RICO Resurgence: How State Statutes are Bringing RICO Back.

*Andrea Hutton

I. Introduction

In the first episode of The Sopranos, Tony Soprano laments to his therapist that “[he’s] not getting any satisfaction from [his] work.”[1] When his therapist asks why, Tony says, “[a]ll because of RICO,” clarifying that RICO is not a family member, but a statute.[2] Many Americans are familiar with the Racketeer Influenced and Corrupt Organizations Act (RICO) because of its association with the Mafia. However, states’ recent use of RICO statutes have many Americans wondering, what are these statutes and how do they connect mob bosses and former presidents?

II. Cultural and Legislative History

The Mafia grabbed the attention of America after the arrival of the first known member of the Sicilian Mafia in 1878.[3] The Mafia and other organized crime entities grew in sophistication when the passage of the Eighteenth Amendment created lucrative opportunities to provide alcohol to the public.[4] In the first half of the Twentieth Century, criminal organizations oversaw an array of activities including, “gambling, loan sharking, drug trafficking, extortion, gun running, prostitution, bootlegging, racketeering, money laundering and fraud.”[5] Public awareness of the Mafia grew after World War II, with approximately 30 million people tuning into a televised 1951 Senate committee investigation of organized crime.[6] Twenty years later, President Nixon signed RICO into law as part of the Organized Crime Control Act of 1970 with the purpose of “eradicat[ing] . . . organized crime in the United States by strengthening the legal tools in the evidence gathering process[.]”[7]

III. A Powerful Weapon

To fight the Mafia the federal government needed an arsenal as effective as the organizations it was up against. The RICO statute provides the munitions by attacking the profits of businesses engaging in racketeering activity.[8] The first weapon is the statute’s expansive definition of racketeering activity. Racketeering activity is “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical . . . chargeable under State law and punishable by imprisonment for more than one year.”[9] The statute also includes more than fifty federal offenses considered racketeering activity and “white collar crimes” like “mail fraud, . . . money laundering, and securities fraud.”[10] This definition makes it hard to name a crime that would not constitute racketeering activity.

The statute attacks businesses associated with organized crime by making it both criminally and civilly unlawful for any person to invest money derived from a pattern of racketeering into an enterprise, use a pattern of racketeering to control an enterprise, or conduct the affairs of an enterprise through a pattern of racketeering.[11] The statute also strikes at the planning stages of such endeavors with the inclusion of conspiring to violate the provisions of RICO as another unlawful act.[12] 

The statute allows “unconnected acts,” often completed by different defendants, “to be woven together” to establish the pattern required to form a RICO conspiracy.[13] Conduct forms a pattern when the acts “have the same or similar purposes, results, participants, victims, or methods of commission.”[14] One limit the provision establishes is that the related acts must occur within ten years of each other.[15]

RICO imposes liability on those who are part of an enterprise and know of two or more racketeering activities committed by another member of the enterprise.[16] An enterprise encompasses “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”[17] To prove the enterprise exists, there must be an “ongoing organization, formal or informal” in which the associates of the organization “function as a continuing unit.”[18]

The intentionally broad terms and concepts in the statutes finally gave prosecutors an opportunity to point to connections that resulted in culpability for people who during previous attempts to hold them responsible could say, “Wasn’t me.”[19] Some thought this aspect of the statute granted too much power and sought to narrow its reach.[20] The courts disagreed, holding that “[t]he legislative history clearly demonstrates that the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots”[21] as evidenced by Congress’s direction that “provisions of this title [should] be liberally construed to effectuate its remedial purposes.”[22] 

IV. Expanding RICO

Once successful RICO cases brought previously untouchable defendants to bay, prosecutors and legislators eyed new ways to expand the statute from its initial focus on the Mafia.[23] The Supreme Court put big business on notice in Sedima, S.P.R. v. Imrex Co., Inc., ruling that “respected and legitimate enterprises” were just as capable of violating RICO as “mobsters and organized criminals” and that Congress intended the statute to be liberally construed, allowing it to reach both types of organizations.[24] Congress expanded the statute during the War on Drugs to go after target gangs and later, to pursue suspected terrorists following the attacks of September 11, 2001.[25] In 2007, the First Circuit ruled that RICO also applied to enterprises that “engaged in noneconomic criminal activity”[26] because a “de minimis effect on interstate commerce is all that is required to satisfy RICO’s commerce element.”[27] In that case, the court held that the enterprise’s purchase of guns manufactured in another state satisfied the interstate commerce element.[28]

V. In the News: The Georgia RICO Statute

Over thirty states followed the federal government’s lead enacting their own “little RICO” statutes.[29] Some state RICO statutes, like the one Georgia enacted in 1980, expand on the federal statute. Unlike the federal statute, the Georgia statute has no “enterprise” requirement—it allows for charges against an individual.[30] Georgia’s RICO statute also provides a broader array of crimes that create a pattern of racketeering activity, including: “the attempt, solicitation, coercion, and intimidation of another to commit any [state] crime which is chargeable by indictment.”[31]

In Atlanta, Fani Willis, the Fulton County District Attorney, is relying on the Georgia statute to bring a dizzying array of RICO indictments.[32] For example, in May 2022, Willis brought fifty-six counts against rappers Young Thug and Gunna along with twenty-six members of the Young Stoner Life Collective.[33] Earlier this year, she brought RICO charges against Donald Trump and eighteen others for their attempts to overturn the 2020 presidential election.[34]

VI. Conclusion

These Willis-led indictments are bringing Georgia’s RICO statute into the popular imagination—like the impact of the earlier Mafia cases under the federal RICO statute. While federal RICO cases successfully brought down Mafiosos and businessmen, state RICO cases are often broad and unwieldy, requiring prosecutors to rely on plea deals to take care of most of the defendants. The eyes of America and the world will, once again, scrutinize RICO statutes when Donald Trump’s case kicks off in October 2023, laying bare the strengths and weaknesses of the Georgia statute and its federal predecessor.

