It’s Your Conscience Speaking: The Legal Perils of Kentucky Senate Bill 83

Photo by Greg Rosenke on Unsplash

Rachel Harp, Associate Member, University of Cincinnati Law Review

I. Introduction

The majority of states afford healthcare providers (“HCPs”) with a conscientious objection option for particular healthcare services.[1] These legislative conscience clauses give HCPs the right to refuse to provide certain healthcare services against the provider’s religion, morals, philosophy, or other values.[2] Typically targeting abortion and women’s access to contraception, these conscience clauses were initially enacted after the Supreme Court’s recognition of a woman’s right to choose in Roe v. Wade.[3] Since 1973, conscience clause legislation has grown to cover immunizations, certain types of research, end-of-life scenarios, and even other fields like social services.[4]

Republican Kentucky State Senator Stephen Meredith recently proposed a bill that would provide HCPs in the Commonwealth with broad conscientious objections and generous remedies.[5] The Arkansas legislative body passed a nearly identical bill.[6]

Part II of this article will discuss federal protections for patients, the relevance of the Free Exercise Clause in the context of conscience legislation, and Kentucky’s Senate Bill 83.[7] Part III will examine the constitutionality of conscience clauses for healthcare providers under principles of federalism, the First Amendment, medical ethics, and practical public health outcomes.[8] Part IV emphasizes the importance court recognition of human rights over harmful religious practices.[9]

II. Background

A. Federal Protections for Patients

Patients have some federal protections. These include Title VI of the Civil Rights Act (“Title VI”) and the Americans with Disabilities Act (“ADA”).[10] In sum, HCPs cannot deny treatment on the basis of the protected statuses of race, color, national origin, sex, age, or disability.[11] States may provide further protections, but federal law controls in a conflict and provides minimum protections that states cannot abrogate.[12] HCPs and healthcare facilities (“HCFs”) that receive federal funds (including Medicare) are subject to Title VI and the ADA and are not allowed to discriminate on the basis of protected statuses.[13]

In June of 2020, the Supreme Court of the United States held that “sex” in Title VII of the Civil Rights Act (“Title VII”) (regarding employment protections) includes gender, sexual orientation, and sexual identity.[14] Sex discrimination also encompasses discrimination based on gender stereotypes and sexual harassment.[15] Justice Gorsuch, writing for the majority, used a textualist approach to give full meaning to sex discrimination, emphasizing that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”[16] This interpretation likely applies to other sections of the same statute, particularly Title VI which uses identical language as Title VII.[17] The Biden Administration will enforce Bostock’s interpretation of “sex” in other federal statutes as well, including the Federal Housing Act (“FHA”), Title IX of the Education Amendments (“Title IX”), and the Immigration and Nationality Act (“INS”).[18]

The ADA provides further protections for persons with disabilities by providing protections for individuals that have a physical or mental impairment that substantially limits one or more major life activities, have a record of such impairment, or are regarded as having such impairment.[19] Under the 2008 ADA amendments and subsequent regulations, disability is broadly defined to afford maximum protection.[20]

There is no constitutional right to healthcare in the U.S., but patients do have privacy rights that the Supreme Court has recognized and reaffirmed.[21] Patient autonomy is a cornerstone of healthcare, both legally and ethically—patients have a right to choose what happens to their bodies.[22] States cannot infringe on the constitutional rights to marry, to have consensual sex with another adult, or to access contraception, nor can states impose an undue burden on a woman’s right to an abortion.[23] Privacy rights are thus enshrined in the Bill of Rights and might provide further protections for patients.[24]

B. The First Amendment: The Free Exercise Clause[25]

The free exercise clause prohibits the federal government and the states from enacting laws that infringe upon the free exercise of religion.[26] The free exercise clause is often in conflict with civil rights laws and cases, and the Supreme Court has yet to articulate a clear test for examining this tension.[27] The Court has drawn a distinction between “beliefs” and “actions.”[28] Beliefs are absolute and protected by the First Amendment, while practices and actions are not always protected.[29] In making this distinction, the Court wanted to ensure that religious practices did not become superior to the law.[30]

Free Exercise Clause jurisprudence began developing significantly in the mid-1960s when conscientious objectors to the military draft became prominent.[31] The Court created tests such as the “parallel beliefs test,” where a court examines how sincere a belief is held by determining whether the belief asserted is parallel to a belief in an orthodox deity.[32] While conscientious objectors were allowed to assert a variety of religious, philosophical, and even political beliefs, objectors could only assert a general objection to war, rather than opposing one particular war (such as the Vietnam War).[33]  

Both for-profit and non-profit organizations and businesses are afforded some conscientious objections under the Religious Freedom and Restoration Act (“RFRA”).[34] The seminal case demonstrating this principle is Hobby Lobby Stores, Inc. v. Burwell.[35] Hobby Lobby is a company owned by conservative Christians who objected to the Affordable Care Act’s (“ACA’s”) mandate on providing certain types of contraception insurance coverage to its employees on religious grounds.[36] According to the Court, the mandate violated RFRA as a substantial burden on the free exercise of religion.[37]

C. Kentucky’s Conscience Clause Bill[38]

Titled the “Medical Ethics and Diversity Act,” Kentucky Senate Bill 83 would provide a broad conscientious objection option to HCPs, including public and private hospitals, medical clinics, professional associations, medical schools, physicians, nurses, medical and nursing students, psychologists, pharmacists, social workers, and more.[39] The all-encompassing bill allows such institutions and professions to refuse to provide any type of healthcare service (including examinations, research, therapy, administering medications, counseling, and other services) that goes against the “conscience.”[40] “Conscience” is defined as “the religious, moral ethical, or philosophical beliefs or principles.”[41]

The bill also limits criminal and civil liability for HCPs, payers, and facilities.[42] Disciplinary actions that can be taken by professional boards and licensing boards is also constrained when an HCP refuses service under this bill.[43] Further, HCPs have a civil cause of action to recover damages and litigation costs and seek appropriate relief (such as reinstatement of license or board certification) if an HCP is disciplined in violation of this bill.[44]

Since its introduction in February of 2021, there have been three amendments to the bill.[45] It has been amended to broaden the class of individuals who are allowed to conscientiously object to include leadership staff, security guards, door keepers, state troopers, state park employees, and other “public servants.”[46] 

The bill is preempted by federal law, including Emergency Medical Treatment and Active Labor Act (“EMTALA”), meaning that generally HCPs and HCFs receiving federal funds must screen and stabilize patients in an emergency condition, regardless of any conscientious objection they may have to the patient or the patient’s care.[47] The bill’s synergy with Title VI and the ADA is less clear.

III. Discussion

Kentucky Senate Bill 83 sweeps too broadly and likely will conflict with Bostock and federal anti-discrimination law in practice.[48] In giving “conscience” a malleable definition, the bill would allow HCPs and HCFs to refuse non-emergency treatment to an unmarried cohabitating couple, a patient wearing a political t-shirt or hat, and other reasons the HCP articulates.[49] The HCP could not be punished for this, nor could the patient easily seek redress.[50]

The federal definition of sex discrimination post-Bostock can be in conflict with the Free Exercise Clause of the First Amendment in practice.[51] This Senate Bill highlights this conflict in a conservative Commonwealth. Though according to Bostock and the Biden Administration an HCP could not discriminate against LGBTQ+ patients, Senate Bill 83 finds a loophole by allowing HCPs to refuse treatment to patients for nearly any reason.[52] This could take place in the form of blatant homophobia in direct violation of Title VI, or it could be more subtle by refusing to treat an individual who has had multiple sexual partners or refusing to prescribe hormone therapy.

The implications of the ADA on this bill are less clear. The ADA prohibits discrimination based on a disability.[53] Disabilities that might be relevant to Senate Bill 83 include human immunodeficiency virus (“HIV”)-positive status, sexually transmitted diseases (“STDs”), and pregnancy complications.[54] While the ADA protects individuals with these disabilities from discrimination, Senate Bill 83 might allow blatant or subtle discrimination against these patients by allowing HCPs to assert a religious or “philosophical” objection to treatment.[55]

Federally unprotected statutes of individuals can also be denied healthcare, and under Senate Bill 83 the HCP or HCF could not be disciplined, nor would the patient be able to seek redress easily.[56] Unprotected statuses could include marital status, parenthood, political affiliation, vaccine status, and more.   

The progress of this bill and the nearly identical bill in Arkansas should be monitored to see how courts react to these state and federal law conflicts.[57] Though federal law should control, Hobby Lobby will likely be invoked by courts to emphasize the importance of conscientious objections under the Free Exercise Clause.[58] Kentucky’s Senate Bill is likely to pass both houses of the Kentucky General Assembly as Republicans and conservatives have a stronghold on the legislature. While Governor Beshear would likely veto the bill, the veto could easily be overridden.

While medical ethics recognizes conscientious objections, there have been many scholars that suggest that a calling to the profession should take precedence over personal preference.[59] In other words, if an individual does not wish to treat members of the LGBTQ+ community, they should not become a physician. There is also the idea of a social contract between HCPs and HCFs and the general public.[60] In many parts of Kentucky, there might only be one HCF in a community or accessible nearby. That HCF holds itself out as providing services that are relied upon by those in the surrounding area. 

The detrimental impacts of this bill if it were to pass cannot be overstated. Conscience clauses have negative disproportionate impacts on vulnerable populations such as women, the LGBTQ+ community, people of color, people with disabilities, and rural communities.[61] Kentucky is 44th in the nation in healthcare.[62] Access to healthcare is minimal, particularly in rural areas of Eastern Kentucky. Kentucky is also a very conservative state. Minorities—especially the LGBTQ+ community—are already in danger in rural parts of the Commonwealth. This bill endangers minority communities even more by potentially eliminating their access to healthcare entirely. Further, many healthcare plans such as Health Maintenance Organizations (“HMOs”) only allow patients to choose from a list of pre-selected physicians.[63] Many Kentuckians would thus be “stuck” with a certain HCP without many alternatives (if alternative HCPs in the community even exist).

IV. Conclusion

The legal status of Kentucky’s and Arkansas’ conscientious objection legislation should be closely monitored, as both are incredibly all-encompassing.[64] While patients have federal protections for privacy and protected statuses, Kentucky Senate Bill 83 seemingly ignores these federal laws in the name of the First Amendment.[65] Senate Bill 83 is likely to pass, and the public health consequences of its passage will be abysmal. Reviewing courts should emphasize human rights by protecting individuals from discrimination in healthcare and other areas. While HCPs do have a constitutional right to free exercise of religion, the practices of these religious beliefs should not be absolutely protected, especially when these actions endanger other individuals by legitimizing discrimination in healthcare.[66] 

[1] Nancy Berlinger, Conscience Clauses, Health Care Providers, and Parents, Hastings Ctr. Bioethics Briefings (Sept. 21, 2015),; Refusing to Provide Health Services, Guttmacher Inst. (March 2021),

[2] Berlinger, supra note 1.  See also S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).

[3] 410 U.S. 113 (1973). See also sources cited supra note 1.

[4] See Berlinger, supra note 1; Erica Anderson, A Will to Die: The Constitutionality of Ignoring the Living Wills of Pregnant Persons, U. Cin. L. Rev. (March 11, 2021), (discussing the ability of a state to invalidate the living wills of pregnant persons); Mark Strasser, Article: Neutrality, Accommodation, and Conscience Clause Legislation, 8 Ala. C.R. & C.L. L. Rev. 197, 231-38 (2017) (discussing the constitutionality of religious conscience clauses that allow individuals to refuse to provide services to the LGBTQ community).

[5] S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021). See also Senate Bill 83, Kentucky Gen. Assemb., (last visited March 26, 2021).

[6] S.B. 289, 93d Gen. Assemb., Reg. Sess. (Ar. 2021). See also SB298 – To Create the Medical Ethics and Diversity Act, Arkansas State Legislature, (last visited April 7, 2021) (detailing the bill’s history and status).

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

[8] See U.S. Const. amend. I; S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).

[9] Reynolds v. U.S., 98 U.S. 145, 166-67 (1878).

[10] 42 U.S.C. §§ 2000d et seq.; 42 U.S.C. §§ 12101 et seq. See also 42 U.S.C. §§ 18001 et seq. (The passage of the Affordable Care Act (“ACA”) in 2010 extended federal protections in Title VI to healthcare.); Fact Sheet: Nondiscrimination in Health Programs and Activities Proposed Rule, Dep’t of Health and Human Serv., (last visited March 24, 2021).

[11] 42 U.S.C. §§ 2000d et seq.; 42 U.S.C. §§ 12101 et seq.

[12] U.S. Const. art. VI (the “Supremacy Clause”). See e.g. Colo. Rev. Stat. § 24-34-601 (2020) (extending protected classes to include marital status, sexual orientation, ancestry, and creed). See also Martin v. Hunter’s Lessee, 14 U.S. 304, 340-41 (1816) (emphasizing that in a conflict between state laws and federal laws or treaties, federal law controls under the Supremacy Clause).

[13] See Reynolds v. U.S., 98 U.S. 145, 166-67 (1878).

[14] Bostock v. Clayton Cty., 140 S. Ct. 1731, 1747 (2020) [hereinafter Bostock] (“[D]iscrimination based on homosexuality or transgender status necessarily entails discrimination based on sex[.]”).

[15] Id. at 1743-45. See also Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75 (1998) (holding that sexual harassment is discrimination based on sex); Phillips v. Martin Marietta Corp. 400 U.S. 524 (1971) (pur curiam) (holding that policies that have a disparate impact on one gender is discrimination based on sex); Los Angeles Dep’t of Water and Power v. Manhart, 43 U.S. 702 (1978) (holding that discrimination based on gender stereotypes and actuarial tables is discrimination based on sex).

[16] Bostock, 140 S. Ct. at 1737; id at 1738 (“This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.”); id. at 1749 (“This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.”).

[17] Id. at 1737-38, 1749; 42 U.S.C. §§ 2000d et seq.

[18] Exec. Order No. 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021).

[19] 42 U.S.C. § 12102(1).

[20] See generally P.L. 110-325(2)(b)(5) (2008) (stating that the purpose of the 2008 amendments is to focus the courts’ analyses on whether a covered entity complied with the ADA and that whether an individual has an impairment should not be an extensive analysis); 29 C.F.R. § 1630.2.

[21] Wideman v. Shallowford Community Hospital, 826 F.2d 1030 (11th Cir. 1987) (holding that there is no constitutional right to medical services by a state or municipality); Roe v. Wade, 410 U.S. 113, 152-53 (1973)  (“[T]he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”).

[22] Roe, 410 U.S. at 152-53; Eisenstadt, 405 U.S. at 453; Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) (“Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment.”); Schoendorff v. Soc’y of N.Y. Hosp., 105 N.E. 92, 129 (N.Y. 1914), aff’d, 149 App. Div. 915 (N.Y. Sup. Ct.) (“Every human being of adult years and sound mind has a right to determine what shall be done with his own body…”); Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 270 (1990) (emphasizing that the right to bodily integrity encompasses the right to refuse medical treatment); Chapter 2: Opinions on Consent, Communication, & Decision Making, Am. Med. Ass’n, (last visited March 24, 2021).

[23] See generally Obergefell v. Hodges, 576 U.S. 644 (2015); Lawrence v. Texas, 539 U.S. 558 (2003); Eisenstadt, 405 U.S. at 453; Casey, 505 U.S. at 849, 874.

[24] Griswold v. Connecticut, 381 U.S. 479, 483 (1965) (“[T]he First Amendment has a penumbra where privacy is protected from governmental intrusion.”). See cases cited supra notes 20-21.

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

[26] Id.; id. amend. XIV (incorporating the First Amendment against the states).

[27] Bostock, 140 S. Ct. at 1754 (“We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution [b]ut worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage.”); Obergefell, 576 U.S. at 679-80 (“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach [their] principles.”); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018) (“[W]hile those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy to deny protected persons equal access to goods and services”). See also Mark Strasser, Article: Neutrality, Accommodation, and Conscience Clause Legislation, 8 Ala. C.R. & C.L. L. Rev. 197, 197-98 (2017).

[28] Reynolds v. U.S., 98 U.S. 145, 166 (1878) (upholding a bigamy conviction for a practicing Mormon).

[29] Id.

[30] Id. at 167.

[31] See generally Strasser, supra note 26, at 219-24.

[32] U.S. v. Seeger, 380 U.S. 163, 176 (1965).

[33] Id.; Welsh v. U.S., 342 U.S. 333, 342 (1970) (holding that those “whose conscientious objection to participation in all wars [that] is founded to a substantial extent upon considerations of public policy” qualify under the conscientious draft exemption.); Gillette v. U.S., 401 U.S. 437, 443 (1971) (holding that objectors opposing particular wars are not subject to exemption statute).

[34] See generally Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) and 42 U.S.C. § 2000bb-1.

[35] 573 U.S. at 688-92.

[36] Id. at 700-702.

[37] Id. at 688-92.

[38] S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] See Senate Bill 83, Kentucky Gen. Assemb., (last visited March 26, 2021).

[46] Id.

[47] S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021). See also 42 U.S.C. § 1395dd (“EMTALA”).

[48] S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021); 140 S. Ct. 1731 (2020); Exec. Order No. 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021); 42 U.S.C. §§ 2000d et seq.; 42 U.S.C. §§ 12101 et seq. See also 42 U.S.C. §§ 18001 et seq.

[49] S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021). See also Matt Jones (@KySportsRadio), Twitter (March 2, 2021), (Duke Law alum and Kentucky radio personality stating “you could be denied care…if you have on a MAGA hat, if you have an STD…anything that violates the “conscience” of the hospital or doctor…It’s awful and it very well may pass”).

[50] S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).

[51] See cases cited supra note 26; U.S. Const. amend. I.

[52] Bostock, 140 S. Ct. at 1747; Exec. Order No. 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021); S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).

[53] 42 U.S.C. §§ 12101 et seq.

[54] Id.; 29 C.F.R. § 1630.2(i)(1) (organ system function including the reproductive system is a major life activity under the ADA); Bragdon v. Abbott, 524 U.S. 624, 640 (1998) (holding that plaintiff’s HIV-positive status was a disability because it substantially interfered with a major life activity).

[55] See sources cited supra note 53; S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).

[56] S.B. 83, 2021 Gen. Assemb., Reg. Sess. (Ky. 2021).

[57] See id.; see also sources cited supra note 7.

[58] U.S. Const. art. VI; Martin v. Hunter’s Lessee, 14 U.S. 304, 340-41 (1816); 573 U.S. 682 (2014); U.S. Const. amend. I. See also cases cited supra note 26.

[59] Code of Medical Ethics Opinion 1.1.7, Am. Med. Ass’n, (last visited March 26, 2021); Udo Schuklenk, Conscientious objection in medicine: accommodation versus professionalism and the public good, 126 Brit. Med. Bull. 47 (2018).

[60] Schuklenk, supra note 58.

[61] Eileen Fry-Bowers, A Matter of Conscience: Examining the Law and Policy of Conscientious Objection in Health Care, 21 Policy, Pol., & Nursing Practice 120-26 (May 22, 2020),

[62] Kentucky, U.S. News (2019),

[63] See Health Maintenance Organization (HMO),, (last visited March 28, 2021); Boyd v. Albert Einstein Med. Ctr., 377 Pa. Super. 609 (Pa. Super. Ct. 1988) (holding an HMO vicariously liable for a doctor’s medical malpractice because the doctor was acting as an agent of the HMO).

