Copyright Law: Defining the Line between Inspiration and Infringement


Meg Franklin, Associate Member, University of Cincinnati Law Review

Many agency designers engage in the practice of “mood boarding” to inspire the design process.[1]  A successful mood board gives the client a peek into the designer’s vision for the final design.[2]  For example, a designer might create a collage with sample fonts, colors, and images on a board to accompany his or her presentation of the design concept.[3]  Mood boards are often preferred by design agencies due to their ability to solicit feedback from clients early in the design process.[4]  Yet, for the agency’s lawyer, an important question is: how much “inspiration” can designers transfer from the mood board to the final design?[5]  According to the court in the Southern District of New York, Hayuk v. Starbucks Corporation, design elements that fall within the public domain may be used to create new marketing designs and advertisements.[6]  This conclusion supports the purpose of copyrights because it promotes the creation of new artistic works.

The Hayuk Works

The dispute in Hayuk v. Starbucks Corporation was resolved after the court granted the defendant’s motion to dismiss.[7]  The motion to dismiss was granted in response to five claims of copyright infringement filed by visual artist, Maya Hayuk, against Starbucks Corporation and its advertising agency, 72andSunny Partners, LLC (hereinafter, collectively “Starbucks”).[8]  According to Hayuk, in October 2014, Starbucks contacted Hayuk to commission artwork for its “mini Frappuccino” (Frappuccino Works) advertising campaign.[9]  Hayuk’s Complaint alleges that even though she did not reach an agreement with Starbucks, the final advertisements were “substantially similar” to her copyrighted works of art.[10]Her five original works of art (Hayuk Works) were created and registered with the United States Copyright Office between 2009 and 2011.[11]  As described by the court, “[t]he Hayuk Works are typified by the use of bold colors, geometric shapes such as rays, lines, stripes and circles, layering of colors and hues, and texture produced by dripping or layering of paint.”[12]  According to Hayuk, the design in Starbucks’ marketing campaign included “the same abstract, radiating beams of black, white, yellow, magenta and azure that [she] had used in a series of five paintings.”[13]  Starbucks’ marketing campaign included retail signage, traditional advertisements, a YouTube video, product packaging, and the company website.[14]

Determining Substantial Similarity under the Discerning Observer Test

Starbucks argued in its motion to dismiss that Hayuk could not state a claim of infringement “because the allegedly infringing Frappuccino Works are not substantially similar to the Hayuk Works.”[15] [16]  The two elements to prove that the constituent elements of the work were copied are: “(1) the defendant actually copied the plaintiff’s work; and (2) the copying is illegal because a ‘substantial similarity’ exists between the defendant’s work and the protectable elements of the plaintiff’s work.”[17]  The distinction between protectable and non-protectable elements of the plaintiff’s work is important because it is “an axiom of copyright law that copyright does not protect “ideas,” only their expression.”[18]  However, if the idea and expression are tied so tightly together that they become “merged,” a court may “deny protection to the expression in order to avoid conferring a monopoly on the idea to which it inseparably is tied.”[19]

The standard test for “substantial similarity” is known as “the ordinary observer test.”[20]  This test asks “whether ‘an ordinary observer, unless he set out to detect the disparities [between the works], would be disposed to overlook them, and regard [the] aesthetic appeal as the same.’”[21]  However, the Second Circuit has directed that courts should use a “more discerning” test when the work contains protectable and non-protectable elements.[22]  Courts may compare the works in question when determining whether the works are substantially similar in a motion to dismiss.[23]  The court can then dismiss the case if “the similarity between two works concerns only non-copyrightable elements of the plaintiff’s work, or [that] no reasonable jury, properly instructed, could find [that] the two works are substantially similar.”[24]

The Core of the Hayuk Works Are a Non-Copyrightable Idea

Using the “discerning observer test,” the court reasoned that the alleged similarity between the works was not evidence of copying because the Starbucks design used elements that are part of the public domain.[25]  Hayuk described the “core” of her works as the overlapping colored rays that Starbucks allegedly copied in its Frappuccino Works advertisements.[26]  Yet, the court found this method of expression was tied so inseparably to its idea that extending copyright protection would give Hayuk a monopoly over the idea of overlapping colored rays.[27]  Therefore, the court concluded that, “[a]lthough the two sets of works can be said to share the use of overlapping colored rays in a general sense, such elements fall into the unprotectable category of ‘raw materials’ or ideas in the public domain.”[28]

