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Executive Order Amends Prosecutorial Guidelines for Violent and Special Victims’ Crimes

By Jacob Caskie, Bloomsburg University of Pennsylvania Class of 2023

August 9, 2023

Men and women of the U.S. Military are undoubtedly held to a higher standard than non-serving citizens in many aspects of life. Enlisted individuals are expected to possess greater work ethics, stronger morals, and higher integrity than ordinary citizens, and the reasoning behind this is simple: their purpose is to defend our nation and to shield Americans from danger. Accordingly, service members are often severely disciplined for engaging in prohibited activity and/or unlawful conduct, however this is not always the case. Over the past decade, incidents of specifically sexual assault have exploded within multiple branches of the armed forces. Many of these cases have gone unreported and thus, most offenders were not criminally disciplined for their actions. On Friday, July 28th, 2023, President Joe Biden signed an executive order that ensures violent criminal offenders serving in the U.S. Military are properly disciplined for their conduct by amending the U.S. Uniform Code of Military Justice (UCMJ).

The order made by President Biden received bipartisan support in Congress and changes the U.S. Military Justice System’s handling of violent crimes such as sexual assault, domestic abuse, murder, and manslaughter. The amendment removes prosecutorial discretion from the military chain of command, which was previously responsible for deciding if charges would be filed against the offender.[1] According to the executive order, prosecutorial decisions will now be made by the newly minted Offices of Special Trial Counsel, an independent panel made up of trained criminal prosecutors.[3] Furthermore, the order signed by President Biden amends the U.S. Military’s Manual for Courts-Martial, allowing substantiated incidents to result in the offenders discharge from service.[1] The reform formally implements legislation passed by Congress in 2022, which aimed at strengthening protections for enlisted individuals. Members of Congress have long been frustrated over the growing number of reported sexual assaults within the U.S. military, as statistics show that reported incidents have increased nearly every year since 2006. In 2022 alone, more than 8,942 reports of sexual abuse involving men and women of the service were filed.[2]

This revision to the UCMJ implements just one of over two dozen recommendations made by an independent review commission analyzing sexual assault reports in the military. The 2021 review, commissioned by Defense Secretary Lloyd Austin, recommended that the military develop additional career tracks for prosecutors, judges, and victim’s advocates. Review results also recommended that the military make improvements in allowing protective orders for victims of sexual assault.[5] The review panel stated that a driving force in making their suggestions was the belief that many members of the armed forces have lost faith in the reporting system, so by recommending reform, they hope to restore this faith.[5] When Congress approved these recommendations as part of the Fiscal Year 2022 Defense Authorization Act, Presidential action from Biden was necessary in order to formally amend the UCMJ, although the Pentagon had already began taking steps to implement the changes recommended by the review. In 2022, the Army, Navy, Marine Corp, and Air Force all began the process of setting up the special trial counsel offices, anticipating the amendment to the UCMJ.[2] Senior officials of the Biden administration described the order as “the most sweeping change to the military legal code since it was adopted in 1950.”[2]

Many Commanders of the U.S. Military remain critical of the reform efforts, and defense leaders at the Pentagon repeatedly rejected the idea of moving prosecutorial decisions outside the military’s chain of command. Leaders of the U.S. Military argued that removing prosecutorial discretion from commanders could both erode their authority and diminish order within their units.[3] Oppositely, several members of Congress have alleged that at times, commanders were willing to ignore or overlook incidents of sexual abuse that occurred within their units to protect the accused from legal consequences, and there exists evidence to back these claims.[2] In April, 2023, the Department of Defense released a report showing that the number of sexual assault cases resolved through court-martial reduced from 71% in 2013, to just 37% in 2022. Instead of pursuing action to discharge or criminally prosecute the offenders, many of these cases were handled through administrative action such as separation of the offender from their victim.[3] At the time of this report, it was still at the discretion of commanding officers whether to proceed with a court-martial.

President Biden’s executive order not only eases the strain of prosecuting service members for their crimes, but it also includes rules and regulations that will govern the newly formed Offices of Special Trial Counsel. Specifically, it is clearly stated that the decisions made by the Special Trial Counsel must be independent from the military chain of command, and that these decisions are legally binding.[4] Further, the order also delineates the relationship between the counsel and commanding officers for the purpose of protecting the counsel’s independence. Finally, it creates a uniform evidence standard for non-judicial punishment actions, meaning that even if the Special Trial Counsel refuses to criminally prosecute an offense, the perpetrator may still receive punishment from within the military if sufficient evidence exists to substantiate the victims claims.[4]

It is the belief of many that sexual crimes have no place in the United States Military, especially considering the heightened standard of behavior enlisted individuals are held to. Although military leaders have taken steps to increase the safety and ease of reporting sexual crimes in the past, they have ultimately seen little success in reducing the number of these offenses. In fact, increases in sexual crime is cited as a prominent reason for the military struggling to meet their recruitment goals in years past.[3] The overall goals of implementing change to the prosecutorial procedure of military special victims’ crimes is to restore faith in the reporting system, and to hold offenders accountable for their actions. At the very least, this executive order is a step in the right direction towards achieving these goals.

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[1] Chappell, B. (2023, July 28). Biden implements sweeping changes to how the military handles sexual assault cases. Npr.org. https://www.npr.org/2023/07/28/1190731402/military-code-sexual-assault-biden-gillibrand

[2] Copp, T. (2023, July 28). Biden signs an order designed to strengthen protections for sexual assault victims in the military. Apnews.com. https://apnews.com/article/sex-assault-military-biden-prosecutor-justice-df9fef0cfa91c5badbd141c2a13466d0

[3] Slayton, N. (2023, January 29). Biden signs executive order changing how military handles serious criminal cases including sexual assault [Updated]. Taskandpurpose.com. https://taskandpurpose.com/news/biden-executive-order-military-sexual-assault/

[4] Coudriet, C. (2023, July 30). White House changing rules for prosecuting military sexual assault. Thedailynewsonline.com. https://www.thedailynewsonline.com/news/white-house-changing-rules-for-prosecuting-military-sexual-assault/article_99597dff-7598-5a29-a842-edff9ebc7927.html

[5] Baldor, L. C. (2021, April 22). Panel: End commanders’ power to block military sex cases. Apnews.com. https://apnews.com/article/sexual-assault-lloyd-austin-government-and-politics-13077b68cbaf65e8ad862a00aa3c5552

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Evaluating Significant Decisions from the 2022-2023 Supreme Court Term

By Jacob Caskie, Bloomsburg University of Pennsylvania Class of 2023

August 9, 2023

The United States Supreme Court reviews only a few dozen legal cases every year, however, the significance of these cases is often immense. In the 2022-2023 Supreme Court term, the Justices reviewed fifty-two cases in total, and issued rulings on cases involving free speech, religious accommodations, University admissions, and true threats. The Supreme Court’s 2022-2023 term concluded on June 28th, 2023, and the court is now in recess until October. Due to the importance of several rulings made during this term, it seems fitting to evaluate some of the decisions made by the court and analyze their significance. Each case analysis will be separated, and will include a review of the case background, arguments made by the petitioners and respondents, and finally, the holding issued by the Supreme Court. 

[1] 303 Creative LLC et al. v. Elenis et al. 600 U.S. ___ (2023)

            Lorie Smith owns a graphic design business, 303 Creative LLC, in Colorado and wanted to expand her business to include website design for couples seeking wedding websites. She worried, however, that the Colorado Anti-Discrimination Act (CADA) would compel her to create websites that celebrate marriages between individuals of the same sex, which she does not endorse due to her religious beliefs. CADA prohibits “all public accommodations” from denying “the full and equal enjoyment” of its services to any customer based on his race, creed, sexual orientation, or other statutorily enumerated trait. Either state officials or private citizens may seek enforcement action for the statute. Ms. Smith filed a lawsuit with a Colorado District Court seeking an injunction that would prevent the state from forcing her to create websites celebrating marriages that defy her religious belief: That marriage should be reserved for the unification of a man and a woman. Before the District Court, Ms. Smith stated that she is willing to work with people regardless of their sexual orientation and will create graphics for them without protest. She added that she will not, however, produce content that “contradicts biblical truth” regardless of who orders it. Ms. Smith stated that her view of marriage is a sincerely held conviction, and that her services “express 303 Creative’s message celebrating and promoting her view of marriage” as she is the sole employee. The State of Colorado rebutted that Ms. Smith’s case does not implicate pure speech, but rather the sale of an ordinary product that should be available to not some, but all, and that any burden on her speech is purely “incidental”. The state also insisted that Supreme Court precedent from Rumsfeld v. FAIR, 547 U.S. supports their argument.

            The District Court held that Ms. Smith was not entitled to the injunction in which she sought, and the Tenth Circuit Court of Appeals affirmed. A divided panel cited that the state had shown a compelling government interest in forcing Ms. Smith to create speech, and that no reasonable alternative existed, satisfying the criteria for strict scrutiny. The Supreme Court granted certiorari and reviewed the Tenth Circuit’s disposition.

            The Supreme Court began by reviewing several cases that were argued on similar grounds as Ms. Smith’s. In West Virginia Board of Education v. Barnette 319 U.S. 624, 642, The Supreme Court held that West Virginia’s efforts to compel schoolchildren to salute the American Flag during the Pledge of Allegiance “invaded the sphere of intellect and spirit, which it is the purpose of the First Amendment… to reserve from all official control.” In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, the court held that a Massachusetts public accommodations statute was not able to compel veterans organizing a parade to include a group of homosexual individuals because the parade itself was protected speech and requiring them to include a group they wished to exclude would “alter the expressive content of their parade”. Finally, in Boy Scouts of America v. Dale 530 U.S. 640, 660-661, the court held that the Scouts’ decision to exclude a homosexual man from participation was entitled to First Amendment protection, because the Boy Scouts are an “expressive association”. The Supreme Court stated these cases illustrate that the First Amendment protects an individual’s right to speak his mind regardless of the government’s belief on intention or sensibility.

            The Supreme Court agreed with the Tenth Circuit in many aspects, including that the websites Ms. Smith seeks to create qualify as pure speech, which is protected by The First Amendment. The Supreme Court further recognized that Colorado sought to compel Ms. Smith to speak in ways that align with its beliefs but defy her own conscience, and since The First Amendment “envisions the United States as a place where people are free to think and speak as they wish,” the court ruled that Colorado cannot compel Ms. Smith to create websites for marriages she does not endorse.

[2] Students for Fair Admissions, Inc. v.  President and Fellows of Harvard College, 600 U.S.___ (2023) 

            Harvard College and the University of North Carolina (UNC) are two of the oldest and most prestigious educational institutions in the United States, and while thousands of students apply to these institutions annually, only a small percentage are accepted to attend. Admission to these institutions is dependent on many variables including, but not limited to, the applicants’ academic prestige, extracurricular involvement, recommendation letters, and even their race. Students for Fair Admissions (SFFA), a nonprofit organization that seeks to “defend human civil rights secured by law” filed two separate lawsuits against Harvard and UNC, arguing that the race-based admissions used by these institutions violate Title VI of the Civil Rights Act of 1964, and the Equal Protections Clause of The Fourteenth Amendment. The respondents’ claim that SFFA lacks standing due to their lack of membership organizational status was rejected by the court.

            Separate bench trials found that both admissions programs were lawful under the Equal Protections Clause and Supreme Court precedent. The Supreme Court granted certiorari for the Harvard case after the First Circuit Court of Appeals affirmed judgment, and for the UNC case prior to an issued judgment.

            The Supreme Court began by reviewing the admissions processes used by both institutions. At Harvard, each application is screened by a “first reader” who assigns a numerical score to applicants in six different categories, including one titled “overall”. Overall is a compilation score of the preceding categories, where the reader can, and does take applicant race into consideration. Harvard’s subcommittees then review applications by geographic area, and make recommendations to the admissions committee, who also takes race into account. When deliberations begin, applicants are grouped by race to prevent “a dramatic drop-off” in minority admissions. Applicants who receive a majority of the committee’s votes are tentatively accepted for admission, and at the conclusion of voting, the racial composition of the acceptance pool is disclosed to the committee. Then begins the “lop” process, where the tentatively accepted applicants are winnowed, and race is again a deciding factor. UNC’s admission process is like that of Harvard’s. Applications are first read by an admissions office reader who assigns a numerical score to multiple categories and is required to consider applicant race. The reader then makes a recommendation, which can be aided by the applicant’s race. A “school group review” is then conducted where this recommendation is either approved or rejected. In making these final decisions, the race of the applicant can be a deciding factor.

            The justices then turned their focus to the Fourteenth Amendment and the Equal Protections Clause. Prior decisions of the court had interpreted the Equal Protections Clause as a guarantee that “all persons, whether colored or white, shall stand equal before the laws of the states.” Exceptions to this standard must withstand strict scrutiny. Further, citing Brown v. Board of Education, 347 U.S. 483, the court stated the decision of this case was clear in ruling that education “must be made available to all on equal terms.” Although the court recognized that precedent allows race-based admissions decisions at universities, they also acknowledged the attached limitations: That the programs must comply with strict scrutiny, applicant race may not be used negatively, and that there must be a “logical end point.”

