Skidaway Institute of Oceanography
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Misreading the Federal Child Pornography Statutes
Full text linkFor the past 40 years, federal courts have committed two grievous textual errors in interpreting the federal child-pornography statutes and sentencing guidelines. These errors have caused hundreds of wrongful convictions—many the bases for decades-long sentences—and have produced a body of caselaw that is profoundly incoherent and in direct conflict with basic tenets of First Amendment doctrine. They have also likely endangered children. This article identifies these errors, surveys their consequences, and suggests legal arguments for people charged or convicted under the child-pornography statutes.
The first error impacts the application of all of the federal child-pornography statutes and sentencing guidelines. These statutes and guidelines apply to “visual depictions” of minors engaging in “sexually explicit conduct.” They define “sexually explicit conduct” to include the “lascivious exhibition of the genitals.” The federal courts have conflated the statutory terms “visual depiction” and “lascivious exhibition,” holding that these statutes and guidelines apply to any visual depiction that is, itself, a lascivious exhibition of a minor’s genitals. This error significantly expands the reach of these statutes and guidelines—a visual depiction may lasciviously exhibit a child’s genitals even if the child it depicts is engaged in entirely innocent conduct.
The second error impacts the application of the most draconian of the federal child-pornography statutes, which imposes a 15-year mandatory-minimum sentence on anyone who engages in sexually explicit conduct by using a minor, or who attempts to do so, in order to film that conduct. The federal courts have misread this statute as applying to anyone who uses, or attempts to use, a minor to produce a lascivious image. This error causes people who surreptitiously film minors to face the same decades-long sentences as people who rape minors in order to produce pornography.
The first of these errors has troubling doctrinal implications. It has led the federal courts to criminalize protected speech, to violate the speech-conduct dichotomy that underlies First Amendment doctrine, and to punish people for their thoughts. It has also caused the federal courts to uphold convictions in some cases based on conduct that produces acquittals in others.
Both errors have troubling practical implications. The Government prosecutes approximately 2,000 people per year under the child-pornography statutes—statutes that all of the federal courts are currently misreading. Perhaps most troublingly, by expanding the reach of the child-pornography statutes beyond the scope of their text, the federal courts have incentivized prosecutors to divert limited resources from cases involving the most serious forms of child abuse
On Parentage, Genetics, and Surrogacy
Full text linkBans in some jurisdictions, combined with relative affordability in others, have turned surrogacy into an increasingly cross-border phenomenon. Meanwhile, the complex and varied approaches to legal parentage and surrogacy that exist in domestic jurisdictions, along with a lack of international oversight, have at times left children of surrogacy parentless or stateless. The decision of the Hague Conference on Private International Law to begin regulating legal parentage in international surrogacy arrangements is thus an important and welcome development. However, the Hague Conference is considering imposing new genetic requirements that could result in violations of the rights to equality and non-discrimination of intended parents, surrogates, and children of surrogacy.
This article argues that genetic relatedness should not be dispositive when determining legal parentage in international surrogacy arrangements. Intended parents—not surrogates—should be recognized as the legal parents of their children, even when the intended parents have not contributed gametes and the surrogates have. Although genetic relatedness may be a key factor for determining parentage in other circumstances, treating the contribution of gametes as essential to legal parentage in the context of surrogacy is unnecessary and can produce unjust results. Families formed through surrogacy should not be torn apart or reconfigured solely on the basis of genes
Brokered Violence: Safety for Sale in the Free Marketplace of Data
Full text linkThis article exposes how the unregulated data broker industry fuels violence by selling detailed personal information gathered from public records, social media, and private sources. Drawing on the Minnesota assassinations and other cases, it shows how such data enables stalking, harassment, and targeted attacks. The piece critiques state and federal laws like California’s DELETE Act and New Jersey’s Daniel’s Law for leaving victims to navigate slow, fragmented removal processes. It proposes a centralized victim registry with rapid compliance requirements, shifting responsibility to brokers. Finally, it challenges the industry’s First Amendment defense, urging legal reforms that prioritize public safety over commercial speech right
What\u27s in a Name? Family Policing, Juliet.
Full text linkChild welfare and child protection are misnomers. These terms do not accurately depict the investigatory nature of the system purported to help families, or at the very least, save endangered children. Contrary to public opinion, the child welfare system comprises of state actors who police parents and children. It is the naming of this system that convinces the public that these agencies are excised from the category of law enforcement, persuading many that the agencies engage in social work and not police work. Calling the system what it really is-family policing-is a step toward achieving justice for families adversely impacted by the system
The First Sale Doctrine for the Digital Age
Full text linkFor well over a century consumers have long enjoyed the ability to resell, gift, lend, or otherwise transfer their legally purchased copyrighted media. First established in common law and later codified into the Copyright Act of 1976 the first sale doctrine granted the right of transfer to consumers. In 2013, a district court held that the first sale doctrine does not let consumers transfer digital media through file sharing. Instead, a consumer must sell the object the media was downloaded onto. This decision effectively gutted the first sale doctrine’s application to digital media. Further reducing the reach of the first sale doctrine are limited license agreements that consumers sign for nearly all media they purchase. Companies purport to license media to consumers instead of selling it. Because the first sale doctrine does not cover licenses, these license agreements serve as another way to limit consumer rights. This Note analyzes where the district court went wrong and how to address the limited license problem. Lastly, it poses what a digital media market would look like if the first sale did cover digital media
State Constitutional Rights to Privacy
Full text linkThis article examines state constitutional rights to privacy, presenting a comprehensive survey of all states that have explicit rights to privacy enumerated in their constitutions. Understanding state constitutional rights to privacy is particularly critical now in the wake of the 2022 U.S. Supreme Court decision Dobbs v. Jackson Women’s Health Organization, which significantly restricted the scope of federal constitutional privacy rights. As states have the authority to independently interpret their constitutions, state constitutional law may provide a path forward for privacy.
