Apple, Inc. v. Pepper: Apple’s Supreme Court Loss & Implications for Tech Companies Hosting Digital Marketplaces

Written by Samuel M. Cohn


If there is a problem to be solved in 2019, there is likely an app for it. Apps, or applications, are a technological necessity in our modern world of mobile computing. Apple, Inc. and the revolutionary iPhone is largely responsible for the mainstream use of the digital marketplace, or App Store, through which we download apps. A consequence of purchasing Apple’s iconic phone is the adoption of the company’s closed application delivery system, the App Store. Not all consumers are enjoying the app-purchasing experience, however. On May 13, 2019, the Supreme Court of the United States issued an opinion rejecting Apple’s legal theory aimed at preventing a class of iPhone owners from proceeding in a class action antitrust suit against the world’s most profitable company. While the Court did not issue a holding on the merits, the decision has far-reaching implications from a procedural standpoint.

The Claim: An Unlawful Exercise of Monopoly Power

Apple, Inc. v. Pepper is a class action suit brought forth by a group of Apple consumers claiming that the company exercises unlawful, monopolistic power over its App Store. The crux of the claim is this: Apple’s near-absolute control over the App Store forces consumers to purchase their applications for “higher-than-competitive prices.” The class members argue that Apple locked down the application retail space for Apple consumers and app developers. By doing so, the class members contend that app developers are forced to raise their prices to account for the thirty percent fee taken by Apple in each transaction and consumers have no choice but to pay the higher price, or alternatively forgo buying the app, because they are unable to purchase apps elsewhere. The class members argue that this is a violation of Section 2 of the Sherman Act, which makes it illegal for any person to monopolize or attempt to monopolize “any part of the trade or commerce among the several States, or with foreign nations.”

The plaintiffs seek recovery under an antitrust provision which allows any person injured by illegal antitrust activity to sue and recover three times their damages, including attorney’s fees. The question decided at this juncture of the suit is one of standing, or whether the class of plaintiffs have legally recognizable grounds to sue Apple, Inc., the defendant. A challenge of standing is a common defensive strategy at the early stages of litigation. In this case, however, standing hinged upon the interpretation of a bright-line rule, or a clearly defined legal standard characterized by objective factors which leave little or no room for variation in interpretation, set forth in Illinois brick Co. v. Illinois. That rule potentially precludes the class members from having standing as a proper plaintiff. Illinois Brick tackles the any person factor of the antitrust provision that the class members stake their claim upon, precluding individuals that are twice or more steps removed in the chain of purchase from filing suit against the alleged violator. Apple contends that the members of the class are twice removed, or “indirect purchasers,” arguing the class purchased from the app developers, not directly from Apple. The Ninth Circuit disagreed and held that the class members were direct purchasers from Apple, and thus not barred by Illinois Brick’s bright-line rule.

Apple’s Legal Theory: No “Direct Purchaser,” No Standing

On appeal from the Ninth Circuit, Apple attempted to characterize the App Store as a digital marketplace connecting developers and consumers, rather than an Apple store selling Apple products directly to the consumer. Had the Court been convinced by this argument, the rule in Illinois Brick would have stopped the class action lawsuit dead in its tracks. The Supreme Court, however, agreed with the Ninth Circuit, distinguishing the facts in Illinois Brick from the facts of Pepper. Justice Kavanaugh, writing for a 5-4 majority, provided the following explanation:

In this case, unlike in Illinois Brick, the iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. There is no intermediary in the distribution chain between Apple and the consumer. The iPhone owners purchase apps directly from the retailer Apple, who is the alleged antitrust violator. The iPhone owners pay the alleged overcharge directly to Apple. The absence of an intermediary is dispositive. Under Illinois Brick, the iPhone owners are direct purchasers from Apple and are proper plaintiffs to maintain this antitrust suit.