            After review of both admissions systems, the court determined that the universities had fallen short of the burden to operate their programs in a manner that is “sufficiently measurable to permit judicial review.” Citing the respondents’ goals for race consideration, the court found immeasurable how the specific ethnic mix of a student body can further produce these goals. The court’s opinion also asserts that the admissions processes fail to create a connection between their methodology, and their goals, specifically noting that the racial classifications the institutions use are overbroad, arbitrary, and underinclusive. Secondly, the universities’ admissions systems fail to comply with the Equal Protections Clause, which states that race may not be used as a negative, nor a stereotype. The First Circuit Court found that Harvard’s consideration of race resulted in reduced admissions for specifically Asian students, and the Supreme Court found that by considering race, the universities were engaging in the stereotype that “students of a particular race, because of their race, think alike.” Finally, the court reasoned that the universities’ race-based admissions lack an end point, which was required by the decision of Grutter v. Bollinger, 539 U.S. 306, 326. Respondents’ argued that they will end their race considering programs when their goals have been met, or once meaningful representation occurs, which the court had found immeasurable. 

            Due to the respondents’ lack of measurable objectives requiring race consideration, use of applicant race in a negative manner, use of stereotyping, and lack of a logical end to race consideration, the Supreme Court found the admissions programs impermissible under the Equal Protections Clause of the Fourteenth Amendment.

[3] Counterman v. Colorado 600 U.S.___ (2023)

            Billy Counterman sent hundreds of Facebook messages to a local singer named “C.W.” from 2014 to 2016. The two had never met, and C.W. made repeated attempts to block Counterman from contacting her through the platform. Each time, Counterman created a new Facebook account and continued sending her messages, several of which pictured harm befalling her. C.W. claims this activity put her in fear and halted her daily activities, which ultimately caused her to notify law enforcement. The state of Colorado charged Counterman under a statute that prohibits making any form of repeated communication in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress." Counterman moved to dismiss these charges on First Amendment grounds, claiming that his messages were not “true threats” and because of this, cannot be the basis for criminal prosecution.

             The trial court rejected this argument following Colorado law, which uses a “reasonable person” standard and found that Counterman’s statements were indeed true threats. Counterman was convicted by a jury and appealed, arguing that the state is required to show his subjective intent to threaten C.W. The Colorado Court of Appeals affirmed his conviction, relying on its precedent, and the Colorado Supreme Court denied review. The United States Supreme Court granted certiorari due to division amongst the lower courts regarding the requirement for proof of subjective mindset in true-threats cases.

            First, The Supreme Court reviewed the First Amendment’s restrictions upon the content of speech, including incitement to unlawful conduct, defamation of another, obscenity, and true threats of violence. True threats are classified as “serious expressions” conveying that the speaker intends to “commit acts of unlawful violence.” The existence of this threat is dependent on the conveyance of the statement, yet the court found that the First Amendment still may require the showing of a subjective mental-state of the speaker. Since prohibitions on speech have the potential to deter an individual from creating speech, requiring the state to show proof of a “culpable mental state” or a mens rea can be a tool to prevent this. The court reasoned that such showings are required to punish other areas of unprotected speech. Defamation, while serving no value to this nation, cannot be recovered from unless it can be shown that the speaker made a false statement “with knowledge that it was false, or with reckless disregard of whether it was false or not.” Incitement to unlawful conduct can often incur consequences even if the speaker did not intend to convey violent messages, but the First Amendment still protects that individual from prosecution unless it can be shown that his words were intended to produce unlawful actions. Similarly, obscenity requires proof of the defendant’s mindset, as neglecting scienter would inadvertently affect protected speech. Ultimately, the court ruled that utilizing an “objective ‘reasonable person’ standard” would discourage speech that the First Amendment seeks to protect.

            The Justices then sought to determine the appropriate mens rea for prosecuting true-threats, and found that in this context, a recklessness standard stood sufficient. A person acts recklessly when he “consciously disregards a substantial, and justifiable risk that his conduct will cause harm to another.” The court reasoned that this standard offers wiggle room for protected speech without impeding too many aspects of criminal prosecution for true-threats. While other areas of unprotected speech may require a stronger showing of intent, the court found that is not necessary in cases of true-threats.

            The Supreme Court ruled that Counterman was prosecuted, and convicted under an objective standard that is based on the interpretation of a “reasonable person.” The state was not required to show that Counterman was aware of the threatening nature of his statements, and thus, his conviction violates the First Amendment. The Supreme Court vacated judgment of the Colorado Court of Appeals and remanded the case for further proceedings that require a showing of at least recklessness.

[4] Groff v. DeJoy, Postmaster General 600 U.S. ___ (2023)

            Gerald Groff is an Evangelical Christian who believes for religious reasons that Sundays should be reserved for rest and worship, not work-related duties. Groff was hired to work for the United States Postal Service (USPS) in 2014, and his duties did not typically include working on Sunday. After his employer agreed to start handling Sunday deliveries for Amazon, this changed, and a memorandum was signed by USPS that mandated Sunday duties upon request. Groff requested and was granted transfer to a rural delivery hub in Holtwood, Pennsylvania, who did not make Sunday deliveries. In 2017 however, Amazon deliveries also began at this hub. Groff continued refusing Sunday work, and USPS was forced to hand off his deliveries to his peers. Groff received “progressive discipline” for his refusals, and ultimately resigned in January 2019. Subsequently, Groff sued USPS under Title VII of the Civil Rights Act of 1964, claiming that the service could have accommodated his religious practice “without undue hardship on the conduct of their business.”

            The District Court granted summary judgment to USPS, and the Third Circuit Court affirmed, feeling bound to their holding in Trans World Airlines Inc. v. Hardison, 432 U.S. 63, which ruled that requiring an employer to bear more than “de minimis cost” to provide a religious accommodation is an undue hardship. The Third Circuit found that Groff’s refusal to work “imposed on his coworkers, disrupted workflow, and diminished employee morale.” The Supreme Court granted Groff’s petition for a writ of certiorari.

            The court first reviewed Title VII of the Civil Rights Act of 1964, which made it unlawful for employers to “refuse to hire or terminate any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of religion.” The Equal Employment Opportunity Commission interpreted this as meaning that employers are sometimes required to make accommodations to the religious needs of employees, so long as it does not present “undue hardship” to the business. In 1972, Congress amended Title VII, providing that “religion” includes all aspects of religious observance and belief, and that employers must abide by these guidelines unless they can reasonably show that they are unable to do so without “undue hardship” on the conduct of their business.

            Switching their focus, the court reviewed the decision of Hardison, the basis of the de minimis cost standard. Similarly to Groff, Hardison was hired to work for Trans World Airlines (TWA) in 1967, and he underwent a religious conversion that would entail absenting from work on Saturday’s. This conflicted with his work schedule and attempts at accommodation still presented a substantial burden on the business. His refusal to work concluded with his discharge on ground of insubordination. Hardison sued both his workers union, and TWA, and the Supreme Court granted certiorari. The decision of this case focused little on constitutional issue, rather, it placed prominence on the seniority rights of employee’s, which is also provided by Title VII. Ultimately, the court ruled in Hardison that requiring TWA to bear more than “de minimis cost” (i.e., something so small or trifling that the law will not recognize it) to accommodate religious needs is an undue hardship, and that since there was no alternative solution without revoking the seniority rights of others, they were not required to accommodate.

            The Supreme Court, applying aspects of Hardison to their review of Groff, concluded that TWA’s undue hardship defense in Hardison continually referenced proffered accommodations as “substantial burdens.” Therefore, the court reasoned that an “undue hardship” is presented when a burden is “substantial in the overall context of an employer’s business” rather than “more than a de minimis cost.” Further, the court asserted that Title VII requires that employers reasonably accommodate an employee’s practice of religion, not that it simply assesses the reasonableness of said accommodations. Specifically, the majority found that USPS had not considered the totality of the accommodations it was able to provide to Groff.

            The Supreme Court held that the Third Circuit court utilizing a “more than de minimis cost” test may have led them to neglect numerous possible accommodations. Since this test was discovered to be flawed by the justices, the judgment of the Third Circuit Court was vacated, and Groff’s case was remanded for further proceedings.

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[1] 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)

https://caselaw.findlaw.com/court/us-supreme-court/21-476.html

[2] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. ___ (2023)

https://caselaw.findlaw.com/court/us-supreme-court/20-1199.html

[3] Counterman v. Colorado, 600 U. S. ___ (2023)

[4] Groff v. DeJoy, 600 U. S. ___ (2023)

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Social Media and The First Amendment: Protecting Online Free Speech

By Jacob Caskie, Bloomsburg University of Pennsylvania Class of 2023

July 16, 2023

Social media usage has undeniably exploded over the past decade, and as more individuals flock to platforms such as Instagram, Twitter, and Tik Tok, the threat of misinformation appearing online will inevitably increase. Although many people fear that such misinformation holds the potential to harm public knowledge on pressing topics, many also believe that censoring, removing, or deleting posts that contain misinformation is a violation of the author’s right to free speech, which is protected by the First Amendment of the U.S. Constitution. Recently, on July 4th, 2023, a preliminary injunction was issued by Louisiana District Court Judge Terry Doughty, which bars numerous federal agencies and departments from interacting with social media companies for the purpose of deleting suppressing, or removing content that contains protected free speech. This preliminary order has been met with praise from advocates of free speech, as well as criticism from individuals whose goal is combatting dangerous online misinformation.

On May 5th, 2022, the Attorneys General of Missouri and Louisiana filed Missouri, et al. v. Biden, et al., a lawsuit in which they argued that the Biden administration, as well as multiple agencies of the federal government have been attempting to suppress and censor free speech on various social media platforms. Specifically, the plaintiffs allege that much of the censored content was regarding COVID-19 vaccine efficacy, and election conspiracy.[1] The lawsuit was filed in The United States District Court for the Western District of Louisiana, and the plaintiffs’ motion for discovery was granted on July 12th, 2022.[4] Subsequently, General Bailey (MO) and General Landry (LA) gathered documents and deposed officials of the federal government regarding their communication with social media companies.[4] Bailey and Landry filed their motion for preliminary injunction on March 26th, 2023, citing over twenty thousand pages of evidence that indicate top officials in the federal government coerced, and colluded with social media companies in effort to violate Americans’ First Amendment rights.[4] Judge Doughty granted the plaintiffs motion for preliminary injunction, and noted in his one hundred fifty page memorandum that if the allegations presented in this case are true, then the Federal Government “blatantly ignored the First Amendment’s right to free speech.”[4]

Numerous officials of the executive branch, and several Federal agencies including the US Departments of Justice, Human Health Services, and State; the Centers for Disease Control and Prevention, and the Federal Bureau of Investigation are no longer permitted to communicate with social media companies about moderating content that appears on their platforms according to the temporary injunction.[2] Also included in the order is a list of platforms barred from communicating with the government about these topics. To name a few, Facebook/Meta, Twitter, YouTube/Google, Instagram, TikTok, Snapchat, Redditt, Pinterest, LinkedIn, Quora, Twitch, Discord, and Tumblr are all named in the injunction, as well as “other like companies.” Exceptions to the order include exercising permissible government speech and communicating with companies about non-protected speech such as criminal activity.[2]

Although this may seem like a victory to Americans who advocate for free speech, many legal scholars have claimed that there is no precedent to support the courts order. Jonathon Turley, a professor at George Washington University Law School who has harshly criticized government censorship efforts even acknowledged that the injunction “will have a difficult time on appeal, because it is such a rare and novel order.”[1]. Others have claimed that while the case does raise serious concerns regarding free speech suppression, Doughty’s order does not offer a way of separating legitimate government claims from illegitimate government coercion.  Accordingly, the Biden administration filed a notice with the 5th Circuit Court of Appeals on July 5th, 2023, stating its intention to appeal the judge’s order.[1]

On appeal, the 5th Circuit court will review the ruling issued by Judge Doughty which states that the federal government violated the First Amendment. Moreover, they will review whether the order he issued was either too broad, or necessary to protect the first amendment rights of the plaintiffs.[1] The Biden administration has argued that the plaintiffs are no longer at a risk of harm, as the communications outlined in the lawsuit concluded over one year ago. Additionally, the Biden administration maintains that they did not compel companies to remove online posts nor tell them how to set policies. Instead, they claim that while the administration urged companies to stop the spread of dangerous misinformation, the companies ultimately made their own decisions when removing or suppressing content. Doughty was not persuaded by these arguments, however, and found that the companies were “effectively coerced” by the threat of retaliation from government officials.[1]

The judgement acknowledged much of the States’ evidence suggesting that online censorship activity from the federal government occurred, and multiple instances are highlighted in the court order. Firstly, the order recognized that almost all of the censorship presented in this case targeted conservative speech.[3] The order also outlined coercion efforts made by White House officials to social media companies regarding the suppression of misinformation, though the judge acknowledged that the coercion was not necessarily explicit in nature. One White House official accused Facebook of causing “political violence” by failing to censor false COVID-19 claims, and President Biden stated that social media platforms were “killing people” when asked about their COVID-19 moderation efforts.[3] The injunction also mentions that The White House demanded additional data and a consistent point of contact with social media company Facebook, as well as censorship policies for their sister platform WhatsApp.[3] In response to these demands, Facebook claimed that it was censoring, removing, and reducing the virality of content posted to their website, even though it did not contain “actionable misinformation”.[3] Although much of the content allegedly censored targeted subjects such as COVID-19, and election integrity, the plaintiffs also claim that topics such as climate change, abortion and gender discussion were also censored at the request of the federal government.[3]

Regardless of one’s political standpoint, it can be agreed that the government infringing upon Americans’ right to free speech is a threat to our nation. Indeed, Benjamin Franklin quoted an abstract from the London Journal which reads “Whoever would overthrow the liberty of a Nation, must begin by subduing the freeness of speech.”[5] Excluding the commonly known exceptions such as defamation, threats, fraud and fighting words, the Free Speech Clause of the First Amendment guarantees every citizen the right to protected free speech. Despite this fact, it remains the belief of many citizens that widespread misinformation holds the potential to cause severe damage, and that suppressing such misinformation will protect public health and safety. Although the issues presented in this case allegedly target largely conservative values, the issue of protecting the right to free speech is not one of political alignment; rather it is an issue that effects the daily lives of all Americans. Of course, the injunction from the court remains merely temporary pending appeal, but at the minimum, it is beneficial that the courts system is reviewing this crucial constitutional issue.

