Facebook Faced with Data Breach Controversy  

Written By Amy Johnson


The New York Times recently revealed that Cambridge Analytica, a data analysis firm based in London, was hired by the Trump Campaign to “harvest private information from the Facebook profiles of more than 50 million users without their permission.” Facebook has faced growing backlash since the information was revealed – their stocks have been dropping, Chief Security Officer Alex Stamos has stepped down, Chief Executive Officer Mark Zuckerberg is expected to brief congressional committees, and as of March 21, 2018, both Facebook and Cambridge Analytica have been sued in the United States District Court for the Northern District of California. Mark Zuckerberg called the scandal “a major breach of trust” during a recent interview with CNN.

What did Facebook and Cambridge Analytica do?

Cambridge is a company owned by billionaire Robert Mercer. Steve Bannon, a former Trump adviser, is alleged to have presided over a project with Cambridge Analytica in which information was obtained to construct and analyze voter profiles. The company worked with the Trump Campaign team to compile millions of United States Facebook users’ profiles to build a program to predict and influence voter choices. This data was obtained through Aleksandr Kogan, a Cambridge University researcher, who created a personality quiz for users to take on Facebook. Once a user linked into the quiz, Kogan was able to access the user’s page and data. Through several hundred thousand quiz takers, Kogan was able to access more than 50 million Facebook users’ profiles, later targeting them with personally-tailored political advertisements. In other words, if a user took the quiz, he or she (and thousands of Facebook friends’ ‘likes’ and ‘dislikes’) were accessible.

Kogan’s access to this data was known to Facebook and was consistent with Facebook’s developer application program interface (“API”). The Facebook developer page shows that their application program creator allows developers of apps to not only get user’s account information, but to access information like “friends_interests” and “friends_religion_politics.” However, Facebook’s policy only allowed for the collection of friends’ data for the purpose of improving user experience in the app – not for sale or advertising uses. This “unprecedented data harvesting” of millions of Facebook users’ information by Cambridge Analytica, and more specifically, the use of that data, raises many new questions about Facebook’s role in targeting United States voters in the past election.

In the midst of the reveal of the Cambridge Analytica breach, President Donald J. Trump took to Twitter to discuss his campaign’s success in utilizing social media during his campaign. He tweeted, “Remember when they were saying, during the campaign, that Donald Trump is giving great speeches and drawing big crowds, but he is spending much less money and not using social media as well as Crooked Hillary’s large and highly sophisticated staff. Well, not saying that anymore!”

What Laws Might Apply to Facebook and Cambridge Analytica?

With one lawsuit filed, and a potential for more filings in the future, there are several ways that Facebook users and Facebook could proceed to court.

(1) Computer Fraud and Abuse Act (CFAA)

The CFAA provides criminal and civil penalties for unauthorized access to computer networks. However, the statute itself focuses on the “authorization” of the “accesser” which, technically, Kogan had. The quiz created required voluntary action on part of the user in taking the quiz, which notified the user of access to their user profiles. In a recent Ninth Circuit decision, the Court stated “a defendant can run afoul of the CFAA when he or she has no permission to access a computer” when the permission granted “has been revoked explicitly.” However, the Court did not say that ‘overstaying one’s welcome’ was a violation of the CFAA. Here, Kogan had authorization to the Facebook profiles and that authorization was not revoked during his access. He may have done more than “welcome,” but it will be up to the courts to determine whether or not this constitutes a violation.

The CFAA also punishes users who exceed authorized access, which could be where Kogan is deemed to be in violation. However, the language in the statute states that exceeding authorized access is accessing “a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to.” When Kogan created the quiz, he obtained access to information in a way allowed by Facebook’s API; yet, when that information was subsequently used beyond what Facebook allows, it lent itself to a possible violation of the CFAA.

(2) Federal Trade Commission (FTC) Rules

Bloomberg recently reported that the FTC is also investigating whether Facebook violated the terms of the 2011 consent decree between the social media site and the FTC. The decree provided that Facebook needs to be transparent about user privacy and to not deceive its users as to how their data will be used. If a court finds that Facebook violated this policy, the penalty could be up to $40,000 per day per violation. Lawmakers have also asked the FTC to look into whether Facebook should pay damages to individual users. The FTC said in a statement that “it takes very seriously recent press reports raising substantial concerns about the privacy practices of Facebook.” A group of 37 attorneys have sent a letter to Mark Zuckerberg for details on Facebook’s privacy safeguards.

