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.

Highest Case Note from Write-On 2023: Wadsworth v. Sharma, 278 A.3d 1269 (Md. 2022)

*Philip Glaser

The Supreme Court of Maryland rejected the loss of chance doctrine for claims of negligently hastened death by terminal illness. Wadsworth v. Sharma, 278 A.3d 1269 (Md. 2022).

I. Introduction

In Wadsworth v. Sharma, the Supreme Court of Maryland considered whether to adopt the loss of chance doctrine in wrongful death cases where the decedent’s survival odds were fifty percent or less.[1] The family of the terminally ill Ms. Wadsworth sued her oncologist for failure to act on a scan that revealed she had a fatal cancer. The family sought recovery that accounted for the two and a half years of estimated survival of which the doctor’s negligence deprived her.[2] Traditional causation principles require the plaintiff to prove “that the defendant proximately caused the decedent’s death,”[3] which, under the majority’s view, is impossible for a plaintiff who dies of a terminal illness.[4] Alternatively, the loss of chance doctrine permits a plaintiff to satisfy the lower standard of proof that the defendant’s negligence at least caused a loss of chance at a better outcome.[5] On appeal, the Supreme Court of Maryland interpreted the Wadsworth’s argument as a loss of chance claim but refused to recognize the doctrine because it was inconsistent with Maryland’s Wrongful Death Act and the case was insufficient to overcome stare decisis.[6] The court affirmed summary judgment in favor of the defendant for the plaintiff’s failure to prove that the defendant proximately caused the decedent’s death.[7] Justice Watts’s dissent, however, highlighted a slightly different application of traditional causation principles that would establish a remedy for those whose family members have died because of negligently hastened terminal illness, closing the gap in Maryland tort law which the Wadsworths fell into.[8]

II. Historical Development

A. Maryland’s Wrongful Death Act of 1852 Permitted Personal Actions on Behalf of Deceased Persons.

At common law, “a personal action died with the person,” preventing any action on behalf of a deceased person after death, including an action pertaining to that person’s wrongfully-caused death.[9] English Parliament passed the Fatal Accidents Act of 1846 to address this bind.[10] The Act expressly created liability for an actor who causes a person’s death, “notwithstanding the death,” and permitted the family of that deceased person to recover for the death.[11] Every state in the United States has adopted a similar statute[12] and, in 1852, Maryland passed its own Wrongful Death Act for the same purpose, with language very similar to the Fatal Accidents Act.[13] Since that time, the General Assembly has amended the Wrongful Death Act three times, each for the exclusive purpose of extending the time within which a wrongful death claim may be brought.[14]

B. The Supreme Court of Maryland Applies Traditional Causation Standards for Wrongful Death and Survival Claims.

The Wadsworth court refers to “traditional” and “well-settled” causation principles as its rule for assessing causation in wrongful death and survival actions,[15] clarifying that “the plaintiff bears the burden of proving by a preponderance of the evidence that the alleged wrongful act or omission proximately caused the decedent’s death.”[16] A plaintiff who cannot prove that the decedent had a greater than fifty percent chance of survival absent any negligence is, as a matter of law, unable to meet the burden necessary to prove proximate cause.[17] In contrast, the loss of chance doctrine “permits a claimant to recover where a physician’s breach of the standard of care . . . caused the loss of a statistical chance of survival or of a better outcome.”[18] Unlike traditional causation principles, the doctrine permits recovery in medical malpractice claims for decedents who had a fifty percent or less chance of survival absent any negligence.[19] Twenty-four jurisdictions have adopted the standard[20] in some form.[21] In a line of wrongful death and survival cases, the Supreme Court of Maryland consistently declined to adopt the loss of chance doctrine, finding instead that traditional causation principles resolve liability in a manner that does not justify upsetting precedent.[22]

