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Goodyear, Michael

DigitalCommons@NYLS 
Other Publications Faculty Scholarship 
2-13-2024 
The Surprising Result of the Supreme Court Case That Allowed 
Slurs in Brands 
Michael Goodyear 
Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs 
 Part of the Intellectual Property Law Commons, Jurisprudence Commons, Law and Gender Commons, 
and the Sexuality and the Law Commons 
The Surprising Result of the Supreme
Court Case That Allowed Slurs in Brands
BY MICHAEL P. GOODYEAR
FEB 13, 20242:24 PM
Trademarks serve a symbolic function for the consumer.  Photo illustration by Slate. Photo by lucky-
photographer/iStock/Getty Image Plus.
JURISPRUDENCE
When people think of trademarks, they typically think of wholesome, ubiquitous, or luxury
brands. Coca-Cola for soft drinks. Pepperidge Farm for snacks. McDonald’s for fast food. Gucci
for fashion. These are brands that many wish to consume for the perceived benefit associated
with them—they’re tasty or beautiful. This is the goal of trademarks: to serve as a source
identifier so you can distinguish your favorite type of fish-shaped cracker or clutch bag from
others in the marketplace.
Trademarks also serve a symbolic function for the consumer. In many ways, these trademarks
have become figments of individuals’ identity. Consumers choose to wear clothing with
prominent trademarks, like Supreme or Ralph Lauren. Influencers swear by certain toys and
beauty products, such as Squishmallows and Kiehl’s. Even America has become synonymous
worldwide with McDonald’s golden arches and Levi’s blue jeans.
But of the thousands of brands flooding the marketplace, consumers might be startled to see
what appears to be LGBTQ+ slurs in the mix. Dykes on Bikes? Homo Hair? Queer Pong?
In 2017 and 2019, two Supreme Court decisions opened the gates of the trademark registry to
LGBTQ+ slurs. Until that point, no one had been able to federally register a trademark that was
“disparaging” or “immoral or scandalous.” These two restrictions largely prevented anyone from
registering derogatory slurs as trademarks. But when the Supreme Court invalidated the
restrictions on the basis of free speech, the possibility for obtaining slurs as trademarks arose.
Many feared the worst. Indeed, several people tried to register the N-word as a trademark the
day the first Supreme Court decision was released. Why would it be any better for the LGBTQ+
community?
In a recent study published in the University of Illinois Law Review, I set out to determine what
the effect of those two decisions had been on LGBTQ+ slurs. Did people want to register these
slurs as trademarks? If so, why?
Despite the undeniable advances in LGBTQ+ rights over the past few decades, I was
pessimistic at best. Hate crimes against LGBTQ+ people increased sharply in 2023. Several
states have passed transphobic laws or seek to ban drag performances. If hate was on the rise,
A Colbert Report
Related From Slate
surely bigots would seek to register trademarks carrying their homophobic and transphobic
messages.
I reviewed all applications for trademarks containing 11 prominent LGBTQ+ slurs across a nine-
year period, four and a half years before and after the 2017 Supreme Court decision Matal v.
Tam. There was indeed a rise in trademark applications after Tam that contained these slurs: 41
to 105. But more remarkable were the proposed uses of these trademarks. All of them that had
any substantive description in the application or an appreciable online presence—both before
and after the Supreme Court cases—were by or for LGBTQ+ persons. They were meant to
reclaim the slurs for the community. Although a few trademarks had practically no online
presence and their intent was unclear, not a single trademark was explicitly aimed at sowing
hate or disparaging LGBTQ+ people.
Instead, the applied-for trademarks were reaffirming. For example, Butch Appétit is for a dating
app for gay, lesbian, and bisexual individuals. Dyke Beer is a brand of beer meant to say to the
purchaser, “You exist and you are important.” National Queer Theater Inc. seeks to support
LGBTQ+ people and further social justice in the performing arts. The Queer Agenda is a card
game. Two Hungry Homos is a cooking show hosted by a same-sex couple.
Before Tam, the U.S. Patent and Trademark Office had refused to register trademarks like
these. It was far from consistent when defining what was disparaging, immoral, or scandalous,
with individual examining attorneys importing their own personal mores into the examination
process. For example, “Milf Seeker” was immoral or scandalous, but the USPTO registered “Milf
Hunter.” The USPTO registered “That’s So Gay,” but denied “God Is Gay” as blasphemous. The
disparaging and immoral or scandalous restrictions on trademark registrations prohibited
positive attempts to reclaim uses of slurs as well as those that sought to further hate.
In this instance, allowing more speech brought out good intentions rather than hate. I think that
there are four reasons why this may have happened.
First, the reclamation of slurs often follows an increase in rights for the target group. Increased
LGBTQ+ civil rights, including marriage, employment, and housing protections, could have
spurred members of the community to seek to reclaim historically derogatory slurs.
DAHLIA LITHWICK AND MARK JOSEPH STERN
A State Supreme Court Just Issued Another Devastating
Rebuke of the U.S. Supreme Court
READ MORE
Second, there is scant history of using LGBTQ+ persons as trademarks. There is a long, painful
history of using racial minorities in problematic trademarks, such as Aunt Jemima, Uncle Ben’s,
Land O’Lakes, and Eskimo Pie. Perhaps due to this history, a prior study found more mixed
results on trademark registrations of racial slurs following the Supreme Court’s decisions. But
unlike race, non-hetero sexual orientation and non-cis genders were simply taboo. They were
not discussed and were not part of mainstream society. The use of positive LGBTQ+
trademarks, therefore, did not have to fight against a current of homophobic trademarks already
in the market.
Third, to get a trademark, the brand must actually use it as a source identifier. When someone
sees the purported trademark on a good or service, they should associate that good or service
with the overarching brand. They cannot qualify merely by putting “I Hate Queers” on a shirt, as
this is an ornamental use. It fails to function as a source. Indeed, would-be registrants must use
the slur as their overarching brand, something like Coca-Cola or McDonald’s. This is a high
barrier to entry, as bigots would need to dedicate their commercial enterprise to this homophobic
or transphobic slur rather than merely espouse it.
This is related to the fourth and final reason: Slurs as trademarks likely have limited commercial
appeal. How many people would wear apparel emblazoned with “No Homo”? Or eat at a
restaurant named “Queer Is Sin”? Undoubtedly, some would not mind and might even seek
them out, such as members of Westboro Baptist Church. But the vast majority of the consuming
public would skip these options. Indeed, many might protest them. Consumer activism has been
a significant check on race-based trademarks, leading many brands to change in the wake of
the murder of George Floyd in 2020. For example, Aunt Jemima became Pearl Milling Co., the
Washington Redskins became the Commanders, and Land O’Lakes removed the Native
American woman from its logo.
Overall, this more open trademark landscape seems unexpectedly promising for the LGBTQ+
community. Nonetheless, we should remain diligent for changes in trademark uses. In addition
to more nefarious uses of LGBTQ+ slurs as trademarks, those who own trademarks have the
legal right and obligation to stop others’ use of those trademarks in ways that would confuse
consumers. This could have the undesirable effect of preventing others in the LGBTQ+
community from using terms that have been reclaimed from their hate-connoting past,
preventing rather than furthering free speech and expression.