[64] See sources cited supra notes 6-7.

[65] See sources cited supra notes 21-25.

[66] See Reynolds v. U.S., 98 U.S. 145, 166-67 (1878); U.S. Const. amend. I; Lawrence Gostin, The “Conscience” Rule: How Will It Affect Patients’ Access to Health Services?, Journal of the Am. Med. Ass’n (JAMA) (May 20, 2019), See also Hasan Shanawani, The Challenges of Conscientious Objection in Health care, 55 Journal of Religion and Health 384-93 (Feb. 29, 2016); Eileen Fry-Bowers, A Matter of Conscience: Examining the Law and Policy of Conscientious Objection in Health Care, 21 Policy, Pol., & Nursing Practice 120-26 (May 22, 2020),

“Collin’s Law” and the Ohio Legislative Fight to Eradicate Hazing

Photo by Nathan Dumlao on Unsplash

Jehanzeb Khan, Associate Member, University of Cincinnati Law Review

Trigger Warning: The following blog discusses college hazing, and heavy alcohol and drug use.

I. Introduction

On Wednesday, March 10th, 2021, Ohio State Senators Stephanie Kunze and Theresa Gavarone introduce a bill in the Ohio Senate to increase legal penalties for hazing and implement education for college students about hazing.[1] Senate Bill 126, also known as “Collin’s Law,” is named after Collin Wiant, an 18-year-old student at Ohio University who died of asphyxiation due to nitrous oxide injection connected to a hazing incident in November of 2018.[2]

This blog will discuss the purpose behind Collin’s Law and the penalty it seeks to impose. Next, this blog will discuss what other states have done in enacting similar laws to combat hazing at college campuses. Finally, this blog will delve into how successful Collin’s Law might be in reducing instances of hazing on college campuses.

II. Background

Part A of this section will overview Collin’s Law and what it seeks to impose in the state of Ohio. Part B of this section will discuss recent hazing instances in the United States and why they occurred. Lastly, Part C of this section will discuss what anti-hazing legislation has looked like in other states.

A. Collin’s Law

Collin’s Law is a reintroduction of an Ohio House bill in 2019 that did not make it through a Senate Committee on the heels of Stone Foltz’s death.[3] Foltz was a 20-year-old student at Bowling Green State University who died after an alleged hazing incident on March 7th, 2021.[4] Collin’s Law would expand the definition of hazing in Ohio to include the forced consumption of drugs and alcohol.[5]

Collin’s Law is designed to specifically amend § 2903.31 of the Ohio Revised Code titled “Hazing.”[6] The bill would increase the criminal penalties for hazing from a fourth-degree misdemeanor, comparable to not paying a parking ticket, to a second-degree misdemeanor for “general hazing,” and a third-degree felony for any hazing involving drugs or alcohol.[7] The bill also would establish “aggravated hazing” as a second-degree felony.[8] A charge under Collin’s Law could fall on all those accused of causing death, physical harm, or “substantial risk,” or physical harm to a victim while “acting with reckless indifference to the health and safety of the victim and causing or forcing consumption of alcohol or drug abuse.”[9]

Collin’s Law will also enact O.R.C. § 2903.311.[10] This new provision imposes a fourth-degree misdemeanor on any member of an institution of higher education or anyone acting in an official or professional capacity who fails to report any hazing incident to law enforcement.[11] “Collin’s Law” also enacts O.R.C. § 3333.0417, which requires the Ohio Chancellor of Higher Education to develop a statewide education plan for preventing hazing at institutions of higher education.[12] Lastly, “Collin’s Law” will enact O.R.C. § 3345.19.[13] This provision requires each institution of higher education in Ohio to develop an anti-hazing policy.

B. Hazing Across America

Dr. Elizabeth J. Allan and Dr. Mary Madden of the University of Maine presented an overview of hazing in the United States in 2008.[14] Through surveying over 11,000 college students, Dr. Allan and Dr. Madden discovered that more than half of college students involved in clubs, teams, and organizations experience hazing.[15] Additionally, more than 70% of students surveyed on either a varsity athletic team or a social fraternity or sorority experienced hazing.[16] The survey found that humiliation, isolation, sleep deprivation, and sex acts are common hazing practices; excessive alcohol consumption is the most common hazing practice without question.[17]

Despite the research presented by Dr. Allan and Dr. Madden being over ten years old, deaths from hazing incidents continue to occur. Since the study, at least 33 deaths have resulted from some form of hazing incident, averaging about two and a half hazing deaths per year.[18] Of those, 22 deaths were the result of alcohol intoxication.[19]

C. Other Anti-Hazing Legislation

Across the United States, 44 of the 50 states have some form of anti-hazing legislation.[20] However, Alaska, Hawaii, Montana, Hawaii, South Dakota, and Wyoming do not have any anti-hazing legislation.[21] Even amongst the states that do have hazing legislation, the breadth of the laws varies dramatically.[22] For instance, Arizona, Connecticut, Kentucky, Minnesota, and Tennessee do not impose any criminal penalty.[23]

Those states only have legislation requiring higher education institutions to impose some form of system to prevent hazing.[24] The remaining states impose some form of criminal penalty for those who are either perpetrators of hazing or who fail to report hazing instances when in a position of power.[25] However, California, Florida, Indiana, Louisiana, Michigan, New Jersey, Texas, Utah, and Wisconsin allow the state to charge the a perpetrator of hazing with a felony in certain severe instances.[26]

III. Discussion

Despite some states taking measures to increase penalties for perpetrators of hazing or increasing education for anti-hazing, deaths from incidents of hazing continue to occur. Notwithstanding fatalities, and as shown by Dr. Allan and Dr. Madden, many individuals, primarily those involved with social groups at higher education institutions, experience and endure instances of hazing. has reported that 71% of hazed people suffer from negative consequences, including mental instability, sleep deprivation, loss of sense of control, and post-traumatic stress syndrome, to only name a few.[27] So while death is indeed the worst possible outcome, there are far more victims of hazing that still endure severe and life-altering consequences.

Ultimately, “Collin’s Law” is a reactive measure to handle instances of hazing after they have occurred as opposed to something proactive to try and impede hazing from happening in the first place. Although “Collin’s Law” could impede instances of hazing in Ohio by providing a chilling factor, addressing hazing goes beyond just placing punitive measures on perpetrators and non-reporters. Unfortunately, due to how pervasive hazing is in social groups, the problem of hazing is one of culture and is not an easy fix. Thus, the long-term “fix” of hazing goes beyond state laws imposing punishment but goes to higher education institutions, and ultimately social groups at those institutions imposing new meaning of what college experiences and bonding look like, beyond heavy substance use and pressured social activities.

IV. Conclusion

“Collin’s Law,” if it passes, is a step in combating hazing in the state of Ohio. Ultimately, imposing strong penalties is part of the battle, and fortunately, “Collin’s Law” looks to also put pressure on colleges and universities in Ohio to impose their own policies. While helpful, to truly eradicate hazing, leaders of social groups at these institutions must take combating hazing seriously themselves. While it is great that Ohio legislative members care about combating hazing, and hopefully administrative members care too, college students themselves need to care as well. How many other students need to die from hazing before they do?

[1] Sheridan Hendrix, Tougher anti-hazing Collin’s Law reintroduced in Ohio Senate Wednesday, The Columbus Dispatch (Mar. 10, 2021, 4:20 PM),

[2] Sheridan Hendrix, Former OU Sigma Pi members plead guilty to multiple charges in death of pledge Collin Wiant, The Columbus Dispatch (Aug. 26, 2020, 4:34 PM),

[3] Quinlan Bentley, et al., Delaware student Stone Foltz dies after alleged BGSU hazing incident left him on life support, The Columbus Dispatch (Mar. 16, 2021, 2:19 PM),

[4] Id.

[5] Hendrix, supra note 2.

[6] S.B. 126, 134th Gen. Assemb., Reg. Sess. (OH. 2021); Ohio Rev. Code Ann. § 2903.31 (LEXIS through File 3 (SB 22)).

[7] Hendrix, supra note 2.

[8] Susan Tebben, Ohio Hazing Bill Hopes to Change Law Around Coerced Student Drug and Alcohol Abuse: A new Ohio bill would establish “aggravated hazing” as a second-degree felony and make “hazing” a first-degree misdemeanor, Ohio Capital Journal (Mar. 29, 2021, 11:00 AM),

[9] Id.

[10] S.B. 126, 134th Gen. Assemb., Reg. Sess. (OH. 2021).

[11] Id.

[12] Id.

[13] Id.

[14] Elizabeth J. Allan & Mary Madden, Hazing in View: College Students at Risk- Initial Findings from the National Study of Student Hazing (University of Maine College of Education and Human Development, 2008).

[15] Id. at 14.

[16] Id. at 16.

[17] Id. at 16-22.

[18] Hank Nuwer, Hazing deaths on American college campuses remain far too common- The biggest cause is alcohol poisoning, The Economist (Oct. 13, 2017),

[19] Joe Harrington, What is hazing and why does it exist on college campuses?, The Columbus Dispatch (Mar. 9, 2021, 12:46 PM),

[20] States with Anti-Hazing Laws, StopHazing Consulting, (last visited Apr. 4, 2021).

[21] Id.

[22] Id.

[23] Id; Hazing Law – Interactive State Map,, (last visited Apr. 4, 2021).

[24] StopHazing Consulting, supra note 21;, supra note 24.

[25] StopHazing Consulting, supra note 21.

[26], supra note 24.

[27] Hazing and its Consequences,, (last visited Apr. 5, 2021).

Full Disclosure: Reining in Citizens United

Photo by wallyg via Flickr

Matthew Marino, Associate Member, University of Cincinnati Law Review

I. Introduction

In the United States, corporations have a constitutional right to finance political campaigns. In Citizens United v. Federal Election Commission, the Supreme Court held that the First Amendment of the United States Constitution prohibits the government from restricting a corporation’s speech because of its corporate identity.[1] Because campaign finance has long been considered a form of protected free speech under the First Amendment, allowing people to voice support for candidates through campaign spending, corporations have the right to finance campaigns as a form of protected free speech.[2]  

Corporations fund campaigns through contributions and expenditures.[3] Contributions refer to money sent directly to a candidate during an election.[4] Expenditures refer to money spent on political communications, such as advertisements, during elections.[5] Unlike contributions, expenditures do not take the form of direct payments to candidates, and therefore candidates are presumed to have little to no control over campaign expenditures.[6] While contributions require disclosure, expenditures do not. Many perceive that campaign donors disguise contributions as expenditures to avoid disclosure requirements and mask association between the candidate and donor.[7]

After Citizens United, corporations have continued to reserve substantial portions of their budget for campaign expenditures, resulting in calls for campaign finance reform to reduce the appearance of corruption among politicians associated with wealthy corporate donors.[8] The DISCLOSE Act (DISCLOSE), which has now been incorporated in the For the People Act (FPA),[9] would require candidates to disclose all corporate sources of campaign expenditures, in addition to disclosed contributions, in order to promote transparency in campaign finance at the federal level.[10] Congress should pass DISCLOSE to restore the power in the hands of individual voters to influence elections.

II. Background

A. Campaign Finance as a Constitutional Right

Since the 1976 case of Buckley v. Valeo, the Supreme Court has characterized campaign spending as a form of protected speech under the First Amendment of the Constitution because such spending allows party-building, issue orientation, and advocacy that contribute to public discourse.[11] In that case, the Court held that spending money to influence elections is constitutionally protected speech and struck down provisions of the Federal Election Campaign Act of 1971 establishing limits on general campaign expenditures, independent expenditures for specific candidates, and expenditures by individual candidates from their personal funds.[12] The Court reasoned that restricting persons’ or groups’ abilities to make expenditures during a campaign reduces the number of issues discussed, the analysis of those ideas, and the size of the audience reached.[13] Therefore, the Court held that laws restricting such expression should be viewed with more scrutiny. However, the Court upheld limits on contributions because the government’s interest in reducing the appearance and risk of corruption was strong in the context of contributions.[14] Contributions involve direct contact between the donor and candidate and therefore carry the appearance and risk of corruption.[15]

B. Limitations on Campaign Finance

As time went on, campaign expenditures were viewed as having a stronger bearing on the outcome of elections.[16] In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA) in response to demands for campaign finance reform.[17] Title II of the BCRA prohibited corporations and unions from using their general treasury funds for expenditures on “electioneering communications,” defined as speech “advocating the election or defeat of a candidate.”[18] Title II corresponded with then-Supreme Court precedent in Austin v. Michigan Chamber of Commerce, where the Court held that states could constitutionally limit corporations’ spending on electioneering communications.[19]

In McConnell v. Federal Election Commission, the Court held that Congress may constitutionally limit some types of political campaign contributions and communications if doing so promotes a compelling governmental interest, which can include reducing the appearance of corruption in the electoral process.[20] The Court held that Title II of the BCRA restrictions on electioneering communications would serve the interest of reducing the appearance of corruption by preventing the use of contributions masked as expenditures in order to avoid disclosure requirements.[21]

C. Citizens United v. Federal Election Commission

In Citizens United, the Supreme Court held that the government may not suppress political speech, which includes campaign finance, on the basis of a speaker’s corporate identity.[22] The Citizens United Court reversed course from Austin and McConnell and struck down provisions of the BCRA restricting corporate campaign spending. The Court held that the First Amendment protects corporations’ rights to express preferences for political candidates through campaign expenditures as a form of protected speech.[23] The Court revisited its decision in Austin, which relied on the assumption that corporations may gain an unfair advantage in politics by using money obtained in the market to influence the outcome of elections.[24] However, due to the skyrocketing costs of running a campaign, the Court held that the individual candidates’ interests in accumulating financial support from all interested donors to fund expensive campaigns was stronger than the government’s interest in neutralizing the playing field in elections for federal office through campaign expenditure limits.[25]

The Court also revisited its position in Austin that corporate spending on elections distorts public support in elections, because amassed corporate wealth does not reflect the support of individual voters.[26] However, the Court responded by illustrating that all campaign contributions distort public support because individuals use money acquired in the market to individually support candidates in the same manner as corporations.[27] Therefore, the Court held that restricting corporate speech because of its corporate character was unconstitutional under the First Amendment.[28] Nevertheless, like the Court in Buckley, the Court in Citizens United upheld limits on campaign contributions in order to reduce the appearance and likelihood of corruption in the electoral process.[29]


The DISCLOSE Act is a campaign finance reform bill that has been continually reintroduced in the U.S. House of Representatives since 2010.[30] DISCLOSE is designed to require greater and faster disclosure of campaign spending to harness the influence of mass campaign expenditures from undisclosed sources.[31] Within 24 hours of making an expenditure of $10,000 or more, DISCLOSE would require corporations and labor organizations to disclose that expenditure to the Federal Election Commission.[32] Additionally, through “stand-by-your-ad” provisions, DISCLOSE would require leaders of corporations or other organizations to claim responsibility for funding political advertisements.[33] DISCLOSE would repeal earlier laws prohibiting the Securities and Exchange Commission from requiring disclosure of corporate political spending to shareholders.[34] Further, DISCLOSE would impose campaign spending limits for organizations with substantial foreign control and restrict the use of shell companies as discrete channels for campaign support.[35]

III. Discussion

As of 2020, over half of Congress members are millionaires and the median net worth for a Congress member is around $1 million.[36] Election success has long been based on wealth and visibility in the media due to the prevalence of TV and the internet.[37] Elections should hinge more on a candidate’s merit and potential to better society rather than their connections to wealthy donors who facilitate the candidate’s visibility in advertisements through undisclosed expenditures. DISCLOSE, as incorporated in the FPA, will: (1) better equip the public to scrutinize candidates for their corporate donors and potential bias toward those donors; (2) improve officeholder accountability through faster and more comprehensive disclosure provisions; and (3) open the door for younger, equally qualified candidates with fewer resources to have a running chance in federal elections.

A. DISCLOSE will Enhance Public Scrutiny of Elections

Citizens United encourages corporate leaders to spend large portions of their budgets on campaign expenditures, in order to further their goals in Congress.[38] Corporations generally have far more resources than individual persons to spend on campaigns. Therefore, the Court in Citizens United was irresponsible in equating individual campaign spending with corporate campaign spending[39] because corporations are far more equipped to influence the outcome of elections through massive campaign spending. Further, unlike corporations, individual voters fund campaigns for a bevy of personal, moral, and political reasons. Corporations support candidates to improve their financial status in the market through favorable economic policies and regulations.[40] Therefore, because of the disconnect between corporate and human interests, and the disproportionate influence of corporations on elections,[41] officeholders need to be held accountable for their relationships with wealthy corporate donors to ensure that no improper biases toward those donors are guiding their decision-making. DISCLOSE will allow members of the public to track candidates’ decision-making and the impact of those decisions on candidates’ corporate donors, allowing voters to assess candidates for improper favoritism for corporate donors.

B. DISCLOSE will Promote Officeholder Accountability

With more transparency surrounding the source of candidates’ campaign funding, officeholders will shift their focus to the reputation, as opposed to the wealth, of their corporate donors. DISCLOSE provides for corporate disclosure of expenditures of $10,000 or more within 24 hours of making the expenditure. Therefore, DISCLOSE requirements would expose ties between large corporate campaign expenditures and individual candidates, which could tarnish candidates’ reputations if their donors are unpopular among their constituencies. Rather than rely on the wealth of corporate donors to create visibility for themselves in the media, candidates may instead rely on corporate donors for their positive image, as voters will build associations between candidates and their corporate donors.   

C. DISCLOSE will Open the Door for Younger, Qualified Candidates

With more incentive for federal officeholders to rely on corporate donors’ reputations as opposed to their massive wealth, the door will open for younger, qualified candidates with fewer resources to have a fighting chance in federal elections. Statistically, people are more likely to develop fondness of a person if they have already encountered that person’s image.[42] But younger, equally qualified candidates with fewer connections in politics will have trouble circulating their image. DISCLOSE would actually prompt skepticism when members of the public encounter a highly visible candidate. High visibility might become associated with connections to and bias for wealthy corporate donors. With visibility in the media as less of an important factor to election success, the door might open for younger candidates with exceptional merit but fewer connections and financial resources.

IV. Conclusion

The incumbency rate for U.S. Congress members hovers around 95%, demonstrating that our system favors incumbents with political notoriety.[43] This is not necessarily a negative thing, as longer tenures in federal offices can foster the development of important relationships between government officials and leaders of industry that are essential to effectuating long-term change. However, incumbents should be held accountable and challenged for their relationships with wealthy corporate donors. Wealthy corporate donors may be largely responsible for candidates’ continued visibility in advertisements and ensuing success in elections. The public deserves to know who is responsible for that success.  

DISCLOSE, as incorporated in the FPA, will better equip the public to scrutinize candidates for their donors and potential bias toward those donors. DISCLOSE will improve officeholder accountability, making elections more about candidates’ relationships with donors and whether they create a positive image, rather than the wealth of those donors and whether they promise to ensure the candidate’s visibility in the media. Lastly, DISCLOSE will open the door for younger, qualified candidates. With less reliance on the wealth of donors for success in federal elections, younger candidates with less financial support will be better equipped to run for office. With full disclosure of large donations made public under DISCLOSE, younger candidates will also be better equipped to challenge officeholders who may have conflicting obligations between their corporate donors and their constituents, providing a check on candidates’ fitness for office. For all these reasons, Congress should pass DISCLOSE to restore power to individual voters to influence the outcomes of elections.

