President does not have the authority to “attempt to effectively rewrite the laws to match its policy preference.”[11] Furthermore, the sustainability of an immigration policy like such rests in the political arena and in the hands of Congress. It doesn’t fail to point out though that the Homeland Security Act of 2002 transferred administrative services and enforcement of immigration laws to the Department of Homeland Security in Section 430, Subtitle D.[12]

Argument from the Republican Side

While Congressional Republicans will acknowledge that past presidents have undertaken executive actions on immigrations, they argue that these actions were on a much smaller scale. Presidents, dating back to Dwight D. Eisenhower, have granted relief to immigrants who were vulnerable to deportation. For example, Eisenhower allowed hundred of foreign-born orphans to come to the U.S. with their adoptive parents, through an executive action in 1956.[13] Thus, while President Obama has a partial legal basis for the Administration’s action, the action has extended beyond his jurisdiction. Republicans, however, argue that those actions were on a much smaller scale. In late October, Republican National Committee chair Reince Preibus promised a lawsuit against the president if he were to take executive action.[14] Legal scholars are now saying that a lawsuit is unlikely, given the carefulness of the Department of Justice’s Office of Legal Counsel.

Conclusion

When it comes to immigration, the executive branch has a lot of authority to decide who to deport and who not to deport. As shown above, the Department of Homeland Security’s proposed prioritization policy and its proposed deferred action program for parents of U.S. citizens and lawful permanent residents would be legally permissible, given the president’s constitutional duty and the way the Supreme Court has ruled in the past. The proposal also aligns with previous action that Congress has taken and therefore is consistent with current immigration law and with congressional understandings of permissible uses of deferred action.  The DHS and Department of Justice’s Office of Legal Counsel also acknowledge that the proposed deferred action program for parents of DACA recipients would not be permissible, in order to be consistent with Congressional action and not leave deferred action open to any illegal alien. There are important limits to President Obama’s executive action that many should further examine. Overall, the proposal is a temporary executive answer to a problem that will eventually need long-term reform by the legislature in order to truly solve the problem.

Notes 

[1] U.S. Department of Justice, “The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others” (Washington, D.C., 2014), 26

[2] http://www.uscis.gov/immigrationaction

[3] http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/frequently-asked-questions

[4] http://www.nationalimmigrationlawyers.com/mccarran-walter-act.html

[5]Op. cit., U.S. Department of Justice, p 6

[6] U.S. Const. art. II, § 3

[7] Heckler v. Chaney, 470 U.S. 821, (1985).

[8]Id.

[9]Op. cit., Heckler v. Chaney

[10] Id.

[11]Op. cit., U.S. Department of Justice, p 6

[12] Homeland Security Act of 2002, Pub. L. No. 107-296, 107th Cong., 1st Sess. (November 25, 2002) LexisNexis Academic.

[13] http://www.presidency.ucsb.edu/ws/index.php?pid=10677

[14] http://www.cnn.com/2014/11/20/politics/republican-response-obama-immigration-speech/

Protecting Pornography: An Examination of Legal Support

Sonia Okolie
COL ’15

There has been much controversy in the law regarding the creation and regulation of pornographic content. Pornography, and the laws concerned with it, considers the proper intersection of sexual repression and sexual representation. It first becomes necessary to identify a working definition of the term “pornography,” especially in relation to standard conceptions of obscenity that have driven legislation. The crux of the debate surrounding pornography is concerned with the dehumanizing and over-sexualized portrayal of women in this forum. Thus, many insist that pornography both condones and encourages violent behavior against women by depicting such sexual acts. This is the concern that drives much of the anti-pornography advocacy. However, it is essential to determine whether the regulation of pornography would be a violation of the rights guaranteed by the First Amendment to the Constitution. The other factor to consider in this matter is whether pornography violates the rights of others, since this would provide a reasonable basis for banning such material. After careful consideration of the relevant case law, freedoms protected by the First Amendment, and possible consequences of pornographic material, it is clear that pornographic material that is not obscene should not be regulated by the government.

Considerations of Obscenity and the First Amendment

The freedom of speech protected under the First Amendment does not extend to obscene speech. This obligated the Court to clearly define obscenity in considering speech that contains sexually explicit content.  In the 1973 case Miller v. California, the Court established the current definition of the term pornography. A work may be deemed obscene if:

(1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law and (3) the work, taken as a whole, lacks serious literary, artistic, political or scientific value.[1]

The Miller case held that unless a work fits the aforementioned definition and is shown to be obscene, it may not be regulated.

The main support for why pornography restriction is unconstitutional is based on its relation to the freedoms protected by the First Amendment. This amendment states that “Congress shall make no law… abridging the freedom of speech, or of the press.”[2] Of course, all uses of printed words or pictures do not automatically ensure protection, or even consideration, by the First Amendment.[3] Indeed, the reason that pornography arises for such consideration is the nature of the sexually explicit content it contains.