The Surprising Result of the Supreme Court Case That Allowed Slurs in Brands

Book Review of Robert C. Post\u27s two-volume Holmes Devise History The Taft Court:  Making Law for a Divided Nation, 1921-1930 (Balkinization Blog, Saturday Feb. 24, 2024)

Purcell, Edward A., Jr.

German

The Taft Court:  Law, History, and the Jurisprudence of Federalism

Leonard, Arthur S.

DigitalCommons@NYLS 
Other Publications Faculty Scholarship 
5-1-2024 
Federal Appeals Court Rules Gov’t Health Plans Must Cover 
Gender-Affirming Care for Trans People 
Arthur S. Leonard 
New York Law School, arthur.leonard@nyls.edu 
Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs 
Recommended Citation 
Leonard, Arthur S., "Federal Appeals Court Rules Gov’t Health Plans Must Cover Gender-Affirming Care for 
Trans People" (2024). Other Publications. 959. 
https://digitalcommons.nyls.edu/fac_other_pubs/959 
This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has 
been accepted for inclusion in Other Publications by an authorized administrator of DigitalCommons@NYLS. For 
more information, please contact camille.broussard@nyls.edu, farrah.nagrampa@nyls.edu. 
Federal appeals court rules gov’t health plans must
cover gender-affirming care for trans people
By Arthur S. Leonard Posted on May 1, 2024
The Lewis F. Powell Courthouse in Richmond, Virginia, home of the United States Court of Appeals for the Fourth Circuit.
WIKIMEDIA COMMONS/ACROTERION
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The Richmond-based US Court of Appeals for the Fourth Circuit ruled on April 29 that North Carolina and
West Virginia violated the Equal Protection rights of transgender people by providing health insurance
programs that exclude coverage of some or all gender-affirming care for transgender people.
The court combined separate appeals by the two states from district court decisions that had rejected the
states’ defenses of their exclusionary policies, with 14 members of the circuit court participating in deciding
the appeal.
The court’s decision to bypass the usual three-judge panels to take a first crack at reviewing the district
courts’ decisions and to jump directly to an “en banc” review raised some eyebrows, but as a logistical
matter it certainly made sense. Under circuit court procedures, the first panel to rule would have set a
precedent for the circuit, which would then be binding on the other panel unless overturned “en banc” or by
the Supreme Court, so it seemed prudent and expeditious to skip the three-judge panels. That also means
that the underlying legal issues can get to the Supreme Court faster, if need be to resolve differences
between the Fourth Circuit and other circuits.
The Fourth Circuit’s ruling may light a fire under the Supreme Court, as it has put off deciding whether to
grant review of petitions from Kentucky and Tennessee, where a Sixth Circuit ruling last year overturned
preliminary injunctions issued by district courts against state bans on gender-affirming care, and
transgender plaintiffs have been urging the court to take up the cases and reverse that ruling. The Biden
administration also filed a petition asking the court to take and reverse the Sixth Circuit case. Briefing on
those petitions was concluded in March, and the case has been on the Court’s conference agenda for six
conferences. Each time they rescheduled it for later consideration. Perhaps the court was deliberately
waiting to see what the Fourth Circuit would do, as this appeal had been argued on Sept. 21, 2023, and an
opinion could be issued at any time. If the Fourth Circuit finally disagreed with the Sixth Circuit, that would
be a signal to the Supreme Court that a serious circuit split needed to be resolved, both as to the Equal
Protection Clause and the Affordable Care Act.
The North Carolina case involves the state insurance plan for teachers and other state workers. The West
Virginia case involves the state’s Medicaid program, which provides health insurance for people whose
household income falls below a statutory threshold. Because these are both government-run programs, they
are subject to the Equal Protection requirements of the 14th Amendment of the Constitution, which
provides that no state may deny any of its residents equal protection of the laws. Because both states’
programs receive some federal funding, they are also subject to the non-discrimination requirements of the
Affordable Care Act, which forbids discrimination “because of sex.” And, of course, West Virginia’s
Medicaid program must comply with the coverage requirements of the federal Medicaid Act, under which
the federal government provides substantial funding in support of state Medicaid programs.
The North Carolina insurance plan excludes from coverage “treatment or studies leading to or in connection
with sex changes or modifications and related care,” thus effectively excluding coverage of all gender-
affirming care for transgender individuals. West Virginia’s Medicaid program does cover some gender-
affirming care but not surgery, which the program anachronistically calls “transsexual surgery.” In both
states, transgender individuals obtained representation from Lambda Legal, assisted by local counsel, in
filing challenges to these exclusions. Numerous amicus briefs have been filed, most notably by states
opposing or supporting the exclusions.
The Fourth Circuit has 15 judges, one of whom was installed just a few weeks ago and did not participate in
this case, which was argued back in September. The vote of the remaining judges was 8-6. All of the judges
in the majority were nominated by Democratic presidents. All of the dissenting judges were nominated by
Republican presidents. Judge Roger Gregory wrote the majority opinion, joined by Chief Judge Albert Diaz
and Circuit Judges Robert Bruce King, James Andrew Wynn, Stephanie Thacker, Pamela Harris, Toby J.
Heytens, and DeAndrea G. Benjamin. Dissenting Circuit Judges included J. Harvie Wilkinson III, Paul V.
Niemeyer, G. Steven Agee, Julius N. Richardson, A. Marvin Quattlebaum Jr., and Allison Jones Rushing, all
of whom joined in a lengthy dissenting opinion by Judge Richardson, with shorter separate dissents by
Judges Wilkinson and Quattlebaum.
Most of the contention between the majority and the dissenters was about how to characterize the
exclusionary provisions. The majority saw them as discrimination because of the transgender identity of the
