The Not So Fair Housing Act: Disparities in Home Valuations

*Iyana Arrington

I. Introduction

During the summer of 2021, Baltimore natives Nathan Connolly (Nathan) and his wife, Shani Mott (Shani), pursued a home mortgage refinance.[1] After purchasing their home, the couple made numerous renovations.[2] However, the appraiser valued their home at only $472,000.[3] Months later, the couple applied again; but this time a colleague stood in as the homeowner.[4] The colleague acquired a value of $750,000—nearly sixty percent higher than their previous appraisal.[5] The home was identical for both applications; the only difference was that Nathan and Shani are African-American, and their colleague is white.[6] This is only one case among dozens in which homeowners of color experienced discrimination in their home valuations.[7]

For many years prior to 1968, the government used racial classifications to explicitly segregate housing.[8] Federal legislation perpetuated systemic racism by spearheading discriminatory housing policies.[9] To correct this issue, Congress introduced the Fair Housing Act of 1968 to strike down prior legislation that resulted in unequal treatment under the law.[10] While the law remains facially neutral today, remnants of de facto discrimination[11] in the housing market continue to impact minority communities.[12]

II. History

Racially-biased federal policies have played a critical role in the creation and endurance of segregated housing assessments.[13] In the 1930’s, the Federal Housing Administration (Administration)[14] refused to provide mortgage loans on homes located where the Administration presumed the loan might create an “inharmonious racial group” within a neighborhood, further propelling the problematic principal that race mixing was inappropriate and devaluing homes in African-American neighborhoods and artificially inflating housing values in White neighborhoods.[15] Subsequently, lenders began instituting practices, like “redlining,” to ensure segregated standards for homeownership.[16] Under these circumstances, home appraisals[17] became instrumental to the federal government’s scheme for the housing market, resulting in home values being heavily impacted by race.[18]

The Fair Housing Act of 1968 was introduced to address discrimination issues in the housing market and reverse prior intentional practices.[19] This legislation prohibited housing discrimination in transactions, while simultaneously requiring the federal government to administer housing programs in a manner that would affirmatively undo the vestiges of historic segregation.[20] However, in the midst of the political climate at the time,[21] the statute was rushed into implementation and legislators neglected to include particular methods for enforcement.[22] As the years progressed without any initial enforcement power, the government’s attempt to use the Fair Housing Act as an adequate remedy for housing market discrimination failed.[23]

III. Implications

While the progression of remedies under the Fair Housing Act displays the federal government’s attempt to eliminate de facto segregation in housing practices, some issues remain unaddressed and continue to affect minority communities.[24] According to the 2020 census, White Americans account for approximately sixty-two percent of the nation’s racial makeup, while African-Americans are represented at nearly fifteen percent.[25] Even with this drastic difference, studies show that today, the average African-American resides in a neighborhood that is only thirty-five percent white.[26] Because real estate in predominantly minority areas has consistently been undervalued, many others are unwilling to purchase in these zones.[27] These practices, although unintentional, significantly contribute to the racial wealth gap by suppressing the value not only of homes but of whole communities.[28]

These programs have impacted many major cities.[29] For instance, homes in predominately Black neighborhoods in Baltimore are chronically valued at about fifty percent less than the homes of their non-minority counterparts.[30] The primary issue with the disparity in valuations is that it hampers the ability of minorities to build equity in their homes.[31] Minority neighborhoods have experienced unrecoverable depreciation in home values.[32] Studies conducted after the 2009 recession indicate that Black homeowners continuously accrued less equity and were more likely to end the period with negative equity.[33] As another recession looms,[34] the central question is whether minority homeowners can sustain another drastic decrease in their property values.   

States across the country have begun to act to combat this issue.[35] In 2020, New Jersey introduced a bill that outlines legislative action for fining, suspending or revoking the licenses of appraisers who knowingly engage in discriminatory practices in valuing homes.[36] It also requires appraisers to inform sellers of the complaint process.[37] Many other states have also begun to take similar approaches to this proposed legislation.[38] But, most notably, President Biden has increased efforts on the federal level to supplant racial biases in housing practices.[39] In March of 2022, President Biden established the Interagency Task Force on Property Appraisal and Valuation Equity (PAVE) and gave them the responsibility of “clos[ing] the racial wealth gap by addressing mis-valuations for families and communities of color.”[40] PAVE’s action plan discusses how valuation bias developed alongside the scheme of the Fair Housing Act and outlines specific commitments for correcting this history, including: professional standards for appraisers; a valuation “appeals” process for victims of discrimination; requiring anti-bias training for all appraisers; and funding opportunities that educate homeowners of color on appraisals.[41] While PAVE’s plan is comprehensive and addresses many of these issues, until the federal government implements these procedures for dismantling discrimination in valuations, there is no clear solution to stop this subjective appraisal process.

IV. Conclusion

Black neighborhoods are estimated to have lost approximately $156 billion cumulatively due to discriminatory housing valuations.[42] Although instituted as a tool to protect minorities, the Fair Housing Act has not addressed the influence of systemic racism and unconscious bias on the housing market.[43] As more states begin to adopt legislation specifically geared toward housing appraisals, the federal government should take the initiative to formulate concrete rules and procedures for ensuring these discriminatory practices do not continue to irreparably harm minority communities.

*Iyana Arrington is a second-year day student at the University of Baltimore School of Law. She serves as a Staff Editor for the Law Review, a Legal Writing Fellow in the Legal Writing Center, and a Teaching Assistant and Law Scholar for Contracts I and II. She is also a member of the Fannie Angelos Program for Academic Excellence at the University, as well as a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. In May, she plans to join the Baltimore office of Baker Donelson as a 2023 Summer Associate.

[1] Debra Kamin, Home Appraised with a Black Owner: $472,000. With a White Owner: $750,000.,N.Y. Times (Aug. 18, 2022), https://www.nytimes.com/2022/08/18/realestate/housing-discrimination-maryland.html.

[2] Id.

[3] Id. This value was only about $20,000 more than their original purchase price in 2017. Id.

[4] Id.

[5] Id.

[6] Id.

[7] See Troy McMullen, For Black Homeowners, a Common Conundrum with Appraisals, Wash. Post (Jan. 21, 2021), https://www.washingtonpost.com/realestate/for-black-homeowners-a-common-conundrum-with-appraisals/2021/01/20/80fbfb50-543c-11eb-a817-e5e7f8a406d6_story.html.

[8] See Michelle Adams, The Unfulfilled Promise of the Fair Housing Act, New Yorker (April 11, 2018), https://www.newyorker.com/news/news-desk/the-unfulfilled-promise-of-the-fair-housing-act.

[9] See discussion infra Part II.

[10] Kamin, supra note 1.

[11] “De facto” segregation occurs when the government does not purposely discriminate; but rather, an unintentional government action causes a “racial imbalance.” Elise C. Boddie, The Muddled Distinction Between De Jure and De Facto Segregation 1 (Kristine L. Bowman ed.) (2020), https://theinclusionproject.rutgers.edu/wp-content/uploads/2020/07/the-muddled-distinction-between-de-jure-vs.-de-facto-segregation.pdf.

[12] See discussion infra Part III.  

[13] Michelle Zonta, Racial Disparities in Home Appreciation, Ctr. Am. Progress (July 15, 2019), https://www.americanprogress.org/article/racial-disparities-home-appreciation/.

[14] In response to the Great Depression, in an attempt to stabilize the housing market, the federal government established the Federal Housing Authority to provide publicly backed loans to boost the demand for housing at the time. Id.

[15] Amanda Tillotson, Race, Risk, and Real Estate: The Federal Housing Administration and Black Homeownership in the Post World War II Home Ownership State, 8 DePaul J. Soc. Just. 25, 36 (2016).

[16] Redlining refers to the government’s parameters for appraising properties, which included color-coded maps ranking the “loan worthiness” of different communities. Candace Jackson, What is Redlining?, N.Y. Times (Aug. 17, 2021),  https://www.nytimes.com/2021/08/17/realestate/what-is-redlining.html.