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[1] Pierson, B., & Goudsward, A. (2023, July 6). Order limiting Biden officials' social media outreach on shaky legal ground, experts say. Reuters.com. https://www.reuters.com/world/us/order-limiting-biden-officials-social-media-outreach-shaky-legal-ground-experts-2023-07-06/

[2] Wamsley, L., & Bond, S. (2023, July 5). U.S. Is barred from combating disinformation on social media. Here's what it means. Npr.org. https://www.npr.org/2023/07/05/1186108696/social-media-us-judge-ruling-disinformation

[3] Missouri, et al. v. Biden, et al., No. 3:22-cv-01213-TAD-KDM (D. LA. 2023) https://ago.mo.gov/docs/default-source/press-releases/missouri-v-biden-ruling.pdf

[4] Bailey, A. (2023, July 5). Missouri Attorney General Andrew Bailey Obtains Court Order Blocking the Biden Administration from Violating First Amendment. Ag.mo.gov. https://www.ago.mo.gov/home/news/2023/07/05/missouri-attorney-general-andrew-bailey-obtains-court-order-blocking-the-biden-administration-from-violating-first-amendment#:~:text=Missouri%20v.%20Biden%20was%20filed,witnesses%20from%20the%20Biden%20Administration.

[5] “Silence Dogood, No. 8, 9 July 1722,” Founders Online, National Archives, https://founders.archives.gov/documents/Franklin/01-01-02-0015. [Original source: The Papers of Benjamin Franklin, vol. 1, January 6, 1706, through December 31, 1734, ed. Leonard W. Labaree. New Haven: Yale University Press, 1959, pp. 27–30.]

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The ‘Independent State Legislature Theory’ Explained

By Jacob Caskie, Bloomsburg University of Pennsylvania Class of 2023

July 7, 2023

Over the past few decades, the topic of election integrity has been one of significant debate. Whether the conflict lies within disputed election results, or disagreement upon the boundaries of congressional maps, politicians and citizens alike consistently challenge the purity of elections in the United States. The latest disagreement among election policy lies among a legal theory known as the ‘Independent State Legislature Theory’ which was drawn from a reading within the U.S. Constitution. Proponents of the theory contend that, according to Art. I, §4 cl.1 of the U.S. Constitution, state legislatures are granted the exclusive, unfettered authority to regulate federal elections, and are exempt from the process of judicial review. Although the constitution does delegate to state legislatures the power to regulate elections for senators and representatives, the Supreme Court of the United States rejected the independent state legislature theory on June 27th, 2023, after North Carolina lawmakers petitioned for its acceptance.

The legality of the independent state legislature theory has long been debated, and this ultimately begs the question, what does the theory suggest? Well, the U.S. Constitution delegates the authority to administer federal elections to state legislatures, and this authority is subject to congressional override.[1] A number of advocates have recently pushed for the theory’s acceptance, as it contends that state legislatures are granted the broad power to regulate multiple aspects of federal elections, including the re-structuring of electoral maps, and the passing of strict voting requirements.[1] There are two relevant clauses to the theory listed within the federal constitution. First, the Elections Clause of Art. I, §4 asserts “The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the congress, may at any time by law, make or alter such regulations.” Secondly, the Presidential Electors Clause of Art. II, §1 reads “Each state shall appoint, in such a manner that the legislature thereof may direct, a number of electors.” How one defines the reading of the term ‘legislature’ is the root of the theory’s debate.

For long, ‘legislature’ has commonly been interpreted as a term referring to any state’s lawmaking process, including all limitations and procedures listed in the state’s constitution. According to this traditional interpretation, if a state’s constitution subjects legislation to being blocked via gubernatorial veto or a citizen’s referendum, then election laws can be blocked using the same means.[1] Further, the state’s courts would also then be responsible for ensuring that laws regulating federal elections, like all laws, comply with the limitations listed in the state constitution.

Advocates for the Independent State Legislature Theory, however, reject this definition of the term ‘legislature’ and believe that it refers to the group of elected representatives responsible for creating and passing laws within a state.[1] This interpretation would then suggest that, according to the U.S. Constitution, the legislative body of any state would be given the exclusive, and nearly unchecked power to regulate federal elections. Acceptance of this definition could then allow legislators to bypass certain limitations listed in state constitutions and do so without review from the state’s court system.[1]

In Moore v. Harper, 600 U.S. (2023), the Independent State Legislature Theory was argued to the United States Supreme Court by North Carolina lawmakers. The lawsuit stemmed from the creation of a new federal congressional map drawn by North Carolina’s General Assembly, which many groups of advocates challenged as an “impermissible partisan gerrymander”.[4] In February 2022, the North Carolina Supreme Court agreed with these claims, and ruled that the newly drawn congressional map violated the state’s constitution. The North Carolina Supreme Court reversed its position that April however, stating that the claims of partisan gerrymandering were nonjusticiable. The court did not reinstate the original congressional map, and the Supreme Court of the United States agreed to hear the case due to the ongoing dispute.[3] As a part of their review, the court first had to decide whether they had jurisdiction to hear the case, since the North Carolina Supreme Court had already overruled its initial judgement.

After determining jurisdiction to hear the case, the United States Supreme Court specifically reviewed Art. I, §4, cl. 1 of the U.S. Constitution to determine whether state legislatures are granted the authority to set rules governing federal elections, while also remaining free from restrictions imposed by state law. In a 6-3 decision, it was the ruling of the high court that “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review”.[4] This decision rejected the Independent State Legislature Theory by ruling that state legislatures must follow the standard limitations outlined in state constitutions and face judicial review from state courts if necessary. In the court’s opinion however, Chief Justice John Roberts cautioned that state courts do not have “free reign in their reviews”. “State courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections,”[3] Justice Roberts continued. In furtherance of this warning, the court’s decision also noted that “federal courts must not abandon their own duty to exercise judicial review”[4]

Although the majority of the U.S. Supreme Court Justices joined the opinion of this case, dissenting Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito did not; and their opposition was addressed by Justice Roberts in the court’s opinion. The dissenters argued that because the U.S. Constitution gives state legislatures the power to regulate federal elections, only that constitution can restrain said power. According to Justice Roberts, “This argument simply ignores the precedent”[3] Robert’s also wrote that the constitutional framers’ recognized that “legislatures are the mere creatures of the state constitutions and cannot be greater than their creators.”[3] Justice Thomas, writing for the dissent, stated that the case should have been dismissed due to mootness since a state court had already made a ruling on all claims, leaving no controversy to be argued. Most of the justices believed otherwise, and the court ruled that according to Art. III, §2 of the U.S. Constitution, the court held the duty to hear the case due to a live controversy regarding partisan gerrymandering.[5]

The decision of this case can certainly be described as important, as it both protects the integrity of elections in the United States and emphasizes the fundamental principle of judicial review as a check and balance. Although there still exists dispute regarding the decision of this case, many feel as though democracy was protected by rejecting the Independent State Legislature Theory.

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[1] Herenstein, E., & Wolf, T. (2023, June 6). The 'Independent State Legislature Theory,' Explained. https://www.brennancenter.org/our-work/research-reports/independent-state-legislature-theory-explained

[2] Wang, H. L. (2023, June 30). What the Supreme Court's rejection of a controversial theory means for elections. NPR.org. https://www.npr.org/2023/06/28/1184631859/what-the-supreme-courts-rejection-of-a-controversial-theory-means-for-elections

[3] Weiss, D. C. (2023, June 27). Supreme Court rejects 'independent state legislature' theory, rules state courts may review congressional maps. Abajournal.com. https://www.abajournal.com/web/article/supreme-court-rules-in-case-raising-independent-state-legislature-theory

[4] Moore v. Harper, 600 U.S. (2023) https://www.supremecourt.gov/opinions/22pdf/21-1271_3f14.pdf

[5] Frederick, S. (2023, June 27). Supreme Court Unpersuaded by the Independent State Legislature Theory. Ncsl.org. https://www.ncsl.org/state-legislatures-news/details/supreme-court-unpersuaded-by-the-independent-state-legislature-theory

[pennsylvaniaprelawland-blog]

U.S. V. Trump and Nauta: The Law of Indicting a Former Sitting President

By Jacob Caskie, Bloomsburg University of Pennsylvania Class of 2023

June 25, 2023

Former President of the United States Donald Trump was indicted and arraigned on Tuesday, June 13th for thirty-seven felony counts relating to his retention of classified documents, pleading not guilty to all charges. Trump was indicted alongside his longtime personal aid, Waltine Nauta, who was charged as a co-conspirator in the alleged crime but was not arraigned due to his lack of a local attorney. The importance of this indictment cannot be neglected, as Trump is preparing another campaign for Presidency in the upcoming 2024 election. Thirty-one of the charges looming against the former president claim he acted in violation of 18 U.S.C. § 793(e), also known as The Espionage Act; a crime that no president has ever been charged with. Considering the severity of these allegations, it seems just to unpack the legal details that surround them.

Federal prosecutors, led by special counsel Jack Smith, have indicted Trump on the suspicion that he removed, retained, and communicated to unauthorized individuals highly sensitive information upon his departure from office in January 2021. The indictment further claims that Trump obstructed multiple attempts made by investigators to retrieve these documents from his estate in Mar-a-Lago.[2] The indictment was filed after the Federal Bureau of Investigation executed a search warrant on Trump’s Mar-a-Lago residence, and located around thirteen-thousand government records, over one hundred of which were marked as ‘top-secret’ or otherwise classified.[1] According to the indictment, many of mishandled documents concerned aspects of foreign and US military activities, as well as information regarding US nuclear weapons programs.[6] Also located within the boxes of material were various news clippings, photos, and other personal effects of the former president.