In Weimer v. Hetrick, a wrongful death case decided in 1987, the court reviewed jury instructions which demanded the jury find in favor of the defendant doctor if it concluded that the decedent baby’s prematurity was less than fifty percent survivable absent any negligence.[23] The plaintiff argued that a case previously heard by the Supreme Court of Maryland, Thomas v. Corso, only required the plaintiff to prove that the baby had a “substantial possibility of survival [which] the defendant ha[d] destroyed,”[24] a standard borrowed from the Fourth Circuit case, Hicks v. United States.[25] The Weimer court dismissed the quote used in Thomas as dictum, asserting that “no new ground [has] been plowed by Hicks or Thomas,” and that causation in both cases was in fact established using traditional principles.[26] The court denied the plaintiff’s appeal of the jury instructions, holding that no alternative standard of causation was called for and that the jury correctly applied the traditional standard.[27] In his concurrence, Judge McAuliffe expressly noted that, for the very reason that traditional causation principles applied, the court did not arrive at any judgment on the loss of chance doctrine, which “must await resolution on another day.”[28]

C. The Supreme Court of Maryland Declined to Adopt the Loss of Chance Doctrine.

In 1990, the court took up the issue of loss of chance directly in Fennell v. Southern Maryland Hospital Center, Inc.[29] The plaintiffs, in full recognition that Maryland law did not offer a remedy for a wrongful death claim in the wake of Weimer, petitioned the Supreme Court of Maryland arguing that a remedy should be available for their survival claim via the loss of chance doctrine.[30] The court reviewed both rationales for using the loss of chance doctrine that have been adopted elsewhere: (1) as a means to relax the causation standard; and (2) as a means of assessing damages.[31]

First, the court rejected relaxing causation standards to allow a finding of full liability for anything less than fifty-one percent responsibility, reasoning that doing so would lower a bar intentionally set to filter out uncertain causation[32] and would violate legislative expectations.[33] In so holding, the court affirmed its decision in Weimer to disregard the concept of a “substantial possibility of survival”[34] as “at best dictum.”[35]

Second, the court rejected the use of loss of chance to calculate damages on policy grounds.[36] The court did acknowledge that “[a] good argument can be made that damages ought to be recoverable when, due to a doctor’s negligence, a patient loses a substantial, though less than probable, chance of survival.”[37] But the court reasoned that a remedy for loss of chance of survival itself should, in principle, permit even those who survive to recover damages—an outcome which it rejected as inconsistent with Maryland law.[38] The court also argued that application of disputed probabilities would be impractical at trial.[39] Further, adopting the loss of chance doctrine would result in increased malpractice litigation and cause a significant economic impact—two consequences that bar judicial enactment.[40] By declining to adopt the doctrine, the court maintained the gap in tort law that precludes a remedy for persons who die of negligently hastened terminal illness.

III. Instant Case

Stephanie Wadsworth received a breast cancer diagnosis in 2006 and, following treatment, doctors declared her in remission in 2008.[41] In 2013, Ms. Wadsworth’s oncologist, Dr. Poornima Sharma, conducted a breast cancer screening that revealed a new and potentially cancerous lesion on Ms. Wadsworth’s clavicle.[42] Dr. Sharma and a radiologist did not believe the abnormal lesion was cancerous,[43] so Dr. Sharma did not inform Ms. Wadsworth of the abnormal lesion or conduct further testing.[44] In March 2016, Ms. Wadsworth injured her shoulder and went to the hospital, where she received a bone scan that incidentally revealed the abnormal lesion on her clavicle as metastasized cancer consistent with an origin of breast cancer.[45]

Ms. Wadsworth died from cancer in June 2017 and her family subsequently filed wrongful death and survival actions against Dr. Sharma and others.[46] Depositions of other doctors established that Ms. Wadsworth’s cause of death was metastatic breast cancer and that the condition is nearly always fatal, though the average person can expect to live eighty months from the date of an abnormal scan of the kind that Dr. Sharma disregarded.[47] Ms. Wadsworth’s death occurred two and a half years short of this expectation.[48] The trial court interpreted the pleadings as loss of chance claims and granted summary judgment to the defendants on the grounds that Maryland recognizes no such cause of action.[49] The trial court noted that, under traditional causation principles for a wrongful death claim, the facts indicated Ms. Wadsworth’s cancer as the proximate cause of her death, so Dr. Sharma could not be found liable as a matter of law.[50] The Appellate Court of Maryland confirmed the trial court’s judgment, holding that it was impossible for the Wadsworths to meet their burden under traditional causation.[51] The Supreme Court of Maryland granted a writ of certiorari to answer whether a wrongful death claim may be made against a “health care provider [who] shortened the terminally ill decedent’s life.”[52]