(3) Securities Law

Securities law encourages companies to “disclose material information promptly, including disclosures pertaining to cybersecurity matters.” Facebook’s 2014 and 2015 reports have no mention of the Cambridge Analytica incident, and the site, as a whole, mentions data breach as a risk but never discloses if any breaches took place. Moreover, Facebook never reported this incident to investors or to the Securities Exchange Commission (SEC). It remains to be seen whether the SEC will pursue action against Facebook, along with the potential forthcoming actions of the FTC and individual users.

What’s Next?

Moving forward, users can expect to see hearings, lawsuits, potential jail time, and in general terms, what has been described by some as a regulatory nightmare. For Facebook, pinning this breach on Kogan and Cambridge may be key. If not, users may observe the downfall of the social media tycoon.


Sources Cited

Andrew Keane Woods, The Cambridge Analytica-Facebook Debacle: A Legal Primer, Lawfare (March 20, 2018).

Carole Cadwalladr, Emma Graham-Harrison, Revealed: 50 million Facebook profiles harvested for Cambridge Analytica in major data breach, The Guardian (March 17, 2018).

Facebook, Inc., v. Power Ventures, Inc., 844 F.3d 1058, 1067 (9th Cir. 2016).

Computer Fraud & Abuse Act, 18 U.S.C.A. § 1001, Pub. L. 99-474 (1986).

Tiffany Hsu & Cecilia Kang, Facebook Comes Under Scrutiny of Federal Trade Commission, New York Times (March 26, 2018).

Eric Auchard, Jonathan Stempel, Facebook, Cambridge Analytica sued in U.S. by users over data harvesting, Reuters (March 21, 2018).

Dustin Volz, David Shepardson, Munsif Vengattil, Facebook investors fret over costs as Zuckerberg apologizes, Reuters (March 22, 2018).

Photo courtesy of New York Post.

Published: Joseph Railey

We are proud to announce that the Law Review Note of 3L and Executive Editor Joseph “Joe” Railey will be published this spring!

Publication: Buffalo Public Interest Law Journal, Volume 36
Article: Married on Sunday, Evicted on Monday: Interpreting The Fair Housing Act’s Prohibition of Discrimination  “Because of Sex” to include Sexual Orientation & Gender Identity

Joe is a 3L at Syracuse University College of Law. He is from Muncie, Indiana, and he attended Ohio Northern University in Ada, Ohio.

During law school, Joe has served as the Executive Director of the Syrian Accountability Project, a senator on Student Bar Association, and on the executive boards of the Syracuse Public Interest Network and Outlaw. Joe is also an Executive Editor for the Syracuse Law Review and Honorary Member of Moot Court Honor Society.

During his 1L summer, Joe interned with the AIRE Centre in London, England. During his 2L summer, Joe interned with Lambda Legal in Los Angeles, California. Joe has also participated in the Community Development Law Clinic and worked as an extern for the Honorable Deborah Karalunas, the presiding justice at the New York Supreme Court, Commercial Division, Onondaga County. Following graduation, Joe will be working in Southern California as an Department of Justice Honors Attorney in the Executive Office of Immigration Review.

Published: Anna Pinchuk

We are proud to announce that the Law Review Note of 3L and Lead Articles Editor Anna Pinchuk will be published this spring!

Publication – Syracuse Law Review, Volume 68

Article – Countering Free Speech: CVE Pilot Programs’ Chilling Effect on Protected Speech and Expression

Anna Pinchuk is a 3L from Kiev, Ukraine. She received her bachelor’s degree from Binghamton University in Binghamton, NY, where she majored in Philosophy, Politics, and Law. She was also a member of the nationally-recognized debate team.
At Syracuse Law, in addition to serving as Lead Articles Editor for Syracuse Law Review, she is also a member of Moot Court Honors Society, a National Moot Court Appellate Team, and serves as a 3L Senator for Student Bar Association. During her previous summers, she was a research assistant for Professor Cora C. True-Frost and worked at Smith, Sovik, Kendrick & Sugnet, PC in Syracuse, NY, as a litigation associate.
In her free time, she enjoys going to theater, exploring local parks, and running.