The Effect of the Copyright Merger Doctrine on Hayuk

Although the court’s reasoning was layered under the “substantial similarity” analysis, the court’s decision ultimately turned on Hayuk’s ability to differentiate between the “idea” underlying her work and the scope of her “expression.”  For example, the paint drip marks and scrapings from Hayuk’s paintings would likely be considered original expression.  However, Starbucks’s designs did not contain any paint drip marks and scrapings.  Since Hayuk’s position was that the Starbucks designs were substantially similar, she had to find a way to articulate how her work was translated into Starbucks’s work.  Hayuk described this alleged infringement as a misappropriation of the “core” of her works.[29]  However, the court did not find this argument persuasive.  The court concluded that “what [Hayuk] has described as the ‘core’ of her work in the aggregate, namely the use of overlapping colored rays, and colors and shapes, is tantamount to a set of unprotectable concepts or methods over which there can be no copyright monopoly conferred.”[30]  In other words, Hayuk believed that the Frappuccino Works had taken too much inspiration from her works.  Yet, she was not able to articulate what had been inspired from her works outside of the use of overlapping colored rays which were part of the public domain.  Using the same idea of overlapping rays is not infringement because ideas are not copyrightable.

Fulfilling the Purpose of Copyrights

One takeaway from the case is that Hayuk’s designs were too simple to translate into strong copyright protection.  Beyond exact duplication, the court’s reasoning would not provide strong protection for her artwork.  If the elements of her painting constitute raw materials that are part of the public domain, then the only possible infringement would be to reproduce a Hayuk Work in its entirety.  A practical effect of this conclusion is that Hayuk lost the opportunity to generate revenue from licensing her artwork to the Starbucks.  However, the purpose of United States copyrights is not to maximize economic compensation for the copyright holder.[31]  Instead, the purpose is to “promote the progress of science and the useful arts.”[32]  The ruling in this case furthered the progress of the arts because it maintained artists’ freedom to seek inspiration from existing works, promoting the creation of new works.  To further illustrate this point, the implication that Hayuk could stop Starbucks from creating any design with overlapping rays would chill the future creation of artistic works.  Instead, the court balanced these interests and maintained a copyright holder’s rights to reproduce his or her works while also providing artists the freedom to create.

Agencies May Draw Raw Inspiration from Mood Boards

The court’s ruling could be interpreted as giving design agencies the freedom to draw inspiration from mood boards when the inspiration can be described as ideas belonging to the public domain.  When transitioning from the mood board phase to the design phase, a designer must first refrain from directly reproducing an existing work.  Directly reproducing a copyrighted work is typically a strong case for copyright infringement.  If, like in Hayuk, the work is not a direct reproduction, there should still not be a “substantial similarity” between the two works.  To determine whether “substantial similarity” exists, one must separate the “idea” from the “expression.”  In Hayuk’s situation, a copyright claim over the idea of overlapping colored rays was more protection than the court was willing to give.  However, if a designer only transfers “raw materials” into his or her design, the materials that are part of the public domain should not be subject to copyright.  Therefore, if used as a tool for collecting raw design materials, mood boards may arguably be the perfect tool to guard against copyright infringement under the reasoning in Hayuk.

Inspiration Free of Infringement

The court did not find a substantial similarity between the Hayuk Works and the Frappuccino Works because the only elements that were substantially similar were “ideas” or “raw materials” not subject to copyright protection.  Although this limits the potential for Hayuk to license her paintings for commercial use, the ruling promotes the progress of the arts by allowing artists to gather inspiration from existing works.   Using the reasoning of Hayuk, mood boards can help guard against copyright infringement when the only elements that are translated from existing works to the final design are considered “raw materials.”

Creative directors in agencies have long advocated for the use of mood boards.[33]  Yet, the agency’s attorney should also encourage the use of mood boards to facilitate inspiration that is free of infringement.

[1] A mood board is a tool used by designers during the conceptual phase of the design process.  Often, before a designer builds an advertisement for a client, the designer will gain the client’s approval on the design concept by showing the client design elements that might be incorporated into the final design.  Design elements might include typefaces, images, colors, patterns, or anything else that falls within a desired “look and feel.”  The compilation of these design elements is often called a “mood board.”  The mood board can be formatted as an unstructured collage or as structured blocks of design elements. See, Why Mood Boards Matter, WEBDESIGNERDEPOT (Dec. 30, 2008),

[2] Id.

[3] Id.

[4] Id.

[5] Sharon Givon, Copyright and Wrong: A Basic Guide for Designers, Sex, Drugs & Helvetica (Dec. 13, 2015),

[6] 157 F. Supp. 3d 285, 292 (S.D.N.Y. 2016).

[7] Id. at 287.

[8] Id. at 286.

[9] Josh Saul & Laura Italiano, ‘Starbucks Stole My Artwork!,’ New York Post (June 24, 2015 at 11:43pm)

[10] Hayuk, 157 F. Supp. 3d at 288.

[11] Id. at 287.

[12] Id.

[13] Josh Saul, supra note 9, at 2.