*Andrea Hutton is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Andrea received dual bachelor’s degrees from Louisiana State University in Public Relations and Fashion Merchandising. Before law school, she had a nearly 10-year career in digital marketing and business development. Since 2008, Andrea has volunteered with the Hugh O’Brian Youth Leadership Louisiana Seminar, an organization with the mission to create a global community of young volunteers dedicated to a life of leadership, service, and innovation. She served as the Leadership Seminar Chair from 2021-2023, leading a team of more than 20 volunteers to plan and execute the organization’s premiere event, a weekend-long leadership seminar for high school sophomores. In the summer of 2023, Andrea interned in the office of the County Attorney for Montgomery County. She intends to practice real estate law.

[1]           The Sopranos: The Sopranos (HBO television broadcast Jan. 10, 1999).

[2]            Id.

[3]            Sean M. McWeeney, The Sicilian Mafia and Its Impact on the United States, FBI L. Enf’t Bull., Feb. 1987, at 1–2.

[4]            John R. Mitchell, et. al., Beyond the Mob: “Varsity Blues” and DOJ’s Expanding Use of RICO to Prosecute White-Collar Crime, Crim. Just., Fall 2019, at 4.

[5]            Id. at 4–5.

[6]            Id. at 5.

[7]            Id.

[8]            Pamela H. Bucy & Steven T. Marshall, An Overview of RICO, 51 Ala. Law. 283, 284 (1990).

[9]            18 U.S.C. § 1961(1).

[10]           Id.; Bucy & Marshall, supra note 8, at 284.

[11]          § 1962(a)–(c).

[12]          Id. § 1962(d).

[13]          Mitchell, supra note 4, at 5.

[14]          H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240 (1989).

[15]          18 U.S.C. § 1961(5).

[16]           Piper French, An Offer You Can’t Refuse: How a Mob Statute Metastasized, The Drift (July 12, 2023), https://www.thedriftmag.com/an-offer-you-cant-refuse.

[17]            § 1961(4).

[18]            Bucy & Marshall, supra note 8, at 285.

[19]           See Julian Simcock, Recalibrating After Kiobel: Evaluating the Utility of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) in Litigating International Corporate Abuse, 15 CUNY L. Rev. 443, 450.

[20]          See Rusello v. U.S., 464 U.S. 16, 17 (1983).

[21]          Id. at 26.

[22]            Id. at 27.

[23]          See Mitchell, supra note 4, at 7–8.

[24]            Sedima, S.P.R. v. Imrex Co., Inc., 473 U.S. 479, 497–99 (1985).

[25]          See French, supra note 16; see also Mitchell, supra note 4, at 7–8.

[26]            U.S. v. Nascimento, 491 F.3d 25, 30 (1st Cir. 2007).

[27]          Id. at 37.

[28]          Id.

[29]          French, supra note 16.

[30]          Ga. Code Ann. § 16-14-4 (West 2023).

[31]          Ga. Code Ann. § 16-14-3 (West 2023).

[32]         Christina Lee, What (or Who) Is Behind the Rise of RICO?, Atlanta Mag. (June 14, 2023), https://www.atlantamagazine.com/news-culture-articles/what-or-who-is-behind-the-rise-of-rico/.

[33]         Zoe Guy, Everything We Know About YSL’s RICO Case, Vulture (July 22, 2023), https://www.vulture.com/article/ysl-young-thug-gunna-arrest-charges-explained.html.

[34]         Richard Fausset & Danny Hakim, What We Know About the Trump Election Interference Case in Georgia, N.Y. Times (Aug. 14, 2023), https://www.nytimes.com/2023/08/14/us/trump-georgia-election-indictment-what-to-know.html?name=styln-georgia-investigation.

Geofence Warrants: Strict in Theory. Fatal in Fact?

*Philip Glaser

I. Introduction

Following the January 6, 2021 incursion on the U.S. Capitol, law enforcement faced a challenge: how could they identify the hundreds of people who entered the Capitol Building in violation of federal law?[1] To put names to faces, the FBI solicited tips,[2] scoured social media,[3] and enlisted assistance from Google.[4] In United States v. Rhine, the U.S. District Court for the District of Columbia reveals in detail how law enforcement pursued a “geofence” warrant, prompting Google to turn over the identities of account holders whose devices were present inside the Capitol in the critical hours of that afternoon.[5] The use of such warrants is not just limited to events of grand historical importance, however. In United States v. Chatrie, the Court of Appeals for the Fourth Circuit will provide the first federal appellate court guidance on the issue of geofence searches more generally, as it addresses whether a bank robbery suspect’s Google Location History should be suppressed on Fourth Amendment grounds.[6] The contrasting analyses of the geofence warrants in Chatrie and Rhine reveal an emerging federal jurisprudence of intense scrutiny that may deter these searches for all but the most extraordinary of circumstances.