The majority further dissected Apple’s argument, covering three main points of disagreement. First, Apple’s argument ignored statutory interpretation and precedent. Apple’s “who set the price” theory was based on the idea that it was developers, not Apple, who set the allegedly above-market prices for apps. In other words, Apple believes the class members should be suing developers, not the host of the marketplace. However, because such logic was absent under the Illinois Brick analysis, the Court was not persuaded by Apple. In fact, the Court believed that following Apple’s logic would render Illinois Brick meaningless. The Court noted that Illinois Brick was grounded in an effort to promote “effective and efficient litigation” in antitrust lawsuits. A holding utilizing Illinois Brick’s bright-line rule to prevent the class members from continuing forth would effectively “rewrite the rationale of Illinois Brick and . . . gut the longstanding bright-line rule.”

Second, the Court concluded that Apple’s theory was neither “legally” nor “economically” persuasive. Through an analysis of various pricing models, including that of the App Store, the Court found Apple’s focus on who set the price to be arbitrary “gerrymandering.” While the Court considered the long-term implications in its third and final point (discussed below), the Court likely recognized the immediate implications of a decision to allow such “gerrymandering.” Namely, there are over 90 million iPhone users worldwide, so many consumers stand to be affected by this case. Had Apple prevailed, the decision would effectively obliterate standing for all 90 million iPhone users with, as the Court put it, no basis in economic logic or legal precedent, thus circumventing consideration of a novel issue relating to digital marketplaces. Furthermore, anti-trust law exists to protect consumers. To eliminate even a single plaintiff’s opportunity to recover, let alone 90 million, based on an unpersuasive pricing model argument and incorrectly interpreted precedent goes against public policy.

Finally, the Court concluded that acceptance of this legal argument from Apple would provide a roadmap for monopolistic retailers to structure their business in such a manner as to avoid liability. In other words, if Apple is able to avoid liability through the structure of its pricing model, Google and other Tech Giants would be sure to emulate Apple’s structure as it would prevent similar anti-trust claims from ever getting beyond the earliest stages of litigation.

Conclusion: The Court Allows Case to Proceed – Implications for Tech Giants

Although Apple Inc. v. Pepper is merely moving a step forward in litigation, the impact of this decision could be dramatic. Namely, the operators of digital marketplaces like the Google Play Store, eBay, and Ticketmaster should be on notice that the Supreme Court of the United States will likely treat them as retailers. What solution is there for the Tech Giants hosting digital marketplaces? The solution is likely found in the burden of proof placed upon potential plaintiffs in antitrust cases. In other words, if a plaintiff must establish that a company is using its monopoly power to the detriment of consumers, Tech Giants should go the extra mile to ensure that they are taking steps to mitigate the exercise of any potentially monopolistic business models or acts. It is very possible that several years from now, we will understand that certain business models, such as Amazon’s subscription model, are free from monopolistic elements, while others, for instance Apple’s fee model, are simply unable to exist without raising antitrust concerns.


Apple Inc. v. Pepper, 139 S. Ct. 1514 (2019).

Craig LaChance, The Supreme Court Rules That iPhone Users May Sue Apple for Antitrust Violations, (May 17, 2019 at 7:49AM).

Photo courtesy of PC Mag

New York City’s Mandatory Vaccination Order: Parental Objections & Judicial Reinforcement

Written by Sean Ferrito


 The Outbreak

 In 2000, the United States Center for Disease Control and Prevention declared measles, a highly contagious infectious disease, eliminated. This came after decades of national vaccination efforts. Recently, however, there has been an alarming spike in the number of reported cases of measles nationwide. From January 1 to May 3, 2019, there have been 764 confirmed cases of the disease, across 23 states. The total has been increasing at a rate of 60 cases per week. This represents the highest number of cases in 25 years, since 1994.

The CDC points to travel and vaccination abstinence as principle causes of the outbreaks. Many citizens choose not to vaccinate themselves or their children for religious reasons; others for moral or scientific reasons. Due to low vaccination numbers, Rockland County and Brooklyn, New York have seen spikes in measles diagnoses that have prompted government action. In Williamsburg, Brooklyn, there have been 285 diagnoses during the current outbreak. During the entire 2016 calendar year, only 85 diagnoses were reported nationwide.

Government Action

On April 9, 2019, Dr. Oxiris Barbot, Commissioner of the New York City Department of Health and Mental Hygiene, declared a public health emergency pursuant to Section 3.01 of the New York City Mental Health Code. Along with this declaration, the Commissioner issued an order to all persons who live, work, or attend school in Williamsburg, Brooklyn, and all parents and guardians of children who live, work, or attend school in Williamsburg.  The order requires that those within the area, who are not immune to measles and do not have a medical exemption, “shall be vaccinated.”