[17] An appraisal is a critical element of the homebuying and lending processes that establishes the value of the property. U.S. Dep’t. Hous. & Urb. Dev., Property Appraisal & Valuation Equity Action Plan 2 (2022).

[18] Matthew Blake & Georgia Kromrei, Home Appraisals Ugly History and the Uncertain Future, Housingwire (June 14, 2021), https://www.housingwire.com/articles/home-appraisals-ugly-history-and-uncertain-future/.

[19] See generally Sam Fulwood, The U.S. History of Segregated Housing Continues to Limit Affordable Housing, Ctr. for Am. Progress (Dec. 15, 2016), https://www.americanprogress.org/article/the-united-states-history-of-segregated-housing-continues-to-limit-affordable-housing/.

[20] Id.

[21] The original Fair Housing Act was instituted at a time where the nation was experiencing “significant turmoil” in a wave of race-related unrest. Id. Although the legislation was highly contested, the assassination of Dr. Martin Luther King propelled the enactment of the statute. Id.

[22] Id. (describing the development of HUD rules on how to better apply FHA to modern issues the court may encounter); see also Kamin, supra note, 1.

[23] Zonta, supra note 13.

[24] See 42 U.S.C. §3601 et seq.; Adams, supra note 8; Fulwood, supra note 19.

[25] Nicholas Jones, et al., 2020 Census Illuminates Racial and Ethnic Composition of the Country, U.S. Census Bureau (Aug. 12, 2021), https://www.census.gov/library/stories/2021/08/improved-race-ethnicity-measures-reveal-united-states-population-much-more-multiracial.html. 

[26] Zonta, supra note 13.  

[27] See Fulwood, supra note 19.

[28] See generally Zonta, supra note 13.

[29] Rashawn Ray, et. al., Homeownership, Racial Segregation, and Policy Solutions to Racial Wealth Equity, Brookings (Sept. 1, 2021), https://www.brookings.edu/essay/homeownership-racial-segregation-and-policies-for-racial-wealth-equity/.

[30] Id.

[31] Zonta, supra note 13.

[32] Id.

[33] Id.

[34] See Sarah O’Brien, We’re in a “Housing Recession,” Experts Say. Here’s What That Means for Homeowners, Sellers, and Buyers, CNBC (Aug. 23, 2022, 3:57pm), https://www.cnbc.com/2022/08/23/what-a-housing-recession-means-for-homeowners-buyers-sellers.html.

[35] See, e.g., N.J. Leg. No. 5185, 2020–2021 Gen. Assemb., 219th Sess. (2020); H.B. 5862, 101st Gen. Assemb. (Ill. 2020).

[36] N.J. Leg. No. 5185, 2020–2021 Gen. Assemb., 219th Sess. (2020).

[37] Id.

[38] See H.B. 5862, 101st Gen. Assemb. (Ill. 2020); see also Earl Hopkins, Franklin County Auditor Michael Stinziano Looks at Racial Inequalities in Housing Appraisal Process, Columbus Dispatch (Sept. 24, 2020), https://www.dispatch.com/story/news/politics/government/2020/09/24/franklin-county-auditor-looks-housing-discrimination/3509051001/ (describing how a county in Ohio plans to eliminate inequalities through a fair housing appraisal commission who will review valuations).  

[39] See generally U.S. Dep’t Hous. & Urb. Dev., Property Appraisal & Valuation Equity Action Plan 1–45 (2022).

[40] Id.

[41] Id. at 22–37.

[42] Johnathon Rothwell & Andre M. Perry, Biased Appraisals and the Devaluation of Housing in Black Neighborhoods, Brookings (Nov. 17, 2021), https://www.brookings.edu/research/biased-appraisals-and-the-devaluation-of-housing-in-black-neighborhoods/.

[43] See Adams, supra note 8.  

Take Their Crowns: Conservatives’ Subtly Sinister[1] Criminalization of Drag and Gender Expression

*Ashli Glatfelter

I. Introduction

As far as the queer community has come in nearly fifty-four years,[2] is it possible lawmakers will ban a staple of queer culture?[3] In recent years, more conservative states have introduced a torrent of bills targeting the LGBTQIA+ (LGBT) community and gender expression from multiple angles.[4] Beginning in 2022, some states introduced legislation restricting drag entertainment and performances[5] and placing aggressive limitations on the rights of transgender people.[6] One such bill, coined the “anti-drag bill,”[7] passed in Tennessee as recently as March 2023, and it has the LGBT community preaching: “Not today, Satan, not today!”[8]

Legislative discrimination against the LGBT community is nothing new.[9] In 1863, the first law against non-binary gender expression “prohibited someone from being out in public if they were wearing clothing that was different from their [legal] or assigned sex.”[10] Though laws sharing that bigoted sentiment have since been repealed,[11] the haunting new wave of anti-drag legislation, including the Tennessee law, leaves many questions about the extent of their enforcement and the potential for First Amendment challenges.[12]

II. Tennessee’s Anti-Drag Bill

The new Tennessee law effectively criminalizes drag by prescribing that “cabaret performers” shall “face misdemeanor charges in the first instance, punishable by a fine up to $2,500 and/or up to a year in jail”[13] for performing “on public property” or “in a location where [their performance] could be viewed by” minors.[14] Further, any “subsequent violations face a felony charge, punishable by up to six years in jail.”[15] Conservative legislatures have left the definition of “cabaret performers” intentionally broad, but these bills’ proponents[16] propose a certain definition that places drag performers squarely in the category of those who can be charged.

Generally, drag is the hyper-presentation of gender expression for entertainment purposes.[17] Many drag performers have drag personas that express the opposite of their assigned sex and gender identity, while other drag performers hyperbolically express their own gender identity.[18] Proponents of these anti-drag bills acknowledge this basic principle that drag performers exhibit different gender expressions because they included “male or female impersonators” within the definition of “cabaret performers.”[19] Conservative legislators contend that there is no entertainment value in drag performances. Rather, they assert that drag shows, by their gender-expressive nature, pose dangers to children.[20]

To curb the supposed dangers, the bills limit drag shows and performances in a number of ways.[21] They restrict where shows can be held and require the shows and potentially hosting businesses—like restaurants, bars, and nightclubs—to be “recategorized as sexually oriented enterprises,” requiring them to obtain specific permits, pay fees to remain open, and even lose state funding.[22] It remains untold just how far the restrictions on drag shows will reach. Will it prohibit drag performers from participating in cities’ Pride events?[23] Will it restrict schools or public libraries from hosting drag story times?[24] Will all bars have to black out their windows and stand guard at all doors to ensure no child can see in?[25]

The breadth of the proposed laws makes it conceivable that even non-drag performances by “male or female impersonators” could be subject to misdemeanor or felony charges.[26] When the definition of drag is limited to an expression of gender, while forgetting the “campy”[27] aesthetic, it brings traditional stage performances within reach of prosecution.[28] Such “broadness leaves theater shows or even female comedians dressed in pants at risk of violating these laws.”[29] Who is to say that young boys and girls who play the opposite gender to fulfill roles in school productions are not subject to criminal prosecution?[30]

As with any new law, there is a question of how the law will be enforced. In the near future, law enforcement could charge drag performers under the Tennessee law for dressing in drag on public streets or performing in places accessible to children—such as restaurants and libraries.[31] Unfortunately, for certain drag queens and kings, they may soon need to travel with more than their wigs, makeup, and outfits—an understanding of their legal rights may be more invaluable than new pumps or fresh tights.