[14] Patrick Coffee, Artist Sues Starbucks, 72andSunny for Copyright Infringement, AdWeek: AgencySpy (June 29, 2015 at 1:02pm)

[15] Hayuk, 157 F. Supp. 3d at 289.

[16]  “Substantial similarity” refers to one of the elements required to prove that a defendant copied the constituent elements of the plaintiff’s copyrighted work. Id.

[17] Streetwise Maps, Inc. v. VanDam, Inc., 159 F.3d 739, 747 (2d Cir.1998).

[18] Hayuk, 157 F. Supp. 3d at 289 (explaining the merger doctrine).

[19] Id. at 289-90 (internal citations omitted).

[20] Id. at 290.

[21] Hayuk, 157 F. Supp. 3d at 290 (quoting Peter F. Gaito Architecture LLC v. Simone Dev. Corp., 602 F.3d 57, 66 (2d Cir.2010).

[22] Id. at 290.

[23] Id.

[24] Peter F. Gaito Architecture, 602 F.3d at 64.

[25] Hayuk, 157 F. Supp. 3d at 292.

[26] Id. at 291.

[27] Id. (applying the merger doctrine).

[28] Id. at 292.

[29] Id. at 291.

[30] Id. at 293.

[31] Note that this is unique to the U.S. system of copyright law.

[32] The power of Congress to confer copyrights is designated by the Patents and Copyrights Clause of the United States Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. I, § 8, cl. 8.

[33] Why Mood Boards Matter, supra note 1.


Author: Adam Pitchel, Associate Member, University of Cincinnati Law Review

The right to keep and bear arms has been constitutionally guaranteed since the Founding of the United States. It protects the right of the people to purchase, maintain, and use weapons for a variety of purposes. However, there is a question about whether this protection extends to noncitizens currently residing in the United States. A federal statute places most noncitizens outside of the protection of the Second Amendment.[1] The constitutionality of this statute has been challenged on several occasions, resulting in a split between the Seventh Circuit Court and the Fourth, Fifth, and Eighth Circuit Courts. The Seventh Circuit focuses on the definition of the word “people”, finding that noncitizens are included in this legal term of art and thus protected under the Second Amendment. This approach contrasts with the analyses of the Fourth, Fifth, and Eighth Circuits, which generally agree that the word “people” includes only law-abiding citizens. The later courts erred in their analyses as they mischaracterized the nature of the rights protected by the Second Amendment.

Persons as People

The Seventh Circuit, in Meza-Rodriguez, was asked to determine if the defendant could legally carry a .22 caliber pistol on his person.[2] The defendant was brought to the United States as a child; however he was not a naturalized citizen.[3] He asserted a number of defenses, including that 18 U.S.C. § 922(g)(5) violated his Second Amendment rights to carry a firearm.[4] The Seventh Circuit found that the defendant’s Second Amendment rights depended upon whether the word “people” included noncitizens.[5] To answer this question, the court looked to how “people” had been interpreted with regard to other rights protected by the Constitution.[6] The court determined that noncitizens are considered “people” under the First, Fourth, Fifth, and Fourteenth Amendments, consequently the definition of “people” should have a similar construction for the Second Amendment.[7] As part of this analysis, the court applied the “substantial connections” test outlined in United States v. Verdugo-Urquidez.[8]

Citizens as People

Between 2011 and 2012, the Fourth, Fifth, and Eighth Circuits decided to place noncitizens outside of the protections granted under the Second Amendment.[9] Each of these decisions leaned heavily on the Supreme Court decision District of Columbia v. Heller.[10] In Heller, the Court found that the right to bear arms is limited and, like the First Amendment, it is subject to certain restrictions.[11] The opinion made several references to “law-abiding citizens” and the importance of their right to bear arms remaining free from any infringement.[12] However, Heller did not specifically address a statute that attempted to proscribe a specific group of people from owning firearms.[13] Consequently, the Fourth Circuit in United States v. Carpio-Leon turned to United States v. Chester, where the Fourth Circuit outlined a two-part test to determine the validity of a law that banned certain people from owning firearms.[14] The test first questions whether the law imposes a burden on conduct that falls within the scope of the Second Amendment’s protections.[15] The court determined that the law fell outside of the scope, as noncitizens are not considered “people” for Second Amendment purposes.[16] Since the law fell outside the scope, the court did not address the second part of the Chester test.[17]

The Fifth Circuit in United States v. Portillo-Munoz also cited to the opinion in Heller, however it interpreted the word “people” to mean “members of the political community.”[18] The court also reasoned that rights provided by the Second Amendment were affirmative by giving people the right to do something.[19] Conversely, the rights described in the Fourth Amendment protect people and provides the right to be free from wrongful government intrusion.[20] The court in Portillo-Munoz concluded that the different purposes of the two amendments justified the different meanings attached to “people.”[21]

