Can State Governments Claim Sovereign Immunity in Takings Cases?

Photo by Jon Geng on Unsplash

J.P. Burleigh, Associate Member, University of Cincinnati Law Review

I. Introduction

What happens when two provisions of the Constitution conflict? For example, the “Takings” clause of the Fifth Amendment prohibits “private property be[ing] taken for public use, without just compensation.”[1] But the Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”[2] On one hand, the Fifth Amendment guarantees that when a government takes a person’s private property, the government owes the person what the property is worth.[3] But courts have interpreted the Eleventh Amendment to bar citizens from suing state governments under the doctrine of “sovereign immunity.”[4] What if a state government takes a person’s property but refuses to pay, or pays too little? If the person sues the government to obtain just compensation, should the government be able to assert sovereign immunity as a defense?  This article analyzes this tension between the Fifth and Eleventh Amendments.

II. Background

The Eleventh Amendment prohibits citizens from suing the federal and state governments.[5] Known as sovereign immunity, this is the idea that citizens cannot drag their own governments into court.[6] Sovereign immunity applies to nearly every suit a citizen brings against a government, but does have certain exceptions.[7] First, this does not protect local governments like cities and towns.[8] Second, a government can waive sovereign immunity by consenting to a particular lawsuit.[9] Third, Congress can repeal sovereign immunity in certain contexts under the enforcement power of the Fourteenth Amendment.[10] The Tucker Act, for example, waived the federal government’s sovereign immunity for all constitutional claims and all suits for monetary relief.[11] Fourth, under Ex Parte Young, if a government is actively violating the Constitution, citizens can sue the government for equitable relief—a court order to stop the violation.[12]

Although the Tucker Act permits citizens to sue the federal government over a Takings violation, no such exception applies for state governments.[13] Governments rarely consent to being sued, and Congress has not repealed sovereign immunity for Takings cases against state governments.[14] Further, most Takings cases do not fall under the Ex Parte Young exception: they often are only about “just compensation”—money damages—because governments can take any private property as long as the Taking is for public use.[15]

The majority of federal courts of appeals have allowed state governments to mount sovereign immunity defenses to Takings claims.[16] Most of these courts have allowed the defense specifically because relief was still available in state court.[17] The Fourth Circuit Court of Appeals, for example, barred a Takings claim against South Carolina but declined to decide “whether the Eleventh Amendment would ban a takings claim in federal court if the State courts were to refuse to hear such a claim.”[18] However, some state courts also allow the sovereign immunity defense.[19] Thus, in Tennessee within the Sixth Circuit, and in Arkansas within the Eighth Circuit, property owners seeking just compensation for Takings find themselves completely shut out of the justice system.[20]

However, the Supreme Court has never applied sovereign immunity in a Takings case against a state government and has questioned whether “sovereign immunity retains its vitality” in that context.[21] In First English Evangelical Lutheran Church v. County of Los Angeles, the Court clarified that the Fifth Amendment requires damages for a Taking; that opinion expressly disregarded California’s argument that “principles of sovereign immunity” suggested otherwise.[22] In Palazzolo v. Rhode Island, the state of Rhode Island asserted sovereign immunity as a defense against a Taking claim[23] but the Court ignored that argument in its final decision against the state.[24] Although sovereign immunity can be raised at any time,[25] the Court has decided other Takings claims against state governments without addressing the issue.[26]

A 2019 Supreme Court case, Knick v. Township of Scott, Pennsylvania made clear that federal courts are always open to victims of Takings.[27] In Knick, the Court overruled a previous decision that required property owners to seek compensation under state law before suing in federal court.[28] The decision stated, “A property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it . . . And the property owner may sue the government at that time in federal court for the deprivation of a right secured by the Constitution.”[29] Although that case dealt with a Taking by a township, not a state, property owners have used Knick to argue that they should be able to sue their state governments in federal court over Takings claims.[30] Two circuits have rejected this argument so far,[31] with the Fifth Circuit stating, “[t]hat determination . . . is one for the Supreme Court—not this panel.”[32] Attorneys on the Fifth Circuit case, Bay Point Props. v. Miss Transp. Comm’n, have appealed to the Supreme Court.[33]

III. Analysis

Takings claims are unique. Most other constitutional violations can be solved through an injunction, and the Ex Parte Young exception allows citizens to seek this relief from the government. But when a government takes private property, the violation is usually not the Taking itself. Most often in Takings disputes, the issue is whether the government paid just compensation; the alleged violation is that the government owes the property owner money. The Fifth Amendment guarantees this payment; but this monetary relief is exactly the kind barred by the Eleventh Amendment. These provisions conflict, and one must yield. Sovereign immunity already has exceptions, and in the interest of protecting property rights, the Supreme Court should clarify one more exception: in claims against state governments for just compensation under the Fifth Amendment, the Eleventh Amendment should not apply.

The decisions barring Takings claims in federal court through the Eleventh Amendment were premised on an understanding that Takings claims were fundamentally the province of state courts. Land use is thought of as a local problem that should be handled by state courts, not federal courts. As long as state courts remained available, federal courts were comfortable allowing the sovereign immunity defense. Knick undermined this principle by making clear that property owners can sue in either state or federal court for the just compensation of taken property.  Although Knick dealt with a local government, the decision’s language is sweeping in its guarantee that “A property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it.” The decision contained no hint that state governments would be immune from such a claim.

Further, if sovereign immunity applies to Takings cases in federal courts, state courts are free to apply it as well. That could lead to Takings litigants being left without a judicial remedy entirely. As explained above, that is exactly what has happened in Tennessee and Arkansas, and nothing prevents other states from doing the same. Uniform application of sovereign immunity would make the constitutional guarantee of just compensation meaningless. Even if state courts do not allow the sovereign immunity defense, state procedures might still not deliver just compensation; if that happens, property owners deserve federal protection of their federal constitutional right. Keeping “local” issues in “local” courts is no excuse then for federal courts to allow sovereign immunity in Takings claims.

Clarifying this exception to sovereign immunity would be consistent with Supreme Court precedent. The Supreme Court has dealt repeatedly with Takings claims against state governments, siding with property owners despite states raising sovereign immunity defenses. The Court has never applied sovereign immunity in a Takings case, suggesting the Court does not view the defense as legitimate. This is for good reason: if sovereign immunity truly applies in Takings cases, then states could seize property without paying for it and face no legal consequences. Supreme Court precedent, respect for property rights, and common sense all weigh in favor of limiting sovereign immunity in Takings cases.

IV. Conclusion

The Supreme Court should take up Bay Point and use that opportunity to clarify its Takings jurisprudence. The Fifth Amendment guarantee of just compensation for taken property is meaningless if citizens cannot sue to enforce it. Eleventh Amendment sovereign immunity must yield in this context to protect property rights. Handling this dilemma appropriately will help ensure that property remains an inalienable American right.

[1] U.S. Const. amend. V.

[2] U.S. Const. amend. XI.

[3] First English Evangelical Lutheran, 482 U.S. 304, 314 (1987).

[4] Bay Point Props. v. Miss. Transp. Comm’n, 937 F.3d 454, 456-57 (5th Cir. 2019).

[5] Garrett v. Illinois, 612 F.2d 1038, 1040 n.1 (7th Cir. 1980).

[6] Hans v. Louisiana, 134 U.S. 1, 12-13 (1890).

[7] Bay Point, 937 F.3d at 456.

[8] Jinks v. Richland County, 538 U.S. 456, 466 (2003).

[9] Bay Point, 937 F.3d at 456.

[10] Id.

[11] Doe v. United States, 372 F.3d 1308, 1312 (Fed. Cl. 2004).

[12] Ex Parte Young, 209 U.S. 123, 159-60 (1908).

[13] Bay Point, 937 F.3d at 456-57.

[14] Hutto v. S.C. Ret. Sys., 773 F.3d 536, 551-52 (4th Cir. 2014).

[15] Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162, 2176-77 (5th Cir. 2019).

[16] Hutto, 773 F.3d at 552; Bay Point, 937 F.3d at 457; DLX, Inc. v. Kentucky, 381 F.3d 511, 528 (6th Cir. 2004); Garrett, 612 F.2d at 1040; Jachetta v. United States, 653 F.3d 898, 912 (9th Cir. 2011); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1214 (10th Cir. 2019); Robinson v. Georgia Dep’t of Transp., 966 F.2d 637, 640 (11th Cir. 1992).

[17] Williams, 928 F.3d at 1213.

[18] Hutto, 773 F.3d at 552.

[19] Hise v. State, 968 S.W.2d 852, 853-855 (Tenn. Ct. App. 1997); Bryant v. Ark. State Highway Comm’n, 342 S.W.2d 415 (Ark. 1961).

[20] Id.

[21] City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 714 (1999).

[22] 482 U.S. 304, 316 n.9 (1987).

[23] Amicus Brief for the Board of County Commissioners of the County of La Plata, et al., in Support of Respondents, No. 99-2047, 2001 WL 15620, at *20-21 (U.S. Jan. 3, 2001).

[24] 533 U.S. 606 (2001).

[25] Edelman v. Jordan, 415 U.S. 652, 677-78 (1974).

[26] See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning  Agency, 535 U.S. 302 (2002).

[27] 139 S. Ct. 2162, 2170 (2019).

[28] Knick, 139 S. Ct. at 2167-68.

[29] Id. at 2170, citing 42 U.S.C. §1983.

[30] Bay Point, 937 F.3d at 456; William v. Utah Dep’t of Corr., 928 F.3d 1209, 1214 (10th Cir. 2019).

[31] Id.

[32] Bay Point, 937 F.3d at 456 n.1.

[33] Id. at 454 (5th Cir. 2019), petition for cert. filed, (U.S. Dec. 19, 2019) (No. 19-798).

Mathena v. Malvo: Must Judges Take Youth into Account When Sentencing Juveniles?

Photo by Bill Oxford on Unsplash

Hunter Poindexter, Associate Member, University of Cincinnati Law Review

I. Introduction

In October, the United States Supreme Court held arguments in Mathena v. Malvo.[1] Mathena is premised around an infamous string of shootings which occurred in the Washington, D.C. area in 2002. At issue in Mathena is whether the Court’s decisions in Miller v. Alabama[2] and Montgomery v. Louisiana[3] apply only to prohibit mandatory life without parole (“LWOP”) sentencing schemes for juveniles, or whether the decisions more broadly require a judge to take into account a defendant’s youth when considering a LWOP sentence. This blog will first discuss the Court’s precedent in both Miller and Montgomery. The article next analyzes the background of Mathena, as well as the arguments made by each party. Finally, this post will explain the implications the Court’s decision in Mathena could have on past and future youth offenders.

II. Background

A. Miller v. Alabama

In Miller, the Court was tasked with determining whether statutorily-mandated sentences of LWOP may be imposed on juveniles.[4] The petitioners, Evan Miller and Kuntrell Jackson, had both been sentenced to LWOP in Alabama and Arkansas, respectively.[5] At age fourteen, Miller killed his neighbor after hitting him in the head with a baseball bat and setting his home on fire.[6] The District Attorney tried Miller as an adult and charged him with murder in the course of arson, and Miller was subsequently convicted.[7] At the time of Miller’s conviction, Alabama imposed a mandatory minimum LWOP sentence for the crime, and therefore, the trial judge sentenced Miller to LWOP.[8] In the Arkansas case, Jackson was involved in a robbery in which one of Jackson’s friends shot and killed a video store clerk.[9] Even though Jackson did not pull the trigger, the Arkansas prosecutor tried him as an adult.[10] Jackson was ultimately convicted of capital felony murder and aggravated robbery.[11] Like Alabama, Arkansas’s mandatory sentencing scheme required the imposition of a minimum sentence of LWOP.[12]

Both petitioners in Miller argued that mandatory LWOP sentences for juveniles violate the Eighth Amendment’s ban on cruel and unusual punishment.[13] In its opinion, the Court discussed at-length prior precedent explaining how juvenile offenders must be treated differently in the sentencing phase.[14] Specifically, the Court focused its analysis on the decisions in Graham v. Florida[15] and Roper v. Simmons,[16] both of which provided substantive rules on how youths may be sentenced.[17]

The Miller court ultimately concluded “that the Eighth Amendment forbids a mandatory sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”[18] Notably, the Court also stated that its decision “require[s] [a sentencer] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”[19]

B. Montgomery v. Louisiana

In Montgomery, the Court considered the question of whether Miller applied retroactively.[20] The petitioner in Montgomery was seventeen-years-old when he killed a deputy sheriff in Baton Rouge, Louisiana in 1963.[21] The petitioner was initially convicted of murder and sentenced to death, but the Louisiana Supreme Court overturned his conviction.[22] At his second trial, the jury returned a verdict of “‘guilty without capital punishment.’”[23] Louisiana law mandated a sentence of LWOP against the petitioner.[24] The petitioner contended that the Miller decision should apply retroactively, and therefore, petitioner would subsequently have to be re-sentenced.[25]

The Court first determined whether it had the authority to apply Miller retroactively under its prior precedent.[26] In Teague v. Lane,[27] the Court held that new constitutional rules of criminal procedure do not apply retroactively to convictions that were final when the rule was decided.[28] However, Teague does allow for two exceptions which must apply retroactively: (1) substantive rules of constitutional law; and (2) “watershed rules of criminal procedure” implicating fundamental fairness.[29] Substantive rules are those which “forbid[] ‘criminal punishment of certain primary conduct’ or prohibit[] ‘a certain category of punishment for a class of defendants because of their status or offense.’”[30]

The Court held that Miller indeed announced a substantive rule because it “rendered life without parole an unconstitutional penalty for a ‘class of defendants because of their status’ – that is, juvenile offenders whose crimes reflect the transient immaturity of youth.”[31] It is important to note that the Montgomery court also stated that “Miller determined that sentencing a child to life without parole is excessive for all but ‘the rare juvenile offender whose crime reflects irreparable corruption,’ . . .” [32]

C. Mathena v. Malvo

In October, the Court held arguments in Mathena. The facts surrounding Mathena are somewhat notorious. In 2002, forty-one-year-old John Muhammed and seventeen-year-old Lee Boyd Malvo shot and killed ten people in the Washington D.C. area.[33] The shootings became commonly referred to as the “D.C. sniper attacks.”[34] For his role in the shootings, Malvo was charged with capital murder in the commission of an act of terrorism, as well as capital murder of more than one person within a three-year-period.[35] Under Virginia law, defendants over the age of sixteen and convicted of capital murder only had two possible sentences: life in prison or the death penalty.[36] Virginia had previously done away with parole for felony crimes, and therefore a sentence of life would be LWOP.[37] Malvo was subsequently given four sentences of LWOP.[38]

After the Montgomery decision, the Virginia Supreme Court held in Jones v. Commonwealth[39] (“Jones II”) that Miller did not apply to Virginia because the “capital-murder sentencing scheme was not ‘mandatory.’”[40] Notably, the court in Jones II deemed Miller only to mean “that a sentencer ‘must have the opportunity to consider mitigating circumstances’” when sentencing a juvenile to LWOP.[41] While trial judges only had the opportunity to sentence an individual convicted of capital-murder to LWOP, prior precedent from the Virginia Supreme Court acknowledged that the judges may nonetheless suspend a LWOP sentence.[42] Therefore, the Jones II court held that a trial judge may consider factors such as youth when determining whether the court should suspend the sentence, and thus the sentencing scheme was not mandatory.[43]

Upon petition of habeus corpus, a federal district court vacated Malvo’s sentences.[44] The district court concluded that Miller held that a LWOP sentence may only be given to those juveniles “whose crimes reflect ‘transient immaturity’ rather than ‘irreparable corruption.’”[45] The Court of Appeals for the Fourth Circuit affirmed the district court, holding that “the sentencer must actually ‘take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’”[46]

On appeal to the Supreme Court, petitioner Randall Mathena, the prison warden, argued that Miller stands for the premise that the Eighth Amendment only prohibits sentencing schemes which mandate LWOP sentences for juveniles.[47] Alternatively, respondent Malvo argued that Miller held more broadly that sentencers must “‘consider[] youth and attendant characteristics’” when determining whether to mete a LWOP sentence to a juvenile.[48]

III. Discussion

While the Court will not likely rule on Mathena until 2020, the oral arguments appeared to lean somewhat in favor of respondent Malvo. When questioning Mathena’s counsel, Justice Kagan acknowledged that she read Miller to stand more broadly for the premise that “youth matters.”[49] Furthermore, Justice Kagan stated that the “lesson of Miller” is that a “judge or jury . . . has to take . . .  youth into account.”[50] Justice Kagan’s comments are particularly interesting and insightful in the context of Miller, as Justice Kagan drafted its majority opinion. In addition to Justice Kagan, Justice Kavanaugh also appeared to show some support for Malvo’s position. Notably, Justice Kavanaugh asked Mathena’s counsel whether a discretionary scheme would be enough to satisfy Miller if the Court held Miller to mean that only juveniles who are “incorrigible” may be sentenced to LWOP.[51] With this line of questioning, Justice Kavanaugh implied some understanding and support for Malvo’s position.[52]

Should the Court rule in Malvo’s favor, Mathena has the potential to create significant changes in the way youth offenders are sentenced. Moreover, Mathena would likely impact other inmates who were sentenced to LWOP as juveniles, even if those inmates were sentenced under non-mandatory schemes. In its narrowest sense, Miller prohibits sentencing schemes that impose mandatory LWOP sentences on youth. Applied retroactively under Montgomery, this narrow interpretation gave over 2,000 inmates the opportunity to be resentenced.[53] Under a broader interpretation – that sentencers must always take into account a juvenile offender’s youth – the implications could range far beyond those created under the narrower interpretation. If the Court holds that Miller and Montgomery require judges to always take into account an offender’s youth before meting a LWOP sentence, some inmates might be able to challenge their sentence on the grounds that the sentencer did not adequately take their youth into account. With this implication in mind, Mathena could create procedural issues in courts. As Justices Sotomayor and Kavanaugh noted in oral argument, judges often take into account sentencing factors for defendants without stating on the record that they have considered each individual factor.[54] There are likely offenders who were sentenced as juveniles to non-mandatory LWOP whose judges did not specifically state at sentencing that the offender’s youth was considered. The consequence of which would potentially create a cascade of requests for resentencing, even if the judge took youth into account without expressly acknowledging it on the record.