III. Challenging Tennessee’s Anti-Drag Law

What follows is a brief analysis of the Tennessee law’s constitutionality concerning drag performers’ First Amendment freedoms of free speech and expressive conduct.[32] Individuals’ speech and expressive conduct cannot be restricted simply because the government or its agents do not like the messages therefrom or find them offensive.[33] While “[i]t has not yet been determined by a court that performances by female or male impersonators are expressive conduct protected under the First Amendment, [] scholars say they most likely are” because drag performances “consist of music, dance and theater, all of which have long been considered expression” protected by the First Amendment.[34]

In light of drag performers’ expressive conduct arguments, proponents of the Tennessee law would likely argue that drag performances are inherently obscene and, thus, not subject to First Amendment protection.[35] In 1973, the Supreme Court articulated that speech and expression are obscene and lawfully subject to government restrictions when three conditions are met: 1) an average person, applying community standards, finds that the work as a whole appeals to the prurient interest, 2) that the work shows, in a patently offensive way, sexual conduct specifically defined by the law, and 3) that the work, taken as a whole, lacks serious literary, artistic, political or scientific value.[36]

A. Community Standards and the Prurient Interest

First, when considering whether a drag performance as a whole “appeals to the prurient interest,” one must consider only local and state-wide, perceptions rather than national community standards.[37] One must then consider the average person in Tennessee. Is it those who frequent the cities of Nashville, Memphis, Knoxville, and Chattanooga? Or is it those who inhabit the state’s rural areas? A court’s determination of the average person sheds great light on the scope of the prurient interest.[38]

The Supreme Court has “defined material appealing to prurient interest as material having a tendency to excite lustful thoughts, and defined prurient interest as a shameful or morbid interest in nudity, sex, or excretion.”[39] Whether drag performances arouse any sexual thoughts is part of a larger debate.[40] Drag as an art form is varied, as it can be an exhibition of camp, fashion, pageantry, or even comedy.[41] Drag queens and kings who read books to children at local libraries surely present themselves differently than drag performers who perform exclusively at night clubs limited to viewers who are of age to drink alcohol.[42] Drag performers adjust the tone of their personas and shows to their intended audiences and venues, so to categorize all drag as prurient is a faulty argument that ignores the diversity within drag entertainment.[43]

B. Patently Offensive Specific Sexual Conduct

Section 1407 of the Tennessee law makes no attempt to specifically define the “sexual conduct” being criminalized.[44] Section 1401 gives more guidance, but its definition of “adult cabaret” lacks any mention of or relation to “sexual conduct.”[45] Within that same section, though, “entertainers” include those who perform “specified sexual activities,” described as the exhibition of stimulated genitals, masturbation or intercourse, and fondling of private parts.[46] Even if a more erotic drag performance falls into the last of the aforementioned exhibitions of “sexual activities,” whether any part of such performance is “patently,” or without a doubt, “offensive”[47] begs a look into the conservative sexualization and “ownership of feminine presenting people’s bodies.”[48]

C. The Value of Drag

Perhaps the best argument in opposition to the anti-drag bills is that drag performances do not lack serious artistic or political value. From an artistic perspective, drag has kept millions of people looking,[49] watching,[50] and wanting more. RuPaul’s Drag Race, a drag competition show on cable television for a cumulative 22 seasons, has made a positive name for the art of drag, winning numerous Hollywood Critics Association TV,[51] People’s Choice,[52] Realscreen,[53] and Primetime Emmy Awards.[54] Even conservatives who support the Tennessee law are known to indulge in the art of drag.[55] Moreover, from a political lens, drag is embedded in LGBT culture, a culture embraced by a deeply democratic community.[56] And from an economic standpoint, many bars and restaurants cannot deny the popularity and resulting profits made from hosting routine weekend drag brunches.[57]

D. Unconstitutionally Overbroad

Just as the above arguments beg the conclusion that drag is not obscene and cannot be regulated as Tennessee’s legislature has proposed, a procedural First Amendment argument also favors drag queens and kings.[58] The Tennessee law, and those like it, restrict all drag performances because some are unsuitable for minors’ eyes.[59] However, “adults cannot be restricted to only that expression that’s suitable for children, and that’s what could happen under a law that ban[s] adult entertainment on public property or where minors may be present . . . . A law that bans both protected and unprotected expression is considered overbroad and unconstitutional.”[60]

So far, there has been one successful attempt to stop the implementation of the Tennessee law.[61] At the end of March 2023, a federal district court judge issued the decision in Friends of George’s, Inc. v. Tennessee.[62] The judge ruled that the Tennessee law is an unconstitutional content-based restriction on free speech that is problematic and overly broad.[63] This ruling prohibited implementation of the law for fourteen days pending continued litigation,[64] the results of which will undoubtedly become part of future drag-ban discourse.

IV. Conclusion

The incidental effects of the emerging  anti-drag legislation are not too distant.[65] Whether law enforcement officers will remove drag queens from upcoming Pride parade routes or stop brunch performances to charge drag kings because a child could see through an establishment’s windows, “allowing the government to exercise a really powerful degree of authority in determining what you’re allowed to wear, where you’re allowed to be in public, and frankly, how you’re allowed to exist when you’re walking down the street” or in the potential presence of children is an incredibly devastating thing to imagine.[66]

*Ashli Glatfelter is a third-year evening student at the University of Baltimore School of Law. She currently serves as a Production Editor for Volume 52 of Law Review. Ashli is a member of the Royal Graham Shannonhouse III Honor Society and OUTLaw, the law school’s LGBTQ+ group. She received her bachelor’s degree in Legal Studies from Stevenson University, along with minors in English and Management & Organizational Leadership. Ashli also works as a full-time paralegal at Alperstein & Diener, P.A., a firm in downtown Baltimore City practicing criminal defense, personal injury, and Maryland workers’ compensation law. Ashli encourages readers who feel called to support the ACLU’s Drag Defense Fund to do so by visiting https://action.aclu.org/give/support-drag-defense-fund.

[1] Manuela López Restrepo, The Anti-Drag Bills Sweeping the U.S. Are Straight from History’s Playbook, NPR (Mar. 6, 2023, 5:44 PM), https://www.npr.org/2023/03/06/1161452175/anti-drag-show-bill-tennessee-trans-rights-minor-care-anti-lgbtq-laws.

[2] 1969: The Stonewall Uprising, Library of Congress, https://guides.loc.gov/lgbtq-studies/stonewall-era (last visited Apr. 10, 2023).

[3] See Restrepo, supra note 1.

[4] See Nicole Narea & Fabiola Cineas, The GOP’s Coordinated National Campaign Against Trans Rights, Explained, VOX (Mar. 10, 2023, 11:05 AM), https://www.vox.com/politics/23631262/trans-bills-republican-state-legislatures; see also Jaclyn Diaz, At Least 9 GOP-Led State Legislatures Want to Restrict or Criminalize Drag Shows, NPR (Feb. 8, 2023, 7:06 AM), https://www.npr.org/2023/02/08/1151731736/at-least-10-state-legislatures-trying-restrict-criminalize-drag-shows (“Last year, 315 anti-LGBTQ bills were filed during state legislative sessions. However, only 29 became law . . .”); Dustin Jones & Jonathan Franklin, Not Just Florida. More Than A Dozen States Propose So-Called ‘Don’t Say Gay’ Bills, NPR (Apr. 10, 2023, 7:01 AM), https://www.npr.org/2022/04/10/1091543359/15-states-dont-say-gay-anti-transgender-bills (discussing bans on  library books and sexual-education courses, which Florida has now banned from grades K-12).

[5] See Restrepo, supra note 1; Diaz, supra note 4; see also Tess Duvall, Kentucky State Passes GOP-Backed Anti-Drag Show Bill After Heated Debate, Lexington Herald Leader (Mar. 10, 2023, 4:46 PM ), https://www.kentucky.com/news/politics-government/article272977005.htm.

[6] See Jones & Franklin, supra note 4.

[7] See Restrepo, supra note 1.

[8] Brittany Brown, 10+ Unforgettable, Hilarious and Iconic “RuPaul’s Drag Race” Quotes!, Reel Rundown (Jan. 19, 2022, 7:19 PM), https://reelrundown.com/tv/RuPauls-Drag-Race-Quotes (quoting winner of RuPaul’s Drag Race season 6); see also Diaz, supra note 4 (qualifying the anti-drag bills as part of the “thinly veiled attacks against the LGBTQ community as a whole”).