II. The Warrant Requirement and Its Exceptions

The Fourth Amendment protects the people “against unreasonable searches and seizures.”[7] However, it does permit such intrusions if they are executed under a warrant based on probable cause “particularly describing the place to be searched, and the person or things to be seized.”[8] To deter infractions of the warrant requirement, the Supreme Court applies the exclusionary rule, which bars the government from using evidence at trial that was seized through a defective warrant.[9] Acknowledging that there are occasions in which the exclusionary rule does not actually serve as a deterrent, the Court also recognizes a good-faith exception: when an officer reasonably relies on a defective warrant, evidence seized under its authority may still be used at trial.[10] By another exception, the third party doctrine, the Court relieves the government of the warrant requirement in instances where the government seeks information from a third party, reasoning that by sharing the sought information with the third party, the defendant can have no legitimate expectation of privacy.[11] As increasingly invasive investigatory methods emerge, enabled by ever-growing amounts of collected user data, the Supreme Court relies on a traditional framework to uphold the Fourth Amendment while recognizing modern manifestations of doctrinal exceptions.[12]

III. The “quagmire of geofence search warrants”[13]

  1. Chatrie Illustrates Fourth Amendment Limits on Geofence Searches

With no federal appellate authority on the matter,[14] the trial judge in Chatrie endeavored to apply Fourth Amendment doctrine to the “previously unimaginable investigatory method” of the geofence search.[15] There, the suspect robbed a bank of $195,000 during business hours.[16] With no leads on the suspect’s identity, law enforcement leveraged the suspect’s observed cell phone use to get a geofence warrant.[17] The warrant compelled Google to reveal location information of all users within a 150-meter radius of the bank in an hour window around the time of the robbery.[18] The trial judge determined that the search warrant was deficient, citing the Fourth Circuit’s rule that warrants “that authorize the search of every person within a particular area must establish probable cause to search every one of those persons.”[19]

Though the broad search did capture the location history of the robbery suspect, it also included others for whom there was no probable cause to search.[20] The court also highlighted that law enforcement improperly sidestepped judicial discretion by failing to follow the multistep process of narrowing down suspect Google accounts described in the warrant.[21] Nevertheless, because the officer who procured the warrant reasonably relied on prior similar warrants, the prosecutor, and the magistrate, the court allowed the government to use the fruits of the defective geofence warrant under the good-faith exception.[22]

B. Rhine Exhibits a Geofence Warrant with Properly Implemented Restraints

In contrast with Chatrie, the trial judge in Rhine found that the January 6th Google geofence search satisfied the warrant requirement due to narrowing measures taken by the government.[23] The government only sought location history for users whose devices were within a geofence area drawn to closely match the interior footprint of the Capitol during the incursion.[24] To filter out devices belonging to those authorized to be in the Capitol, the government also requested control data from times before and after the event, when the building was known to be secure.[25] In addition, the government limited its request to location data points for which the entire error radius[26] fell within the geofence, further decreasing the chance of false positives.[27] The nature of the suspected crime—unauthorized presence—made any match to the above criteria itself evidence of a crime, strongly supporting probable cause for the search.[28] In the end, the government’s narrowing measures reduced a return of 5,723 devices down to 1,535.[29] The court also credited the government’s self-imposed prohibition on requesting deanonymized information from Google without an additional court order, another stark contrast with the process in Chatrie.[30]

V. Conclusion

In its review of the warrant in Chatrie, the Fourth Circuit will have an opportunity to weigh in on what makes a proper geofence warrant, likely taking notes from the Rhine decision. More importantly, however, it will be able to clarify whether individuals have a reasonable expectation of privacy in data obtained by such searches, a matter the trial judges in Rhine and Chatrie declined to decide.[31] Geofence searches represent “‘an almost unlimited pool from which to seek location data,’ such that ‘police need not even know in advance whether they want to follow a particular individual, or when.’”[32] As law enforcement leans more heavily on this unprecedented power, and the excuses for poorly planned and executed warrants afforded by the good-faith exception wear thin, the courts must return to the roots of the Fourth Amendment and extend its protections to the age of surveillance.

*Philip Glaser is a second-year student at the University of Baltimore School of Law and a staff editor for Law Review. He came to law school after a decade-long career in education. In the summer of 2023, Philip worked as a judicial intern for Hon. Brendan A. Hurson at the U.S. District Court for the District of Maryland. In the fall, he is serving as a Law Scholar for Professor Dolin’s Torts class. Philip intends to practice at the intersection of criminal defense and civil rights.

[1] Spencer S. Hsu, Justice Dept. Calls Jan. 6 ‘Capitol Attack’ Probe One of Largest in U.S. History, Expects at Least 400 to Be Charged, Wash. Post (Mar. 12, 2021, 7:28 PM), https://www.washingtonpost.com/local/legal-issues/capitol-attack-investigation-largest/2021/03/12/5c07b46c-833d-11eb-9ca6-54e187ee4939_story.html.

[2] Kevin Collier, Selfies, Social Media Posts Making it Easier for FBI to Track Down Capitol Riot Suspects, NBC News (Jan. 16, 2021, 6:34 PM), https://www.nbcnews.com/tech/social-media/selfies-social-media-posts-making-it-easier-fbi-track-down-n1254522.

[3] Id.

[4] Mark Harris, How a Secret Google Geofence Warrant Helped Catch the Capitol Riot Mob,Wired(Sep. 30, 2021, 7:00 AM),https://www.wired.com/story/capitol-riot-google-geofence-warrant/.

[5] United States v. Rhine, No. 21-0687, 2023 WL 372044, at *1 (D.D.C. Jan. 24, 2023).