Second Amendment Rights: Affirmative or Protective

The Fifth Circuit in Portillo-Munoz outlined a dichotomy of rights guaranteed by the Bill of Rights. The court described the rights and the purposes behind them as either “protective” or “affirmative.” The court does not identify the characteristics of an “affirmative” right other than stating they can be limited to include fewer people than a “protective” right.[22] The Fifth Circuit construed the Second Amendment as an affirmative statement by the Framers permitting people to own weapons. Conversely, the Fifth Circuit interpreted the First and Fourth Amendments as negative statutes due to their prohibitive language.[23] However, applying these definitions to the text of the Second Amendment leads to a conclusion that contrasts starkly with the decision of the Fifth Circuit.

The last four words of the Second Amendment, “shall not be infringed,” are indicative of a negative right that forbids government from interfering with a pre-existing right.[24]
The First Amendment also has negative language.[25] The first five words of the text set an equally negative tone, stating the existence of pre-existing rights and preventing the government from intruding upon them. While it has been held that neither the First nor the Second Amendment are without limit, the applicable protection of rights afforded under both Amendments are essentially the same. What remains to be seen is whether the definition of “people” under the Second Amendment mirrors the definition of “people” used throughout the rest of the Constitution and Bill of Rights

Who are “The People?”

Accepting that most, if not all, of the rights mentioned in the Constitution are protective, it must be determined if those rights protect the same groups of people. In Portillo-Munoz and Carpio-Leon, the State makes several arguments that noncitizens do not fall within the category of people protected by the Second Amendment. Most prominently, the State argues that the government has previously been permitted to disarm those determined to be subversive or dangerous via statute.[26] The rationalization for those laws is based on the belief that the Founders intended the Second Amendment to only apply to the law-abiding citizen. Unfortunately, that rationalization cannot apply to noncitizens.

The connection between noncitizens and the disarmament of dangerous people is tentative at best. The court in Carpio-Leon used a historical analysis to justify the denial of Second Amendment rights to noncitizens.[27] Its analysis focuses on actions taken by colonial governments to prevent suspect populations from owning weapons.[28] It used these actions as historical evidence of the government’s ability to disarm people who are not “law-abiding members of the political community.” Unfortunately, those included in the court’s examples have a common trait that is not universal or even prominent in noncitizens. Each member of a suspect population did something to lose their Second Amendment rights, yet noncitizens are deemed presumptively dangerous and unworthy of Second Amendment protection. This difference is important because most noncitizens have no violent tendencies and have every incentive to behave appropriately or risk deportation. A study conducted by the American Immigration Council found that the number of unauthorized immigrants in the United States had tripled from 1990 and 2013, yet the violent crime rate had declined by forty-eight percent during that period.[29] The same study concluded that immigrants are less likely to engage in criminal activity than native-born American citizens.[30] These factors indicate that not only is the fear of the noncitizen gun-owner widely overblown, but also that the violent-immigrant stereotype continues to be perpetuated in Congress and in the courtroom.

The Supreme Court in United States v. Verdugo-Rodriguez reasoned that a noncitizen “[had to] have…developed substantial connections with the country,”[31] before the noncitizen would be considered part of the “people” and be guaranteed the protections provided under the Bill of Rights.[32] This test was originally devised to determine if noncitizens were considered “the people” and permitted to claim Fourth Amendment protections. In Meza-Rodriguez, the Seventh Circuit concluded that the definition of “people” under the Fourth and Second Amendments were the same because the Bill of Rights was adopted as a package without indication that the same term had different meanings between Amendments. However, the court missed an opportunity to strengthen its holding and failed to cite to a particularly relevant passage in the opinion of Johnson v. Eisentrager.[33] In Eisentrager, a noncitizen attempted to invoke their Fifth Amendment rights after being convicted of war crimes in Germany.[34] The Supreme Court denied the noncitizen’s argument however, in its opinion the Court stated “[t]he alien . . . has been accorded a generous and ascending scale of rights as he increases his identity with our society.”[35] This statement implies that the more a noncitizen mingles with society, the more rights the noncitizen gets. If the mere act of entering the United States indicates an intent to integrate into society, then that act alone must provide some basis for access to the rights protected by the Constitution. The Supreme Court in Verdugo-Rodriguez surmises that this initial connection is insufficient and that more connections are needed. However, economic struggles, high unemployment, and reduced demand for low-skilled workers has forced many noncitizens into social isolation, rendering them unable to make the necessary substantial connections.[36]

While the “substantial connections” test can be applied to unauthorized immigrants, this test struggles in its applicability to unnaturalized citizens lawfully in the United States. The statute declares that all people, with a few exceptions, residing in the United States under a nonimmigrant visa are denied protection under the Second Amendment.[37] Most of these nonimmigrant visas have a life span that limits the time a person can lawfully stay in the United States.[38] Consequently, owners of these visas cannot develop the connections to satisfy the “substantial connections” test.


