Excluding the Undocumented: How Potential Changes to the Census Could Impact Representation in Our Democracy

*Celia Feldman

Beginning in 2018, the Trump Administration sought to exclude certain non-citizens from being counted in the census.[1]  At that time, the Department of Commerce, which administers the Census, sought to add a question to the 2020 Census regarding U.S. citizenship.[2]  Multiple states and advocacy organizations sued to stop the addition of this question,[3] and the Supreme Court ruled against the Trump Administration.[4]  However, the Administration subsequently issued Executive Order 13,880 requiring that federal agencies share citizenship information with the Census Bureau.[5]  Towards the end of Trump’s term, his Administration issued a Memorandum expressing its intent to exclude undocumented individuals from the 2020 Census altogether.[6]  Multiple plaintiffs sued to stop this exclusion, and the Supreme Court heard their challenge in Trump v. New York on November 30, 2020.[7]  The Court ultimately dismissed the suit, holding the plaintiffs had not alleged an injury that would give them standing to sue because the time for data collection had passed.[8]  Once President Biden took office, he signed Executive Order 13,986  reversing Trump’s exclusion of undocumented immigrants from the 2020 Census.[9]  However, because the Supreme Court never expressed an opinion on the legal merits of the Trump Administration’s policy, a future administration could easily overturn Executive Order 13,986 and seek to implement the same strategy.[10]

I. The Census, Citizenship, and the Constitution

The Census is required by the Enumeration Clause of the Constitution,[11] which states that “Representatives . . . shall be apportioned among the several States which may be included within this Union, according to their respective Numbers . . . . [t]he actual Enumeration shall be made . . . in such Manner as [the Congress] shall by Law direct.”[12]  The first census took place in 1790, and all censuses carried out since have asked questions concerning a wide range of demographic data.[13]  Although several censuses asked questions related to citizenship,[14] most of these questions simply asked if the individual was a citizen of the U.S. or if they were naturalized.[15]  No census in American history has ever sought more detailed information about individuals’ immigration status.[16]

II. Current Status of Citizenship Questions

In Dep’t of Commerce v. New York, the Supreme Court considered whether the Department of Commerce violated the Enumeration Clause of the Constitution in deciding to add a question about citizenship to the 2020 Census.[17]  The Court noted that the Enumeration Clause provides Congress with unlimited discretion in deciding how to carry out the enumeration process,[18] and that Congress’ delegation of enumeration power to the Secretary of Commerce was legal.[19]  It also observed that the Census has contained some kind of question related to citizenship in nearly every count since 1820.[20]  Finally, the Court noted that, although it had never considered a question about whether the contents of a particular census were valid, it had previously considered, and rejected, multiple challenges to census counts more generally because it found that the practices used by the Secretary in those cases were reasonably related to carrying out the enumeration process.[21]

Despite the Court finding nothing inherently wrong with the inclusion of a citizenship question,[22] it nonetheless ruled against the Trump Administration on the grounds that the Secretary failed to provide an adequate explanation for his decision to include the citizenship question.[23]  Although the Secretary’s stated reason for including the question was to assist the Department of Justice with improving enforcement of the Voting Rights Act (VRA),[24] the Court noted that the evidence in the record was inconsistent with this stated goal.[25]  Based on that, the Court found the Secretary’s reasons to be “contrived,” and held that it could not uphold the decision based on such inconsistent evidence.[26]  Although the Court remanded the case, it left the door open for the Department of Commerce to try adding the citizenship question again if it wished to do so in the future.[27]

Although the Court gave the Department another chance to add the citizenship question (with a better explanation),[28] the Trump Administration abandoned the attempt[29] and instead issued an Executive Order mandating that federal agencies provide citizenship data to the Census Bureau.[30]  At least one agency, including the Department of Homeland Security, complied with this order and began sharing information,[31] but it is not entirely clear how that information would be used in light of the Supreme Court’s ruling.[32]