[6] United States v. Chatrie, 590 F.Supp.3d 901 (E.D. Va. 2022), appeal docketed, No. 22-04489 (4th Cir. Aug. 29, 2022).

[7] U.S. Const. amend. IV.

[8] Id.

[9] Weeks v. United States, 232 U.S. 383, 398 (1914);Mapp v. Ohio, 367 U.S. 643, 655 (1961).

[10] United States v. Leon, 468 U.S. 897, 922 (1984).

[11] Smith v. Maryland, 442 U.S. 735, 744–46 (1979).

[12] See, e.g., Katz v. United States, 389 U.S. 347 (1967); United States v. Jones, 565 U.S. 400 (2012); Carpenter v. United States, 138 S. Ct. 2206 (2018).

[13] United States v. Rhine, No. 21-0687, 2023 WL 372044, at *22 (D.D.C. Jan. 24, 2023) (quoting United States v. Davis, No. 21-101, 2022 WL 3009240, at *9 (M.D. Ala. Jul. 1, 2022)).

[14] See United States v. Chatrie, 590 F.Supp.3d 901, 906 (E.D. Va. 2022), appeal docketed, No. 22-04489 (4th Cir. Aug. 29, 2022) (noting a “dearth of case law addressing geofence warrants”).

[15] Id. at 905.

[16] Id. at 917.

[17] Id.

[18] Id. at 917–19.

[19] Id. at 927.

[20] Id.

[21] Id. at 927, 934 n.44 (“Det. Hylton returned the warrant before it was served, improperly requested Step 2 and 3 information simultaneously, failed at first to narrow his request at Step 2, and incorrectly tried to add a Step 4 to the process.”)

[22] Id. at 937–38.

[23] United States v. Rhine, No. 21-0687, 2023 WL 372044, at *27 (D.D.C. Jan. 24, 2023).

[24] Id. at *18, *29.

[25] Id. at *29.

[26] See id. at *18 (explaining that a location data point’s error radius describes a circle containing the user’s actual location with 68% certainty).

[27] Id. at *30.

[28] Id. at *29.

[29] Id. at *30.

[30] Id. at *32.

[31] Id. at *28; United States v. Chatrie, 590 F.Supp.3d 901, 925 (E.D. Va. 2022), appeal docketed, No. 22-04489 (4th Cir. Aug. 29, 2022).

[32] Id. at *22 (quoting Leaders of a Beautiful Struggle v. Balt. Police Dep’t, 2 F.4th 330, 342 (4th Cir. 2021) (en banc).

Restricting Gun Ownership for People Under Domestic Violence Protective Orders: Violation of the Second Amendment or Rooted in History?

*Collin Riley

I. Introduction

In adopting the Second Amendment, the people of the United States of America also embraced a persistent question: to what extent can the government restrict an individual’s right to bear arms? The answer to this dilemma remains unclear, due to difficulty in balancing the competing interests of promoting public safety and protecting the fundamental rights of the people.[1] This Term, the Supreme Court will hear the case of United States v. Rahimi, in which Rahimi challenges a federal statute prohibiting firearms possession by individuals subject to a domestic violence protective order.[2] A ruling in favor of Rahimi that finds the statute unconstitutional could open the floodgates for further constitutional challenges—similar to how N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen opened the door for Rahimi.[3]

II. To Heller and Back: The New Old Test for Analyzing Second Amendment Challenges

In June 2008, the Supreme Court ruled on District of Columbia v. Heller, which involved a challenge to gun-control statutes enforced in D.C. prohibiting the possession of usable handguns in a home.[4] In concluding that the statutes violated the Second Amendment,[5] the Court first determined that the Second Amendment’s text covered Heller’s conduct.[6] Next, the Court conducted an in-depth historical analysis to determine if the disputed regulation was consistent with this Nation’s established tradition of firearm regulation.[7]

Two years later, the Supreme Court reaffirmed its decision in Heller when ruling on the case of McDonald v. Chicago.[8]In McDonald, the Court concluded that the Fourteenth Amendment incorporates[9] the Second Amendment right to keep and bear arms for the purpose of self-defense.[10] Following the decisions in Heller and McDonald, the Courts of Appeals developed a two-step approach for analyzing Second Amendment challenges.[11] The method consisted of a historical analysis of the challenged text followed by a means-end scrutiny test.[12] The courts employed this two-part test for years until the Supreme Court decided Bruen in 2021.[13]

In Bruen, the Court held that the Courts of Appeals were mistaken when they included a means-end scrutiny test in their analysis of Second Amendment challenges.[14] Justice Thomas explained that the Court declined to engage in means-end scrutiny in Heller because the “very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”[15] The decision in Bruen reinstated the historical inquiry outlined in Heller, which assesses whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.[16]

III. United States v. Rahimi

Zackey Rahimi challenged the constitutionality of a federal statute that prohibits the possession of firearms by individuals subject to a domestic violence protective order.[17] The lower court and a Fifth Circuit Court of Appeals panel swiftly shot down Rahimi’s argument under the pre-Bruen two-step test.[18] However, after the Bruen decision, the panel withdrew its opinion, and the Fifth Circuit re-evaluated Rahimi’s challenge.[19] The court analyzed the statute through a historical lens, without any means-end inquiry, and subsequently found it unconstitutional.[20]