In 2022, an investigation was opened into Trump’s retention of classified material after leaving office. The U.S. National Archives and Records Administration repeatedly contacted Trump’s legal team requesting that the documents in his possession be returned, but only fifteen boxes of material were initially delivered. The Justice Department once again attempted to retrieve the remainder of the missing documents via subpoena, however, Trump only delivered an additional thirty-eight pages of classified material.[1] A representative for Trump’s legal team stated that all classified records were returned by this point, however, this information was later discovered to be false.[2] The remaining classified records were only retrieved after the FBI’s search of Trump’s residence in August 2022.[1] 

In addition to the thirty-one counts that allege Trump illegally retained these documents, six other charges were filed alleging Trump, with assistance from Nauta, attempted to obstruct the ensuing investigation by relocating and concealing records from investigators.[2] Trump had allegedly ordered Nauta and other members of his extensive staff to move boxes of government records to his Mar-a-Lago estate, where they were kept in ‘disarray’ among several unsecured locations. After being subpoenaed, Trump allegedly suggested that his attorney “hide or destroy” documents requested and had him falsely sign an affidavit stating that all government records were returned.[6] Furthermore, Nauta allegedly made false statements to investigators when denying knowledge of the movement of classified material, even though communication pertaining to the movement of the documents allegedly exists.[3] 

The bulk of the charges filed against Trump claim that he violated 18 U.S.C. § 793(e), or the Espionage Act. The Espionage Act criminalizes the retention, transmission, and communication of national defense information that the possessor reasonably believes could be used to the injury of the United States.[4] Provision (e) specifically applies to individuals with “unauthorized possession” of national defense information and criminalizes the communication, willful retainment, and failed delivery of this information to officers of the United States government.[4] By charging Trump in violation of this part of the statute, prosecutors are alleging that he was unauthorized to possess the documents and that he failed to deliver them to the proper government officials upon request. It is also alleged in the indictment that on two separate occasions, Trump had communicated information within the documents to individuals without necessary security clearances.[6]

It is important to note that according to the statute, the prosecution must prove beyond a reasonable doubt that Trump willfully retained these documents; however, provision (e) lacks the requirement of proving that the defendant intended to harm the United States. Instead, the prosecution need only prove that Trump “reasonably believed” that the information in his possession “could” lead to injury of the United States, thereby minimizing the mens rea required to prosecute him.[5]

Many experts have described the evidence against Trump as compelling, especially considering that intent to harm need not be proved to obtain a guilty verdict. The very nature of government records being classified in the first place can lead a reasonable person to believe that the information enclosed is secretive and could potentially lead to the injury of the United States. The prosecution will also likely present evidence to show that Trump was not entitled to retain the documents after leaving office, as 44 U.S.C. § 2202 states “The United States shall reserve and retain complete ownership, possession, and control of Presidential records”.[7]  The verbiage of this statute makes clear that a president departing from office is prohibited from retaining “presidential records”, which have somewhat of a broad classification. By law, presidential records are documentary materials created or received by the president, or by other members of the executive office, that affect the carrying out of constitutional, statutory, official, or ceremonial duties of the President.[7] Although there is no enforcement mechanism for violating this statute, the prosecution will likely use it to its advantage in order to prove Trump was not authorized to retain the records.

Considering that his case is pending trial, it is unclear whether the future holds a conviction for Donald Trump’s misconduct. The numerous allegations he is faced with do indeed paint a very compelling case for the prosecution, however, it can be assumed that Trump’s defense counsel will attempt to diminish both the willful nature of the document’s retention and the alleged obstruction of the investigation. For now, Trump is maintaining his campaign for Presidency in the 2024 elections, but a conviction for these suspected crimes could spell a very different story for the former President.

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[1] Lynch, S. N. (2023, June 13). What might the Espionage Act mean for Donald Trump? Reuters. https://www.reuters.com/world/us/what-is-espionage-act-what-might-it-mean-donald-trump-2023-06-11/

[2] (2023, June 13). Tracking the Trump criminal cases. Politico. https://www.politico.com/interactives/2023/trump-criminal-investigations-cases-tracker-list/#classified-documents

[3] Pereira, I. (2023, June 13). Trump federal indictment: How serious are obstruction charges? ABC news. https://abcnews.go.com/US/trump-federal-indictment-obstruction-charges/story?id=100020565

[4] Legal Information Institute (n.d.). 18 U.S. Code § 793 - Gathering, transmitting or losing defense information. Law.Cornell.edu. https://www.law.cornell.edu/uscode/text/18/793

[5] Blake, A. (2023, June 13). Does Trump’s motive matter for the Espionage Act? Washingtonpost.com. https://www.washingtonpost.com/politics/2023/06/13/does-trumps-mental-state-matter-espionage-act/

[6] Pompilio, K. (2023) Trump Mar-a-lago indictment unsealed, Lawfare. Available at: https://www.lawfareblog.com/trump-mar-lago-indictment-unsealed

[7] Legal Information Institute (n.d.). 44 U.S. Code § 2201 - Definitions. Law.Cornell.edu. https://www.law.cornell.edu/uscode/text/44/2201

[pennsylvaniaprelawland-blog]

Expungement Cases in the Aftermath of COVID-19

By Matthew Klausner, University of Pennsylvania Class of 2026

June 21, 2023

In legal terms, an “unlawful detainer” is an eviction lawsuit where a landlord sues a tenant for failing to pay their rent and continuing to live on their property. During the COVID-19 pandemic, the number of unlawful detainers skyrocketed as many individuals deemed non-essential workers found themselves jobless and unable to pay their rents. To prevent a crisis of mass-evictions, the Virginia state government passed several laws that aimed to help keep tenants on their feet and in their homes.

A new law stated that, during the indefinite state of emergency caused by COVID-19, when a landlord sued and moved to evict a tenant for nonpayment of rent, an individual deemed “affected by COVID-19” could postpone the payment of rent for 60 days (Code of Virginia §44-209, shown below). Starting in April 2020, in order for a Summons for Unlawful Detainer to be dismissed, the tenant would have to appear in court and show written proof that they were not earning money as a result of the pandemic, which served as evidence that they were affected by COVID-19. This allowed many tenants to avoid eviction; however, current state law requires that unlawful detainers stay in the court’s records for a minimum of 10 years even if they are dismissed. Therefore, even though many tenants avoided eviction, the accumulation of unlawful detainers on tenants’ records destroyed their credit scores, making it harder for them to find housing and receive loans.

Source: https://trackbill.com/bill/virginia-senate-bill-640-unlawful-detainer-expungement-of-actions-effective-date/1818621/

In order to combat the negative effects of dismissed unlawful detainers on tenants’ credit scores, the Virginia state government passed a new law that took effect in January 2022 (Code of Virginia §8.01-130.01). This law made it possible for people to remove unlawful detainers from their record in a process known as “expungement.” The process for petitioning for expungements of unlawful detainers is rather simple: an applicant needs to fill out a form provided by the state and submit it to the court that originally heard their eviction case. As long as the action to request an expungement is filed at least 30 days after the dismissal of the Summons of Unlawful Detainer, the court will order the expungement of the case from the petitioner’s record. This facilitated the credit restoration process for tenants who were negatively impacted by COVID-19. 

This is the form that can be used to petition for an expungement in Virginia:

Source: https://www.vacourts.gov/forms/district/dc425.pdf.

The ability to expunge dismissed unlawful detainers from tenants’ court records is significant because it can drastically improve their credit scores, with many individuals eligible for several expungements. However, many eligible applicants remain unaware that they have this tool at their disposal. Furthermore, many unlawful detainers that are eligible for expungements remain on tenants’ records because the burden to petition for an expungement is placed on the tenant rather than the government. If someone doesn’t know to apply, the case will stay on their record, and their credit score will not improve. Because of this, various legal aid organizations have organized expungement clinics for eligible applicants. Central Virginia Legal Aid Society, for example, has recently conducted several expungement clinics to help spread awareness for this issue and help as many eligible individuals as possible. 

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Matthew Klausner is a rising sophomore at the University of Pennsylvania. He is majoring in Political Science and Hispanic Studies, with a minor in Survey Research and Data Analytics. After finishing college, he hopes to attend law school and pursue a career in either civil rights or immigration law. ______________________________________________________________

https://legal-dictionary.thefreedictionary.com/Unlawful+Detainer

https://law.lis.virginia.gov/vacode/title8.01/chapter3/section8.01-130.01/

https://www.vacourts.gov/forms/district/dc425.pdf

https://trackbill.com/bill/virginia-senate-bill-640-unlawful-detainer-expungement-of-actions-effective-date/1818621/

https://www.valegalaid.org/resource/expungements-in-virginia

https://cvlas.org/wp-content/uploads/2023/05/expunging-eviction-dismiss-nonsuit-2022.pdf

https://cachcoc.org/wp-content/uploads/2020/11/new-landlord-tenant-laws-v7-2020-CVLAS.pdf

[pennsylvaniaprelawland-blog]

The Legal Ethics of Chat GPT

By Komal Chranya, University of Pittsburgh Class of 2025

June 21, 2023

A recent wave of users has begun to make use of and depend on an artificial intelligence chatbot known as Chat GPT. Chat GPT was developed by extensive AI research by company OpenAI. It is a natural language processing tool that has been added to Microsoft Corporation technology. The chatbot is a Generative Pre-trained Transformer, also referred to as GPT, that is a specialized algorithm “for finding long-range patterns in sequences of data” [1]. A transformer is designed to predict the next word in a sentence, as well as the next sentence in a paragraph, and even the next paragraph in an essay. The transformer is what allows the tool to stay on topic for long periods of time. It is also essential for the chatbot to learn to mimic grammar, writing structure, and punctuation of human intelligence in order to output essential information back to the user.

Originally, Chat GPT was used in a myriad of ways to enhance one’s productivity. It can be used to get personalized recommendations for things like gym routines or clothing suggestions based on the weather. It can also summarize entire reports or studies and translate texts into 95 different languages [2]. An extremely popular use of this chatbot is to use for school related activities. Chat GPT can understand and explain complicated topics such as quantum computing or organic chemistry and so many other subjects in clear, succinct terms. The artificial intelligence tool can also act as a writing assistant. One can give the chatbot a prompt, such as a work email, college essay, etc., and receive a customized response. Chat GPT can also be used in professional work settings. However, not all information outputted by Chat GPT can be trusted.

In late May 2023, a New York lawyer submitted a brief that cited six non-existent judicial decisions produced by Chat GPT [3]. Steven Schwartz, lawyer at Levidow, Levidow, and Oberman, must reside before the U.S. District Judge P. Kevin Castel after he admitted to using Chat GPT for a brief in a personal injury case for his client against Avianca Airlines. Schwartz said that he “greatly regrets” relying on the technology and that he was “unaware of the possibility that its contents could be false” [3]. The airline’s lawyers alerted the court that the cases cited by Schwartz were non-existent. While the American Bar Association’s Model Rules of Conduct do not address the use of artificial intelligence, several rules regarding ethics still apply.

The duty of competence rule requires that lawyers must provide competent representation and be up to date on new and current technological advances. They also must ensure that any technology they do incorporate into their work provides accurate information [3]. While it is important to be acquainted and familiar with emerging technology, blindly relying on generative artificial intelligence is not clever or efficient.

Another rule is the duty of confidentiality. This rule requires lawyers to prevent unnecessary and unauthorized disclosure of information regarding the representation of the client. Lawyers that use tools such as Chat GPT risk giving companies data and information from their clients in order to improve their models, which could potentially violate confidentiality rules [3]. There are firms that are working on developing internal artificial intelligence tools at their firms.

Overall, chat bots such as Chat GPT have emerged recently and have become extremely popular for its quick, coherent answers to virtually any question. However, it is important to stay attentive toward and cautious of tools like artificial intelligence due to its modernity and recentness. Technology is constantly advancing and there is no doubt that artificial intelligence tools like Chat GPT will continue to grow and improve.

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1.      Regalbuto, Gabriele. “What Is Chatgpt?” Fox News, www.foxnews.com/tech/what-is-chatgpt. Accessed 16 June 2023.

2.      Marr, Bernard. “The Best Examples of What You Can Do with Chatgpt.” Forbes, 2 Mar. 2023, www.forbes.com/sites/bernardmarr/2023/03/01/the-best-examples-of-what-you-can-do-with-chatgpt/?sh=5420a3d8df11.

3.      Person, and Karen Sloan. “A Lawyer Used Chatgpt to Cite Bogus Cases. What Are the Ethics?” Reuters, 30 May 2023, www.reuters.com/legal/transactional/lawyer-used-chatgpt-cite-bogus-cases-what-are-ethics-2023-05-30/.

[pennsylvaniaprelawland-blog]

The Constitutionality of Florida’s Expansion of Capital Punishment

By Jacob Caskie, Bloomsburg University of Pennsylvania Class of 2023

June 14, 2023

On April 20th, 2023, Florida Governor Ron DeSantis signed a bill that eases the criteria necessary to sentence a convict to death, allowing for an 8-4 jury recommendation as opposed to a unanimous recommendation, which was prior law within the state. Additionally, Governor DeSantis introduced a bill on May 1st, 2023, that allows for the imposition of capital punishment against offenders who have committed certain sexual crimes against children. Backlash has surrounded the recent passing of these laws, as they raise serious concerns pertaining to constitutional protections guaranteed to those standing trial for their crimes.

After passing the non-unanimity legislation, Florida now joins Alabama as the only two states to allow for capital punishment imposition without a unanimous jury recommendation.[1] Although Alabama allows for death penalty recommendations that lack a unanimous vote, the state still requires a jury recommendation of at least 10-2 majority. Governor DeSantis’ introduction of this bill is in response to a Broward County jury failing to sentence Nicholas Cruz to death, after he took the lives of seventeen individuals at Stoneman Douglas High School in Parkland, Florida. At the time, a unanimous jury vote was required to impose a death sentence, and the jury voted to spare Cruz’ life in a 9-3 vote.[2] For many, this outcome came as a significant disappointment, particularly due to the common belief that such a systemic massacre is deserving of a death sentence. Former Governor of Florida Charlie Christ is quoted as saying “There are crimes for which the only just penalty is death. The Parkland families and community deserved that degree of justice.”[2]

Although there are proponents to Florida’s non-unanimity law, there are certainly some legal concerns that surround its utilization. Firstly, the American Bar Association (ABA) adopted a policy in 2015, which urges all states that allow for capital sentencing to require a unanimous jury recommendation. The ABA stated, “Empirical studies have revealed that, without a unanimity requirement for a recommendation of death, capital jurors do not devote the same energy or emotional commitment to the discussion among jurors on the ultimate sentencing decision, and pro-death jurors are able to overpower and ultimately silence undecided or minority viewpoint jurors.”[1] Furthermore, Florida also has the most death row exonerations out of any other jurisdiction in the nation, which points to the heightened risk of potential false convictions within the state under the new law.[1] Many were also quick to point out that individuals struggling with mental illness are especially likely to face the threat of false conviction and death sentences, as death-qualified juries are historically less likely to accept insanity defenses during trial.[1] Although this law may seem overtly strict to some, many advocates believe this law will ensure that justice is served correctly to those who commit heinous crimes against society.