individuals seeking coverage for their gender-affirming care, subject to heightened scrutiny under Equal
Protection doctrine, which places the burden on the state to show that the exclusions substantially advance
an important state interest. The majority described the exclusions as being a “proxy” for discrimination
because of gender identity. A key factor in the majority’s analysis was evidence that the medical treatments
involved in such care are not covered for transgender people seeking them to affirm their gender identity
but are covered for cisgender people seeking them for other purposes, including affirming cisgender
identity.
For example, a cisgender woman can be covered for a medically necessary mastectomy as a treatment for
breast cancer, but a transgender man is not covered for a mastectomy performed to affirm their male
gender identity. A cisgender boy diagnosed with delayed puberty will be covered for testosterone treatments
to stimulate the development of secondary male sex characteristics, but a transgender boy will be denied
coverage for testosterone to affirm their male identity. To the majority, this was direct evidence of
discrimination because of both gender identity and sex.
The states argued that there was no discrimination based on transgender status but rather a distinction
based on medical diagnosis, and that no Equal Protection issue was triggered by these exclusions. The
majority of the court rejected this argument. Judge Gregory’s opinion goes on at great length to show how
the dissenters’ analysis was not faithful to federal discrimination law precedents.
The Medicaid Act requires states to cover both mandatory and optional services in sufficient “amount,
duration, and scope to reasonably achieve its purpose.” Although states can “place appropriate limits on a
service based on such criteria as medical necessity or on utilization control procedures,” say the regulations
issued under the Act, they cannot “arbitrarily deny or reduce the amount, duration, or scope of a required
service to an otherwise eligible beneficiary solely because of the diagnosis, type of illness, or condition.”
The majority of the court found that West Virginia’s exclusion of “transsexual surgery” from Medicaid
coverage did exactly what the regulation forbids, reducing the scope of a required service “solely because of
the diagnosis, type of illness, or condition.” A person identified as female at birth can get a mastectomy for a
cancer diagnosis, but not for a gender dysphoria diagnosis, for example.
The states argued, without success, that the availability of particular treatments or surgery was based not on
the sex or gender identity of any individual, but rather based on the diagnosis they received. Although the
words weren’t pushed openly, the states’ arguments reflected the view that a mastectomy for breast cancer
involves removing a diseased body part, while a mastectomy in aid of achieving a masculine body for
somebody identified as female at birth involved removing a healthy organ for psychological rather than
medical reasons. In short, legislatures that exclude gender-affirming care from their insurance programs
generally reflect the Republican Party’s ideological rejection of the reality of gender identity. (This
insistence by Florida legislators led one federal district judge to write in his opinion striking down an anti-
trans law that “transgender identity is real!”)
The Affordable Care Act prohibits discrimination because of sex in insurance programs that receive federal
funding. Both the North Carolina and West Virginia programs receive federal funding and, applying the
same reasoning as it did in its Equal Protection analysis, the court found that refusing gender-affirming care
when the individual is transgender is a form of sex discrimination prohibited by that Act.
The majority opinion also dealt with important subsidiary issues such as certifying a plaintiff class action,
the wording of the injunctions the district courts issued requiring the state programs not to enforce their
exclusionary provisions, and rulings on admission or exclusion of “expert testimony” that the states wanted
to present to support their defense of the exclusions.
Judge Richardson’s dissent was joined in whole or in part by all the other dissenters. He disputes the
majority’s conclusions on every point, embracing the states’ arguments that their exclusionary provisions do
not discriminate because of sex, and pointing out further that the Equal Protection Clause does not even
mention sex and, as construed by the Supreme Court, follows a different methodology from the civil rights
statutes that do mention sex.
In a separate dissent, Judge Wilkinson argues against deciding the case as a matter of constitutional law.
“Why the rush to constitutionalize?” he asks. “Why the dash to create a substantive Fourteenth Amendment
right to transgender surgery and treatment underwritten by the state?” He argues that taking such an
approach introduces too much politics into what should be a process of strict legal analysis. “The
fundamental rights prong of equal protection is what is at play here, and while constitutionally mandating
state-funded transgender rights will please some, it will politicize the courts in the eyes of all as assuredly as
its substantive due process predecessor did.”
Judge Quattlebaum’s separate dissent focuses on the dispute between the parties over whether the states
have a legitimate basis not to finance gender-affirming care. “We do not — or, at least, we should not —
bend the Federal Rules of Evidence just because a case involves important constitutional issues,” he wrote.
“But that is what the majority seems to be doing here. In order to conclude that no legitimate, non-
discriminatory reasons support denying coverage for certain treatments of gender dysphoria, the majority
abandons settled evidentiary principles. Properly accounting for the record, questions about the medical
necessity and efficacy of such treatments linger. And those lingering questions support the state’s coverage
decisions.”
Quattlebaum is referring to the “expert testimony” offered by the states in support of their exclusionary
policy, which was either excluded or discounted by the trial judges in these cases, who gave great weight to
the amicus briefs offered by the major medical associations in support of gender-affirming care for persons
diagnosed with gender dysphoria.


