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

*Celia Feldman

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

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

*Jared Stape

I. Introduction

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

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

*Michael Blanchard

I. Introduction

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

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

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Cuties: The French Film That Shocked America’s Conscience

*Sabrina Marquez

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[4]           See id.

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

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

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

[8]           See id.

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

[10]         Id.

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

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

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

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

[15]         § 43.262(b)(1).

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

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

[18]         See Cuties, supra note 16.

[19]         See § 43.262(b).

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

[21]         See Cuties, supra note 3. 

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

[23]         See Green, supra note 7.

[24]         § 43.262(b).

[25]         See Green, supra note 7.

[26]         See id. 

[27]         See Alexander, supra note 20.

[28]         See Godwin, supra note 1.

[29]         See id.

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

*Ellen Pruitt

I. Introduction

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

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

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