Even considering this implication, a broad reading of Mathena is in-line with much of the Court’s recent decisions on juvenile offenders. Over the past fifteen years, the Court has taken a rather sympathetic stance on juvenile offenders, generally finding juveniles to be more immature and vulnerable than adult offenders.[55] While prohibiting mandatory LWOPs provides protections for juveniles, requiring a system in which a juvenile’s age must be taken into account would help ensure that juveniles who acted out of “transient immaturity” would not be “irrevocably sentence[ed]” to prison for the rest of their lives.[56]

IV. Conclusion

With its decisions in Miller and Montgomery, the Supreme Court protected juveniles from being sentenced to LWOP under mandatory sentencing schemes. However, the Court now has the opportunity to significantly expand these protections by requiring judges to take a juvenile offender’s youth into account whenever they consider a LWOP sentence. While the Justices appeared to lean toward Malvo’s position during oral arguments, accepting this broad interpretation could open the door for a flood of resentencing requests by youth offenders sentenced to LWOP prior to Mathena. Nonetheless, the Court in recent years has taken a number of steps to protect juveniles in the criminal justice system, and finding for Malvo would provide even greater protection for youth offenders.


[1] No. 18-217 (2019).

[2] 567 U.S. 460 (2012).

[3] 136 S. Ct. 718 (2016).

[4] 567 U.S. at 465.

[5] Id. at 466-69.

[6] Id. at 467-68

[7] Id. at 468-69.

[8] Id. at 469.

[9] Id. at 465-66.

[10] Id. at 466

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 470-78.

[15] 560 U.S. 48 (2010) (holding that youth offenders may not be sentenced to LWOP for nonhomicide crimes).

[16] 543 U.S. 551 (2005) (holding that the Eighth Amendment prohibits death sentences for youth offenders).

[17] Miller, 567 U.S. 470-78.

[18] Id. at 479.

[19] Id. at 480.

[20] 136 S. Ct. at 725.

[21] Id.

[22] Id.

[23] Id. at 725-26 (citing State v. Montgomery, 242 So. 2d 818 (La. 1970)).

[24] Id. at 726.

[25] Id. at 727.

[26] Id. at 728.

[27] 489 U.S. 288 (1989).

[28] Montgomery, 136 S. Ct. at 728.

[29] Id. (citing Penry v. Lynaugh, 492 U.S. 302, 330).

[30] Id. (citing Penry, 492 U.S.at 330).

[31] Id. at 734 (citing Penry, 492 U.S. at 330).

[32] Id. (citing Miller, 567 U.S. at 479-80).

[33] Tucker Higgins, DC sniper Lee Boyd Malvo to ask Supreme Court for resentencing in case over youth punishment, CNBC (October 16, 2019), https://www.cnbc.com/2019/10/16/dc-sniper-lee-boyd-malvo-to-ask-supreme-court-for-new-sentence.html.

[34] Id.

[35] Brief for Respondent at 8, Mathena v. Malvo, No. 18-217 (Aug. 20, 2019).

[36] Id.

[37] Id. at 9.

[38] Id. at 10.

[39] 795 S.E.2d 705 (Va. 2017).

[40] Brief for Respondent at 14, Mathena v. Malvo, No. 18-217 (Aug. 20, 2019) (citing Jones II, 795 S.E.2d at 713).

[41] Id. (citing Jones II, 795 S.E.2d at 708).

[42] Id. at 14-15.

[43] Id. at 15 (citing Jones II, 795 S.E.2d at 711-13).

[44] Id. at 16.

[45] Id.

[46] Id. (citing Pet. App. 14a)

[47] Brief for Petitioner at 9, Mathena v. Malvo, No. 18-217 (Jun. 11, 2019).

[48] Brief for Respondent at 19, Mathena v. Malvo, No. 18-217 (Aug. 20, 2019) (citing Miller, 567 U.S. at 483).

[49] Oral Argument at 7:44, Mathena v. Malvo, No. 18-217 (2019), https://www.oyez.org/cases/2019/18-217.

[50] Id.

[51] Id. at 13:37.

[52] See Id.

[53] Matt Ford, A Retroactive Break for Juvenile Offenders, The Atlantic (January 26, 2016), https://www.theatlantic.com/politics/archive/2016/01/montgomery-alabama-supreme-court/426897/.

[54] Oral Argument at 33:54, 36:38, Mathena v. Malvo, No. 18-217 (2019), https://www.oyez.org/cases/2019/18-217.

[55] See Miller, 567 U.S. 460, Montgomery, 136 S. Ct. 718, Roper, 543 U.S. 551, Graham, 560 U.S. 48.

[56] Miller, 567 U.S. at 480-81.

Is Google’s Ad Policy Anti-Competitive?

Photo by Benjamin Dada on Unsplash

J.P. Burleigh, Associate Member, University of Cincinnati Law Review

I. Introduction

Google has been under fire this year for alleged antitrust violations.  In March, the European Commission fined Google 1.49 billion euros for breaking EU antitrust rules, the third such fine in two years.[1] The House Judiciary Committee began investigating Google and other large tech companies in June for possibly breaches of American antitrust law.[2] The Department of Justice announced in July that it would conduct a sweeping antitrust review of “market leading online platforms,”[3] and in September requested information from Google about previous antitrust investigations.[4] The attorneys general of forty-eight states, Puerto Rico, and Washington, D.C. have announced a joint probe into potential antitrust violations by Google’s advertising business.[5] And just days ago, a competitor digital advertising company sued Google in federal court, alleging that Google unlawfully forced it out of business.[6]

Google makes most of its money on digital advertising.[7] Acting as a broker for online ads, Google buys ad space on websites through AdSense and sells that space to third parties through Google Ads.[8] Much of the recent conversation has centered on the ways Google has bought ads to create a monopoly in the market for online ads generally. For example, for over ten years Google prohibited websites selling space to Google from working with competing advertising brokers.[9] However, this article will explore whether Google is using its dominance in the sale of online ads to unlawfully decrease competition in other areas. Specifically, does Google’s Ad Policy—the rules which buyers must follow in order to purchase advertising space from Google—bear out the allegations of monopolistic practices? 

II. Factual Background 

Nearly 90% of internet searches are conducted on Google.[10] But that service is free; Google’s revenues come almost entirely from the sale of online advertising.[11] Advertising on the internet has become a premier method of marketing, and in 2018 sales of online ads generated revenues over $100 billion.[12] Google is the largest single player in that market, bringing in roughly a third of all online ad sales revenue.[13]

Google is like an agent of online real estate for ads.[14] First Google obtains the space for online ads.[15] Some of those spaces are on Google’s own web pages—Google search results, YouTube, Gmail, Google Maps, and more.[16] But many of those spaces are also on third party websites.[17] A third party can sell space on its website to Google through AdSense.[18] Google then sells these spaces to advertisers through Google Ads.[19] Advertisers compete against each other in Google-run auctions.[20] The advertiser who offers the most money per click receives the coveted ad spot, until another advertiser outbids.[21] Not just anyone can participate in Google’s advertising business, however.

Google will only sell ad space to buyers that follow the Google Ads Policy.[22]

The stated goal of the policy is to “support a healthy digital advertising ecosystem—one that is trustworthy and transparent, and works for [everyone using it].”[23] The policies restrict the content and conduct of ads in many situations, ranging from how election ads target voters to whether an ad contains sexually explicit content.[24] These policies also regulate the ad’s destination—the website an ad links to.[25]

Although Google’s main business is digital advertising, Google’s parent entity, Alphabet, owns eight other subsidiaries operating in a range of industries.[26] In at least two situations, Google’s Ad Policy restricts markets in which a branch of the Alphabet family participates. 

For example, in September of this year Google changed its Ad Policy[27] to state that “[p]romotion of speculative or experimental medical treatments/technology is prohibited.”[28] In a non-exhaustive list of prohibited products and services, Google lists “platelet rich plasma.”[29] Platelet rich plasma (PRP) is a method of isolating platelets, a solid part of the blood that helps clot blood and heal injuries in the body.[30] In recent years, some doctors have used PRP to gather a patient’s platelets and re-inject them at various locations in the body to treat conditions such as muscles injuries, arthritis, and tendonitis.[31] The medical community does not yet have a consensus on the efficacy of PRP treatment generally, but the American Academy of Orthopaedic Surgeons says PRP is effective in treating chronic tendon injuries in the elbow.[32] The medical company Eclipse produces the FDA-approved[33] Eclipse PRP system, which allows medical providers to isolate platelets from patients’ blood.[34] A Google search on December 4, 2019 for “Eclipse PRP” returned with no ads. 

Alphabet also competes in the healthcare technology market through its subsidiary Verily Life Sciences.[35]Verily blends data analysis with medical technology to create devices like personal monitors for atrial fibrillation and diabetes patients.[36] One of Verily’s projects is Lumi, a partnership with Pampers to create a system for parents to monitor newborn children’s biometrics by attaching a sensor to an infant’s diaper.[37] This device is not regulated by the FDA, which has sparked concern among parents over the device’s safety.[38] A team of doctors at Children’s Hospital of Philadelphia published a study in the Journal of the American Medical Association warning that baby monitors exempt from FDA regulation were less accurate than similar devices with FDA approval.[39] However, a Google search on December 4, 2019 for “Lumi by Pampers” reveals two paid advertisements: one at the top of the search results, and one on the right hand side bar, both leading to the Pampers website.

In another example, Google has restricted ads related to cryptocurrency. In early 2018, cryptocurrency advertisers reported that Google was denying their ads and suspending their accounts, without any official reason or policy.[40] Later that year, Google announced a total ban on all ads for “cryptocurrencies and related content (including but not limited to initial coin offerings, cryptocurrency exchanges, cryptocurrency wallets, and cryptocurrency trading advice).”[41] Google has since relented on this total ban and carved out two exceptions: cryptocurrency mining products and services are permitted, and cryptocurrency exchanges can advertise if Google certifies them.[42] All other cryptocurrency related ads are banned.[43] However, Google also participates in the market for digital currency.[44] First, Google has developed resources in its paid Google Cloud service for users of Ethereum, a popular cryptocurrency.[45] Second, Google has launched its own digital wallet called Google Pay, which allows users to exchange money online and in stores through an app.[46]

III. Legal Background

The Sherman Antitrust Act protects competition and efficiency in the market.[47] There are two key provisions: §1 bans any contract, combination or conspiracy in restraint of trade, and §2 forbids any person or combination from monopolizing or attempting to monopolize interstate commerce.[48]

Parties violate §1 when they agree to unreasonably restrain trade.[49] Certain agreements are per se unreasonable, such as setting prices at a fixed level.[50] In all other cases, courts make a “rule of reason” inquiry into whether the challenged agreement promotes or suppresses competition.[51] Illegal monopolization occurs under §2 when a firm has monopoly power in the relevant market and purposefully acquires or maintains that power.[52] In analyzing a possible §2 violation, courts first define the relevant market: the smallest product and geographic market which, if one party controlled the entire market, that party could arbitrarily raise prices and consumers would simply pay them. [53] Courts then examine whether the defendant has monopoly power in that market; 75% or more of market share routinely constitutes monopoly power, and 90% almost always qualifies.[54] The last step is to establish whether the defendant exercised that power to exclude competition.[55]

A violation of either provision requires intent. In criminal prosecutions of the Sherman Act the government must prove monopolistic purpose,[56] but a civil plaintiff can satisfy intent merely by demonstrating the challenged action’s anticompetitive effects.[57] Conduct is anticompetitive if it forecloses competition in any market.[58] This could occur when a monopoly shuts out competitors in its own market, or when it uses “monopoly power attained in one market to gain a competitive advantage in another.”[59]

A refusal to deal can constitute anticompetitive conduct in certain circumstances. The Colgate doctrine famously states: “In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of a trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell.”[60] Thus the default rule is that businesses can choose the parties, prices, terms, and conditions, of their dealings.[61] However, that right is qualified: no right of refusal exists where the refusal violates antitrust law.[62] Courts are hesitant to impose a duty to deal if doing so would require unreasonable judicial supervision of private business. [63]Nevertheless, courts have recognized a duty to deal in two relevant contexts.  

First, courts have held that some dominant newspapers must sell ad space to advertisers.[64] In the landmark case Lorain Journal Co. v. United States, the Supreme Court affirmed that a newspaper serving 99% of Lorain could not refuse to sell ads to advertisers who also bought ads from a local radio station.[65] This refusal forced advertisers in the newspaper to boycott a competing source of news and advertising.[66] Because the paper had used its market power in advertising to exclude competition, the court found the paper violated §2.[67] Similarly, the Sixth Circuit in Home Placement Service, Inc. v. Providence Journal found that a dominant newspaper violated the Sherman Act by refusing to sell ads to for a home rental referral service.[68] The court found that the newspaper competed with the referral service for housing ads.[69] Because the newspaper had market power over daily newspaper ads in the Providence area, refusing to sell ads to a competitor was anticompetitive conduct of a monopoly in violation of §2.[70] Further, the referral service eventually agreed to stop charging for its service in order to advertise in the paper; that coerced deal violated §1 as an agreement in restraint of trade.[71]

Courts have also found that some providers of “essential facilities” must deal with others.[72] For instance, in Otter Tail Power Co. v. United States, the Supreme Court affirmed that an electric utility company had a duty to deal with municipalities who wanted to buy power.[73] Because the company also operated power distributors in competition with the municipalities, the company’s refusal to deal with the municipalities excluded competition in violation of §2.[74] The Supreme Court has since limited the essential facilities doctrine to contexts where the defendant fully owns and sells something that rivals cannot supply to themselves, where selling to rivals would be profitable, and there is no regulatory agency requiring the sharing of the facility.[75]

IV. Analysis

The restrictions Google’s Ad Policy imposes on advertisers might violate the Sherman Act under a refusal to deal theory. Under the case law concerning refusal to sell ads and refusal to provide essential facilities, a court might find that Google unlawfully excludes competition by only selling ads to parties who satisfy Google’s Ad Policy. 

The ban on ads for speculative and experimental medical technology and treatment might be a §2 violation. The relevant market would be the narrowest possible to maintain a monopoly: the market for healthcare technology search ads in the United States. In a world where “Just Google it” is an everyday phrase, search engines are the first place people go to research new products and services. Searching the name of a person, company, product, or services does not guarantee it will be the first result; thus, competitive firms place ads on search result pages to catch consumers’ attention. There is no substitute. Because Google maintains 90% of the entire search engine market, Google likely has substantial market power in the market for healthcare technology search ads in the United States. 