In July 2020, the Administration issued a Memorandum claiming its right to exclude undocumented individuals from the 2020 Census count.[33]  The Memorandum stated that “the President’s discretion to settle the apportionment is more than ‘ceremonial or ministerial’ and is essential ‘to the integrity of the [enumeration] process.’”[34]  In the Memorandum, the Administration interpreted the Enumeration Clause as requiring that the census count only “inhabitants,” not simply people who happen to be within the boundaries of a given state.[35]  It noted that at least some non-citizens have historically been excluded from census counts (such as individuals on temporary visas and foreign diplomats),[36] and claimed that allowing states to be granted representatives based on counts that include undocumented persons was inconsistent with democratic principles because such an action would encourage more people to violate the law.[37]  The Memorandum did not address how undocumented persons would be excluded from the Census, nor did it address how undocumented persons would be distinguished from non-citizens who may be legally present in the U.S.[38]

Upon taking office on January 20, 2021, President Biden signed an Executive Order reversing this Memorandum.[39]  In his Executive Order, Biden noted that population counts have always been conducted “without regard to whether [a state’s] residents are in lawful immigration status.”[40]  In addition, he explained that courts have consistently interpreted the term “persons” as it appears in the Constitution as referring to “every person whose usual place of residence was in that State as of the designated census date.”[41]  Based on this reasoning, Biden ordered the Secretary of Commerce to base the census count on the number of people residing in each state, consistent with longstanding practice.[42]  He also reversed the Trump Administration’s Executive Order that had required federal agencies to share citizenship data with the Census Bureau.[43]  However, the Biden Administration has provided no information on what will happen to the citizenship data that had already been provided by the Trump Administration.[44]

III. Implications of Upholding the Exclusion of Undocumented Persons

Although the Supreme Court dismissed the case against the Trump Administration and Trump ultimately decided not to pursue the challenged policy, exclusion of undocumented persons by a future administration could change the political landscape of this country for years to come.[45]  States with large Latino populations such as California, Florida, and Texas would each lose congressional seats that they would otherwise have gained, and more politically conservative states such as Alabama, Minnesota, and Ohio would keep seats that they would otherwise have lost.[46]  Ultimately, such a decision would benefit the Republicans by giving them greater representation in the House.[47]

Because the Trump Administration’s Memorandum did not explain how, or if, it would distinguish undocumented persons from legally present non-citizens, a future ruling in favor of such a policy could easily result in asylum applicants, holders of Temporary Protected Status (TPS), Deferred Action recipients, and Legal Permanent Residents (LPRs) being excluded from the census count.[48]  Thus, this would further the Republicans’ edge.[49]  Many of these individuals have lived in the U.S. for years, even decades, and many are long-time residents of the states in which they reside.[50]  For this reason, excluding such individuals from the Census would be inconsistent with the argument made by the Trump Administration that the Enumeration Clause requires the counting of inhabitants.[51]  It would also be inconsistent with the Administration’s stated desire to avoid giving incentives for violations of U.S. immigration laws, as individuals in these categories have affirmatively taken steps to legalize their presence in the U.S.[52] 

IV. Conclusion

Although the threat of excluding undocumented persons from the Census has passed for now, the possibility of a future effort remains.[53]  President Biden has only blocked this policy via Executive Order, and such orders are easy to reverse by a future president.[54]  Furthermore, because the Supreme Court did not issue a ruling on the merits of such a policy, there is a possibility that it could eventually be upheld depending on the direction in which future administrations and the Court choose to proceed.[55]  Any decision by the Court that allows the exclusion of undocumented persons from the census count would exclude many individuals who can be considered “inhabitants” of the U.S. and would deprive heavily populated states of representation in Congress without a legitimate basis.[56]  This would change the balance of power in the U.S. and result in some voices being heard more while others are silenced.[57]

*Celia Feldman is a second-year day student at the University of Baltimore School of Law, where she serves as a Staff Editor on Law Review. Celia is a Research Assistant for Professor Robert Knowles. Celia is a Judicial Intern for the Hon. George L. Russell, III of the U.S. District Court for the District of Maryland. This summer, Celia will intern with the U.S. Department of Justice in the Office of Immigration Litigation – Appellate Section.

[1]           Michael Wines, 2020 Census Won’t Have Citizenship Question as Trump Administration Drops Effort, N.Y. Times (July 2, 2019), https://www.nytimes.com/2019/07/02/us/trump-census-citizenship-question.html.

[2]           Id.