In lieu of relying on federal rights protection, individuals may now need to turn to state constitutional rights to privacy, and while only eleven states have explicit rights to privacy enshrined in their constitutions, these rights can be powerful. This article examines the right to privacy in these eleven states (Alaska, Arizona, California, Florida, Hawai`i, Illinois, Louisiana, Montana, New Hampshire, South Carolina, and Washington). This article also shows that understanding the role of explicit rights to privacy in state constitutions is important because the lack of a federal constitutional analogue may allow state courts to interpret their privacy clauses as encompassing a more expansive set of privacy rights than what the U.S. Constitution provides. Federal constitutional protection of privacy may be diminishing, but many states have long-established precedent protecting the right to privacy in forms that are not reliant on lockstep federal interpretation of privacy rights.
This article contributes to both privacy law scholarship and state constitutional law scholarship. There has not been a scholarly survey of state constitutional privacy rights since 1992, and this article is the first to include New Hampshire, which added an explicit privacy right to its constitution in 2018. In addition to analyzing the development of each state’s explicit privacy right, this article compares state constitutional privacy rights to reveal differences and commonalities that may shed light on how privacy rights develop in state jurisprudence—and how other states may model similar rights to adopt in their own constitutions. In doing so, this article aims to provide a useful resource for scholars, practitioners, judges, and advocates seeking creative avenues to protect privacy rights
State Constitutional Development and the Criminal Procedure Revolution
Full text linkQuestions about which rights, liberties, and guarantees are included in the U.S. Constitution’s protections, and how they are protected, have long produced animated debate among scholars, judges, and advocates. Yet, while today’s debates may seem familiar, they take place at a perilous time in our country’s trajectory. We are six decades removed from the Warren Court’s criminal procedure revolution, and just a few years into the Roberts Court’s full-throated embrace of originalist jurisprudence. Whether many of the protections we have come to know and recognize from the Warren Court—the exclusionary rule, Miranda warnings, and Gideon’s mandate—are subjected to re-evaluation under a “history and tradition”-style analysis and, if so, whether they survive that analysis, remains to be seen.
At the same time, state courts and constitutions offer the same hope now as they did at the onset of judicial federalism in the 1970s. Attorneys for criminal defendants sought refuge in the states to vindicate their rights, and they rejuvenated state constitutions as independent sources of liberty that can extend beyond the bare minimums of federal protection. However, while these litigants produced changes in case law, those changes were not frequently accompanied by formal constitutional changes. Few state constitutions were amended to include the core criminal procedure requirements, and few changes were even seriously considered.
In this article, I conduct an original survey of all changes to state constitutions’ criminal procedure protections that were presented to voters from 1960 to the present. I first divide these proposed changes into categories based on subject matter, source of the amendment, and outcome, and then I explain what motivated many of the changes. The survey reveals that, while many state constitutional drafters were motivated to remove noncompliant language from their constitutions and, in recent years, to undermine the rights of criminal defendants through restricting the right to bail and adding “victims’ rights” amendments, few drafters ever proposed adding an exclusionary rule, requiring Miranda warnings, or incorporating Gideon’s mandate.
I supplement this survey by further examining the absence of criminal procedure-focused amendments. I evaluate a representative set of primary source documents from state constitutional conventions and reform commissions to evaluate the subjective motivations of drafters during this period. I document one of the few areas in which drafters were motivated to strengthen their constitutional protections—namely, by banning wiretapping and safeguarding an express right to privacy.
Ultimately, I conclude that the absence of core criminal procedure holdings from state constitutions does not bode well for the future. Given the rise in far-right judges, “originalist” jurisprudence, and the ideological capture of “nonpartisan” judicial nominating processes in the states, if the Supreme Court walks back from many of the core criminal procedure holdings, the independent state constitutional development of those same protections could well suffer a similar fate in the states. Accordingly, I argue that state constitutions should be amended to include these protections
The Internet of Hate: Comparing the Nature, Harms, and Regulatory Challenges of Online and Offline Hate Speech
No full textArt Wants to Be Free
Full text linkWhat is fair use? In Warhol v. Goldsmith, the Supreme Court held that licensing a painting based on a photograph wasn’t a transformative fair use, because the painting competed with the photograph in the market for images of the same person. This article tells the story of Warhol v. Goldsmith, analyzes the opinion, and explains how it changed copyright doctrine. It also presents a theory of how appropriation artists can use the public domain to insulate themselves from liability for copyright infringement
The Art That Makes the AI Artist: AI’s Potential as a Copyright Infringer and Its Future Under a Licensing Requirement
Full text linkThe practices and advancements in the generative AI training process have sent many authors and artists in the creative industry into a panic. In addition to demonstrating output that can rival human-made works, many AI companies rely on copying hundreds of thousands of copyrighted works to teach their AI models. This raises the question of whether AI companies are infringing or if they are permitted to use the work for training purposes under the fair use doctrine. Through current precedent within copyright law and the fair use defense, this note analyzes whether generative AI’s use of copyrighted materials will be defendable under the fair use doctrine. Given the likelihood that certain uses will not be permitted, this note also explores generative AI’s future under licensing requirements