Acting to exclude competition is necessarily a fact-specific analysis. Google may well have acted for legitimate business reasons to prohibit ads for experimental healthcare technology. Protecting consumers from deceptive advertising, particularly in an area as important as health, is surely reasonable for a broker of ads. But the nature of the healthcare technology industry, Google’s monopoly power in that industry’s search advertising, and Google’s relationship with Verily are important considerations. 

“Speculative” and “experimental” are meaningless terms in this context. Healthcare technology is inherently experimental because it is driven by innovation. New medical devices are untried at first until they gradually gain acceptance by the scientific and medical community; the entire process is “experimental.” Rather than protecting consumers, this restriction presents an additional hoop that healthcare technology producers must jump through to bring their goods to market. This policy gives Google the power to deny ads for competing technologies it deems to be too speculative—an arbitrary standard in a market where successful products necessarily do what has never been done. Because Google is a monopoly in search ads, its decision as to what is too speculative has ripple effects down the supply chain. If Google labels a certain company as peddling speculative or experimental healthcare technology, that company will be essentially shut out of the search ad market. Further, suppliers of that technology will have to purge their websites of all references to that technology in order to maintain their own Google ads. 

This is problematic because Alphabet’s Verily is in direct competition with other healthcare technology companies. Although Google and Verily are separate entities, §2 applies to both unilateral and joint actions. Google might employ its Ad Policy to advantage Verily and disadvantage competing healthcare technology companies. Google has already permitted an ad for the Lumi baby monitor, a product that consumers might reasonably regard as experimental. Any Verily ad that Google approves in the future would further the argument that Google is not using its standard fairly. Particularly, a plaintiff who could show an ad denied for a similar product to Verily’s would have a strong case under §2. Precisely because Google and Verily are not the same company, such a scenario also might violate §1 as an agreement in restraint of trade. 

Google’s restriction on cryptocurrency ads might present a §2 violation. The relevant market would be search ads for digital currency in the United States. Google likely has a monopoly in this market for the same reasons discussed above. Reasonable justifications for restricting cryptocurrency ads might include shielding consumers from an unpredictable, unregulated industry. Although paternalistic, this might be within Google’s right under the Colgate doctrine. The problem is that again, there are anticompetitive effects because Google itself competes with the very entities this rule touches. Google is actively trying to gain business on its Google Cloud service from cryptocurrency users. At the same time, Google is placing a bet that cryptocurrency is not the digital currency of the future; Google’s alternative to cryptocurrency is the Google Wallet. That service offers the perks of exchanging money digitally coupled with the reliability of government-backed traditional currency. Google has created a win-win situation: profit on cryptocurrency while it lasts, and capture cryptocurrency’s users when it fails. By restricting ads for cryptocurrency, Google inhibits cryptocurrency platforms from fully reaching consumers, thus furthering cryptocurrency’s demise. Google is thus using its monopoly power in the market for search ads for digital currency to foreclose competition in the market for digital currency. 

Courts might also view Google’s search engine as an essential facility. Public opinion increasingly treats the internet—and searching things on the internet—as a public utility that should be open to all. A progressive court might find that Google has a duty to deal non-arbitrarily with advertisers because the service it provides is only available through Google. Although other search engines exist, Google maintains a near total monopoly, with no strong competitor in sight. Searching the internet might be an essential facility for consumers, and advertising on search results might be an essential facility for providers of goods and services. If that is the case, then Google would have a heightened duty to deal with advertisers. 

V. Conclusion

Google’s Ad Policy might violate the Sherman Act under a refusal to deal theory. Following cases imposing a duty to deal on newspapers selling ads and on providers of essential facilities, a court could find that Google is using its market dominance to exclude competition in healthcare technology and in cryptocurrency. Further developments might reveal anticompetitive restrictions in Google’s Ad Policy beyond those discussed here. As a major player in digital advertising, and as the dominant player in digital search advertising, Google should be careful not to create rules which violate antitrust law.  


[1] Antitrust: Commission fines Google €1.49 billion for abusive practices in online advertising, European Commission (Mar. 19, 2019) https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1770

[2] Adi Robertson, Congress just asked big tech companies for private emails about their biggest controversies, The Verge (Sep. 13, 2019) https://www.theverge.com/2019/9/13/20864135/congress-house-judiciary-committee-antitrust-probe-letters-apple-google-amazon-facebook.

[3] Tony Romm, Elizabeth Dwoskin, & Craig Timberg, Justice Department announces broad antitrust review of big tech, The Washington Post (Jul. 23 2019, 7:34 PM) https://www.washingtonpost.com/technology/2019/07/23/justice-department-announces-antitrust-review-big-tech-threatening-facebook-google-with-more-scrutiny/

[4] Brian Fung, Google hit by DOJ demand for antitrust records, CNN Business (Sep. 6, 2019, 7:14 PM) https://www.cnn.com/2019/09/06/tech/justice-department-antitrust-google/index.html.

[5] Steve Lohr, Google Antitrust Investigation Outlined by State Attorneys General, The New York Times (Sep. 9, 2019) https://www.nytimes.com/2019/09/09/technology/google-antitrust-investigation.html.

[6] David McLaughlin, Google Accused of Antitrust Violations in Digital Advertising Market, Fortune (Nov. 26, 2019) https://fortune.com/2019/11/26/google-accused-antitrust-digital-advertising-market/.

[7] J. Clement, Google: ad revenue 2001-2018, Statista (Aug. 9, 2019) https://www.statista.com/statistics/266249/advertising-revenue-of-google/.

[8] Eric Rosenberg, How Google Makes Money (GOOG), Investopedia (Dec. 5, 2018) https://www.investopedia.com/articles/investing/020515/business-google.asp.

[9] Id. 

[10] J. Clement, Global market share of search engines 2010-2019, Statista (Dec. 3, 2019) https://www.statista.com/statistics/216573/worldwide-market-share-of-search-engines/.

[11] J. Clement, Google: ad revenue 2001-2018, supra. 

[12] IAB internet advertising revenue report, PricewaterhouseCoopers (May 2019) https://www.iab.com/wp-content/uploads/2019/05/Full-Year-2018-IAB-Internet-Advertising-Revenue-Report.pdf.

[13] J. Clement, Google’s market share of global digital ad revenues 2016-2019, Statista (Jul. 23, 2019) https://www.statista.com/statistics/193530/market-share-of-net-us-online-ad-revenues-of-google-since-2009/.

[14] Rosenberg, supra note 8. 

[15] Id. 

[16] Id. 

[17] Id. 

[18] Id. 

[19] Id.

[20] Id. 

[21] Id. 

[22] Google Ads policies, Google https://support.google.com/adspolicy/answer/6008942. 

[23] Id. 

[24] Id. 

[25] Google Ads Policies, Google https://support.google.com/adspolicy/answer/1704381

[26] Rakesh Sharma, Why Google Became Alphabet, Investopedia (Oct. 24, 2019) https://www.investopedia.com/articles/investing/081115/why-google-became-alphabet.asp.

[27] A new policy on advertising for speculative and experimental medical treatments, Google (Sep. 6 2019) https://support.google.com/google-ads/answer/9475042. 

[28] Healthcare and medicines, Google https://support.google.com/adspolicy/answer/176031. 

[29] Id. 

[30] Frank B. Kelly, Platelet-Rich Plasma (PRP), American Academy of Orthopaedic Surgeons (Sep. 2011) https://orthoinfo.aaos.org/en/treatment/platelet-rich-plasma-prp.

[31] Id. 

[32] Id. 

[33] 510(k) Premarket Notification, U.S. Food and Drug Administration, https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfpmn/pmn.cfm?ID=BK110035.

[34] Eclipse PRP, Eclipse https://eclipsemed.com/eclipse-prp/.

[35] How Google Plans To Use AI To Reinvent The $3 Trillion US Healthcare Industry, CB Information Serviceshttps://www.cbinsights.com/research/report/google-strategy-healthcare/.

[36] Verily Projects, Verily https://verily.com/projects/.

[37] Lumi by Pampers, Verily https://verily.com/projects/sensors/lumi/.

[38] Patrick Coleman, The Big Problem with Baby Trackers, Fatherly (Aug. 12, 2019 5:03 PM) https://www.fatherly.com/health-science/problem-with-baby-trackers-smart-monitors/.

[39] Two Consumer Baby Monitors Show Worrisome Results in Measuring Vital Signs, Children’s Hospital of Philadelphia https://www.chop.edu/news/two-consumer-baby-monitors-show-worrisome-results-measuring-vital-signs.

[40] Molly Jane Zuckerman, Crypto Advertisers On Google Report Ad Suspensions and Account Terminations, Cointelegraph (Mar. 11, 2018) https://cointelegraph.com/news/crypto-advertisers-on-google-adwords-report-ad-suspensions-and-account-terminations.

[41] Google Support Policies, Google https://support.google.com/adspolicy/answer/76488035

[42] Financial products and services, Google (https://support.google.com/adspolicy/answer/2464998?hl=en&ref_topic=1626336).

[43] Id. 

[44] Allen Day, Building hybrid blockchain/cloud applications with Ethereum and Google Cloud, Google (Jun. 13, 2019) https://cloud.google.com/blog/products/data-analytics/building-hybrid-blockchain-cloud-applications-with-ethereum-and-google-cloud.

[45] Id. 

[46] Start using Google Pay today, Google https://pay.google.com/about/learn/. 

[47] The Antitrust Laws, Federal Trade Commission https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws.

[48] Klor’s v. Broadway-Hale Stores, 358 U.S. 207, 210-211 (1959); 15 U.S.C. §§1-2. 

[49] Nynex Corp. v. Discon, 525 U.S. 128, 133 (1998). 

[50] Id. 

[51] National Soc. Of Professional Engineers v. U.S., 435 U.S. 679, 691 (1978). 

[52] United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966). 

[53] Herbert Hovenkamp, Principles of Antitrust 65 (West Academic 2017).

[54] Id. 

[55] Id. at 250. 

[56] U.S. v. U.S. Gypsum Co, 438 U.S. 422, 435 (1978). 

[57] McLain v. Real Estate Bd., 444 U.S. 232, 243 (1980). 

[58] U.S. v. Griffith, 334 U.S. 100, 107 (1948). 

[59] Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 276 (2d Cir. 1979). 

[60] United States v. Colgate & Co., 250 U.S. 300, 307 (1919). 

[61] Pac. Bell Tel. Co. v. linkLine Communs., Inc., 555 U.S. 438, 439 (2009). 

[62] Official Airlines Guides, Inc. v. FTC, 630 F.2d 920, 927-28 (1980); Aspen Skiing Co. v. Aspen Highlands Skiing Corp, 472 U.S. 585, 601 (1985).

[63] Byars v. Bluff City News Co., 609 F.2d 843, 864 (6th Cir. 1979); Verizon Communs., Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 415 (2004). 

[64] 342 U.S. 143, 155 (1951).

[65] Id. at 152-53. 

[66] Id. at 153.

[67] Id

[68] 682 F.2d 274, 279 (1st Cir. 1982). 

[69] Id. 

[70] Id. 

[71] Id. 

[72] Hovenkamp, supra, at 282. 

[73] Otter Tail Power Co. v. United States, 410 U.S. 366, 380 (1973).

[74] Id. at 368. 

[75] Verizon Communications, Inc. v. Law Offices of Curtis v. Trinko, LLP, 540 U.S. 398, 410-11 (2004). 

Compared To What? Interpreting RLUIPA’s Equal Terms Provision

Photo by Akira Hojo on Unsplash

J.P. Burleigh, Associate Member, University of Cincinnati Law Review

I. Introduction

Imagine attending church in a small rental space. The landlord announces he will develop the space into a retail store next year, so the church will need to move elsewhere. The church’s leadership resolves to build a permanent home for its ministry. After months of fundraising, the church secures a loan and buys the perfect piece of land. Before the church can break ground, however, the city passes a regulation requiring all non-profits to apply for a conditional use permit. The city denies the church’s application but grants one for a nonreligious non-profit just next door to the church’s plot. Fortunately, federal law may provide a remedy. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) protects religious liberty in the context of land use regulations,[1] such as the one described above. The Equal Terms provision of RLUIPA states: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”[2] A person may assert a violation of this provision in court as a claim or defense against a government.[3] While this might appear to address the very situation described, there is one problem: federal courts do not agree what constitutes unequal treatment under this provision.[4]  That means that the fate of this hypothetical church might depend on its judicial jurisdiction.

II. Background

Courts have said that RLUIPA and its Equal Terms provision should be understood in the broader context of Congress’ efforts to protect the “free exercise of religion” guaranteed by the First Amendment.[9] Until the late twentieth century, courts reviewed government action that substantially burdened sincere religious belief with a standard called “strict scrutiny”: the government needed to pursue a compelling state interest through the method least burdensome to religious exercise.[10] A person who believed some government action infringed on his or her religious exercise could sue for an exemption, which a court would grant if the government action did not pass strict scrutiny.[11] The Supreme Court limited this practice in Employment Division v. Smith.[12] Wary of judges balancing religious belief against government interests, the Court held that strict scrutiny should only apply to government action that on its face intentionally discriminates against religion.[13] The Court added that exemptions to neutral, generally applicable laws would have to come from legislatures.[14]

Smith sparked concern that courts would be powerless to address burdens on religious liberty masked by facially neutral reasons.[15] Many people also feared that making religious exemptions an entirely legislative process would hurt minority religions.[16] In response to Smith, Congress passed the Religious Freedom and Restoration Act of 1993 (RFRA) with unanimous support in the House and only three objectors in the Senate; President Bush swiftly signed it into law.[17] RFRA required courts to re-adopt strict scrutiny in religious exercise claims.[18] The Supreme Court struck down RFRA as applied to state governments in City of Boerne v. Flores, citing concerns that Congress was intruding on the role of courts and state governments.[19]

Although the Supreme Court had rejected a broad attempt to re-impose strict scrutiny in all free exercise claims, Congress persisted in extending that protection in a narrower context.[20] After Boerne, Congress passed RLUIPA unanimously and President Clinton signed it into law in 2000.[21] RLUIPA re-imposed the strict scrutiny test for religious exercise claims in two contexts: land use regulations[22] and the prison system.[23] RLUIPA also contains the Equal Terms provision that states: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”[24] Congress included rules of construction to aid courts in interpreting the various provisions, stating: “This Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.”[25]

The Equal Terms provision of RLUIPA presents four elements that a plaintiff must show to state a claim: 1) the plaintiff is a religious assembly or institution 2) subject to a land use regulation 3) that treats the plaintiff on less than equal terms 4) compared with a nonreligious entity.[26] “Less than equal” treatment can occur in one of three ways.[27] A regulation might discriminate against religious entities on its face, for example by banning churches altogether.[28] A regulation could apply so disproportionately against religious entities that it is “gerrymandered inequality,” as with a statute that bans steeples in an area where the only buildings with steeples are churches.[29] Last, a government might enforce a regulation unequally, for example by requiring non-profits to apply for a special permit and approving all applications except those from churches.[30] The heart of the split between circuits is the fourth element: to what sort of nonreligious entity does a religious entity need to compare in order to show unequal treatment?[31]

The Eleventh Circuit, the first to address this issue, uses the plain meaning approach.[32] Under this view, the religious entity must identify merely “a nonreligious assembly or institution”—that is to say, any nonreligious assembly or institution also subject to the regulation. For instance, a city might declare that no structure in its limits may be higher than forty feet, barring construction of a proposed church of forty-five feet. The congregation could assert a violation of the Equal Terms provision as long as it could identify a nonreligious entity also in the city limits. This does not mean that the church automatically wins, but rather that a court can then proceed to analyze whether the treatment was unequal. This plain meaning approach relies on the history[33] and text[34] of RLUIPA as evidence that Congress clearly intended to give religious entities broad protection in land use regulations. 