Another bill signed by Governor DeSantis regarding capital punishment is facing constitutional scrutiny. On April 18th, The Florida House of Representatives approved of a measure that would allow for people convicted of sexual battery against minors under the age of twelve to face capital sentences in an 80-30 vote. The Florida senate approved the bill on the same day in a 34-5 vote, and Governor DeSantis signed the bill on May 1st , 2023.[1] The controversy surrounding this law is one of Supreme Court precedent. In Kennedy v. Louisiana, 554 U.S. 407 (2008) The Supreme Court of the United States held that the imposition of capital punishment violates the Eighth Amendment’s Cruel and Unusual Punishment Clause unless the victim was intentionally killed during the criminal act.[3] Under Florida’s newly proposed bill, individuals can be sentenced to death upon an 8-4 jury recommendation, even if the victim is not killed during the sexual crime. Apparently, it was clear to both legislature, and DeSantis himself that this bill violates U.S. Supreme Court case law; yet they remain hopeful that the Supreme Court will review the legislation. Indeed, the Florida legislation even points out  that Kennedy was wrongly decided and needs to be reevaluated by the Supreme Court.[1]

In Kennedy v. Louisiana, the defendant Patrick Kennedy was sentenced to death for the rape of his eight-year-old stepdaughter in 2004, and this judgement was upheld by the Louisiana State Supreme Court in Louisiana v. Kennedy, No. 05-KA-1981.[3] Kennedy and his legal team immediately challenged this sentence as a violation of his Eighth Amendment rights, noting that nobody in the United States had been executed for a crime other than homicide since 1964. Alongside Kennedy’s challenge came a series of Amicus briefs filed with the U.S. Supreme Court requesting his sentence be reviewed. Specifically, multiple social-worker organizations argued that capitally sentencing child rapists would harm the abused children rather than help them. The groups expressed concern that setting this precedent would worsen the underreporting of child sexual abuse, increase incentives for offenders to kill their victims, and subject children to an increased number of stressful trials and appeals processes.[3]

Ultimately, the Supreme Court ruled in favor of Kennedy, claiming that the Louisiana statute authorizing his death sentence was in violation of the Eighth, and Fourteenth Amendments of the U.S. Constitution. In a 5-4 majority decision, Justice Anthony Kennedy delivered the high court’s opinion, stating “Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.”[4]

With the proposal of two separate legislations attempting to expand capital sentencing within Florida, it appears that the state is aiming towards a ‘tough on crime’ agenda. Though there are advocates for the introduction of these laws, it is clear based upon the rarity of non-unanimity laws, and the ruling of Louisiana v. Kennedy that the laws raise both ethical, and constitutional worries. All in all, capital punishment itself is designed to be reserved for heinous crimes against society, for which the only way to receive true justice is the offender’s death. Considering the numerous legal concerns of these legislations, Florida is likely to face difficulty when attempting to enforce them.

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[1] Berg, N., & Shokoor, J. (2023, May 4).  Florida’s Multifaceted Expansion of the Death Penalty Raises Constitutional Concerns. Americanbar.org. https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/florida-expands-the-death-penalty/#

[2] Death Penalty Information Center (2022, October 13). Non-Unanimous Florida Jury Sentences Nikolas Cruz to Life Without Parole for Parkland School Shootings. Deathpenaltyinfo.org. https://deathpenaltyinfo.org/news/non-unanimous-florida-jury-sentences-nikolas-cruz-to-life-without-parole-for-parkland-school-shootings

[3] Death Penalty Information Center (n.d.). Kennedy v. Louisiana Resource Page. Deathpealtyinfo.org. https://deathpenaltyinfo.org/facts-and-research/united-states-supreme-court/significant-supreme-court-opinions/kennedy-v-louisiana-resource-page

[4] Kennedy v. Louisiana, 554 U.S. 407 (2008) https://www.scotusblog.com/wp-content/uploads/2008/06/07-343.pdf

[pennsylvaniaprelawland-blog]

The Ramifications of Roe v Wade’s Reversal in South Carolina

By Jacob Caskie, Bloomsburg University of Pennsylvania Class of 2023

June 5, 2023

In June of 2022, the Supreme Court of the United States overturned the ruling made in the landmark Supreme Court case Roe v. Wade, 410 U.S. 113 (1973). The decision of this case was historically the basis of legal pregnancy terminations throughout the United States for almost fifty years. However, when the ruling was overturned, abortion laws were no longer able to be regulated by the Federal Government. Instead, the 10th Amendment took effect, and relinquished the control of abortion laws back to that of the states. Controversy has surrounded the decisions made by state lawmakers pertaining to the legality of abortion in several parts of the country, although recently, South Carolina has been in the hot seat for their efforts to ban abortions within the state.

On May 23rd, 2023, the South Carolina Senate passed a bill called the Fetal Heartbeat and Protection from Abortion Act, which would ban most abortions in the state after only six weeks of pregnancy. The bill was immediately sent to the office of Governor Henry McMaster to sign into law.[1] The proposal made by lawmakers in South Carolina is the state’s fourth attempt to place restrictions on access to abortions, three of which were previously struck down by the South Carolina State House of Representatives. Similarly, in 2021, the South Carolina Supreme Court blocked a bill passed by state lawmakers that banned pregnancy terminations once a fetal heartbeat was able to be detected. In their majority decision, the court cited that although lawmakers have the duty and authority to protect life, the South Carolina Constitutions’ Privacy Clause allots women time to decide on whether they wish to proceed with an abortion, and this protection would have been restricted by the bills passing. The court also noted that many women are unaware of their pregnancy until well after six weeks post-conception.[3]

Despite the controversy surrounding the banning of abortions in South Carolina, Governor McMaster signed the bill into law on May 25th without notice. The law, which was set to take effect immediately, left open the possibility of a legal abortion becoming illegal as a doctor performed the operation.[3] The following day, however, State Circuit Court Judge Clifton Newman made a crucial decision, and ordered a temporary block on the laws passing until the South Carolina Supreme Court reviews the bill entirely.[2] Although legislative leaders in the state insist that they have made the necessary revisions that will allow for the bills’ passing, Judge Newman is quoted as saying “The status quo should be maintained until the Supreme Court reviews it’s decision.”[3]

One significant change has occurred to the Supreme Court since the state’s last attempt to pass a bill restricting abortion, and that is the retirement of Justice Kaye Hearn, who wrote the decision of the court when overturning the 2021 bill. Hearn was replaced by a man, Justice Gary Hill, and although Supreme Court Justices have a duty to remain unbiased, many reproductive rights activists fear that without a woman on the bench the bill will pass with ease. According to Kathleen McDaniel, the attorney for Planned Parenthood “I would say that nothing in the law has changed. The only thing that has changed is there is no longer a woman on the Supreme Court.”[3] Justice John Few, another South Carolina Supreme Court Justice, wrote in his opinion on the 2021 bill that the law was “poorly written" due to legislators neglecting to determine if six weeks is enough time for women to become aware of their pregnancy.[3] Lawmakers for the state remain confident that the revisions made to the law will meet constitutional requirements, and that Justice Few will change his vote after review.

Judge Newman’s decision to block this bill from passing seems somewhat unsurprising. Similar laws to South Carolina’s ‘Heartbeat Bill’ have been judicially blocked or struck down as unconstitutional among several different states. In 2022, an Ohio Court of Common Pleas temporarily blocked a bill that would have illegalized pregnancy terminations after six weeks gestation. This bill is still pending constitutional review, although The Ohio State Constitution does not directly grant women the right to an abortion. As it stands currently, women in Ohio can obtain legal abortions until twenty weeks gestation.[4] Additionally, Iowa blocked a proposal made by state lawmakers that would have banned abortions once a fetal heartbeat was present after a judge upheld a permanent injunction made in 2019.[5] Although State Constitutional amendments differ throughout the nation, it seems that after judicial review many states are hesitant to pass bills similar to South Carolina’s.

The controversy surrounding laws that attempt to restrict access to abortion is likely to continue, as state legislatures are now responsible for creating abortion regulations. Since women are no longer guaranteed a constitutional protection to abortion procedures, many fear the number of states that offer the procedure will decrease swiftly. The decision of whether South Carolina will continue to allow pregnancy terminations past six weeks gestation now rests in the hands of the South Carolina Supreme Court.

______________________________________________________________

[1] NPR. (2023a, May 24). South Carolina is poised to renew its 6-week abortion ban. NPR. https://www.npr.org/2023/05/23/1177807878/south-carolina-6-week-abortion-ban 

[2] Harte, J. (2023, May 26). South Carolina judge temporarily blocks six-week abortion ban. Reuters. https://www.reuters.com/world/us/south-carolina-judge-temporarily-blocks-six-week-abortion-ban-2023-05-26/#:~:text=May%2026%20(Reuters)%20%2D%20A,Supreme%20Court%20before%20taking%20effect. 

[3] NPR. (2023b, May 26). A judge halts South Carolina’s New Abortion Law Pending State Supreme Court Review. NPR. https://www.npr.org/2023/05/26/1178522334/a-judge-halts-south-carolinas-new-abortion-law-pending-state-supreme-court-revie 

[4] Smyth, J. C. (2022, October 7). Judge Blocks restrictive Ohio abortion law as suit proceeds. AP NEWS. https://apnews.com/article/abortion-health-ohio-government-and-politics-d4dd3a0c4816ccb9f56df30163f58b9e 

[5] Public Broadcasting Service. (2022, December 12). Iowa judge blocks effort to ban most abortions in the State. PBS. https://www.pbs.org/newshour/politics/iowa-judge-blocks-effort-to-ban-most-abortions-in-the-state 

[pennsylvaniaprelawland-blog]

Atlanta Turned Into Cop City

By Komal Chranya, University of Pittsburgh Class of 2025

June 5, 2023

A proposed public safety training facility located in southeast Atlanta was breached by hundreds of protesters in early March. Protesters were burning construction vehicles and setting off fireworks at police officers. As of now, 23 people have been “arrested and charged with domestic terrorism after throwing bricks, rocks, and Molotov cocktails at officers stationed nearby” [1]. Several others were also charged with money laundering and charity fraud [3].

The facility that was attacked was “a planned 85-acre campus that has been branded ‘Cop City’ by opponents who say the complex would propagate police militarization and harm the environment” [1]. These facilities were launched after the serious of protests that occurred after a Black 18-year-old was killed in Ferguson, Missouri in 2014 by police. Critics argue that these nonprofits create channels for corporate influence in law enforcement and are unaccountable to the public. [2].

On January 21, violent protests erupted in Atlanta, which were connected to the proposed training facility. These protests were triggered by the fatal shooting of Manual Esteban Paez Teran, who was a 26-year-old social justice activist demonstrating against the proposed site. During the protests, a police vehicle was set on fire and building windows were shattered downtown. According to the police, Teran had opened fire first, injuring a state trooper, although activists have demanded an independent investigation into the shooting [1]. 5 days later, Georgia Governor Brian Kemp declared a state of emergency and called for the deployment of 1,000 National Guard troops due to escalating tensions surrounding the training facility. Some individuals arrested at the site even had pervious domestic terrorism charges. The planned demonstrations over the weekend began peacefully on Saturday, commencing with a rally, followed by a march through the South River Forest, and concluding with a music and arts festival. A spokesperson expressed their surprise at the violent turn of event during Sunday’s protest. They mentioned that the police officers pepper spray and forcefully subdued protesters during the clash [1]. While the destruction of property may be disproved of, many believe that is should not have been considered acts of violence.

Andre Dickens, Democratic Mayor of Atlanta, said in a press conference that the training includes “vital areas like de-escalation training techniques, mental health, community-oriented policing, crisis intervention training, as well as civil rights history education” [1].

There are several reasons people are opposed to the proposed police training facility. For one, advocates of the environment want to preserve the wooded area, which spans over 1,000 acres. Located in the heart of DeKalb County and funded mostly by nonprofit Atlanta Police Foundation, the estimated cost is $90 million, with $30 million coming directly from taxpayers [1].