It is not clear whether the order requires “forced vaccination.” While the order provides that failure to comply is a misdemeanor and can result in fines and imprisonment, it does not specify what shall be done in instances of repeated refusal to vaccinated. The Department of Health and Mental Hygiene has stated that it will handle such matters on a “case-by-case” basis.

In a press release, the Health Department announced that those found to be non-compliant with the order will be issued a civil summons and must appear at a hearing. If the hearing officer upholds the summons, a penalty of $1,000 will be imposed. A failure to appear at the hearing or respond to the summons will result in a $2,000 fine.

Objections to the Order

On April 15, five mothers of children within the scope of the order filed a complaint against Dr. Barbot and the NYC Department of Health and Mental Hygiene in the Supreme Court of New York, Kings County. The mothers sought vacation of the order on scientific, religious, and moral grounds. The complaint alleged that there was “insufficient evidence of a measles epidemic or a dangerous outbreak to justify the respondents’ extraordinary measures, including forced vaccination.” Further, the mothers argued that the order violates their constitutional rights to exercise their religion, as their choices not to vaccinate their children stem from religious beliefs. The complaint also asserted that the order was unlawful because “forced vaccinations” raise issues of informed consent, medical ethics, and human rights.

Judicial Response

A few days after the complaint was received, the Honorable Lawrence Knipel issued a decision on the matter, and dismissed the case. Knipel addressed each one of the objections in turn, and concluded that the petitioners had failed to show that they were entitled to injunctive relief. Regarding the petitioner’s scientific objections, Knipel asserted that the Commissioner had a rational, non-pretextual bases for declaring a public health emergency and issuing the order. Knipel pointed to scientific data that indicates that the outbreak is the most significant in years, and Williamsburg is at the epicenter. Knipel also dismissed as merely speculative opinions of doctors that the petitioners presented, that the MMR vaccines pose a risk to human health.

Knipel then dismissed the petitioners’ religious objections. He stated that the petitioners’ affidavits simply said that the MMR vaccine was against their religious beliefs. These were insufficient to raise legitimate objections, according to Knipel, as they were not supported by accompanying affidavits of religious officials. Lastly, Knipel rejected the moral objections, concluding that the order does not compel forced vaccination. The judge also explained that informed consent is not an issue under these circumstances, as “[a] fireman need not obtain the informed consent of an owner before extinguishing a house fire.”


What is next in this battle is uncertain at the moment. Perhaps if those affected by the order can submit more sufficient evidence, they may be able to have the constitutional issue addressed by a court. Robert Krakow, an attorney who represented one of the mothers, expressed an intent to continue pursuing the case. Krakow acknowledged the importance of public health, but stated that he wants to “make certain that public health authorities choose methods that are appropriate to the circumstances.”


Amanda Robert, Judge blocks parents’ move to quash measles vaccination order, ABA Journal (Apr. 22, 2019).

C.F. v. New York Cty Dep’t of Health and Mental Hygiene, No. 508356 (N.Y. Sup. Ct. Kings Cty. 2019)

Complaint for Petitioners, C.F., et al., No. 508356 (N.Y. Sup. Ct. Kings Cty. 2019)

Donald G. McNeil Jr., New York City is Requiring Vaccinations Against Measles. Can Officials Do That?, The New York Times (Apr. 9, 2019).

Order of the Commissioner, New York City Dep’t of Health and Mental Hygiene (Apr. 9, 2019)

Press Release, New York City Dep’t of Health and Mental Hygiene, Health Department Issuing Civil Summonses to Three People for Failing to Comply with Commissioner’s Emergency Vaccination Order During Measles Outbreak (Apr. 18, 2019).

U.S. Dep’t of Health & Human Services, Centers for Disease Control and Prevention, Measles Cases and Outbreaks (May 6, 2019).

