Issues to Watch

THE CONSTITUTIONALITY OF THE PROPOSED BAN ON BUMP-FIRE STOCKS


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The Constitutionality of the Proposed Ban on Bump-Fire Stocks

Jacob Waechter*

            On October 1, 2017, the United States experienced the deadliest mass shooting in its history when a single gunman in Las Vegas managed to kill fifty-eight people and wound hundreds more.  Tina Bellon, Las Vegas Shooting Victims File Lawsuit Against Bump Stock Makers, Reuters (Oct. 10, 2017, 1:58 PM), https://www.reuters.com/article/us-lasvegas-shooting-lawsuit/las-vegas-shooting-victims-file-lawsuit-against-bump-stock-makers-idUSKBN1CF2IC.  The use of at least twelve bump-fire stocks allowed the shooter, Stephen Paddock, to fire hundreds of rounds into a crowd of people at a country music concert in a matter of only ten minutes.  Tory Newmyer & Christian Davenport, NRA Stops Short of Supporting a Legal Ban on ‘Bump Stocks, Wash. Post (Oct. 8, 2017), https://www.washingtonpost.com/politics/nra-stops-short-of-supporting-a-legal-ban-on-bump-stocks/2017/10/08/c96c14fe-ac44-11e7-9e58-e6288544af98_story.html?utm_ term=.aa522450c671. (more…)

Issues to Watch

Farewell Bookies: How Maryland Could Legalize Sports Betting in the Near Future


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Farewell Bookies: How Maryland Could Legalize Sports Betting in the Near Future

Connor Smith*

Sports gambling at Maryland casinos could be poised to undergo massive reforms during the 2018 Maryland legislative session.  Michael Dresser & Jeff Barker, Sports Betting at Maryland Casinos Could Return for 2018 Agenda in General Assembly, Balt. Sun (Oct. 10, 2017, 8:00 PM), http://www.baltimoresun.com/news/maryland/anne-arundel/bs-md-casino-gambling-sports-20171010-story.html.  Currently, most sports gambling is prohibited by federal law in all but four states.  Id.  A pending Supreme Court case, however, could repeal that prohibition and allow states more power to regulate sports gambling at casinos.  Id. (more…)

Issues to Watch

Funding Amazon’s HQ2: Benefits and Burdens of Government-Funded Incentive Packages for Corporations


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Funding Amazon’s HQ2: Benefits and Burdens of Government-Funded Incentive Packages for Corporations

James Beslity*

Over the course of the last several years, Amazon.com, Inc. (Amazon) has grown its market share to become one of the biggest online retailers in the world.  See Phil Wahba, Amazon Will Make Up 50% of All U.S. E-Commerce by 2021, Fortune (Apr. 10, 2017), http://fortune.com/2017/04/10/amazon-retail/.  Approximately 34% of all U.S. online retail activity is conducted through Amazon, with Wall Street firm Needham & Company estimating that Amazon will control up to 50% of the online retail market by the year 2021 and continue its rapid growth in international markets.  Id.; Greg Hoffman, NEEDHAM: Amazon’s Stock Is Going a Lot Higher from Here, Bus. Insider (Apr. 10, 2017, 3:04 PM), http://markets.businessinsider.com/news/stocks/amazon-stock-price-april-10-amazon-prime-2017-4-1001911558.  The impact of what some have dubbed “the Amazon effect” has had far-reaching impacts not just within the realm of online retailing, but on traditional brick-and-mortar retailers as well.  Steve Dennis, Assessing the Damage of ‘The Amazon Effect, Forbes (June 19, 2017, 11:39 AM), https://www.forbes.com/sites/stevendennis/2017/06/19/should-we-care-whether-amazon-is-systematically-destroying-retail/#646d8206b1f0.

Amazon’s recent acquisition of Whole Foods Market is just one example of its ability to enter a market segment and wreak havoc on long-time players.  James F. Peltz & Ronald D. White, Bye to ‘Whole Paycheck’? New Owner Amazon Slashes Whole Foods Prices, L.A. Times (Aug. 28, 2017, 3:00 PM), http://www.latimes.com/business/la-fi-amazon-whole-foods-20170828-story.html.  The advance news of Amazon’s impending purchase of Whole Foods, including its promise to cut the upscale grocer’s notoriously high prices on a variety of products to make them “affordable for everyone,” sent traditional grocers’ stock prices tumbling.  Id.  Indeed, the permanent price reductions enacted on the day that the sale closed left competitors scrambling to compete in light of already razor-thin margins.  Id.

