CIVIL RIGHTS POLICIES, ANALYSIS, AND RESOURCES
The Civil Rights Domain tracks and reports on policies that deal with voter rights, police brutality, free speech, the right to privacy, and other human rights enshrined in our constitution. This domain tracks policies emanating from the White House, the Justice Department, Department of Homeland Security, the Department of Housing and Urban Development, and state legislatures. Our Principal Analyst is Rod Maggay who can be reached at email@example.com.
Latest Civil Rights Posts
Brief #117—Civil Rights
By Rod Maggay
Due to the dangers of the COVID-19 coronavirus, the U.S. federal government, a number of U.S. states and numerous local governments encouraged a variety of preventative social measures to try and contain the virus. Shelter in place and stay at home orders, the closing of non – essential businesses and suggested social distancing techniques eventually led to an estimated 150 million Americans – out of an estimated 325 million total population – unwillingly confined in their homes.
Due to the dangers of the COVID-19 coronavirus, the U.S. federal government, a number of U.S. states and numerous local governments encouraged a variety of preventative social measures to try and contain the virus. Shelter in place and stay at home orders, the closing of non – essential businesses and suggested social distancing techniques eventually led to an estimated 150 million Americans – out of an estimated 325 million total population – unwillingly confined in their homes. Most suggestions and orders by the governments were to last through March 2020 but some have been extended into April 2020.
On June 9, 2020 the State of Nevada is scheduled to hold a primary for all statewide offices. (Nevada held a presidential caucus in February 2020 for only the candidates for the Democratic presidential nomination. Senator Bernie Sanders of Vermont won the state’s delegates in that contest). However, because of concerns about spreading the COVID-19 coronavirus in polling stations where hundreds would gather at a time and thousands would pass through throughout the day, Nevada Secretary of State Barbara Cegavske announced, in conjunction with county election officials in all seventeen (17) of Nevada’s state counties, that the primary election would be conducted entirely by mail and absentee ballot. Shortly thereafter, Governor Steve Sisolak (D-NV) announced his approval of the decision. LEARN MORE
There is no doubt that the COVID-19 coronavirus has upended nearly all aspects of American life in 2020. No sector has been spared – the national economy, the American sports world and a number of social events have been curtailed and/or suspended to prevent more Americans from being infected and prematurely struck down dead by the virus.
But in March 2020 and with a coming summer election season that will lead up to the November 2020 American elections, questions have emerged as to how the U.S. will conduct elections with stay at home orders and social distancing practices in place. American elections are a time for Americans to congregate at polling stations around the country and select the candidates of their choice yet medical recommendations and precautions cannot be ignored because of the need to stem the spread of this dangerous virus.
In response, a total of twelve states have made adjustments to upcoming primaries. Seven states moved their upcoming primaries to June 2, 2020 (Connecticut, Delaware, Indiana, Maryland, Ohio, Pennsylvania and Rhode Island) while Louisiana, Kentucky and Georgia moved their primaries to a number of different dates in May and June 2020. By pushing the dates further into the summer, it was hoped the spread of the virus would be contained by then and it would be safe for American voters to visit their local polling booths.
In that context, Nevada’s decision is unique in that it has become the first state to announce a primary that will be conducted entirely by mail. A number of other states have publicly urged citizens to vote by absentee ballot (Wyoming, Alaska and West Virginia) but Nevada is the first to make voting by mail for this primary mandatory. Voters don’t even have to request an absentee ballot, as is the usual practice. Nevada will simply mail all registered voters their ballot with technical instructions as to how to fill it out and how to utilize either of the two options to return the package. Voters can simply drop it in any mailbox or drop it off at their local polling station at a drive – through site. Ballots will have to be received or postmarked by primary election day but Nevada has assured their voters that there will also be a seven – day window for the state and/or the voter to correct technical errors if any are detected.
While America and much of the world remains on edge with the ongoing threat of this virus, the steps taken by the State of Nevada to continue the democratic process with a workable absentee ballot/mail – in system is the model other states should implement as soon as possible. LEARN MORE, LEARN MORE, LEARN MORE
- Election Protection – non – profit group working to protect citizen’s right to vote with webpage on states who have adjusted their primaries because of the COVID-19 coronavirus.