Photo courtesy of Medical News Today

“He is Terrified of You”: The Legal Implications and Questions Surrounding the Tyreek Hill Audio

Written by Richard H. Miller III


On April 25, 2019, just a day after Johnson County District Attorney Steve Howe declined to criminally charge Kansas City Chiefs Star Tyreek Hill, the Office re-opened their investigation into possible domestic abuse following the release of an audio tape detailing a conversation between Hill and his fiancée, Crystal Espinal. Hill, a three-time pro bowl wide receiver, has been under investigation by the Johnson County District Attorney’s Office for domestic violence related to a March-incident at his residence involving Espinal and his three-year-old son.

The Accusations

The Johnson County DA’s Office has been investigating Hill and Espinal for child abuse-related offenses involving their three-year-old son. When responding to a 911 call in March, investigators found the boy with a broken arm at the Hill residence; this prompted a full investigation into potential abuse of the child. While Hill and Espinal have publicly denied allegations of physically abusing their son, calling his broken arm “an accident,” Child Protective Services have removed the child from Hill and Espinal’s custody.

On April 24, 2019, District Attorney Steve Howe ended the investigation into possible child abuse, saying that “we believe a crime has occurred, however, the evidence in this case does not conclusively establish who committed this crime.” However, on April 25, 2019, after KCTV5 aired exclusive new audio of Tyreek Hill discussing the allegations, the District Attorney’s Office re-opened the child abuse investigation.

The Recording

The recording is over eleven minutes long and was obtained by KCTV5 in early April. The conversation was allegedly recorded by Espinal while the couple was vacationing in Dubai, India as an “insurance policy” incase Hill tried to accuse Espinal of abusing their son or otherwise incriminating her.

The recording revolves around the domestic abuse allegations surrounding the couple’s three-year-old son and the investigation into the couples’ role in his broken arm. In it, Espinal states how their son tells her how “daddy did it” and how the child is “terrified” of Hill due to being frequently punched in the chest by Hill and being hit with belt as a form of discipline. Hill then responds to Espinal, saying “[y]ou need to be terrified of me, too, [expletive]” and subsequently denies any role in breaking the boy’s arm.

The Recording’s Legal Implications and Questions

The recording could be used as a basis to prosecute Crystal Espinal for unlawful dissemination. Section 21-6101 of the Kansas Penal Code makes it a misdemeanor for anyone to surreptitiously record or disseminate a surreptitious recording, obtained without the consent of both parties to the conversation. The Breach of Privacy Law allows for a few enumerated exceptions to the requirement of two-party consent, but these exceptions only apply to wireless service providers and those acting with a “bona fide and lawful scientific, educational, governmental, news or other similar public purpose.” Absent an exception to the Law, it is illegal for a person to record another without their consent or to disseminate a recording of another obtained without their consent.

Espinal allegedly recorded Hill without his consent and used this recording as a form of insurance policy against Hill. While it is unclear whether it was Ms. Espinal who sent this information to KCTV5, by knowingly divulging the content of a message or conversation with another person recorded without their consent, Espinal may be in violation of the Breach of Privacy Law, and subject to criminal prosecution.

Additionally, the Johnson County District Attorney’s Office may use this recording in any potential prosecution of Tyreek Hill. While the recording and its dissemination may itself be a basis for criminal charges, it does not appear that the DA’s Office would be prohibited from using the recording against Hill in a criminal case. The Kansas Rules of Evidence allow for a judge, at their discretion, to exclude evidence “if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.” However, with Tyreek Hill and his attorney now being aware of the contents of the audio tape, there would not be the “undue surprise” which is prohibited by the rule.


Although it is uncertain what charges, if any, the Johnson County District Attorney will bring against Tyreek Hill or Crystal Espinal, there is sure to be a legal fight as to the admissibility of the eleven-minute audio tape obtained by KCTV5. Whether the tape will be used to prosecute Crystal Espinal, whether it can or will be used in potential prosecution of Tyreek Hill, or whether the tape could lead to any civil liability for Hill are all questions for another day. In the words of NFL Commissioner Roger Goodell, absent more facts or a formal indictment, “you don’t rush to judgment and you don’t make a decision without having [the] facts.”


Associated Press, Chiefs owner ‘deeply disturbed’ by Tyreek Hill allegations, KWCH12 (Apr. 26, 2019, 12:15pm).