The United States petitioned the Supreme Court, which granted certiorari to hear the case.[21] In its brief accompanying the petition, the United States argues that the Fifth Circuit erred in its historical analysis of the challenged statute.[22] The crux of the United States’ argument is that “the Second Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens.”[23] The United States disputes the Fifth Circuit’s conclusion that the phrase “law-abiding, responsible citizens” was used as shorthand, in Heller, to explain long-standing traditions of prohibiting the possession of firearms by felons and the mentally ill or laws forbidding firearms in places like schools and government buildings.[24] Instead, the United States asserts that people have understood the phrase to grant the government discretion in disarming “individuals whom they have found to be dangerous, irresponsible, or otherwise unfit to possess arms.”[25] The United States’ brief included research highlighting the dangers associated with persons subject to domestic violence protective orders possessing firearms.[26] Stressing the increased risks of harm to domestic violence victims, the United States argue that persons subject to protective orders for domestic violence are definitively “not responsible” and, therefore, forfeit their right to bear arms under the Second Amendment.[27]

IV. Conclusion: What Lies on the Horizon?

In its upcoming Term, the same conservative-leaning Supreme Court that issued the Bruen decision will render a decision in Rahimi.[28] The Court will employ an in-depth historical analysis of the challenged statute, consistent with the Heller and Bruen decisions, which will affect the 48 jurisdictions in the United States that permit the restriction of gun possession by persons subject to protective orders.[29] All of these statutes could be called into question, should the Court rule in favor of Rahimi. Other statutes that impose restrictions on Second Amendment rights will likely face challenges as well. For example, other provisions from the statute challenged in Rahimi contain firearm prohibitions for individuals convicted of a crime punishable by imprisonment for a term exceeding one year, for unlawful users of any controlled substances, and for individuals dishonorably discharged from the Armed Forces.[30] Regardless of the efficacy of the policy behind these statutes, a decision in favor of Rahimi could call into question the constitutionality of their enforcement.

*Collin Riley, currently in his second year as a day student at the University of Baltimore School of Law, holds the role of Staff Editor for the Law Review and membership in the Royal Graham Shannonhouse III Honor Society. In the course of his 1L summer, he undertook a rewarding internship at Cochran and Chhabra, a distinguished law practice located in Annapolis, MD.

Before embarking on his legal journey, Collin honed his skills in culinary arts, making contributions to several prominent Baltimore restaurants. Looking ahead, Collin envisions his future firmly rooted in the Baltimore community, with aspirations to contribute meaningfully to its betterment upon his graduation. 

[1] Katherine Shaeffer, Key Facts About Americans and Guns, Pew Research Center (Sep. 13, 2021),  https://pewrsr.ch/48hGvdx.

[2] United States v. Rahimi, 61 F.4th 443 (Pincite) (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023) (No. 22-915).  

[3] Rahimi, 61 F.4­th at 448.

[4] D.C. v. Heller, 554 U.S. 570, 573 (2008).

[5] Id. at 635.

[6] Id. at 628. Dick Heller, a D.C. special police officer, filed a lawsuit in the Federal District Court for the District of Columbia, on Second Amendment grounds after he was denied a registration certificate for a handgun he wished to keep at his home. Id. at 575–576.

[7] Id. at 619–28.

[8] McDonald v. City of Chicago, 561 U.S. 742, (791) (2010).

[9] Incorporation into the 14th amendment means that a provision of the US bill of rights– in this case the 2nd amendment– is applicable to the states through the Due Process clause of the 14th Amendment. See id. at 758.

[10] Id. at 791.

[11] N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2125 (2022).

[12] Id. at 2126, 2129. Means-end scrutiny tests, such as strict or intermediate scrutiny, are interest-balancing tests aimed at determining whether the burden placed by statutes on protected interests is proportionate to the government’s intended benefits. Id. at 2129.

[13] Id. at 2127.

[14] Id.

[15] Id. at 2129.

[16] Id. at 2127.

[17] United States v. Rahimi, 61 F.4th 443, 448 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023) (No. 22-915).

[18] Id. at 449.

[19] Id.

[20] Id. at 461.

[21] Rahimi, 143 S. Ct. 2688.

[22] Brief for Petitioner at 41–44., United States v. Rahimi, 143 S. Ct. 2688 (2023) (No. 22-915).

[23] Id. at 6.

[24] Rahimi, 61 F.4th at 452.

[25] Brief for Petitioner, supra note 22, at 7.

[26] Id. at 29–32.

[27] Id.

[28] Rahimi, 143 S. Ct. at 2689.

[29] Brief for Petitioner, supra note 22, at 35.

[30] 18 U.S.C. § 922(g). Subsection 3 of the statute prohibits the possession of firearms for any person “who is an unlawful user of or addicted to any controlled substance.” 18 U.S.C. § 922(g)(3). According to an update by the National Conference of State Legislatures, as of April 24, 2023, 38 states, three territories, and D.C. allow medical cannabis use, many opting for adult recreational use. See Nat’l Conf. of State Legislatures, State Medical Cannabis Laws (Jun. 22, 2023), https://www.ncsl.org/health/state-medical-cannabis-laws. As most states trend towards acceptance of regulated cannabis consumption (federally a Schedule 1 controlled substance), the question of whether the prohibition of gun ownership for cannabis users is constitutional emerges. See also 21 U.S.C. § 812(c)(c) (listing hallucinogenic substances classified as Schedule 1).

Artificial Intelligence Generated Art: A Federal District Court Paints a Path to Copyright Protection.

Cover Art: “A Recent Entrance to Paradise” created by the Creativity Machine and Steven Thaler.