- Lawyers Committee For Civil Rights Under Law – non – profit’s webpage with a broad general overview of issues related to voting rights.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
Photo by James Walsh
On January 3, 2019 Rep. Bobby L. Rush (D-IL) introduced in the U.S. House of Representatives H.R. 35, known as the Emmett Till Anti – Lynching Act. The bill proposes to modify the Civil Rights Act of 1968 and other relevant civil rights sections by including the act of lynching as a punishable federal crime for the first time. The bill permits a term of imprisonment to be extended to a full ten years if the term of imprisonment imposed is less than ten years. The bill was referred to the House Judiciary Committee, which recommended on October 31, 2019 that the bill be passed. On February 26, 2020 the full House chamber voted on the bill and the bill passed by a vote of 410 to 4. The bill is now before the U.S. Senate and is scheduled for a likely conference committee meeting to iron out differences with a similar anti – lynching bill that the U.S. Senate passed in 2019. LEARN MORE
The history of lynching in the United States is one of the darkest chapters in this nation’s history. The term came to be associated with the vigilante act of “punishment without trial” and took root in the United States South as a way to terrorize and intimidate African – Americans from participating in American civic and social life. In general terms, whites who became outraged at a perceived insult or some misconceived act of disrespect often kidnapped one or more African – Americans, killed the persons and then hung the people from a tree where pictures were taken with smiling white people. According to the National Association for the Advancement of Colored People (NAACP) from 1882 to 1968 there were 4,743 lynchings in the United States. 3,446 of those people were African – American and occurred in all U.S. states except four although most occurred in the U.S. South.
Efforts to try and pass a law to make lynching a federal crime have been ongoing for more than one hundred years. The first known anti – lynching bill was introduced in Congress in 1900 by the lone black Congressman at the time, George Henry White of North Carolina. That did not succeed but numerous bills continued to be brought through the decades with nearly 200 separate attempts through the years. But most bills, even if they were successful in the House, would be filibustered and blocked by Southern senators who said it was a state’s rights issue. As a result every attempt failed and lynchings continued nearly unabated in the Southern states.
A century after Congressman White’s initial federal anti – lynching bill, acknowledgment of the horrific crimes and the Senate’s refusal to do anything helped renew interest in the topic. In 2005 the Senate put forth a formal apology for obstructing attempts to pass an anti – lynching law for the last one hundred years. And now with the passage of H.R. 35 it seems that a federal law outlawing lynching looks likely to pass and become law. Since the Senate had passed a slightly different version in 2019, the two chambers have set up a conference committee to align both versions so that the final version of the bill that is approved is the one that was approved by both houses of Congress. Senator Mitch McConnell (R-KY) has expressed support for the bill as well as President Donald Trump who has pledged to sign the bill whenever a bill is presented to him for his signature. Some say the bill is merely a symbolic measure but the text of the bill indicates that this bill is necessary now as an act of national contrition and as an attempt to try and curb the rise of racist and white nationalist rhetoric that has been on the upswing in America in recent years. LEARN MORE, LEARN MORE, LEARN MORE
- National Association for the Advancement of Colored People (NAACP) – civil rights organization’s webpage on history of lynching in the U.S.
- Southern Poverty Law Center – non – profit group dedicated to fighting hate and bigotry.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
Photo by John Mark Arnold
The Twenty – Fourth Amendment to the United States Constitution provides in Section One:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
On November 6, 2018 voters in the State of Florida approved the ballot initiative known as Amendment 4. The initiative would permit Florida felons to be restored with the right to vote after they had completed all the terms of their sentence. Florida voters approved Amendment 4 overwhelmingly with 64.55% voting in favor while 35.45% voted against the measure. In 2019, due to Republican opposition to Amendment 4, Governor Ron DeSantis signed a bill that added an additional requirement before the right to vote was restored. SB 7066 required that felons must also pay all fines and fees associated with their sentence.