As part of Amazon’s ongoing efforts to grow its footprint, the company announced on September 7, 2017, that it was searching for a North American city or metropolitan area to construct a second headquarters, or “HQ2.”  Nick Wingfield & Patricia Cohen, Amazon Plans Second Headquarters, Opening a Bidding War Among Cities, N.Y. Times (Sept. 7, 2017), https://www.nytimes.com/2017/09/07/technology/amazon-headquarters-north-america.html.  The company emphasized that HQ2 would be a full equal to its downtown Seattle headquarters, comprised of several buildings and millions of square feet of office space.  Amazon HQ2, Amazon, https://www.amazon.com/b?ie=UTF8&node=17044620011 (last visited Mar. 22, 2018).  According to Amazon, the $5 billion HQ2 site will eventually employ about 50,000 workers and potentially pump billions of dollars into the host jurisdiction’s economy.  Id.  Amazon’s own calculations of its contributions to Seattle’s economy from 2010 (the year that it moved its headquarters to downtown Seattle) to 2016 paint a rosy picture.  See id.  The company claims to have made $3.7 billion in capital investments, paid $25.7 billion in compensation to employees, and indirectly created an additional 53,000 non-Amazon jobs in the Seattle area as a result of its direct investments.  Id.

Mere hours after Amazon’s HQ2 search announcement, cities across the United States and Canada began scrambling to put together proposals for the project.  Wingfield & Cohen, supra.  As the October 19, 2017, deadline for proposals approached, it became clear that politicians and development planners from cities and metropolitan areas were getting creative in their strategies to secure Amazon’s HQ2 and its vast potential for economic enrichment and revitalization.  For example, the city of Camden, New Jersey, offered to demolish its relatively new baseball stadium to make way for HQ2, while a small town in Georgia offered to establish a new city named “Amazon” just for HQ2.  Rebecca Everett & Bill Duhart, Here’s What Amazon’s HQ Would Look Like if Jeff Bezos Bites on Camden Offer, NJ.com (Oct. 20, 2017, 2:02 PM), http://www.nj.com/camden/index.ssf/2017/10/heres_what_amazons_hq_would_look_like_if_jeff_bezo.html#incart_river_index; Mahita Gajanan, This City Has the Weirdest Idea to Attract Amazon’s New Headquarters, Fortune (Oct. 3, 2017), http://fortune.com/2017/10/03/stonecrest-georgia-amazon-hq2/.

However, the main commonality amongst the serious proposals are the monetary incentives, namely tax credits and benefits, being offered by various state, county, and municipal governments in an effort to lure Amazon to their jurisdictions.  Leanna Garfield, Amazon Just Revealed the Top Cities for HQ2 – Here Are the Ones Throwing Hundreds of Millions to Land It, Bus. Insider (Jan. 18, 2018, 12:26 PM), http://www.businessinsider.com/amazon-hq2-cities-developers-economic-tax-incentives-2017-10.  Some jurisdictions, such as the city of Raleigh, North Carolina, put together incentive packages totaling just in the tens of millions of dollars, while the states of Maryland and New Jersey each presented Amazon with many billions of dollars in economic incentives in an effort to reel in the company’s new headquarters.  Id.  Amazon explicitly instructed respondents in its call for HQ2 proposals to outline any incentive programs available for the project, including tax credits or exemptions, grants, and fee reductions.  Amazon HQ2 RFP, Amazon, https://images-na.ssl-images-amazon.com/images/G/01/Anything/test/images/usa/RFP_3._V516043504_.pdf (last visited Mar. 22, 2018).  In fact, two of the nine total categories of general information requested by Amazon deal solely with the value of, and conditions attached to, any financial incentives that could be available to the HQ2 project were it to be sited in the respondent’s jurisdiction.  Id.  With so much taxpayer funding on the line, the question cannot help but loom large: do such exorbitant incentive packages translate into long-term benefits for the populations of host jurisdictions, or do they serve only to subsidize the costs of growth for businesses such as Amazon to the potential detriment of host jurisdictions?