While the court in Portillo-Munoz used suspect logic in its analysis, the history of deference to the legislature regarding immigration policy is too great to ignore. Several courts have held that the government can create laws that would be unconstitutional if applied to citizens, yet are permissible when applied to noncitizens.[39] This judicial and legislative history creates a burden for any noncitizen asserting constitutional rights and implies presumptive constitutionality of anti-immigrant laws. However, this statute applies to both lawful and unlawful noncitizens. While unlawful noncitizens have minimum constitutional protection, lawful noncitizens need more. These noncitizens did not violate the law and commit at crimes at a far lower rate than American-born citizens.[40] The overblown risk of noncitizens engaging in criminal activity is not a compelling argument to bar noncitizens from Second Amendment protections. Both Fourth and the Fifth Circuits used the “dangerous illegal immigrant” justification as their basis to uphold the statute under rational-basis review, yet there is no indication that this explanation would survive a constitutional challenge by a lawful noncitizen.[41]

[1] 18 U.S.C. § 922(g)(5) “It shall be unlawful for any person who, being an alien, is illegally or unlawfully in the United States or has been admitted to the United States under a nonimmigrant visa…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

[2] 798 F.3d 664, 666 (7th Cir. 2015).

[3] Id.

[4] Id. at 667.

[5] Id. at 669.

[6] Id. at 669-70.

[7] Id.

[8] Id. (citing United States v. Verdugo Rodriguez, 494 U.S. 259, 265 (1990), “aliens receive constitutional protections when they have come to the territory of the United States and developed substantial connections with this country”).

[9] See United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012); United States v. Flores, 663 F.3d 1022 (8th Cir. 2011); United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011).

[10] District of Columbia v. Heller, 554 U.S. 570 (2008).

[11] Id. at 613.

[12] Id. at 625, 635, 644 (placing felons and the mentally-ill outside the class of “law-abiding citizens”).

[13] United States v. Meza-Rodriguez, 798 F.3d 664, 669 (7th Cir. 2011).

[14] United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012) (citing United States v. Chester, 628 F.3d 673 (4th Cir. 2010)).

[15] Id. at 977.

[16] Id. at 978.

[17] Id. at 982.

[18] United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011) (stating that noncitizens were not members of the American political community and did not have rights under the Second Amendment).

[19] Id. at 440.

[20] Id. at 441.

[21] Id.

[22] Id; An “affirmative statute” is defined as one that directs or declares that something shall be done. (Black’s Law Dictionary, Second Edition).

[23] A “negative statute” is one that prohibits something from being done. (Black’s Law Dictionary, Second Edition).

[24] U.S. Const. amend. II, “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

[25] U.S. Const. amend. I, “Congress shall make no law…abridging the freedom of speech, or of the press, or the      right of the people to peaceably assemble.”

[26] United States v. Carpio-Leon, 701 F.3d 974, 979 (4th Cir. 2012).

[27] Id.

[28] Id.

[29] Walter A. Ewing, Daniel E. Martinez & Ruben G. Rumbaut, The Criminalization of Immigration in the United States 1-2 (2015).

[30] Id. at 1.

[31] United States v. Verdugo Rodriguez, 494 U.S. 259, 265 (1990).

[32] Id.

[33] Johnson v. Estranger, 339 U.S. 763 (1950).

[34] Id.

[35] Id.

[36] Min Zhou, Growing Up American: The Challenge of Confronting Immigrant Children and Children of Immigrants, 23 Annual Review of Sociology 63, 68 (1997).

[37] 18 U.S.C. § 922(g)(5).

[38] “How Long Will Your U.S. Visa Allow You to Stay?” (last visited September 27, 2016).

[39] United States v. Portillo-Munoz, 643 F.3d 437, 441 (5th Cir. 2011).

[40] Walter A. Ewing, Daniel E. Martinez & Ruben G. Rumbaut, THE CRIMINALIZATION OF IMMIGRATION IN THE UNITED STATES 1-2 (2015).

[41] See Portillo-Munoz, 643 F.3d 437 at 441; United States v. Carpio-Leon, 701 F.3d 974, 983 (4th Cir. 2012).