The battle then moved to the court system. The Florida Supreme Court ruled that the law was constitutional. However, another suit was brought in federal district court in Florida, which ruled that the additional requirements of SB 7066 violated the U.S. Constitution and therefore issued an injunction blocking implementation of SB 7066. That ruling was appealed to the U.S. Court of Appeals for the Eleventh Circuit, which just ruled to uphold the injunction of the law issued by the federal district court. So it appears that for now felons will be able to vote. LEARN MORE
While this decision by the U.S. Court of Appeals for the Eleventh Circuit is a win for voting rights advocates it is certainly not the end of the case. The injunction initially issued by U.S. District Judge Robert Hinkle was only an order to prevent the law from going into effect until the issue can be decided on the merits at a full trial. With the injunction upheld by the appeals court the law remains frozen pending the non – jury trial that had been scheduled, which will begin in April 2020.
Additionally, Governor De Santis’ has indicated that he was disappointed with the ruling and intends to appeal the decision. An appeal would likely take several months to be resolved and might not be resolved in time for the November 2020 elections. However, a number of academics have calculated that the number of felons who would have their voting rights restored is 1.4 million which can certainly sway an election or an initiative on the ballot. This explains why both parties are going to extreme lengths to fight for the future of this issue. Republicans had initially opposed Amendment 4 and suffered an unexpected defeat when voters overwhelmingly approved it. In turn, Democrats have accused Republicans of trying to oppose the popular will of voters by adding additional requirements that would blunt the move to add 1.4 million more voters to the state rolls. And if the case moves up through the appeals process and eventually to the U.S. Supreme Court that will also likely bring up the constitutional poll tax issue which was outlawed with the 24th Amendment in 1964. The stakes are certainly high and while many would have liked to have had this issue resolved in time for the November 2020 elections it seems up in the air whether 1.4 million former felons in Florida will have their voting rights restored by the end of the year. LEARN MORE, LEARN MORE, LEARN MORE
- Brennan Center for Justice – non – profit group’s Voting Rights Restoration project.
- American Civil Liberties Union (ACLU) – statement on appeals court decision regarding voter restoration to felons in Florida.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.
On President Donald J. Trump’s campaign re – election website for 2020 he lists numerous accomplishments during his first term thus far as well as promises that he claims to have fulfilled from his 2016 presidential campaign. The website address is even www.promiseskept.com. Under the tab for “Law and Justice” President Trump is touting his efforts in “Reshaping The American Courts.” He lists his well – known efforts in successfully nominating two conservative Supreme Court justices in Neil Gorsuch and Brett Kavanaugh. He also lists what he has done with filling the rolls of federal appeals court judges and federal district court judges.
In just over three years President Trump has appointed more than fifty (50) federal appeals court judges. And at the federal district court level President Trump has appointed more than one hundred thirty – three (133) judges. With the fifty (50) federal appeals court judges out of one hundred seventy – nine (179) total, President Trump is responsible for nearly twenty – eight percent (28%) of the judges at the federal appeals level. And with one hundred thirty – three (133) federal judges appointed at the trial level out of six hundred seventy – seven (677) total the President is responsible for nineteen percent (19%) of the federal trial judges currently in service. LEARN MORE, LEARN MORE
Recent news articles have recently begun to sound the warning about what President Trump has done to the American judiciary and the consequences in the decades to come. But this effort did not begin with the Trump Presidency. In fact, there has been a long – standing battle in Congress for the last decade that has resulted in Republicans being able to exert more control over the American court system. The strategy of Republicans and evangelical groups, who overwhelmingly support Republican candidates, has been to stall and defer and possibly prevent appointments under a Democratic President and then change the rules to more favorable rules once a Republican President was elected.