English

Federal Appeals Court Rules Gov’t Health Plans Must Cover Gender-Affirming Care for Trans People

Teitel, Ruti G.

Weis, Valeria Vegh

Transitional Justice and Human Rights

Wice, Jeffrey M.

DigitalCommons@NYLS 
Redistricting Roundtable Updates NY Census and Redistricting Institute 
6-17-2024 
June 17 Roundtable Update 
Jeffrey M. Wice 
New York Law School, jeffrey.wice@nyls.edu 
Follow this and additional works at: https://digitalcommons.nyls.edu/redistricting_roundtable_updates 
Recommended Citation 
Wice, Jeffrey M., "June 17 Roundtable Update" (2024). Redistricting Roundtable Updates. 152. 
https://digitalcommons.nyls.edu/redistricting_roundtable_updates/152 
This Article is brought to you for free and open access by the NY Census and Redistricting Institute at 
DigitalCommons@NYLS. It has been accepted for inclusion in Redistricting Roundtable Updates by an authorized 
administrator of DigitalCommons@NYLS. For more information, please contact camille.broussard@nyls.edu, 
farrah.nagrampa@nyls.edu. 
 
 
 
 
 
N.Y. ELECTIONS, CENSUS & REDISTRICTING UPDATE 
 
EVENTS 
  
June 18 Conference- N.Y. Redistricting: What Happened and 
What’s Next? 
 
New York Law School will host a conference on redistricting from 9:30 to Noon at the 
school (located at 185 W. Broadway in Manhattan’s Tribeca neighborhood). Panels 
will focus on the 2014 constitutional amendment, the post-2020 process and what 
happened, and next steps for a new constitutional amendment before the post-2030 
process gets underway. 2022 Court Special Master Jonathan Cervas will keynote the 
event. For more information and a link to register for the event, see:  
https://www.nyls.edu/events/new-york-redistricting-what-happened-and-whats-next/ 
 
N.Y. VOTING RIGHTS ACT LITIGATION 
 
Cheektowaga (Erie County): Young v. Town of Cheektowaga 
 
On June 12, the Town of Cheektowaga filed a notice of cross-motion for summary 
judgment in Young v. Town of Cheektowaga. The Town’s requested relief includes 
an order denying Young’s motion for partial summary judgment, granting summary 
judgment in favor of the Town, dismissing Young’s complaint in its entirety, and 
striking the NYVRA down as unconstitutional.  
 
On June 12, Daniel A. Spitzer filed an affirmation in opposition to Young’s motion for 
partial summary judgment and in support of the Town’s cross-motion for summary 
judgment. Spitzer echoes the relief requested by the Town and provides persuasive 
lists of facts and reasonings for why the court should rule in the Town’s favor.  
 
Spitzer states that the NYVRA tramples upon “several of the rights guaranteed by 
both the U.S. and New York State Constitutions” by providing voter protections 
beyond the rights afforded by the U.S. Constitution. Spitzer also states that Young’s 
repeated failures in multiple elections suggest that there are reasons “beyond racially 
polarized voting,” but the Town is prohibited by the NYVRA from considering these 
rationales. Spitzer argues that by prohibiting the Town from considering other 
rationales and by coercing the Town into altering its electoral system, the NYVRA 
violates the 1st Amendment. 
 