State and local governments’ autonomy in their use of tax incentives to attract and retain business investment in their jurisdictions is by no means a new concept.  See Norton Francis, Urban Inst., State Tax Incentives for Economic Development 1, 4 (2016), https://www.urban.org/sites/default/files/publication/78206/2000636-state-tax-incentives-for-economic-development.pdf.  Companies such as IBM, Boeing, and Twitter have successfully obtained substantial government incentive packages to create new jobs and keep existing jobs by simply implying that they might move to another jurisdiction.  Emily Badger, Should We Ban States and Cities from Offering Big Tax Breaks for Jobs?, Wash. Post (Sept. 15, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/09/ 15/should-we-ban-states-and-cities-from-offering-big-tax-breaks-for-jobs/?utm_term=.0512cec14f39.  Though the practice of doling out these incentives has come under increased scrutiny in recent years, state and local governments subscribe to the belief that the only way to compete with other jurisdictions for new jobs, and retain the jobs they have, is to offer more generous financial incentive packages than neighboring jurisdictions.  Id.  And yet, if no jurisdiction was able to offer financial incentive packages, companies would no longer be able to coerce governments into granting such incentives, and taxpayers would not be on the hook for disastrous investments.  Id.  For example, the contraction of the American automotive industry following the 2008 financial crisis led General Motors to shutter several facilities that had been the beneficiaries of millions of dollars of incentives over the years, leaving several state and local governments with no jobs or growth to show for their investments.  Louise Story, As Companies Seek Tax Deals, Governments Pay High Price, N.Y. Times (Dec. 1, 2012), http://www.nytimes.com/2012/12/02/us/how-local-taxpayers-bankroll-corporations.html?pagewanted=all.

A 2012 New York Times investigation that examined and compiled thousands of local incentives granted nationwide estimated that states, counties, and municipalities have given in excess of $80 billion annually in financial incentives to various types of companies.  Id.  However, a complete and detailed accounting of these incentives is not possible due to the many thousands of government agencies and officials granting such incentives, many of which keep poor records of the cumulative value of all their awards.  Id.  What may be of even greater concern is that these agencies and officials do not have a way to know for certain if the money was “worth it,” as they rarely keep track how many jobs are created.  Id.  Moreover, determining whether or not the creation of a job was a direct result of a government-sponsored financial incentive is nearly impossible.  Id.

Amidst the rush to attract companies like Amazon that promise new jobs, infrastructure, and overall tax revenue in exchange for assurances of hefty incentives, it is clear that state and local governments have a tendency to become hypercompetitive and perhaps neglect to consider the potential consequences of a less than ideal outcome of such a deal.  See, e.g., Badger, supra; Story, supra.  Their autonomy in offering these lucrative incentive packages begs the question of whether or not they should be subject to stricter regulation.  In the meantime, Amazon has narrowed its list of HQ2 contenders to twenty jurisdictions, including Montgomery County, Maryland, which is offering financial incentives and transportation investments to the tune of $5 billion.  Robert McCartney & Ovetta Wiggins, A $5 Billion Carrot: Larry Hogan’s Historic Offer to Win Amazon HQ2, Wash. Post (Jan. 22, 2018), https://www.washingtonpost.com/local/md-politics/a-5-billion-carrot-larry-hogans-historic-offer-to-win-amazon-hq2/2018/01/21/4d5631d8-fedd-11e7-bb03-722769454f82_story.html?utm_term=.f693a10ac578.  Amazon is expected to announce the winning proposal sometime in 2018, and the victor’s prize will undoubtedly include bragging rights for successfully bringing the promise of jobs and development within their borders after a grueling and very public competition.  Id.; Katy Steinmetz, Winning Amazon’s New Headquarters Could Come with Hidden Costs, Time (Oct. 18, 2017), http://time.com/4987883/amazon-hq2-headquarters-costs/.  However, it may be some time before these benefits outweigh the costs of paying for the incentives required to win this high-stakes contest.  Steinmetz, supra.

 

*James is a second-year student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review.  James is a member of the Royal Graham Shannonhouse III Honor Society and the Honor Board.  James also proudly serves as the president of OUTLaw, as a Teaching Assistant to Professor Nancy Modesitt for Introduction to Lawyering Skills/Torts, and as a Writing Fellow in the University’s Legal Writing Center.  During the spring semester, James worked as a judicial extern for the Hon. Michael W. Reed of the Court of Special Appeals of Maryland.  This summer, James will be working at Stein Sperling Bennett De Jong Driscoll P.C. in Rockville, Maryland, having been selected as a 2018 Montgomery County Bar Foundation Summer Scholar.  James holds a B.A. in Environmental Studies from Hamilton College in Clinton, New York.