In Congress, the Senate must approve all judicial nominations but the procedure to get there has undergone a radical change since 2011. With the Democrats in control of the Senate at the time, they also controlled the committees and could have installed more federal judges. However, former Judiciary Committee Chair Patrick Leahy (D-VT) reinstituted an old rule called “blue – slip” which allowed a home state senator to block a nominee if the nominee was going to serve on the bench in the senator’s home state. This allowed Republican senators to block Democratic federal judge nominations indefinitely and leave the bench open until the day a Republican became President. Numerous Obama federal judge nominations were simply blocked and kept vacant by a Republican senator if the judge was going to serve in his or her state. With the Republicans back in control of the Senate in 2016, they simply ignored the “blue – slip” tradition and proceeded to confirm as many Republican judges as possible after President Trump was elected.
Additionally, the way filibusters were handled was changed. Republicans would often “filibuster” federal judge nominees and simply keep talking so the debate would not end and a vote could be delayed. The only way a filibuster would end was if sixty (60) senators voted to end the debate. But the rule was changed so that only fifty (50) senators was required to end filibusters. Because of the inability to block a vote, Republicans have taken advantage of their current numbers in the Senate and simply voted to end filibusters and then rushed a vote to confirm federal judges.
What this means is that Republicans have very nearly succeeded in confirming an inordinate number of federal judges, which could have consequences for many social policies in the future. One worry is that many of these judges are mere idealogues who are simply there to rubber stamp Republican policies. Two Trump nominees – Sarah Pitlyk in St. Louis and Lawrence Van Dyke to the 9th Circuit Court of Appeals were both rated unqualified by the American Bar Association (ABA). And the main worry is how they will handle controversial topics such as abortion rights, voting rights, campaign finance, police accountability, religion and discrimination and LGBQT issues. The future of the American courts and the judiciary should be watched closely to see that it does not become overtly partisan. And, of course, one goal for the 2020 election cycle is to hope the Democrats regain control of the U.S. Senate in order to take back control of the judicial confirmation process. LEARN MORE, LEARN MORE, LEARN MORE
- Alliance For Justice – non – profit group’s Building the Bench program to take back American courts and ensure they remain independent.
- Brennan Center for Justice – report on federal judge nominations and attending issues.
In January 2020 the Lockport City School District located in western New York State activated a facial recognition technology program in all of the public schools in the city of Lockport in Niagara County. The school district had first been approached in 2015 and was approved by the New York State Education Department in 2017. However, news of the decision was met with resistance from local citizens that caused the project to be delayed until the project could be further reviewed by state authorities. Installation of the security cameras with facial recognition technology was finally approved and was activated in January 2020. LEARN MORE
The decision of the Lockport City School District comes after a long drawn out fight over the pros and cons of facial recognition technology. While Lockport was not the first school district in the United States to implement the controversial technology (eight public school systems have been identified as using the technology) the school district has generated attention to the issues about the use of the technology on school campuses.
When the New York Civil Liberties Union (NYCLU) received word that the technology would help put suspended students in a database for future use they released a statement stating, “[T]his technology [ ] could end up [causing students of color] being subject to more scrutiny.” Parents in Lockport even created a petition to delay implementation of the surveillance system. Parents and students voiced concerns that the technology would be able to track their whereabouts and who they associate with in social groups. The school district responded by stating that the system was going to be used to keep out uninvited guests such as suspended students and local sex offenders. Other school districts have pointed to recent school shootings as a reason for using the technology.
The debate on facial recognition technology always comes down to invasion of privacy and other civil liberty concerns. While the use of the systems have often been used to monitor public spaces (outdoor venues, parks, streets) the use of the technology in the school is unique because it is being used in only one location – a school campus – that has a regular and known set of daily attendees. The students and teachers will always be the same throughout the year unlike a public street. Students in districts that have been using the technology have also pointed out that having the cameras on campus have not made them feel any safer but is instead a reminder that something could happen. And because of the well known inaccuracy of the systems the debate has shifted as to whether it is proper to subject still developing adolescents to a system that could label them as potential threats for incidents that could be classified as ordinary adolescent mischief. The psychological effect on children can likely be more devastating than if the student was simply scanned on a public street. Due to these concerns, the technology should be scrutinized, if not outright barred, from school environments. Usage in a classroom and on school campuses is far different than having the technology employed on public streets and venues. LEARN MORE, LEARN MORE
- Electronic Frontier Foundation (EFF) – one – page infosheet on facial recognition technology issues.