[3]           Hansi Lo Wang, How the 2020 Census Citizenship Question Ended Up in Court, NPR (Nov. 4, 2018, 10:14 AM), https://www.npr.org/2018/11/04/661932989/how-the-2020-census-citizenship-question-ended-up-in-court.

[4]           See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2576 (2019).

[5]           Exec. Order 13880, 84 Fed. Reg. 33,821, 33,821–25 (July 11, 2019); Tara Bahrampour, What the Supreme Court’s Rulings Mean for the 2020 Census and Trump’s Attempt to Exclude the Undocumented from the Count, Wash. Post (Oct. 18, 2020, 6:00 AM), https://www.washingtonpost.com/local/social-issues/what-the-supreme-courts-rulings-mean-for-the-2020-census-and-trumps-attempt-to-exclude-the-undocumented-from-the-count/2020/10/17/5d299b98-0f71-11eb-8a35-237ef1eb2ef7_story.html.

[6]           Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44679, 44679–81 (July 21, 2020).

[7]           Steven Shepard, Supreme Court Tees up Census Case over Whether Trump Can Exclude Undocumented Immigrants, Politico (Oct. 16, 2020, 6:37 PM), https://www.politico.com/news/2020/10/16/supreme-court-undocumented-immigrants-census-429969.

[8]           Trump v. New York, 141 S. Ct. 530, 535–37 (2020).

[9]           Exec. Order 13986, 86 Fed. Reg. 7015, 7016 (Jan. 20, 2021); Hansi Lo Wang, Biden Ends Trump Census Policy, Ensuring All Persons Living in U.S. Are Counted, NPR (Jan. 20, 2021, 10:31 AM), https://www.npr.org/sections/inauguration-day-live-updates/2021/01/20/958376223/biden-to-end-trump-census-policy-ensuring-all-persons-living-in-u-s-are-counted.

[10]         See Trump, 141 S. Ct. at 537.

[11]         See U.S. Const. art. I, § 2, cl. 3.

[12]         Id.

[13]         See Index of Questions, U.S. Census Bureau, https://www.census.gov/history/www/through_the_decades/index_of_questions/ (last visited Mar. 9, 2021).

[14]         See, e.g., Index of Questions: 1870, U.S. Census Bureau [hereinafter 1870 Census], https://www.census.gov/history/www/through_the_decades/index_of_questions/1870_1.htm (last visited Mar. 9, 2021); Index of Questions: 2000, U.S. Census Bureau [hereinafter 2000 Census], https://www.census.gov/history/www/through_the_decades/index_of_questions/2000_1.html (last visited Mar. 9, 2021).

[15]         See, e.g., 1870 Census, supra note 14; 2000 Census, supra note 14.  But cf. Index of Questions: 1820, U.S. Census Bureau, https://www.census.gov/history/www/through_the_decades/index_of_questions/1820_1.html (last visited Mar. 9, 2021) (asking about the number of “foreigners not naturalized”); Index of Questions: 1830, U.S. Census Bureau, https://www.census.gov/history/www/through_the_decades/index_of_questions/1830_1.html (last visited Mar. 9, 2021) (same).

[16]         Cf., e.g., 1870 Census, supra note 14 (asking only if an individual was “a male citizen of the United States of 21 years or upwards”); 2000 Census, supra note 14 (asking if an individual was a U.S. citizen and, if they were not born in the U.S., when they came to the U.S.).

[17]         139 S. Ct. 2551, 2561 (2019).

[18]         Id. at 2566.

[19]         Id.

[20]         See id. at 2561.

[21]         Id. at 2566.

[22]         See generally id. at 2566–67 (noting historical precedents for inclusion of a citizenship question and demonstrating that these precedents are consistent with the Census’ goal of collecting data that goes beyond a mere population count).

[23]         Id. at 2575.

[24]         Id. at 2562.

[25]         See generally id. at 2575.  The Secretary expressed an interest in adding the citizenship question soon after he took office, but he did not contact the Civil Rights Division at the Department of Justice about VRA enforcement for several months.  Id.  Before beginning contact with the Civil Rights Division, the Secretary first attempted to get the Department of Homeland Security and the Executive Office for Immigration Review to request citizenship data that could be used in the Census.  Id.  However, neither of these Departments is involved in VRA enforcement.  Id.