However, the Third, Sixth, Seventh, and Ninth circuits require that the nonreligious entity also be similarly situated to the religious entity seeking relief.[35] These circuits define “similarly situated” in slightly varying but closely related ways.[36] Each requires the religious entity to show that a nonreligious entity is subject to the same regulation and is sufficiently similar before the court will even analyze unequal treatment.[37] In the example above, that same church could not proceed without identifying a nonreligious assembly of a similar height—and a judge would decide what height is sufficiently similar. The similarly situated approach fears the plain meaning would give too much preference to religious entities and violate the First Amendment as a law “respecting an establishment of religion.”[38]

In May of 2019, the Supreme Court denied review of the most recent case to address this conflict, Tree of Life Christian Sch. v. City of Upper Arlington, leaving this circuit split unsettled.[39]

This issue can make or break a case for Equal Terms plaintiffs struggling to identify a nonreligious entity for comparison. Consider Tree of Life for instance. In that case, the City of Upper Arlington had enacted a zoning regulation to create a business district to maximize revenue for the city.[40] The plan restricted properties within the district to commercial uses and prohibited non-profits generally, including schools.[41] A select few non-profits were automatically exempted from the ban, including hospitals and daycares which the city deemed would promote business.[42] However, places of worship and churches needed conditional use permits from the city.[43] Tree of Life Christian School bought a large office building to create a unified campus for its students, who attended school in multiple locations.[44] Upper Arlington denied Tree of Life’s application for a conditional use permit as a place of worship.[45] In response, Tree of Life sued the city under the Equal Terms provision of RLUIPA.[46] After Tree of Life’s defeat at trial, the major issue on appeal was what nonreligious entity Tree of Life could identify for comparison.[47]

Judge Thapar’s dissent followed the plain meaning approach and argued that Tree of Life could compare treatment using any nonreligious entity in the city.[48] Because hospitals and daycares satisfied this comparison, Judge Thapar proceeded to analyze unequal treatment. He concluded that Upper Arlington’s regulation discriminated on its face against Tree of Life by requiring (and denying) a conditional use permit which those hospitals and daycares did not need.[49] However, Judge Gilman’s opinion for the court held that since Upper Arlington’s zoning plan aimed at raising money for the city, Tree of Life needed to identify a nonreligious institution with similar potential for tax revenue.[50] Although Tree of Life demonstrated it would provide more total taxable income than an approved daycare center, Upper Arlington countered that the daycare would bring in more tax dollars per square foot.[51] Siding with the city, the court refused to analyze unequal treatment because no nonreligious entity was similarly situated.[52] Thus the interpretation of which nonreligious entity to compare controlled the outcome of the case.

III. Analysis

On one hand, the similarly situated approach makes intuitive sense. Consider Tree of Life: the regulation was about raising money for the government, and Upper Arlington merely denied a conditional use for something it believed would not make much money. The problem with this approach is that it controverts the plain meaning of the Equal Terms provision. As Judge Thapar explained in his dissent, the statute clearly tells courts what to use to compare treatment. He went on to say that the only work for the court to do is identify a nonreligious entity, and then analyze whether the treatment was unequal. The similarly situated requirement makes it harder for religious people to assert violations of the Equal Terms provision, as Tree of Life shows. Without a nonreligious entity to compare, the court could not even analyze unequal treatment. Further, the city held all the cards, because it defined the criteria of its regulations. Upper Arlington twisted the standard for revenue generation to prevent Tree of Life from identifying a comparable nonreligious entity. Even though the regulation discriminated on its face by requiring a special permit for religious entities, Tree of Life could not show an Equal Terms violation. 

The Tree of Life decision took the teeth out of the Equal Terms provision and gave governments an easy way to exclude unwanted religious entities. Religious entities will almost always create less tax dollars than for-profit businesses, so any government seeking to push out a religious entity need only cite economic growth as justification. Allowing governments to exclude religious entities by casting their land use schemes in monetary terms controverts RLUIPA’s purpose. 

A. Legislative History and Plain Language 

RLUIPA and its Equal Terms provision were meant to give religious entities a major tool to protect their free exercise: a government cannot use land use regulations to allow nonreligious entities but exclude religious ones. The similarly situated approach is not based on the actual text or history of RLUIPA. Instead, courts have created the similarly situated requirement on their own. They reasoned that Congress could not have meant to exempt religious entities from land use regulations that everyone else must follow—so the text must mean something else. Finding the statute ambiguous, they created new terms that made asserting an Equal Terms violation harder for religious entities. But the history of RLUIPA does not support such a reading, and the statute is not ambiguous. 

Congress’ tug of war with the Supreme Court demonstrates Congress’ commitment to protect religious exercise to the greatest degree permitted by law. Congress absolutely intended to allow religious exemptions from generally applicable laws; that was what RFRA and RLUIPA were all about. Even Smith itself, which limited the capacity of judges to provide religious exemptions, explicitly stated that legislatures may provide these exemptions if they so desire. Smith all but encouraged legislatures to provide religious exemptions by statute so that judges would not have to. RLUIPA does just that. 

If a court doubts legislative history, the statute itself removes any confusion; it instructs courts to construe the terms to protect religious entities to the maximum possible extent. Consider the text once more: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” The text is clear, and the words “similarly situated” are not there. The words that are present do not suggest that courts should first inquire as to whether a nonreligious entity is similarly situated enough, and only then proceed to the question of unequal treatment. The court’s job is simply to compare “a religious assembly or institution” with “a nonreligious assembly or institution.”

B. Establishment Clause 

Courts have recognized the constitutionality of religious exemptions for decades. RLUIPA’s Equal Terms provision continues that tradition. The Supreme Court’s logic in Cutter, which dealt with the strict scrutiny provision in the prison context, is directly applicable to the Equal Terms provision in the land use context. The Court emphasized that protecting free exercise and remedying discrimination can require giving special accommodation to religious entities. Because religious exercise involves actions, not just abstract thought, those accommodations might mean permitting a specific activity, such as inmates gathering for prayer or a congregation building a new church. Those accommodations are permissible as long as they do not promote religion. 

Applying the plain meaning of the Equal Terms provision does not promote any specific religion, nor does it promote religion over nonreligion. Regardless of belief, any religious institution or assembly can sue under the Equal Terms provision. Most importantly, even if a religious entity shows a comparable nonreligious entity, victory is not automatic. Another element of an Equal Terms violation is unequal treatment; the court must still decide that the government is actually treating the religious entity unequally compared to a nonreligious entity. Showing such treatment will be hard if only the government knows the true reason for the regulation. Courts should not make that process any harder by barring religious entities who cannot demonstrate a sufficiently similar nonreligious entity. 

IV. Conclusion

Congress wrote the Equal Terms provision of RLUIPA to ensure that governments do not use land use regulations to exclude religious entities. Unfortunately, some courts have deviated from Congress’ intention and imposed an added requirement which makes it more difficult to assert an Equal Terms violation. Neither the text and history of RLUIPA nor the Establishment Clause justify this added obstacle. Future courts should follow the Eleventh Circuit’s lead and enforce the plain meaning of the Equal Terms provision: governments cannot use land use regulations to treat religious entities worse than nonreligious entities.


[1] Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. No. 106-274, 114 Stat. 803 (2000). 

[2] 42 U.S.C. §2000cc(b)(1). 

[3] Id. at §2000cc-2(a). 

[4] Tree of Life Christian Sch. v. City of Upper Arlington, 905 F.3d 357, 387 (6th Cir. 2018) (“[C]ircuits split on the issue.”). 

[5] Id. at 366. (“The key disagreement among the circuits is what constitutes a proper comparator for the purpose of analyzing these elements.”) 

[6] Id. 

[7] Id. at 379 (Thapar, J., dissenting). 

[8] Lighthouse Inst. For Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 267 (3rd Cir. 2007); Tree of Life, 905 F.3d at 367; River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367, 372 (7th Cir. 2010); Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1173 (9th Cir. 2011).

[9] River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367, 378 (7th Cir. 2010). 

[10] Sherbert v. Verner, 374 U.S. 398, 403-06 (1963) (holding that South Carolina’s Employment Security Commission could not exclude a Seventh Day Adventist from unemployment benefits when she was fired for refusing to work on Saturdays);  Wisconsin v. Yoder, 406 U.S. 205, 236 (1972) (holding that Wisonsin’s compulsory education statute unduly  burdened the Amish community’s religious belief that higher education exposes develops influences which alienate man from God) 

[11] See generally Sherbert, 374 U.S. 398; Yoder, 406 U.S. 205. 

[12] 494 U.S. 872 (1989).

[13] Id. at 884-85. 

[14] Id. at 890. 

[15]Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L Rev. 153, 159 (1997) 

[16] Id. 

[17] H.R. 1308 – Religious Freedom Restoration Act of 1993, Congress.gov, https://www.congress.gov/bill/103rd-congress/house-bill/1308/all-actions?overview=closed#tabs.

[18] 42 U.S.C. §2000bb. 

[19] 521 U.S. 507, 536 (1997). 

[20] Michael Paisner, Boerne Supremacy: Congressional Responses to City of Boerne v. Flores and the Scope of Congress’s Article I Power, 105 Colum. L. Rev. 537, 542-43 (2005).

[21] S.2869 – Religious Land Use and Institutionalize Persons Act of 2000, Congress.gov, https://www.congress.gov/bill/106th-congress/senate-bill/2869/all-actions?r=1&overview=closed#tabs.

[22] 42 U.S.C. §2000cc(a). 

[23] Id. at §2000cc-1(a). 

[24] Id. at §2000cc(b)(1). 

[25] Id. at §2000cc-3(g). 

[26] Tree of Life, 905 F.3d at 367 (Gilman, J., for the court); Id. at 378 (Thapar, J., dissenting).  

[27] Id. at 380. 

[28] Id. 

[29] Id. at 381. 

[30] Id. at 381-82. 

[31] Tree of Life, 905 F.3d at 367. 

[32] Midrash Shepardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1231 (11th Cir. 2004). 

[33] River of Life, 611 F.3d at 378-80 (Sykes, J., dissenting). 

[34] Tree of Life, 906 F.3d 357 at 379 (Thapar, J., dissenting). 

[35] Id. at 369. 

[36] Id. 

[37] Id. 

[38] Id. at 368.

[39] 905 F.3d 357 (6th Cir. 2018) (Cert. denied in Tree of Life Christian Sch. v. City of Upper Arlington, 139 S. Ct. 2011 (2019)). 

[40] Tree of Life, 905 F.3d at 361-62.

[41] Id. 

[42] Id. 

[43] Id. 

[44] Id. at 362. 

[45] Id. at 362.

[46] Id. at 363. 

[47] Id. at 363-67. 

[48] Id. at 384. 

[49] Id. at 385.  

[50] Id. at 371.

[51] Id. at 375-76.

[52] Id. at 376. 

[53] Id. at 368. 

[54] Employment Div. v. Smith, 494 U.S. 872, 890 (1990); Cutter v. Wilkinson, 544 U.S. 709. 

[55] 544 U.S. 709 (2005). 

[56] Id. at 720-22.

[57] Id. at 723-24. 

[58] Id. at 724. 

[59] Freedom Baptist Church v. Twp. Of Middletown, 204 F. Supp. 2d 857, 869-70 (E.D. Penn. 2002); Midrash Sephardi 366 F.3d at 1239-40. 

Negotiation Class Certification In Opioid Epidemic Litigation

Opioids by K-State Research and Extension is licensed under CC BY 2.0.

Blythe McGregor, Associate Member, University of Cincinnati Law Review

U.S. District Judge Dan Polster believes that a unique crisis calls for a creative solution.[1] In September 2019, Judge Polster certified a “negotiation” class as a means of resolving the more than 2,000 claims of local governments throughout the United States. Plaintiffs allege that the defendants (opioid makers, distributors, and pharmacies) are responsible for the nation’s opioid addiction epidemic because drug makers marketed opioid drugs with no regard to the risk of addiction and distributors failed to report suspicious drug orders.[2] On November 8, 2019, the Sixth Circuit agreed to review this certification.[3]

A class action is a procedure by which one or more members of a similarly situated group may sue or be sued on behalf of all members of the group.[4] Historically, certification of class actions has been approved for settlement and litigation purposes only.[5] Rule 23 of the Federal Rules of Civil Procedure governing class action codifies only these two types of classes.[6]

The Supreme Court has contemplated and accepted class certification for a purpose beyond litigation. Notably, the Court in Amchem Products, Inc. v. Windsor[7] analyzed a class action that was certified for settlement purposes only.[8] A negotiation class action, however, was first proposed by law professors Francis McGovern and William Rubenstein,[9] the former of which served as a Special Master in the opioid epidemic district court case.[10] Judge Polster approved the negotiation class as a 23(b)(3) class.[11] Therefore, the judge concluded that “questions of law or fact common to class members predominate over any questions affecting only individual members and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”[12]

A negotiation class would differ from previously certified classes in a few ways. Like a litigation class, class certification and the opt-out process would occur before a settlement is reached.[13] The class size would thus be set, and Judge Polster claimed this would give the defendants a sense of the “scope of the group with which they are negotiating.”[14] Class member-plaintiffs are not without the means to protect themselves from an unfavorable settlement. While in a settlement class action the terms of the settlement are reached and class members are then given the chance to opt out,[15] negotiation class members would only know the method of allocating a potential settlement when they make the decision to opt in or out.[16] After a settlement is reached, each member of the class will vote yes or no as to whether the settlement is sufficient, and the settlement will not be approved unless 75% of members vote yes.[17] For the particular class certified by Judge Polster, various vote counts will be completed by number, population, and allocation to ensure that control cannot be gained by smaller counties, small recovery counties, or litigating or nonlitigating counties.[18] The court also must approve any proposed settlement.[19] While class members are able to protect themselves, opting into the class is not without risk. If plaintiffs are dissatisfied with the dollar amount of the resulting settlement, either other members will be dissatisfied as well and vote the settlement down or, if 75% of other class members approve of the settlement, plaintiffs will be bound to the settlement even if they voted no.[20] Defendants are not required to negotiate with the class.[21]

Judge Polster believes adopting this novel procedure will promote global settlement, i.e., a settlement that resolves the majority of the lawsuits arising from the opioid epidemic.[22] Settlement in the opioid suits brought by local governments is essential because it would provide relief to the multitude of communities suffering from the epidemic as quickly and uniformly as possible.[23] Likewise, the defendants desire a global settlement to free themselves from further liability. Thus, they do not want plaintiffs to have the chance to opt out after settlement is reached, which would be the case if a settlement class were certified.[24]  A negotiation class action provides a creative solution to this problem.[25]Judge Polster also looked to the purpose of Rule 23 in holding that the new procedure is compliant with the rule.  The purpose of Rule 23 is to provide “practical means for addressing complex litigation problems.”[26] Also, the text of the rule does not expressly limit class actions to only those of the settlement or litigation variety.[27]

Judge Polster then determined that the proposed negotiation class satisfied all requirements of Rule 23(a). Rule 23(a) requires that the “class is so numerous that joinder of all members is impracticable,” “there are questions of law or fact common to the class,” “the claims or defenses of the representative parties are typical of the claims or defenses of the class,” and “the representative parties will fairly and adequately protect the interests of the class.”[28] The thousands of public entity plaintiffs easily satisfy the numerosity requirement.[29] Common factual questions about defendant’s knowledge of conduct regarding the distribution of opiates and the similarity of claims satisfies the commonality requirement.[30] The interests of the class representatives and class members are the same: they are all interested in recovering money that they had to pay to cope with the opioid epidemic within their communities.[31] Thus, the typicality requirement is met.