The majority rejected the possibility of such a claim, citing both the legislative intent of the Wrongful Death Act and its prior judicial application, as well as a lack of practical urgency sufficient to overcome the barrier of stare decisis.[53] First, the court deemed that the plain language of the Wrongful Death Act unambiguously demanded traditional causation principles[54] and that the legislature’s silence was acquiescence to the court’s interpretation of the law.[55] Second, an examination of the case law, chiefly Weimer and Fennell, revealed no factual distinction that could save the Wadsworths’ claim from the same preclusive analysis applied in those two controlling cases on wrongful death and survival claims.[56] Each dealt with patients whose chances for survival fell below fifty percent, rendering a wrongful death claim against a negligent health care provider deficient as a matter of law for lack of causation under traditional principles.[57] The court also echoed the Fennell court’s practical considerations as reasons not to adopt loss of chance.[58] Finally, the court concluded that implementing the loss of chance doctrine would violate stare decisis because the present reliance on traditional causation principles is not “clearly wrong and contrary to established principles” nor has it been “superseded by significant changes in the law or facts.”[59] The court agreed with its conclusion in Fennell[60] to defer policy concerns to the legislature; if the loss of chance doctrine is to take effect in Maryland, it should be enacted legislatively rather than judicially.[61]

In her dissent, Justice Watts agreed with the majority that there is no need to resort to the loss of chance doctrine for the Wadsworths’ claim, but asserted a distinction between this case and the majority’s controlling cases revealed by a novel interpretation of traditional causation principles: assessing a decedent’s odds of survival at their time of death, rather than at the onset of the fatal condition.[62] Given Ms. Wadsworth’s estimated survival for a further two and a half years after her actual death, her chance of survival absent negligence at the time of her death was likely over fifty percent, which Justice Watts argued would make her eligible for recovery under traditional causation principles.[63] The same could not be said for the decedents in Weimer and Fennell, neither of whom had a chance of survival absent negligence greater than fifty percent at their respective times of death and both of whom died soon after their terminal conditions manifested.[64] Justice Watts argued that the distinction between death by an incurable terminal illness and death by other causes “is an arbitrary line to draw and an inappropriate application of Maryland case law.”[65] She further questioned “how long would be long enough for long-term survival” for the majority to reject the conclusion that the decedent had no chance of survival.[66] Justice Watts asserted that the majority misplaced its reliance on the legislature’s silence as acquiescence to the court’s interpretation of the Wrongful Death Act.[67] The dissent concluded that the majority’s interpretation of traditional causation principles likely precludes the terminally ill from making claims of negligent treatment[68] and that the substantial incidence and increasing survivability of such illnesses calls for a remedy for such claims.[69] The majority made no response to Justice Watts’s dissent.[70]

IV.  Analysis

A. Though the Merits of Loss of Chance Are Disputed, the Majority Has Not Built a Strong Theoretical Case Against It.

The criticisms of the loss of chance doctrine from Fennell, endorsed by the Wadsworth court,[71] included that loss of chance would allow those who survive their illnesses to recover on “mere possibilities,” which Maryland law does not allow.[72] However, as indicated by the Wadsworth majority’s chosen authority on the loss of chance doctrine,[73] “[t]he law has moved from harm based to risk based” tort liability in U.S. jurisdictions.[74] In matters where forty-nine percent survival is a bar to recovery, while fifty-one percent is grounds for full recovery, the line that traditional causation principles straddle is the width of a “mere possibility.”[75] Accounting for these differences through a new doctrine like loss of chance permits legal distinctions between negligence that shortens a terminally ill person’s expectation of survival by years versus by days.