[1] 558 U.S. 310, 347 (2010).

[2] See Buckley v. Valeo, 424 U.S. 1, 22 (1976).

[3] See Id.

[4] Id. at 21.

[5] See Id. at 7.

[6] Id. at 46.

[7] Holly Kathleen Hall, Justice for Sale? The Shadow of Dark Money in State Judicial Elections, 19-1 Comm. Law Rev. 1, 31 (2020).

[8] Lawrence Norden & Daniel I. Weiner, Corporations and Fixing Campaign Finance, Brennan Ctr. for Justice (Jan 21, 2021),

[9] Whitehouse Introduces Disclose Act to Restore Americans’ Trust in Democracy, Sheldon Whitehouse U.S. Sen. For R.I. (Apr. 11, 2019),

[10] John Samples, The DISCLOSE Act, Deliberation, and the First Amendment, 664 Policy Analysis 1 (2010).

[11] Buckley, 424 U.S. at 26-30.

[12] Buckley, 424 U.S. at 143-44.

[13] Id. at 19.

[14] Id.

[15] Id. at 26.

[16] See Lawrence & Weiner, supra at note 8.

[17] Bipartisan Campaign Reform Act, Ballotpedia,

[18] Id.

[19] See 494 U.S. 652, 658-59 (1990).

[20] 540 U.S. 93, 143 (2003).

[21] Id. at 119-20.

[22] Id. at 351

[23] 558 U.S. at 347.

[24] Id. at 350.

[25] Id.

[26] See Id. at 351.

[27] Id.

[28] Id. at 347.

[29] Id. at 459.

[30] See T.W. Farnam, The Influence Industry: Disclose Act could deter involvement in elections, Wash. Post  (May 13, 2010),; see Andy Kroll, Senate Democrats Re-up Their Dark-Money Disclosure Bill-and Dare GOPers to Block It, Mother Jones (June 24, 2014);; see Fred Wertheimer & Donald Simon, Rebuttal of Attacks on Dark Money Disclosure Requirements in H.R. 1, Democracy 21 (March 4, 2019),

[31] See Wertheimer & Simon, supra at note 30.

[32] Supra at note 9.

[33] Id.

[34] Id.

[35] Id.

[36] Karl Evers-Hillstrom, Majority of lawmakers in 116th Congress are millionaires, Ctr. for Responsive Pol. (April 23, 2020),

[37] Charles H. Franklin, Senate Incumbent Visibility Over the Election Cycle, 18-2 Leg. Studs. Quarterly, 271 (1993).

[38] Lawrence & Weiner, supra at note 8.

[39] See supra note 37.

[40] See Norden & Weiner, supra at note 8.

[41] Id.

[42] Why do we prefer things that we are familiar with? The Mere Exposure Effect, explained, The Decision Lab,

[43] Reelection Rates Over the Years, Ctr. for Responsive Pol. (2018),

Childbirth in Chains: Why the Shackling of Incarcerated Pregnant Women is Unconstitutional

Photo by Bill Oxford on Unsplash

Erica Anderson, Associate Member, University of Cincinnati Law Review

“I felt like a farm animal,” cried Michele Adana. For 30 hours her wrists and ankles bled due to the chains tying her down during labor.[1]

I. Introduction

Unfortunately, the shackling of incarcerated pregnant women remains a common practice within the U.S. criminal legal system.[2] As stated in Nelson v. Correctional Medical Services,Shawanna Nelson, a 29-year-old non-violent offender was having labor contractions and presented herself to the prison infirmary.[3] When Shawanna began to scream in pain as her contractions were only five to six minutes apart, infirmary nurses requested that she be transported to a hospital.[4]

Despite medical personnel’s pleas to remove restraints and the fact that Shawanna “couldn’t walk,” she was shackled to a wheelchair when being pushed to her hospital bed, then each of her ankles were shackled to opposite sides of her bed during the final stages of birth. The doctor stated that Shawanna had arrived to the hospital too late to receive an epidural.[5] Thus, she was “unable to move her legs or stretch ‘during the most painful and stressful’ part of [labor]” without any numbing aid.[6] The shackling led to Shawanna needing surgery and suffering from permanent physical and mental harm.[7]

Shawanna’s story is unfortunately not an isolated incident. Although no reliable or recent statistics exist to reflect the amount of incarcerated pregnant women,[8] statistics show that of the 231,000 women that are currently behind bars,[9] 75% of them are of reproductive age.[10] Similarly, there is no record of how many pregnant women are shackled during childbirth, but a 2018 study reveals that “82.9% of the group [subjects] with experiences caring for at least one incarcerated woman during pregnancy reported that shackles were used on the women sometimes to all of the time.”[11] An additional “12.3% reported that these women were always shackled.”[12] These subjects also reported that the most commonly cited justification for the shackling during childbirth was “adherence to a rule or protocol.”[13] Despite the fact that 67% of the subjects claim they advocate for shackle removal, more often than not, their pleas were denied by correctional officers.[14]

These shackling protocols that lead to situations such as Shawanna’s raise a slew of questions. If 92% of women are not incarcerated for violence related crimes,[15] then why are they being shackled during childbirth in the first place? Furthermore, is the shackling of incarcerated pregnant women constitutional at all?

II. Background


In December of 2018, President Donald Trump signed the First Step Act (“FSA”) which, amongst many things, prohibited restraints being placed on incarcerated pregnant women during pregnancy, labor, and postpartum recovery.[16] Although FSA was enacted with good intentions, FSA is not applicable in many cases. First, FSA only applies to federal prisons, not state prisons.[17] Second, FSA’s ban on the shackling of incarcerated pregnant women excludes situations in which the woman is an unreasonable flight risk or public safety threat.[18] Thus, shackling is still permitted, and the decisions are left to prison guards, not medical experts. [19]  

B. State laws involving the shackling of incarcerated pregnant women

Only three states, New York, Illinois, and California, have passed legislation that completely bans the shackling of incarcerated pregnant women.[20] Twenty-four other states have passed legislation limiting the use of shackling incarcerated pregnant women, but still grant correction officials broad discretion in deciding whether to shackle or not.[21]

C. Constitutional concerns with shackling incarcerated pregnant women

The Eighth Amendment prohibits the government from imposing “cruel and unusual punishment.”[22] Although the drafters’ primary concern was to prohibit “torture(s)” and “‘barbarous’ methods of punishment,” courts have held that the Eighth Amendment “embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency.’”[23] Therefore, Eighth Amendment violations occur when punishments are incompatible with human decency and regress from the maturity of society by causing an unnecessary infliction of pain.[24]

i. Furman v. Georgia: outlining the standard for “cruel and unusual punishment”

In Furman, three men on death row (one convicted of murder, and two convicted of rape) filed suit against the state of Georgia contending that the death penalty was “cruel and unusual punishment.”[25] The Supreme Court held that when the death penalty is applied in a manner that disproportionately harms minorities, it is unconstitutional as a punishment.[26]

Justice Brennan, concurring, outlined four factors to determine whether punishment is “cruel and unusual.”[27] First, a punishment may not be “so severe” that it degrades human dignity.[28] Second, a punishment may not be arbitrary, meaning a state may not, without reason, inflict a severe punishment on some individuals and not others.[29] Third, a punishment may not be “unacceptable to contemporary society.”[30] This factor is not measured by availability, but by amount of use.[31] Finally, a punishment may not be unnecessary.[32]

ii. The constitutional right to medical care

“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.”[33] Because the Supreme Court has held that incarcerated individuals have a right to medical care, a deliberate indifference to incarcerated individuals’ medical needs is a constitutional violation.[34]  “Pain and suffering” caused by the “denial of medical care” would not “serve any penological purpose.”[35]

iii. Hope v. Pelzer and Nelson v. Correctional Medical Services

In 1995, an incarcerated individual in an Alabama prison was handcuffed to a hitching post on two separate occasions.[36] On one occasion, he was handcuffed above shoulder height for seven hours without bathroom breaks.[37]  The handcuffs cut into his wrists as he tried to adjust positions for better circulation and comfort.[38]

The Supreme Court held that the prison guards violated the incarcerated individual’s Eighth Amendment rights as the guards “knowingly subjected him to a substantial risk of physical harm, unnecessary pain . . . and particular discomfort and humiliation” despite a “clear lack of emergency.”[39]

Although the Supreme Court has never addressed the constitutionality of shackling incarcerated pregnant women, federal courts, such as the Eighth Circuit in Nelson, have held such an act to be “cruel and unusual punishment.”[40]

In Nelson (case facts discussed in the introduction), the Eighth Circuit held that in order to prove an Eighth Amendment violation occurred, a plaintiff must successfully prove both an objective and subjective component.[41] First, a plaintiff must prove that a serious medical need or substantial risk to their health or safety existed.[42] Second, a plaintiff must prove that the officer in question had knowledge of such medical need or risk to health or safety and chose disregard it.[43]

A medical expert testified that shackling women during labor is objectively “‘inherently dangerous to both the mother and the unborn fetus’ and that it may interfere with the response required ‘to avoid potentially life-threatening emergencies for both the mother and the unborn fetus.’”[44] Additionally, a jury could reasonably conclude that the prison guard had knowledge that the shackles interfered with the woman’s medical care because medical personnel had requested the shackles be taken off. Thus, the Eighth Circuit found that the woman’s Eighth Amendment rights had been violated.

However, the Eighth Circuit and other courts have argued that “the right to be free from shackling during labor is not unqualified.”[45] For example, if a woman is considered to be a “flight risk,” then shackling is accepted as necessary to prevent security concerns.[46]

III. Discussion

A. Shackling is unconstitutional under the Eighth Amendment

When analyzing whether shackling is “cruel and unusual punishment” under Justice Brennan’s four factors in Furman, shackling is indeed “cruel and unusual punishment.” First, shackling is degrading to human dignity. In Hope, the Supreme Court found that a man chained to a pole without being given bathroom breaks was violating the “dignity of man.”[47] Much of the degradation to human dignity was due to the humiliation from being denied toilet access.[48] This exact form of degradation, and more is caused by shackling during childbirth. In Nelson, the shackled pregnant woman soiled herself and the hospital bed sheets because she was not unshackled to use the bathroom.[49] In general, many women describe vaginal exams and childbirth to be humiliating.[50] Women giving birth are naked. They soil themselves. Their genitals rip.[51] They are in immense pain. Further degradation does not need to be added to an already humiliating experience for women.

Second, shackling is arbitrary. Nurses have claimed that shackling practices and procedures differ based on which officer is on duty.[52] “[W]omen are left at the mercy of their guards.”[53] If a guard determines a woman should be shackled during labor, then she is shackled.[54] This discretion allows for, among many things, racial disproportionality.[55] Guards are not making decisions about which women are shackled based upon prior history of violence or escape attempts, but rather, guards are making decisions about whether the women seem “aggressive” and “dangerous” in the moment.[56] Both terms are racially biased leading to racial subjugation.[57]

Third, shackling is unacceptable to society. The rejection of shackling incarcerated pregnant women during labor is widespread amongst the medical and legal communities.[58] The American College of Obstetricians and Gynecologists, the American Medical Association, and the American Public Health Association publicly oppose shackling during childbirth.[59] In fact, the American College of Obstetricians and Gynecologists has written a letter in support of efforts to pass federal legislation that would ban the shackling of incarcerated pregnant women during labor because shackling “reduces a physician’s ability to properly assess the patient and fetus and unnecessarily complicates labor and childbirth.”[60] Additionally, several federal courts have found shackling, in many circumstances, to be “obvious cruelty.”[61]

Finally, shackling is unnecessary for numerous reasons. National medical associations such as the American Public Health Association, have directly stated that the shackling of pregnant women is “unnecessary and dangerous.”[62] It is primarily unnecessary because women actively in labor cannot escape past armed guards in or directly outside of the delivery room.[63] In fact, there are no current instances of incarcerated pregnant women escaping during labor.[64] Furthermore, the vast majority of incarcerated women were not convicted of violent crimes that make them unsafe to society to begin with.[65] Most incarcerated women were convicted of crimes that pose a “low security risk.”[66]

B. Shackling violates the constitutionally guaranteed level of medical care

Many federal courts that have analyzed shackling cases have focused on whether shackling is an Eighth Amendment violation. However, shackling likely also deprives incarcerated pregnant women of their constitutional right to a guaranteed level of medical care granted in Estelle.

Shackling an incarcerated pregnant woman to a hospital bed during childbirth constitutes a deliberate indifference to the woman’s medical needs.[67] Not only does chaining a woman’s arms and legs during labor exacerbate the pain of childbirth, but shackling also has the potential to create serious harm to the mother and baby. In Nelson alone, shackling caused a pregnant woman to suffer from a permanent hip injury, torn stomach muscles, an umbilical hernia requiring surgery, and sciatic nerve damage.[68] Other potential medical issues caused by shackling include life-threatening embolic complications, emergency caesarian section, blood clots, hemorrhage, hip dislocation, depression, and post-traumatic stress disorder.[69] Shackling also “obstructs detection of pregnancy complications.”[70] In Estelle, the Supreme Court held that even just delaying or inhibiting an incarcerated individual’s access to proper medical care is cruel and unusual punishment. Therefore, prison guards’ enforcement of shackling a woman during childbirth, preventing detection of medical problems and causing further health issues, is a violation of a woman’s constitutional right to medical care.

C. Shackling incarcerated pregnant women during birth for any reason is unconstitutional

The U.S. Equal Employment Opportunity Commission has declared pregnancy and childbirth to be serious medical conditions.[71] And, as the Supreme Court held in Estelle, the failure to provide medical care to an incarcerated individual’s medical needs is a constitutional violation.[72] Because shackling prevents the detection of serious medical issues and causes further medical harm, shackling violates the Eighth Amendment.

In Nelson, the Eighth Circuit validated shackling pregnant women for security interests.[73] However, a security interest should never exist when a pregnant woman is in labor. There is simply “no competing institutional need or penological interest served by the practice” as women in labor do not present a flight risk.[74] Many women, such as the woman in Nelson, cannot walk during labor, let alone escape from prison guards and nurses who are not in labor. Therefore, the policy reasons supporting the shackling of pregnant women during labor do not actually even exist.

Although there may be a legitimate reason to restrain a woman during labor if she is a risk to herself or the baby, such a situation is rare. If this concern remains, legislation could be passed to only permit shackling in such a case, however, the legislation should not limit shackling to incarcerated women, but rather any woman who is a risk to herself or the baby.

IV. Conclusion

The act of shackling incarcerated pregnant women violated the Eighth Amendment right to be protected from “cruel and unusual punishment” and the constitutional right to a guaranteed standard of medical care. Shackling is degrading, arbitrary, unacceptable to society, and unnecessary for security interests. Additionally, shackling prevents the detection of serious labor complications and causes further harm to the mother and baby during childbirth.

Although the First Step Act made strides to protect women from shackling during childbirth, the Act only applies to federal prisons, and the Act provides for broad and vague exceptions left up to the discretion of prison guards. Such discretion leads to harmful racial biases that contribute to the maintenance of systematic racism in the criminal legal system.

[1] Shackling pregnant inmates is still a practice in many states, CBS News (March 13, 2019)

[2] Nakea Barksdale, Does Shackling Incarcerated Women During Childbirth Violate the Eighth Amendment?, ABA (April 27, 2020)

[3] Nelson v. Correctional Medical Services, 583 F.3d 522, 525 (8th Cir. 2009).

[4] Id.

[5] Id. at 526.

[6] Id.

[7] Id.

[8] Lorie S. Goshin, et. al., Perinatal Nurses’ Experiences With and Knowledge of the Care of Incarcerated Women During Pregnancy and the Postpartum Period, 48 J Obstet Gynecol Neonatal Nurs., 27, 28 (Jan. 2019).

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Words From Prison – Did You Know . . . ?, ACLU, (last visited Apr. 18, 2021) (stating also that most women are incarcerated due to illegal drug use ,and the root cause behind women using illegal drugs is violence against women. Statistics show that 70% of women being treated for substance abuse are survivors of violence).

[16] Anjana Samant, The First Step Act Is a Small Step for Incarcerated Women, ACLU (Dec. 27, 2018)

[17]Rachel D. Cohen, Federal Legislation Seeks Ban on Shackling of Pregnant Inmates, NPR (Dec. 5, 2018)

[18] Harvard Law Development, Barbaric Beyond Bans: How the First Step Act’s Shackling Provisions Fails to Protect Women, Harvard Civil Liberties L. Rev., (Feb. 2019)

[19] International Human’s Right Clinic, et. al., The Shackling of Incarcerated Pregnant Women: A Human Rights Violation Committed Regularly in the United States, USHRN, 229, 243 (Aug. 2013).

[20] Dana L. Sichel, Giving Birth in Shackles: A Constitutional and Human Rights Violation, 16 J. of Gender, Social Policy, and the Law, 223, 228 (2008).

[21] supra note 19 at 243.

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

[23] Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citing

[24] Id. at 102-3.

[25] Furman v. Georgia, 408 U.S. 238, 239 (1972).

[26] Id. at 249-50.

[27] Id. at

[28] Id. at 271.

[29] Id. at 274.

[30] Id. at 277.

[31] Id. at 279.

[32] Id.

[33] Turner v. Safley, 482 U.S. 78, 84 (1987).

[34] Estelle, 429 U.S. 97 at 104.

[35] Id. at 103-4.

[36] Hope v. Pelzer, 536 U.S. 730, 730 (2002).

[37] Id.

[38] Id.

[39] Id. at 731.

[40] See Nelson, 583 F.3d 522 (8th Cir. 2009); Women Prisoners of D.C. Department of Corrections v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994); Villegas v. Metropolitan Government of Nashville, 709 F.3d 563 (6th Cir. 2013).

[41] Nelson, 583 F.3dat 522.

[42] Id. at 529.

[43] Id.

[44] Id.

[45] Villegas, 709 F.3d at 574.

[46] Nelson, 583 F.3d at 534.

[47] Hope, 536 U.S. at 738.

[48] Id. (citing Austin v. Hopper, 15 F.Supp.2d 1210, 1246 (1998)).

[49] Betsy Swan, It’s Time to Stop the Horror of Shackled Births, Daily Beast (Apr. 14, 2017)

[50] Sara Cohen Shabot, Why ‘normal’ feels so bad: violence and vaginal examinations during labour – a (feminist) phenomenology, Sage, 1, 14 (Apr. 28, 2020).

[51] Natalia Price, A third or fourth-degree tear during childbirth, Oxford University Hospitals (June 2015)

[52] Tonya M. Williams, SPARK Reproductive Justice NOW, Giving Birth Behind Bars: A Guide to Achieving Reproductive Justice for Incarcerated Women, 1, 2 (2011).

[53] Negar Mortazavi, An Illegal and Inhuman Practice: We Must Stop Shackling of Pregnant Incarcerated Women, Huff Post. (Mar. 14, 2014)

[54] Id.