Next, the class representatives are capable and willing to represent the other class members in litigation as they are similarly situated government entities who have been engaged in this type of litigation for years.[32] Thus, these representatives will “adequately protect the interests of the class.”[33] Lastly, Judge Polster held that the class can be certified under 23(b)(3) because common issues of fact or law predominate over questions affecting only individual plaintiffs and a class action is a superior method of adjudication. Judge Polster held that the common elements of plaintiffs’ Racketeer Influenced and Corrupt Organizations Act (RICO) and Controlled Substance Act (CSA) claims predominate over individual elements.[34] Here, certification as a 12(b)(3) class is appropriate even if the injuries differed from plaintiff to plaintiff because the majority of Rule 23 class action elements can be established by class-wide proof.[35] A class action is a superior method of adjudication here because only a small percentage of proposed members are currently involved in litigation.[36] Those that are currently litigating are in the earlier stages of litigation, so certification of a class would not interfere with existing litigation.[37] The existing litigation would only resolve a small percentage of the class’s claims; so, certification of the class would resolve many more claims than the existing individual litigation alone would achieve.[38]        

Despite Judge Polster’s analysis, six Ohio cities sought to appeal the certification of a negotiation class.[39] The six Ohio parties take issue with the negotiation class’s notice procedure.[40] Specifically, they allege that the procedure violates Rule 23 because class members would have to opt in or out before a settlement is reached and thus before class members knew the exact terms of the settlement.[41] These parties view the expressly enumerated types of class actions in Rule 23 as exhaustive. Rule 23 contemplates class certification “for purposes of settlement” but does not discuss a negotiation class and the appealing parties contend that a negotiation class does not comply with the procedure established for settlement classes by the rule.[42] Further, these parties argue that a negotiation class violates their due process rights.[43] Because class members are potentially opting into the class and binding themselves to a future settlement, they are waiving their constitutional rights.[44] These parties allege that without knowing the exact terms of settlement, such waiver is not made knowingly and voluntarily as the Constitution requires.[45]

Several defendants also sought to appeal the certification.[46] These parties also believe the certification of a negotiation class contradicts the text of Rule 23.[47] Defendants suggest that the certification of this class is contrary to the federal court’s Article III authority: in approving the certification of the class, the court was not adjudicating a case or controversy but instead was simply creating an organization to aid with negotiation.[48] These parties also argue that the Rule 23 requirements are not met because of conflicts of interest between the class members and a lack of predominance of common issues for both the CSA and RICO claims.[49] Further, Defendants make due process arguments that the procedure does not provide adequate notice to class members.[50] Defendants claim that they will be harmed through use of a negotiation class because the process diverts resources needed to resolve the opioid crisis to an unapproved mechanism that may not even have an effective outcome.[51]

The certification of a negotiation class would have implications for parties on both sides of the opioid crisis litigation. The negotiation class procedure would provide the thousands of local governments not currently engaged in litigation related to the opioid crisis with a relatively efficient way of reimbursing the money spent to address the epidemic. However, some of the smaller jurisdictions lacking in funds and access to legal counsel may be confused by this novel process. Some jurisdictions may “opt in” to a class or vote yes to settlement terms that are not as favorable as terms that could result from individual litigation. Although, as Judge Polster pointed out, defendants will have the knowledge of the size of the class prior to negotiating,[52] the sheer mass of local governments that may opt in provides plaintiffs with greater leverage in negotiation than they would have in a typical settlement class action where the settlement is reached before the opt-out period begins. Binding class members to terms of a settlement that has not yet been reached may be problematic in other cases, but because of the desperate need for local governments to address the opioid epidemic in a timely fashion, certification of this unconventional class might be just the solution these local governments need. In fact, a negotiation class may be unconventional simply because there has never been a need for such a class. If the certification of a negotiation class is upheld by the Sixth Circuit, negotiation class actions are likely to be certified only in the rare occasion that the need for a singular remedy spans the nation. 


[1] Memorandum Opinion Certifying Negotiation Class at 2, In Re: National Prescription Opiate Litigation, No. 1:17-MD-2804 (Sept. 11, 2019). 

[2] Colin Dwyer, Your Guide to the Massive (And Massively Complex) Opioid Litigation, NPR, (October 15, 2019, 9:05 AM) https://www.npr.org/sections/health-shots/2019/10/15/761537367/your-guide-to-the-massive-and-massively-complex-opioid-litigation.

[3] Order, In Re: National Prescription Opiate Litigation, No. 19-0305 (November 8, 2019).

[4] Fed. R. Civ. P. 23(a)

[5] Memorandum Opinion Certifying Negotiation Class at 7, In Re: National Prescription Opiate Litigation, No. 1:17-MD-2804 (Sept. 11, 2019).

[6] Fed. R. Civ. P. 23. 

[7] Amchem Prod., Inc. v. Windsor, 521 U.S. 591 (1997).

[8] Id. at 601. 

[9] Francis McGovern & William Rubenstein, The Negotiation Class: A Cooperative Approach to Class Actions Involving Large Stakeholders, Duke Law Sch. Pub. Law & Legal Theory Series, Paper No. 2019-41 (2019).

[10] Memorandum Opinion Certifying Negotiation Class at 2, In Re: National Prescription Opiate Litigation, No. 1:17-MD-2804 (Sept. 11, 2019).

[11] Id. at 1.  

[12] Fed. R. Civ. P. 23(b)(3).

[13] Memorandum Opinion Certifying Negotiation Class at 3, In Re: National Prescription Opiate Litigation, No. 1:17-MD-2804 (Sept. 11, 2019).

[14] Id.

[15] Id. at 2.

[16] Id. at 5.

[17] Id. at 6.

[18] Id. 

[19] Id. at 7.

[20] Id. at 6-7.

[21] Id. at 7.

[22] Id. at 2-3.

[23] Id. at 2.

[24] Id.

[25] Id. 

[26] Id. at 9.

[27] Id. at 8.

[28] Fed. R. Civ. P. 23(a). 

[29] Memorandum Opinion Certifying Negotiation Class at 16, In Re: National Prescription Opiate Litigation, No. 1:17-MD-2804 (Sept. 11, 2019).

[30] Id. at 17-18.

[31] Id. at 18-20.

[32] Id. at 20-21.

[33] Fed. R. Civ. P. 23(a)(4).

[34] Memorandum Opinion Certifying Negotiation Class at 29, In Re: National Prescription Opiate Litigation, No. 1:17-MD-2804 (Sept. 11, 2019).

[35] Id. at 25-29.

[36] Id. at 30.

[37] Id. at 31.

[38] Id.

[39] Petition for Permission to Appeal Pursuant to Fed. R. Civ. 23(f) at 1, In Re: City of N. Royalton, OH, et al, No. 19-306 (Sept. 26, 2019).

[40] Id. at 8. 

[41] Id. 

[42] Id. at 8-9

[43] Id. at 19. 

[44] Id.

[45] Id. 

[46] Petition for Permission to Appeal Pursuant to Fed. R. Civ. 23(f) at 1, In re: McKesson Corp., et al, No. 19-305 (Sept. 26, 2019). 

[47] Id. at 8.

[48] Id. at 9.

[49] See id. at 13-22.

[50] Id. at 22-24.

[51] Id. at 25.

[52] Memorandum Opinion Certifying Negotiation Class at 3, In Re: National Prescription Opiate Litigation, No. 1:17-MD-2804 (Sept. 11, 2019).

Did the Ohio House Really Pass a Law Allowing Students to be Scientifically Wrong Due to Religion?

Photo by Aaron Burden on Unsplash

Corey Bushle, Associate Member, University of Cincinnati Law Review

I. Introduction

The Ohio House of Representatives recently passed House Bill 164, titled the Ohio Student Religious Liberties Act of 2019 (“HB 164”). The bill amends, adds, and revises language to several Ohio Revised Code provisions about student religious conduct at school, but one specific part of the bill has garnered media attention for its potential implications on how teachers are allowed to grade assignments. HB 164 proposes a new Ohio Revised Code Section 3320.03, which prohibits teachers from penalizing or rewarding a student’s assignment score based on the religious content of the student’s work. Critics of the bill, and numerous local media headlines, argue that this provision means that a teacher can’t mark a factually incorrect answer wrong, so long as the answer’s reasoning contains the student’s religious beliefs.[1]

But is that a fair reading of the bill? An examination of the bill’s language and statements from the bill’s chief proponent, state Representative Timothy Ginter, reveals that the answer is “no.” This article will examine the true implications of HB 164 based on the bill’s text and legislative history, and explain why the proposed law doesn’t mean what its critics and the news media seem to think it means.

II. What Does the Bill Actually Say?

The text of HB 164 provides teachers much more discretion to grade a student’s work based on academic standards than the media headlines and the bill’s critics imply. Under proposed Revised Code Section 3320.03, “[a]ssignment grades and scores shall be calculated using ordinary academic standards of substance and relevance, including any legitimate pedagogical concerns, and shall not penalize or reward a student based on the religious content of a student’s work.”[2]

The bill’s plain language reveals a potential framework for analyzing a case arising under Section 3320.03. First, the teacher—or a court, were a case to arise under the statute—must ask what the ordinary academic standards of substance and relevance are for the given assignment’s subject area. Second, the teacher must examine the student’s answer against those ordinary academic standards. The student is rewarded, or not rewarded, based on whether the answer contains the academically correct answer. In adding or subtracting points, the teacher must not deduct—or add—points based on religious content in a student’s work—effectively redacting solely religious content from the teacher’s analysis. 

It is not a plausible reading of the proposed statute that a scientifically wrong answer must be marked correct if it contains religious content. In fact, the bill’s plain language prohibits such an outcome. The last clause of the statute forbids adding points based on the religious content of the work. Thus, while a court analyzing a case under this statute must have a keen eye to determine if a teacher marks a student wrong because of religious content, versus a lack of academic content. Presumptively, if a student’s answer contradicts clearly articulated academic standards, a court would not interpret such a grade as religious discrimination, but instead a routine application of ordinary academic standards. By requiring teachers to grade based on relevant and substantial academic standards, the bill requires a scientifically wrong answer to be marked wrong, not due to the presence of religious content in the answer, but, instead, due to the absence of scientific content. If the bill’s drafters wanted to allow a student to be awarded points for a scientifically wrong answer, they certainly could have drafted the law in a more restrictive, pro-religion manner.

HB 164’s drafters included another phrase which indicates their intent to reserve for teachers wide latitude in grading by permitting grades to be calculated for “any legitimate pedagogical concerns.”[3] That phrase appears in the United States Supreme Court case Hazelwood School District v. Kuhlmeier, where the Court held that a school may censor student speech in school-sponsored expressive activities, like a school newspaper, so long as the school’s actions are reasonably related to legitimate pedagogical concerns.[4] Under Hazelwood, only school actions that have no valid educational purpose at all violate the “legitimate pedagogical concern” standard.[5] It seems clear that the drafters of HB 164 would not have used this language if they did not mean to similarly permit teachers to grade assignments on a broad range of legitimate educational values, so long as those values are not motivated by religious discrimination.

Comments from the bill’s sponsor, State Rep. Timothy Ginter, support the above analysis. When asked what would happen if a student, who does not believe in evolution, submits science homework espousing that view, Ginter admitted the student would receive a lower grade. “Even if the student doesn’t believe in evolutionary theory, the student must turn in work that accurately reflects what is taught. It will be graded using ordinary academic standards of using substance and relevance,” said Ginter, mirroring the bill’s language.[6] When Ginter introduced the bill in April 2019, he indicated that its primary purpose was to “codify into law the rights granted to students under the United States Constitution” by removing prohibitions on student religious expression during instructional time at school.[7]

Even at this early stage, Rep. Ginter assured the House that assignment grades and scores would still be calculated “using ordinary academic standards.”[8] The final version of the bill reflects that Ginter’s chief concern was not the suppression of scientific teaching that conflicts with religion, but a more benign purpose—permitting students to engage in religious expression in school. For example, proposed Revised Code Section 3320.02 permits students to engage in religious expression during school “to the same extent that a student is permitted to engage in secular activities or expression” at school.[9] While some critics argue that this provision may run afoul of the Establishment Clause of the First Amendment,[10] the language of Section 3320.02, much like that of 3320.03, clearly does not show a desire to supplant secular activities in school for religious activities.

III. Conclusion

One might ask what problem Section 3320.03 solves in schools if it does not meaningfully change the way teachers grade assignments—after all, state-sponsored religious discrimination is already prohibited by the Fourteenth Amendment of the United States Constitution. Critics of the bill in the Ohio legislature have called the bill redundant in light of existing state and federal protections for religious expression.[11] The best explanation is probably that the bill was intended to appeal to religious constituents for whom freedom of expression is a hot-button issue and not to drastically change the academic standards of Ohio. With ongoing battles in the legislature over recent controversial abortion laws and an election year for the State House of Representatives coming up in 2020, Ohio lawmakers are likely trying to pass laws that signal values supported by their voters. Regardless of the motivations behind HB 164, Ohio teachers can rest easy knowing that they probably don’t need to worry about marking incorrect answers as incorrect, so long as they grade based on the established academic standards in their subject areas.


[1]See e.g. “Ohio House passes bill allowing student answers to be scientifically wrong due to religion,” ABC 6 On Your Side, https://abc6onyourside.com/news/local/ohio-house-passes-bill-allowing-student-answers-to-be-scientifically-wrong-due-to-religion (last visited Nov. 22, 2019).

[2]H.B. 164, 133d Gen. Assemb., Reg. Sess. at 424-428 (Oh 2019).

[3]Id. at 426.

[4]484 U.S. 260, 273 (1988).

[5]Id.

[6]Laura Hancock, “Ohio Lawmakers clear bill critics say could expand religion in public schools,” Cleveland.com, https://www.cleveland.com/open/2019/11/ohio-lawmakers-clear-bill-allowing-students-to-turn-in-inaccurate-work-in-name-of-religion-second-anti-science-bill-in-a-week.html (last visited Nov. 22, 2019) [hereinafter Hancock].

[7]Id

[8]Id

[9]H.B. 164, 133d Gen. Assemb., Reg. Sess. at 403-407 (Oh. 2019).

[10]Hancock, supra.

[11]Id.

Complications Tomorrow are Not Disabilities Today: Is the Fear of Future Medical Issues Discrimination Under the ADA?

“Clear glass bathroom scale on dark brown wood floors” by yourbestdigs is licensed under CC BY 2.0 

Mike Chernoff, Associate Member, University of Cincinnati Law Review

I. Introduction

Imagine a potential employer denying your application for a job because of your weight. This is what occurred in Shell v. Burlington Northern Santa Fe Railway Company. Americans with disabilities are protected from discrimination by the Americans with Disabilities Act. Many disabilities are protected by this Act, but obesity is generally not considered a disability under the statute. Recently, an applicant that was denied a position based on their weight challenged that the employer discriminated against them because the future complications from their weight was a disability. On appeal to the United States Court of Appeals for the Seventh Circuit, the court held that disabilities must be present at the time of the alleged discrimination. This decision created another factor for applicants and employers to consider during the hiring process.

II.  Background

The Americans with Disabilities Act (“ADA”) protects Americans with disabilities from discrimination by providing standards that address this discrimination.[1] Under the ADA, a disability is “a physical or mental impairment that substantially limits one or more major life activities of such individual.”[2] The statute does not list specific disabilities.[3] The ADA states that “no covered entity shall discriminate against a qualified basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”[4] In order to prove an ADA violation, a plaintiff must show: “(1) he is disabled; (2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) the adverse job action was caused by his disability.”[5]

Courts disagree whether obesity is considered a disability under the ADA. Obesity is defined as a body-mass index of greater than 30.[6] The Second, Sixth, Seventh, and Eight Circuit Courts, and a majority of district courts, hold that obesity is an impairment under the ADA only if it is the result of an underlying “physiological disorder or condition.”[7] These courts looked to prior interpretations of the Equal Employment Opportunity Commission (“EEOC”) for guidance. The EEOC states that “impairment” does not include weight that is within “normal” range and not the result of a physiological disorder.[8] However, a small number of district courts have held that extreme obesity is an impairment under the ADA even without an underlying physiological cause.[9] This minority of courts construe the EEOC interpretive guidance as stating “weight may be an impairment when it falls outside the normal range or occurs as the result of a physiological disorder.”[10] Courts continue to hear cases concerning the application of ADA protections to those that suffer from obesity.