- American Civil Liberties Union (ACLU) – report tracking the facial recognition technology debate in Lockport, New York.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org
Constitutional Right To Prayer and Religious Expression In Public Schools Remains The Same Despite New Proclamation From President Trump
Policy Summary: On January 16, 2020 President Donald J. Trump issued an update to a 2003 Federal guidance document regarding protected prayer and religious expression in public schools.
The document states that the guidance it is issuing for public schools will “promote equal treatment” for religious organizations and “champion the fundamental right to religious freedom.” Additionally, the guidance will require that “local educational agencies must confirm that their policies do not prevent or interfere with constitutionally protected rights” in order to receive Federal funds and will “help improve individuals’ ability to file a complaint” if they are prohibited at a public school from prayer or religious expression. LEARN MORE, LEARN MORE
Policy Analysis: While the updated guidance document and the Proclamation declaring January 16, 2020 Religious Freedom Day have generated alot of news about President Trump’s purported support for the role of religion in American public life, a closer analysis of the guidance document shows that it makes no meaningful changes to the current state of American law and policy when it comes to the subject of prayer and religious expression in public schools.
After President Trump’s announcement, many concerned civic groups came forward to express their opposition to the position taken by the Trump Administration. Americans United for the Separation of Church and State (AU), a non – profit group, issued a tweet stating that President Trump wasn’t really protecting the idea of religious liberty but was merely pandering to American religious extremists who are determined to “inject a narrow set of religious beliefs into our public schools.” Rob Boston of AU also wrote a blog post where he said students in public schools have always had the right to pray and express their religion as long as the student’s action does not disrupt class and is voluntary. For President Trump to claim that he will “not allow anyone to push God from the public square” is misleading. There is no effort to push God or religion from the public square. The effort is to uphold the concept of a separation of church and state while allowing personal expressions of religion as long as it is not disruptive to secular activities. By simply re – stating the same principles from the 2003 Federal guidance document in his 2020 Federal guidance document the Trump Administration has simply done nothing of substance to further uphold the Federal policy regarding prayer and religious expression in public schools.
The response from Heather Weaver, a senior staff attorney at the American Civil Liberties Union’s (ACLU) Program on Freedom of Religion and Belief hints at what the real motivation was for the Trump Administration. Ms. Weaver stated, “Government-funded programs, including those operated by faith-based organizations, should not be able to discriminate against vulnerable people seeking help.” Ms. Weaver was likely implying that religious groups were being targeted and courted by President Trump with the re – statement of this religion policy. A number of religious groups have tried to assert that their religious beliefs are under attack simply because they are not allowed to discriminate against people with different values from their own, such as LGBQT issues and persons. President Trump’s issuance of this policy then, even though it makes no substantive changes, appears nothing more than a political tactic aimed at securing more support from Christian and evangelist groups. It does not seem to be making any real headway into championing the concept of religious freedom. LEARN MORE, LEARN MORE, LEARN MORE
- Americans United For The Separation of Church and State (AU) – blog post criticizing President Trump’s Federal guidance regarding protected prayer and religious expression in public schools.
- American Civil Liberties Union (ACLU) – press release from non – profit group on President Trump’s school prayer guidance.
Photo by Chris Liverani
Policy Summary: On January 15, 2020, the Virginia State Senate and the Virginia House of Delegates voted to ratify the Equal Rights Amendment (ERA). The Senate voted to approve by a 28 – 12 vote while the House of Delegates voted 59 – 41 to approve the amendment. With ratification by both houses of the Virginia State Legislature proponents of the ERA claimed that Virginia became the 38th state to approve the constitutional amendment. Article V of the U.S. Constitution requires that after approval by Congress, three – fourths of the states is required to approve a constitutional amendment. Virginia’s approval as the 38th state to ratify would seem to indicate that the requisite three – fourths threshold has been met. LEARN MORE, LEARN MORE
Policy Analysis: The time period issue and the withdrawal of approval undertaken by a number of states have complicated the process of ratification of the Equal Rights Amendment (ERA). ERA opponents claim that the time period for approval instituted by Congress makes any approval by a state after 1982 invalid. They claim that the three states that approved the amendment after 1982 have never been valid and the number of states approving the amendment remains at thirty – five.