Owen v. University of Kentucky: The ‘New’ Procedural Standard for the Kentucky Civil Rights Act

Author: Melanie Navamanikkam, Associate Member, University of Cincinnati Law Review

For the past twenty years, Kentucky jurisprudence has held that a plaintiff bringing an action under the Kentucky Civil Rights Act had to definitively choose between bringing their claim through a court of law or through an administrative proceeding. Once a plaintiff chose one of the forums, their claim was effectively precluded from the other forum. For employers defending against employment discrimination suits, this interpretation meant that the employer had to prepare to defend the case in only one forum. However, the recent Supreme Court of Kentucky decision in Owen has changed this, and has resulted in, what the Court itself agrees, is a “procedural mess.”[1]

The crux of the confusion stems from the fact that there are two versions of the statute which serve as procedural instructions for civil rights litigants.[2] One version is a pre-amended version from 1984,[3] and the other is the current amended version.[4] The pre-amended version of the statute instructed that a court or a human rights commission was not to take jurisdiction over a claim that was already pending in the other forum.[5] Furthermore, once a final determination was made by the other body, any further actions or proceedings were prohibited.[6] The current version, last amended in 1996, uses more restrictive language, instructing that while neither forum may take jurisdiction over a claim pending before the other forum, a final determination precludes only any other administrative action.[7] This shift in the language of the provision, from using general terms to more restrictive terms, has resulted in the confusing decision made in Owen.
Continue reading

United States v. Vasquez-Algarin: Resuscitating the Fourth Amendment

Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review 

The Fourth Amendment provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[1] At the time the Fourth Amendment was ratified, the various means by which the government might intrude upon an individual citizen’s life were not extensive. However, as the United States has reached a historically unparalleled degree of complexity, courts have struggled to find the proper balance between public order and personal privacy.

Indeed, Fourth Amendment jurisprudence has morphed from a state of affording broad civil protections to the current, more restricted state. Except for the sanctity of the home, the ability of law enforcement officers to intrude upon an individual’s privacy and property currently appears boundless. Yet, a disagreement over the standing of proof required to search a home sans warrant in order to execute an arrest warrant is brewing in the circuit courts. At issue is the level of suspicion an officer needs before entering a residence to effect an arrest warrant, when the arrest warrant names an individual other than the owner of the residence. Continue reading

Ballot Access: Constitutionality of Residency Requirements for Ballot Initiative-Petition Circulators

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

The Sixth Circuit recently reviewed a case regarding an Ohio statute that required initiative-petition circulators to reside in the state of Ohio.[1] The district court declared the law unconstitutional, and the issue of a residency requirement for circulators was not challenged on appeal.[2] Although not challenged by Ohio’s Secretary of State in Citizens in Charge, Inc. v. Husted, the court does analyze the issue of residency requirements and acknowledges that a circuit split still exists regarding whether they are constitutional.[3] Currently, the Second, Eighth, and Tenth Circuits all have different standards to adjudicate the constitutionality of these residency requirements.[4] The inconsistent adjudications over residency requirements for initiative-petition circulators should be cured by a clear and uniform judicial standard to resolve this open constitutional question. The Tenth Circuit’s determination that residency requirements were unconstitutional should be adopted, as it does not infringe upon an individual’s right to political association.[5] Continue reading

Warrantless “Across the Threshold” Arrest: Arrest of Defendant in Defendant’s Doorway

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

Early Fourth Amendment jurisprudence originally focused on whether a common-law trespass had occurred.[1] Now, the Supreme Court no longer requires an individual to prove that a property trespass occurred before asserting that their Fourth Amendment rights were violated.[2] However, the ancient connection between a person and their home still warrants significant Fourth Amendment protection. The Fourth Amendment respects that connection and affords protection to houses, persons, papers, and effects, with the home being first amongst equals.[3]

In New York v. Payton, the Court held that, absent a warrant or exigent circumstances, the Fourth Amendment prohibits law enforcement from nonconsensual entry into a suspect’s home in order to make an arrest.[4] Currently, a disagreement between circuits exists on whether Payton should extend to instances where the officer makes an arrest without physical intrusion into the home. The Second Circuit recently extended Payton’s protections to include instances where an officer, without physical entry into the home, arrests a home-dweller.[5] Other circuits reviewing this issue have two schools of thought. The Eleventh, Seventh, and Fifth Circuits have held that there is no Payton violation without physical intrusion into the home by law enforcement.[6] Alternatively, the Ninth, Sixth, and Tenth Circuits have held that a Payton violation may occur if law enforcement engages in coercive behavior, while still not physically entering the house, to arrest the home-dweller.[7] Ultimately, courts should follow the Second Circuit’s rule and base Payton analysis on the location of the defendant rather than law enforcement, as it better protects the individual right to privacy within the home. Continue reading

Apple Inc. and the FBI: Balancing Fourth Amendment Privacy Concerns against Societal Safety Concerns in the Digital Age