III. Shell v. Burlington Northern Santa Fe Railyard

Earlier this year, the United States Court of Appeals for the Seventh Circuit decided a case concerning a worker that was denied a position due to his weight and the future complications that may arise therefrom in the case of Shell v. Burlington Northern Santa Fe Railway Company.[11] In 1977, Ronald Shell began work at the Corwith Rail Yard in Chicago.[12] Through 33 years of service, Shell held many positions at the railyard and was a productive and skilled employee.[13] In 2010, Burlington Northern Santa Fe Railway Company (“BNSF”) owned Corwith Yard, but an outside organization handled the operations of the railyard.[14] Shell worked for this outside organization.[15] Later in 2010, BNSF assumed the railyard’s operation and invited the previous operator’s employees to apply for new positions with BNSF.[16]

Shell applied to work as an intermodal equipment operator, which required the employee to perform three roles: (1) groundsman, one who climbs on railcars to insert and remove devices that interlock the containers, (2) hostler, one who drives the trucks that move trailers, and (3) crane operator, one who operates the cranes used to load and unload containers.[17] Due to the position’s nature of working on and around heavy equipment, BNSF classified this position as “safety-sensitive.”[18] Shell was subsequently given a conditional offer of employment, with one of the conditions being that Shell pass a medical evaluation.[19]

Shell had described his overall health as very good and did not report any medical conditions on a medical history questionnaire.[20] However, a physical exam then found Shell to be 5’ 10” tall and weighed 331 pounds, equating to a BMI of 47.5.[21] BNSF had a policy of not hiring applicant with a BMI of 40 or greater for safety-sensitive positions.[22] BNSF stated that the reasoning behind the policy was that prospective employees of this BMI are at a substantially higher risk of developing certain conditions, such as sleep apnea, diabetes, and heart disease.[23] BNSF believes that someone at risk for these conditions could “unexpectedly experience a debilitating health episode” and lose consciousness putting everyone in the vicinity in danger.[24] Per BNSF policy, Shell was not medically qualified for the role, but Shell was informed that his application could be reconsidered if he lost 10% of his weight, maintained the weight loss for at least six months, and submitted to further medical evaluations if requested.[25]

Shell sued BNSF and alleged that this hiring denial constituted discrimination on the basis of a perceived disability in violation of the ADA.[26] Shell argued that this disability was not based on his obesity, but rather the potential future impairments stemming from the obesity were a disability.[27] BNSF moved for summary judgment and was denied by district court.[28] BNSF subsequently appealed this denial to the Seventh Circuit Court of Appeals.[29]

The court first looked to the plain language in the ADA, which defines “disability” as “being regarded as having [a physical or mental] impairment.”[30] The court believes this language clearly covers only current impairments, not future ones.[31] Shell could only prove that BNSF refused to hire him because of a fear that he would one day develop an impairment, and this does not equate to not hiring him because of a disability.[32]

The court also referenced similar cases heard by other circuits on similar “future disability” issues; all of which held that the disability must be present at the time of the alleged discrimination.[33] For example, in Morriss v. Burlington Northern Santa Fe Railway Company, an applicant was denied a similar role in a nearly identical situation with their weight being a key factor in the denial.[34] This applicant argued that BNSF perceived them as having a current physical impairment, and therefore should be protected by the ADA.[35] The Eight Circuit decided against this argument stating that “[t]he ADA does not prohibit discrimination based on a perception that a physical characteristic—as opposed to a physical impairment— may eventually lead to a physical impairment as defined under the Act.”[36] Due to the language of the statute and the prior rulings from various circuit courts, the seventh circuit court ruled that BNSF was entitled to summary judgment and had not discriminated against Shell.[37] The court blocked another argument that viewed obesity as a disability, reaffirming the majority view of the circuits that obesity is not a disability under the ADA without an underlying physiological condition. 

IV. Discussion 

Although obesity may cause complications later in life for a person, these complications are not guaranteed to occur. In many cases, modest weight loss can improve or prevent the health problems that are associated with obesity.[38] However, there are many underlying causes and risk factors associated with obesity that are out of that person’s control, and these people are protected by the ADA.[39] Due to this distinction, the court made the correct decision in stating that future complications should not be considered when deciding whether a future disability is protected under the ADA. The court recognized that without an underlying condition, many obese people may have the opportunity to remedy the situation and decrease the risk of future complications. 

As more cases reinforce that obesity is not considered a disability, employers likely will have less concern in making hiring decisions based on a person’s weight and the effects of this characteristic. A business may make this type of decision due to the benefits that the business’s finances may see from hiring people that are not suffering from obesity. Absenteeism caused by obesity costs the American economy $4.3 billion annually.[40] Employers may also have concerns about the cost of health insurance for an obese employee. From 2009 to 2018, employer contributions to health insurance premiums rose fifty-one percent.[41] Twenty-one percent of all healthcare costs in the United States are associated with obesity-related illnesses.[42] In a time with rising healthcare costs and increasing pressure on employers for contributions to health plans, the applicant’s weight and the complications that may arise from this number may become a factor that employers consider when hiring certain employees. These decisions would be legal based on the decision of the court inShell. As the majority view continues to expand, the factor of an applicant’s weight being a major point of contention may become a reality for some employers and the applicants themselves.  

V. Conclusion

The majority of courts are continuing to rule that obesity is not a disability as defined by the ADA. The Seventh Circuit correctly held that potential future complications stemming from obesity also do not receive protection from the ADA This was a wise decision because there is the possibility that the risk of these complications can be eliminated over time. However, decisions declaring ADA protection does not extend to obesity and obesity-caused complications may allow employers to factor obesity into hiring decisions and has created another worrisome criterion for applicants.


[1]Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (2019).

[2]Americans with Disabilities Act of 1990, 42 U.S.C. § 12102(1)(A) (2019).

[3]Id.

[4]Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(a) (2019).

[5]Roberts v. City of Chi., 817 F.3d 561, 565 (7th Cir. 2016).

[6]Defining Adult Overweight and Obesity,Centers for Disease Control and Prevention(Apr. 11, 2017), https://www.cdc.gov/obesity/adult/defining.html. Body-mass index is a ratio of a person’s weight to his height.

[7]Richardson v. Chi. Transit Auth. 926 F.3d 881, 887-888 (7th Cir. 2019). See, e.g., Morriss v. BNSF Ry. Co., 817 F.3d 1104 (8th Cir. 2016); EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006); Francis v. City of Meriden, 129 F.3d 281, 286-87 (2d Cir. 1997).

[8]Richardson, 926 F.3dat 889 (quoting 29 C.F.R. §1630.2(h)).

[9]Richardson, 926 F.3d at 887. See, e.g. Velez v. Cloghan Concepts, LLC, 387 F. Supp. 3d 1072 (S.D. Cal. 2019); McCollum v. Livingston, 2017 U.S. Dist. LEXIS 19602 (S.D. Tex. 2017); EEOC v. Res. for Human Dev., Inc., 827 F. Supp. 2d 688 (E.D. La. 2011). 

[10]Velez 387 F. Supp. 3d at 1076. See EEOC v. Res. For Human Dev., Inc. 827 F. Supp. 2d at 695.

[11]Shell v. Burlington N. Santa Fe Ry. Co., No. 19-1030, 2019 U.S. App. LEXIS 32367, at *1 (7th Cir. Oct. 29, 2019).

[12]Id. at *2.

[13]Id.

[14]Id.

[15]Id.

[16]Id.

[17]Id. at *2-3.

[18]Id. at *3.

[19]Id.

[20]Id.

[21]Id.

[22]Id.

[23]Id. at *3-4.

[24]Id. at *4.

[25]Id.

[26]Id.

[27]Id. at *7.

[28]Id. at *5.

[29]Id.

[30]Id. at *8 (quoting 42 USC § 12102(1)(C)).

[31]Shell, 2019 U.S. App. LEXIS 32367, at *8.

[32]Id. at *11.

[33]Id. at *10-11. See alsoEEOC v. STME, LLC, 938 F.3d 1305 (11th Cir. 2019); EEOC v. Burlington N. Santa Fe Ry. Co., 902 F.3d 916 (9th Cir. 2018); Adair v. City of Muskogee, 823 F.3d 1297 (10th Cir. 2016); Morriss v. Burlington N. Santa Fe Ry. Co., 817 F.3d 1104 (8th Cir. 2016).

[34]Shell, 2019 U.S. App. LEXIS 32367, at *10; Morriss, 817 F.3d at 1106.

[35]Shell, 2019 U.S. App. LEXIS 32367, at *10; Morriss, 817 F.3d at 1113.

[36]Shell, 2019 U.S. App. LEXIS 32367, at *10-11; Morriss, 817 F.3d at 1113.

[37]Shell, 2019 U.S. App. LEXIS 32367, at *12.

[38]Obesity: Symptoms and Causes, Mayo Clinic,  https://www.mayoclinic.org/diseases-conditions/obesity/symptoms-causes/syc-20375742.

[39]Id.See Richardson v. Chi. Transit Auth. 926 F.3d 881, 887-888 (7th Cir. 2019); Morriss v. BNSF Ry. Co., 817 F.3d 1104 (8th Cir. 2016); EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006); Francis v. City of Meriden, 129 F.3d 281, 286-87 (2d Cir. 1997).

[40]Economic Costs of Obesity, National League of Cities, https://www.healthycommunitieshealthyfuture.org/learn-the-facts/economic-costs-of-obesity/.

[41]Matthew Rae, et al., Tracking the Rise in Premium Contributions and Cost-Sharing for Families with Large Employer Coverage, Health System Tracker, (Aug. 14, 2019), https://www.healthsystemtracker.org/brief/tracking-the-rise-in-premium-contributions-and-cost-sharing-for-families-with-large-employer-coverage/.

[42]Economic Costs of Obesity, supra note 38.

Social Media Etiquette for Concertgoers at The Banks Concert Venue

concert” by CErixsson is licensed under CC BY-NC 2.0.

Nicolette Crouch, Associate Member, University of Cincinnati Law Review

I. Introduction

Two decades ago, concrete, parking lots, and dirt surrounded the Riverfront Stadium, where the Reds played.[1] Today, restaurants, hotels and apartments, office space, Great American Ballpark, Smale Riverfront Park, Paul Brown Stadium, and a street car route attract people to Cincinnati’s riverfront.[2] The Banks currently generates over $1.6 billion in economic activity each year.[3] The Banks development committee hopes to draw even bigger crowds in 2020 by adding a concert venue along the riverfront.[4]

The venue will be located next to Paul Brown Stadium, feature indoor and outdoor event space, and have capacity to host different events at the same time.[5] As the new venue brings performers that may have skipped Cincinnati in the past, many concertgoers will likely memorialize their concert experiences by recording and sharing concert footage on social media platforms like Facebook and Instagram.[6] But most concertgoers do not realize that posting footage of live musical performances likely constitutes copyright infringement. Even though performers, music publishers, and recording studio companies are unlikely to bring legal action against individual audience members, concertgoers should be aware of relevant copyright laws that protect live performances and why these laws exist.

This article guides concertgoers through copyright laws that govern the kinds of live concert performances that will soon bring down the house at The Banks concert venue. Part II focuses on The Banks concert venue and provides an update on where the deal currently stands. Part III reviews copyright laws connected with live musical performances. Part IV explains how copyright laws impact audience members’ experiences at concerts. Finally, Part IV wraps up by explaining how the local community will benefit from The Bank concern venue.

II. The Banks Concert Venue Deal

The goal of mixed-use development projects like The Banks is to convert worn or underutilized real estate into destinations for living, working, and playing, which generates tax revenues for local governments.[7] Development of mixed-use projects typically requires coordination between local government authorities and private individuals or entities, each of whom may hold conflicting rights.[8] Consequently, bringing The Banks concert venue into reality implicates several key players, including Hamilton County, the City of Cincinnati, The Bengals, Music & Event Management Inc., a subsidiary of the Cincinnati Symphony Orchestra (“MEMI”), and Hilltop Basic Resources, a concrete and gravel facility that is located across the street from Paul Brown Stadium.[9]

After months of negotiations between Cincinnati City Council and the Board of Hamilton County Commissioners, in November the City Council approved the concert venue plan and a development agreement that will allow for the venue to be built on the riverfront.[10] The concert venue is expected to cost $27 million and is slated to open in fall 2020.[11]

The path to the City Council’s approval was not without challenges.[12] Public discussion about the concert venue began in 2015 and quickly led to disputes between city and county leaders about the complicated deal.[13] Because Hamilton County and the City of Cincinnati share joint interests in the riverfront land, city and county leaders disputed who should build the concert venue.[14] Although Cincinnati Mayor John Cranley wanted PromoWest to lead the venue’s development, the Joint Banks Steering Committee ultimately chose MEMI to build the concert venue.[15] MEMI currently operates and promotes live entertainment at venues across southwest Ohio, including Riverbend Music Center, PNC Pavilion, and the Taft Theatre.[16]

City and county leaders also disputed the location of the concert venue and related issues.[17] Because The Bengals are tenants in Paul Brown Stadium, owned by Hamilton County, The Bengals enjoy rights that provide the team with influence over what can be built in the vicinity of the stadium.[18] The Bengals agreed to allow the concert venue to displace current tailgating space.[19] In exchange, Hamilton County agreed to purchase Hilltop’s riverfront land for the team to transform into parking space and possibly a new indoor practice facility.[20] This means that Hilltop must relocate after 51 years of operating at the company’s current location.[21] However, in October the City Council blocked Hilltop from relocating to the west side of Cincinnati.[22]As of the date of this article, Hilltop has not disclosed whether the company has secured a relocation site for its operations.[23]

Despite uncertainty regarding Hilltop’s relocation, the show must go on, and it will, under agreements between The Bengals, Hilltop, the County, and the City.[24]

III. Overview of Music Copyrights

Through copyright protection, Congress aims to promote progression of the arts by granting authors exclusive right to their works for a limited time.[25] From a commercial perspective, copyright protection incentivizes authors to create and market their works.[26] Copyright law protects original works of authorships that are fixed in a tangible medium.[27]

Through the Copyright Act of 1976 (the “Act”), Congress extends copyright protection to two separate and distinct types of musical creations: “musical works” and “sound recordings.”[28] A musical work refers to an artist’s musical composition and accompanying words (hereinafter, “Musical Composition”), while a sound recording is a recorded performance of that composition into a tangible medium.[29] For example, the Musical Composition “Bohemian Rhapsody” and a recording of Queen singing “Bohemian Rhapsody” are distinct works for purposes of copyright law. The music and lyrics are part of the Musical Composition, while a recording of Queen performing that composition is a sound recording.

A copyright holder enjoys a series of exclusive rights, including the right to reproduce the work, the right to perform the work publicly, and the right to display the work publicly.[30] The reproduction right grants the copyright holder control over the creation of copies of the work.[31] The public performance right grants the copyright holder control over the manner in which a work is publicly performed.[32] Finally, a copyright holder has the exclusive right to control the public display of a work.[33] Generally, any unauthorized exercise of these exclusive rights constitutes copyright infringement.[34]

IV. Concertgoers Guide to Copyright Issues at Live Performances

After The Banks concert venue is opened in late 2020, artists will undoubtedly look out among the crowd and view a sea of fans armed with cell phones recording the performance. After all, many fans wish only to capture the moment. Although the performance of a Musical Composition during a concert is protected by copyright law, a concertgoer’s act of recording a performance does not infringe upon any of the performer’s exclusive rights related to the live performance. Indeed, an audience member who records the performance actually owns the copyright in that recording under the Act.[35] However, concertgoers should be aware that some activities which go beyond merely recording a live performance may implicate copyright issues.[36]

First, uploading or sharing on social media platforms or the Internet any recording of the live performance implicates and infringes upon the copyright holder’s reproduction rights under the Act because the concertgoer is creating a copy of the artist’s work.[37] Second, streaming the live performance on social media platforms or the Internet infringes upon the copyright holder’s public performance right because the audience member is transmitting the Musical Composition.[38] Finally, uploading or sharing on social media platforms or the Internet any recording of the live performance also violates the copyright holder’s public display right because the concertgoer is displaying the artist’s work.[39]

Additionally, although not directly implicated by copyright law, artists whose performances are recorded without permission can bring action under the civil bootlegging statute and seek money damages and other civil remedies.[40] Despite violations of the Act or civil bootlegging laws, artists are generally uninterested in filing lawsuits against their fans. The most likely consequence of uploading a recording of a live performance that a concertgoer may experience is a takedown request from the copyright holder of the Musical Composition. However, an increasing number of artists have partnered with concert venue management to restrict cell phone and camera use during live performances to protect copyrighted work.[41] In those circumstances, concertgoers should comply.

V. Conclusion

If The Banks concert venue deal is properly executed, the attraction will incentivize concertgoers to arrive early, stay late, and of course, spend more money. Artists’ live performances at the concert venue will serve as a catalyst to generate needed tax revenues for the City of Cincinnati and Hamilton County. All that the performers ask in return is for concertgoers to use social media etiquette.


[1]Amanda Seitz, After a decade, taxpayers have invested $135M in The Banks. Did we get the return we were promised?, WCPO CINCINNATI (Aug. 15, 2017), https://www.wcpo.com/longform/after-a-decade-taxpayers-have-invested-135m-in-the-banks-but-private-investment-has-lagged.