 

Issues to Watch

“Let Them Eat Cake!” … Well, Maybe Not All of Them: The Supreme Court May Take a Huge Slice Out of Anti-Discrimination Legislation


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“Let Them Eat Cake!” … Well, Maybe Not All of Them: The Supreme Court May Take a Huge Slice Out of Anti-Discrimination Legislation

Reba Letsa*

The dispute over a wedding cake that ultimately made its way up to the Supreme Court of the United States began in 2012 at Masterpiece Cakeshop in Lakewood, Colorado.  Ariane de Vogue, Supreme Court Set to Take Up LGBT Rights and Religious Liberty, CNN (Sept. 5, 2017, 1:07 AM), http://www.cnn.com/2017/09/05/politics/supreme-court-lgbt-rights-religious-liberty/index.html.  David Mullins and Charlie Craig, a couple who were in the process of planning their upcoming nuptials, visited the bakery and requested a custom cake.  Id.  The owner, Jack Phillips, informed them that he would be unable to design a cake for a same-sex wedding due to his religious views on same sex-marriage.  Id.  Mullins and Craig subsequently filed complaints against the bakery with the Colorado Civil Rights Division, which ruled in their favor, citing a violation of the Colorado Anti-Discrimination Act.  Id.  Colorado’s Anti-Discrimination Act provides in pertinent part:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . . .

Colo. Rev. Stat. Ann. § 24-34-601(2)(a) (West 2018).

A. BACKGROUND

The Colorado Civil Rights Commission affirmed the cease and desist order issued by an Administrative Law Judge and ruled against Phillips, who appealed to the Court of Appeals of Colorado.  Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 276–77 (Colo. App. 2015).  The court upheld the commission’s ruling, holding that there was enough of a nexus between the bakery’s refusal to provide the customized cake and the couple’s sexual orientation to constitute a violation of the Act.  Id. at 283.  Furthermore, the cease and desist order imposed upon the bakery did not compel speech, nor abridge Jack Phillips’s First Amendment right to free exercise of religion.  Id. at 288, 291–92.  With oral arguments completed on December 5, 2017, the Supreme Court will issue a decision that could potentially set a dangerous precedent, which would allow businesses that are open to the public to refuse services to patrons simply because of their sexual orientation.  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, SCOTUSblog,  http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ (last visited Mar. 14, 2018).

B. MULLINS AND CRAIG’S ARGUMENT

With the support of the ACLU, Mullins and Craig posit that the Colorado statute, which was enacted to prevent the discrimination of marginalized groups in places of public accommodation, is constitutionally sound.  See Brief for Respondents Charlie Craig and David Mullins at 15–28, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 137 S. Ct. 2290 (2017) (No. 16-111).  In their Brief in Opposition to Masterpiece Cakeshop’s Petition, the Respondents rely on the Supreme Court’s decision in Rumsfeld, in which an association of law schools and faculty posed a constitutional challenge to the Solomon Amendment.  Brief in Opposition at 7–10, Masterpiece Cakeshop, Ltd., 137 S. Ct. 2290 (No. 16-111); Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006).  The Solomon Amendment permitted the federal government to withhold funding from institutions that refused military recruiters access to students.  Rumsfeld, 547 U.S. at 51.  The law schools believed that allowing an organization with controversial policies, such as the military’s “Don’t Ask, Don’t Tell” policy, to speak to its students implied that the institution was in support of the policy.  Id. at 64–65.  The Court rejected this argument in Rumsfeld on the basis that students are able to make the distinction between an institution endorsing a particular message and permitting speech based solely upon an equal access policy.  Id. at 65 (citing Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990)).

The Court of Appeals of Colorado used the same rationale in ruling against Phillips.  See Craig, 370 P.3d at 286–87.  The court reasoned that “it is unlikely that the public would view Masterpiece’s creation of a cake for a same-sex wedding celebration as an endorsement of that conduct.  Rather, we conclude that a reasonable observer would understand that Masterpiece’s compliance with the law is not a reflection of its own beliefs.”  Id. at 286.