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

On December 2, 2015, two shooters opened fire and killed fourteen members of the San Bernardino, California community.[1] Within hours, the police had shot and killed the couple who carried out the horrendous mass shooting.[2] Once the threat had been eliminated, law enforcement and the general public needed information explaining how and why this tragedy occurred. According to the Federal Bureau of Investigation (FBI), current evidence suggests that the shooters had a potential link to Islamic extremism.[3] While the FBI has uncovered troves of information about the San Bernardino attack, the FBI claimed that it needed more information.[4]

The FBI wanted to compel Apple to create software that will break-in to the iPhone and circumvent security features.[5] To do this, the FBI wanted the judicial system to issue a writ that requires Apple to create this software.[6] Judicial authority should not be used in this matter, if the government wants technology companies to provide technological assistance to the government, Congress should pass a law.  No court should issue an order that requires a company to circumvent its own security features as the customer’s right to privacy should outweigh the perceived increase to safety. Continue reading

Justice Kennedy: To Swing or Not to Swing

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The recent death of Justice Antonin Scalia has both political parties upset, as both parties want control in appointing the new Justice to replace him. Until Justice Scalia’s seat can be filled, the politically divided Supreme Court risks a 4-4 tie on almost all major contentious cases that are before the Court. In the event of a tie, the Supreme Court traditionally takes one of two approaches. It could result in affirmance by an equally divided Court, Continue reading

Ohio’s Limits on Health Services in the Electronic Age

Author: Andrea Flaute, Associate Member, University of Cincinnati Law Review

Telemedicine is a key innovation in the health care industry. Sharing patient information and physician services across long distances bridges a gap for patients across the world. Telemedicine’s benefits include access to services that would otherwise be unavailable; streamlined and efficient communication between patients and physicians; and the ever-important reduction of health care costs. The recent launch of “mHealth,” Continue reading

The First Amendment: Does the Government’s Intent Matter?

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The Supreme Court recently heard oral arguments on the political speech case, Heffernan v. City of Paterson.[1] The case involved Officer Heffernan, who was demoted from his position as a detective because his department believed that he was supporting the adverse mayoral candidate.[2] More specifically, Officer Heffernan was observed acquiring a lawn sign for his ill mother, who supported Mr. Spagnola, a candidate trying to unseat the incumbent mayor.[3] The city demoted him because of his “overt involvement in a political election.”[4] Officer Heffernan maintains that he only picked up the sign for his mother and was not in any way involved in the political campaign.[5] He sued based on unconstitutional retaliation under the First Amendment,[6] alleging a violation of his freedom of speech and freedom of association rights.[7] Since the City intended to infringe on the political beliefs of Officer Heffernan, the Officer’s Constitutional rights were violated.

The Third Circuit and SCOTUS: Does Government Intent Really Matter?

The central issue in Heffernan is whether the intent of the government matters in a First Amendment case. In other words, does it matter that the government intended to deprive someone of their First Amendment rights, even though no speech took place? For example, if a government entity were to fire an employee for praying—a clear violation of the free exercise clause—when in fact the employee was not actually praying, but only thinking to himself, does the firing still result in a violation of the First Amendment?

The Third Circuit Court of Appeals affirmed the district court’s order of summary judgment, rejecting Officer Heffernan’s claims.[8] In evaluating his free speech claim, the court took issue with whether a jury could find that Heffernan actually spoke on a matter of public concern.[9] If he engaged in political speech, his speech would be protected under the First Amendment. The court evaluated whether Heffernan intended to communicate his political beliefs by picking up the sign. The court doubted this element because Heffernan repeatedly denied having any political involvement at all.[10] He also stated that he was only picking up a sign for his mother and that was all.[11] Therefore, according to the Third Circuit, Heffernan did not speak on a matter of public concern.

The court also rejected Heffernan’s freedom of association claim on the ground that Heffernan did not “maintain[] an affiliation with a political party.”[12] Heffernan argued that because he passively supported Mr. Spagnola and was close friends with him, a “political affiliation” existed.[13] Rejecting that argument, the court found that any political affiliation that might have occurred was mere cursory contact necessary to pick up the sign.[14] Therefore, no reasonable jury could conclude that Heffernan actually exercised his right to freedom of association.[15]

The Supreme Court is presently divided on the issue of government intent for purposes of First Amendment violations. At oral argument in front of the Supreme Court, Justice Kagan stated that if the Court dismissed Officer Heffernan’s claims, it would be permitting the government to punish someone that does not share its views any time that person is not actively opposed to those views.[16] For instance, those individuals who actively engage in political discourse would continue to be protected under the First Amendment, but the apathetic or partially-involved individuals would not. Here, Officer Heffernan, while he had political views, was not actively asserting those views. Therefore, the First Amendment would not protect him because the intent of the government does not matter, only the action of the citizen matters.