The American Booksellers Association, Inc. v. Hudnut case of 1985 addressed the definition of pornography set by the Indianapolis Ordinance of 1984.[4] The Court here found the definition and prohibition proposed by the ordinance unconstitutional.  Any speech that treats women as “submissive or enjoying humiliation” is unconstitutional, even if it is merely including this viewpoint to establish what should not be allowed.[5] Further, it is often only the “most thoroughly explicit” material that is “overwhelmingly devoted to patently offensive and explicit representations, and unmitigated by any significant amount of anything else” that is considered legally obscene.[6] Although obscene works of art are not protected by the First Amendment, this does not imply that all content that people find offensive should or will also be unprotected by the same amendment.[7] This is a key point in the argument against government regulation of pornography: simply because pornographic material is sexually explicit does not automatically make it obscene. It cannot be denied that non-obscene pornography is an expression of free speech. As such, it must be included within the protections guaranteed in the First Amendment. Regulating the production and distribution of pornographic materials would effectively be an abridgement of free speech, thus making it unconstitutional.

Pornography and Individual Autonomy

The decision to make or be featured in pornographic material obviously falls within the notion of individual autonomy, but the decision to view such content does too.[8] In Stanley v. Georgia, Justice Marshall gave the dissenting opinion that “[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”[9] This is necessary to keep in mind because it signifies that a person should be able to watch pornographic material if he so chooses, regardless of whether it may deemed offensive by someone else. The next dimension of this argument is whether pornography inherently violates the rights of others. If it does, it is necessary to ascertain whether the harm done outweighs the value of the material.

A Violation of Women’s Rights?

The consensus of anti-pornography advocates is that pornographic materials perpetuate gender stereotypes and promote acts of violence against women. They cite proof of causation between men viewing pornographic films and committing violent crimes, such as rape and assault, against women. Since the feminists in favor of pornography regulation cannot look to obscenity laws to support their opposition, they conceived a different approach. This approach calls for the regulation of pornography on the grounds that, by subordinating women, it directly infringes upon their civil rights.[10] The Indianapolis ordinance enacted in 1984 restricting pornography as a violation of women’s civil rights, focusing upon pornography’s correlation with violence. A definition of pornography was established in the ordinance, where the “graphic sexually explicit subordination of women” delineates several conditions of negative portrayals of the women involved.[11] Such conditions include any presentation of women as “sexual objects, things, or commodities” who may or may not “enjoy pain or humiliation,” who “experience sexual pleasure in being raped,” who are physically injured, tortured, or degraded, who are “whores by nature,” etc.[12]

Thus, a major component of the anti-pornography argument is the prevailing presentation of women as sexual objects. This dehumanization then leads to further degradation involving physical violence and demeaning depictions of women. But it is important to recognize that not all pornography presents women more as sex objects than as people. Additionally, the representation of women as sex objects does not automatically take away their personhood, considering, for instance, celebrities like Madonna who are famous for their sexualized image in society.

The Issue of Violent Pornography

Of course, some pornography does exist which present women as mere sex objects and not as people. Generally, this appears to be the case for violent pornography. This is the material that depicts women being “abused, raped, tortured, or killed, in a way that is intended to be sexually appealing” to whoever is watching.[13] In this material, women are presented as the receivers of extreme, violent, and even cruel treatment by the men featured alongside them. In this way, women are often dehumanized to some degree as their bodies are violated in some way.

Violent pornography does infringe upon the fundamental rights of women because it portrays and perpetrates real acts of violence against women. Even though the women in this type of material most likely enter into these situations contractually, and therefore consensually, they sometimes suffer from serious physical injury. This injury should not be allowed to continue for the sake of supposed art or enjoyment. Further, promoting acts of violence against women through pornography does have the potential to put other women, outside of the industry, at risk. Therefore, by denying women recognition as human beings and threatening personal security, violent pornography violates the rights of women.[14] The question is then what should be done about this kind of pornography.

It seems to be both obvious and necessary to prohibit violent pornography. If someone enters into pornography, where there are acts of violence committed against her, and the violence is not simulated, but real, this is wrong.[15] Further, the First Amendment’s protections should not extend to such content. The strongest argument for extending the freedom of speech protection to pornography is that it promotes self-fulfillment for some people. This certainly may be true for less severe, violence-intensive, forms of pornography. But an opponent of regulation would then say that even if violent pornography infringes upon women’s rights, this injury is “outweighed by the contribution that it makes to the self-fulfillment of those who produce or consume it.”[16]

This is an unconvincing and difficult argument to make for a few reasons. If people find fulfillment in viewing violent pornography, the fulfillment must “derive either from what is distinctive to such pornography (the portrayal of violence), or from what is not distinctive to it.”[17] In the latter case, there would be no reason to legally protect violent pornography because the fulfillment could then come from other sources that do not violate the rights and safety of other people. However, if the fulfillment is derived from the fact that the material at hand contains violence, then it must be due to the portrayal of women in a violent and degrading way. This is inherently wrong, so even if some viewers obtain a sense of fulfillment from violent pornography, this cannot be considered a good reason to protect it.