On June 12, a memorandum of law was also filed by the Town. The memo focuses 
on two main points: (1) The court should deny Young’s motion for partial summary 
judgment because the motion is premature and substantively deficient; and (2) the 
Town is entitled to summary judgment as to its constitutional defenses. On the first 
point, the Town argues that Young’s “premature motion” demands the court to 
provide advisory opinions and that material issues of fact still exist. On the second 
 
 
point, the Town argues that it has the capacity to challenge the NYVRA, that the 
Court is authorized to decide the constitutional challenges brought by the Town 
against the NYVRA, and that the NYVRA violates the U.S. and New York State 
Constitutions. If the Town’s cross-motion is denied, its counsel asks the Court to 
deny Young’s motion for summary judgment and to order discovery and proceed “in 
its normal course.” 
 
On June 12, the Town of Cheektowaga filed a counterstatement of material facts. 
The counterstatement denies sufficient knowledge to form a belief on many of 
Young’s material facts, such as Young’s race or residency. It disputes the Town’s 
designation as a “political subdivision,” as this term is used in the NYVRA and “seeks 
to draw a legal conclusion.” It also disputes that Young was the candidate of choice 
for the minority population in Cheektowaga. The counterstatement further disputes 
information from expert Lisa Handley, arguing that the information is opinion-based 
and therefore inappropriate for a Material Statement of Facts. 
 
VOTING RIGHTS ACT ADMINISTRATION 
 
Attorney General Issues Proposed Voting Rights Law 
Preclearance Proposed Rule 
 
The New York Voting Rights Act’s preclearance section, which requires certain local 
jurisdictions throughout the state (“covered entities”) takes effect on September 22, 
2024. This law requires certain local governments to submit certain types of voting- 
and election-related changes (“covered policies”) to the OAG’s Civil Rights Bureau 
(“CRB”) or to a designated court before they can be enacted or implemented,  
 
To provide transparency and guidance to covered entities and the general public, 
and to ensure that preclearance is administered efficiently and effectively, the 
Attorney General’s office has released a proposed rule, which can be viewed 
on its website.  
 
A summary of the proposed rule was published on June 13th in the State 
Register. The proposed rule contains information regarding preclearance submission 
and review procedures; the legal standard that will be used to analyze submissions; 
covered entities; and covered policies. 
 
Comments on the proposed rule can be submitted until August 12 by email 
(votingrights@ag.ny.gov) or by mail (ATTN: Voting Rights Section, Civil Rights 
Bureau, Office of the New York Attorney General, 28 Liberty Street, New York, NY 
10005).  
 
LEGISLATION 
 
Election Laws Approved by State Legislature 
 
The following bills were approved by the State Assembly and Senate before 
adjournment: 
 
 
 
Bill No. 
 
A3250A: Epstein -- Relates to allowing pre-registered voters to apply for an 
absentee or early mail ballot 
 
A9409: Wallace -- Moves the date of the meeting of the electors and the method for 
the transmission of the certificates of vote 
 
S610: HOYLMAN-SIGAL -- Authorizes boards of elections to establish absentee 
ballot drop-off locations 
 
S612D: MAYER -- Prohibits conflicts of interest among board of elections employees 
 
S5943: SKOUFIS -- Modifies the order in which candidates appear on the ballot 
 
S6130A: PARKER -- Provides that an attorney licensed to practice law in the state 
may serve as a poll watcher in any city or county in the state 
 
S6199B: MYRIE -- Relates to notifying candidates of designation for certain county 
committees 
 
S8638: MYRIE -- Provides that a proceeding challenging apportionment by the 
legislature shall be brought in certain designated courts 
 
S9678B: GONZALEZ -- Relates to materially deceptive media in political 
communications 
 
S7543B: GONZALEZ -- Enacts the legislative oversight of automated decision-
making in government act (LOADinG Act) 
 
Thanks to Louie Sawi of New York Votes for the list. 
 
ELECTION LAW 
 
Federal court Finds N.Y. Line Warming Ban Unconstitutional: 
Brooklyn Branch of NAACP v. Kosinski 
 
On May 30, the U.S. District Court for the Southern District of N.Y. held a New York 
law banning line warming unconstitutional. Line warming – the handing out of food 
and drink to voters at polling places – has been banned in New York for over 100 
years. The most recent line warming ban, N.Y. Elec. Law Section 17-140, was 
enacted in 1992. It classified line warming as a Class A misdemeanor punishable by 
up to one year’s imprisonment or up to three years’ probation and a monetary fine.  
 
The Brooklyn Branch of the NAACP challenged the constitutionality of the Line 
Warming Ban in its suit against the New York State Board of Elections and the New 
York City Board of Elections. In its opinion, the court concluded that the Line 
Warming Ban violated the First and Fourteenth Amendments to the U.S. Constitution 
because it unduly restricted expressive conduct protected under the First 
 
 
Amendment, was overbroad in violation of the First Amendment, and was 
unconstitutionally vague in violation of Due Process Clause of the Fourteenth 
Amendment. 
 
The First Amendment protects expressive or symbolic conduct when such conduct is 
intended to convey a particular message and it is likely that the message will be 
understood by those viewing it. The court agreed with the Brooklyn NAACP’s 
argument that line warming constitutes expressive conduct as it conveys the 
message that voting is important and it such a message is likely to be understood by 
voters. It further agreed that the Line Warming Ban was overly restrictive. In its 
defense of the Ban, State Board of Elections argued that its purpose was to protect 
voters from undue influence. However, the court held that the law applied to 
substantially more speech than necessary, and was not therefore sufficiently tailored 
to accomplish its alleged goal. It further held that the ban was overbroad in violation 
of the First Amendment on the same grounds.  
 