[9] Restrepo, supra note 1; Restrictions on Drag Shows Have a History in the U.S., NPR (Mar. 6, 2023, 5:02 PM), https://www.npr.org/transcripts/1161452206 (transcript of a podcast featuring Jules Gill-Peterson).

[10] Restrictions on Drag Shows, supra note 9.

[11] Id.

[12] See infra pp. 3–5.

[13] See Restrepo, supra note 1.

[14] S.B. 3, 113th Gen. Assemb., Reg. Sess. (Tenn. 2023), https://www.capitol.tn.gov/Bills/113/Bill/SB0003.pdf.

[15] See Restrepo, supra note 1.

[16] Partisan Composition of State Legislature, BallotPedia, https://ballotpedia.org/Partisan_composition_of_state_legislatures (last visited Apr. 10, 2023).

[17] See generally Understanding Drag, Nat’l Ctr. for Transgender Equal. (Apr. 8, 2017), https://transequality.org/issues/resources/understanding-drag.

[18] See Jey Nolfi, RuPaul’s Drag Race Reunites 7 Trans Queens for LGBTQ History Month Photo: ‘We’re All Trailblazing!’, Ent. Wkly. (Oct. 11, 2022, 1:00 AM), https://ew.com/tv/rupauls-drag-race-trans-queens-reunion-lgbtq-history-month-portrait/.

[19] S.B. 3, 113th Gen. Assemb., Reg. Sess. (Tenn. 2023), https://www.capitol.tn.gov/Bills/113/Bill/SB0003.pdf.

[20] See Diaz, supra note 4 (referencing conservative views that drag is sexually suggestive, constitutes indecent exposure, is a slippery slope to legalizing pedophilia, and that performers “groom” children).

[21] Id.

[22] Id.

[23] See Restrepo, supra note 1.

[24] See Rori Porter, The Conservative Sexualization of Drag, Medium (June 15, 2022), https://aninjusticemag.com/the-conservative-sexualization-of-drag-55e7d510d535.

[25] See Restrepo, supra note 1.

[26] See Restrictions on Drag Shows, supra note 9.

[27] Campy, Drag Race Wiki, https://rupaulsdragrace.fandom.com/wiki/RuPaul%27s_Drag_Race_Dictionary#:~:text=Campy,%26%20over%2Dthe%2Dtop. (last visited Apr. 10, 2023).

[28] See Restrepo, supra note 1.

[29] Id.; see also Elizabeth Blair, How Bills Restricting Drag Could Impact High School Theatre Productions, NPR (Mar. 3, 2023, 5:34 PM), https://www.npr.org/2023/03/03/1161051121/how-bills-restricting-drag-could-impact-high-school-theatre-productions.

[30] Id.

[31] See generally Restrepo, supra note 1.

[32] See Kathleen Carlson, Drag Show Laws, First Amend. Encyc. (Feb. 2023), https://www.mtsu.edu/first-amendment/article/2185/drag-show-laws.

[33] Id.

[34] Id.

[35] Id.

[36] Miller v. California, 413 U.S. 15, 39 (1973); see generally Amdt 1.7.5.11 Obscenity, Const. Annotated, https://constitution.congress.gov/browse/essay/amdt1-7-5-11/ALDE_00013812/#ALDF_00029722 (last visited Apr. 10, 2023).

[37] See generally id.

[38] Id.

[39] Roth v. United States. 354 U.S. 476, 487 n.20 (1957).

[40] See Porter, supra note 24.

[41] See generally id.

[42] Id.

[43] Id.

[44] Tenn. Code Ann. § 7-51-1407 (West 2023).

[45] Id. § 7-51-1401 (West).

[46] Id.

[47] Miller v. California, 413 U.S. 15, 39 (1973).

[48] See Porter, supra note 24; see also Jon Stewart to Conservative State Senator: ‘You Don’t Give a Flying F**k’, CNN Bus., https://www.cnn.com/videos/business/2023/03/03/jon-stewart-oklahoma-nathan-dahm-anti-drag-laws-gun-control-orig.cnn-business (noting the Senator’s contradicting drag-restriction logic when applied to gun control).

[49] See, e.g., Trixie Mattel (@trixiemattel), Instagram, https://www.instagram.com/trixiemattel/ (last visited Apr. 10, 2023) (3.2 million followers); Sasha Colby (@sashacolby), Instagram, https://www.instagram.com/sashacolby/ (last visited Apr. 20, 2023) (461 thousand followers); Jinkx Monsoon (they/she) (@thejinkx), Instagram, https://www.instagram.com/thejinkx/ (last visited Apr. 10, 2023) (1.6 million followers and on Broadway as Matron “Mama” Morton in Chicago).

[50] See RuPaul’s Drag Race, (World of Wonder Feb. 2, 2009 – Mar. 7, 2016 (season 1–8), WOW Presents Plus Mar. 24, 2017 – Jan. 7, 2022 (season 9–14), MTV Jan. 6, 2023 – Apr. 14, 2023 (season 15)).

[51] See e.g., Beatrice Verhoeven, ‘This Is Us,’ ‘Succession,’ ‘Severance’ Lead 2022 HCA TV Nominations, The Hollywood Rep. (July 7, 2022, 8:20 AM), https://www.hollywoodreporter.com/tv/tv-news/2022-hollywood-critics-association-broadcast-cable-tv-nominations-1235176458/.

[52] See The Competition Contestant of 2022, E! People’s Choice Awards, https://www.eonline.com/shows/peoples_choice_awards [https://web.archive.org/web/20201101020835/https://pca.eonline.com/tv/the-competition-contestant-of-2020] (last visited Apr. 20, 2023).

[53] See 2012 Winners, Realscreen Awards, https://awards.realscreen.com/winners/winner/2012  (last visited Apr. 20, 2023); 2014 Winners, Realscreen Awards, https://awards.realscreen.com/winners/winner/2014 (last visited Apr. 20, 2023); 2019 Winners, Realscreen Awards, https://awards.realscreen.com/winners/winner/2019 (last visited Apr. 20, 2023); see also Nikki Nguyen, ‘RuPaul’s Drag Race’ Wins Award of Excellence: Competition & Best Competition: Talen & Studio-Based at the 2021 Realscreen Awards, The WOW Rep. (Jan. 26, 2021, 3:34 PM), https://worldofwonder.net/rupauls-drag-race-wins-award-of-excellence-competition-best-competition-talent-studio-based-at-the-2021-realscreen-awards/.

[54] See RuPaul’s Drag Race: Awards & Nominations, Television Acad. | Emmys, https://www.emmys.com/shows/rupauls-drag-race (last visited Apr. 20, 2023).

[55] See, e.g.,David Moye, Another Republican Lawmaker Trying to Ban Drag Shows Apparently Once Dressed in Drag, Huffpost (Mar. 1, 2023, 8:28 PM),https://www.huffpost.com/entry/texas-republican-lawmaker-nate-schatzline-anti-drag-bill-dressed-in-drag_n_63ffe95ee4b0d14ed6a59e4e.

[56] See Jocelyn Kiley & Shiva Maniam, Lesbian, Gay and Bisexual Voters Remain a Solidly Democratic Bloc, Pew Rsch. Ctr. (Oct. 25, 2016), https://www.pewresearch.org/fact-tank/2016/10/25/lesbian-gay-and-bisexual-voters-remain-a-solidly-democratic-bloc/.

[57] For example, see two weekly brunches at City Tap Kitchen & Craft in Dupont, Washington, D.C. City Tap Kitchen & Craft, https://www.citytap.com/location/city-tap-house-dupont/ (last visited on Mar. 10, 2023).

[58] See generally Carlson, supra note 32.

[59] Id.

[60] Id.