The Justices were clearly divided on whether Officer Heffernan actually associated with or spoke on a public matter.[17] Justice Scalia argued that although he was fired for the wrong reason, “there is no constitutional right not to be fired for the wrong reason.”[18] Moreover, Officer Heffernan was not associating or speaking.[19] In contrast, Justice Kagan argued that regardless of whether Heffernan was associating or speaking, his intent does not matter.[20] The First Amendment prohibits the government from retaliating against citizens for having views different from the government.[21] Therefore, the government’s intent is the critical inquiry.

Government Intent Should Be a Touchstone for First Amendment Rights

The Third Circuit gave little credence to Officer Heffernan’s rights under the First Amendment. Just because Heffernan did not actively assert his political opinion does not mean that he is not protected. The purpose of the First Amendment is to protect citizens from the government. Citizens lack adequate protection if they must act in certain ways in order to receive full protection. The government’s intent matters when the First Amendment is implicated. Although Officer Heffernan may have not asserted his First Amendment right, he was still punished by the government for having an unpopular political view. Even though he did not actually have that view, he was still harmed and his First Amendment rights were still implicated. Therefore, the Supreme Court should embrace Justice Kagan’s rationale and uphold the Constitutional rights of Officer Heffernan.

First Amendment Rights: Active Assertion or Implicit Fundamental Right

It is counterintuitive to allow a government to punish a person based on that person’s views, so long as that person is not actively asserting his views. Such a notion cuts against the fundamental idea behind the Bill of Rights and the Declaration of Independence. Certain inalienable rights, like life and liberty, are conveyed upon individual citizens at birth and these rights are in constant effect, existing continuously. Making individual liberties contingent on their active assertion diminishes their fundamental importance and meaning.

To determine if the government violated Officer Heffernan’s rights, the Court should evaluate whether the government punished him because he held opposing political views. Here, the government punished Heffernan because he was perceived as having opposing political views. Whether Heffernan actually attempted to politically express or associate himself by picking up the sign is of no consequence; the government’s sole intent was to punish him for having his opposing political views.

Underlying the First Amendment protections is the notion that the government cannot pass rules or act in such a way that infringes someone’s ability to hold certain political views. The First Amendment begins with, “Congress shall make no law . . . .”[22] If Officer Heffernan’s claims are dismissed, the Supreme Court will effectively establish a judicial rule that allows for the government to punish citizens for views that are different than its own. Ultimately, the right of freedom of speech and association is also a right against government action that adversely affects such rights, and the government action in this case did just that.

Does Intent Matter in Freedom of Association?

Although the Third Circuit seemed to give a lackluster analysis when evaluating Officer Heffernan’s freedom of association claim, and Justice Scalia seemed to write off the idea that he was associating at all, the freedom of association protects Officer Heffernan in this case. Even though Officer Heffernan disavowed any intention of supporting the candidate by picking up the sign, he was still associating with the campaign. The mere act of picking up the sign connected him to Mr. Spagnola’s political campaign and ideas.

 That Officer Heffernan did not have the intention to support the candidate when picking up the sign does not mean he did not associate with the campaign. His very presence means that he was in the literal sense, associating. In addition, the fact that the government actually punished him for doing so, regardless of his protests, suggests that his intention did not matter either. That he was seen with the candidate’s sign was enough to fire him for “overt involvement with a political campaign.” In effect, the Third Circuit’s holding protects only those people actively involved in asserting their First Amendment rights. Such a rule of law cuts against the Constitution’s fundamental ideals.


The government abridged Officer Heffernan’s First Amendment rights. Although he had no political intent in his mind, he still associated with the political campaign while he picked up the sign for his mother. The Constitution should protect him from the government’s retaliatory action regardless of his intentions because the government sought to punish him for having opposing political views. If Officer Heffernan’s claims are dismissed, apathetic citizens throughout the country could have their First Amendment rights taken away because they do not actively assert their political views. Allowing the government to get away with reprehensible behavior simply because Officer Heffernan’s involvement was passive does not honor the spirit of the First Amendment’s protections. It also severely limits the scope of the First Amendment, a tool used to prohibit the government from engaging in certain types of behavior. The Supreme Court should depart from the Third Circuit’s reasoning and protect the First Amendment rights.

[1] Heffernan v. City of Paterson, SCOTUS Blog, (Feb. 12, 2016), available at

[2] 777 F.3d 147, 149 (3rd Cir. 2015).

[3] Id at 150.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8]Id. at 149.

[9]Id. at 152-153.

[10] Id.

[11] Id. at 153.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Transcript of Oral Argument, at 58 Heffernan v. City of Paterson, No. 14-1280 (U.S. argued Jan. 19, 2016).

[17] See Oral Argument generally.

[18] Oral Argument at 6.

[19] Oral Argument at 5.

[20] See Oral Argument at 46.

[21] Oral Argument at 58.

[22] U.S. Const. amend. I