The Fennell court also criticized the loss of chance doctrine’s reliance on potentially “unreliable, misleading, easily manipulated, and confusing” probabilities and statistical evidence.[76] Notwithstanding the Fennell court’s own statement that “[t]raditional tort law is based on probabilities,”[77] it is difficult to otherwise imagine what class of information would better account for the complex synthesis of risks, liabilities, and credibilities that ultimately must be reduced to a dollar amount than numbers in the form of statistical evidence. Indeed, in 2000, the Supreme Court of South Dakota specifically found justification for adopting the loss of chance doctrine in medical malpractice cases in “‘the availability of statistical probabilities in the field of medical science’ not available elsewhere.”[78] If the Wadsworth court fears “confusing factfinders”[79] with numbers, then the court takes issue with the foundations of tort law.

Most critically, the Fennell and Wadsworth courts agreed that that no change of legal or factual circumstances permitted them to adopt loss of chance as an exception to stare decisis.[80] Though Justice Watts’s dissent argued against this conclusion in favor of adopting a different interpretation of traditional causation principles,[81] she discussed the legal and factual realities in a manner supportive of any doctrine that would permit recovery for terminally ill people whose lives are negligently cut short,[82] including loss of chance. As to the legal considerations, Justice Watts noted that, in the past, where the Court has found “an injury for which there exists no remedy, . . . the Court has acted to fill the gap.”[83] Though Justice Watts accused the Majority of not ignoring the gap, but in fact creating it through this decision,[84] her appeal to this gap in the law nevertheless stands to support a break with legal precedent, such as challengers may urge in cases to come. As to the factual circumstances, Justice Watts also emphasized the dramatic prevalence of cancer[85] and how technology has improved its survivability.[86] With increasing cancer life expectancies, one can infer that, in the future, Maryland will likely see more damaging and potentially more numerous occurrences of medical negligence that hasten death by cancer. Though Justice Watts viewed the loss of chance doctrine as unnecessary to fill the widening remedy gap she foresaw,[87] she nevertheless made a forceful showing of the concerning legal and factual realities[88] that other jurisdictions have addressed by breaking with stare decisis.[89]

B. The Dissent Offers a Happy Medium Causation Standard to Cover the Terminally Ill.

Justice Watts’s dissenting assertion, that survival expectations should be measured at the time of death, would close the gap in recovery for the terminally ill that the majority permits to remain open.[90] This interpretation does not alter other characteristics of traditional causation principles,[91] so it should be straightforward for courts to apply. With the amount of contention that the loss of chance doctrine has generated between judiciaries and legislatures in other states,[92] the simple modification of traditional causation principles to measure survival expectations at the time of death instead of at the onset of the terminal condition seems a viable way forward for Maryland.

V. Conclusion

Wadsworth’s holding makes no change to Maryland’s treatment of wrongful death claims; there remains no remedy for victims of medical malpractice who die from negligently hastened terminal illness.[93] Though the majority considers the loss of chance doctrine too great of a theoretical departure from traditional causation to be a viable solution,[94] Justice Watts’s dissent shows that an intuitive and minimally divergent doctrinal interpretation can affect an equitable outcome in Wadsworth.[95] For this reason, it is unclear why the majority offered no commentary or words to assert its orthodox approach as superior. From the majority’s silence, one can infer that no good rebuttal exists, and that Justice Watts’s approach will have its day when the political winds are right.

*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] Wadsworth v. Sharma, 278 A.3d 1269, 1275 (Md. 2022).

[2] Id. at 1273–75.

[3] Id. at 1272.

[4] Id. at 1291 (Watts, J., dissenting) (“[T]he Majority has applied case law in a manner that . . . prevent[s] families with terminally ill relatives from recovering in wrongful death actions.”).

[5] Id. at 1273 (majority opinion).

[6] Id. at 1285.

[7] Id.

[8] Id. at 1293 (Watts, J., dissenting).

[9] Id. at 1276 (majority opinion) (citing Parker v. Hamilton, 160 A.3d 615, 619 (Md. 2017)).

[10] Id.

[11] Id. at 1276–77 (quoting Fatal Accidents Act 1846, 9 & 10 Vict. c. 93 (Eng.)).

[12] Id. at 1277 (citing Parker, 160 A.3d at 619).

[13] Id. (citing Mummert v. Alizadeh, 77 A.3d 1049, 1053 (Md. 2013)); Md. Code Ann., Cts. & Jud. Proc. §§ 3-901 to 3-904 (West 2023).