[61] James Factora, A Federal Judge Has Temporarily Blocked Tennessee’s Drag Ban, them (Apr. 2, 2023), https://www.them.us/story/tennessee-drag-ban-blocked#:~:text=News-,A%20Federal%20Judge%20Has%20Temporarily%20Blocked%20Tennessee’s%20Drag%20Ban,law%20unfairly%20targets%20drag%20performers.&text=The%20day%20before%20the%20nation’s,for%20violating%20the%20First%20Amendment.

[62] Order Granting Temporary Restraining Order, Friends of George’s, Inc. v. Tennessee, No. 2:23-cv-02163-TLP-tmp (W.D. Tenn. W. Div. Mar. 31, 2023), https://int.nyt.com/data/documenttools/tennessee-drag-ruling/20a05d3b4f4167f6/full.pdf.

[63] Factora, supra note 61.

[64] Id.

[65] See generally Restrepo, supra note 1.

[66] Id.; for many drag performers, entertaining through hyperbolic gender expression is their profession and livelihood. See, e.g., Sad BRUNCH, https://www.sadbrunch.com/ (last visited Mar. 17, 2023). Organizations like the ACLU have recognized and honored this by creating the Drag Defense Fund to fight for the protection of everyone’s right to creatively express themselves and gender identities.Support the Drag Defense Fund, ACLU, https://action.aclu.org/give/support-drag-defense-fund (last visited Mar. 17, 2023); RuPaul’s Drag Race (@rupaulsdragrace), Instagram, https://www.instagram.com/p/Cpiygy4tPWK/ (last visited Mar. 16, 2023) (RuPaul sharing his reaction to the wave of drag bans on March 8, 2023, “They think our love, our light, our laughter, and our joy are signs of weakness but they’re wrong because that is our strength.”).

Holding Social Media Liable for Terrorism: An Obvious Solution or a Poisoned Chalice?

*Meriam Mossad

I. Introduction

The United States Supreme Court heard oral arguments in Twitter, Inc. v. Taamneh on February 22, 2023.[1] The Court’s ruling could result in liability for internet platforms aiding and abetting terrorism.[2] While civil liability seems sensible to encourage aggressive actions to prevent the use of internet platforms promoting terrorism, this solution would stifle constitutional speech, as platforms would have incentive to remove speech advocating for rights we do not currently have.[3] A ruling in favor of the plaintiff would institute a heckler’s veto and allow the government to censor the internet indirectly.[4]

Nohemi Gonzalez (Gonzalez), a U.S. citizen, was killed in a terrorist attack in Paris, France, in 2015.[5] Gonzalez’s father filed an action against Google, Twitter, and Facebook. The plaintiff claims that all three platforms were liable for aiding and abetting international terrorism by failing to take meaningful action to remove the terrorists’ content. The plaintiff avers that the platforms thus hosted the terrorists’ content, even though they did not play an active role in the performance of international terrorism that actually injured Gonzalez.[6]

II. Collateral Censorship and Heckler’s Veto

First Amendment scholar, Professor Michael Meyerson, has underscored that companies who censor the speech of their customers are not engaging in self-censorship because the companies are not censoring their own speech.[7] Rather, Professor Myerson coined this phenomenon as “collateral censorship.”[8] Collateral censorship occurs when party A controls the speech of party B, and the government holds party A liable for party B’s speech, and in response, party A censors party B’s speech.[9] The risk of collateral censorship from the heckler’s veto is dangerous because intermediaries must often respond to complaints by deleting speech or eliminating a forum, as it would be unduly burdensome to investigate the merits of every complaint.[10] 

Some governments directly censor the internet by blocking certain websites or by flooding online platforms with pro-government content to drown out dissenting opinions.[11] The United States may be on the verge of censoring the internet, not through direct government censorship, but through collateral censorship.[12] Twitter, Inc. v. Taamneh may change the landscape of the internet, as this holding would not be limited to content related to terrorism—it would apply to all crimes.[13] As such, platforms would take down content regarding, for example, abortions and marijuana because in certain states marijuana use and abortion health care are crimes.[14]

A. General Speech

Platforms would likely foreclose discussions of controversial subject matter, including advocacy for rights and opportunities currently forbidden by law.[15] This would silence marginalized communities that use the internet as a powerful megaphone to effect lasting change, from the Black Lives Matter movement to the #MeToo campaign to the fight for LGBTQ+ rights.[16] This is the likely outcome as platforms could not use human review of all content due to the sheer volume of online content. Thus, they will err on the side of caution and remove most content.[17] However, automated tools cannot make complex assessments of the illegality of expression, which means that reliance on them will result in an arbitrary denial of lawful speech. Even if human review becomes possible, the platforms will remove speech they believe is legal due to the fear that a judge might disagree with their determination.[18]

B. Speech Regarding Terrorism

Even if the holding is narrowed to apply only to content “aiding and abetting” terrorism, platforms would still censor legal speech due to automated tools’ inability to comprehend the tonal and contextual elements of speech or to identify when speech is satire or published for reporting purposes.[19] Human rights and international legal observers reported that over-surveillance has primarily resulted in the removal of two categories of online speech: (1) the dissemination of news about terrorism and (2) speech in languages other than English.[20] While some platforms may use automated tools to remove all content about terrorism, “problematic content producers will overrun any undefended service, flooding it with material that other users don’t want.”[21]

III. Federalism Issue

Multiple states have together filed an amicus brief in support of the petitioner, arguing that the immunity Section 230 of Title 47 of the United States Code provides internet platforms displaces state law, although Congress did not explicitly write that.[22] To displace traditional spheres of state authority, Congress must “make its intention to do so ‘unmistakably clear in the language of [a] statute.’”[23] The language of Section 230 is clear, stating, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”[24] The language embodies Congress’ obvious intention to preempt state law.[25] Without Section 230 state law preemption, platforms would have to not only remove speech regarding a right that is illegal in State A but also speech regarding a right that is legal in State B to ensure that it does not reach readers in State A.[26] 

Furthermore, preemption of state law has not displaced the state’s interests in protecting their citizens, as many states have enacted Anti-SLAPP laws acknowledging the chilling effect of frivolous lawsuits on constitutional speech.[27] There is increasing interest in passing a federal anti-SLAPP law.[28] While a federal anti-SLAPP law would provide social media platforms and users a shield from liability for their constitutional speech, the law would not dismiss these frivolous cases at the outset, while Section 230 does.[29]

IV. Conclusion

Some are characterizing a ruling in favor of the plaintiffs as just another area of law where plaintiffs would be able to sue the largest companies with the deepest pockets instead of the actual wrongdoers.[30] However, such a ruling would change the nature of the internet as we know it, silence constitutional speech, and make the United States another country where the internet is censored.[31]

*Meriam Mossad is an Associate Comments Editor for Law Review and a third-year student at the University of Baltimore School of Law. She currently serves as a student attorney for the Innocence Project Clinic. In 2022, she was a Law Clerk at Silverman Thompson Slutkin and White. After receiving her J.D., Meriam plans to clerk for Judge Stacy McCormack at the Anne Arundel County Circuit Court.

[1] Twitter, Inc. v. Taamneh, 214 L. Ed. 2d 12, 143 S. Ct. 81 (2022).

[2] Reply Brief for Petitioner, Taamneh v. Twitter, Inc., No. 21-1496, 2022 WL 17384573. at *26 (Nov. 29, 2022).

[3] See infra Section II.

[4] Brief of Chamber of Progress et al. as Amici Curiae in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 375037, at *21 (2023).

[5] Twitter, Inc. v. Taamneh, 21-1496, 214 L. Ed. 2d 12, 143 S. Ct. 81 (2022).

[6] Id.

[7] Michael I. Meyerson, Authors, Editors, and Uncommon Carriers: Identifying the “Speaker” Within the New Media, 71 Notre Dame L. Rev. 79, 117 (1995).

[8] Id. (coining the term).

[9] Jack M. Balkin, Free Speech and Hostile Environments, 99 Colum. L. Rev. 2295, 2298 (1999).

[10] Reno v. American Civil Liberties Union, 521 U.S. 844, 880 (1997).