Additionally, a joint lawsuit filed in December 2019 by the attorney generals of Alabama, Louisiana and South Dakota sought to prevent certification by the archivist of the United States, the final step in making a constitutional amendment official. Their reasoning was that five states that had originally ratified the amendment had subsequently voted to rescind their ratification. Idaho, Kentucky, Nebraska, Tennessee and South Dakota voted to rescind, which their lawsuit claims reduces the number of states who have voted to approve the amendment. Based on these arguments, Virginia’s approval would only make it the thirty – first (31st) or the thirty – sixth (36th) state to approve depending on the count being used. The issue of whether a state can vote to rescind their approval after having originally voted to approve an amendment appears to be a legal issue that is headed to the courts for determination. The fate of the Equal Rights Amendment has wide support but the validity and future of the amendment still hangs in the balance. LEARN MORE, LEARN MORE, LEARN MORE
Equal Rights Amendment (ERA) – webpage with info on the status of the ERA.
National Organization for Women (NOW) – women’s advocacy group containing info on the ERA and other issues.
Photo by Nick Fewings
President Trump’s Plan To Rollback Civil Rights Protections Starts With The “Disparate Impact Rule”; White House Policy
Policy Summary: For the past year, there has been a movement in the Trump Administration to roll back civil rights protections by targeting a legal rights standard that has been used for decades – the disparate – impact rule. In 1971, the U.S. Supreme Court decided Griggs v. Duke Power Co. which first recognized the disparate – impact rule. The case dealt with racial discrimination under Title VII of the Civil Rights Act of 1964 and the hiring practices of the power company. The Court there stated that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” The rule was thus recognized as a legal theory to bring a lawsuit and the legal standard to prove discriminatory actions. This legal rule is the opposite of the disparate treatment legal rule. That rule permits a lawsuit if a plaintiff can prove that a party or policy was enacted with the purposeful intent to discriminate against a certain group of individuals. Both theories are available as parts of various agency regulations while others have been enshrined in statutes, such as voting rights laws.
For the last year, the Trump Administration has focused on only supporting disparate – treatment claims (intentional discrimination claims) and has made efforts to try and rescind disparate – impact rules, most notably at Housing and Urban Development (HUD) and with racial disparity school discipline guidance rules at the Department of Education. LEARN MORE
Analysis: The key thing to remember about the disparate – impact and disparate treatment legal rules is that a disparate – impact claim can be brought in court if there is a policy that does not appear to be discriminatory based on the text or words of the policy but the effect of the policy as implemented results in discrimination against a protected class of people. A disparate treatment legal theory is one where the words or text of the policy is clearly discriminatory against a class of people.
This distinction is important because it helps to illustrate the direction that the Trump Administration is trying to chart in the field of civil rights. The reason that the Trump Administration and conservatives want to eliminate disparate – impact rules from federal agency regulations and other areas of the law is because they prefer to only punish those who intentionally engage in the various types of discrimination. They do not find it fair that a neutral policy that inadvertently discriminates against a class of people should end up with someone punished when there was no intent to discriminate. However, supporters of the disparate – impact rules argue that the disparate – impact rules are necessary because it can often be difficult, if not impossible, to prove that a person or entity intentionally discriminated against a class of people. Most people are more careful in their communications, such as e-mail, and will take care to not say anything that could implicate themselves. And, critical documents can be lost with the passage of time and essential decision – makers eventually die which makes it harder to prove that there was an intentional effort to discriminate.