[55] Clarissa Hamlin, Why Battle To End Shackling Of Pregnant Women In Prison Should Take Center Stage, News One (May 11, 2018)

[56] Priscilla A. Ocen, Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners, 100 California L. Rev.,  1239, 1282 (2012).

[57] Id. at 1310.

[58] Leonie Stoute, Break Every Chain: Bringing an End to the Unconstitutional Shackling of Pregnant Inmates, 60 Howard L. J., 749, 771 (2017).

[59] Restrictions on Shackling Pregnant People in Correctional Facilities, Planned Parenthood, (last visited Apr. 7, 2021).

[60] Ginette Ferszt, PhD, RN, PMHCNS-BC, Giving Birth in Shackles, 110 Am. J. of Nursing, 11, 11 (Feb. 2010).

[61] Nelson, 583 F.3d at 534.

[62] Stoute, supra note 48 at 771.

[63] Id. at 772.

[64] Id.

[65] Id.

[66] Id.

[67] Claire Louise Griggs, Birthing Barbarism: The Unconstitutionality of Shackling Pregnant Prisoners, 20 American University Journal of Gender Social Policy and Law, 247, 257 (2011).

[68] Nelson, 583 F.3d at 526.

[69] Danielle Dallaire, PhD, et. al., Shackling Pregnant Women Poses Risks to Mother and Fetus, Psychology Benefits Society (Dec. 29, 2015); Priya Vedula, Shackling: The Story of Incarcerated Pregnant Women, Loma Linda University Health (June 18, 2018)

[70] Safe Pregnancy for Incarcerated Women, Lift Louisiana, (last visited Apr. 7, 2021).

[71] See U.S. Equal Emp’t Opportunity Comm’n., Fact Sheet: The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 (July 6, 2000)

[72] Estelle, 429 U.S. 97 at 104.

[73] Nelson, 583 F.3d at 530-31.

[74] Claire Louise Griggs, Birthing Barbarism: The Unconstitutionality of Shackling Pregnant Prisoners, 20 American University Journal of Gender Social Policy and Law, 247, 259 (2011).

Kentucky Senate Bill 211 and Free Speech

Photo by Evershot on Unsplash

Bennett Herbert, Associate Member, Cincinnati School of Law Review

I. Introduction

In response to the protests and civil unrest seen around the United States in 2020, several states have proposed new laws to crack down on anti-police protests. In September of 2020, Governor Ron DeSantis of Florida proposed legislation to enhance criminal sanctions for those arrested at a protest.[1] The following month, Nebraska Senator Tom Brewer proposed a bill that would bar anyone arrested at a protest from being eligible for bail.[2] In January of 2021, Indiana introduced a bill that would create new penalties for merely funding a protest.[3]

In January of 2021 alone, twelve different states proposed new laws that target protests.[4] While the constitutionality of many of these bills is up for debate, perhaps the most troublesome is Kentucky Senate Bill 211 (“the Bill”). If enacted, this law would criminalize the act of taunting or insulting a police officer with certain offensive words or gestures.[5] This proposal raises paramount freedom of speech issues, and there is ample case law to evaluate the chances of whether such a provision would be ruled constitutional.

Part II of this article will provide a factual and legal background to the Bill’s creation. Part III of this article will describe the Bill’s supporters’ and critics’ arguments before evaluating its constitutionality. Part IV of this article will forecast the expected future of the Bill.

II. Background

The police killing of Louisville native Breonna Taylor sparked protests across Kentucky and around the nation,[6] and the reaction to them help explain why the Bill was created. Additionally, from decades-old cases from the Supreme Court to recent decisions in Kentucky’s own Sixth Circuit Court of Appeals, there is voluminous case law analyzing freedom of speech issues with respect to challenging law enforcement with words or gestures. These cases provide insight into Kentucky Senate Bill 211’s constitutionality.

A. Factual Background

On March 13, 2020, Louisville police officers shot blindly into Breonna Taylor’s apartment while executing a no-knock warrant as part of a drug dealing investigation.[7] Taylor was shot five times, received no medical attention for at least twenty minutes, and passed away at the scene.[8] No drugs were found in her apartment.[9] Louisville saw over 100 consecutive days of protestors demanding the officers involved be fired and criminally charged.[10] Some protests were accompanied by vandalism and looting, and over 500 protestors were arrested.[11] A grand jury brought no charges for the killing, and prosecutors said the officers were justified in using force to defend themselves.[12] This resulted in a resurgence of protests in Louisville.[13]

In January of 2021, Kentucky lawmakers introduced Kentucky Senate Bill 211.[14] The Bill would increase the penalties for rioting, ensure that police maintain funding, and criminalize pointing a light or noise-making device at an officer.[15] The Bill’s most controversial provision would make it illegal for someone to “[a]ccost, insult, taunt, or challenge a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.”[16] Such a crime would be punishable by up to 90 days in prison and $250 in fines.[17]

On March 11, 2021, the Bill passed the Kentucky Senate by a vote of 22-11.[18] Six Republicans joined five Democrats in voting against the Bill, and no Democrats voted for it.[19] The House of Representatives failed to bring the Bill up for a vote in the 2021 session.[20] Senator Danny Carroll said he would reintroduce the Bill next session, which begins January 2022.[21]

B. Legal Background

In Chaplinsky v. New Hampshire, 62 S. Ct. 766 (1942), the Supreme Court ruled that certain “fighting words” were exempt from First Amendment’s protection.[22] Walter Chaplinsky was a Jehovah’s Witness passing out pamphlets and calling organized religion a “racket.”[23] After a large crowd formed around Chaplinsky, an officer took him to police headquarters.[24] There, Chaplinsky called the town marshal a “racketeer” and a “fascist.”[25] For this, Chaplinsky was convicted under a New Hampshire statute that prohibited intentionally offensive speech directed at others in a public place.[26] The Supreme Court upheld the conviction, explaining that sanctions on some specific, narrow classes of speech do not raise constitutional issues, including “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.”[27]

Forty-five years later, the Supreme Court ruled in Houston v. Hill, 482 U.S. 451, (1987), that verbally criticizing and challenging a police officer constitutes protected free speech.[28] In an attempt to divert attention from his friend, Raymond Hill shouted at two Houston police officers.[29] Hill was arrested for “willfully… interrupting a city policeman… by verbal challenge during an investigation” in violation of a city ordinance.[30] Hill brought a lawsuit to challenge the ordinance’s constitutionality.[31] The Court struck down the ordinance, reasoning that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”[32] Further, the Court ruled, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”[33]

Kentucky is covered by the Sixth Circuit, which ruled in Cruise-Gulyas v. Minard that raising a middle finger to a police officer was protected by the First Amendment.[34] In that case, a Michigan police officer pulled over Debra Cruise-Gulyas for speeding, and then wrote her a lesser ticket for a non-moving violation.[35] As she drove away, Cruise-Gulyas raised her middle finger to the officer.[36] In response, the officer pulled her over again and upgraded her ticket to a speeding violation.[37] The Sixth Circuit ruled that Cruise-Gulyas’s gesture was protected speech, explaining, “Any reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”[38] The court further ruled that the officer’s act to stop Cruise-Gulyas a second time was “[a] cognizable, and clear, violation of her speech rights.”[39]

Similarly, in Swartz v. Insogna, the Second Circuit ruled that giving a police officer the middle finger could not be the basis for suspicion of criminal activity.[40] John Swartz gave a New York police officer the middle finger from the passenger seat as his wife drove by legally.[41] The officer followed the car, claiming he was worried that the driver could be in trouble, and that this suspicion was based solely on Swartz’s gesture.[42] After a brief exchange, the officer ultimately arrested Swartz for disorderly conduct.[43] The Second Circuit vacated the district court’s dismissal of Swartz’s lawsuit, reasoning, “This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation of impending criminal activity.”[44]

III. Discussion

Supporters of Kentucky Senate Bill 211 champion its increased protections of police officers from bad actors. Opponents of the Bill criticize it for violating the First Amendment with overly broad language. Ultimately, courts are likely to rule the Bill unconstitutional based on judicial precedent.

A. Supporters’ Case for Kentucky Senate Bill 211

Senator Danny Carroll, a retired police officer, said the disrespect he has witnessed compelled him to endorse the Bill. He said, “It’s meant to protect the officers, because in those situations, when you’ve got someone that’s right up in your face, yelling in your face, waving their arms, calling you every name that you can think of … they have no ability to protect themselves.”[45] Carroll also noted the Bill would protect Kentucky officers from foreign visitors, saying “I want them to know that the welcome mat is no longer out in Kentucky for you to come into our commonwealth, to terrorize our people, to destroy our city, to assault our people.”[46] The Kentucky State Fraternal Order of Police supports the bill “because of the protections it offers the community and the public safety professionals who are sworn to protect it.[47]

B. Opponents’ Criticisms of Kentucky Senate Bill 211

Critics of the Bill believe its overbroad language violates the First Amendment.[48] Even Republicans expressed this concern, like Senator Julie Raque Adams, who said the provision is “crafted too broadly, I believe, to make this bill constitutional.”[49] Corey Shapiro of the American Civil Liberties Union of Kentucky argued the Bill was not only unconstitutional, but also racially biased. “This bill is going to disproportionately impact communities of color,” Shapiro said.[50]

Senator Carroll has defended the Bill’s constitutionality, arguing that it falls under the “fighting words” doctrine of Chaplinsky.[51] “This bill is not meant to stifle the emotion… If I thought this was a violation of freedom of speech or the First Amendment, I never would have filed the bill.”[52] Further, Senator Carroll has argued the Bill will not punish peaceful protestors, but only criminals. “This is not about lawful protest in any way, shape, form or fashion. This country was built on lawful protest, and it’s something that we must maintain—our citizens’ right to do so. What this deals with are those who cross the line and commit criminal acts.”[53]

C. The Constitutionality of Kentucky Senate Bill 211

Because of Kentucky Senate Bill 211’s overly broad language, and the existing case law providing precedent, it is likely unconstitutional for violating the First Amendment.

By criminalizing offensive words and gestures that have a “tendency to provoke a violent response from the perspective of a reasonable and prudent person,” the Bill leaves room for charging individuals for language that is not harmful, but merely offensive. This could include calling officers names or giving them the middle finger. The Sixth Circuit ruled in Cruise-Gulyas v. Minard that any reasonable officer would know an individual raising her middle finger is acting with protected free speech.[54] Defenders of the Bill might argue that flippant name-calling or a middle finger do not rise to the level to provoke a reasonable person to violence, but this is exactly where the Bill’s broad language is a weakness. Certain words and gestures might tend to spur one reasonable officer to respond violently, but a different, equally reasonable officer could not be so offended, and it is impossible for an actor to know where that line falls for the officer they are directing their insult. As University of Kentucky law professor Cortney Loller explained:

“The average person will not necessarily know what words a police officer will find so offensive as to lead the officer to have a violent response. The officer does not have to be harmed in any way by the words or actions; they just have to find the words or gestures provoking enough that it causes them to react violently, whether the officer actually responds violently or not.”[55]

Because merely offensive words can fall under the language of the Bill, it can therefore prohibit speech that is protected by the First Amendment, and is thus overbroad.

Senator Carroll’s argument that the Bill’s language is constitutional under the “fighting words” doctrine will likely fail. Because the language of the Bill does not specify its scope to cover speech that is lewd and obscene, profane, or “fighting words,” it is not narrowly crafted to fit into any of the exceptions carved out in Chaplinsky v. New Hampshire. In that case, the Court explained that the types of speech that were not protected “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[56] The Court decided that the First Amendment did not protect Chaplinsky’s words because they were of little social value. Since that ruling, the Court has made clear in Hill v. Houston and other cases that civilians’ right to insult or challenge law enforcement is of paramount social value, not only to the individual, but to the ideals of a free society. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”[57] This holding distinguishes the social value of challenging or insulting law enforcement from the social value of Chaplinsky’s words. Therefore, the act of challenging or insulting law enforcement does not fall within the “fighting words” doctrine.

Supporters of the Bill could argue that for certain verbal challenges—particularly those that could provoke violence in a reasonable person—the costs of abusive words that could provoke violence outweigh the social benefits of allowing opposition to police action, and thus are not afforded protection under the First Amendment. However, it is more likely the Bill would be used to target protestors more than it would protect law enforcement. Many protests involve chants that criticize law enforcement, occasionally with foul language.[58] Based on the language of the Bill, these chants could warrant mass arrests of all the peaceful demonstrators involved. According to a Washington Post study, 96.3% of Black Lives Matters demonstrations involved no property damage or police injuries.[59] This is largely because attacking people and destroying property is already illegal.[60]

The Bill’s sponsors might argue that the purpose of the Bill is not to protect officers from harmless words, but ensure they can do their job without being provoked to act out. But police officers, perhaps more than anyone, should be charged with not reacting to insulting words with violence. Unlike the statute in Chaplinsky, which generally criminalized words directed at anyone,[61] the Bill only criminalizes speech directed at law enforcement. Protecting the freedom to challenge police officers and preserving public safety are not mutually exclusive, and by broadly criminalizing taunts directed at law enforcement, Kentucky Senate Bill 211 destroys the former without improving the latter.

IV. Conclusion

After the civil unrest of 2020, several states have a clear mission to counteract protestors by preventing them from operating with the same levels of freedom. While some of these measures are legal or at least ambiguous, Kentucky Senate Bill 211 is plainly unconstitutional due to its broad language that violates the First Amendment. If Senator Carroll wants the Bill to be upheld by the courts, he will need to at the very least significantly narrow its language to explicitly define what speech it is criminalizing. However, due to the judicial weight of cases like Hill v. Houston and Cruise-Gulyas v. Minard, the Bill’s only chance at survival might be entirely striking the provision that criminalizes taunting an officer. As Senator David Yates humorously yet acutely said when criticizing the Bill, “I don’t believe any of my good officers are going to provoke a violent response because someone does a ‘yo mama’ joke or whatnot.”[62]

[1] C.J. Ciaramella, Kentucky Bill Would Make Insulting a Cop a Crime, reason (March 5, 2021),

[2] Paul Hammel, Nebraska lawmakers propose bill to crack down on violent protests, omaha world herald (Oct. 28, 2020),

[3] Anti-Protest Laws in the United States, first amendment watch (April 3, 2021),

[4] Id.

[5] Ciaramella, supra note 1.

[6] Amanda Woods, Two Louisville detectives fired in connection to Breonna Taylor Shooting, ny post (Jan. 6, 2021),

[7] Richard A. Oppel Jr. & Derrick Bryson Taylor, and Nicholas Bogel-Burroughs, What to Know About Breonna Taylor’s Death, the new york times (Jan. 6, 2021),,injustice%20in%20the%20United%20States.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Chloe Atkins and Dennis Romero, Lousivlle march for second night after Breonna Taylor grand jury decision, nbc news (Sep. 24, 2020),

[14]  Ciaramella, supra note 1.

[15] Kentucky Senate passes bill making it crime to taunt a police officer. It was proposed in wake of Breonna Taylor Protests, cbs news (March 12, 2021),

[16] Ciaramella, supra note 1.

[17] Id.

[18] cbs news, supra note 15.

[19] Marcus Green, Kentucky Senate approves bill making it a crime to taunt, insult police officers, wdrb (March 12, 2021),

[20] Mary Ellen Cagnassola, Kentucky Bill Prompted by Breonna Taylor Protests on Hold Until 2022, newsweek (March 23, 2021),

[21] Id.

[22] Chaplinsky v. New Hampshire, 62 S. Ct. 766 (1942).

[23] Id. at 768.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at 769.

[28] Houston v. Hill, 482 U.S. 451 (1987).

[29] Id. at 453.

[30] Id. at 454.

[31] Id. at 455.

[32] Id. at 461.

[33] Id. at 462.

[34] Cruise-Gulyas v. Minard, 918 F.3d 494, 495 (6th Cir. 2019).

[35] Id.

[36] Id.

[37] Id. at 496.

[38] Id. at 497.

[39] Id. at 498.

[40] Swartz v. Insogna, 704 F.3d 105, 108 (2nd Cir. 2013).

[41] Id.

[42] Id.

[43] Id.

[44] Id. at 110.

[45] Marquis Francis, Kentucky Republican defends controversial bill that outlaws insulting police, msn (March 24, 2021),

[46] Id.

[47] Green, supra note 19.

[48] Id.

[49] Id.

[50] Id.

[51] Cagnassola, supra note 20.

[52] Francis, supra note 45.

[53] Ciaramella, supra note 1.

[54] Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019).

[55] Francis, supra note 45.

[56] Chaplinsky v. New Hampshire, 62 S. Ct. 766, 769 (1942).

[57] Houston v. Hill, 482 U.S. 451, 462 (1987).          

[58] Tyler Pratt, “F the Police:” Debate over chants at Black Lives Matter protests reveals divide in Allentown City Council, npr (Aug. 6, 2020),

[59] Erika Chanoweth, This summer’s Black Lives Matter protests were overwhelmingly peaceful, our research finds, washington post (Oct. 16, 2020),

[60] Green, supra note 19.

[61] Chaplinsky v. New Hampshire, 62 S. Ct. 766, 769 (1942).

[62] Francis, supra note 45.

Making the Case for Ending Cash Bail

Photo by Pepi Stojanovski on Unsplash

Margo McGehee, Associate Member, University of Cincinnati Law Review

I. Introduction

A cornerstone of the American criminal justice system is that those accused of crimes are innocent until proven guilty. However, three out of five people in U.S. jails today have not been convicted of a crime, amounting to nearly half a million people behind bars who are still presumed innocent.[1] Today, most jurisdictions operate on a cash bail system where the court requires a defendant to pay a sum of money up front to secure their release from detention.[2] The court’s increased use of cash bail and defendants’ inability to pay has led in part to the staggering growth of pretrial detentions.[3]

Bail reform movements are not new in the U.S. but have gained steam in recent years as the cash bail system’s inequalities and injustices have become more apparent. In February, Illinois succeeded in ending its cash bail system, reopening the debate of what role, if any, cash bail should play in the criminal justice system.[4] Bail reform advocates argue that the cash bail system disproportionately affects low-income people and women, leads to unjust outcomes and post-detention disparities for defendants, and has little effect on whether a defendant will return for court appearances or reoffend pretrial. Part II of this article will overview the cash bail system and introduce recent bail reform measures. Part III will discuss the cash bail system’s negative implications and why the United States should end the practice. Part IV offers alternatives to the cash bail system.