[2]Bowdeya Tweh, Another new project launching at The Banks, The Banks Cincinnati (Aug. 26, 2015), http://thebankscincy.com/another-new-project-launching-at-the-banks/.

[3]Paula Christian, Who was to blame for Hamilton County’s $821k legal bill last year?, WCPO CINCINNATI (Oct. 1, 2019), https://www.wcpo.com/news/local-news/i-team/who-was-to-blame-for-hamilton-countys-821k-legal-bill-last-year.

[4]See David Winter, Hamilton County reaches deal on Hilltop relocation without city, WKRC Local 12 (Oct. 9, 2019), https://local12.com/news/local/hamilton-county-reaches-deal-on-hilltop-relocation-without-city.

[5]Sharon Coolidge, Here’s what that proposed Banks music venue might look like, The Cincinnati Enquirer (Oct. 3, 2019), https://www.cincinnati.com/story/entertainment/2019/10/03/banks-music-venue-heres-sneak-peek-plans/3846496002/.

[6]See id.

[7]See Maxine Hicks and Andrew L. Much, Stadium development can breathe life into urban areas, DLA Piper (Dec. 12, 2018), https://www.dlapiper.com/en/us/insights/publications/2018/12/stadium-development-can-breathe-life-into-urban-areas/.

[8]See id.

[9]See Sharon Coolidge and Scott Wartman, Banks Music Venue gets final council approval. Set to open fall 2020, The Cincinnati Enquirer (Nov. 21, 2019),https://www.cincinnati.com/story/news/politics/2019/11/21/cincinnati-new-music-venue-banks-approved/4258194002/.

[10]Chris Wetterich, Let the music play: Banks venue gets final approval, CINICNNATI BUSINESS COURIER (Nov. 20, 2019), https://www.bizjournals.com/cincinnati/news/2019/11/20/let-the-music-play-banks-music-venue-gets-final.html.

[11]Scott Wartman and Sharon Coolidge, ‘The music venue moves forward without delay.’ County approves agreement with Bengals, concrete company, The Cincinnati Enquirer (Oct. 8, 2019), https://www.cincinnati.com/story/news/2019/10/08/banks-music-venue-agreement-reached-hamilton-county/3907816002/.

[12]See Christian, supra note 3.

[13]See id.

[14]Id.

[15]Id.

[16]MEMI, Cincinnati Symphony Orchestra, https://www.cincinnatisymphony.org/about/report-to-the-community/memi/ (last visited Nov. 22, 2019).

[17]Christian, supra note 3.

[18]SeeWartman, supra note 11.

[19]Paula Christian, If this riverfront company can’t relocate, will The Banks ever get a concert venue?, WCPO CINCINNATI (May 16, 2019), https://www.wcpo.com/news/transportation-development/move-up-cincinnati/if-this-riverfront-company-cant-relocate-will-the-banks-ever-get-a-concert-venue.

[20]Id.

[21]See id.

[22]Chris Wetterich, Council votes to kill land swap that would make way for music venue; here’s what it means, CINICNNATI BUSINESS COURIER (Oct. 2, 2019), https://www.bizjournals.com/cincinnati/news/2019/10/02/council-votes-to-kill-land-swap-that-would-make.html.

[23]See Winter, supra note 4.

[24]Wetterich, supra note 10.

[25]U.S. Const., art. I, § 8, cl. 8. “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries….”

[26]See Frank Moraes, Copyright Law In 2019 Explained In One Page, Who Is Hosting This (Oct. 24, 2019), https://www.whoishostingthis.com/resources/copyright-guide/.

[27]17 U.S.C. § 102(a)(2) (1990).

[28]17 U.S.C. §§ 102(a)(2), (7) (1990).

[29]See Copyright Registration of Musical Compositions and Sound Recordings, U.S. Copyright Office, https://www.copyright.gov/circs/circ56a.pdf (last visited Nov. 22, 2019).

[30]17 U.S.C. § 106 (2002).

[31]What rights do copyright owners have?, Copyright Alliance, https://copyrightalliance.org/ca_faq_post/rights-copyright-owners-ata/ (last visited Nov. 22, 2019).

[32]Id.

[33]Id.

[34]17 U.S.C. § 501 (2002).

[35]17 U.S.C. § 102(a)(2) (1990).

[36]This article assumes that a concertgoer has not been authorized or is otherwise allowed under the law to exercise any rights listed in Section 106 of the Act.

[37]See 17 U.S.C. § 106(1) (2002).

[38]See 17 U.S.C. § 106(4) (2002).

[39]See 17 U.S.C. § 106(5) (2002).

[40]17 U.S.C. § 1101 (2006).

[41]See Rachel Stilwell and Makenna Cox, Phone Recordings of Concerts Are More Than Just Annoying, They’re Potentially Illegal: Guest Post, Billboard (Mar. 3, 2017), https://www.billboard.com/articles/business/7724330/phone-recordings-concerts-illegal-federal-bootlegging-laws.

I would like my eggs frozen, please

“Pregnant!” by drewesque is licensed under CC BY-NC-ND 2.0 

Chloe Knue, Associate Member, University of Cincinnati Law Review  

I. Introduction

In vitro fertilization (“IVF”) is a long and rigorous process. First, it “requires a woman to undergo a series or hormonal injections to stimulate the production of [eggs] . . . The medication causes the ovaries to release multiple egg cells during a menstrual cycle rather than the single egg normally produced.”[1] After the injection period, a physician will harvest all of the eggs.[2] These eggs are fertilized in a laboratory using the sperm of a contributing male.[3] “[T]he preembryos are either returned to the woman’s uterus for implantation or cryopreserved at a temperature of -196 C and stored for possible future use.”[4] The IVF process is successfully completed when one of the eggs is retained by the body—resulting in a pregnancy.[5]

It is often the case that a married couple will embark on this journey to parenthood together, but if they divorce, a dispute sometimes arises over the remaining pre-embryos. When this happens, courts must adjudicate: (1) what happens to the pre-embryos and (2) who decides.  Section II will outline the three different tests adopted by state courts to analyze who retains control of the pre-embryos. Section III will advocate for the contractual approach that was most recently adopted by the Connecticut Supreme Court in Bilbao v. Goodwin.[6] Section IV will conclude that the contractual approach is most desirable because it upholds justified expectations and preserves the agreement of the parties.

II. Background 

Judges have created three different tests for determining the fate of pre-embryos: (1) the contractual approach, (2) the balancing approach, and (3) the contemporaneous mutual consent approach.[7] The contractual approach, which is the majority rule, was adopted by New York in Kass v. Kass.[8] In Kass, Mr. and Mrs. Kass enrolled in the IVF program while they were married.[9]At the onset, the parties were asked to create a signed writing.[10] In the writing, Mr. and Mrs. Kass agreed have any unused pre-embryos donated for scientific research in the event of a disagreement.[11] After their divorce, Mrs. Kass sought to have the pre-embryos implanted; whereas, Mr. Kass wanted the contract to be enforced.[12] The court agreed with Mr. Kass that the contract should be enforced.[13] Thus, the pre-embryos were donated to science.[14] It reasoned: 

[I]t [is] particularly important that courts seek to honor the parties’ expressions of choice, made before disputes erupt with the parties’ over-all direction always uppermost in the analysis. Knowing that advance agreements will be enforced underscores the seriousness and integrity of the consent process. Advance agreements as to disposition would have little purpose if they were enforceable only in the event the parties continued to agree. To the extent possible, it should be the progenitors—not the State and not the courts—who by their prior directive make this deeply personal life choice.[15]

Because there was a signed writing, the court did not have to decide the fate of the pre-embryos in the absence of an agreement. “[M]ost courts [in contractual approach jurisdictions] use the balancing approach as a second step, . . . after it is determined that no enforceable agreement between the progenitors exists . . .”[16]

However, “New Jersey has adopted [the balancing] approach as the first and only step in resolving disputes over the disposition of pre-embryos upon divorce.”[17] In J.B. v. M.B., the facts were the same as Kass except the relevant contract provision stated: “‘J.B. (patient), and M.B. (partner), agree that all control, direction, and ownership of our tissues will be relinquished to the IVF program under the following circumstances: / 1. A dissolution of our marriage by court order, unless the court specifies who takes control and direction of the tissues. . .’”[18] (emphasis added). The court interpreted this provision as a grant of authority to the courts.[19] But even in the absence of such a provision, the court expressly rejected the contractual approach.[20] It analogized to other types of contracts that are disfavored in New Jersey, each dealing with “enter[ing] into or terminat[ing] familial relationships.”[21] The court proceeded to weigh the father’s interest not to procreate against the mother’s interest in procreation.[22] It ultimately found that the former outweighed the latter.[23] It reasoned, “J.B.’s right not to procreate may be lost through attempted use or through donation of the preembryos. Implantation, if successful, would result in the birth of her biological child and could have life-long emotional and psychological repercussions.”[24] Therefore, the court ordered that the pre-embryos be destroyed.[25]

The final approach which has only been adopted by the Iowa Supreme Court is the contemporaneous mutual consent approach.[26] In Re Marriage of Witten involved a female plaintiff who wanted to use the pre-embryos and a male defendant who opposed her use.[27] Regardless of any writing to the contrary, the court issued a bright-line rule that the only agreement that matters is the current one.[28] If they did agree, the parties agreement would be honored. If they did not agree, the pre-embryos would remain in cryopreservation indefinitely.[29] The court reasoned, that for “‘decisions about intensely emotional matters, where people act more on the basis of feeling and instinct than rational deliberation,’ it may ‘be impossible to make a knowing and intelligent decision to relinquish a right in advance of the time the right is to be exercised.’”[30] Based on this rationale, the court was inclined to give either party a veto—which is this case was successfully exercised by the defendant.[31]

The latest court to weigh in on the split amongst state courts is Connecticut. In an opinion officially released on November 5, 2019, the Connecticut Supreme Court adopted the contractual approach.[32] In Bilbao, the contract expressly provided for disposition in the event of a divorce.[33] But when the event came to fruition, the defendant argued “that he should be permitted to change his mind.”[34] The court disagreed based in part on the practical benefits of early decision-making.[35] According to the court, contracts provide an added layer of “certainty” in the emotional IVF process and “decrease[ ] the likelihood of litigation.”[36]

III. Discussion 

It is noteworthy that none of the courts held in favor of forced procreation regardless of the test employed.[37] Neither the facts in the New York nor Connecticut case involved a contract purporting to be an agreement to procreate. The New Jersey court weighed the interest not to procreate more heavily than an interest in procreation. Iowa gave both parties an option to veto—effectively blocking any attempt by the opponent to procreate. This begs the question: does it really matter which test is adopted? Or, is each test simply a different means to the same end; barring procreation when one party dissents. In each case, whether by contract enforcement, interest balancing, or veto—the party that opposed procreation always prevailed. It seems, therefore, that the essential question is not what test to employ, but instead, where does the right come from—contract law, public policy, or the parties’current state of mind? 

Because the disputed material has the potential to become human life, it is best protected by the contractual approach. In jurisdictions that have adopted either the balancing approach or the contemporaneous mutual consent approach, judges have critiqued the contractual approach by arguing that it treats pre-embryos as property rather than genetic material.[38] This argument seems to rely on the premise that most contracts deal with property. This is true, but maybe it is true because contracts are the most effective way for parties to ensure that their valuables—things like their home, assets, and business—are protected. It only makes sense that our intangible valuables, like the potential for human life, are protected the same way—by binding, enforceable contracts. Contracts prevent emotions from getting the best of either party in the moment.

When the contractual approach is not adopted, it thwarts a couple’s ability to make a meaningful decision together prior to beginning the IVF process. Although the New Jersey court was opposed to a contract of this nature, it was content with the government making the decision for the parties.[39] But it is inadequate for judges to substitute their judgment for the judgment of the parties who as a married couple crafted a legitimate agreement, after consultation with a physician, and donated their genetic material in reliance. Societal values as well as and judges’ values change. For that reason, there is no certainty that courts that have adopted the balancing approach will continue to balance the interests of parties the same way over time. Not only is it in the interest of certainty that the contractual approach be adopted, but courts should also recognize that societal values may not always be in accord with the personal values of the parties. Parties should be empowered to go against the grain and make a decision that aligns with their personal values. It is also too easy for a scorned spouse to act in bad faith under the contemporaneous mutual consent approach. Parties have the opportunity to negotiate prior to the IVF process and human beings act with more reason and civility prior to a dispute—especially a dispute as monumental and emotional as a divorce. For example, imagine that you and your partner enter into an agreement to donate any remaining pre-embryos to science. But after the divorce, your spouse exercises his or her veto and takes the position that the embryos should be destroyed. This keeps you and your spouse in emotional limbo and ongoing conflict until an agreement is reached—arguably in bad faith. This dispute could continue on indefinitely, and the pre-embryos, that you and your ex-partner created, could remain in existence forever. One of the fundamental principles of the American judicial system is that parties are entitled to some resolution; no resolution, under the contemporaneous mutual consent approach is in tension with this ideal.

IV. Conclusion 

In reality, there appears to be little to no real practical consequence of the differing tests unless the parties dispute whether the pre-embryos should be donated to science, preserved indefinitely, or destroyed, because in the end, none of the courts will force either party to become a biological parent against his or her will. However, the New Jersey court left open the possibility that under the balancing approach, a right to procreate could outweigh the right not to procreate.[40] This circumstance would arise, for example, if a party’s only opportunity to become a parent was by use of the embryos.[41] Pre-embryo jurisprudent would be better served and more consistent by adhering to the contractual approach.


[1]J.B. v. M.B., 783 A.2d 707, 709 (N.J. 2001) (citing The American Heritage Stedmans Medical Dictionary at 578 (1995)). 

[2]Id

[3]Id

[4]Id

[5]Kass v. Kass, 696 N.E.2d 174, 175 (N.Y. 1998) (“If the procedure succeeds, an embryo will attach itself to the uterine wall, differentiate and develop into a fetus.”). 

[6]Bilbao v. Goodwin, SC 20078, 2019 WL 5607809, (Conn. Nov. 5, 2019). 

[7]In re Marriage of Witten, 672 N.W.2d 768, 774 (Iowa 2003). 

[8]Id. at 776. 

[9]Kass, 696 N.E.2d at 175. 

[10]Id. at 176.   

[11]Id. at 177. 

[12]Id

[13]Id. at 182. 

[14]Id. at 178. 

[15]Id. at 180. 

[16]Bilbao, 2019 WL 5607809 at 4 (citing In re Marriage of Rooks, 429 P.3d 579, 593 (Colo. 2018)). 

[17]Id. at 3 (citing J.B., 783 A.2d at 707). 

[18]J.B., 783 A.2d at 710. 

[19]Id. at 713-15. 

[20]Id. at 717-19. 

[21]Id. at 717 (citing J.B. v. M.B., 331 N.J.Super. 223, 751 A.2d 613 (2000)) (“New Jersey has, by statute, abolished the cause of action for breach of contract to marry.”) (citing N.J.S.A. 2A:23-1) (“Private placement adoptions are disfavored, . . .”(citing Sees v. Baber, 74, N.J. 201, 217, 377 A.2d 628 (1977)). 

[22]Id. at 716-17. (quoting Davis v. Davis, 842 S.W.2d 588, 589 (Tenn. 1992)). 

[23]Id. at 717. 

[24]Id. (citing Patricia A. Martin & Martin L. Lagod, The Human Preembryo, the Progenitors, and the State: Toward a Dynamic Theory of Status, Rights, and Research Policy, 5 High Tech. L.J. 257, 290 (1990). 

[25]Id. at 720. 

[26]Bilbao, 2019 WL 5607809 at 4. 

[27]In re Marriage of Witten, 672 N.W.2d at 772-73. 

[28]Id. at 780-81. 

[29]Id. at 783 (“If a stalemate results, the status quo would be maintained. The practical effect will be that the embryos are stored indefinitely unless both parties can agree to destroy the fertilized eggs. Thus, any expense associated with maintaining the status quo should logically be borne by the person opposing destruction.”) (citing Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 Minn. L.Rev. 55, 112 (1999)). 

[30]Id. at 777 (quoting Coleman, 84 Minn. L.Rev. at 98). 

[31]Id. at 783; Bilbao, 2019 WL 5607809 at 4 (“it ‘gives on party a de facto veto over the other party by avoiding any resolution until the issue is eventually mooted by the passage of time[.]”) (quoting In re Marriage of Rooks, 429 P.3d at 589). 