*Anne Clevenger

I. Introduction

Can an artificial intelligence (AI) program create art subject to copyright protection under the law? Though copyright law has been the subject of many legal disputes in the United States,[1] AI-generated artwork has seen very few days in court.[2] In Thaler v. Perlmutter, the United States District Court for the District of Columbia held that AI-generated artwork does not meet the Copyright Act’s authorship requirement.[3] However, in a lengthy memorandum opinion that analyzed the Copyright Act, the court left open a door to afford copyright protection to AI-generated artwork in the future.[4] Ultimately, the court recognized that AI’s role in copyright law as a tool to create art does not end with the Thaler decision.[5] 

II. Origins of Copyrighting the Arts

The U.S. Constitution grants Congress the power to “promote the progress of science and useful arts, by securing for limited times to authors and investors the exclusive right to their respective writings and discoveries.”[6] Roughly two centuries after the Constitution’s creation, Congress codified a creator’s copyright protection over original works.[7] The Copyright Act of 1976 affords protection to “original works of authorship fixed in any tangible medium of expression.”[8] The Supreme Court has clearly stated that protections apply “‘immediately’ upon the creation of ‘original works of authorship fixed in any tangible medium of expression’ provided that those works meet certain requirements.”[9] Thus, a copyright applicant must show (1) authorship of (2) an original work that is (3) fixed in any tangible medium of expression.[10] Although there is a settled presumption that an author must be a human being,[11] whether AI’s role in art is that of an author or merely as an author’s tool to create art remains an open question.

III. Thaler v. Perlmutter Identifies Unanswered Questions about AI’s Role in Copyright. 

Stephen Thaler’s copyright application that depicted an AI author was the wrong answer.[12] On August 18, 2023, the United States District Court for the District of Columbia granted a motion for summary judgment in favor of the copyright office’s decision to deny copyright protection to an AI-generated art piece.[13] Thaler developed a computer program he called the “Creativity Machine” that has AI generation skills.[14] Using the Creativity Machine, Thaler generated an art piece entitled, “A Recent Entrance to Paradise.”[15] The piece resembles an impressionistic painting and depicts florals surrounding train tracks that disappear under an archway.[16] Although he played a role in its creation, Thaler listed the author as his “Creativity Machine” on his application for copyright.[17] 

The copyright office rejected Thaler’s application for protection of the piece, noting that Thaler’s artwork was not “created by [a human being]”[18] and thus failed to meet the Copyright Act’s authorship requirements.[19] Ultimately, the district court agreed with the copyright office, reasoning that even though the Copyright Act is “designed to adapt with the times,”[20] “human creativity is the [essential condition]at the core of copyrightability, even as that human creativity is channeled through new tools or media.”[21]  Despite Thaler’s argument that the Copyright Act lacks a definition for authorship and therefore should protect works generated by AI, the court disagreed, emphasizing that “[h]uman authorship is a bedrock requirement of copyright.”[22]

In its Reply in Support of Their Cross-Motion for Summary Judgment, the Register of Copyright[23] made a policy argument for denying copyright protection to AI generated art.[24] It argued that Thaler’s position focused narrowly on a work’s creation and “disclaims the importance of economic incentives for human creators.”[25] It argued that copyright system that requires human authorship “seeks a balance of the economic incentives for creators and the dissemination of works for the public good.”[26] The District Court agreed, emphasizing that “[a]t the founding, both copyright and patent were conceived of as forms of property that . . . would further the public good by incentivizing individuals to create and invent.”[27] Ultimately, Thaler stands for a clear rejection of copyright claims when AI “autonomously” generates artwork.[28]  

IV. AI as an Evolving Art Medium

However, the Thaler court did not close the door on all artwork generated by AI.[29] In fact, the court in Thaler recognized that as AI becomes a more popular tool, courts will face the challenging question of “how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work.”[30]  Specifically, the court emphasized that the legal system is “approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic artworks.”[31] In its analysis, the court referred to an 1884 Supreme Court case, Burrow-Giles Lithographic Co. v. Sarony, in which the Court confronted the issue of whether a camera was the author of a photograph or a mere tool to advance its creation.[32] The Court decided that photographs are subject to Copyright protection.[33] In pertinent part, the Court reasoned that a camera is a mere tool for a human author’s creativity because it generates a mechanical reproduction only after the author “pos[es] the [subject] in front of the camera, select[s] and arrang[es] the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines.”[34] Ultimately, the Court in Sarony held that the author of the photograph was a human being who used the camera to capture the image the author first conceptualized.[35] Despite recognizing a path to copyright protection, the Thaler court was bound by Thaler’s application, which described a non-human author rather than a human author using AI as a tool.[36]  

V. Conclusion

The Thaler court made a critical distinction between machines as authors of original works and as mere tools to carry out a human author’s vision.[37] The court was clear that while Thaler made a disqualifying choice on his copyright application by marking the “Creativity Machine” as the author,[38] there remains a potential path to copyright protection for AI-generated artwork.[39] Perhaps if future creators mark the AI software not as the author, but rather as a tool for carrying out the artist’s vision, copyright protection may still be afforded.  Here, the Thaler court left that door to protection open while emphatically rejecting AI’s authorship in copyright claims.[40] 

*Anne Clevenger is a second-year student at the University of Baltimore School of Law. At school, she enjoys her roles as a Law Review staff editor, a National Trial Competition Team member, and a teaching assistant to David Jaros. During her first-year summer, Anne served as a law clerk to the Honorable Jennifer B. Schiffer at the Circuit Court for Baltimore City. In May, she plans to join Venable LLP as a summer associate.

[1] See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884); Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903); Mazer v. Stein, 347 U.S. 201 (1954).