[26]         Id. at 2576.

[27]         Cf. id. at 2575–76 (ruling against the Department based on its failure to provide an adequate explanation for its proposed action).

[28]         See id.

[29]         Anita Kumar & Caitlin Oprysko, Trump Abandons Effort to Add Citizenship Question to Census, Politico (July 11, 2019, 7:15 PM), https://www.politico.com/story/2019/07/11/trump-expected-to-take-executive-action-to-add-citizenship-question-to-census-1405893.

[30]         See Bahrampour, supra note 5.

[31]         Hansi Lo Wang, To Produce Citizenship Data, Homeland Security to Share Records with Census, NPR (Jan. 4, 2020, 12:48 PM), https://www.npr.org/2020/01/04/793325772/to-produce-citizenship-data-homeland-security-to-share-records-with-census.

[32] See generally id. (observing that, while the Bureau claims that it is using the data solely for statistical purposes, it has also been sued by advocacy groups who accuse it of potentially using the data to deny representation to states that have significant Latino populations).

[33]         See 85 Fed. Reg. at 44,679–81.

[34]         Id. at 44,679 (quoting Franklin v. Massachusetts, 505 U.S. 788, 799–800 (1992)).

[35]         Id.

[36]         Id.

[37]         Id. at 44,680.

[38]         See generally id. at 44,679–81 (failing to address these questions).

[39]         See Wang, supra note 9; see also 86 Fed. Reg. at 7016.

[40]         86 Fed. Reg. at 7015.

[41]         Id.

[42]         Id. at 7016.

[43]         Id.

[44]         See generally id. at 7015–17 (failing to address this question); see also Wang, supra note 9.

[45]         Trump v. New York, 141 S. Ct. 530, 535–37 (2020); Jeffrey S. Passel & D’Vera Cohn, How Removing Unauthorized Immigrants from Census Statistics Could Affect House Reapportionment, Pew Res. Ctr. (July 24, 2020), https://www.pewresearch.org/fact-tank/2020/07/24/how-removing-unauthorized-immigrants-from-census-statistics-could-affect-house-reapportionment/See also Tara Bahrampour & Brittany Renee Mayes, Census Battle Ends as Trump Administration Gives up on Excluding Undocumented from Apportionment, Wash. Post (Jan. 16, 2021, 2:08 AM), https://www.washingtonpost.com/local/social-issues/census-battle-ends-as-trump-administration-gives-up-on-excluding-undocumented-from-apportionment/2021/01/16/bd17025c-57ba-11eb-a931-5b162d0d033d_story.html.

[46]         See Passel & Cohn, supra note 45.

[47]         See Shepard, supra note 7.

[48]         See 85 Fed. Reg. at 44,679–81; see also Bahrampour, supra note 5.

[49]         See id.

[50]         Cf. CAP Immigration Team & Michael D. Nicholson, The Facts on Immigration Today: 2017 Edition, Ctr. for Am. Progress (Apr. 20, 2017, 9:00 AM), https://www.americanprogress.org/issues/immigration/reports/2017/04/20/430736/facts-immigration-today-2017-edition/ (stating that immigrants generally are establishing roots in the U.S. and are increasingly becoming homeowners).

[51]         See 85 Fed. Reg. at 44,679.

[52]         See, e.g., D’Vera Cohn, 5 Key Facts About U.S. Lawful Immigrants, Pew Res. Ctr. (Aug. 3, 2017), https://www.pewresearch.org/fact-tank/2017/08/03/5-key-facts-about-u-s-lawful-immigrants/.

[53]         See supra note 10 and accompanying text.

[54]         See supra notes 9–10 and accompanying text.

[55]         See supra note 10 and accompanying text; see also supra notes 22–27 and accompanying text.

[56]         See supra notes 45–51 and accompanying text.

[57]         See supra notes 45–49 and accompanying text.