Other activists are concerned that this training facility will enable and encourage increased militarization of police forces in DeKalb County, which is 55% Black. After the police killings of George Floyd, Breonna Taylor, and Rayshard Brooks in 2020, there has been a surge in attention toward police practices and demonstrations against police brutality and racial injustices.  

Activist Kamau Franklin is the founder of Community Movement Builders, which is a grassroots group that helped to organize the “Stop Cop City” movement. He says that the issue with policing in Atlanta is not simply a problem of inadequate training- but rather an issue of “militarizing the police to look at certain communities as criminals, particularly Black, poor, working-class communities” [1]. He also added that the police have been seen bringing tanks, armored vehicles, and long rifles to protect and patrol the forest. Franklin, as well as many others, do not believe that this is simple for police training.

______________________________________________________________

1.      Popli, Nik. “Atlanta ‘cop City’ Protests Turn Violent.” Time, 6 Mar. 2023, time.com/6260567/atlanta-cop-city-protests/.

2.      Matthews, Alex Leeds. “Atlanta’s so-Called ‘cop City’ Is Igniting Protests. Here’s What We Know about the Foundation behind It.” CNN, 29 Mar. 2023, www.cnn.com/2023/03/29/us/atlanta-cop-city-protests-police-foundation-dg/index.html.

3.      “GBI: 3 Arrested in Connection to Protests at ‘cop City’ Site.” FOX 5 Atlanta, 1 June 2023, www.fox5atlanta.com/news/3-arrested-in-connection-to-violence-at-cop-city.

[pennsylvaniaprelawland-blog]

As Pride Month Approaches, What Are the Potential Ramifications of Anti-Drag Laws?

By Matthew Klausner, University of Pennsylvania Class of 2026

May 30, 2023

As Pride Month (June) approaches, LGBTQ+ Americans are growing preoccupied with the prevalence of “drag ban” legislation. Presently, several states have passed laws restricting drag performances, and many other states are in the process of advancing bills of their own. What exactly do these new policies entail, and what is their purpose? Do they have potential repercussions for gender nonconforming individuals in the United States who don’t necessarily identify as drag queens and kings? This article seeks to examine these questions.

According to CBS News, drag performance is defined as “the art of dressing and acting exaggeratedly as another gender, usually for entertainment such as comedy, singing, dancing, lip-syncing or all of the above.”[1] Usually, a “drag queen” refers to a man who adopts a feminine stage persona through wearing fancy dresses, wigs, and makeup. Ever since the “drag balls” of the Harlem Renaissance, drag performance has become one of the most integral components of America’s queer identity.[2] Recently, drag has gained mainstream attention through the emergence of the TV franchise RuPaul’s Drag Race, which has given many drag performers a larger platform.[1] Effectively, this has caused drag to reach American audiences on a much wider scale, but with the increase in support came an increase in criticism by conservatives with more traditional values for family, gender, and expression. More and more, drag is being perceived as a threat.

Tennessee was the first state to pass anti-drag legislation when it passed Tennessee Senate Bill 3 in March 2023. The new law classifies “male or female impersonators who provide entertainment that appeals to a prurient interest” as “adult cabaret performances” along with “topless dancers, go-go dancers, exotic dancers, [and] strippers.”[3] It proceeds to criminalize engaging in such “adult cabaret performances” in public places or in any place where children could potentially be present.[3] The penalty for such a performance would be a class A misdemeanor on the first offense and a Class E felony on any subsequent offenses.[3] This means that a repeated offender could face up to six years in jail. The use of the word “prurient” in the definition of “adult cabaret performance” suggests that, technically, drag is only prohibited in public spaces when it is deemed sexual in nature. However, the criteria for a performance to qualify as sexual are uncertain, leaving many LGBTQ+ activists concerned as to the extent of this new classification, especially when all drag seems to be considered sexual by supporters of the law. With the rising allegations that drag queens are sexual predators “grooming” children, it is reasonable to predict that this law would be used to incriminate drag queens regardless of their performances’ content. Other supporters of the bill believe drag performances are unfit for minors because they may cause children to question their own genders and sexualities, which automatically qualifies drag as sexual in nature and subject to the law. Therefore, if all drag is considered sexual, drag performers would be penalized indiscriminately. The bill was set to go into effect on April 1, 2023 (revised from the original date of July 1, 2023), but federal judge Thomas Parker issued a temporary restraining order against it on the grounds that the “Statute’s broad language clashes with the First Amendment’s tight constraints.”[4,5] The law was only restrained temporarily, so it will be interesting to see how this situation plays out with Pride festivals–which feature public drag performances–coming up in June.

Montana has also passed a law that restricts drag performances. Montana’s law HB0359 went into effect on May 22 immediately after it was signed by Governor Greg Gianforte.[6] The new law prohibits “sexually oriented performances” as well as “drag story hours,” which are defined as events “hosted by a drag queen or drag king who reads children's books and engages in other learning activities with minor children present.”[7] Specifically, the law states that “A school or library that receives any form of funding from the state may not allow a sexually oriented performance or drag story hour, as defined in [section 1], on its premises during regular operating hours or at any school sanctioned extracurricular activity.”[7] According to Section 4, public libraries would be subject to $5,000 fines for sponsoring drag story hours. Unlike Tennessee’s Law, Montana’s law does not require drag performances to appeal to the “prurient interest” to be considered a crime.

As other states introduce and pass their own anti-drag legislation, what does this mean for drag performances, freedom of expression, and transgender rights? Many Pride festivals have already been canceled due to fear of police intervention. In Florida City, for example, a Pride festival was canceled after the Florida government passed a law restricting adult-oriented performances in public places, which was intended to restrict drag performances.[8] Many drag performers and queer activists are speaking out against these laws, claiming that they overgeneralize an extremely diverse artform. According to drag queen Trixie Mattel, “To say all drag is bad for kids is to say all movies are bad for kids, all music is bad for kids.”[9] While some drag shows are decidedly sexual and already take place in adult venues, not all of them are, and she claims that the generalization of all drag as sexual is unfair. Mattel also discusses the potential repercussions of drag-bans for transgender people, who could very well be wrapped up in these laws.[9] The vague language used to define drag performances in these new policies gives state governments the power to extend the limitations on drag performances to people who don’t identify as drag queens or kings. If drag performance is defined legally as gender “impersonation,” the perception of transgender individuals as “impersonating” a gender that does not belong to them could result in the subjection of transgender people to the same laws as drag performers.

As various state legal systems begin to interpret these laws, they will be forced to grapple with and seek answers to complex questions, which will impact the public perception of how policy and gender issues intersect in the future. How do we define gender “impersonation” in a world where gender is increasingly seen as a social construct? If we all live in a society where we subconsciously mimic gender norms that have been imposed upon us, wouldn’t we all be impersonating a gender to some degree? How can a gender, or a way of behaving, rightfully “belong” to someone? What exactly defines a performance as “appealing to the prurient interest”? Is the exaggerated performance of gender nonconformity sexual, and does it really pose a threat to children? Are these laws really about protecting anyone? 

______________________________________________________________

Matthew Klausner is a rising sophomore at the University of Pennsylvania. He is majoring in Political Science and Hispanic Studies, with a minor in Survey Research and Data Analytics. After finishing college, he hopes to attend law school and pursue a career in either civil rights or immigration law.

______________________________________________________________

https://www.cbsnews.com/minnesota/news/the-history-of-drag-and-how-drag-queens-got-pulled-into-politics/

https://www.cnn.com/style/article/drag-queen-us-history-explainer-cec/index.html#:~:text=One%20of%20the%20first%20known,at%20his%20Washington%2C%20DC%20home.

https://www.capitol.tn.gov/Bills/113/Bill/SB0003.pdf

https://apnews.com/article/lgbtq-drag-tennessee-lawsuit-490e12cd44dc3133b6424409e63f94c9

https://time.com/6260421/tennessee-limiting-drag-shows-status-of-anti-drag-bills-u-s/

https://www.cnn.com/2023/05/24/politics/montana-drag-story-hour-ban/index.html#:~:text=Montana%20governor%20signs%20bill%20banning,children%20in%20public%20schools%2C%20libraries

https://leg.mt.gov/bills/2023/billpdf/HB0359.pdf

https://abcnews.go.com/Entertainment/wireStory/gay-pride-parade-canceled-after-anti-drag-show-98736368

https://www.advocate.com/drag/trixie-mattel-drag-bans

[pennsylvaniaprelawland-blog]

Montana TikTok Ban- Constitutional or Not Constitutional- That is the Question

By Komal Chranya, University of Pittsburgh Class of 2025

May 26, 2023

On Wednesday, May 17, Montana Governor Greg Gianforte banned TikTok from operating. It is said he signed Senate Bill 419 in order to protect personal and sensitive information from intelligence gathering by the Chinese Communist Party [1].

Gov. Gianforte says “the Chinese Communist Party using TikTok to spy on Americans, violate their privacy, and collect their personal, private, and sensitive information is well-documented” [1]. He believes it is one of his chief responsibilities. The government also issued instructions to the chief information officer of the state and the directors of executive agencies in Montana, instructing them to forbid the utilization of any social media applications associated with foreign adversaries on state equipment and for official state purposes. It is said that the penalty for downloading the app within state borders could be up to $10,000, and another $10,000 each day the violation continues [2].

While the law banning the app is set to take effect on January 1, 2024, there is already resistance and challenges being brought up. A group of content creators based in Montana have already filed a lawsuit against the ban in federal court. They claim the ban goes far beyond state authority and is unconstitutional. The lawsuit also said,

“Montana has no authority to enact laws advancing what it believes should be the UnitedStates’ foreign policy or its national security interests, nor may Montana ban an entire forum for communication based on its perceptions that some speech shared through that forum, though protected by the First Amendment, is dangerous,” [2].

Many TikTok supporters have come forward to express their concerns about losing the popular social media application. Brooke Oberwetter, a TikTok spokesperson, described the application as a platform that empowers people across the state and that it is a place to express themselves, earn a living, and be a part of a community [2]. The ACLU of Montana, as well as other free-speech groups, sent a letter to Montana legislature expressing that this ban would set an unwanted and alarming precedent for excessive government control over how citizens use the internet. The policy director at the ACLU of Montana, Keegan Medrano, said in a statement, “We will never trade our First Amendment rights for cheap political points” [3].

Christian Poole, 20-year-old Montana resident, has gained more than 400,000 followers on TikTok over the past 4 years and is now worried that all his hard work would be going to waste [3].

Another important creator that would be seriously affected is Hank Green. Green lives in Missoula and is known for posting educational videos about science, social issues, etc. He currently has over 7 millions followers on TikTok and has accumulated more than 500 million likes [3].

Furthermore, this ban faces several technical obstacles. Apple and Google have stated that blocking people from TikTok within Montana specifically would require a complete rewrite of how users are tracked. Experts say that app stores are divided by country or global regions and do not take into account which state a user is in. Changing this system would require intricate monitoring of people’s locations and “a by-the-minute system to define what happens when, for instance, a user drives over state lines” [3]. Companies could also block users based on billing address or IP addresses, but those can easily be changed, especially with the use of VPNs.

More recently, on Monday, May 22, TikTok filed a suit against the state of Montana. TikTok alleges that the ban violates the First Amendments, as well as other federal laws. The company also expresses concerns that the claims that Chinese government could access the data of US TikTok users are unfounded. Oberwetter, TikTok spokesperson stated, “We believe our legal challenge will prevail based on an exceedingly strong set of precedents and facts” [4].

China’s Foreign Ministry claimed that the ban in Montana is an “abuse of state power” and the spokesperson, Mao Ning, also stated at a briefing that “the US side has no provided any evidence to prove that TikTok poses a threat to the national security of the US” [4].

There are many sides and perspectives to the concept of a ban on this popular social media application. On one hand, the government believes that are acting in the best interest of the public in order to protect their safety. On the other hand, the citizens and the public find that these rulings are unjust and unconstitutional.

______________________________________________________________

1.      “Governor Gianforte Bans TikTok in Montana.” State of Montana Newsroom, 17 May 2023, news.mt.gov/Governors-Office/Governor_Gianforte_Bans_TikTok_in_Montana.

2.      News, MTN. “Lawsuit Filed Challenging Montana’s Tiktok Ban.” KTVH, 19 May 2023, www.ktvh.com/news/68th-session/lawsuit-filed-challenging-montanas-tiktok-ban.

3.      “Analysis | Montana Can Ban Tiktok, but It Probably Can’t Enforce It.” The Washington Post, 19 May 2023, www.washingtonpost.com/technology/2023/05/19/montana-tik-tok-ban-challenges/.

Duffy, Clare. “TikTok Sues Montana over New Law Banning the App | CNN Business.”CNN, 23 May 2023, www.cnn.com/2023/05/22/tech/tiktok-montana-lawsuit/index.html.

[pennsylvaniaprelawland-blog]

Alabama’s Mishandling Of Lethal Injection Procedures: Should Alternative Methods Be Used?