Female Empowerment through Porn

The reasons behind anti-pornography sentiments are relatively easy to understand. Many feminists only see pornography as a vehicle for women to be stripped naked, displayed, abused, and humiliated for men’s entertainment. This viewpoint emphasizes the fact that pornography is a “male invention, designed to dehumanize women, [and] reduce the female to an object of sexual access.”[18] Further, this opinion is usually accompanied by the claim that there is a large percentage of women in the pornography industry who were coerced into this line of work. Additionally, it is asserted by those in favor of the ban that women who work in pornography face the stigma that comes with it, which often causes shame and ostracism. This becomes a self-reinforcing process by which some women have no choice but to enter into this industry, are subjected to degrading and humiliating treatment, are unable to find work elsewhere because of their past employment, and are forced to continue working in pornography. Although this is a fairly common opinion among those in favor of the regulation, it fails to see that pornography can have some element of power as well.

The sexual behavior depicted in pornographic films and photos are a direct expression of the woman’s sexual autonomy and ownership of her body. The aforementioned feminist perspective overlooks the fact that the sexual acts in such films and photos are almost always the result of a contractual agreement beforehand. This contract is a symbol of legal written consent, by which the woman in question is technically consenting to the sexual acts that follow. This implies that the women depicted in pornography do have a say in choosing to become involved. There are, of course, individual extenuating circumstances that make it so that one finds pornography to be a last resort in employment. However, the law cannot make special accommodations for each individual’s specific circumstances, nor would it be fair to ban all pornographic content based on one person’s situation.

By removing the popular outlet through which men find sexual gratification, this ban would remove it for women too. Often, it seems that anti-pornography advocates neglect the fact that 9.4 million women access adult websites each month.[19] This statistic proves that there is a substantial market for women who enjoy watching pornographic material. Therefore, a ban on this material would also negatively impact the same women who are intended to be protected by the ban. Regulation of pornography would also constitute the sort of legislation that “reinforces sex-based stereotypes without effectively improving women’s circumstances.”[20] By emphasizing women’s need for protectionist measures and her vulnerability to degradation, this restriction would hurt women a great deal, perhaps more than it would help them.

Proposed Solution

The concern for the treatment and safety of women stemming from pornographic representations is legitimate. It is for this reason that there should be civil remedies provided by the law available to those who are in any way harmed in the process of the production of pornography; however, the restriction of all pornographic material would not only be a step too far, but unconstitutional so long as it is not obscene.

Instead, there should be a movement to regulate material that falls within the category of violent pornography, thus limiting the available pornography to only that which does not infringe upon the rights and safety of others. If the definition of obscene were extended to apply to violent pornographic content, this would make it so that it is no longer protected by the First Amendment. As stated earlier, this genre of pornography violates the rights of others by depicting acts of violence that often present real danger to those involved. This is not the type of material that should be allowed to continue being produced. Violent pornography is not art, and does not serve a positive purpose; to borrow from the established definition of obscenity, it inherently “lacks serious literary, artistic, political or scientific value” and should be regulated by law.

It is necessary to recognize that there is no guarantee that making pornography illegal will stop people from regarding women as sex objects.  Pornography serves as a necessary way to remember that men and women should be treated as equals, and therefore equally have the right to watch and participate in the sexual acts to which they consent. Regulating pornography would be unconstitutional, but more than that, it would be unconstructive. Not allowing women to explore and express their sexuality through this medium would not help women’s cause, it would stunt it.

[1] Miller v. California, 413 U.S. 15 (1973)

[2] U.S. Const. amend. I

[3] Op. cit., U.S. Dep’t of Justice, p. 251

[4] American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985)

[5] Op. cit., American Booksellers

[6] U.S. Department of Justice, “Attorney General’s Commission on Pornography: Final Report” (Washington, D.C., 1986), 260

[7] Id. at 256

[8] Steven J. Heyman, Ideological Conflict and the First Amendment, 78 Chi.-Kent. L. Rev. (2003) p. 20

[9] Stanley v. Georgia, 1969, 394 U.S. 557

[10] Op. cit., Lindgren, p. 418

[11] Id. at 419

[12] Id.

[13] Op. cit., Heyman p. 21

[14] Id. at 24

[15] Id. at 21

[16] Id. at 25

[17] Id.

[18] Susan Brownmiller, Against Our Will (1975) in Ralph Lindgren, et al., The Law of Sex Discrimination (Boston, MA: Wadsworth, 2011) 416-17.

[19] “Pornography Statistics.” Brigham Young University Women’s Services and Resources. https://wsr.byu.edu/pornographystats (May 2, 2014)

[20] Op. cit. Lindgren, et al., p.420