Under the Due Process Clause, a criminal law is unconstitutionally vague because it 
either fails to provide individuals with a reasonable opportunity to understand what 
conduct is prohibited or it allows for arbitrary or discriminatory enforcement. The 
court held the Line Warming Ban was unconstitutionally vague because it failed to 
provide sufficient geographical constraints for the average individual to understand 
what conduct is prohibited and where. In its opinion, the court highlighted that, based 
on the text of the statute, it is unclear whether it would be illegal to provide voters 
with snacks while in the parking lot, or if the Brooklyn NAACP could be prosecuted 
for providing snacks at their headquarters.  
 
Throughout its opinion, the court emphasized the potential impact of the Line 
Warming Ban in the upcoming 2024 election cycle. New York voters often face long 
wait times, and those wait times grow longer during high turnout elections. Following 
the 2020 presidential election, voters complained of wait times as long as five hours. 
Voters may face equally long wait times in the upcoming 2024 election cycle. Long 
wait times may work to discourage voters from remaining at the polls, whereas line 
warming by nonpartisan organizations like the NAACP may support voters and 
ultimately increase voter turnout.  
 
The parties to the suit have until June 14th to submit a joint proposal regarding the 
next steps in the litigation. A permanent injunction against the Line Warming Ban is 
in place as of the May 30 ruling.  
 
2024 ELECTIONS 
  
New York voters will only see three presidential candidates on the November ballot.  
 
Last week, the State Board of Elections determined that Green Party candidate Jill 
Stein failed to submit the required 45,000 signatures (or signatures equal to 1% of 
the total number of votes in the last gubernatorial election). Stein also failed to 
submit a list of electors. Only President Joe Biden (D), Robert F. Kennedy, Jr. 
(Independent), and Donald Trump (R) will appear on the ballot. 
 
 
 
 
EMPLOYMENT 
  
The New York City Campaign Finance Board is hiring a general counsel. 
Read about and apply for the position 
here: https://cityjobs.nyc.gov/job/general-counsel-in-manhattan-jid-23401 
 
AROUND THE NATION 
 
Florida: A federal court has decided not to review a March decision that upheld a 
new Florida congressional district that eliminated a historically Black district. The 
plaintiffs alleged that the 2022 map violated the 14th and 15th Amendments because 
of intentional race discrimination. The Black voters, once in one district, are now 
spread throughout four majority-white districts.  
 
In March, a federal 3-judge panel concluded the plaintiffs had not proven that the 
Legislature “acted with race as a motivating factor.” The court stated that even if 
DeSantis acted with “some unlawful discriminatory motive” in creating the map, that 
does not mean the Legislature shared the same motive. In April, the plaintiffs filed a 
motion asking the court to reconsider the case, noting that DeSantis should not be 
treated as an “outsider to the legislative process” because he is a state actor whose 
position allows him to partake in legislative functions. 
 
On June 11, the court denied their motion and effectively closed the case. However, 
pro-voting groups filed a separate case in April 2022, arguing the map violates the 
state constitution. In September 2023, a trial court struck down the map for violating 
the Florida Constitution by diminishing Black voting power in northern Florida. On 
appeal in December, the court reversed the trial court’s decision, ruling that the map 
should be upheld. 
 
The plaintiffs appealed that ruling, and in January, the Florida Supreme Court agreed 
to hear the case. However, the court denied the plaintiffs’ motion to expedite the 
proceedings and a date has not yet been set for oral argument. 
 
Louisiana: Voters in Louisiana still do not have new legislative maps months after a 
federal district court struck down Louisiana’s electoral districts for violating Section 2 
of the Voting Rights Act. This delay is partly because the state is waiting for the 5th 
U.S. Circuit Court of Appeals to rule on whether private parties are allowed to bring 
claims under the federal provision of Section 2. However, the court has not 
announced whether it will hold the requested hearing. 
 
In April, Louisiana officials filed a petition for a 5th Circuit hearing after the 8th U.S. 
Circuit Court of Appeals ruled in a separate case that private litigants can no longer 
bring lawsuits under Section 2, only the U.S. Attorney General. Louisiana officials are 
seeking the same conclusion from the 5th Circuit. This ruling would jeopardize the 
plaintiffs’ standing in this case and other redistricting cases in Louisiana, Mississippi, 
and Texas, all covered by the 5th Circuit. 
 
In May, the federal district court stated that the court would grant the plaintiffs’ motion 
to have the court schedule deadlines for remedial proceedings if the Legislature did 
 
 
not pass a VRA-compliant map by the end of the legislative session on June 3. The 
court stated that pending appellate review does not “absolve the state of their 
obligation” to comply with the order of the federal district court.  
 
North Carolina: On June 13, a hearing was held in a challenge to the state’s new 
congressional and legislative maps. The lawsuit was filed on behalf of North 
Carolina’s voters and challenged the state House and state Senate maps that were 
redrawn by the Legislature in October 2023.  
 
The plaintiffs argue that these maps created an unfair partisan advantage for 
Republican candidates, and that the right to “frequent” and “free” elections surely 
guarantee them the right to “fair” elections as well. The challenged districts allegedly 
violate the rights of North Carolina voters to “fair” elections under the state 
constitution. The lawsuit asks the court to rule that “the citizens of North Carolina 
have an unenumerated constitutional right to fair elections” and to strike down the 
maps for violating this right.  
 