[32]Bilbao, 2019 WL 5607809 at 5. 

[33]Id. at 1. 

[34]Id. at 8. 

[35]Id. at 5. 

[36]Id. (citing Kass, 696 N.E.2d at 180). 

[37]In re Marriage of Witten, 672 N.W.2d at 778 (Although [the contemporaneous mutual consent] model precludes one party’s use of the embryos to have children over the objection of the other party, the outcome under the contractual approach and the balancing test would generally be the same.”). 

[38]Id. at 781 (“Whether embryos are viewed as having life or simply has having the potential for life, this characteristic or potential renders embryos fundamentally distinct from the chattels, real estate, and money that are the subjects of antenuptial agreements.”). 

[39]Id. at 779 (“Public policy concerns similar to those that prompt courts to refrain from enforcement of contracts addressing reproductive choice demand even more strongly that we not substitute the courts as decision makers in this highly emotional and person area. Nonetheless, that is exactly what happens under the decisional framework based on the balancing test because the court must weigh the relative interests of the parties in deciding the disposition of embryos when the parties cannot agree.”) (citing J.B., 783 A.2d at 719). 

[40]J.B., 783 A.2d at 716 (“The court held that the scales ‘[o]rdinarily’ would tip in favor of the right not to procreate if the opposing party could become a parent through other reasonable means.”) (quoting Davis, 842 S.W.2d at 604); 

[41]Id. at 720 (“We express no opinion in respect of a case in which a party who has become infertile seeks use of stores preembryos against the wishes of his or her partner, noting only that the possibility of adoption also may be a consideration, . . .”). 

Whistleblower Protection Gaps in the Intelligence Community

“Visible downgrading” by RestrictedData is licensed under CC BY 2.0 

Hunter Poindexter, Associate Member, University of Cincinnati Law Review

I. Introduction

In September 2019, reports came forward of a whistleblower complaint regarding President Trump’s contacts with the Ukrainian government.[1] The whistleblower reported that President Trump engaged in a discussion with the Ukrainian President to request investigations into former Vice President Joe Biden and his son.[2] Since this disclosure, the President and other republican politicians have called for the whistleblower’s identity to be publicly revealed.[3] This article analyzes the current legal protections afforded to whistleblowers, and whether these laws adequately protect the whistleblowers’ interests. 

II. Background

A. Whistleblower Laws

Whistleblowing is “the lawful disclosure of information a discloser reasonably believes evidences wrongdoing to an authorized recipient.”[4] The term “whistleblower” may reasonably describe disclosers in a number of different fields, including governmental entities, corporations, and the intelligence community (“IC”).[5] The history of laws regarding whistleblowers is lengthy and tedious; because the Ukrainian whistleblower is a member of the intelligence community, only laws specifically relevant to IC employees will be discussed in-depth. 

In 1989, Congress enacted the Whistleblower Protection Act of 1989 to protect federal employees from retaliation by employers for whistleblowing.[6] However, this act did not apply to employees in the IC.[7] In response to this exclusion, Congress enacted the Intelligence Community Whistleblower Protection Act (“ICWPA”) of 1998.[8] The ICWPA provided an avenue for IC employees to confidentially disclose information of suspected corrupt activity to the Inspector General of the United States.[9]

With the Intelligence Authorization Act for Fiscal Year 2010, Congress created the Office of the Intelligence Community Inspector General.[10] Under 50 U.S.C. 3033, IC employees may report information “with respect to an urgent concern” to the Intelligence Community Inspector General (“ICIG”).[11] An “urgent concern” must fall into one of the following categories: 

  1. A serious or flagrant problem, abuse, violation of law or Executive Order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of national Intelligence involving classified information, but does not include differences of opinions concerning public policy matters. 
  2. A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration or operation of an intelligence activity. 
  3. An action, including a personnel action described in section 2302(a)(2)(A) of title 5, United States Code, constituting reprisal or threat of reprisal prohibited under subsection (g)(3)(B) of this section in response to an employee’s reporting an urgent concern in accordance with this paragraph.[12]

Once an employee has made such disclosure, the ICIG must determine the credibility of the complaint within fourteen days.[13] Should the ICIG deem the complaint credible, the ICIG must then pass the complaint along to the Director of National Intelligence (“DNI”).[14] It is then the responsibility of the DNI to forward the complaint to congressional intelligence committees (“CICs”).[15] If the ICIG finds the complaint not credible, the whistleblower may take the complaint directly to CICs after receiving guidance from the DNI on the proper security measures.[16]

Federal law prohibits IC agencies from taking retaliatory employment measures against whistleblowers who legally disclose information.[17] Moreover, the ICIG may not disclose the identity of the whistleblower, unless the “disclosure is unavoidable during the course of the investigation or the disclosure is made to an official of the Department of Justice responsible for determining whether a prosecution should be undertaken . . ..”[18]

In 2012, President Obama signed Presidential Policy Directive 19 (PPD-19), Protecting Whistleblowers with Access to Classified Information, which provided increased protections for IC whistleblowers through the executive branch.[19] PPD-19 requires IC agencies to have internal review processes for whistleblowers who claim retaliatory personnel decisions were made after a lawful disclosure, as well as a review process for whistleblowers who are denied security clearances.[20] In 2014, Congress codified parts of PPD-19 by enacting Title VI of the Intelligence Authorization Act for Fiscal Year 2014.[21] This law prohibits an IC agency from taking personnel actions against a whistleblower who has made a lawful disclosure to the ICIG, the DNI, the head of the employing IC agency, the IC agency’s inspector general, a CIC, or a member of a CIC.[22] Moreover, this law prohibits an IC whistleblower from being denied security clearance after making a lawful disclosure.[23] Pursuant to PPD-19, Intelligence Community Directive-120 (“ICD-120”) requires agencies to enact review processes for personnel and security clearance decisions related to lawful disclosures by whistleblowers.[24] Furthermore, ICD-120 allows IC whistleblowers to request an external IC panel to review possible retaliatory personnel actions.[25]

In light of these protections, it would appear that Congress and the executive branch have attempted to provide significant safeguards for IC whistleblowers. However, as this article will discuss, these safeguards tend to fall short, particularly in the context of the Ukraine whistleblower. 

B. Ukraine Whistleblower

In August 2019, an IC whistleblower came forward with a complaint that President Trump engaged in improper dealings with Ukrainian President Volodymyr Zelensky.[26] Specifically, the complaint alleged that on a July 25 phone call, President Trump used his presidential powers to pressure Zelensky to investigate a political opponent: former Vice President Joe Biden and his son, Hunter Biden.[27] Pursuant to federal law, the whistleblower filed the complaint with ICIG, Michael Atkinson.[28] Atkinson then forwarded the complaint to acting DNI Joseph Maguire, who elected not to pass the complaint along to Congress.[29] During a congressional hearing, Maguire alleged that he did not transmit the complaint because he was advised by White House Counsel that it may include privileged information .[30]

Following reports of the whistleblower complaint, the House of Representatives opened an impeachment inquiry against the President.[31] In light of the impeachment inquiry, a number of republicans have called for the whistleblower’s identity to be revealed.[32] Notably, Senators Lindsey Graham and Rand Paul have argued that the United States Constitution provides the President the right to know the whistleblower’s identity.[33] As such, Senator Paul blocked a resolution on the Senate floor restating the Senate’s support for protecting whistleblowers.[34]

III. The Shortcomings of Whistleblower Laws

A. No Legal Recourse

While IC whistleblowers have the opportunity to challenge retaliatory personnel actions through internal review channels, they are nonetheless denied access to the judicial system as a means for challenging these actions.[35] Moreover, when illegal personnel actions are taken against whistleblowers, it is the responsibility of the President to enforce federal whistleblower protections.[36] Without access to the court system, it is unlikely that IC whistleblowers are able to consistently receive adequate protection from retaliatory actions by their employers. When whistleblowers make lawful disclosures against their own IC agencies, it reflects poorly on the individuals within the agency. As such, even when review processes are in place to challenge retaliatory actions, the processes are still likely biased against the whistleblower. 

In scenarios in which the whistleblower must rely on the President to adequately enforce whistleblower protection laws, a significant conflict of interest arises. Specifically, in the case of the Ukraine incident, the IC whistleblower made a complaint against President Trump. The whistleblower must now rely on the same man he has accused of violating the law to enforce his protections. Thus, it is highly unlikely that the whistleblower will receive unbiased treatment, particularly as the President calls for the whistleblower’s identity to be revealed. 

B. Threat of Revealed Identity

Although federal law requires the ICIG to keep a whistleblower’s identity confidential save for a few circumstances,[37] it appears that there are no legal repercussions under 50 U.S.C. § 3033 for other individuals who out the whistleblower’s identity.[38] However, it is unclear  whether other federal laws would prohibit outing the whistleblower.[39] Nonetheless, in high-profile instances of whistleblowing involving politics, the risk of identity disclosure remains high. While the legal consequences for individuals outing the whistleblower might be slim, there are nonetheless real consequences for whistleblowers and the IC community. 

First, if a whistleblower’s identity is revealed, the whistleblower will surely face a number of risks. As aforementioned, a whistleblower will likely face personnel actions for making disclosures against his own IC agency. These actions may range from demotions to termination. Even if the whistleblower does not face official personnel reprisals, he might nonetheless be subject to ostracism and criticism from coworkers and supervisors, thus creating a hostile work environment for the whistleblower. 

In addition to issues in the workplace, the whistleblower would also face significant scrutiny in his personal life, especially in high-profile cases such as the Ukraine incident. For example, media outlets will almost certainly do extensive research into the whistleblower’s background and personal life. Furthermore, a whistleblower could face significant physical dangers if his identity is revealed. In instances where the whistleblower discloses information on a political figure, the whistleblower could face death threats or other threats of physical violence. 

Even more significant is the impact revealing a whistleblower’s identity could have on the intelligence community and governmental transparency. When a whistleblower’s identity is publicly revealed, the disclosure chills the likelihood that other whistleblowers will come forward when corruption and illegality occur. This chilling effect hinders the public’s ability to hold the government accountable for its actions. Thus, the need for whistleblower anonymity is crucial for proper governmental oversight. Without these protections, a potential whistleblower may elect to punt on the disclosure, hoping someone better-positioned might come forward. 

IV. Conclusion

While federal law provides protections for IC whistleblowers, the limitations on these laws significantly inhibit a whistleblower’s ability to protect his interests. Because the law precludes IC whistleblowers from accessing the court system, whistleblowers must rely on the will of the executive branch to enforce their legal protections. Moreover, the threat of identity disclosure puts whistleblowers at risk of significant physical harm. When a whistleblower is outed, other potential whistleblowers are likely dissuaded from disclosing pertinent information regarding governmental corruption. This chilling effect ultimately impedes transparency.  


[1]Eugene Kiely et al., The Whistleblower Complaint Timeline, FactCheck.org (September 27, 2019), https://www.factcheck.org/2019/09/the-whistleblower-complaint-timeline/ [https://perma.cc/WL4G-NPYL].

[2]Id.

[3]Holmes Lybrand, Fact check: Does the 6th Amendment require the whistleblower to face Trump?, CNN (November 6, 2019), https://www.cnn.com/2019/11/06/politics/sixth-amendment-require-whistle-blower-to-face-donald-trump-fact-check/index.html [https://perma.cc/KSL7-ZYKM].

[4]Cong. Research Serv., Intelligence Community Whistleblower Protections1 (2019).

[5]See National Whistleblower Center, What is a Whistleblower?, National Whistleblower Center, https://www.whistleblowers.org/what-is-a-whistleblower/ [https://perma.cc/4Y8S-6J6Q].

[6]5 U.S.C. 2302(b)(8)-(9)

[7]Robert S. Litt, Unpacking the Intelligence Community Whistleblower Complaint, Lawfare (September 17, 2019), https://www.lawfareblog.com/unpacking-intelligence-community-whistleblower-complaint [https://perma.cc/8XU6-ZG6S].

[8]Cong. Research Serv., Intelligence Community Whistleblower Protections2 (2019).

[9]Id.

[10]50 U.S.C. 3033(a).

[11]§ 3033(k)(5)(A).

[12]§ 3033 (k)(5)(G).

[13]§ 3033 (k)(5)(B)

[14]Id.

[15]50 U.S.C. § 3033 (k)(5)(C).

[16]§ 3033 (k)(5)(D).

[17]§ 3033 (g)(3)(B).

[18]§ 3033 (g)(3)(A).

[19]Cong. Research Serv., Intelligence Community Whistleblower Protections6 (2019).

[20]Id. at 7.

[21]Id. at 8.

[22]Id., 50 U.S.C. § 3234(b)

[23]50 U.S.C. § 3341(j).

[24]Cong. Research Serv., Intelligence Community Whistleblower Protections9 (2019).

[25]Id.

[26]Kevin Liptak et al., Whistleblower timeline: Team Trump contacts and Ukraine, CNN (September 27, 2019), https://www.cnn.com/2019/09/20/politics/whistleblower-timeline-ukraine-team-trump/index.html [https://perma.cc/F8V3-KESC].

[27]Devlin Barrett et al., Whistleblower claimed that Trump abused his office and that White House officials tried to cover it up, Washington Post (September 26, 2019),https://www.washingtonpost.com/national-security/house-intelligence-committee-releases-whistleblowers-complaint-citing-trumps-call-with-ukraines-president/2019/09/26/402052ee-e056-11e9-be96-6adb81821e90_story.html [https://perma.cc/P8NR-YEWS].

[28]Kevin Liptak et al., Whistleblower timeline: Team Trump contacts and Ukraine, CNN (September 27, 2019), https://www.cnn.com/2019/09/20/politics/whistleblower-timeline-ukraine-team-trump/index.html [https://perma.cc/F8V3-KESC].

[29]Rebecca Morin, Top Moments from acting DNI Joseph Maguire’s testimony about the Trump whistleblower complaint, USA Today (September 26, 2019), https://www.usatoday.com/story/news/politics/2019/09/26/whistleblower-complaint-top-moments-joseph-maguire-testimony/3774069002/ [https://perma.cc/DT45-K4LR].

[30]Julian E. Barnes & Adam Goldman, Joseph Maguire, Acting D.N.I., Holds His Ground, The New York Times (September 26, 2019), https://www.google.com/amp/s/www.nytimes.com/2019/09/26/us/politics/joseph-maguire-intelligence.amp.html[https://perma.cc/QJ6T-TV99].

[31]Rebecca Morin, Top Moments from acting DNI Joseph Maguire’s testimony about the Trump whistleblower complaint, USA Today (September 26, 2019), https://www.usatoday.com/story/news/politics/2019/09/26/whistleblower-complaint-top-moments-joseph-maguire-testimony/3774069002/ [https://perma.cc/DT45-K4LR].

[32]Holmes Lybrand, Fact check: Does the 6th Amendment require the whistleblower to face Trump?, CNN (November 6, 2019), https://www.cnn.com/2019/11/06/politics/sixth-amendment-require-whistle-blower-to-face-donald-trump-fact-check/index.html [https://perma.cc/T94W-4WKD].

[33]Id.

[34]Emma Austin, Rand Paul blocks resolution restating Founding Fathers’ whistleblower protections, Courier Journal (November 7, 2019), https://www.courier-journal.com/story/news/politics/2019/11/07/trump-impeachment-rand-paul-blocks-whistleblower-resolution/2516312001/ [https://perma.cc/53NQ-ZYVY].

[35]National Whistleblower Center, The Intelligence Community Whistleblower, What You Need to Know, National Whistleblower Center, https://www.whistleblowers.org/the-intelligence-community-whistleblower-what-you-need-to-know/ [https://perma.cc/QCX7-9G6D].

[36]50 U.S.C. § 3234(d).

[37]50 U.S.C. § 3033(g)(3)(A).

[38]The Week, How the law barely protects whistleblowers, The Week (November 9, 2019), https://theweek.com/articles/877008/how-law-barely-protects-whistleblowers [https://perma.cc/NZX9-ZNZ8].

[39]Tom Devine, Fast Facts on Legal Accountability for Outing the Anonymous Whistleblower, Government Accountability Project, https://www.whistleblower.org/blog/fast-facts-on-legal-accountability-for-outing-the-anonymous-whistleblower/ [https://perma.cc/HQ7W-6JMT].