It’s All Political: Minnesota Voters Alliance v. Mansky

Written By Sara D. Lupi


“So somebody goes to the polling place and is wearing a shirt, doesn’t say anything about a candidate or a ballot issue, but a particular election judge, one of these people picked by one of the two parties, says, oh, that’s political . . . so now this person has a choice.  The person can wear a bathrobe or some kind of coverup to go in and vote . . . Or the person can be listed as a bad Minnesotan and, at some point down the road, potentially fined $300, found to have committed a petty offense.”  – U.S. Supreme Court Justice Samuel Alito


During the November 2010 election, Petitioner Andrew Cilek entered his designated polling place in Hennepin County. He was wearing a “Please I.D. Me” button and a Tea Party t-shirt with the message “Don’t Tread on Me” and a Gadsden Flag.  Cilek twice tried to enter the polling place, and on each attempt he was told that he either needed to cover his t-shirt and button, or take them off in order to vote. He refused.  On his third try, Cilek was allowed to vote, but the election judge wrote down his name and address for potential prosecution.

Pursuant to Minnesota election law, Section 211B.11, all political apparel is banned inside a polling place, including political badges, political buttons, or other political insignia.  Campaign-related material promoting specific candidates is prohibited, as well as material “designed to influence and impact voting (including specifically the ‘Please I.D. Me’ buttons)” and “[m]aterial promoting a group with recognizable political views (such as the Tea Party, MoveOn.Org, and so on).”  Election judges at each polling place determine whether an individual is in violation of the statute.  Those in violation are asked to remove the materials or to cover them up.  Those who refuse to comply are still allowed to vote, but their names are recorded for potential prosecution.

Cilek, along with his organization, the Minnesota Voters Alliance (together, Petitioners), filed a lawsuit claiming Section 211B.11 violated the First Amendment, both facially and as-applied.

The District Court dismissed Petitioners claims, and on appeal, the Eighth Circuit upheld the ban against Petitioners’ facial claim and reversed the district court’s dismissal of the as-applied claim, remanding it back to the district court.  Petitioners filed their first petition for a writ of certiorari, which was denied by the Supreme Court, and the case proceeded in the lower courts, where the as-applied challenge was rejected again.  Petitioners then filed another writ of certiorari, limited to the facial challenge.  The Supreme Court granted writ and heard oral arguments on February 28, 2018.


In Burson v. Tennessee, the Supreme Court upheld a section of the Tennessee Code which prohibited solicitation of votes and the display or distribution of campaign materials within 100 feet of entrance to polling places.  The Court found the code section to be narrowly tailored to serve the compelling state interest of protecting the right of its citizens to vote freely and effectively.

Petitioners’ Oral Arguments

Counsel for Petitioners began their argument by clarifying that the only question before the court was whether Section 211B.11 of Minnesota election law violated the First Amendment’s overbreadth doctrine.  Petitioners asserted that the statute goes beyond prohibiting advocacy for a particular candidate or ballot issue and that it prohibits “self-expression of personal values and associations.”  Petitioners distinguished these facts from Burson by characterizing their display of political material here as “passive” rather than the “active campaigning” which was at issue in Burson.  Petitioners further acknowledged that the State’s interests in protecting a citizen’s right to vote are addressed by anti-intimidation statutes, and they made the argument that there is no “right to vote free of being bothered at all.”

Justice Anthony Kennedy posited the question of whether political speech should be allowed in polling places at all, since voters are there to vote and nothing else.  Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor built on this question, asking if a state could constitutionally limit any kind of political speech in a polling place, since it is not a public forum.

Respondents’ Oral Arguments

Counsel for Respondents began their argument by establishing that the State’s interest is to “protect the integrity of the elections[,]” which they intended to do “by preserving order and decorum in the polling place.”  The State’s position is that political material worn by voters might confuse and intimidate other voters.  The “test[,]” which Minnesota utilizes in determining if material is prohibited, is whether a “reasonable person would understand that the message that’s being delivered is one regarding electoral choices in the polling place.”