II. Background

A. How Bail Works

After a law enforcement officer arrests an individual, the defendant ordinarily stands before a judge within 24 hours.[5] Judges then have the discretion to decide whether to release the defendant with an order to return for all court appearances, detain the defendant in jail until a trial verdict or plea deal is reached, or choose the middle path of setting bail.[6] By selecting this middle path, Judges allow the defendant to remain free for their case’s duration but use the bail money as collateral to ensure that the defendant satisfies the court’s requirements, such as returning for all court appearances. The defendant is typically required to produce the bail amount immediately, and if the defendant meets the court’s requirements, the court returns the bail money to the defendant at the end of the case.[7]

The Eighth Amendment to the U.S. Constitution protects against excessive bail.[8] However, even reasonable bail amounts may be too high for a low-income defendant to pay. Those who cannot afford bail must either remain in jail for the duration of their case or solicit the help of a commercial bondsman. Commercial bondsmen agree to be responsible for the defendant’s bail obligation in exchange for a nonrefundable “bond premium” that is typically 10 to 15 percent of the bond amount.[9] The bondsman keeps this premium regardless of the outcome of the case to compensate for risk.[10]

B. Recent Bail Reform Measures

In February 2021, Illinois became the first state to categorically end cash bail practice through the Illinois Pre-Trial Fairness Act.[11] The Act is a comprehensive collection of criminal justice reforms sponsored by a caucus of Black Illinois lawmakers galvanized in part by George Floyd’s death and the summer 2020 protest movement.[12] This Act takes substantial steps toward dismantling systemic racism in the criminal justice system and prevents judges from setting any kind of bail for an individual charged with a crime.[13] Under the new system, judges must consider evidence surrounding the defendant and circumstances to determine what level of risk, if any, the defendant poses to the community and whether the defendant is likely to return for court appearances.[14] The judge must then determine whether to keep the defendant in jail or release them without bail.[15] The new system will not go into effect until January 2023, giving Illinois court officials time to prepare for and implement the new system.[16]

In January of 2020, the Supreme Court of Ohio proposed changes to Criminal Rule 46, including reform measures targeting Ohio’s cash bail system, which went into effect on July 1, 2020.[17] The amendments require courts to release defendants “on the least restrictive conditions” that ensure the defendant appears in court and the community will be safe.[18] Additionally, the amendments require that any financial conditions placed on a defendant’s release be of the type and amount that are least costly to the defendant while still ensuring that court and community interests are met.[19] Significantly, the Supreme Court justices excluded language from the amendments that would have required courts to utilize “risk assessment” tools—formulas or algorithms synthesizing historical crime data to predict a defendant’s likelihood of returning for court appearances or reoffending pretrial—as these tools have been closely tied to racial disparities in the criminal justice system.[20]

Numerous other states have taken steps to reform the cash bail system, though not all have succeeded. California unsuccessfully sought to end cash bail statewide during the 2020 general election, sending bail reform advocates back to the drawing board.[21]

III. Discussion

The most vocal criticism of cash bail is that it disproportionately affects low-income people and leads to unneeded imprisonment. Courts typically set cash bail without considering a defendant’s ability to pay, meaning that even relatively low bail amounts could leave defendants in jail due to their inability to pay.[22] A 2016 analysis of New York City’s use of cash bail found that even when courts set bail at $500 or less, 40 percent of defendants remained in jail until the end of their case.[23] This example illustrates the impact disposable income has on an individual’s freedom—$500 is a nominal amount for many but may be an unattainable amount for low-income individuals who have no choice but to stay in detention until the resolution of their case.

Further, low-income defendants have fewer resources to handle the socioeconomic shocks of pretrial detention. These individuals are more likely to have jobs paid at an hourly rate, meaning that detention for any amount of time could lead to lost income or even job loss.[24] This also leads to the risk of long-term unemployment or underemployment after release as the stigma of detention, along with lost education or training opportunities, significantly limits job options and lifetime earnings.[25] The socioeconomic impact of pretrial detention may also affect a detainee’s family and children, contributing to the cycle of poverty. Research shows that parents’ imprisonment leads to negative outcomes for their children, including an increased propensity for violence, decreased school attendance, and increased anxiety and depression.[26]

Pretrial detention also increases the likelihood that a defendant facing minor charges will accept a plea deal regardless of their actual guilt or innocence. For misdemeanor charges, defendants can often plead guilty, and the court will release them from detention based on time served. This option is disproportionately exercised by low-income individuals, especially women, as it is often the fastest way to be released from jail and get back to work, children, and other obligations. However, guilty pleas perpetuate many of these socioeconomic concerns as an individual’s criminal record may detrimentally impact current or future job prospects and custody disputes.

Studies also show that people who spend time in pretrial detention receive harsher sentences than those who spend the pretrial period outside of detention.[27] A study conducted by the New York City Criminal Justice Agency showed that non-felony conviction rates increased from 50 percent to 92 percent for those detained pretrial.[28] The study also showed that the rate jumped from 59 percent to 85 percent for felony cases.[29] One possible explanation for this disparity is that pretrial release allows defendants to show the court that they can “behave responsibly” by working, supporting their families, and contributing positively to their community, which can result in more lenient outcomes.[30] Individuals detained pretrial are not afforded this opportunity.

Additionally, pretrial detention increases the likelihood of being charged with a new crime in the future, further perpetuating a cycle of crime and poverty for low-income individuals. A Kentucky study found that individuals held in detention for their entire pretrial period were 1.3 times more likely to be arrested on new charges in the future than individuals released at some point pending trial.[31] Pretrial detention disrupts and damages interpersonal relationships and community ties, which help protect against future crime and increase the risk of job loss and unemployment.[32]

Finally, after considering the detrimental impact pretrial detention has on individuals charged with even minor misdemeanors, studies have shown no statistically significant difference in court appearance rates or public safety outcomes between people who paid money for their release and similarly situated individuals who did not.[33] Without clear evidence that cash bail is necessary to keep communities safe and ensure that defendants appear for court dates, it is unclear what purpose the cash bail system serves.

IV. Alternative to Cash Bail

If the cash bail system’s purpose is to ensure that criminal defendants show up for their court appearances and keep communities safe from potentially dangerous individuals, then courts can realize this purpose in alternative ways. One potential alternative is for courts to better utilize supervised release programs and other pretrial supervision services. In March of 2016, New York City implemented a citywide supervised release program resembling parole.[34] In lieu of detaining an individual who cannot afford bail, judges may let an individual leave detention on the condition that they meet consistently with a social worker and maintain regular phone contact with that person until their case is resolved.[35] New Jersey implemented a similar program in 2017 and saw a 20 percent reduction in its jail population.[36] 95 percent of defendants in New Jersey were released pretrial, and 89 percent appeared for their trial date, further illustrating that cash bail is not necessary to ensure that defendants appear for court dates.[37]

Another option is for courts to order defendants accused of drug and substance abuse-related crimes to enroll in drug treatment programs. Detainment does little to address the underlying causes of the defendant’s alleged criminal behavior and only threatens to exacerbate those underlying issues for defendants facing substance abuse problems. Treatment programs offer better resources than individuals would receive in jail and keep the community safe from further substance-related criminal activity.

Courts could also implement unsecured bond systems. Defendants would not be required to pay bond money up front, but would be expected to pay the money at a later date if they fail to meet any of the court’s stipulations, such as failure to appear for all court hearings.[38] This system helps solve the problems of the current cash bail system as anyone, regardless of income level, would have a viable option to leave jail, and it further incentivizes individuals to appear for court and disincentivizes pretrial criminal activity.

As jurisdictions and courts decide how to confront the issue of bail reform, they must be wary of utilizing risk assessment technology as an alternative, as this technology opens a Pandora’s box of additional issues. On the surface, prediction tools are seemingly useful to help courts discern which criminal defendants are low risk offenders for release.[39] However, this technology relies on prior criminal history and regional crime statistics riddled with racial and socioeconomic biases, leading to unjust outcomes.[40] Ohio specifically declined to include the use of risk assessment technology in the state’s bail reform amendments, and other states should refrain from implementing similar programs, as well.

V. Conclusion

When asked about his thoughts on cash bail reform and pretrial detention, the former chief judge of New York State’s highest court stated, “[w]hether you’re in jail for three days, three weeks, three months or three years, it’s an accelerator of human misery. . . . [y]ou come out a changed human being.”[41] Inability to afford even the most reasonable bail should not alone subject an individual to the detrimental impacts of detention. The cash bail system disproportionately affects low-income individuals. It exacerbates challenges they and their families already face, despite the fact that an individual’s ability to front bail money has little impact on whether the individual is a risk to the community or the court. States should follow Illinois’ example and end the practice of cash bail in favor of more effective and equitable systems.[42]

[1] Lea Hunter, What You Need To Know About Ending Cash Bail, Center for American Progress (Mar. 16, 2020),

[2] Id.

[3] Leon Digard and Elizabeth Swavola, Justice Denied: The Harmful and Lasting Effects of Pretrial Detention, Vera Institute of Justice (Apr. 2019).

[4] Maria Cramer, Illinois Becomes First State to Eliminate Cash Bail, N.Y. Times (Feb. 23, 2021),

[5] Alex Traub, How Does Bail Work, and Why Do People Want to Get Rid of It?, N.Y. Times (Jan. 11, 2019),

[6] Id.

[7] Id.

[8] U.S. Const. amend. VIII.

[9] Adureh Onyekwere, How Cash Bail Works, Brennan Center (Feb. 24, 2021),

[10] Traub, supra note 5.

[11] Cheryl Corley, Illinois Becomes 1st State To Eliminate Cash Bail, NPR (Feb. 22, 2021),

[12] Cramer, supra note 4.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Balancing Bail Reform, Ohio State Bar Association (Mar. 24, 2020)

[18] Id.

[19] Id.

[20] Id.; Hunter, supra note 1.

[21] Jason Pohl, California’s far-left activists shocked they beat Prop. 25. What’s the future of bail now?, The Sacramento Bee (Nov. 6, 2020),

[22] Digard and Swavola, supra note 3, at 6.

[23] Id. at 7.

[24] The Socioeconomic Impact of Pretrial Detention: A Global Campaign for Pretrial Justice Report, Open Society Justice Initiative (Feb. 2011),

[25] Id. at 22.

[26] Id. at 25.

[27] Digard and Swavola, supra note 3, at 5.

[28] Udi Ofer, We Can’t End Mass Incarceration Without Ending Money Bail, ACLU (Dec. 11, 2017),

[29] Id.

[30] Digard and Swavola, supra note 3, at 5.

[31] Id. at 6.

[32] Id.

[33] Id. at 2.

[34] Traub, supra note 5.

[35] Id.

[36] Hunter, supra note 1.

[37] Id.

[38] Digard and Swavola, supra note 3, at 8.

[39] Bernard E. Harcourt, Risk as a Proxy for Race, University of Chicago Public Law & Legal Theory Working Paper 323 (2010).

[40] Id.

[41] Traub, supra note 5.


“Scrubbers:” A New Hope for Defamation Plaintiffs?

Photo by Glenn Carstens-Peters on Unsplash

Matthew Marino, Associate Member, University of Cincinnati Law Review

I. Introduction

Today, Internet users can quickly obtain massive amounts of information online, influencing and informing their views on individuals, politicians, and other organizations. Because of wide public access to the Internet, people who publish damaging content on the internet can cause others serious reputation damage. Internet platforms like Google and Facebook must collaborate with “scrubbers” to self-regulate their users, removing false, dated, or defamatory information for users with genuine complaints that their reputation was damaged. This article defines “scrubbers” as private entities hired to legally petition Internet platforms for the removal of false reputation-damaging content about their clients from the internet. This article argues that scrubbers should be employed to address the many elaborate concerns of defamation plaintiffs.     

II. Background

A. Scrubbers in Current Form

Some lawyers have recently entered the business of scrubbing, helping clients remove their criminal records for crimes that were later dismissed.[1] The Internet provides easy access to criminal background reports.[2] Because criminal background checks have become customary in hiring practices,[3] past criminals are more likely to be prejudiced against in employment.[4] Some Internet platforms, like Google, fail to remove past arrest reports for crimes that were later dismissed.[5] Because employers have easy access to past arrest reports through various background check programs,[6] and criminal background checks have become customary in most hiring practices,[7] failure to remove the content may lead to the loss of employment opportunities. As a result, lawyers have recently begun specializing in advising or suing Internet platforms to remove erroneous arrest reports.[8]

Because scrubbers already exist to facilitate clients in the removal of past arrest reports, this article will focus instead on the potential for scrubbers to facilitate the scrubbing of defamatory content off the Internet, working with platforms like Google and Facebook to regulate user activity on the Internet. The remainder of this section will provide a brief overview of defamation law to set the context for how scrubbers could play a role in moderating Internet content to protect defamation plaintiffs.

B. Defamation

Defamation refers to speech that is a false statement, presented as a fact, conveyed to at least one other person, where the speaker was at least negligent in disregarding the conveyed information’s probable falsity, causing damage or harm to the plaintiff.[9] Because defamatory information is false and harmful, it falls outside the scope of speech protected under the First Amendment of the United States Constitution.[10] Therefore, both federal and state laws allow plaintiffs to sue for defamation.[11] However, there are substantial limitations to plaintiffs’ abilities to recover in defamation lawsuits.

1. Defamation under Federal Law

Speech about public officials, such as political officeholders, and/or public figures, such as celebrities or noteworthy media personalities, usually involve matters of public concern due to the high visibility and notoriety of public figures and officials.[12] Federal law accordingly holds plaintiffs who are public officials or public figures to stringent standards to recover for defamation.[13]

In New York Times Co. v. Sullivan, the Supreme Court held that when defamation plaintiffs are public figures, and the speech in question involves a matter of public concern, they must prove the defendant(s) acted with actual malice in publishing or communicating the defamatory information.[14] Actual malice requires proof that the defendant conveyed the defamatory information with knowledge of its falsity or reckless disregard for whether or not it was false.[15] Actual malice is difficult for plaintiffs to demonstrate because it requires proof the defendant had doubts about the truth or falsity of the information before publishing or communicating it, and there is usually no evidence to prove this.[16] However, the more stringent standard encourages other media and news agencies to freely publish information concerning matters of public importance without the fear of a defamation lawsuit,[17] so long as they do not intentionally or recklessly disregard the truth of information they publish.

Conversely, private individuals can bring federal defamation lawsuits more easily. Unlike public figures, private individuals have less access to the media, where defamatory remarks can be more easily contested.[18] Also, unlike public figures, private individuals do not assume the increased risk of defamation because they have not willingly entered the scope of public debate.[19] Therefore, where defamation plaintiffs are private individuals rather than public figures, and the speech is not about a matter of public concern, federal law requires only a showing only that the defendant was negligent in disregarding whether or not the conveyed information was true or false for a defamation plaintiff to prevail.[20]

2. Defamation under State Law

In most states, where defamation litigation mainly occurs, individuals have a cause of action for defamation if they can prove: (1) a false statement purporting to be fact; (2) was conveyed to someone else; (3) causing damage or harm to the plaintiff; (4) with fault amounting to at least negligence.[21] States vary slightly in how they draft and apply defamation statutes.[22] Both federal and state defamation, however, require some false statement purporting to be fact that damages another’s reputation.

III. Analysis

When individuals, politicians, or companies become the target of defamatory content, they have a few options.[23] They can contact the publisher of the defamatory content directly, but usually receive no response.[24] Next, they can contact the Internet platform, like Facebook or Google, and request they take down the content.[25] In the ideal case, the platform will remove or redact some of the content, but many larger platforms have automatic refusal notices until a court order is obtained to have the content removed.[26] Therefore, bringing a defamation lawsuit may be required, to which there are many practical roadblocks.

1. The Plight of Defamation Plaintiffs

Plaintiffs encounter many practical challenges in defamation lawsuits. Firstly, statements purported to be fact, which fall under the scope of defamation liability, can be difficult to distinguish from opinions, which fall outside the scope of defamation liability.[27] For instance, “John is mean” can be read as both a statement of fact and opinion. John could be objectively mean to everyone, or John could be mean only in the eyes of the individual speaker.

Secondly, defamation plaintiffs may be motivated by their desire to vindicate the truth, rather than money damages.[28] Proving actual damages or harm may be difficult when the plaintiff has not suffered much financial or emotional harm.[29] However, even without proof of actual damages or harm, individuals subject to defamatory content still suffer from reputation damage among their peers. 

Thirdly, defamation plaintiffs must anticipate the defendant’s activation of an anti-SLAPP statute, which are state laws providing defendants the power to initiate SLAPPbacks to commenced defamation litigation, which refer to early motions to dismiss the lawsuit or a separate lawsuit filed against the plaintiff for malicious prosecution.[30]

The extra hurdles associated with bringing a defamation lawsuit make it more difficult for defamation plaintiffs to prevail.[31] However, a more stringent standards for plaintiffs to prevail in defamation actions encourages individuals and the media to speak freely and openly about issues of public importance, as it reduces the possibility they will be sued for defamation.[32] The threat of defamation lawsuits may “chill” individuals or other media organizations into silence for fear of defamation litigation.[33] Therefore, the weight of free speech values is often heavily stacked against defamation plaintiffs.

2. Could Scrubbers be a New Hope for Defamation Plaintiffs?

Although the U.S. Constitution restricts the government from doing certain things, such as restricting protected speech under the First Amendment,[34] it does not restrict private individuals from restricting speech.[35] Platforms like Facebook and Google are private companies and can therefore remove content from their platforms at will.[36] Scrubbers should work with platforms and facilitate the removal of defamatory content from Internet platforms. Scrubbers could charge fees to would-be defamation plaintiffs to facilitate removal of the damaging content. 

However, absent court orders, many large Internet platforms send automatic denial responses to requests for the removal of defamatory content.[37] This may suggest that scrubbers would not be able to petition Internet platforms for the removal of content absent judicial intervention, subjecting scrubbers to the practical constraints associated with pleading a successful defamation case in order to obtain a court order for removal of the content. However, there is public pressure on Internet platforms, like Google and Facebook, to moderate content more closely,[38] suggesting Internet platforms may welcome the idea of scrubbers to satisfy obligations to their users. Further, there has been large bipartisan support for expanding the liability of Internet platforms for content published by individual users,[39] suggesting that many people may warmly welcome alternative means, such as scrubbers, to moderate harmful internet content.   

IV. Conclusion

Although scrubbers have only been employed so far to facilitate the removal of criminal arrest reports from the Internet that should have been removed, the Internet’s growth as an outlet for publishing damaging content suggests the breadth of “scrubbing” may soon expand into a method for the technology industry to self-regulate. Internet platforms can and should collaborate with scrubbers to identify and remove harmful, reputation-damaging content for clients with genuine claims of reputation damage, but without the resources or desire to bring a time-consuming and expensive defamation lawsuit.

[1] See Mark Sherman, Making Progress in Scrubbing the Internet & Removing Your Connecticut Online Arrest Report, The L. Off of Mike Sherman,; See Allan F. Friedman, Cleaning Your Criminal Arrest Record off the Internet, Allan F. Friedman: Criminal Lawyer,

[2] See Andrea Collatz, Where To Get a Background Check for Employment, TransUnion (Jan. 23, 2020),

[3] Conducting Background Investigations and Reference Checks, SHRM,

[4] Eric Westervelt & Barbara Brosher, Scrubbing The Past To Give Those With A Criminal Record A Second Chance, NPR (Feb. 19, 2019)

[5] Sherman, supra at note 1.

[6] See Collatz, supra at note 2.

[7] Supra at note 3.

[8] See supra at note 1.

[9] Defamation, Legal Info. Inst.,

[10] Stephen J. Wermiel, The Ongoing Challenge to Define Free Speech, Am. Bar. Assoc.,

[11] David L. Hudson Jr., Libel and Slander, The First Amend. Encyclopedia (May 14, 2020),,fact%20that%20harm%20another’s%20reputation.&text=The%20First%20Amendment%20rights%20of,on%20issues%20of%20public%20concern.

[12] Id.

[13] Id.

