Volume 2018, No. 1
Table of Contents
Articles
The Erosion of Civil Rights and What to Do About It
Lynn Adelman
I want to begin by thanking the law clerks who served Seventh Circuit Judge Thomas E. Fairchild for inviting me to give the annual Fairchild Lecture. It is an honor to give a lecture previously given by such distinguished figures as Justice John Paul Stevens and Professor, now Senator, Elizabeth Warren. In the course of preparing for this talk, I discovered that Judge Fairchild was a great civil libertarian. As a lawyer, he represented people who had been summoned to testify before The House Un-American Activities Committee. And, as Attorney General of Wisconsin, he sought to integrate a public swimming pool in Beloit when there was no requirement that his office be involved. I was not surprised by this discovery, but I mention it because it leads into what I want to talk about today which is civil rights and, more specifically, civil rights as it regards the interaction between citizens, often but not always African-Americans, and government officials, often but not always police officers. We know that in the 1950s and 1960s, great progress was made in the area of civil rights both as a result of decisions of the Warren Court such as those striking down segregation and expanding habeas corpus and acts of Congress such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965. That memorable burst of progress, however, was followed by a long period in which we heard very little about civil rights, a period lasting roughly from the 1960s until very recently. As one civil rights scholar put it, “[t]he struggles of the [civil rights era], the changes they wrought—‘[a]ll this is ancient history.’”
Disappearing Data
Agnieszka McPeak
“Ephemeral” applications like Snapchat facilitate social interaction in a format that mimics the impermanence of face-to-face conversations. In the age of “big data” and the growing privacy concerns it raises, platforms offering ephemeral social media tools are meeting a market demand for smaller digital footprints. Additionally, these platforms are responding to regulatory pressure to embrace “privacy by design,” the idea that new technology should be built with privacy as a goal from the ground up. Indeed, ephemeral platforms, though imperfect in their impermanence, mark a positive shift in the direction of data minimization.
“LOL No One Likes You”: Protecting Critical Comments on Government Officials’ Social Media Posts Under the Right to Petition
Dr. JoAnne Sweeny
As technology has continued to evolve and change, so too has the way people across the country communicate with each other. This trend has also affected the ways constituents interact and communicate with their political representatives. As a result, many citizens have taken to social media platforms like Twitter and Facebook to post, tweet, and hashtag about their elected representatives, whether praising them or airing their grievances against them and their policies. Perhaps the best examples of this trend are Kentucky Governor Matt Bevin and Donald Trump, who have utilized these digital platforms to convey policy decisions and stances directly to their followers. However, in the process of maintaining these accounts, both politicians have blocked users from interacting with their accounts for various reasons, and consequentially have impeded those users’ ability to communicate with them. As a result, Bevin, Trump and other government officials are being sued for allegedly violating their ex-followers’ First Amendment right to freedom of expression. Freedom of expression may offer a viable legal path to those litigants but this article argues that there is another way: the right to petition. Specifically, this article argues that the practice of blocking users from official government accounts acts as a violation of their right to petition the government for redress of grievances. Thus, this article traces the history of the right to petition the government in the United States, seeks to create a modern definition of a “petition,” and, applying that definition, shows that blocking social media followers from official government social media pages or feeds violates the right to petition.
Fixing What’s Wrong With How Universities Adjudicate Sexual Misconduct Claims: How Procedural Change Can Encourage Cooperation
Tammi Walker
In the past few years, the public has been bombarded with news stories and allegations that have raised its consciousness with respect to the problem of sexual assault on university campuses. The most often quoted studies suggest that approximately nineteen percent of young women and six percent of young men will experience sexual violence while attending college. Official responses to reports of sexual offenses have generated outrage and resulted in calls for action. Frustration likely stems from universities’ imposition of barriers to reporting sexual assault and a failure to impose adequate consequences for those accused of sexual assault. Notwithstanding the fact that few cases receive public attention; the problems associated with how colleges and universities handle sexual misconduct cases are pervasive. Notably, the number of colleges and universities being investigated by the United States Department of Education’s Office for Civil Rights (“OCR”) for violations based upon the handling of sexual assault cases on campus has gone from 55 in May 2014, to 159 in December 2015, to 496 in July 2017. Consequently, closer attention has been paid to understanding more about the scope of the problem and directed at reducing the incidents of sexual violence on campus by enacting changes in policy and legislation.
Comment
#AIRBNBWHILEBLACK: Repealing the Fair Housing Act’s Mrs. Murphy Exemption to Combat Racism on Airbnb
Brenna R. McLaughlin
The advent of Airbnb has created a chasm of liability between America’s newest lodging category and our nation’s fair housing laws. Developed in 2008, Airbnb offers travelers a way to bypass expensive hotels by renting space from home owners and lease holders through advertisements on Airbnb’s website. Users book their accommodations directly from hosts, who have virtually complete discretion in deciding who to rent to. Airbnb faces growing criticism, highlighted by the personal stories told using the hashtag AirbnbWhileBlack on social media, that it has failed to stop the proliferation of racism on its platform. This Comment analyzes how Airbnb’s hybrid category of publicized accommodation facilitated through private, peer-to-peer transactions likely makes both the company and its hosts immune from the Fair Housing Act (FHA) due to an old exemption within the law that protects discrimination by renters in small, owner-occupied buildings. This issue is particularly timely as Airbnb has currently surpassed all worldwide hotel chains in value, making it the world’s largest accommodation provider.