[14] Wadsworth, 278 A.3d at 1277 (noting the latest amendment in 1971, which extended the window to bring a wrongful death claim to three years).

[15] Id. at 1272–73, 1278, 1282, 1284; Weimer v. Hetrick, 525 A.2d 643, 653 (Md. 1987) (McAuliffe, J., concurring); Fennell v. S. Md. Hosp. Ctr., Inc., 580 A.2d 206, 210–12 (Md. 1990).

[16] Wadsworth, 278 A.3d at 1278.

[17] Id. at 1284–85.

[18] Id. at 1280 (quoting Tory A. Weigand, Lost Chances, Felt Necessities, and the Tale of Two Cities, 43 Suffolk U. L. Rev. 327, 349 (2010)).

[19] Id. at 1288 (Watts, J., dissenting).

[20] Id. at 1293 n.2.

[21] Fennell v. S. Md. Hosp. Ctr., Inc., 580 A.2d 206, 210 (quoting Cooper v. Hartman, 533 A.2d 1294, 1297 (Md. 1987) (clarifying that “[s]ome have simply relaxed the standards regarding causation and allowed full compensation for an injury or death where the plaintiff demonstrated less than a 50% chance of recovery. Others have left the traditional rules of causation intact but have viewed the loss of a chance as a way of approaching damages.”).

[22] Id. at 215 (“Consequently, we are not persuaded that the benefits of allowing loss of chance damages in a survival action offset the detriments of a probable increase in medical malpractice litigation and malpractice insurance costs.”); Wadsworth, 278 A.3d at 1284 (invoking stare decisis to maintain traditional causation rules which are not “clearly wrong and contrary to established principles” (quoting Wallace v. State, 158 A.3d 521, 535 (Md. 2017))).

[23] Weimer v. Hetrick, 525 A.2d 643, 646–47 (Md. 1987).

[24] Id. at 647 (quoting Thomas v. Corso, 288 A.2d 379, 390 (Md. 1972)).

[25] Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1966).

[26] Weimer, 525 A.2d at 652.

[27] Id.

[28] Id. at 653 (McAuliffe, J., concurring).

[29] Fennell v. S. Md. Hosp. Ctr., Inc., 580 A.2d 206, 215 (Md. 1987).

[30] Id.

[31] Id. at 210.

[32] Id. at 211.

[33] Id. at 211–12 (referring to the likely legislative intent behind a statute establishing a medical malpractice cause of action, which requires that “the departure from standards of care is the proximate cause of the alleged injury” (emphasis omitted) (quoting Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04(b)(1)(i) (West 2023))).

[34] See discussion supra Section II.B.

[35] Fennell, 580 A.2d at 211.

[36] Id. at 215.

[37] Id. at 212.

[38] Id. at 213 (“Maryland law clearly does not allow damages based on mere possibilities.”).

[39] Id. at 213–14.

[40] Id. at 214–15 (“Recognizing loss of chance damages in a survival action would involve serious public policy concerns. We are not convinced that such a change should be initiated by this Court.”).

[41] Wadsworth v. Sharma, 278 A.3d 1269, 1273 (Md. 2022).

[42] Id.

[43] Id. at 1273 n.2.

[44] Id. at 1273.

[45] Id. at 1273–74.

[46] Id. at 1274.

[47] Id.; Wadsworth v. Sharma, 254 A.3d 66, 70 & n.4 (Md. Ct. Spec. App. 2021), aff’d, 278 A.3d 1269 (Md. 2022).

[48] Wadsworth, 278 A.3d at 1275.

[49] Id. at 1274.

[50] Id.

[51] Wadsworth, 254 A.3d at 80 (“The evidence presented to the motions court proved that at the time of the alleged negligence, the decedent didn’t have an over 50% chance of a cure. . . . The motions judge had no choice but to grant summary judgment in favor of the defendants-appellees as to the wrongful death claim.”).

[52] Wadsworth, 278 A.3d at 1275.

[53] Id. at 1285.