Justice Alito pointed out that in the current political climate, many things have a political implication; therefore, on election day, Alito mentioned how each voter would have to have knowledge of every candidate and every ballot question, thereafter determining if what they were wearing has a political connotation.  Counsel replied by pointing out that a reasonable person would only recognize those political messages that were “well known.”  In response to this, Justice Alito questioned Counsel as to whether rainbow flags on t-shirts would be permitted, or whether an NRA t-shirt would be permitted, as both could be linked to political issues.  Counsel responded that a rainbow flag would be allowed as long as there was not a question related to gay rights on the ballot.  However, an NRA t-shirt would not be allowed, as it has a “clear indication” that it relates to a political issue.

What’s Next?

Although Burson suggests otherwise, it is likely that the Justices will rule in favor of Petitioners, finding the statute not to be narrowly tailored.  As Justice Alito’s line of questioning suggests, in this political climate, many slogans and insignias can have a political connotation. Nevertheless, Respondent’s argument and reliance on Burson, that political material in the polling place could intimidate voters, is a valid state interest.  A decision is expected by June of this year, so we will have to wait a few months to find out if that interest is compelling, as well as whether Minnesota has narrowly tailored its voting laws to address that interest.


Sources Cited

Amy Howe, Argument preview: Justices to hear challenges to Minnesota voting dress code, SCOTUSblog (Feb. 23, 2018).

Amy Howe, Argument analysis: Justices debate decorum, line-drawing and “political apparel at the polls, SCOTUSblog (Feb. 28, 2018).

Amy Howe, Justices to hear challenge to Minnesota voting dress code: In Plain English, SCOTUSBlog (Jan. 22, 2018).

Burson v. Tennessee, 504 U.S. 191 (1992).

Petition for Writ of Certiorari, Minn. Voters Alliance v. Mansky (2017) (No. 16-1435).

Transcript of Oral Argument, Minn. Voters Alliance v. Mansky (2018) (No. 16-1435).

Photo courtesy of Pacific Legal Foundation.

Published: Ryan Lefkowitz

We are proud to announce that the Law Review Note of 3L and Associate Notes Editor Ryan Lefkowitz has been published!

Publication: The Scholar: St. Mary’s Law Review on Race and Social Justice, Volume 20

Article: Prisoner’s Dilemma – Exhausted Without A Place Of Rest(itution): Why The Prison Litigation Reform Act’s Exhaustion Requirement Needs To Be Amended

Ryan Lefkowitz is originally from New Rochelle, New York and attended the State University of New York at Geneseo as an English major. Ryan spent the summer after her first year of law school as a judicial intern for the Horonable Thérèse Wiley Dancks. She spent her second summer as a summer associate at Schulte, Roth & Zabel in Manhattan and will return as an associate after graduation.

While in law school, Ryan served as the Executive Director of the Moot Court Honor Society and Associate Notes Editor for the Syracuse Law Review. She was also an arguing member of the ABA Appellate Team, the winner of the Hancock Estabrook Oral Advocacy Competition, and a finalist of the Lionel O. Grossman Trial Competition and Mackenzie Hughes Appellate Advocacy Competition, where she won Best Brief.

In her free time, Ryan enjoys horse-back riding, running, and reading.

USSF: Playing Monopoly or Soccer?

Written By Nick Constantino


The North American Soccer League (NASL) announced that it has canceled its 2018 season after it failed to receive a preliminary injunction, which would have prevented the U.S. Soccer Federation (USSF) from revoking NASL’s Division II status.


USSF is the official governing body of soccer in the United States. The U.S. professional soccer structure, organized by USSF, is split into three different divisions (I, II, and III), with I being at the top of the pyramid, and III at the bottom. Similar to the structure of the National Collegiate Athletic Association (“NCAA”), Division I status is the most desirable. NASL’s Division I status signifies the highest level of competition and overall status, with several competitive and financial benefits, including better positioning in international competitions and higher-quality sponsorships and television deals. Those benefits decrease along with the division level.

To meet Division I standards, USSF requires a league to have at least 16 teams, stadiums with a capacity of more than 15,000, and that a certain number of those teams be located in cities that have a population of at least 2 million people. Currently, and likely for the foreseeable future, Major League Soccer (MLS) is the only sanctioned USSF Division I league in the United States.

In contrast, to meet Division II standards, USSF requires leagues to have at least 12 teams, in addition to having teams located in the Eastern, Central, and Pacific time zones. As of this year, the United Soccer League (USL) is the only sanctioned Division II league, which is the reason for NASL bringing a lawsuit.