Enact Emergency Legislation Now and Save Maryland Restaurants Before it is Too Late

*Jared Stape

I. Introduction

A harmful paradox has rapidly emerged in the restaurant industry—U.S. restaurants are losing revenue—while third-party delivery apps are seeing an exponential increase in revenue.[1]  The COVID-19 public health emergency has razed local restaurants with ordinances preventing on-site dining, causing an uptick in delivery.[2]  This has created a temporary paradigm shift, forcing restaurants to change their business models to rely more on delivery until vaccination rates are high enough for the U.S. population to gain herd immunity, allowing restaurants to open without restrictions.[3]  Many hungry customers think they are supporting local restaurants by placing orders with third-party apps, including Grubhub, DoorDash, Uber Eats, and Postmates.[4]  However, these self-proclaimed restaurant lifelines are actually more cancerous, as they impose exorbitant commission fees on local restaurants, crippling an already struggling industry.[5]

Continue reading “Enact Emergency Legislation Now and Save Maryland Restaurants Before it is Too Late”

Antitrust Attacks on Google: Restoring Competition in Search Optimization and the Potential Reformation of Antitrust

*Michael Blanchard

I. Introduction

In a highly-anticipated move, the Department of Justice (DOJ) filed an antitrust lawsuit against tech-conglomerate Google LLC (Google) for its exclusionary and monopolistic practices in search optimization and advertising markets.[1]  The fifty-seven page complaint argues that “Google has [illegally] used anticompetitive tactics to maintain and extend its monopolies in the markets for general search services, search advertising and general search text advertising . . . .”[2]  The DOJ specifically notes that “Google’s actions ha[ve] hurt consumers by stifling innovation, reducing choice and diminishing the quality of search services . . . .”[3]

The complaint focuses on a series of exclusionary agreements Google entered into with mobile-tech companies such as Apple.[4]  Through these agreements, Google is the “preset default general search engine on billions of mobile devices” and has even banned preinstallation of their competitor’s products.[5]  Google also entered into agreements with other leading smartphone manufacturers, requiring all who use its Android operating system to preinstall its search engine by default––thereby creating control over both the android and IOS mobile platforms.[6]  This enables Google to compel preferential treatment of its products across the mobile-tech industry and has dramatically chilled competition through its monopolistic hold over these devices.[7]  Additionally, advertisers who use Google’s products must also “pay a toll to Google’s search advertising and general search text advertising monopolies.”[8]  Google leads the search advertising sector, making use of their product virtually unavoidable.[9]  Alphabet Inc., the parent company of Google, responded to these allegations by noting that they are “deeply flawed,” as users can freely use other search engines––e.g., Bing, Yahoo, or DuckDuckGo––and only use Google out of preference because it offers the best service.[10]  This suit stems from an investigation which took longer than sixteen months and is one of the most significant challenges to a tech company’s market power since the 1998 antitrust case against Microsoft.[11]  While the DOJ investigated this matter, several other states conducted their own parallel investigations.[12]  In December, more than thirty states joined together to bring a separate suit against the tech company.[13]

Continue reading “Antitrust Attacks on Google: Restoring Competition in Search Optimization and the Potential Reformation of Antitrust”

Cuties: The French Film That Shocked America’s Conscience

*Sabrina Marquez

The First Amendment’s protection of free speech is in contention as a small county in Texas charged Netflix, Inc. (Netflix) with the state felony of promoting lewdness for content displayed in the movie “Cuties.”[1]  The movie is a French film by Maïmouna Doucouré, also known as “Mignonnes,”and functions as an extension of her short film “Maman(s).”[2]  Cuties follows the journey of an eleven-year-old Muslim immigrant from Senegal named Amy and her struggle with identity as she joins a group attempting to win a local dance contest.[3]  Amy’s story brings to light the hyper-sexualization of young children and their vulnerabilities during such an explorative time.[4] 

Before the film’s release on Netflix, controversy began with the original artwork used for promotion, which depicted the main characters in their dance costumes.[5]  Once the film was released, the platform experienced extreme backlash from viewers worldwide.[6]  Many viewers are now calling for the film to be removed from the streaming service and threatening to boycott Netflix.[7]  In the movie, Amy and her friends are shown in revealing clothes while “twerking” and learning other provocative dances.[8]  These scenes were intended to demonstrate how modern media and the sexualization of girls impacts young children; however, the message did not quite register and the film has since been heavily criticized as child pornography.[9]