[2] Thaler v. Perlmutter, No. 22-1564, 2023 U.S. Dist. LEXIS 145823, at *21 (D.D.C. Aug. 18, 2023).

[3]  Id. at *20–21.

[4] Id. at *17–19.

[5] Id.  

[6] U.S. Const. art. I, § 8, cl. 8.

[7] 17 U.S.C. § 102(a). 

[8] Id.   

[9] Thaler, 2023 U.S. Dist. LEXIS 145823, at *7 (quoting Fourth Estate v. Public Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 887 (2019)).

[10] 17 U.S.C. § 102(a).

[11] Thaler, 2023 U.S. Dist. LEXIS 145823, at *12 (“The 1976 Act’s ‘authorship’ requirement as presumptively being human rests on centuries of settled understanding.”) (emphasis in original).

[12] Id. at *3. 

[13] Thaler, 2023 U.S. Dist. LEXIS 145823,at *21.

[14] Id. at *2.

[15] Id.

[16] Id.

[17] Id. at *3.

[18] Id.

[19] Id.

[20] Id. at *10.

[21] Id.

[22] Id. at *11.

[23] The copyright office is responsible for granting or denying copyright applications, assisting Congress in copyright hearings, and testifying on behalf of Congress in copyright matters. See Overview, U.S. Copyright Off., https://www.copyright.gov/about/ (last visited Sept. 5, 2023) (describing the tasks the copyright office performs).

[24] Def.’s Reply in Support of Their Cross-Motion for Summary Judgment at 8, Thaler v. Perlmutter, No. 22-1564, 2023 U.S. Dist. LEXIS 145823 (D.D.C. Aug. 18, 2023).

[25] Id.

[26] Id.

[27] Thaler, 2023 U.S. Dist. LEXIS 145823, at *13.

[28] Id. at *19.

[29] Id. at *17.

[30] Id.

[31] Id.  

[32] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 54 (1884).

[33] Id. at 59–60. 

[34] Id.

[35] Id. at 60.

[36] Thaler, 2023 U.S. Dist. LEXIS 145823, at *18–19.

[37] See supra part IV.

[38] See supra part III–IV.

[39] See supra part III.

[40] See supra part IV.

Supreme Court to Decide When a Public Official’s Social Media Activity Constitutes State Action: The Future of the Democratic Process and Other First Amendment Implications.

*Shanae T. Jones

I. Introduction

It is well-settled that constitutional demands are generally directed at the government, not private actors.[1] When a private individual acts under the authority of the government, however, their conduct may fall within the scope of the Constitution.[2] The idea that only state action is subject to regulation by the Constitution is of the utmost importance when private individuals seek recourse for harm caused by public officials, and may be the crux of a Section 1983 claim.[3]

In two pending Section 1983 cases, O’Connor-Ratcliff v. Garnier and Lindke v. Freed, the Supreme Court will determine whether public officials violated the First Amendment by blocking private individuals from their social media pages.[4] The Second, Fourth, Eighth, and Ninth Circuits approach this question by considering the appearance and purpose of the online activity to determine if there was state action.[5] The Sixth Circuit, on the other hand, assesses “whether the official is ‘performing an actual or apparent duty of his office.’”[6] The O’Connor-Ratcliff and Lindke decisions could clarify the blurred lines between public officials’ online activity that is truly private and that which is attributable to the government.[7]

II. Current Controversies

In O’Connor-Ratcliff v. Garnier, petitioners Michelle O’Connor-Ratcliff and T.J. Zane (the Trustees) created Facebook and Twitter pages to campaign for election to a local school district’s board of trustees.[8] Upon election, they updated the pages with their new titles and continued posting school district-related content.[9] Respondents Christopher and Kimberly Garnier (the Garniers) criticized the Trustees on the social media pages.[10] The Trustees responded by hiding or deleting the posts before ultimately blocking the Garniers.[11] The Garniers sued and the U.S. Court of Appeals for the Ninth Circuit found in their favor, holding that the social media pages were public fora and blocking the Garniers constituted state action.[12]

In Lindke v. Freed, respondent James Freed updated his existing Facebook page to reflect his appointment as city manager for Port Huron, Michigan.[13] After petitioner Kevin Lindke criticized Freed’s performance as city manager, Freed deleted Lindke’s comments and blocked him from the page.[14] Lindke filed suit. On appeal, the Sixth Circuit affirmed a judgment for Freed; the court found that his Facebook activity had no connection to his authority or duty as city manager.[15]

III. First Amendment Implications

Historically, the Supreme Court has relied on the idea that government is a body of self-governing people––sometimes called the “democratic process theory”––to justify free speech and limit the government’s ability to regulate it.[16] Under this theory, the government must allow the free exchange of political speech to understand the people’s “attitudes, needs, and wishes.”[17] While a finding that the social media activity of public officials constitutes state action would increase protection of political speech,[18] it could also create a “chilling effect,” deterring public officials and candidates for office from any online activity.[19] The Court generally disfavors decisions where efforts to censor unfavorable expression will deter protected expression.[20] Furthermore, social media presence offers insight that could help voters when casting their ballots.[21] From this perspective, the Court faces the dilemma of either preserving the democratic process by protecting speech or derailing it by discouraging public officials’ candor and authenticity on social media.