There are currently no Division III leagues recognized by USSF. However, two leagues are reportedly eying Division III status by 2020.

NASL Fights Back

NASL is a professional men’s soccer league with five teams headquartered in New York City. A group of teams founded NASL in late 2009. From its inaugural season in 2011, it was sanctioned by USSF as a Division II league. However, in August of 2017, USSF revoked NASL’s Division II status because the league fell short of the two requirements, as NASL prepared to host only 8 teams for the 2018 season, none of which were located in the Central time zone.

In response, NASL filed suit in the U.S. District Court for the Eastern District of New York. NASL also requested a preliminary injunction to preserve its Division II status while the court considered the underlying claims.

NASL argues that USSF’s joint financial ties to MLS represent a fundamental conflict of interest, resulting in an antitrust violation that interferes with U.S. Soccer’s independence in setting and applying their standards to NASL and other Division II sanctioning. This is because MLS and USSF are partners in Soccer United Marketing, a company with an estimated value of $2 billion. NASL argues that being corporate partners is motivation for USSF to deny NASL Division II status because USSF is protecting their corporate partner’s interests by not allowing a potential competitor to the MLS. Although NASL and MLS would not be direct competitors if USSF granted the NASL Division II status, the next ‘step up’ for NASL would be Division I status, consequently placing NASL in direct competition with MLS.

Hearing the Injunction

During the preliminary injunction hearing, NASL did not challenge the authority of USSF to establish divisional tiers or even promulgate standards for professional leagues, both issues potentially subject to antitrust regulation. Instead, NASL attempted to eliminate the standards it did not meet, arguing a concerted effort between USSF, MLS, and USL to effectively ‘crowd’ NASL out of the soccer market.

Under federal antitrust laws, a court may issue a preliminary injunction where a party shows (1) irreparable harm; (2) a likelihood of success on the merits of the original claim; (3) a balance of the hardships tipping decidedly in favor of the moving party; and (4) that a preliminary injunction is in the public interest. However, the court will only grant an injunction in a situation altering a result already decided (in this case, USSF revoking NASL’s division II status) “upon a clear showing that the moving party is entitled to the relief requested.”

Here, Judge Margo K. Brodia found that NASL would suffer “irreparable harm” upon losing its Division II status. She determined that NASL might even fold as a league or lose valuable investors if USSF revoked their Division II status. Both of those factors, she concluded, constitute “irreparable harm.”

She then found that the hardship NASL would suffer “tips slightly” more in favor of NASL, in comparison to the harm USSF would sustain by disrupting its regulatory authority, and that granting the injunction would not harm the public interest.

Despite all of this, Judge Brodia found that NASL failed to prove they were clearly entitled to the relief requested. She determined that, “despite the ample evidence of a conflict of interest between [USSF] and MLS, [NASL] fails to present sufficient evidence of undue influence in the actual standard-setting process.” Judge Brodia did not think that the conflict of interest between USSF and MLS influenced the decision to deny NASL’s status, rather, she found that NASL failed to meet Division II requirements due to their own fault.  Consequently, Judge Brodia denied NASL’s claim.

NASL appealed the ruling to the Second Circuit on December 15, 2017. In their appeal, NASL argued that the District Court abused its discretion in applying the preliminary injunction standard.

On February 23, 2018, the Second Circuit affirmed Judge Brodia’s decision.

What’s Next?

On February 27, 2018, NASL’s Interim Commissioner, Rishi Sehgal, announced that the league was cancelling its 2018 season and would be shifting its focus “to securing the longer-term advancement of soccer in this country, not only for the NASL, but for all soccer fans, clubs, and communities impacted by the USSF’s restrictions on competition.”

Just one week after the decision to cancel the upcoming season, NASL dropped down to just three teams. The New York Cosmos, Miami FC, and Jacksonville Armada will instead play this year in the National Premier Soccer League, a semi-professional competition not sanctioned by the USSF.



Sources Cited

NASL Staff, North American Soccer League Announces Cancellation of 2018 Season, NASL (Feb. 27, 2018).

Injunctive Relief for Private Parties, 15 U.S.C. § 26 (1914).

Otoe-Missouria Tribe of Indians v. N.Y. State Dep’t of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014).