The N.Y. Census & Redistricting Institute is supported by grants from the New 
York Community Trust, New York Census Equity Fund, the Alfred P. Sloan 
Foundation, and the New York City Council. This report was prepared by 
Jeff Wice, Alexis Marking, & Beau van der Meulen. 


June 17 Roundtable Update

January 24, 2024
This annual event explores the reasons why, in a diverse economy driven by diverse participants, the practice of arbitration and mediation has been persistently homogeneous. Participants will examine approaches that can accomplish the goal of ADA neutrals\u27 reflecting the diversity of the disputants with whom the work.https://digitalcommons.nyls.edu/adr_events/1044/thumbnail.jp

New York Law School

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NEWYORK O I 
Alternative Dispute 
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Since 1891 


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Bancamper, Jennifer

DigitalCommons@NYLS 
NYLS Community News History & Archives 
5-13-2024 
NYLS’s Paulina Davis Wins $45,000 Award for Housing 
Documentary 
Jennifer Bancamper 
Follow this and additional works at: https://digitalcommons.nyls.edu/community_news 
Since 1891
WE ARE NEW YORK’S LAW SCHOOL
Paulina Davis, Senior Advisor for Diversity, Equity, and Inclusion at New York Law 
School (NYLS), recently won the 2024 DocPitch Audience Award for her feature 
documentary, “The Co-op: The Kids of Dorie Miller.” The award—a $45,000 
prize––recognizes and helps fund feature-length documentary projects that are 
currently in production. The DocPitch competition is part of the annual DocLands 
Film Festival, which is presented by the California Film Institute.
“The Co-op: The Kids of Dorie Miller” follows Davis, a former education law/disability rights attorney, as she 
uncovers her family’s history at New York City’s first unsegregated housing co-op in the context of the current 
affordable housing crisis.
“We are thrilled to have won DocPitch’s Audience Choice Award,” said Davis. “This award will help us to expand 
our archival research and keep filming this summer. We’re grateful to New York Law School for providing us 
with space to film interviews. At a time when books are being banned, we’re honored to be shining a light on 
an important part of American history and uplifting the contributions of a little-known Black community. 
NYLS’s Paulina Davis Wins 
$45,000 Award for Housing 
Documentary
Jennifer Bancamper  •  Published  May 13, 2024
Find more NYLS stories at news.nyls.edu.


NYLS’s Paulina Davis Wins $45,000 Award for Housing Documentary

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Doroshow, Joanne

DigitalCommons@NYLS 
NYLS Community News History & Archives 
5-9-2024 
NYLS Clinic Students Go to Congress 
Joanne Doroshow 
Marketing&Communications@nyls.edu 
Follow this and additional works at: https://digitalcommons.nyls.edu/community_news 
Recommended Citation 
Doroshow, Joanne, "NYLS Clinic Students Go to Congress" (2024). NYLS Community News. 82. 
https://digitalcommons.nyls.edu/community_news/82 
This Article is brought to you for free and open access by the History & Archives at DigitalCommons@NYLS. It has 
been accepted for inclusion in NYLS Community News by an authorized administrator of DigitalCommons@NYLS. 
For more information, please contact camille.broussard@nyls.edu, farrah.nagrampa@nyls.edu. 
Since 1891
WE ARE NEW YORK’S LAW SCHOOL
On April 19, the Congressional Consumer and 
Civil Justice Clinic took a trip to Washington 
D.C., which was the culmination of students’ 
outstanding work this semester on a variety of 
important bills and issues in Congress today.
The six clinic students—Michelle Blaifeder ’24, Kathryn Goodwin 
’25, Ariana Hartnell ’25, Bridget Helbock ’25, Mikayla Monaco ’25, 
and Madison Phillips ’25—advocated for legislation on which they 
had been working in two official meetings. They first met with 
Alison Cohen, Legislative Assistant for U.S. Representative Jerry 
Nadler, and then with Jeff Hantson and Scott Jorgenson, counsel 
with the U.S. Senate Judiciary Committee.
Each student delivered a three-minute presentation, followed by 
a meaningful exchange with each staffer. The students also gave 
each staffer a 5–6 page legislative memo, and then distributed 
additional legislative packets to various other congressional 
offices. It was, in the students’ words, an “amazing experience,” 
said Hartnell, and  “one of the highlights of my semester,” 
added Blaifeder. Goodwin agreed that it was a “truly incredible 
experience,” and “incredibly impactful,” noted Helbock. Monaco 
called the trip, “the icing on the top of the cake of this clinic.”
“The feel of walking into a congressman’s office was 
extraordinary,” said Phillips. The Senate meeting was in the Senate 
Judiciary Committee hearing room, which, Blaifeder noted, is a 
room “where so many important decisions regarding millions of 
peoples’ lives have been made… I thought about powerful figures 
such as Justice Ruth Bader Ginsburg who were in that room prior 
to me and what they have done for our country.”
The staffers commended the clinic students in emails following 
the meetings. Cohen said she was “thoroughly impressed with 
the presentations.” Scott Jorgenson noted, “[The students] did a 
great job presenting their projects,” which Jeff Hantson seconded, 
stating, “They were all incredibly impressive.”
The experience gave students lifelong advocacy skills. Goodwin 
observed, “Preparing for our meetings in D.C. and presenting 
gave me a newfound confidence in my ability to effectively 
communicate.” Monaco similarly noted, “What I loved most about 
this clinic was the ability to practice my public speaking skills.” And 
Helbock said the clinic “has been pivotal in my law school career” 
with the D.C. trip “revealing the exciting and meaningful work that 
can be accomplished through legislative action in this country— 
especially with a law degree.”
Hartnell summed up the trip this way: “It was great conclusion to 
a wonderful semester. It felt like we were working towards the 
D.C. trip all semester, so it was a satisfying ending and a great 
reward for the hard work we did.”
NYLS Clinic Students  
Go to Congress
Adjunct Professor Joanne Doroshow  •  Published May 9, 2024
Experiential Learning at New York Law School 
Experiential learning is an integral part of the NYLS 
education. Through our top-tier programs, we offer students 
the opportunity to turn theory into practice: Starting in their 
first year, students participate in counseling, interviewing, 
and negotiating exercises in their foundational Legal Practice 
course. During their upper-level years, students may select 
from a wide array of experiential learning courses to hone 
their lawyering skills. Together with a comprehensive legal 
education, these experiential offerings prepare our students 
for careers in advocacy.
Find more NYLS stories at news.nyls.edu.
Left to right: Bridget Helbock ’25, Madison Phillips ’25, Mikayla Monaco ’25, 
Kathryn Goodwin ’25, Michelle Blaifeder ’24, and Ariana Hartnell ’25.
  