By Jacob Caskie, Bloomsburg University of Pennsylvania Class of 2023

May 22, 2023

In 2022, Alabama Governor Kay Ivey ordered a halt to the scheduled executions of all death row inmates in the state and commanded a “top to bottom review” of Alabama's capital punishment procedures. Ivey’s order was in direct response to the November 2022 failed execution of Kenneth Smith, which marked the third failed execution of an inmate in Alabama since 2018.[1] Smith’s execution process failed due to the eventual expiration of his death warrant after multiple failures to set an intravenous (IV) line.[4] Additionally, in July of 2022, Joe Nathan James was left restrained on his execution gurney for three hours before being put to death by lethal injection, which is now the lengthiest execution process in United States history. Alan Eugene Miller faced similar circumstances to Mr. Smith during his failed lethal injection, as executioners could not insert an intravenous line for over an hour. Mr. Miller’s execution failed only because of the state’s inability to secure an intravenous line.[1] The consistent mishandling of Alabama’s lethal injection procedures has prompted a review by the United States Supreme Court into allowing alternative methods of execution for inmates facing capital punishment within the state.

Kenneth Smith and his legal counsel filed a complaint with the US District Court for the District of Middle Alabama that challenged his execution by lethal injection.[4] On May 15th, 2023, the Supreme Court of the United States rejected a request from Alabama officials to execute Kenneth Smith via lethal injection against his wishes in a 7-2 decision, which left in place a ruling from the 11th Circuit Court of Appeals that allowed his preference for a lethal gas inhalation process called nitrogen hypoxia. The lower court's ruling cited that because the state had approved the usage of nitrogen hypoxia for executions, Smith was allowed to utilize this alternative method.[2] In his lawsuit filed months before his failed execution, Smith alleged that being executed by lethal injection would violate his Eighth Amendment rights against cruel and unusual punishment. Supreme Court Justices Clarence Thomas and Samuel Alito dissented from the decision that allowed Smith’s challenge to proceed, with Justice Thomas stating “When the question is whether the Eighth Amendment requires a state to replace its chosen method with an alternative method in executing the plaintiff, it is simply irrelevant, without more, that the state's statutes authorize the use of the alternative method that are to take place sometime in the indefinite future”.[2]

Alabama has recently experienced a string of failed lethal injections for inmates sentenced to die for their crimes. The state also has a documented history of mishandling the procedures used during lethal injection proceedings. On May 3rd, 2023, the family of Joe Nathan James sued the state of Alabama for the pain and suffering he encountered during his three-hour-long execution.[3] The suit claims that “the execution team failed to execute Mr. James in a manner that comports with the U.S. Constitution, the Alabama Constitution, and applicable state law.”[3] The Department of Corrections continues to defend that the execution was completed according to protocol, although autopsy results showed multiple failed attempts at securing an intravenous execution line, as well as seemingly unrelated puncture wounds to James’ arm muscles.[1] In light of Alabama’s consistent failures to successfully carry out lethal injections, many would say that alternative means of execution should be researched for death row inmates.

The issue in Alabama is not the constitutionality of capital punishment itself, but rather the Eighth Amendment rights belonging to inmates that protect them against cruel and unusual punishment during lethal injection proceedings.  Kenneth Smith described after his failed execution that he felt as if he was “being ‘stabbed’ in the chest repeatedly” when the execution team unsuccessfully attempted to secure a central IV line.[4] Mr. Smith was reportedly left trembling, sweating, and unable to walk unassisted after the execution team informed him that his sentence would not occur that day. In their complaint, Smith also claims that he was injected with what he believed to be a sedative substance, despite orders given to the state to refrain from using sedation for his execution.[4] Furthermore, the lawsuit filed by the family of Joe Nathan James states “Each of the individuals that Alabama failed to execute reported experiencing extreme pain from failed IV access attempts.”[3] The suit also claims that Mr. James was already unconscious at the time of his death warrant reading, which deprived him of his rights to be mentally present, cognizant of his punishment, and ability to speak final words before his death.[3]

Based on the evidence provided by the numerous complaints of mishandled lethal injection procedures, it is seemingly undeniable that corrective action must be taken to prevent future errors in executions handled by the Alabama Department of Corrections. Lethal injection was upheld as a constitutional method of execution in Glossip v. Gross, 576 U.S. (2015) when protocols are followed in accordance with the Eighth Amendment of the US Constitution.[5] According to the numerous complaints the state has received, the Alabama Department of Corrections has allegedly deviated from these protocols on multiple occasions. Considering these allegations, it may be in the state’s best interest to investigate other methods of execution for inmates facing capital sentences.

______________________________________________________________

[1] Alabama governor halts executions after latest in series of execution failures. Death Penalty Information Center. (2023, November 22). https://deathpenaltyinfo.org/news/alabama-governor-halts-executions-after-latest-in-series-of-execution-failures

[2] Hurley, L. (2023, May 15). Supreme Court rejects Alabama’s bid to use lethal injection against inmate’s wishes. NBCNews.com. https://www.nbcnews.com/politics/supreme-court/supreme-court-rejects-alabamas-bid-use-lethal-injection-inmates-wishes-rcna75997

[3] Family sues Alabama over “longest known execution in U.S. history.” Death Penalty Information Center. (2023, May 8). https://deathpenaltyinfo.org/news/family-sues-alabama-over-longest-known-execution-in-u-s-history

[4] Kenneth Smith describes Alabama’s failed attempt to execute him. Death Penalty Information Center. (2023, January 18). https://deathpenaltyinfo.org/news/kenneth-smith-describes-alabamas-failed-attempt-to-execute-him

[5] Legal Information Institute. (n.d.). Death penalty. Legal Information Institute. https://www.law.cornell.edu/wex/death_penalty

[pennsylvaniaprelawland-blog]

Felonies To Misdemeanors- California Proposition 47

By Komal Chranya, University of Pittsburgh Class of 2025

May 12, 2023

California Proposition 47, also known as the Safe Neighborhoods and Schools Act, was a ballot initiative that increased the amount for shoplifting misdemeanors from $400 to $950.  Other eligible offenses that fall under Prop 47 include petty theft, receiving stolen property, forgery, drug possession, insufficient funds, and fraud [1]. Essentially, some crimes that would be charged as felonies, such as the ones mentioned above, are now being charges as misdemeanors. The proposition became effective on November 5, 2014, and has recently gained large social media attention.

Many people have begun to wonder why the state decided to turn felonies into misdemeanors, while others are simply enjoying being able to freely walk out of local franchises with armfuls of merchandise. However, to answer the prior question, the purpose of this proposition is to “ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for non-serious, nonviolent crime, and to invest the savings generated from [the proposition] into prevention and support programs in K-12 schools, victim services, and mental health and drug treatment.” It also served to make certain that “sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed. [1]” Essentially, it means that individuals convicted of the previously mentioned offenses would face shorter sentences, if any, and have greater access to rehabilitative services. The reasoning behind Prop 47 creates a broader perspective to the social problems ongoing in California.

While this law does adjust for inflation and cost of living, it also works to resolve the problem of overcrowding in prisons. In 2011, the Supreme Court ordered the state of California to reduce their prison population by 33,000 individuals [2]. The 5-4 vote ruled that the severe overcrowding in California prisons resulted in “extreme suffering and even death.” California’s 33 prisons housed double the number of prisoners in 2009, whose original capacity was 80,000 inmates. Justice Anthony Kennedy, a member of the Court’s majority opinion, wrote a 48-page opinion in which he described the situation where prisoners were crammed into small cells, stacked in bunkbeds in areas not meant for housing, and even shared limited restroom facilities, leading to the spread of diseases.

The lack of proper medical care resulted in unnecessary deaths, which occurred every six to seven days. Additionally, the inadequate mental health care led to inmates being held in small cages, which contributed to hallucinations, catatonic states, and high suicide rates that exceeded national averages [3]. The state had repeatedly agreed to fix these unlivable conditions by building more prisons, but the overcrowding just grew worse because the Legislature could not provide the money.

Supporters of Proposition 47 believed that it would lead to cost savings since fewer individuals would be sent to prison for nonviolent crimes. However, critics of the proposition have raised concerns about potential consequences, including an increase in property crimes and the release of individuals with prior convictions. They argue that the proposition could undermine deterrence efforts and fail to address the root causes of criminal behavior.  

Since passing the proposition, the residents of California have been taking full advantage of the situation. A widely circulated video captured the moment when two individuals, carrying duffle bags full of merchandise and clothing on hangers, walked out of a local T.J. Maxx in Granada Hills, California. Not one person attempted to stop them as they casually left the store and crossed the parking lot to their vehicle [2].

However, there have been instances when people did try to stop the shoplifting suspects. On April 19, 2023, a “Pleasanton Home Depot employee who was shot and killed while confronting a shoplifting suspect inside the store” [4]. It is said that the shooter was intent on leaving the store without paying. The victim, a loss prevention agent, confronted the shooter and that is when a physical conflict occurred. The female suspect then pulled out a gun and shot the employee [4].

The general purpose Prop 47 was to reduce people’s involvement in the criminal justice system and to reduce overall incarceration. There was an 8% decline in jail bookings from October 14 (one month prior to Prop 47) to one year later. The overall decline in jail bookings was driven by a depletion in drug and property offenses and reflects a shift from jail custody to alternation responses for offenses. Recidivism, the act of a convicted criminal to commit another crime, also decreased [5]. There have been many repercussions that came from Proposition 47 with various reactions and opinions. Some people enjoy being able to steal from stores without any major reverberation, while others are worried for their safety. Regardless of individual biases, it is apparent that the proposition did achieve the intended results.  

______________________________________________________________

1.      Prop 47 FAQs. Retrieved from https://www.courts.ca.gov/documents/Prop47FAQs.pdf

2.      Fraser, Terrence. (23 July 2021) Proposition 47 Did Not End Prosecution of Thefts under $950 in California. AP NEWS. Retrieved from apnews.com/article/fact-checking-160551360299.

3.      Totenberg, Nina. (23 May 2011) High Court Rules Calif.. Must Cut Prison Population. NPR. Retrieved from www.npr.org/2011/05/23/136579580/california-is-ordered-to-cut-its-prison-population.

4.      Weber, Brendan. (19 Apr. 2023) Slain Pleasanton Home Depot Employee Remembered as ‘Model for Others’. NBC Bay Area. Retrieved from www.nbcbayarea.com/news/local/east-bay/slain-pleasanton-home-depot-employee/3209215/.

5.      The Impact of Proposition 47 on Crime and Recidivism. Public Policy Institute of California. Retrieved from https://www.ppic.org/wp-content/uploads/r_0618mbr.pdf

[pennsylvaniaprelawland-blog]

Tenure and Hate Speech- Where Do We Draw the Line?

By Alexandria Lee, Dickinson College Class of 2026

April 23, 2023

On January 26, 2023, the University of Pennsylvania’s Carey School of Law professor, Amy Wax, filed a grievance against the school’s Dean, Theodore Ruger, over escalating comments, criticizing her as a racist. Wax accuses Ruger of “trampling her freedoms…[and] imposing a rigid orthodoxy of permissible speech and expression,” [1]. Ruger imposed a sanction on Wax after years of insensitive racial comments, both online and to students, including a blog post that stated that the United States would be ‘better off with fewer Asians and less Asian immigration,’ if they continued voting Democrat [1]. Wax has had complaints filed against her since 2017. However, there is the difficulty of just dismissing her from her position because of her tenure. While tenure is in place to protect the individual’s free speech- have these protections gone too far? Or is Wax’s case unique? In this essay, I argue that it is not tenure that is the issue- it is the injustices that many colleges do not want to address until it is too late; their best deflection is tenure.

Tenure is a “safeguard to academic freedom” which allows professors to teach freely without fear of punishment by their academic institution [2]. This is especially relevant when they criticize their respected institution. Tenure, once given, can only be taken away if the university determines there was personal misconduct, but there is still controversy regarding what is “misconduct” [2]. Similar to the First Amendment, there are disagreements about what is considered “hate speech”.

There is fear within the legal community about restricting “free speech”. However, do we really want hate speech to be under this category? Hate speech is technically protected by the first amendment since restricting it would conflict with the First Amendment’s freedom of expression [3]. While, yes, not protecting hate speech under the First Amendment does limit expression, it also improves progression toward equity. For centuries, students of color have been discriminated against in academia, and allowing protected hate speech in the classroom enforces the idea that they are not welcome. Whether or not this is deemed “an attack on freedom” is merely irrelevant. People’s lives matter more than allowing bigotry.

This is the issue with Wax’s case. She claims that she is “under attack” for her conservative beliefs. When in actuality, she is facing backlash for almost a decade of racist remarks. She may believe that the two are interconnected- that conservatism and racism are dependent on each other. That begins another issue, though, if that’s the argument she’s making- should there really be a political party that is synonymous with hate speech? Whether that be the case or not, Wax is deflecting her actions by labeling the backlash as an attack on her freedoms. Why should her freedoms be more important than the livelihood of students of color? Why should a white woman’s words be valued more than a black student? In no circumstance should there be any preferential treatment to Wax or anyone with similar cases. At the end of the day, the only victims are the students of color who already face discrimination in their education.