A grand jury in Tyler County, Texas, indicted Netflix for the promotion of lewd material depicting a child under Texas Penal Code § 43.262(b).[10]  That statutory provision reads as follows:

A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:

(1)  depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created;

(2)  appeals to the prurient interest in sex; and

(3)  has no serious literary, artistic, political, or scientific value.[11]

The statute combines the obscenity standard coined in the landmark Supreme Court case Miller v. California[12] and federal child pornography law.[13]  The First Amendment safeguards obscene material so long as the work has serious artistic value, but child pornography is excluded from this protection.[14]

For the Texas statute to be satisfied, the material must depict a minor’s genitals, clothed or unclothed.[15]  In the film, the main character and her dance crew are shown in crop tops and short shorts, but their genitals are never on screen.[16]  Additionally, the film does not appeal to the prurient interest of sex.[17]  The young actresses are not participating in sex acts or sexual conduct, they are only seen learning explicit dances.[18]  Even if a court finds the first two prongs are met, to sustain a conviction under the Texas statute, the work as a whole must have no serious literary, artistic, political, or scientific value.[19]  Tyler County District Attorney, Lucas Babin, will have an uphill battle trying to prove the film lacks serious artistic value as Doucouré’s Manans, from which Cuties is adapted, is an award winning, critically acclaimed film.[20]  Those awards include the Sundance International Fiction Jury Award, Best Short Film at the Toronto International Film Festival, and the 2017 Cèsar Award for Best Short Film.[21]  Additionally, Cuties is a rumored nominee for the International Featured Film category of the 2021 Academy Awards.[22]

If Netflix is convicted of promoting lewd material depicting a child, the ruling may have a detrimental impact on freedom of speech.[23]  The statute applies to the lewd depiction of anyone under the age of eighteen that appeals to a prurient interest in sex.[24]  If the Texas court finds the statute applicable to the film Cuties for showing young girls dancing in provocative clothing, where would courts down the road draw the line?[25]  Would Texas prosecutors then have the authority to charge participants of child beauty pageants for promoting lewdness?[26]  Or teenagers who post provocative dances of themselves on platforms like TikTok and Instagram?[27]  Cuties was a thought-provoking film on the impact of modern media that forced the audience to be uncomfortable.[28]  Although the movie teetered the line of inappropriateness, it did not go as far as producing child pornography and therefore, due to the film’s artistic value, it should be protected under the First Amendment.[29]

*Sabrina Marquez is a second-year day student at the University of Baltimore School of Law, where she is a staff editor for Law Review. Sabrina is a teaching assistant for Professor William Hubbard’s Introduction to Lawyering Skills course, President of the Latin American Law Students Association, and Community Service Director for the Student Bar Association. Last summer, Sabrina interned for the Hon. Douglas R. M. Nazarian in the Maryland Court of Special Appeals. This upcoming summer, Sabrina will be summer associate for Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. 

[1]           See Indictment, Texas v. Netflix, Inc., No. 13731, 2020 WL 5995262 (Tex. Dist. Sept. 23, 2020); see also Mike Godwin, Texas Grand Jury Indicts Netflix Over Cuties, Doesn’t Understand First Amendment, Slate: Tech. (Oct. 9, 2020, 6:06 PM), https://slate.com/technology/2020/10/cuties-netflix-texas-indictment-lewd-visual-material-first-amendment.html.

[2]           See Amy Nicholson, ‘Cuties’: Film Review, Variety (Jan. 23, 2020, 7:30 PM), https://variety.com/2020/film/reviews/cuties-review-1203476991/.

[3]           See Cuties, Sundance Inst., https://www.sundance.org/projects/cuties (last visited Jan. 21, 2021).

[4]           See id.

[5]           See Vulture Editors, Wait, What’s Going on With Netflix and Cuties?, Vulture (Oct. 7, 2020), https://www.vulture.com/2020/10/netflix-cuties-twerking-poster-drama-explained.html (“It used a picture of a young Senegalese Muslim character, Amy, along with the titular Cuties — the dance crew of cool girls from her middle school in Paris — in spandex dance costumes (short-shorts and metallic crop tops).”).