[54] Id. at 1278 (finding the grant by Md. Code Ann., Cts. & Jud. Proc. § 3-902(a) of an action “against a person whose wrongful act causes the death of another,” to require traditional causation by its plain language).

[55] Id. at 1279 (noting that the only amendments to the Wrongful Death Act have been to extend the window for claims thereunder).

[56] Id. at 1280–83.

[57] Id. at 1282–83.

[58] Id. at 1283 (“Further, we noted practical difficulties with recognizing the loss of chance doctrine, including the risk of confusing factfinders.”).

[59] Id. at 1284 (quoting Wallace v. State, 158 A.3d 521, 535 (Md. 2017)).

[60] See supra notes 29–40 and accompanying text.

[61] Wadsworth, 278 A.3d at 1279, 1284.

[62] Id. at 1286 (Watts, J., dissenting).

[63] Id.

[64] Id. at 1287–88.

[65] Id. at 1290 (analogizing Wadsworth with Marcantonio v. Moen, 959 A.2d 764, 775–76 (Md. 2008), in which the Supreme Court of Maryland reversed summary judgment against a plaintiff whose decedent likely would not have died from endometrial cancer had the doctor not been negligent in failing to diagnose).

[66] Id. at 1291.

[67] Id. at 1292 (“[T]his Court has never interpreted the Wrongful Death Act in the manner in which the Majority does now to preclude its application to a person who has a greater than fifty percent chance of survival at the time of death. In other words, the General Assembly could not have been aware of, let alone have acquiesced to, the Majority’s present interpretation of the Act.”).

[68] Id. at 1293.

[69] Id. (noting that forty percent of Marylanders will be diagnosed with cancer at some point in their lives).

[70] See id. at 1285 (majority opinion).

[71] See discussion supra Section II.C.

[72] Fennell v. S. Md. Hosp. Ctr., Inc., 580 A.2d 206, 213 (Md. 1990).

[73] See supra note 18.

[74] Tory A. Weigand, Lost Chances, Felt Necessities, and the Tale of Two Cities, 43 Suffolk U. L. Rev. 327, 392 (2010). “As it presently stands, approximately eighteen states have recognized the doctrine in some form, while approximately thirteen states have rejected it.” Id. at 351.

[75] Fennell, 580 A.2d at 213 (“Maryland law clearly does not allow damages based on mere possibilities.” (citingPennwalt Corp. v. Nasios, 550 A.2d 1155, 1161 (1988))).

[76] Id.

[77] Id. at 214.

[78] Weigand, supra note 74, at 359–60 (quoting Jorgenson v. Vener, 616 N.W.2d 366, 371 (S.D. 2000)).

[79] Wadsworth v. Sharma, 278 A.3d 1269, 1283 (Md. 2022).

[80] Id. at 1284; Fennell, 580 A.2d at 214–15.

[81] Wadsworth, 278 A.3d at 1291 (Watts, J., dissenting).

[82] Id. at 1291, 1293.

[83] Id. at 1291.

[84] Id.

[85] Id. at 1293 (“[F]orty percent of men and women will be diagnosed with cancer at some point in their lives[.]”).

[86] Id. at 1291 (“Because of this standard of care and advances in technology, cancer mortality rates continue to decline for adults.” (citing U.S. Dep’t of Health & Hum. Servs. Nat’l Cancer Inst., Annual Report to the Nation 2021: Overall Cancer Statistics (2021), https://seer.cancer.gov/report_to_nation/statistics.html [https://perma.cc/AGW7-FCGM])).

[87] Id. at 1289. (“Put simply, this is not a loss of chance case.”).

[88] Id. at 1291, 1293.

[89] See Weigand, supra note 74.

[90] Wadsworth, 278 A.3d at 1286, 1293 (Watts, J., dissenting).

[91] See id. at 1286, 1293.

[92] See Weigand, supra note 74, at 354–64 (noting that all state legislation pertaining to loss of chance has been exclusively in response to judicial adoption of the doctrine, including in Michigan, New Hampshire, West Virginia, South Dakota, Montana, and Massachusetts).

[93] See discussion supra Part III.

[94] See discussion supra Section IV.A.

[95] See discussion supra Section IV.B.

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.”).