NYLS Clinic Students Go to Congress

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Law School, New York

DigitalCommons@NYLS 
NYLS Community News History & Archives 
5-7-2024 
NYLS Launches Law and Global Society Summer Abroad Program 
in Rome 
New York Law School 
Marketing&Communications@nyls.edu 
Follow this and additional works at: https://digitalcommons.nyls.edu/community_news 
Recommended Citation 
Law School, New York, "NYLS Launches Law and Global Society Summer Abroad Program in Rome" 
(2024). NYLS Community News. 84. 
https://digitalcommons.nyls.edu/community_news/84 
This Article is brought to you for free and open access by the History & Archives at DigitalCommons@NYLS. It has 
been accepted for inclusion in NYLS Community News by an authorized administrator of DigitalCommons@NYLS. 
For more information, please contact camille.broussard@nyls.edu, farrah.nagrampa@nyls.edu. 
Since 1891
WE ARE NEW YORK’S LAW SCHOOL
NYLS Launches Law and  
Global Society Summer 
Abroad Program in Rome
New York Law School  •  Published  May 7, 2024
Find more NYLS stories at news.nyls.edu.
An immersive 
program where 
students will gain a 
deeper understanding 
of international law 
and legal frameworks 
in partnership with 
The American 
University of Rome
New York Law School (NYLS) has launched a Law and Global Society Program in Rome, Italy. Open 
to students from NYLS or any ABA-accredited law schools, the Rome Program immerses them in the 
socio-legal environment of Italy, as well as the broader European Union. All classes will be taught on 
the campus of The American University of Rome (AUR). This program comes after an initial program in 
Summer 2023 that was limited to NYLS students.
The Rome Program is led by two preeminent international legal scholars and leaders, NYLS John 
Marshall Harlan II Professor and Director of the Racial Justice Project Penelope “Penny” 
Andrews (and former Dean of the University of Cape Town Faculty of Law and Albany Law School), 
and Professor and former Dean of Golden Gate University School of Law Rachel Van Cleave. 
They will be joined by NYLS Professor and Director of the 21st Century Policing Project Kirk 
Burkhalter, NYLS Professor and Dean for Advocacy and Co-Curricular Programs Lynn Su, and AUR 
Professor Antonio Marchesi to teach courses that include:
•   No Peace Without Justice: This course will expand understanding of the relationship between 
peace, justice, and human rights in an international context by addressing the legal obstacles and 
ethical dilemmas faced by the international community in pursuing these different but reciprocally 
connected goals. Specific issues explored during the course include the extraterritorial jurisdiction 
of states, international criminal tribunals, immunities from jurisdiction, different approaches to the 
fight against terrorism, and different models of post-conflict transitional justice.
•   Racial Justice and the Law: In the context of the socio-legal environment of Italy, the European 
Union (EU), and the global south, this course will study the use of the law both to perpetuate 
and eradicate racial and economic injustice. This course will explore the role of law in its political 
and social context, especially with regard to the use of legal institutions in the creation and 
maintenance of systems of racial injustice; and to examine the potential and limits of the use of 
law (especially litigation) as a tool for social change.
“Lawyers are at the center of an interconnected world increasingly governed through complex 
international institutions and agreements,” said New York Law School Dean and President Anthony 
Crowell, “The NYLS Rome Program provides an immersive on-the-ground education for future lawyers 
who will be essential to the future of global human rights, social justice, peace, and economic security.”
The Rome Program provides exclusive insider field visits to a variety of government offices, non-
governmental organizations, and other world institutions, including the US Mission to Italy, the Italian 
Parliament, Italy’s Supreme Court of Cassazione, the Vatican, the UN Food and Agriculture Organization, 
the World Food Program, and the International Fund for Agricultural Development. Through these 
meetings and the courses, students will gain an in-depth and realistic understanding of the complexity 
of international law and institutions, and how they directly impact the lives of people around the globe.
For more information, visit https://www.nyls.edu/summer.


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NYLS’s Paulina Davis Wins $45,000 Award for Housing Documentary

NYLS Clinic Students Go to Congress

NYLS Launches Law and Global Society Summer Abroad Program in Rome

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