In 2013, the Supreme Court of New Mexico, in deciding Elane Photography, LLC. v. Willock, addressed a similar issue when a wedding photographer who refused to photograph same-sex weddings was found to have violated a state anti-discrimination statute.  309 P.3d 53, 60 (N.M. 2013).  The court distinguished Elane Photography from prior decisions such as Wooley v. Maynard, 430 U.S. 705 (1977), and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), because, in those cases, the challenged legislation compelled speech, while in Elane Photography, the petitioner was not required to speak or affirm the government’s message.  Id. at 64–65.  The law merely stated that if Elane Photography wanted to operate and maintain a business open to the public, it could not discriminate against potential clients on the basis of their sexual orientation.  Id. at 60.  Based upon the factual similarities in Craig and in Elane Photography, it is likely that the Supreme Court will determine that although the nature of Phillips’s business does largely involve creativity and artistic expression, since he chooses to commercialize his creations, they must be made available to everyone.  See id.

Furthermore, Mullins and Craig argue that if the Supreme Court were to side with the baker on First Amendment grounds, the decision could establish a loophole for businesses that involve some form of artistic expression to use their religious beliefs as a pretext to discriminate against other marginalized groups.  The Right to Equal Treatment: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, ACLU (Sept. 14, 2017, 1:30 PM), https://www.aclu.org/blog/lgbt-rights/lgbt-nondiscrimination-protections/right-equal-treatment-masterpiece-cakeshop-ltd-v.  If the Supreme Court rules in favor of Masterpiece Cakeshop, this decision could become the slippery slope that would ultimately grant businesses that are open to the public the constitutional right to discriminate.

C. MASTERPIECE CAKESHOP’S FREE SPEECH ARGUMENT

The First Amendment of the United States Constitution proscribes that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . .”  U.S. Const. amend. I.  The provisions of the First Amendment have also been incorporated against the states through the Due Process Clause of the Fourteenth Amendment.  Gitlow v. New York, 268 U.S. 652, 666 (1925).  Jack Phillips, owner of Masterpiece Cakeshop, argues that he has a constitutional right to refuse to prepare a custom cake for a ceremony that his religion does not support.  See Client Story: Jack Phillips, Alliance Defending Freedom, https://www.adflegal.org/detailspages/case-details/masterpiece-cakeshop-v.-craig (last visited Mar. 14, 2018).  Phillips compares the amount of artistic expression and creativity that goes into making his wedding cakes, to an artist sketching on canvas or a sculptor using clay and deems that the cake sends the message using his voice that the marriage should be celebrated.  Brief for Petitioners at 1–2, Masterpiece Cakeshop, Ltd., 137 S. Ct. 2290 (No. 16-111).  Furthermore, Phillips argues that that being forced to use his art to promote a message that he does not agree with is tantamount to being compelled to speak the message.  Id. at 16–35.

As authority for his proposition, Phillips cites Wooley v. Maynard, a United States Supreme Court case in which a New Hampshire couple, who were devout Jehovah’s Witnesses, obscured the motto “Live Free or Die” from visibility on the license plates of their jointly owned non-commercial family vehicles because it conflicted with their religious beliefs.  430 U.S. 705, 707 (1977).  The Court ultimately sided with the couple, holding that the First Amendment protects the rights of individuals and permits them to have a point of view which deviates from the majority, as well as that a state cannot mandate that individuals perpetuate an ideology which they find to be morally objectionable.  Id. at 715.

In deciding Wooley, the Court relied heavily on Barnette, which involved religious opposition to a West Virginia school board action compelling public school children to stand and salute the American flag.  Id. at 714–15; W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 626, 629 (1943).  The Barnette Court articulated the proposition on which Phillips bases his argument; specifically, the Court stated that the right to speak freely and the right to not speak at all are protected by the First Amendment.  319 U.S. at 642.

The United States Department of Justice has also submitted an amicus curiae brief to the Supreme Court supporting the Colorado baker, arguing that his cakes are a form of expression and the government cannot compel him to utilize his talent to support something he does not believe in.  Robert Barnes, In Major Supreme Court Case, Justice Dept. Sides with Baker Who Refused to Make Wedding Cake for Gay Couple, Wash. Post (Sept. 7, 2017), https://www.washingtonpost.com/politics/courts_law/in-major-supreme-court-case-justice-dept-sides-with-baker-who-refused-to-make-wedding-cake-for-gay-couple/2017/09/07/fb84f116-93f0-11e7-89fa-bb822a46da5b_story.html?utm_term=.9229eb6113c6.  To prevail on his First Amendment defense, Phillips will likely have to make a sufficient showing that the amount of creativity and detail that go into making his cakes is far greater than that of any business that has previously challenged similar laws on the same grounds.