[11] See Ryan Gallagher, Sandvine Pulls Back From Russia as US, EU Tighten Control on Technology It Sells, Bloomberg (June 3, 2022), https://www.bloomberg.com/news/articles/2022-06-03/sandvine-pulls-back-from-russia-as-us-eu-tighten-control-on-technology-it-sells?leadSource=uverify%20wall (explaining how the Egyptian government utilizes monitoring tools sold by Sandvine to censor the internet); see also Joyce Lau, Who Are the Chinese Trolls of the ‘50 Cent Army’? Vox (Oct. 7, 2016, 2:50 AM), https://www.voanews.com/a/who-is-that-chinese-troll/3540663.html.

[12] Section 230 as First Amendment Rule, 131 Harv. L. Rev. 2027, 2046–47 (2018).

[13] See, e.g., Ashley Carman, Deciphering Spotify’s Ad Policy on Abortion Pills, Bloomberg News (Nov. 17, 2022, 2:30 PM), https://www.bloomberg.com/news/newsletters/2022-11-17/tracking-spotify-s-ad-policy-on-abortion-pills (describing how Spotify declined to air a healthcare non-profit’s informational advertisement involving abortion access in light of state laws outlawing abortion).

[14]  See, e.g., Maggie Q. Thompson, The “Aid and Abet” Abortion Era Begins, Austin Chronicle (Dec. 16, 2022), https://www.austinchronicle.com/news/2022-12-16/the-aid-and-abet-abortion-era-begins/ (explaining how threats to enforce Tex. Health & Safety Code § 171.208 has forced speakers to “tiptoe around even providing information on abortion access, lest they be prosecuted for ‘aiding and abetting’ a procedure”).

[15] Brief of Chamber of Progress et al. as Amici Curiae in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 375037, at *21 (citing Letter from Chamber of Progress to Merrick B. Garland, U.S. Att’y Gen. at 2 (Nov. 21, 2022), https://progresschamber.org/wp-content/uploads/2022/11/Letter-to-AG-Garland-re-Gonzalez-v-Google-11-21-22.pdf).

[16] See generally id.

[17] Brief of Amici Curiae Article 19: Global Campaign for Free Expression and the International Justice Clinic at the University of California, Irvine School of Law in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 1109131, at *3 (2023).

[18] Daphne Keller, Empirical Evidence of Over-Removal by Internet Companies Under Intermediary Liability Laws: An Updated List, Ctr. Internet & Soc’y (Feb. 8, 2021), https://cyberlaw.stanford.edu/blog/2021/02/empirical-evidence-over-removal-internet-companies-under-intermediary-liability-laws; Article 19, Watching the Watchmen Content Moderation, Governance, and Freedom of Expression, 29–30 (2021); see, e.g., Paige Leskin, A Year After Tumblr’s Porn Ban, Some Users Are Still Struggling to Rebuild Their Communities and Sense of Belonging, Bus. Insider (Dec. 20, 2019), https://www.businessinsider.com/tumblr-porn-ban-nsfw-flagged-reactions-fandom-art-erotica-communities-2019-8.

[19] Brief of Amici Curiae Article 19: Global Campaign for Free Expression and the International Justice Clinic at the University of California, Irvine School of Law in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 1109131, at *3 (2023).

[20] Id.

[21] Eric Goldman & Jess Miers, Online Account Terminations/Content Removals and the Benefits of Internet Services Enforcing Their House Rules, 1 J. Free Speech L. 191, 209 (2021).

[22] Brief for the States of Tennessee and Alabama et al. as Amici Curiae in Support of Petitioners, Gonzalez v. Google LLC, 2022 WL 17640647 at *6 (2022).

[23] Gregory v. Ashcroft, 501 U.S. 452, 460 (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989)).

[24] 47 U.S.C. § 230(e)(3).

[25] Id.

[26] Brief Amicus Curiae of M. Chris Riley and Floor64, Inc. d/b/a the Copia Institute el al. in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 375041at *25 (Jan 19, 2023).

[27] Austin Vining & Sarah Matthews, Overview of Anti-SLAPP Laws,Reporters Committee (last visited Apr. 12, 2023) https://www.rcfp.org/introduction-anti-slapp-guide/ (“As of April 2022, 32 states and the District of Columbia have anti-SLAPP laws.”).

[28] Press Release, Chairman Raskin Introduces Legislation Establishing Federal Anti-SLAPP Statute to Protect First Amendment Rights (Sept. 15, 2022).

[29] Id.

[30] Taamneh Case Gave Us A Glimpse Of The Horror Websites Would Face In A Post-Section 230 World, Above The Law (Mar. 3, 2023) https://abovethelaw.com/2023/03/taamneh-case-gave-us-a-glimpse-of-the-horror-websites-would-face-in-a-post-section-230-world/

[31] See supra Section II.

Criminalization of Pregnancy

*Cherie Correlli

I. Introduction

All over the United States, states are charging pregnant women[1] with crimes under fetal protection laws and recognizing the fetus as a legal victim at a rapidly accelerating rate.[2] Criminalization of pregnancy includes penalizing individuals for actions during their own pregnancies, enforcing laws that punish actions during pregnancy that would not otherwise be criminal or punishable, and discriminating against pregnant people in the application of laws.[3] While these actions against pregnant people generally claim to protect fetal life, they have been found instead to increase the risk of harm to fetuses, primarily by disincentivizing people from seeking prenatal care or treatment for addiction.[4] Additionally, these laws have a discriminatory and harmful impact on a pregnant person’s mental health, physical health, and autonomy.[5]

II. Forms of Criminalization of Pregnancy

A. Criminal Statutes

Some states have enacted or attempted to enact statutes to criminalize fetal endangerment.[6] In 2014, Tennessee enacted a law that made pregnant women guilty of assault for illegal drug use during pregnancy if the child was born addicted to or harmed by the drug.[7] Although the statute lapsed under a sunset provision in 2016, legislators have since attempted to reintroduce similar statutes.[8] Thus far, most attempts to specifically criminalize the actions of pregnant people have been unsuccessful, but the initiatives are widespread and continuous.[9] In September 2022, Wyoming lawmakers narrowly rejected another attempt at introducing legislation criminalizing drug use during pregnancy.[10]

B. [Mis]interpretation of Existing Criminal Laws

While laws specifically criminalizing fetal endangerment by pregnant people are rare, it is common for states to interpret existing criminal laws to apply to the behavior of pregnant people.[11] States have charged women with homicide, reckless endangerment, child abuse, child neglect, and unlawful application of a controlled substance to a minor based on their behavior during pregnancy.[12] For example, Alabama has consistently and aggressively applied its 2016 chemical endangerment law—which was passed to target child exposure to home methamphetamine labs—to pregnant women for drug use while pregnant.[13] In Oklahoma, the inclusion of “unborn child” in the definition of human in homicide law paves the way to charge pregnant people for the death of their fetus.[14] One Oklahoman who suffered a loss in the second trimester of her pregnancy was sentenced to four years in prison for manslaughter, despite the State’s medical expert testifying that the cause of death was unknown and that genetic anomaly and placenta abruption may have been contributing factors.[15]

Even behavior that is not normally criminal can become criminal simply because a woman is pregnant.[16] Women who are otherwise able to consume alcohol legally may be prosecuted for this while pregnant.[17] Refusing medical intervention or treatment, a behavior that is ordinarily not criminal and, in fact, is a constitutionally protected right, may be prosecuted if it is seen to have caused a risk of harm to the fetus—whether or not actual harm occurs.[18] Failure to wear a seatbelt, a minor infraction under most circumstances, can carry harsher penalties for pregnant people because of the perceived risk to the fetus.[19] In one case, a woman shot in the stomach at five months pregnant was indicted on a charge of manslaughter when a grand jury determined that she knowingly initiated the fight that led to the shooting while pregnant.[20]