[14] 376 U.S. 254, 279-80 (1964).

[15] Id.

[16] Stephen Wermiel, Actual Malice, The First Amend Encyclopedia (2009),

[17] Hudson, supra at note 11. 

[18] Gertz v. Robert Welch,418 U.S. 323M 338-39 (1974).

[19] Id.  

[20] Id. at 350

[21] Defamation, Legal Info. Inst.,

[22] Id.

[23] Christine Rafin, Esq., Article: An Attorney’s Advice for Removing Negative, Defamatory and Infringing Material from the Internet, Reputation Communications (Nov. 30, 2020),

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] See Donald B. Kaufman, You Are The Victim of Defamation: Should You Sue?, McNees (Aug. 24, 2016),

[29] See Amir Tikriti, Calculating Damages in a Defamation Case, AllLaw,

[30] Rafin, supra at note 22.

[31] Hudson, supra at note 11.

[32] See Id.

[33] Id.

[34] U.S. Const. amend. I; U.S. Const. amend IV. 

[35] See Id.

[36] Brent Skorup, ISPs have a First Amendment right to block content, Plain Text (Nov. 17, 2015),

[37] Rafin, supra at note 22.

[38] Neville L. Johnson et al., Defamation and Invasion of Privacy in the Internet Age, 25 Sw. J. INT’l L. 9, 29-30 (2019). See Kevin Heaphy, California Holds That Internet Service Providers, Such as Yelp, Can Disobey Orders to Remove Defamatory Posts – So How Can Companies Remove False Reviews From The Internet?, The Ntl. L. Rev. (Feb. 15, 2019),

[39] See Johnson et al., supra at note 37.

Game Over: Copyright Issues in the Modern Video Game Landscape

Photo by Aleks Dorohovich on Unsplash

Bennett Herbert, Associate Member, University of Cincinnati Law Review

I. Introduction

With the rise of online capabilities, video games have progressed far beyond the isolated and indoor subculture they used to be. Video games now provide an interactive virtual community and a booming business that is part artistic expression, part sporting competition, and part massive entertainment.[1] Some prominent gamers have become bona fide celebrities, like Tyler Blevins, or “Ninja,” who made $500,000 per month in 2018.[2]

This elevated exposure brings legal questions for the creators of games and consoles. For decades, consoles have been modified (“modded”) to give users capabilities further than the creator intended.[3] Some modifications are non-infringing, while others are explicitly infringe on the author’s intellectual property,[4] and it has not been easy for courts to discern. Copyright issues amongst online tournaments have caused some companies to send cease-and-desist orders to prevent the competitions from taking place.[5] Online streaming sites like Twitch have allowed gamers to connect with millions,[6] but bring issues with respect to music copyrights.[7]

Part II will provide a background to the technical and legal progression of modding, online tournaments that video game companies have shut down, and the copyright issues of streaming sites. Part III will recommend solutions to the global split in how modding is enforced, explain why video game corporations might benefit from not always seeking to protect their copyrights, and how streaming sites can protect artists’ copyrights without harming the users’ experience.

II. Background

In 1996, the World Intellectual Property Organization (“WIPO”) signed the “internet treaties,” including a provision prohibiting illegal circumvention.[8] Later, Congress amended the DMCA to give authors more copyright protection.[9] United States v. Reichert 747 F.3d 445 (6th Cir. 2014) is a case from the Sixth Circuit that examines enforcing the DMCA on those who modify consoles,[10] and C-355/12 Nintendo Co. Ltd. and Others v. PC Box Srl and 9Net Srl 2014 E.C.R. is a case from the European Court of Justice to contrast the American and European approach.[11] Video game companies have shut down online competitions over copyright issues, leading to a riff in their relationship with fans.[12] Streaming services have created a new set of intellectual property issues for video game companies, users, and third parties.[13]

A. Technological Circumvention

Technological protection measures (“TPMs”) are technologies used to control or restrict access to digital content or electronic devices.[14] TPMs limit the functionality of a device or program to a particular use, thus protecting copyrights by preventing unauthorized duplication and/or access.[15] This is a useful way for authors to protect their creations, but overly restrictive TPMs can interfere with consumers’ ability to use the technology in other, legal ways.[16] As a result, the legality of technology created to circumvent TPMs is a gray area.

In gaming, TPM circumvention most often comes in the form of modification chips (“mod chips”).[17] These computer chips are installed into a console to enhance its capabilities or add to its functionalities.[18] Some enhancements are illegal infringement, such as allowing the user to play unauthorized copies of video games, while others are legitimate and non-infringing, such as backing up copies of legally purchased video games, fixing bugs in failing consoles, or allowing a console to play DVDs that it otherwise could not.[19] Because mod chips can serve both non-infringing and infringing purposes, it is not always easy to determine their legal status. 

B. WIPO Internet Treaties and Subsequent Legislation

In 1996, the WIPO Copyright Treaty (“WCT”) and WIPO Performances and Phonograms Treaty (“WPPT”) were adopted by the member states of WIPO.[20] Known together as the “internet treaties,” these agreements provided copyright protection in response to advances in information technology.[21] The agreements included a prohibition of circumventing TPM’s.[22]

In 1998, Congress enacted the DMCA to implement the “internet treaties.”[23] The DMCA contains a provision that prohibits circumvention and the trafficking of circumventing technologies.[24] To prevent adversely punishing non-infringing uses of circumvention, several exceptions have been added.[25] While some courts like the Sixth Circuit have accounted for these exceptions,[26] others like the Ninth Circuit have treated the DMCA as a broad prohibition on circumvention as a whole, even those with an incidental relation to copyrighted works.[27]

C. United States v. Reichert

In United States v. Reichert, the Sixth Circuit analyzed whether someone who intentionally modded and sold a video game console, but was possibly unsure of whether such acts were illegal, was guilty of violating the DMCA.[28]

Jeffrey Reichert was convicted for trafficking a modified Nintendo Wii to a federal agent acting as a prospective customer.[29] Reichert installed a mod chip that allowed the Wii to play unauthorized video games and sold the Wii to the agent for a $50 profit.[30]

The Sixth Circuit affirmed Reichert’s conviction,[31] relying on Reichert’s own online postings — he knew his conduct was “a gray area” and that “we aren’t technically supposed to do it (mod consoles)” — to conclude that he was willful of his conduct and its illegal nature.[32]

D. Nintendo Co. Ltd. and Others v. PC Box Srl and 9Net Srl

In Nintendo Co. Ltd. and Others v. PC Box Srl and 9Net Srl, the European Court of Justice ruled that Article 6 of Directive 2001/29 of the European Parliament provided copyright protection to both video games and their consoles, and established a balancing act for evaluating when products that circumvent a console’s security measures constituted infringement.[33]

Nintendo sued PC Box for marketing Nintendo consoles with additional software that circumvented the console’s TPMs.[34] This software enabled use of unauthorized video games.[35]  PC Box argued the software was intended to enable the user to play MP3 files and movies on the console.[36] The lower court referred to the Court of Justice as to: (1) do the Article 6 protections provided for video games extended to video game consoles as well?; and (2) when considering a product whose purpose is to circumvent a TPM, what should a court should consider?[37]

The Court of Justice answered in the affirmative to the first query, explaining that it was paramount to video game authorship for protections to cover both video games and consoles.[38] As to the second question, the Court ruled that it was relevant to consider the relative costs that a particular TPM imposes on consumers, how effective the TPM is in protecting the owner’s intellectual property, the intended purpose of the circumventing technology, and evidence of how users are actually using the circumventing technology.[39]

E. Online Tournaments

The growth of competitive gaming or electronic sports (“eSports”) has led to a profitable marketing opportunity for video game companies,[40] but copyright issues have spurred cease-and-desist orders against some prominent tournaments.[41]

For decades, gamers have competed to determine who is the best player (and often for a cash prize).[42] These competitions have grown more popular, especially with online play allowing gamers to compete with opponents across the world from the comfort of their home.[43] Many video game companies have even partnered with professional gamers and eSport organizations,[44] providing the companies with a share of the revenue and/or greater marketability.[45]

In November of 2020, Nintendo sent a cease and desist to a Super Smash Bros. Melee (“Melee”) tournament known as Big House,[46] claiming that the use of a software program called Slippi infringed on Nintendo’s copyright.[47] Slippi is a program that allows users to play older games like Melee online.[48] Without Slippi or similar software, Melee can only be played in-person.[49] The tournament was cancelled and many fans were frustrated,[50] particularly because they felt that since Nintendo had not sold Melee since 2008, the company had little financial interest in the matter.[51] Some also noted that Slippi’s primary function was merely to make the game’s online play smoother, versus downloading illegal copies of games.[52]

F. Copyright Issues in Online Video Game Streaming

While streaming has increased gaming’s popularity and created groundbreaking avenues for the industry, it has brought copyright issues that involve vicarious liability for the site.[53]

A major reason gaming has increased so much in popularity lately is online streaming sites that allow users to stream what they are playing to viewers online.[54] The most popular of these sites, Twitch, saw 140 million unique monthly users in 2020.[55] This increased exposure has led to prominent gamers earning money, endorsements, and even becoming celebrities.[56]

In copyright law, vicarious liability applies when a party is liable for another’s infringement.[57] In order to be vicariously liable to infringement that occurred, a party must: (1) not be the party directly infringing; (2) have the right and ability to supervise the infringer(s); and (3) financially benefit from the infringement.[58] It is common for streamers to play music in the background. Over the last few years, various record companies and musical artists have threatened litigation against popular streamers for copyright infringement for using this music.[59] More significantly, some have threatened to sue Twitch for being vicariously liable for broadcasters’ conduct.[60] In response, Twitch deleted tens of thousands of videos from streamers’ profiles in October of 2020, without giving the users viable notice.[61] Streamers were upset with their inability to dispute the claims and criticized Twitch for its broad application of sanctions.[62]

II. Discussion

Given the growing popularity and technological advancements of the industry, the copyright issues in gaming are more likely to exacerbate than diminish. The language of the Internet treaties and DMCA is ambiguous, and until either is amended, American courts should approach enforcement of mod chips similarly to how the European Court of Justice has applied Article 6. For their part, video game corporations would benefit – both financially and in fans’ esteem – if they did not vehemently seek to protect their copyrights at every possible turn. Lastly, online streaming companies should creatively and proactively seek ways to protect third parties’ intellectual property, while simultaneously providing a convenient experience for users.

A. American Courts Interpretation of the DMCA with Respect to Modding

The United States and European Union typically see eye-to-eye on copyright issues.[63] However, as seen in United States v. Reichert and Nintendo v. PC Box, American courts have interpreted the circumvention prohibition in the DMCA differently than European courts have interpreted the Information Society Directive. This split in enforcement exists despite interpreting similar laws that were both enacted to enforce the same treaty. It is uncertain what to make of treaties like the WCT if economic powers cannot agree what the treaty requires of them.

Modding video game consoles can be used for illegal purposes, such as infringing on a creator’s copyright by allowing play of an unauthorized video game, or for legitimate, non-infringing purposes, such as allowing users to back up games they have legally purchased.[64] This conflict, combined with the DMCA’s ambiguous language, has caused different circuits to apply varying levels of sanctions to modding chips that circumvent video game consoles’ TPMs.[65]

International negotiators could recognize the split between American and Europeans courts. This could lead WIPO nations to adopting a new WCT provision that more explicitly directs how to enforce TPM circumvention. This language could include the balancing test of factors that the European court laid out in Nintendo v. PC Box.

If the WIPO nations do not reconcile this split, Congress can alleviate the disparity in American circuits by amending the DMCA to include more explicit language that guides courts to effectively protect authorship and permit benevolent circumvention. This could include more narrow language that reflects the European court’s considerations in Nintendo v. PC Box by: (1) regulating particular types of modding; (2) incorporating for factors that indicate whether a mod chip is used to infringe; and (3) accounting for the costs to users for different TPMs. Congress can amend the DMCA in a similar way it did with the Unlocking Consumer Choice and Wireless Competition Act. In 2014, Congress passed that act to carve an exception to make it legal for users to circumvent their cell phone carriers’ locks when changing carriers.[66] This allowed users to change cell phone carriers without needing to buy a new cell phone.[67] Congress can carve out similarly explicit exceptions for mod chips that are primarily used for non-infringing purposes.

Until WIPO nations or Congress amend language to help alleviate the difference in enforcement, American courts should interpret the DMCA’s circumvention provisions in a similar way the European Court of Justice interpreted Article 6 in Nintendo v. PC Box. By carefully considering the breadth of a given console’s TPM, the intended purpose of a circumventing technology, and the evidence of how users are actually utilizing the mod chip, courts can protect authorship and encourage harmless modding in a more consistent manner.

B. Video Game Corporations Approach to Infringement in Online Competitions

The massive and increasing appeal of online video game competitions has provided video game companies with an opportunity for revenue and marketability that was not available to them in decades past.[68] In 2018, ESPN broadcast an eSport gaming tournament on primetime for the first time.[69] At its peak, the 2019 Big House tournament for Melee garnered over 85,000 simultaneous spectators.[70] However, corporations like Nintendo consistently shut down these opportunities at the first sign of modding that might infringe on their intellectual property.[71] They threaten legal action even when modding is the only way for the online tournament to operate, and even when the competition involves a video game that has not been in production for over ten years.[72] Nintendo’s actions have led to fans protesting and boycotting, and has prevented the eSports community from embracing Nintendo’s games.[73] Competitive gaming is one of the primary reasons Melee became a cult sensation in the mid-2000’s,[74] and Nintendo’s actions are all but ensuring the newer Ultimate will not reach the same level of popularity.

Video game companies should conduct a cost-benefit analysis shutting down these popular online tournaments that occasionally infringe on their copyrights. Doing so will likely reveal that the benefits of pursuing legal protection of their intellectual property in every online tournament that uses modding technology is outweighed by the benefits that will be obtained via revenue, marketing, and reputation through greater exposure in the eSports community.

C. Streaming Services Approach to Infringement

Online streaming sites like Twitch must balance the interests of avoiding vicarious liability from their users conduct, and allowing a convenient and appealing experience for users to comfortably create content. Doing so will take creative and proactive steps that go beyond simply mass-deleting thousands of videos every time a record company threatens litigation.

Twitch recently created a catalogue of music that is not copyright protected for users to choose from.[75] This effort could help alleviate the problem, but most streamers who still play music do not choose from this catalogue.[76] Taking this idea a step further will likely be needed to halt the barrage of threats from musical copyright holders. Twitch and similar sites should negotiate a license with music labels and artists, and then offer that licensure to its streamers. This would allow artists to be compensated from the users listening to their music on a stream, and allow Twitch streamers to comfortably play music without fear of having their video deleted.

Since any solution is unlikely to alleviate 100% of all copyright infringement that broadcasters conduct, it is also important for sites like Twitch to establish a process that regulates and reviews claims of copyright infringement with more nuance and due process. While the sweeping act of deleting thousands of videos at once will help prevent copyright infringement, it is an overbroad solution that is likely to inadvertently violate non-infringers freedom of speech. 

IV. Conclusion

Between the rise of modding, online gaming, and streaming, it was natural for Congress to better protect video game authors from copyright piracy. The DMCA has provided video game corporations greater copyright protection,[77] but the provision’s ambiguous language has led to confusion in the courtroom and over-regulation of benevolent modding.[78] Until international bodies agree on the WCT’s enforcement of circumvention technologies – or further amendments to the DMCA are made – American courts should interpret this issue with a similar approach as the European Court of Justice did in Nintendo v. PC Box. This will provide clarity among the circuit courts and prevent harmless modding from being punished.

For their part, video game companies could benefit financially and in reputation by lowering their guard and reducing how proactively they seek out legal action against any and all infringers. Streaming services such as Twitch must avoid vicarious liability by prohibiting its users from infringing on musical artists, but can do so without ruining the users’ experience by proactively seeking musical licenses and monitoring claims of infringement with greater nuance.

[1] Scott Alan Burroughs, A Twitch in Time: Legal Issues Catch Up With Popular Game-Broadcasting Platform, ABOVE THE LAW (Sep. 5, 2018),

[2] Id.

[3] United States v. Reichert, 747 F.3d 445, 456 (6th Cir. 2014).

[4] United States v. Reichert, 747 F.3d 445, 456 (6th Cir. 2014).

[5] Peter Morics, Nintendo Pulls the Plug On Massive Smash Bros Online Tournament, SCREENRANT (Nov. 19, 2020),

[6] Scott Alan Burroughs, A Twitch in Time: Legal Issues Catch Up With Popular Game-Broadcasting Platform, ABOVE THE LAW (Sep. 5, 2018),

[7] Id.

[8] S. Treaty Doc. No. 105-17 (1997); 2186 U.N.T.S. 203; 36 I.L.M. 76 (1997).

[9] United States v. Reichert, 747 F.3d 445, 448 (6th Cir. 2014).

[10] United States v. Reichert, 747 F.3d 445, 448 (6th Cir. 2014).

[11] C-355/12, Nintendo Co. Ltd. and Others v. PC Box Srl and 9Net Srl, 2014 E.C.R.

[12] Max Mastro, Nintendo Shuts Down Super Smash Bros. Ultimate College Tournament, SCREENRANT (Dec. 19, 2020),,game%20to%20enable%20online%20play.

[13] Banner Witcoff, Twitch Deletes Content for Copyright Infringement Without Warning, LEXOLOGY (Oct. 23, 2020),

[14] United States v. Reichert, 747 F.3d 445, 456 (6th Cir. 2014).

[15] United States v. Reichert, 747 F.3d 445, 456-457 (6th Cir. 2014).

[16] United States v. Reichert, 747 F.3d 445, 456-457 (6th Cir. 2014).

[17] United States v. Reichert, 747 F.3d 445, 459 (6th Cir. 2014).

[18] United States v. Reichert, 747 F.3d 445, 459 (6th Cir. 2014).

[19] United States v. Reichert, 747 F.3d 445, 459-460 (6th Cir. 2014).

[20] S. Treaty Doc. No. 105-17 (1997); 2186 U.N.T.S. 203; 36 I.L.M. 76 (1997).

[21] Id.

[22] Id.

[23] Digital Millennium Copyright Act (DMCA) (1996).

[24] Id.

[25] United States v. Reichert, 747 F.3d 445, 457 (6th Cir. 2014).

[26] Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1203 (6th Cir. 2004).

[27] MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 948 (9th Cir. 2010).

[28] United States v. Reichert, 747 F.3d 445, 448 (6th Cir. 2014).

[29] United States v. Reichert, 747 F.3d 445, 448 (6th Cir. 2014).

[30] United States v. Reichert, 747 F.3d 445, 448 (6th Cir. 2014).

[31] United States v. Reichert, 747 F.3d 445, 455 (6th Cir. 2014).

[32] United States v. Reichert, 747 F.3d 445, 452-453 (6th Cir. 2014).

[33] C-355/12, Nintendo Co. Ltd. and Others v. PC Box Srl and 9Net Srl, 2014 E.C.R.

[34] C-355/12, Nintendo Co. Ltd. and Others v. PC Box Srl and 9Net Srl, 2014 E.C.R., paragraph 66.

[35] C-355/12, Nintendo Co. Ltd. and Others v. PC Box Srl and 9Net Srl, 2014 E.C.R., paragraph 65.