The efforts currently going on at HUD and the Department of Education to try and eliminate this useful legal theory is disconcerting and could have far – reaching implications beyond HUD and DOE. The issue could likely affect transgender issues (serving in the military, gender identity bathrooms) and the ability to pursue a claim collectively as a class. The same can be said with community claims regarding policing and law enforcement issues. These rules are scattered through a number of agency regulations and a number of statutes but they must be monitored closely to ensure that a valuable legal tool to fight racial discrimination in a number of sectors of American society is not removed. LEARN MORE, LEARN MORE, LEARN MORE
- American Civil Liberties Union (ACLU) – statement on possible rollback of disparate – impact rules.
- Lawyers’ Committee For Civil Rights – blogpost on proposed HUD rule that sought to weaken the disparate – impact rule.
- Defend Civil Rights – organization that seeks to defend the disparate – impact rule in the fair housing field.
Photo by Kayle Kaupanger
Congress Debates Modifications to Section 230 of the Communications Decency Act Despite Opposition; Congressional Bills
Policy Summary: Section 230 of the Communications Decency Act of 1996 states “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
In the last few months, there has been a movement in Congress to reconsider Section 230 and to maybe roll back the protections that Section 230 provides. In June 2019 Senator Josh Hawley (R-MO) introduced the “Ending Support for Internet Censorship Act” which would modify Section 230 significantly. The bill would remove automatic Section 230 immunity for big tech companies. Additionally, the bill would condition immunity for big tech companies if they can prove through “external audits” that their third party moderation practices are “politically neutral.” And on October 16, 2019, the House Energy and Commerce Committee held a hearing that featured testimony from Electronic Frontier Foundation (EFF) Legal Director Corynne McSherry defending Section 230. And just this past month, Speaker of The House Nancy Pelosi backed a move to omit Section 230 protections from a number of potential global trade deals. Speaker Pelosi’s office noted that Congress was still debating the future of the law as one reason why it was not included in upcoming trade deals. LEARN MORE
Analysis: While Section 230 has always been controversial since its passage in 1996 the recent genesis for the debate in Congress over the section lies in Congressional frustration with Facebook, Twitter and other online platforms in developing a workable policy that addresses hate speech, political speech and other speech concerns. The inability to make progress in that arena has prompted Members of Congress to turn to Section 230 and maybe make some changes to that law to encourage online platforms to rein in companies to motivate them to deal with the speech concerns that have plagued many of those platforms and websites.
But is removing the immunity from those potential lawsuits the best way to approach hate speech and online bullying that can be found on those platforms? While those concerns need to be addressed on a daily basis and no workable solution has yet been drafted, it is telling that two of the most well known civil rights groups in the country have come out in defense of Section 230 as written and have taken the position to oppose changes to the law. The American Civil Liberties Union (ACLU) issued a blog post that praised Section 230 and listed instances where the law has helped to foster technological innovation and free speech while even acknowledging that mistakes can happen here and there. But the overall point made by the ACLU is that Section 230 is positive. And the Electronic Frontier Foundation (EFF) has issued one – page information sheets that explains why Section 230 is important, not broken and a benefit to society. The info sheets is similar to the points made by the ACLU and is significant because it comes from EFF – a well – respected non – profit group whose mission is to defend civil liberties in the digital world.
The other side of the argument in Congress has made waves for what it is suggesting but the option, specifically from Senator Hawley in Missouri, is seen as nothing but a last resort for Congress’ failure to push online platforms to workable speech policies. Senator Hawley’s “Ending Support for Internet Censorship Act” is disturbing on a number of levels. His bill would give the federal government a role in determining what speech is appropriate on websites which can easily lead to censorship of topics that the government does not favor. And the term “politically neutral” is a term that is so vague that it can only cause confusion in trying to have it implemented in a fair and objective manner. This bill from Senator Hawley would destroy any benefits that Section 230 has brought over the last twenty – three years.
While the debate in Congress continues over the future of Section 230, it is becoming clear that Section 230 has had a positive effect. While it can of course be improved as any law can, the positions taken by the ACLU and EFF touting its benefits should be taken seriously lest the U.S. make a rash and uninformed decision to modify Section 230, especially in a way that Senator Hawley’s bill proposes to go. LEARN MORE, LEARN MORE
- Lawfare – legal website’s essay on the history, development and motivations for enacting Section 230.