[6]           See Cuties: Netflix Apologises for Promotional Poster After Controversy, BBC (Aug. 20, 2020), https://www.bbc.com/news/entertainment-arts-53846419.

[7]           See Caitlyn Green, “Cuties” and #CancelNetflix: Is It Worth the Controversy?,Suffolk J. (Sept. 22, 2020), https://thesuffolkjournal.com/30062/ac/film/cuties-and-cancelnetflix-is-it-worth-the-controversy/.

[8]           See id.

[9]           See Maria Cramer, Netflix Is Charged in Texas with Promoting Lewdness in ‘Cuties’, N.Y. Times (Oct. 7, 2020), https://www.nytimes.com/2020/10/07/business/cuties-netflix-texas.html.

[10]         Id.

[11]         Tex. Penal Code Ann. § 43.262(B) (West, through the end of 2019 Legis. Sess.).

[12]         See 413 U.S. 15, 24 (1973) (“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”) (citations omitted).

[13]         See 18 U.S.C. § 2256(8)(A) (“‘[C]hild pornography’ means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture . . .  involv[ing] the use of a minor engaging in sexually explicit conduct[.]”).

[14]         See New York v. Ferber, 458 U.S. 747, 756 (1892) (holding states have greater deference when regulating the sexual exploitation of children).

[15]         § 43.262(b)(1).

[16]         See Cuties (Bien ou Bien Productions & Fr. 3 Cinéma 2020).

[17]         § 43.262(b)(2); see Oscar Michelen, Texas Indictment of Netflix Over “Cuties” Violates First Amendment, Denigrates Art, Courtroom Strategy (Oct. 7, 2020), https://courtroomstrategy.com/2020/10/texas-indictment-of-netflix-over-cuties-violates-first-amendment-denigrates-art/.

[18]         See Cuties, supra note 16.

[19]         See § 43.262(b).

[20]         See Cuties, supra note 3; see also Julia Alexander, Netflix Indicted by a Texas Grand Jury Over ‘Lewd Depictions’ in Cuties, Verge (Oct. 7, 2020, 3:01 PM), https://www.theverge.com/2020/10/7/21505964/netflix-cuties-texas-indictment-lewd-depiction-movie-grand-jury.

[21]         See Cuties, supra note 3. 

[22]         See Annabel Nugent, Netflix Film Cuties Shortlisted for Oscars 2021 Nominations Despite Controversy, Independent Co. (Nov. 13, 2020), https://www.independent.co.uk/arts-entertainment/films/news/cuties-netflix-oscars-nominations-controversy-b1722258.html.

[23]         See Green, supra note 7.

[24]         § 43.262(b).

[25]         See Green, supra note 7.

[26]         See id. 

[27]         See Alexander, supra note 20.

[28]         See Godwin, supra note 1.

[29]         See id.

Indictments Don’t Deter Cyberattacks, So Why Does the U.S. Keep Using Them? An Analysis in Response to the U.S.’s Recent Indictment of Six Russian Hackers

*Ellen Pruitt

I. Introduction

On October 19, 2020, the U.S. Justice Department indicted six Russian Military Officers in connection with a series of cyberattacks.[1]  The indictment charges the officers in connection with the 2015 and 2016 blackouts in Ukraine, 2017 economic losses to three corporations, 2018 attacks on computers supporting the PyeongChang Olympics, meddling in the 2017 French elections, targeting Georgian companies and government offices, and damaging computer networks in the U.S. and six other countries.[2]

The indictments are not a new strategy—the U.S. has also indicted Chinese, Iranian, and other Russian hackers.[3]  U.S. use of indictments to target international hackers has received sharp criticism as being ineffective and weakening international norms to combat cyberattacks.[4]  Critics of U.S. preference for indicting foreign hackers point to another tool used, though sparingly, to penalize foreign hackers: sanctions.[5]  Sanctions may be preferable to indictments in their ability to deter broader engagement in cyberattacks and their protection of national cyber capabilities.[6]  The continued use of indictments instead of sanctions for cyber actors raises the questions: which works better?  And why does the trend favor indictments?

Continue reading “Indictments Don’t Deter Cyberattacks, So Why Does the U.S. Keep Using Them? An Analysis in Response to the U.S.’s Recent Indictment of Six Russian Hackers”