[36] C-355/12, Nintendo Co. Ltd. and Others v. PC Box Srl and 9Net Srl, 2014 E.C.R, paragraph 68.

[37] C-355/12, Nintendo Co. Ltd. and Others v. PC Box Srl and 9Net Srl, 2014 E.C.R., paragraphs 71-73.

[38] C-355/12, Nintendo Co. Ltd. and Others v. PC Box Srl and 9Net Srl, 2014 E.C.R., paragraph 98.

[39] C-355/12, Nintendo Co. Ltd. and Others v. PC Box Srl and 9Net Srl, 2014 E.C.R., paragraph 99.

[40] Esports Continues to Lead Online Gaming Industry Growth, PR NEWSWIRE (Mar. 5, 2021),

[41] Peter Morics, Nintendo Pulls the Plug On Massive Smash Bros Online Tournament, SCREENRANT (Nov. 19, 2020),

[42] Esports Continues to Lead Online Gaming Industry Growth, PR NEWSWIRE (Mar. 5, 2021),

[43] Peter Morics, Nintendo Pulls the Plug On Massive Smash Bros Online Tournament, SCREENRANT (Nov. 19, 2020),

[44] Kevin Vanstone, Esports Platforms and Partnerships Enabling the Next Generation of Gamers, INN (Sep. 21, 2020),

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Scott Alan Burroughs, A Twitch in Time: Legal Issues Catch Up With Popular Game-Broadcasting Platform, ABOVE THE LAW (Sep. 5, 2018),

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id.

[61] Id.

[62] Id.

[63] Kinga Kijak-Markiewicz, Copyright Law: EU Countries vs. US, PHOTOCLAIM (Oct. 10, 2017),

[64] United States v. Reichert, 747 F.3d 445, 456 (6th Cir. 2014).

[65] United States v. Reichert, 747 F.3d 445, 456 (6th Cir. 2014).

[66] Julian Hattem, House Votes to Allow Cellphone ‘Unlocking,THE HILL (July 25, 2014),

[67] Id.

[68] Kevin Vanstone, Esports Platforms and Partnerships Enabling the Next Generation of Gamers, INN (Sep. 21, 2020),

[69] ESPN is going to air the first e-sports league final match ever in prime time, TECHNOLOGY REVIEW (July 12, 2020),

[70] The Big House 9 detailed viewer stats, ESPORTS CHARTS (July 7, 2019),

[71] Peter Morics, Nintendo Pulls the Plug On Massive Smash Bros Online Tournament, SCREENRANT (Nov. 19, 2020),

[72] It is worth noting one exception to the DMCA’s circumvention prohibition is to allow access to video games distributed on formats that have become obsolete.

[73] Max Mastro, Nintendo Shuts Down Super Smash Bros. Ultimate College Tournament, SCREENRANT (Dec. 19, 2020),,game%20to%20enable%20online%20play.

[74] Zane Bhansali, The Smash World Tour, boasting a $250,000 prize pool, wants to make Smash a tier one esport, THE WASHINGTON POST (March 12, 2020),

[75] Scott Alan Burroughs, A Twitch in Time: Legal Issues Catch Up With Popular Game-Broadcasting Platform, ABOVE THE LAW (Sep. 5, 2018),

[76] Id.

[77] United States v. Reichert, 747 F.3d 445, 455 (6th Cir. 2014).

[78]  United States v. Reichert, 747 F.3d 445, 457 (6th Cir. 2014).

I Have a Bone to Pick with The National Organ Transplant Act

Photo by Meta Zahren on Unsplash

Erica Anderson, Associate Member, University of Cincinnati Law Review

I. Introduction

Over 114,000 Americans are in need of an organ transplant to survive.[1] However, due to the lack of organ donations in America,[2] 20 of these people die every day.[3] Most of these people, approximately 100,000 of them, are desperately awaiting a kidney.[4] Another 12,000 are awaiting a liver.[5] Because these Americans cannot find donations, liver and kidney disease end up killing more Americans than Alzheimer’s, breast cancer, or prostate cancer.

In addition, 7,500 Americans are in vital need of bone marrow, and only 40% receive it,[6] meaning America watches 3,000 people in need of bone marrow die on its watch every year. [7] Many of these people cannot find donations because only 2% of Americans are registered on the national bone marrow donation registry,[8] and there is only a one in 430 chance that those 2% of people will actually ever donate.[9]

Yet, people and research organizations in need of other body parts, such as eggs, have no problem receiving the donations they need because no shortage of options exists. This lack of shortage is likely due to the fact that Americans can currently profit off of selling body parts such as hair,[10] sperm,[11] eggs,[12] plasma,[13] skin,[14] womb,[15] and even feces.[16]

Research demonstrates that financial incentives motivate people to donate organs.[17] Yet the organs needed to save lives, such as kidneys and bone marrow, are banned from financial compensation under the National Organ Transplant Act (“NOTA”). With a consequent 7,300 seemingly preventable deaths occurring each year, the question becomes—why should NOTA exist if lifting its compensation ban on organs would be life-saving?

II. Background

A. The National Organ Transplant Act of 1984

In 1983, an increasing demand for human organs, such as kidneys, led to a Virginia physician, Dr. H Barry Jacobs, founding the International Kidney Exchange.[18] This company was essentially a kidney market in which Dr. Jacobs was a broker.[19] Dr. Jacobs would find people interested in selling their kidneys and arrange for a sale to those in need of kidneys.[20] Kidney recipients would directly pay sellers up to $10,000, [21] and Dr. Jacobs would be paid commission amounting anywhere from $2,000 to $5,000.[22]

The National Kidney Foundation criticized Dr. Jacobs for planning to purchase kidneys from “underdeveloped countries” and making a “travesty of informed consent.”[23] Critics argued Dr. Jacob’s plans were “immoral and unethical” as they “introduce[ed] a temptation and bias of a cash award for consent.”[24]

The legislature quickly responded to these ethical concerns surrounding for-profit markets selling organs. Less than a year after the International Kidney Exchange’s formation, Congress passed NOTA which bans compensation for human organ donations.[25] NOTA’s main goals are to “prevent the human body from becoming a commodity” and “prevent unjust exploitation of the poor who may be willing to put their health at risk by selling their organs.”[26]

NOTA specifically bans “valuable consideration” in exchange for kidneys, livers, hearts, lungs, pancreases, bone marrow, corneas, eyes, bones, and skin or any subpart thereof.[27] The ban on “valuable consideration” does not include payments covering the surgery itself or the costs of travel, housing, and lost wages incurred by the donor,[28] but merely a profit from the organs themselves.[29] Penalties for violating NOTA can include up to a $50,000 fine or five years in prison.[30]

Congress specifically excluded the replenishable tissues of the body from NOTA because the risks involved in donating such tissues are not great enough to warrant a ban.[31] Replenishable tissues are tissues that are plentiful or renewable,[32] such as blood, hair, or sperm.[33] Bone marrow, when donated via peripheral blood stem cell apheresis, is considered replenishable, but its status under NOTA remains unclear. This issue was litigated in the Ninth Circuit case Flynn v. Holder.

B. Flynn v. Holder

When NOTA was created, bone marrow was extracted from bones via “aspiration” which was an invasive process requiring a large needle and anesthesia.[34] However, in the last 20 years, peripheral blood stem cell apheresis, a new technique allowing stem cells to be extracted from blood in donor’s veins, has been introduced and widely used.[35] This technique allows for quick regeneration of donated stem cells.[36]

A variety of plaintiffs, mostly comprised of patients in need of bone marrow, sued the Attorney General of the United States arguing that NOTA’s ban on financial incentives for bone marrow extracted via peripheral blood stem cell apheresis was unconstitutional under the Equal Protection Clause as NOTA allowed compensation for blood, sperm, and eggs, but not bone marrow.[37]

The government argued that the stem cells are a “subpart” of bone marrow and should qualify as a human organ under NOTA,[38] but the court held the government’s argument to be too far of a stretch.[39] If everything that comes from bone marrow had to be considered a “subpart” and qualify as a human organ banned from compensation, then even blood donors could not be compensated for blood donations.[40]

The Ninth Circuit ultimately held that NOTA did not ban compensation for bone marrow donations when donated through the peripheral blood stem cell apheresis as the donation is not a donation of a human organ.[41] NOTA does not criminalize the sale of blood or substances within blood. Since peripheral blood stem cell apheresis is merely the collection of peripheral blood stem cells within the blood, this type of bone marrow donation should not be criminalized.[42]

Critics such as the Department of Health and Human Services (HHS) argue the Ninth Circuit erred in its decision as it frustrated the legal purpose of NOTA. [43] Consequently, HHS proposed an amendment to NOTA that would change the definition of “human organ” to specifically include “hematopoietic stem cells (HSCs) within peripheral blood as a subpart to bone marrow.[44] Due to subsequent backlash, however, the HHS withdrew its proposed rule to “consider the issue further.”[45] Thus, the legality of compensating bone marrow donors via peripheral blood stem cell apheresis remains uncertain.

III. Discussion

The Ninth Circuit’s decision in Flynn sparked major controversy about which tissues and organs can be compensated for and which cannot. For example, some critics feared the decision would lead to a “slippery slope” in which individuals would be paid for other vital body parts.[46] “It could start with parts of organs like livers, which have cells that regenerate.”[47] Alternatively, other commentators praised the decision because “compensation [would] expand the donor pool by at least hundreds and potentially thousands each year.”[48]

The common underlying goal presented in NOTA is to prevent the exploitation of vulnerable populations and the body becoming a commodity. However, allowing organ sales would not actually lead to such issues, and NOTA is directly leading to the deaths of thousands of people in need of organs. As such, NOTA needs to be repealed, or at least amended to not only exclude optional tissues such as hair and sperm, but also vital organs necessary to life.

A. Allowing the sale of human organs will not exploit vulnerable populations

When Dr. Jacobs attempted to create a for-profit kidney market, oppositionists’ concerns were centered around the likelihood that compensation for organs would coerce vulnerable populations, such as low-income individuals, into risking their lives for money.[49] First, this belief is harmful to these groups as it implies that low-income people are irrational and incapable of weighing the pros and cons of organ donation.[50] Further, no one should be entitled to limit the bodily autonomy of low-income people merely because they are low-income.

Second, the compensation that sellers will receive will not be great enough to completely “override their doubts and ethical concerns about becoming a donor” if the state set a maximum price for organs or if the state compensates organ donors rather than allowing wealthy people to drive up the prices.[51] Although this limitation placed on who can buy organs would be a minor limitation on the property right to transfer (as will be discussed in section D), it is not a total ban as NOTA enforces now.

Third, historical demographics of people who sell their eggs demonstrate that economic coercion should not be a serious concern. The majority of people who sell their eggs are not low-income,[52] and the compensation is not an “undue inducement to undergo the medical risks involved.”[53] Most people who sell their eggs are offered around $5,000 to $10,000,[54] but advertisements have shown that they may receive up to $100,000.[55] If low-income people are not selling their eggs, which are considered replenishable, then they are unlikely to sell an irreplaceable organ for an equal or lesser compensation.

B. Allowing the sale of human organs will not place an unconscionable risk on organ sellers

Even in the unlikely case that people do feel coerced into selling their organs, the risks involved in the most common types of organ donation are extremely low. For example, the kidney donation mortality rate is approximately 0.03%,[56] and less than 1 in 10,000 bone marrow donors have fatal results.[57] Additionally, only 0.4% of kidney donors in America need a subsequent blood transfusion, 2.2% require re-admission to a hospital, and 0.5% need a second operation.[58] Kidney donors do experience a heightened risk for the development of diabetes, but the exact risk is unknown and believed to be low.[59] As for bone marrow donors, the most serious risk is associated with the anesthesia required for the surgery.[60] But, for those who donate via the peripheral blood stem cell donation technique, no anesthesia is required.[61] The most common side effects include muscle pain, headaches, and vomiting, which disappear within a couple of days.[62] Despite these statistics, if Congress remains concerned with potential organ sellers being placed at risk, it can simply require “improved screening and testing” to ensure organ sellers are healthy and not at a major risk of serious side effects.[63]

Moreover, Congress’ argument that an organ compensation ban prevents risks that may be placed on individuals enticed by the opportunity for payment is inconsistent with NOTA itself. NOTA allows the sale of eggs, and these sellers suffer greater risks than bone marrow donors do. People who sell their eggs are at risk of ovarian torsions, blood clots, loss of one or both ovaries, kidney failure, and strokes.[64] Although no one keeps track of the long-term health of sellers of eggs, there are also concerns involving sellers becoming infertile[65] or developing cancer, who had no family history of cancer.[66] Additionally, egg selling advertisements are most commonly represented on college campuses[67] and public transportation[68]—locations populated with low-income, unemployed students with thousands of dollars in loan debt and people who may not be able to afford their own transportation.

Society already financially incentivizes individuals to engage in risky, even fatal, behavior, yet does not view such incentivization as coercive. For example, coal miners, firefighters, and military personnel are all incentivized to sell their bodies to dangerous labor. These occupations can be fatal and reduce life spans, yet no one suggests that these occupations should be volunteer only.[69]

C. NOTA should be repealed, or at least amended to exclude bone marrow and kidneys

Because there is no evidence that NOTA is achieving Congress’ goals, NOTA should be repealed or at least amended to exclude bone marrow and kidneys. Bone marrow can be most properly compared to blood under NOTA. Both blood and bone marrow are renewable resources, their collection for donation is safe, and both possess life-saving abilities contrary to eggs and sperm which are merely life-creating.[70] Although some competition exists for blood recipients, bone marrow is scarce. The fight for bone marrow a much longer battle.[71] Thirty-five years ago, before the peripheral blood stem cell apheresis technique was available, bone marrow scarcity may have been associated with the procedure for extraction. Past donors had to be given anesthesia before a long, thick needle was inserted into the bone.[72] And, oftentimes, these donors experienced pain.[73] Now, the peripheral blood stem cell apheresis technique is available which does not require anesthesia, and only requires a thin IV to be placed into a vein in the arm.[74] There is no greater risk to extracting bone marrow than there is to extracting blood. Removing bone marrow from one of the organs banned from compensation by NOTA would stimulate the market for bone marrow, in turn saving lives, at no serious risk to donors.

Although kidneys are not replenishable, and the donation process is risker than the bone marrow donation process, the benefits to excluding kidneys from NOTA outweigh the risks. Because kidneys make up 80% of transplanted organs[75] and 5,000 Americans die every year awaiting a kidney, there are major benefits to the availability of more kidneys—more lives saved. The risks involved with kidney donation cannot possibly outweigh the benefits because the biological reality of kidneys are that humans are born with two, and only need one.[76] One single kidney, functioning anywhere above 75% can fully provide the body with all that the renal system requires for survival.[77] In fact, a single kidney can adapt to filter “just as much as two kidneys.”[78] The human body having a second kidney is merely a “biological insurance policy.”[79]

D. Ultimately, people should have property rights to their bodies

Typical characteristics of property include exclusion,[80] usage,[81] transferability,[82] destruction,[83] and possession.[84] Courts have held that an owner does not need all rights to be present to have property rights to something, but critics argue that the right to sell is “so important that its absence is sufficient to deny the label property.”[85] NOTA directly violates the right for a person to transfer their own organs. Such a violation is possible because, “historically, the rights in a living body have been viewed as a liberty interest, and not as property.”[86]

Nevertheless, some property interests are still present within that liberty interest. The right to possession is demonstrated by the constitutional amendment to prohibit slavery[87] in addition to criminal and tort laws allowing for damages in the case of false imprisonment.[88] The right to use is recognized by contract law through employment agreements in which individuals sell their body’s labor.[89] Finally, the right to exclude is portrayed through civil and criminal laws prohibiting battery.[90] These rights are not absolute, of course, as the state has found a compelling interest in limiting the right to use and exclude. For example, the government can force vaccination[91] and prohibit abortion at a certain fetal gestational stage.[92] The point of it all is—the government decides which property rights humans can possess in relation to their own bodies.

Currently, the government is limited in incentivizing the organ donations because the law does not recognize possessory property rights in human organs.[93] Reconstructing NOTA and other legislation to recognize tissues and organs as personal property would ensure that only the owner of the body “can weigh the risks versus the benefits, the pains versus the pleasures, entailed in deciding whether to . . . sell . . . one’s organs.”[94]

One of NOTA’s primary goals was to “prevent the human body from becoming a commodity.” Yet, the creation of a law that forbids organ sales paradoxically categorizes the human body as commerce under the control of congressional power that “would otherwise be subject to sale on the market.” [95] Further, Congress fails to recognize that human bodies are already treated as commodities. For example, Congress does not ban models from receiving payment to have pictures of their bodies taken or athletes from receiving salaries to put their bodies on the line in the name of sport. And yet, Congress has decided that selling one’s organs is somehow an impermissible means of commoditizing the body. In truth, Congress’ problem is not with the selling of one’s body, but only with the selling of one’s organs.

IV. Conclusion

Health care systems involved in organ transplantation receive substantial compensation for their services.[96] This compensation may very well be appropriate and deserved, but is it not an ethical red flag that the people whose organs are being removed and transplanted are the only individuals involved in the organ transplantation process to not receive compensation?[97]

Congress should grant individuals with property rights to their bodies, and repeal NOTA. At the very least, Congress should amend NOTA to exclude bone marrow and kidneys. Doing so would not exploit vulnerable populations. There is no evidence of such outcome with other organs which are legal to sell. Further, bone marrow and kidney donation medical procedures are not dangerous. NOTA is not protecting potential organ donors from any physical harm.

[1] American Transplant Foundation, Facts and Myths, (last visited Mar. 28, 2021).

[2] Id. (stating only about 6,000 living donations occur each year, and only one in four are unrelated to the recipient).

[3] Id.

[4] Adrianna Rodriguez, US discards thousands of donated kidneys each year as patients die on waitlist, study says, USA Today (Aug. 29, 2019)

[5] U.S. Department of Health & Human Services, National Data Overall by Organ, (March 25, 2021)

[6] Mary G. Vitale, National Organ Transplant Act’s Ban on Bone Marrow Donation Compensation: Legal Compensation To Create a Life, But Not To Save a Life,  85 St. John’s L. Rev., 1221, 1224 (2011).

[7] Bone Marrow Statistics, Inst. For Just.,  (last visited Mar. 10, 2021).

[8] Id.

[9] Be The Match, Likelihood you will donate bone marrow, (last visited Mar. 10, 2021).

[10] Jessica Contrera, Creepy or collectible? Why people spend thousands of dollars to buy celebrities’ hair, The Wash. Post (Feb. 21, 2016)

[11] Luke Winkie, Odd Job: Can a man earn a living on sperm donation alone? This guy did., Vox (May 21, 2019)

[12] Donna De La Cruz, Should young women sell their eggs?, N.Y. Times (Oct. 20, 2016)

[13] Zoe Greenberg, What Is the Blood of a Poor Person Worth?, N.Y. Times (Feb. 1, 2019)

[14] NBC News, $37,375 payday : That’s using your head! (Jan. 25, 2005)

[15] Christina Caron, Surrogacy is Complicated. Just Ask New York (Apr. 18, 2020) (stating 47 states permit paid surrogacy).