D. CONCLUSION

Considering precedent, it is unlikely that Masterpiece Cakeshop will prevail.  Several businesses have also challenged similar state laws, citing religious beliefs as their reasoning, but at least one court has upheld its state anti-discrimination law and held that preventing or remedying discrimination is a compelling interest.  See Elane Photography, 309 P.3d at 70. However, the decision in this case has the potential to either mark the Supreme Court’s commitment to equality and social justice or contribute to the erosion of state legislation enacted to prevent the discrimination of targeted groups.  This is a pivotal case either way you slice it.

 

*Reba Letsa is a second-year law student at the University of Baltimore School of Law, where she currently serves as a staff editor for Law Review.  Reba is also a member of the Royal Graham Shannonhouse III Honor Society.  In the fall of 2017, Reba worked in the District Court Screening Unit of the Montgomery County State’s Attorney’s Office.  For the summer of 2018, Reba will join Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. as a summer associate.

Issues to Watch

Hey Beautiful or Heck, No!: Street Harassment Catcalling and the First Amendment


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Hey Beautiful or Heck, No!: Street Harassment Catcalling and the First Amendment

Andrew Berg*

            French officials are fed up with street harassment and verbal abuses by men.  The trending hashtag on social media in France is #BalanceTonPorc, translated to “Expose Your Pig.”  Dan Bilefsky & Elian Peltier, France Considers Fines for Catcalls as Women Speak Out on Harassment, N. Y. Times (Oct. 17, 2017), https://www.nytimes.com/2017/10/17/world/europe/france-harassment-twitter-weinstein.html?emc=edit_th_20171018&nl=todaysheadlines&nlid=25519591.  Women in and out of the French government are encouraging more women to speak out against harassment they have experienced from men.  Id.  The #MeToo social media campaign in the United States, becoming popular in response to Hollywood producer Harvey Weinstein’s decades-long alleged engagement in sexual harassment, is also contributing to the broader conversation to protect women from male aggression.  Id.  The French social media campaign is moving the conversation towards the creation of a new law that would make street harassment, like catcalling and unwanted verbal behavior towards others, a finable offense.  Id.  Men make women feel uncomfortable in several facets of American society, across generations, races, and ethnicities.  See generally Talia Hagerty et al., Stop Street Harassment, Know Your Rights: Street Harassment and the Law (2013), http://www.stopstreetharassment.org/wp-content/uploads/2013/12/SSH-KnowYourRights-StreetHarassmentandtheLaw-20131.pdf.  While touching another person is an obvious and well-established common law tort, sometimes even characterized as a crime, saying something that bothers another person is not thought of as such an offense in American law.  See id. at 6, 11.  Words alone are rarely a tort, or rarely a crime, but they can be objectionable.  As such, the First Amendment often protects language and words that some find offensive and bothersome.  See id. at 11.

I. FRENCH “PORC”

In France, a bill has been introduced by Marlène Schiappa, a minister for gender equality, to make catcalling a crime.  Bilefsky & Peltier, supra.  Similar laws are in place in multiple European countries, including Portugal and Belgium.  Id.; see also Elizabeth King, 6 Countries That Are Fighting Back Against Catcalling, Complex (Jan. 28, 2016), http://www.complex.com/life/2016/01/international-catcalling-policies/ (listing Belgium, Portugal, Argentina, Canada, New Zealand, and the United States).  Essentially, the existing laws make catcalling a finable offense, in hopes to deter anti-women and anti-gender speech that undoubtedly make women feel uncomfortable and undermine their own rights to walk in peace.  See King, supra; see also Hagerty et al., supra, at 15–268 (analyzing state street harassment laws in the United States).  These laws make words alone, communicated in public, a criminal offense.  See King, supra; see also Hagerty et al., supra, at 15–268.  While a private party still cannot sue based on the catcalling, the State can impose fines, and even sentence the perpetrator to prison.  See King, supra.  These laws aim to modify behavior and can help educate people about ingrained systemic sexism.  Id.  The proposed French law could help increase the number of sexual harassment convictions.  In 2014, a paltry six-percent of French sexual harassment cases led to a conviction.  Bilefsky & Peltier, supra.