C. Punitive Civil Fetal Protection Action

Punishing women through the civil legal system is the most common approach to fetal endangerment.[21] Eighteen states are terminating parental rights based on prenatal drug use alone.[22] Minnesota, South Dakota, and Wisconsin have laws that allow women who use drugs during pregnancy to be involuntarily committed to a treatment program for either the length of the program or the length of their pregnancy.[23] Wisconsin’s Unborn Child Protection Act authorizes the state to involuntarily commit pregnant people based only on a suspicionthat the person has or may consume alcohol or a controlled substance during their pregnancy.[24] Since the passage of this Act, approximately 460 women each year have been jailed, forced into medical treatment, or put on house arrest because of the suspicion that they are pregnant and have consumed or may consume drugs or alcohol.[25] Suspicion of drug use that results in an investigation by state authorities can be just as invasive and traumatizing to pregnant people as involuntary commitment or having parental rights terminated.[26] At least one hospital in Maryland uses a threshold of prenatal drug testing that is so low that a woman was reported to the state and subjected to an investigation for eating a poppy seed bagel for breakfast before her labor.[27]

III. Recognition of the Fetus as a Person is Likely to Increase the Prosecution of Women for Endangerment or Harm to Their Fetus

A 2017 review of published judicial decisions in cases of substance abuse during pregnancy found that, in most jurisdictions, women charged with or convicted of crimes against their child or fetus usually won on appeal.[28] In these appellate cases, the outcome hinged on whether the judiciary treated the fetus as a child.[29] The Alabama and South Carolina Supreme Courts determined that the plain meaning of the word “child” included a fetus or “unborn child” and upheld such convictions.[30] In other jurisdictions, where the courts determined that a fetus was not a child in the eyes of the law, appeals were successful.[31]

In recent years, efforts to recognize fetal personhood have increased and have gained even more momentum since the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.[32] Several states have enforced near-total abortion bans since the ruling.[33] Georgia has enacted a law that declares a fetus a person beginning at six weeks gestation, thereby qualifying for tax credits, child support, and inclusion in population counts.[34] In October 2022, the Supreme Court declined to decide whether fetuses are entitled to constitutional rights, leaving the question open for battles to wage in the states.[35] If fetal personhood measures become more prevalent and successful, so too will the criminalization of pregnancy.

IV. Conclusion.

Since 1973, Pregnancy Justice has documented more than 1,700 instances in which women have been arrested, prosecuted, convicted, detained, or forced to undergo medical interventions because of either their pregnancy status or outcome.[36] Roughly three times as many instances of pregnancy criminalization were documented between 2006 and 2020 as between 1973 and 2005.[37] The deprivations of liberty and harms to women and their fetuses will almost certainly continue to increase until these injustices are countered through legal and social protections preventing the penalization of pregnancy. 

*Cherie Correlli is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a Distinguished Scholar in the Royal Graham Shannonhouse III Honor Society, and Research Assistant for Professor Lande. She worked as a birth doula in the Baltimore area for over a decade before law school. Cherie hopes to use her experience in birth work and legal skills to work on reproductive justice issues in the future.

[1] This article uses a mixture of gendered language that reflects how gender frames pregnancy discrimination systemically and gender-neutral language in recognition of the inclusion of pregnancy-capable people who do not identify as women. See Inclusive and Gender-Neutral Language, Nat’l Insts. of Health (Oct. 20, 2022), https://www.nih.gov/nih-style-guide/inclusive-gender-neutral-language (discussing acceptability of using both gender-specific and gender-neutral language in relation to pregnancy).

[2] Pregnancy Justice, Confronting Pregnancy Criminalization: A Practical Guide for Health Providers, Lawyers, Medical Examiners, Child Welfare Workers, and Policymakers 5, 9 (2022), https://www.pregnancyjusticeus.org/wp-content/uploads/2022/12/202211-PJ-Toolkit-Update-2.pdf

[3] Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period, Am. Coll. Obstetrics & Gynecology(2020), https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period.

[4] Meghan Boone & Benjamin J. McMichael, State-Created Fetal Harm, 109 Geo. L.J. 475, 487 (2021).

[5] Am. Coll. Obstetrics & Gynecology, supra note 3.

[6] Boone & McMichael, supra note 4, at 480.

[7] Id.

[8] Id.

[9] Id. at 480–81 (“In the first two months of 2017, seventeen state legislatures introduced criminal-fetal endangerment measures.  The Missouri legislature even considered the addition of an entirely new crime—‘abuse of an unborn child’—that would criminalize the ingestion of a narcotic drug or controlled substance while a woman knows or reasonably should have known that she is pregnant, regardless of whether the child is born addicted or otherwise harmed.”).

[10] Katie Roenigk, Lawmakers Narrowly Reject Criminal Penalties for Drug Use While Pregnant; Experts Prefer Plans of Safe Care, County10 (Sept. 27, 2022), https://county10.com/lawmakers-narrowly-reject-criminal-penalties-for-drug-use-while-pregnant-experts-prefer-plans-of-safe-care.

[11] Boone & McMichael, supra note 4, at 481.

[12] Id.

[13] Id.

[14] 21 Okla. Stat. § 21-691 (2020).

[15] Pregnancy Justice, supra note 2, at 11.

[16] Boone & McMichael, supra note 4, at 482.

[17] Id.

[18] Id.

[19] Id.

[20] Farah Stockman, Alabamians Defend Arrest of Woman Whose Fetus Died in Shooting, N.Y. Times (June 30, 2019), https://www.nytimes.com/2019/06/30/us/alabama-woman-marshae-jones.html.

[21] Boone & McMichael, supra note 4, at 484.

[22] Id.

[23] Id. at 485.

[24]  Pregnancy Justice, supra note 2, at 12.

[25] Id.

[26] Id. at 13.

[27] Antonia Noori Farzan, Yes, You Can Fail a Drug Test by Eating a Poppy Seed Bagel, as a Maryland Mother Learned, Wash. Post (Aug. 8, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/08/08/yes-you-can-fail-a-drug-test-by-eating-a-poppy-seed-bagel-as-a-maryland-mother-learned. See also Theo Hayes, Poppy Seed Bagel Behind Woman’s Ordeal at Towson Hospital, WBALTV (Aug. 8, 2018), https://www.wbaltv.com/article/poppy-seed-bagel-behind-womans-ordeal-at-towson-hospital/22653211.

[28] Cara Angelotta & Paul S. Appelbaum, Criminal Charges for Child Harm from Substance Use in Pregnancy,45 J. Am. Acad. Psychiatry L. 193, 200 (2017).

[29] Id.

[30] Id.

[31] Id.

[32] Kate Zernicke, Is a Fetus a Person? An Anti-Abortion Strategy Says Yes, N.Y. Times (Aug. 21, 2022), https://www.nytimes.com/2022/08/21/us/abortion-anti-fetus-person.html.

[33] Id.

[34] Id.

[35] See Nate Raymond, U.S. Supreme Court Rebuffs Fetal Personhood Appeal, Reuters (Oct. 12, 2022), https://www.reuters.com/legal/us-supreme-court-rebuffs-fetal-personhood-appeal-2022-10-11.

[36] Pregnancy Justice, supra note 2, at 5.

[37] Id.