Throughout the years, there has been too much emphasis on the protection of speech. While, of course, it is important, it should not be valued over equity. When we allow hate speech in academia, students of color are automatically cast aside and not given an equal chance. This just adds to the discrimination they face both inside and outside the campus. Administrators should not be able to discriminate against students legally. We need to understand the balance of free speech and outright hate speech.

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[1]Sloan, Karen, and Karen Sloan. 2023. “Facing Sanctions, Penn Law Prof Amy Wax Files Grievance against Dean.” Reuters, January 26, 2023, sec. Legal Industry. https://www.reuters.com/legal/legalindustry/facing-sanctions-penn-law-prof-amy-wax-files-grievance-against-dean-2023-01-26/.

[2]Fawcett, Eliza. 2023. “What to Know about Tenure and Free Speech Protections.” The New York Times, March 13, 2023, sec. U.S. https://www.nytimes.com/article/tenure-protection-free-speech.html#:~:text=A%20tenured%20position%20%E2%80%9Ccan%20be%20terminated%20only%20for.

[3]“What Is Hate Speech, and Is It Protected by the First Amendment?” n.d. Free Speech, Rights and Responsibilities. https://uwm.edu/free-speech-rights-responsibilities/faqs/what-is-hate-speech-and-is-it-protected-by-the-first-amendment/.

[pennsylvaniaprelawland-blog]

The Unethical Hours Of Medical Students And The Consequences

By Alexandria Lee, Dickinson College Class of 2026

March 24, 2023

Medical residency has always been referred to as having grueling hours- residents can work anywhere from sixteen to upwards of twenty-eight hours per shift [1]. While the Fair Labor and Standards Act does not outrightly state that an employee can work a maximum number of hours, there has been debate about what is considered safe for an individual and the people around them [2]. The death of Libby Zion, however, caused by a sleep-deprived medical student, caused New York state to institute that residents could not work shifts longers than twenty-four hours, and no more than eighty hours a week- eventually these programs were extended to all students in residency in 2003 and strengthened more in 2011 [1]. Even with these caps, although, there is still debate on whether residents can adequately perform on their patients.

Many physicians and patients are concerned about the later end of a twenty-four-hour shift, and how a sleep-deprived resident may be less reactive to an emergency. The CDC compares not sleeping for twenty-four hours to a blood-level alcohol content (BAC) of 0.10 [3]. The legal BAC limit is 0.08, meaning that a resident could legally be performing surgery while experiencing the same effects as someone above the legal alcohol limit. These symptoms include but are not limited to drowsiness, irritability, decreased alertness, impaired concentration, fatigue, tremors, and reduced coordination [3]. After prolonged sleep deprivation, there is an increased rate of suicide and risk-taking behaviors [4]. A 2016 study illustrated that while students in medical school got the recommended seven hours of sleep per night, a majority of them had poor sleep quality [5]. While students are trying to prepare to hold others' lives in their hands, their own health is not being taken care of. This can be attributed to the intense coursework that is given out in medical school; it is expected that students work for about fifty hours per week [6]. The combination of coursework and residency is an almost guaranteed way for fellows to make a mistake and have a patient suffer the consequences of the institution’s failure.

Sleep deprivation is not the fault of the individual student. It is the consequence of late-stage capitalism that values profit over individuals. Institutions make millions of dollars every year because of their medical programs. Instead of caring for their students and their workload, they prioritize profit. After medical school, attending physicians usually graduate with almost half a million dollars in debt. The United States has the longest and most expensive medical system in the developed world and also is among the countries with the fewest physicians per capita [7]. The combination of length, price, and short staffing forces fellows and residents to carry out a multitude of responsibilities, while sleep deprived, which may eventually end up hurting themselves or their patients.

The United States ranks 7th out of seven industrialized countries, despite having the most expensive healthcare out of the countries: The Netherlands, Australia, Canada, New Zealand, Germany, and the United Kingdom [8]. This list, in which The Netherlands ranks first, illustrates a problem that has not been addressed- the fact that residents and patients are paying so much, but are not receiving the benefit. This ranking does not come from individual doctors but the institution itself. To fix this problem we must look at our European allies and see where we can improve our system. For one, many European countries have one six-year-long medical program, not an undergraduate and graduate program [7]. We need to focus on the health of the resident before we can focus on the health of the patient. If institutions begin to value education rather than pushing out information, then true learning will begin. The economic aspect also has to be considered. For residents to truly have equitable education that does not hinder their health, there must be no profit from their learning. Undergraduate and graduate programs need to be subsidized by the government for students to truly be able to help those around them without damaging their health.

With the current institution, however, that is not the case. Two in five physicians screen for depression and mental health issues. They are also “three times as likely to die from suicide than their counterparts,” [9]. While, yes, medicine is an intense discipline, residents are people- they need to be treated as such. Without fair treatment of residents, you will not have good doctors, and healthcare in the United States will continue to worsen.

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[1] Dalton, Clayton. “Opinion: Keep Limits Intact on Medical Residents’ Work Hours.” NPR, 10 May 2019, www.npr.org/sections/health-shots/2019/05/10/721461765/opinion-keep-limits-intact-on-medical-residents-work-hours.

[2] U.S. Department of Labor. “Wages and the Fair Labor Standards Act.” Dol.gov, 2022, www.dol.gov/agencies/whd/flsa.

[3] “Sleep Deprivations Stages: The 5 Stages and What They Mean.” Healthline, 26 May 2020, www.healthline.com/health/sleep-deprivation/sleep-deprivation-stages#timeline.

[4] “Sleep Deprivation and Deficiency - How Sleep Affects Your Health | NHLBI, NIH.” Www.nhlbi.nih.gov, 15 June 2022, www.nhlbi.nih.gov/health/sleep-deprivation/health-effects.

[5] Ayala, Erin E., et al. “A Cross-Sectional Snapshot of Sleep Quality and Quantity among US Medical Students.” Academic Psychiatry, vol. 41, no. 5, Jan. 2017, pp. 664–68, doi:https://doi.org/10.1007/s40596-016-0653-5.

[6] Ollie, Dr. “How Many Hours Do Medical Students Study? (Real Data).” Medical School Expert, 26 Oct. 2022, medicalschoolexpert.co.uk/how-many-hours-medical-students-study/#:~:text=As%20I%20mentioned%20at%20the%20start%20of%20the.

[7] Thompson, Derek. “Why America Has so Few Doctors.” The Atlantic, 14 Feb. 2022, www.theatlantic.com/ideas/archive/2022/02/why-does-the-us-make-it-so-hard-to-be-a-doctor/622065/.

[8] “U.S. Ranks Last among Seven Countries on Health System Performance Measures | Commonwealth Fund.” Www.commonwealthfund.org, www.commonwealthfund.org/publications/newsletter-article/us-ranks-last-among-seven-countries-health-system-performance.

[9] “How Often Do Physicians and Medical Students Die of Suicide?” American Medical Association, 2019, www.ama-assn.org/practice-management/physician-health/how-often-do-physicians-and-medical-students-die-suicide.

Photo Credit: Tulane Public Relations -  AlbertHerring

[pennsylvaniaprelawland-blog]

Conscription Vs Non-Conscription

By Trifol Headman, Seton Hill University Class of 2025

March 20, 2023

As described in Sandel, there are several methods for recruiting military personnel. Conscription, commonly known as the draft, is one manner through which individuals are obliged by law to serve in the military for a set amount of time. This approach to military service and personnel acquisition coincides with the utilitarian principle of taking efforts to safeguard the common good or "advance the general welfare" [2] of society. Another option is to join the military through voluntary service or the free market system. This approach to military duty and people is consistent with libertarianism by ensuring individual freedom of choice. "Enabling people to engage in voluntary trades respects their rights; policies that interfere with open markets disrespect individual liberty."[2] The second alternative is conscription, which allows compensated replacements and was utilized during the Civil War, thus the term The Civil War System. When there is an active draft, this method of military recruiting is paying someone else to fight in your place. This prompted Congress to reconsider their position on the draft. "Congress enacted a new draft law in response to the complaint. Although it did not abolish the ability to hire a substitute, it did provide that any draftee might pay the government a price of $300 rather than serve [2].

Critics of conscription argue that it is slavery and  morally repugnant. The individual has no freedom to choose which makes it anti-democratic. "If you are a libertarian, the answer is obvious. Conscription (Policy 1) is unjust since it is coercive and similar to slavery." [2] Critics of non-conscription argue that it disproportionately markets to those from low socioeconomic backgrounds as a pathway to higher education and money. They also argue that it is more expensive to run. You have to pay for advertising, recruitment personnels and  retention factors. Critics of the civil war system argue that wealthy individuals, who frequently have power, don't face the responsibility of fighting in the wars they start. Instead, prey on those from low socioeconomic backgrounds.

In recent years, there has been an ongoing discussion about the legality and morality of private military contractors' operations. Many all throughout the world consider private military companies like Blackwater useful and necessary in times of war. On the other hand, others view privatized military groups as unethical, money-hungry mercenaries with little to no ideals. When discussing the activities of these contractors, many people who perceive these firms in this light have a moral argument. There was a worldwide outrage over Blackwater workers' lack of professionalism, control, and regulation, which resulted in horrible treatment and, in some cases, death for Iraqis.The video shows Blackwater employees traveling through Iraqi streets in armored trucks equipped with firearms. The personnel then opened fire on Iraqi citizens, including women and children, without any provocation. The events described in the documentary and in this film also prompted serious concerns about the employment of private military contractors, as well as the need for better control and responsibility. [1]

Some of the benefits of utilizing private military groups are;

A properly trained and equipped military force is typically superior to one that has been conscripted. To some extent, this argument aligns with the utilitarian opinion since it advocates for a competent armed force that promotes the general well and safety of individuals and society. It is also consistent with the libertarian perspective since it supports the will to enlist. Volunteers are also more likely to be motivated and devoted to their duties since they have a financial incentive to do their duties with honesty and with the objective of winning. This argument coordinates with the libertarian belief since individuals who accepted the contract did so voluntarily. When a larger military presence is neither necessary or preferred, the employment of private military contractors allows for greater flexibility in responding to emergencies and circumstances. This argument is parallel with the utilitarian perspective since it advocates for a capable military force that promotes the general welfare and safety of citizens and society. Warfare is often quite expensive, and private military is a wonderful method to save money because it is typically less expensive than keeping a huge permanent force. This argument also correlates with the utilitarian position, because by spending less on the military and military services, you have more money to reallocate to other sectors of society that would benefit society. Private military contractors frequently provide unique expertise and experience that the military lacks since they are not constrained by the same agreements and rules that government military troops must follow. This argument also accords with the utilitarian viewpoint since improved training for the military personnel will benefit the welfare of the country.

In response the cons shared by those who are against  private military groups are;

The morally opposing answer is that because private military contractors are not subject to the same rules and regulations as military troops, it might be difficult to hold them accountable for their actions. This argument follows the libertarian perspective because if people joined voluntarily they would know the policies and standards to uphold. Issues about the use of private military contractors: Private military contractors pose ethical concerns regarding the use of force for business as well as the likelihood of human rights breaches. This argument is consistent with the libertarian viewpoint since if people joined willingly, they would be aware of the regulations and standards to uphold. Private military contractors have less oversight than military troops, perhaps leading to abuse and misconduct. This argument would align with the libertarian viewpoint because if people joined voluntarily they would know the policies and standards to uphold. Private military contractors may lead to poor morale among military personnel who perceive their tasks are being delegated to private firms. This argument aligns with the libertarian perspective because if people joined voluntarily they would know the policies and standards to uphold. Private military contractors may be less dedicated to a mission or the country than military personnel. This argument aligns with the libertarian ideology because if people joined voluntarily they would have more at stake morally and the values they have would push them to win.

People should have personal choices and individual autonomy in decision-making regarding military recruitment. People should also make their own decisions and that government intervention should be kept to a minimum. Whether directly or indirectly, typically will act in society’s benefit, this is referred to as the market's "invisible hand,". It is innate to safeguard livelihoods and well-being which causes people to defend themselves and society typically without  government intervention. People are also more likely to be motivated to attain their goals when they have the choice to pick their own route. In contrast, being forced to do something typically results in anger and a lack of passion. Giving people the opportunity to select their own path and pursue their own objectives allows society to benefit from individuals' inherent motivations and activities.

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YouTube, 2006. https://youtu.be/N83BdpNPvgw. 

Sandel, Michael. 2010. Justice. Harlow, England: Penguin Books.

“Uncle Sam Came to Be a Symbol of Patriotism.” The Washington Times. The Washington Times, September 10, 2017. https://www.washingtontimes.com/news/2017/sep/10/uncle-sam-came-to-be-a-symbol-of-patriotism/.