Anthony Gruppuso, NASL Cancels Complete 2018 Season After Court Ruling, ESPN (Feb. 27, 2018).

Jeff Carlisle, NASL Sues U.S. Soccer Directors Over Acting to Protect Interests, ESPN (Feb. 6, 2018).

Photo courtesy of NASL.com.

March 2018: Raj Nichani (L’00)

  Raj Nichani                                              CEO and Founder,                                 The RMN Agency

Michael Jordan’s father once told him that it was “never too late to do anything [he] wanted to do” and that Michael would “never know what [he] could accomplish until [he] tr[ied].” As simple a sentiment as that is, it seems that Raj Nichani has forged his own legal career in accordance with that same advice.

Raised in Daytona Beach, Florida, Raj loved living in the southern United States. He also admired his grandfather, a tax attorney, and his mother, a former student of the law. With his role models in mind, he decided he would pursue a legal career of his own.

He began his pursuit by graduating from Emory University in Atlanta, Georgia, with history and philosophy majors. From there, he went straight on to Syracuse University College of Law, his first of many moves where he would try something new to see what he could accomplish.

At Syracuse Law, Raj was a very active member of the student body, especially when it came to journals. Raj served as both the Managing Editor of the Syracuse Journal of Law and Technology and an editorial staff member of Syracuse Law Review.

Law Review has had a significant impact on me,” he said. “One of the biggest things that I took away from Law Review was to be detail oriented and to make sure that whatever you write, even an email, is written properly.”

During his 2L summer, after working as a summer associate at Kelley Drye & Warren in New York City, he accepted a post-graduate job offer – another move to try something new to see what he could accomplish. The big move from his long-time home in the south, up to the bright lights of New York City was an adjustment, but he made the most of it over his several years as a litigation associate.

From there, he received an offer to return to Atlanta to work in securities law with Sutherland, Asbill & Brennan. After a few years at Sutherland, he then moved to securities law at Rogers & Hardin in Atlanta. But after several firms and several years, Raj came to a pivotal moment in his career.

“In 2005, after being at three great firms, I started to look at the clock every day and wonder when work was going to end,” he said. “At that point, you realize it is not because of the job but because of your lack of passion for what you are doing.  I decided to call my recruiter who placed me at Rogers & Hardin LLP and tell her that I’m leaving, and she told me to come in and speak with her.  I told her that I wanted to go back to Daytona Beach to sell T-Shirts with my parents, because if it was good enough for them, then it was good enough for me. I thought she was trying to sell me on another legal job, but I obliged her, and she literally gave me an offer I could not refuse: to help run her legal recruiting business – Hughes and Sloan.”

It was then that Raj realized it still wasn’t too late to try something new and see what he could, yet again, work to accomplish. So, he accepted the offer and began working as the Vice President of Legal Recruiting. Following Hughes & Sloan, he worked in legal recruiting for FirstPro, which “gave [him] some great experience for a little over a year and half.”

Raj quickly found that recruiting was his true passion, so much so, that he eventually opened his own legal recruiting agency in 2010: The RMN Agency. This “dream” that became a reality runs on the principle that recruiting and matching are about assessing the bigger picture: from work-life balance, to career goals, to the marrying of clients’ wants with employers’ needs.

“Having a law degree does not just mean you have to be a lawyer in a law firm,” Raj said. “Being equipped with a law degree gives you so many options to succeed in so many different job paths.  I chose to be a legal recruiter, but I have come across so many people that have taken their law degrees and used them to do so many different things in so many different industries.”

So, how do you find your true calling in the legal profession? And how do you stay open to whatever that could be? Raj says there’s one simple answer.

Networking, networking, networking! Meet as many people as you can[,] and don’t lose touch,” he said. “People are always willing to help you, so the more people you meet, the better.”

So, just as MJ learned from his father, Raj came to find in his own journey that, simply because he pursued a career in private securities litigation for years, that did not mean he was locked in for life. He never knew what he could accomplish when he was just starting out as a litigation associate in New York City. Today, he runs an the award-winning legal recruiting agency in Atlanta.

“I was lucky to fall into an industry that I love and enjoy work daily,” he said, “and I hope that for others that have law degrees, whether it the traditional path or non-traditional path.” 