- Electronic Frontier Foundation (EFF) – non – profit group webpage on Section 230.
- American Civil Liberties Union (ACLU) – non – profit group webpage on Section 230.
Photo by Quino Al
Federal Court of Appeals Case Rules On The Limits of Obligations Of Colleges and Universities In Title IX Campus Sexual Assault Incidents
On December 12, 2019 Circuit Judge Alice M. Batchelder issued the opinion of the court in Kollaritsch v. Michigan State University. This opinion helped to clarify how “student – on – student” sexual harassment incidents are to be handled as it pertains to the causes of action a victim can pursue under Title IX of the Education Amendments of 1972. Title IX is a civil rights provision that was passed to supplement the Higher Education Act of 1965. It reads “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” In the early 2000’s, this law evolved and was now primarily being used to adjudicate alleged sexual misconduct between co – eds on college campuses.
In January 2012 Emily Kollaritsch filed a report to Michigan State campus authorities alleging a sexual assault. An investigation was initiated and the perpetrator was placed on probation and prohibited from contacting Ms. Kollaritsch. However, Ms. Kollaritsch continued to see the perpetrator around campus which prompted her to file a “retaliation complaint.” Another investigation was undertaken but this time it was determined that no retaliation occurred and was merely the result of Ms. Kollaritsch seeing the perpetrator around campus. Afterwards, Ms. Kollaritsch brought a lawsuit against the school alleging a Title IX violation claiming the school’s actions deprived her of educational opportunities. The district court ended up dismissing all of the plaintiff’s claims except four claims that relate to the Title IX claim. The case was then appealed to the United States Court of Appeals for the Sixth Circuit where the court ruled that Ms. Kollaritsch and the other plaintiffs did not have a Title IX case to pursue for their sexual assault allegations. LEARN MORE, LEARN MORE
The issuance of the opinion in this case has caused quite a stir with a number of publications calling the ruling a “narrowing of a school’s Title IX obligations” to female students who are victims of sexual assault. But those interpretations are a bit extreme and overlook the overall effect of this decision on Title IX cases. The opinion is actually a pretty straightforward illustration of how a court interprets words and phrases in a statute and how a court can rein in interpretations that go further than what is allowed under existing rules and cases. In this case, Circuit Judge Batchelder helped elaborate on the Title IX cause of action against a school by the student by clarifying key terms found in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). That case held that a school can be held liable to a student if  it is deliberately indifferent to sexual harassment and  has actual knowledge that is so severe, pervasive and objectively offensive…to deprive the victims of…educational opportunities. Her opinion goes in depth to define each term but when it came time to apply the standard to the facts of Ms. Kollitscher’s case it found that she did not have an appropriate Title IX action. The court said that the victim merely “seeing” the perpetrator around campus did not amount to severe, pervasive and objectively offensive harassment. And it also stated that the school was not deliberately indifferent because it did not take an act or perform an act of omission that could be considered unreasonable to the victim. The court is careful to not be dismissive of the injuries suffered by the victim. But in a civil rights context which could have resulted in liability against the school the court made clear that a victim’s complaint must not be general in nature and must be factually specific as to the harm she suffered, why it was caused by actions taken by the school and not merely be a list of other harms suffered by third parties on campus.
While this opinion may be a controversial ruling at the moment, the key takeaway is that the ruling is laying out the outlines for how sexual assault claims based on Title IX at institutes of higher learning need to be approached. What the case did was help clarify what the obligations are of a school and other parties whenever a sexual assault complaint is filed at and against the school. The way schools approach sexual assault incidents may be different in the future after input from legislators, victim rights groups and other stakeholders but at least for now a court is wading into the issue with a plan that could lay the groundwork for a fair and workable plan in the area of campus sexual assaults. LEARN MORE, LEARN MORE
RISE NOW – Sexual Assault Survivors Bill of Rights – group advocating sexual assault survivors legislative reform bills.
RAINN – non – profit group geared to developing programs and services that support survivors of sexual violence and their loved ones.
Photo by Mihai Surdu