[16] Rachel Feltman, You can earn $13,000 a year selling your poop, The Wash. Post (Jan. 29, 2015)

[17] Thomas G. Peters, MD., et. al., Views of US Voters on Compensating Living Kidney Donors, 151 Jama Surg., 710, 715 (2016).

[18] Margaret Engel, Va. Doctor Plans Company to Arrange Sale of Human Kidneys, Wash. Post. (Sept. 19, 1983)

[19] Id.

[20] Id.

[21] Tom Kenworthy, Ban on Human Organ Sales Wins Support, Wash. Post. (Jan. 13, 1984)

[22] Engel, supra note 18.

[23] Walter Sullivan, Buying of Kidneys of Poor Attacked, N.Y. Times (Sept. 24, 1983)

[24] Id.

[25] 42 U.S.C. §274e

[26] Vitale, supra note 6 at 1227.

[27] 42 U.S.C. §274e(c)(1).

[28] 42 U.S.C. §274e(c)(2) (2016).

[29] Kristine D. Kuenzli, Is Your Kidney For Sale? An Economic And Policy Perspective On The Legalization Of A Living Kidney Vendor Program In The United States, 36 U. Pitt. L. Rev., 131, 135 (2018).

[30] 42 U.S.C. §274e(b).

[31] H.R. Rep. No. 98-1127, 16 (1984).

[32] John A. Robertson, Paid Organ Donations and the Constitutionality of the National Organ Transplant Act, 40 Hastings Const. L.Q., 221, 223 (2013).

[33] Mary Anderlik, Body Parts: Should They Be Kept Out of the Marketplace?, Health L. & Policy Inst., (last visited Mar. 28, 2021).

[34] Flynn v. Holder, 684 F.3d 852, 856 (9th Cir. 2012).

[35] Id. at 857.

[36] Id.

[37] Id. at 858.

[38] Id.

[39] Id. at 863.

[40] Id.

[41] Id. at 865.

[42] Id.

[43] 42 U.S.C. §274e(c)(1).

[44] Change to the Definition of “Human Organ” Under Section 301 of the National Organ Transplant Act of 1984, 78 Fed. Reg. 60,810, 60,811 (proposed Oct. 2, 2013)

[45] Change to the Definition of “Human Organ” Under Section 301 of the National Organ Transplant Act of 1984; Withdrawal, 83 Fed. Reg. 60,804, 60,804 (proposed Nov. 27, 2018).

[46] Adam Cohen, Should You Be Allowed to Sell Your Bone Marrow?, Time (Dec. 19, 2011)

[47] Id.

[48] Carol J. Williams, Pay ban on donor organs doesn’t include bone marrow, court says, L.A. Times (Dec. 2, 2011)

[49] Michele Goodwin, Confronting the Limits of Altrusim: A Response to Jake Linford, 2 St. Louis J. Health L. & Policy, 327, 328-29 (2009).m

[50] Margaret R. Sobota, The Price of Life: $50,000 for an Egg, Why Not $1,500 for a Kidney? An Argument to Establish a Market for Organ Procurement Similar to the Current Market for Human Egg Procurement, 82 Wash. U. L. Q., 1225, 1245 (2004).

[51] Id.

[52] Sara Krieger Kahan, Incentivizing Organ Donation: A Proposal to End the Organ Shortage, 38 Hofstra L. Rev., 757, 771 (2009).

[53] Margaret R. Sobota, The Price of Life: $50,000 for an Egg, Why Not $1,500 for a Kidney? An Argument to Establish a Market for Organ Procurement Similar to the Current Market for Human Egg Procurement, 82 Wash. U. L. Q., 1225, 1245-46 (2004).

[54] Emily Woodruff, ‘We simply don’t know’: Egg donors face uncertain long-term risks, STAT (Jan. 28, 2017)

[55] Stanford, What Are the Ethical Concerns Regarding Egg Donation?, (last visited Mar. 23, 2021).

[56] Kahan, supra note 52 at 775.

[57] Joerg Halter, et. al., Severe events in donors after allogeneic hematopoietic stem cell donation, Haematologica, 94, 96 (2009).

[58] Risks and Benefits of Living Kidney Donation, Weill Cornell Medicine, (last visited Mar. 24, 2021).

[59] See H.N. Ibrahim, et. al., Diabetes after Kidney Donation, 10 Am. J. Transplant 331 (Feb. 2010).

[60] Blood and bone marrow stem cell donation, Mayo Clinic (May 30, 2020)

[61] Id.

[62] Id.

[63] Anderlik, supra note 33.

[64] Donor Egg Risks & Complications, Egg Donor America

[65] Emily Woodruff, ‘We simply don’t know’: Egg donors face uncertain long-term risks , STAT (Jan. 28, 2017)

[66] Jane E. Brody, Do Egg Donors Face Long-Term Risks, N.Y. Times (July 10, 2017)

[67] Id.

[68] Bonnie Miller Rubin, The incredible, sellable egg, Chicago Tribune (Mar. 4, 2007)

[69] Russell Korobkin, Buying and Selling Human Tissues For Stem Cell Research, 49 Ariz. L. Rev.,  45, 54 (2007).

[70] Elizabeth Harrison, A Bone of Contention No More: Recognizing the Uniqueness of Bone Marrow to Implement a Useable Property Framework For Bone Marrow’s Ultimate Commodification, 95 Tul. L. Rev., 359, 378 (2021).

[71] Id.

[72] Blood and bone marrow stem cell donation, Mayo Clinic (May 30, 2020)

[73] Id.

[74] Peripheral blood stem cell donation, St. Jude Children’s Research Hospital, (last visited Mar. 24, 2021).

[75] Organs & Tissues for Transplants, Gift of Life Donor Program, (last visited Mar. 29, 2021).

[76] Kuenzli, supra note 29 at 144.

[77] Id.

[78] Id.

[79] Id.

[80] Thomas W. Merrill, Property and the Right to Exclude, 3 Brigham-Kanner Prop. Rts. Conf. J. 1, 3 (2014).

[81] Denise R. Johnson, Reflections On The Bundle Of Rights, 32 Vt. L. Rev., 247, 253 (2007).

[82] Lutz-Christian Wolff, The relationship between contract law and property law, 49 Common Law World Rev., 31, 31 (2020).

[83] Lior Strahilevitz, The Right to Destroy, 114 Yale L. J. 781, 794 (2005).

[84] Yun-chien Chang, The Problematic Concept of Possession in the DCFR: Lessons from Law and Economics of Possession, U. of Chi. Pub. L. & Legal Theory Paper Series, No. 567, 1, 4 (2016).

[85]  Erik S. Jaffe, “She’s Got Bette Davis[‘s] Eyes”: Assessing the Nonconsensual Removal of Cadaver Organs under the Taking and Due Process Clauses, 90 Colum. L. Rev.,  528, 551 (1990).

[86] Charles C. Dunham IV, “Body Property”: Challenging the Ethical Barriers in Organ Transplantation to Protect Individual Autonomy, 17 Annals Health L., 39, 51 (2008).

[87] U.S. Cons. Amend. XIII.

[88]  Legal Information Institute, False Imprisonment, (last visited Mar. 23, 2021).

[89] Jaffe, supra note 85 at 546.

[90] Legal Information Institute, Battery, (last visited Mar. 23, 2021).

[91] Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[92] Roe v. Wade, 410 U.S. 113 (1973).

[93] Alicia M. Markmann, Organ Donation: Increasing Donations While Honoring Our Longstanding Values, 24 Temp. J. Sci. Tech. & Envtl. L. 499, 501 (2005).

[94] President’s Council on Bioethics, Organ Transplantation: Ethical Dilemmas and Policy Choices (Jan. 2003)

[95] Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev., 359, 376 (2000).

[96] Hank Greely, My Comments on the HHS Notice of Proposed Rulemaking to Overturn Flynn v. Holder, SLS Law and Biosciences Blog (Dec. 2, 2013)

[97] Id.

Say Cheese: How Foreign Producers Can Learn From Gruyère’s Failed Journey to Protected Geographic Indication in the United States

Photo by Alexander Maasch on Unsplash

Bennett Herbert, Associate Member, University of Cincinnati Law Review

I. Introduction

Geographical indications (GI’s) are a subset of trademarks that have caused controversy in recent years.[1] Like standard trademarks, geographical indications are source identifiers that guarantee quality and are valuable business interests to those who hold them.[2] These often come in the form of specialized foods or drinks from regions throughout the world used in a compound form.[3] However, if applied too broadly, GI’s can provide unfair trade barriers to generic names that have become a part of the public domain.[4] The effort of Swiss and French associations to obtain protected geographical indications (PGI’s) for Gruyère cheese is a recent example of this debate.

Part II of this article gives a background to geographical indications and Gruyère cheese. Part III analyzes the difference between the American and European approaches to geographical indications and how foreign producers can learn from Gruyère to improve their chances of earning American geographic protection.

II. Background

Geographic indications are a controversial subset of trademarks that most often apply to specialized food or beverage products that are primarily grown or processed in one part of the world.[5] Gruyère cheese is one of the most recent examples of a food product seeking GI protection from various jurisdictions worldwide.[6]

A. Geographical Indications

A geographical indication is defined at Article 22(1) of the World Trade Organization’s (WTO) 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as “indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristics of the good is essentially attributable to its geographic origin.”[7]

Geographical indications serve the same functions as trademarks because, like trademarks, GIs are: (1) source-identifiers; (2) guarantees of quality; and (3) valuable business interests.[8] Most commonly, GI’s come in the form of a sign used on products with a specific geographic origin and possess qualities or a reputation due to that origin.[9] A mark must identify a product as originating in a given place to function as a geographical indicator.[10] The product’s characteristics or reputation should be largely due to the place of origin, and there should be a clear link between the product and its place of production.[11]

The most common GI’s are specialized foods or beverages produced, processed, or prepared in a specific location in the world.[12] Some of the most common GI’s include Champagne (sparkling wine from the Champagne region of France), Kalamata Olives (grown in a certain region of Greece), and Irish Whiskey.[13]

Protections for geographical indications are normally acquired with a right over the sign that constitutes the indication.[14] A geographical indication right enables the holder of the right to prevent its use by a third party whose product does not conform to the applicable standards.[15] However, GI’s do not allow the holder to prevent someone from making a product using the same techniques as those from the indication.[16]

B. Gruyère Cheese

Gruyère is a hard, yellow cheese that was historically produced in the valleys along Switzerland and France’s border.[17] It was most likely originally named after the town of Gruyères.[18] Gruyère is sweet but slightly salty, and its flavor varies widely with age.[19] Swiss Gruyère is the most popular Swiss cheese throughout most of Europe.[20] A special variety of Gruyère, called Le Gruyère Premier Cru, is the only cheese that has won the title of best cheese of the world at the World Cheese Awards four times, most recently in 2015.[21]

In 2011, Swiss-made Gruyère gained protected geographical indication (PGI) in Europe with a bilateral agreement between the Swiss government and the European Union.[22] In 2012, the European Commission granted French-made Gruyère PGI status.[23] In August of 2020, the U.S. Patent and Trademark Office (USPTO) rejected applications from Switzerland and France to trademark Gruyère, finding that it is a generic term.[24] However, Swiss producers can identify their particular Gruyère cheese in the United States with the logo “Le Gruyère Switzerland AOC,” which was approved by the USPTO in 2013.[25]

III. Discussion

International disagreements concerning geographical indications have resulted in recent controversies regarding which products earn geographic protection in varying parts of the world.[26] Gruyère cheese is an example of this conflict and gives insight into how foreign producers can avoid being denied geographic protection in the future.

A. American v. European Approaches to GI’s

Most of the conflict between the way the United States and European nations approach geographical indications stems from what is considered a genuine product. European courts interpret many types of foods and beverages as being specific property of a geographic area.[27] For example, even if a brewery in Hungary crafted a beer with identical ingredients and processes as Bayerisches Bier (a beer produced in the Bavaria region of Germany), that brewery could not call their beer “Bayerisches.”

Conversely, the United States has historically construed the naming to be a matter of intellectual property.[28] Therefore, a farm that produces a certain cheese in America could maintain their trademark for that cheese if they begin to also produce it in a completely different region of the country. However, the U.S. has begun adopting the European approach to GI’s with respect to some crops (Florida oranges; Idaho potatoes), wines, and spirits (Tennessee whiskey).[29]

B. Impact on Gruyèere Cheese and Future Products

When rejecting Gruyère as a trademark in 2020, the USPTO relied heavily on how American consumers perceive a name.[30] First, the USPTO noted that Switzerland and France had been exporting Gruyère into the United States for over 30 years before filing for a trademark.[31] Further, the USPTO recognized that the FDA’s definition of Gruyère did not once mention the region it was produced and instead focused on its flavor, production process, and physical characteristics.[32]

Foreign producers should note the USPTO’s reasoning for ruling Gruyère a generic term, especially because it is the same line of thinking that led to “Asiago” and “Parmesan” being rejected in the years prior.[33] Foreign producers can give themselves a better chance of earning geographical protection from the USPTO by more proactively and creatively asserting the regional component of their product in the American marketplace to achieve consumer recognition and a brand reputation. This could include aggressive advertising techniques, monitoring and dispelling improper uses from other producers or FDA descriptions, and filing for a trademark early (before the product name has become generic).

IV. Conclusion

Despite the United States’ occasional adoption of the European approach to geographical indications for crops and spirits,[34] the USPTO continually interprets foreign products such as Gruyère, Parmesan, and Asiago to be generic terms that therefore do not meet the criteria to earn trademarks in the United States.[35] The USPTO will be more likely to award these types of products a trademark due to their place of origin in the future if the terms are seen as being less generic to the American public. Therefore, foreign producers can improve their chances by focusing their efforts on marketing the regional aspect product, educating the public on the origins of the product, and enforcing other parties’ misuses before filing for a trademark.

[1] Martijn Huysmans, Exporting Protection: EU Trade Agreements, Geographical Indications, and Gastronationalism, Rev. of Int’l Political Economy (2020).

[2] Andrea Zappalagilio, The Protection of Geographical Indications: Ambitions and Concrete Limitations, 2 U. of Edinburgh Student Law Rev. 88 (2015).

[3] Martijn Huysmans, Exporting Protection: EU Trade Agreements, Geographical Indications, and Gastronationalism, Rev. of Int’l Political Economy (2020).

[4] Andrea Zappalagilio, The Protection of Geographical Indications: Ambitions and Concrete Limitations, 2 U. of Edinburgh Student Law Rev. 88 (2015).

[5] Martijn Huysmans, Exporting Protection: EU Trade Agreements, Geographical Indications, and Gastronationalism, Rev. of Int’l Political Economy (2020).

[6] French “Gruyère” Cheese Named as Protected Geographic Indication (PGI), FRENCH FOOD IN THE US (May 5, 2015),

[7] 1869 U.N.T.S. 299

[8] Andrea Zappalagilio, The Protection of Geographical Indications: Ambitions and Concrete Limitations, 2 U. of Edinburgh Student Law Rev. 88 (2015).

[9] Martijn Huysmans, Exporting Protection: EU Trade Agreements, Geographical Indications, and Gastronationalism, Rev. of Int’l Political Economy (2020).

[10] Andrea Zappalagilio, The Protection of Geographical Indications: Ambitions and Concrete Limitations, 2 U. of Edinburgh Student Law Rev. 88 (2015).

[11] Martijn Huysmans, Exporting Protection: EU Trade Agreements, Geographical Indications, and Gastronationalism, Rev. of Int’l Political Economy (2020).

[12] Andrea Zappalagilio, The Protection of Geographical Indications: Ambitions and Concrete Limitations, 2 U. of Edinburgh Student Law Rev. 88 (2015).

[13] Daniel Rosario and Clemence Robin, Geographical Indications – A European Treasure Worth €75 Billion, EUROPEAN COMMISSION (April 20, 2020),

[14] Andrea Zappalagilio, The Protection of Geographical Indications: Ambitions and Concrete Limitations, 2 U. of Edinburgh Student Law Rev. 88 (2015).

[15] Martijn Huysmans, Exporting Protection: EU Trade Agreements, Geographical Indications, and Gastronationalism, Rev. of Int’l Political Economy (2020).

[16] Martijn Huysmans, Exporting Protection: EU Trade Agreements, Geographical Indications, and Gastronationalism, Rev. of Int’l Political Economy (2020).

[17] Danilo Alfaro, What is Gruyère Cheese?, THE SPRUCE EATS (June 15, 2020),

[18] Danilo Alfaro, What is Gruyère Cheese?, THE SPRUCE EATS (June 15, 2020),

[19] Danilo Alfaro, What is Gruyère Cheese?, THE SPRUCE EATS (June 15, 2020),

[20] Sylvie Lortal, Handbook of Food and Beverage Fermentation Technology, Chapter 16 (2004).

[21] Amy Brice and Tortie Farrand, Le Gruyère AOP Premier Cru Crowned World Champion Cheese 2015, THE GUILD OF FINE FOOD (Nov. 30, 2015),

[22] Mark Astley, French Gruyère Cheese Granted EC Protected Geographical Status, DAIRY REPORTER (Dec. 10, 2012),,linked%20to%20a%20geographical%20area

[23] Mark Astley, French Gruyère Cheese Granted EC Protected Geographical Status, DAIRY REPORTER (Dec. 10, 2012),,linked%20to%20a%20geographical%20area

[24] U.S. Consumers Benefit as CCFN and Allies Successfully Defend Generic Name “Gruyère” in the United States, PERISHABLE NEWS (August 7, 2020),

[25] U.S. Consumers Benefit as CCFN and Allies Successfully Defend Generic Name “Gruyère” in the United States, PERISHABLE NEWS (August 7, 2020),

[26] Andrea Zappalagilio, The Protection of Geographical Indications: Ambitions and Concrete Limitations, 2 U. of Edinburgh Student Law Rev. 88 (2015).

[27] 98 Caroline Le Goffic and Andrea Zappalaglio, The Role Played by the U.S. Government in Protecting Geographical Indications (2017).

[28] 98 Caroline Le Goffic and Andrea Zappalaglio, The Role Played by the U.S. Government in Protecting Geographical Indications (2017).

[29] 98 Caroline Le Goffic and Andrea Zappalaglio, The Role Played by the U.S. Government in Protecting Geographical Indications (2017).

[30] U.S. Consumers Benefit as CCFN and Allies Successfully Defend Generic Name “Gruyère” in the United States, PERISHABLE NEWS (August 7, 2020),

[31] U.S. Consumers Benefit as CCFN and Allies Successfully Defend Generic Name “Gruyère” in the United States, PERISHABLE NEWS (August 7, 2020),

[32] U.S. Consumers Benefit as CCFN and Allies Successfully Defend Generic Name “Gruyère” in the United States, PERISHABLE NEWS (August 7, 2020),

[33] U.S. Consumers Benefit as CCFN and Allies Successfully Defend Generic Name “Gruyère” in the United States, PERISHABLE NEWS (August 7, 2020),

[34] 98 Caroline Le Goffic and Andrea Zappalaglio, The Role Played by the U.S. Government in Protecting Geographical Indications (2017).

[35] U.S. Consumers Benefit as CCFN and Allies Successfully Defend Generic Name “Gruyère” in the United States, PERISHABLE NEWS (August 7, 2020),