This story was written by Legal Pulse Editor Samantha Pallini and is the seventh installment of Syracuse Law Review’s monthly feature, “Alum of the Month.” Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus!


Published: Karianne Polimeni

We are proud to announce that the Law Review Note of 3L and Associate Notes Editor Karianne Polimeni will be published this spring!

Publication – Syracuse Law Review, Volume 68

Article – New York on Eyewitness Identifications: Progressive or Regressive?

Karianne Polimeni is a 3L at Syracuse University College of Law. Born and raised in Rochester, New York, Karianne will return to her hometown after graduation to work at Harter Secrest & Emery LLP.

Georgia Tax Bill Clear for Takeoff While Second Amendment Grounds Delta’s Exemption

Written By Erika L. Simonson

Since the February shooting in Parkland, Florida, several companies have ended their relationships with the National Rifle Association (NRA). One corporation, Delta Air Lines, responded to the tragedy with an attempt to “remain neutral” in the national gun debate by removing its discount for NRA members. However, instead of removing itself from the gun debate, Delta found its company at the center of the conversation.


Seventeen students and adults were killed on February 14, 2018, when a lone gunman opened fire in Marjory Stoneman Douglas High School with an AR-15 assault rifle. According to The Guardian, this was the eighth shooting of the year in the United States to have resulted in a death or injury.

The nation’s response to Parkland was swift, led in part by the activism of some students present in the high school during the attack. Companies like Walmart, Kroger, L.L. Bean, and Dick’s Sporting Goods announced they would no longer sell firearms to anyone under 21 years of age. REI cut ties with Vista Outdoor, a company that manufactures guns and supports the NRA. MetLife, Hertz, Enterprise Holdings, and United Airlines ended discount programs for NRA members. Finally, Delta Air Lines also ended their NRA discount program in what they called an attempt to “remain neutral” in the national gun debate.

Action in Atlanta

While these companies’ actions were met with both applause and criticism nationwide, Delta became the center of attention for Georgia legislators. Within days of Delta’s statement about removing its NRA member discount and taking a neutral stance, the Georgia legislature struck down a jet fuel tax exemption that would have been lucrative for Delta, the state’s largest private employer.

Georgia began offering this tax break to a financially-struggling Delta after the recession in 2008. The state stopped offering that tax cut in 2015, but it was on track to reinstate it again this year. Days after Delta’s statement, however, the proposed tax break was killed in the Georgia Senate, following a push by Lieutenant Governor Casey Cagle. Georgia Governor Nathan Deal is expected to sign the tax bill, sans jet fuel exemption. This missed tax exemption opportunity for Delta will add up to nearly $50 million a year.

Delta and First Amendment Rights

The first free speech case involving a business was decided in 1952 in Joseph Burstyn v. Wilson, in which the Supreme Court of the United Stated (SCOTUS) struck down a New York law that forbid the commercial showing of any film deemed “sacrilegious.” In 1976, in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, SCOTUS created the “commercial speech doctrine,” which gave courts the power to strike down laws regulating the market and advertising of products with no artistic, political, or expressive component. More recently, in 2010, SCOTUS held in Citizen’s United v. Federal Election Commission that corporations have the same free speech rights as individuals under the First Amendment. This means that SCOTUS’ previous decisions on freedom of speech would also protect the right of corporations – including Delta – to engage in political speech, symbolic speech, and to be free from compelled speech. In consequence, several media outlets have accused Georgia of violating Delta’s First Amendment rights.

Media outlets often rely on the 2011 decision Sorrell v. IMS Health for support of a First Amendment violation. In that case, SCOTUS struck down a Vermont statute, the Prescription Confidentiality Act, that prohibited the sale or use of a doctor’s prescribing habits for marketing purposes. The Act was passed in response to several pharmaceutical companies using individual doctors’ prescribing habits without the doctors’ consent. SCOTUS held that content-based or speaker-based restrictions on non-misleading commercial speech regarding lawful goods or services should be subjected to heightened judicial scrutiny. This heightened level of scrutiny requires the government to demonstrate with greater certainty that its purposes could not be achieved by means that do not entail speech restrictions.

Therefore, while on its face, Georgia’s “retaliation” against Delta may seem like a violation of Delta’s free speech rights, there is uncertainty as to whether any case would get very far in the courts. This is because this case is distinct from Sorrell, as Georgia did not pass a law that infringed upon Delta’s free speech, rather, Georgia declined to pass a law at all. Further, the Georgia legislators provided seemingly sufficient non-speech reasons for the tax bill.