II. FIRST AMENDMENT PROTECTIONS

Speech is generally protected by the First Amendment of the United States Constitution.  See U.S. Const. amend. I.  However, in the interest of safety, many localities have statutes, including those on college campuses, that attempt to curtail gendered language that could make a person feel unwelcome or uncomfortable.  King, supra; see also Hagerty et al., supra, at 14 (describing laws that protect harassment that takes place in and near schools and universities).  Nevertheless, many of those American statutes have failed muster, being struck down by courts, asserting “the right, however moronic, to say what we’d like.”  Maureen Sherry, France Wants to Outlaw Catcalling. Here’s Why the U.S. Shouldn’t, Fortune (Aug. 31, 2017), http://fortune.com/2017/08/31/france-catcalling-street-harassment-marlene-schiappa/.

While it is admirable to protect people from feeling uncomfortable, there are times when the First Amendment triumphs.  For example, universities across the country have attempted to implement policies that mimic the proposed French law’s intent, but those policies have failed to withstand constitutional challenges.  See Kathleen M. Sullivan & Noah Feldman, Constitutional Law 961 (18th ed. 2013).  Concern for protecting students on college campuses from verbal harassment was prevalent in the 1980s, and it continues in today’s society.  See id.  Both federal and state courts have held that university policies that curtail speech on college campuses are unconstitutional, mainly on the basis that they are vague and overbroad.  Id.; see also Doe v. Univ. of Mich., 721 F. Supp. 852, 867 (E.D. Mich. 1989) (finding the University’s policy on discrimination and harassment to be “so vague that its enforcement would violate the due process clause”).  A policy at the University of Michigan stipulated disciplinary actions for “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of . . . sex, [and/or] sexual orientation . . . .”  Doe, F. Supp. at 856.  A similar Stanford University policy that was struck down by a California Superior Court in 1995 read: “Speech or other expression constitutes harassment by personal vilification if it: a) is intended to insult or stigmatize an individual . . . on the basis of their sex . . . ; and b) is addressed directly to the individual or individuals whom it insults or stigmatizes . . . .”  Corry v. Leland Stanford Junior Univ., No. 740309 (Cal. Super. Ct. Santa Clara Cty. Feb. 27, 1995); Sullivan & Feldman, supra, at 961 (quoting the Stanford policy).  These universities were trying to protect their students, including female students, from the aggressions and verbal abuses by men, but were not successful because of the strong free speech culture that persists on campuses, and throughout American society.  Sullivan & Feldman, supra, at 961.  In Corry especially, the court ruled that the overbroad statute infringed on people’s ability to speak “insults that did not threaten to provoke immediate violence.”  Id. at 961–62.  Essentially, speech without the threat of immediate violence is protected speech.  Id. at 961.  This is the standard that courts often use in assessing how much protection the First Amendment affords to speakers.  Id.

A statute that could exist in France would probably have an uphill battle in the United States due to the existence of the First Amendment.  Traditional public forums, including  sidewalks and streets, have been held to allow the broadest and deepest free speech protections.  See, e.g., Cox v. Louisiana, 379 U.S. 536, 554–55 (1965); see also Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939) (“[U]se of the streets and public places [for assembly, communicating thoughts between citizens, and discussing public questions] has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”).  Thus, many manners and matters of speech are enjoyed in American public forums, including the likes of catcalling, name-calling, religious speech, anti-government speech, and more.  Cox, 379 U.S. at 551–52.  Speech can be provocative, prejudicial, and unsettling.  Id. at 552.  States can, however, institute time, place, and manner restrictions as long as proper notice and limited content-neutral restrictions are made.  Id. at 558.

Accordingly, American laws cannot realistically prevent a man from catcalling a woman on the street.  The Constitution’s First Amendment free speech principles are quite strong in allowing the expression of speech that is “porc.”  American society will have to stop this type of verbal harassment without the assistance of state action if it wants to protect women from uncomfortable situations of catcalling and street harassment.  Private suits against catcallers and exposing catcallers and harassers publicly may prove to be the most effective means of changing catcalling culture.

 

*Andrew is a second-year student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review.  Andrew is also a member of the Royal Graham Shannonhouse III Honor Society. In the summer of 2017, Andrew served as an Equal Justice Works AmeriCorps JD Student interning at the Bar Association of Baltimore City’s Senior Legal Services organization.  Andrew currently works at the litigation firm of Schlachman, Belsky, & Weiner, P.A. as a law clerk.  Additionally, Andrew will be participating in the National Telecommunications and Technology Moot Court Competition, while also sitting on the Moot Court Board.