Airbnb’s Extenuating Circumstances Policy: Travelers Left High and Dry After Hurricane Ian Dampens Plans

*Devyn King

I. Introduction

Last year, Airbnb published users’ travel trends for Summer 2022.[1] Perhaps unsurprisingly, domestic travelers sought mostly coastal stays.[2] Florida was the application’s top destination for summer travel.[3] However, in late September 2022, Hurricane Ian made landfall in Florida.[4] The storm was a category four hurricane and caused as much as a foot of rain, flooding some areas of the state.[5] The flooding led to widespread power outages, blocked roadways, and placed some cities under evacuation orders.[6] The havoc Hurricane Ian caused made it impossible for travelers with Florida vacation plans to follow through with their reservations.[7] After canceling their Airbnb reservations due to the hurricane, many travelers were surprised to learn that Airbnb’s Extenuating Circumstances policy did not allow them to cancel without penalty but instead placed them at the mercy of their individual hosts for a refund.[8] Some hosts were understanding enough to issue full refunds, but others were not.[9]

II. Take a Rain Check: Force Majeure Clauses

A force majeure, also referred to as an “act of God,” is “an event or effect that can be neither anticipated nor controlled; especially an unexpected event that prevents someone from doing or completing something that a person had agreed or officially planned to do.”[10] The occurrence of a force majeure event will excuse performance under a contract.[11] This is premised on the idea that the law should not penalize someone for a failure to perform due to an event beyond their control, or one that they could not reasonably foresee unless they expressly agreed to assume liability in such event.[12]

When drafting a contract, parties may negotiate a force majeure clause so that each party knows which events or extenuating circumstances will prevent performance.[13] Courts typically give effect to the specific language the parties define in a contract.[14] This includes the circumstances in which the force majeure clause applies and the procedures to follow in the event one occurs.[15] Since Hurricane Katrina struck New Orleans in 2005,[16] force majeure clauses have become more critical to account for potential natural disasters.[17] However, treating hurricanes as a force majeure has caused disputes regarding foreseeability. While it may be reasonably foreseeable to experience a hurricane in an area prone to tropical storms, the possibility of catastrophic storms causing extreme flooding is statistically remote.[18]

III. When It Rains, It Pours: Airbnb’s Extenuating Circumstances Policy

Booking a short-term rental through Airbnb includes agreeing to its Extenuating Circumstances Policy, which outlines how the company handles cancellations when force majeure events “make it impracticable or illegal to complete [a] reservation.”[19] Under the policy, travelers can cancel their reservation and receive a refund or travel credit when an unforeseen event impacts their trips.[20] The policy lists scenarios that qualify as an “event”; including changes to government travel requirements, such as visa or passport issues, government-declared emergencies or epidemics, government-imposed travel restrictions that prohibit travel to or from particular locations, military actions, and “natural disasters, acts of God, large-scale outages of essential utilities, volcanic eruptions, tsunamis, and other severe and abnormal weather events.”[21]

However, the policy expressly excludes “weather or natural conditions that are common enough to be foreseeable in that location—for example, hurricanes occurring during hurricane season in Florida.”[22] The Airbnb website lists precisely which weather events—and in which months they occur—are excluded from the Extenuating Circumstances Policy.[23] From June through November, hurricanes occurring along the Gulf of Mexico, the Caribbean Sea, and practically the whole East Coast do not qualify as force majeures.[24] In such a case, a host cancellation is the only avenue for a refund.[25]

IV. Today’s Forecast: Cloudy with a Low Chance of Success

Airbnb’s Extenuating Circumstances policy allows cancellation without penalty when it is “impracticable or illegal to complete [a] reservation.”[26] Completing a reservation certainly became impracticable for travelers who faced flooded roadways, toppled infrastructure, and widespread power outages.[27] Additionally, many affected travelers canceled their reservations because their destinations had mandatory evacuation orders in place.[28] The Fifth District Court of Appeal of Florida previously stated, “a governor’s executive order is not a law, but it has the force and effect of law,”[29] but did not directly resolve the issue of whether ignoring a mandatory evacuation order would constitute a violation of a law.[30] Until the courts or the legislature clarify this issue, it is uncertain whether affected Airbnb guests could successfully challenge the Extenuating Circumstances Policy by arguing it would be illegal to complete their reservations under an evacuation order.

Nevertheless, Airbnb’s Extenuating Circumstances Policy expressly excludes hurricanes in September and October for reservations in Florida.[31] By agreeing to its terms, travelers assume the risk of a cancellation due to any non-qualifying event under the policy.[32] Because courts typically give effect to the express language agreed to by the parties, any challenges to the Extenuating Circumstances Policy by affected travelers will likely fail.[33]

V. Conclusion

Through no fault of their own, but merely due to an inauspicious force majeure clause and settled contract law principles, Airbnb guests are left to their hosts’ kindness to provide refunds after canceling in the wake of Hurricane Ian.[34] To avoid potential liability for incomplete reservations due to future unforeseen circumstances, guests should check what, if any, events are expressly excluded from the rental platform’s force majeure policy before booking a short-term rental.

*Devyn King is a staff editor for Law Review and a second-year student at the University of Baltimore School of Law. She is currently the Vice President of the Students Supporting the Women’s Law Center chapter at UB and is a teaching assistant for Intro​duction to Lawyering Skills/Civil Procedure I. Devyn is also a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society and a proud graduate of the University of Pittsburgh. In 2022, Devyn worked as a summer associate for Gallagher Evelius and Jones LLP. After receiving her J.D., Devyn hopes to work as a transactional attorney in Baltimore City.

[1] Airbnb 2022 Summer Release Highlights, Airbnb News (May 11, 2022), https://news.airbnb.com/airbnb-2022-summer-release-highlights/.

[2] Id.

[3] See id.

[4] See Michael Tobin, Airbnb Guests Are at the Mercy of Hosts for Hurricane Refunds, Bloomberg (Sept. 29, 2022), https://www.bloomberg.com/news/articles/2022-09-29/airbnb-guests-must-rely-on-hosts-for-hurricane-ian-refunds?leadSource=uverify%20wall.

[5] See id.

[6] See id.

[7] See id.

[8] See Hannah Towey, Airbnb’s Refund Policy Specifically Excludes Hurricanes in Florida Because They Are ‘Common Enough to be Foreseeable,’ Business Insider (Oct 5, 2022) https://www.businessinsider.com/airbnb-refund-policy-booking-host-cancellations-hurricane-ian-florida-aircover-2022-10.

[9] See id.

[10] 30 Richard A. Lord, Williston on Contracts § 77:31 (4th ed. 2022) (citing Black’s Law Dictionary (11th ed. 2019)).

[11] Id.

[12] See Farnsworth v. Sewerage & Water Bd. of New Orleans, 139 So. 638, 641 (La. 1932).

[13] See Jennifer Sniffen, In the Wake of the Storm: Nonperformance of Contract Obligations Resulting from A Natural Disaster, 31 Nova L. Rev. 551, 553 (2007).

[14] See 30 Lord, supra note 10.

[15] See Force Majeure Issues Relating to Katrina, Jones Walker (Sept. 21, 2005), https://www.joneswalker.com/images/content/1/1/v2/1176/249.pdf. 

[16] Extremely Powerful Hurricane Katrina Leaves a Historic Mark on the Northern Gulf Coast, Nat’l Weather Serv. (Sept. 2022), https://www.weather.gov/mob/katrina.

[17] See Sniffen, supra note 13 at 553.

[18] Force Majeure Issues Relating to Katrina, supra note 15.

[19] Extenuating Circumstances Policy, Airbnb, https://www.airbnb.com/help/article/1320/extenuating-circumstances-policy (last visited Oct. 23, 2022).

[20] See id.

[21] Id.

[22] Id.

[23] See Weather Events, Natural Conditions, and Diseases That Are Excluded From Our Extenuating Circumstances Policy, Airbnb, https://www.airbnb.com/help/article/2930/weather-events-natural-conditions-and-diseases-that-are-excluded-from-our-extenuating-circumstances-policy (last visited Oct. 23, 2022) [hereinafter Weather Events].

[24] See id.

[25] See Tobin, supra note 4.

[26] Extenuating Circumstances Policy, supra note 19.

[27] See generally Patricia Mazzei et al., Hurricane Ian’s Staggering Scale of Wreckage Becomes Clearer in Florida, N. Y. Times (Sept. 29, 2022), https://www.nytimes.com/2022/09/29/us/hurricane-ian-florida-damage.html (explaining the damage resulting from Hurricane Ian throughout Florida).

[28] See Tobin, supra note 4.

[29] Gillyard v. Delta Health Grp., Inc., 757 So. 2d 601, 603 (Fla. Dist. Ct. App. 2000).

[30] See id.

[31] See Weather Events, supra note 23.

[32] See Extenuating Circumstances Policy, supra note 19.

[33] See 30 Lord, supra note 10.

[34] See Tobin, supra note 4.