Atlanta is Delta’s largest hub, at three times the size of the next two busiest hubs. Delta is unlikely to move its corporate headquarters, as it would be costly to separate the headquarters and Delta executives from the busiest hub. Georgia is also inclined to keep ties with the airline, since the Atlanta airport – Hartfield-Jackson – remains the busiest airport in the world. Moreover, Delta employs more than 30,000 people in the state and contributes more than $43 billion to the state’s economy each year.

In consequence, this missed opportunity of a $50-million savings may just be a ‘drop in the bucket’ for Delta, who reported more than $41 billion in revenue last year. So, despite the loss of this exemption, it is not likely we’ll see Delta break ties with Georgia anytime soon. It remains to be seen whether a lawsuit, or hardline conversation, will be born of this controversy.




Sources Cited

Alana Wise, Georgia Lawmakers Kill Proposed Tax Break in Dig at Delta Over NRA Fight, Reuters (Mar. 1, 2018), https://www.reuters.com/article/us-usa-guns-delta-air-tax/georgia-lawmakers-kill-proposed-tax-break-in-dig-at-delta-over-nra-fight-idUSKCN1GD6M7.

Citizens United v. Federal Trade Commission, 558 U.S. 310 (2010).

Danielle Weiner-Bronner, Why Delta and Atlanta Need Each Other, CNN (Mar. 1, 2018), http://money.cnn.com/2018/03/01/news/companies/delta-atlanta-tax-break/index.html.

Jason Hanna, Faith Karimi and Emanuella Grinberg, Gunman Confessed to Florida High School Shooting, Police Say, CNN (Feb. 15, 2018), https://www.cnn.com/2018/02/15/us/florida-high-school-shooting/index.html.

Joseph Burnstyn, Inc., v. Wilson, 343 U.S. 495 (1952).

Julia Horowitz and Jackie Wattles, These Companies are Distancing Themselves From the Gun Industry, CNN (Mar 3, 2018), http://money.cnn.com/2018/03/03/news/companies/companies-cutting-ties-nra-gun-lobby/index.html.

Julie Creswell and Michael Corkey, Walmart and Dick’s Raise Minimum Age for Gun Buyers to 21, N.Y. Times (Feb. 28, 2018), https://www.nytimes.com/2018/02/28/business/walmart-and-dicks-major-gun-retailers-will-tighten-rules-on-guns-they-sell.html.

Lois Beckett, How Many U.S. School Shootings Have There Been in 2018 So Far?,  Gaurdian (Feb. 15, 2018), https://www.theguardian.com/world/2018/feb/14/school-shootings-in-america-2018-how-many-so-far.

Meagan Flynn, Boycott: REI, Mountain Equipment Co-Op Stop Selling Major Outdoor Brand with NRA Ties, Wash. Post (Mar. 2, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/03/02/gun-boycott-rei-mountain-equipment-co-op-stop-selling-major-outdoor-brand-due-to-its-weapons-sales-nra-ties/?utm_term=.2c577a8a4071.

Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011).

Tiffany Hsu, ‘Our Values Are Not For Sale,’ Says Delta C.E.O. as Airline Considers Ending Divisive Discounts, N.Y. Times (Mar. 2, 2018), https://www.nytimes.com/2018/03/02/business/delta-nra-discount.html.

Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

Photo courtesy of Small Town Rules.

Published: Emily Keable

We are proud to announce that the Law Review Note of 3L and Executive Editor Emily Keable has been published!

Publication  Journal of Law and Public Policy, University of St. Thomas School of Law, Volume 11, Issue 2

Article – Building on the Tiny House Movement: A Viable Solution to Meet Affordable Housing Needs

Emily Keable is a 3L at Syracuse University College of Law. She was born in Chazy, NY, and she attended college at St. Lawrence University. She anticipates remaining in NY to pursue her professional career.

While at Syracuse, Emily has been a Research Assistant to Professor Robin Malloy and has participated in the SUCOL Low Income Taxpayer Clinic. In her free time, Emily enjoys hiking, skiing, baking, and spending time with family and friends.

Find Emily’s recently-published article here.