In deciding both cases, the Supreme Court will focus on the issue of whether public officials must act pursuant to their official duties or under the authority of their offices to establish state action.[22] That is, whether the Sixth Circuit got it right. The Ninth Circuit focused on “appearance and content” in finding that “the Trustees held their social media pages out to be official channels of communication with the public about the work of the . . . [b]oard.”[23] By contrast, the Sixth Circuit declined to consider appearance, finding no state action because operating the page was not a duty of Freed’s office and maintaining it did not invoke government authority.[24] The Ninth Circuit approach arguably strips public officials of their First Amendment right to discuss work on social media in the same manner as private individuals by “transform[ing] all their conduct into state action,”[25] while the Sixth Circuit approach licenses them to act without consequence whenever their actions are not part of their official duties.[26]

Despite the implications of both approaches, resolving the split may not change the decision on the merits of either O’Connor-Ratcliff or Lindke. A finding that state action does not exist absent official duty or governmental authority may not yield a favorable result for the Trustees in O’Connor-Ratcliff  because the lower court held that the social media pages functioned as designated public fora.[27] A designated public forum is property intentionally opened by the government for expressive activity.[28] The court’s holding suggests that even if maintenance of social media pages alone is not an official duty, the Trustees affirmatively maintaining their pages as a place for expression constitutes state action because designated public fora––by definition–– require action by the government. Similarly, if the Court cements the Ninth Circuit approach, the Lindke result could remain the same if the fact finder determines that Freed’s page does not appear to be “an organ of official business.”[29]

IV. Conclusion

In a world where online interactions between government actors and constituents show no sign of declining,[30] it is incumbent upon the Supreme Court to define the rights and recourse available to individuals and public officials in that arena. Neither of the warring approaches to state action are without First Amendment implications.[31] Rather than adopting a singular approach, the Court should explore methods that protect the First Amendment right to speech without sacrificing the willingness of public officials to engage with constituents online.    

*Shanae T. Jones is a third-year evening student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society, and a Law Scholar for Professor Lynch’s Civil Procedure I class. While in law school, Shanae works as a child welfare social worker. Shanae was a summer associate at Ballard Spahr during the summer of 2023 and looks forward to returning to the firm in the upcoming summer of 2024.

[1] See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991) (“Although the conduct of private parties lies beyond the Constitution’s scope in most instances, governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints.”).

[2] Id. 

[3] See 42 U.S.C. § 1983 (creating a cause of action for people against government actors who violate their federal rights).

[4] Debra Cassens Weiss, Supreme Court Will Decide When Public Officials Can Block People from Personal Social Media Accounts, ABA J. (April 24, 2023, 3:05 PM), https://www.abajournal.com/news/article/supreme-court-to-decide-when-public-officials-can-block-people-from-personal-social-media-accounts.

[5] Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1174–77 (9th Cir. 2022) (explaining the approach taken across the circuits.

[6] Lindke v. Freed, 37 F.4th 1199, 1201 (6th Cir. 2022) (quoting Waters v. City of Morristown, 242 F.3d 353, 359 (6th Cir. 2001)); see also Garnier, 41 F.4th at 1176.

[7] Petition for Writ of Certiorari at 8, Lindke v. Freed, 143 S.Ct. 1780 (2023) (No. 22-611).

[8] Garnier, 41 F.4th at 1163.

[9] Id.

[10] Id. at 1166.

[11] Id.

[12] Id. at 1177.

[13] Lindke v. Freed, 37 F.4th 1199, 1201 (6th Cir. 2022).

[14] Id. at 1201–02.

[15] Id. at 1207.

[16] See, e.g., Buckley v. Valeo, 424 U.S. 1, 14 (1976) (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression . . . .”); Burson v. Freeman, 504 U.S. 191, 196 (1992) (stating that speech concerning government affairs is essential to self-government); Mills v. State of Alabama, 384 U.S. 214, 218 (1966) (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”).

[17] Russell l. Weaver & Catherine Hancock, The First Amendment: Cases, Problems, and Materials 7 (6th ed. 2020).

[18] Cf. Donald Morgan, Supreme Court to Examine Intersection of First Amendment and Social Media, Taft Stettinius & Hollister LLP: Law Bulletins (April 27, 2023), https://www.taftlaw.com/news-events/law-bulletins/supreme-court-to-examine-intersection-of-first-amendment-and-social-media (arguing that when activity does not qualify as state action, it is “less likely to trigger First Amendment liability.”).

[19] See generally Monica Youn, The Chilling Effect and the Problem of Private Action, 66 Vand. L. Rev. 1473, 1474 (2013) (defining chilling effect within the context of the First Amendment).

[20] See New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).

[21] See Ashwini Kulkarni, A Study on the Impact of Social Media on Elections, 4 Indian J.L. & Legal Rsch., June–July 2022, at 1, 5.

[22] Petition for Writ of Certiorari at 2, O’Connor Ratcliff v. Garnier, 143 S.Ct. 1779 (2023) (No. 22-324); Petition for Writ of Certiorari at 2, Lindke v. Freed, 143 S.Ct. 1780 (2023) (No. 22-611).

[23] Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1171 (9th Cir. 2022).

[24] Lindke v. Freed, 37 F.4th 1199, 1207 (6th Cir. 2022).

[25] Petition for Writ of Certiorari, supra note 22, at 21.

[26] See Morgan, supra note 18.

[27] Garnier, 41 F.4th at 1179.

[28] Id. at 1177.

[29] Id. (quoting Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021)).

[30] Id. at 1163 (“[E]lected officials across the country increasingly rely on social media both to promote their campaigns and, after election, to communicate with constituents and seek their input in carrying out their duties as public officials.”).

[31] See supra Part IV.