Dave Skretta, DA declines to charge Chiefs’ Hill in domestic violence case, KWCH12 (Apr. 24, 2019, 3:32pm).

Kan. Law & Prac., Guide Kan. Evid. § 5:1

Kan. Stat. Ann. § 21-6101(4)

Kansas Judicial Council, 61.020 Breach of Privacy—Divulging Message (Mar. 2018).

KCTV5 obtains recording of Tyreek Hill and Crystal Espinal discussing their son’s broken arm, (April 25, 2019).

Lorenzo Reyes, Chiefs’ Tyreek Hill accused of hitting son, threatening fiancee in audio, USA Today (Apr. 25, 2019, 9:02pm).

Mara Rose Williams, Reporter knew of Tyreek Hill audio ‘for weeks’ before source finally OK’d its release, The Kansas City Star (Apr. 26, 2019, 2:01pm).

Tyler Conway, Lawyer: Tyreek Hill ‘Categorically Denies’ Crystal Espinal’s Child Abuse Claims, Bleacher Report (May 2, 2019).

Photo Courtesy of KCTV5 Kansas City

Federal Court Grants Nationwide Preliminary Injunction Blocking New Title X “Gag Rule” from Taking Effect

Written By Lesley M. Harlem


On Thursday, April 25, United States District Court Judge Stanley A. Bastian granted a nationwide preliminary injunction temporarily blocking the imposition of a “gag rule” that would bar health care providers from performing abortions or referring patients for abortions if the providers are recipients of Title X funding. The rule was scheduled to take effect on May 3.

Title X

Title X, also known as the Family Planning program, was enacted in 1970 under President Nixon as part of the Public Health Service Act. Its purpose is to provide individuals with comprehensive family planning and preventive health services by fostering access to contraceptive services, supplies, and information. Last year Title X provided $286 million in funding to organizations that offer services such as birth control, screening for breast cancer and cervical cancer, and screening and treatments for sexually transmitted diseases. These organizations serve roughly four million low-income, uninsured patients each year at more than 4,000 clinics across the country. Planned Parenthood receives nearly $60 million in Title X funding and operates roughly 40% of the 4,000 clinics.

The tension surrounding Title X is due to its treatment of abortion. Since its enactment, funds appropriated for Title X have been explicitly prohibited from being used for abortion services. On March 4, the Trump Administration published a final rule to Title X in the Federal Register further restricting abortion. Most notably, the final rule requires complete financial and physical separation between a Title X program and any service that falls outside of the program’s scope—i.e. abortion. Effectively, this provision would require clinics to have “separate entrances and exits, treatment facilities, and personnel as well as duplicate health care records.”

Additionally, the final rule revokes part of the regulations implemented in 2000 which required Title X programs to provide an abortion referral if requested by a patient. The final rule expressly prohibits recipients of Title X funds from supporting, performing, promoting or referring for abortion—commonly referred to as the “gag rule.” Health care providers may, however, mention abortion in a “nondirective” way, that is “not suggesting or advising one option over another.” Lastly, the rule requires Title X providers to refer pregnant patients to prenatal care programs, regardless of the patient’s wishes or the provider’s professional medical judgment. The final rule was scheduled to take effect on May 3.

Nationwide Response

A series of three lawsuits were filed in federal district courts in California, Washington, and Oregon opposing the final rule. The first lawsuit was filed by California Attorney General Xavier Becerra in U.S. District Court in San Francisco on March 4, the same day the final rule was published in the Federal Register. On March 5, Washington Attorney General Bob Ferguson along with the National Family Planning & Reproductive Health Association filed a lawsuit in the Eastern District of Washington. Shortly after, a lawsuit joined by 20 states, the District of Columbia, the American Medical Association and Planned Parenthood affiliates was filed in U.S. District Court in Eugene, Oregon.

The consensus among the petitioners in each case is that the final rule is “arbitrary and capricious,” unlawful, and in violation of the Affordable Care Act. The Affordable Care Act prohibits the federal government from imposing a rule restricting “the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions.” The “gag rule” arguably violates this provision because it prevents providers from disclosing and referring patients to abortion, even if the patient requests such information. The Affordable Care Act also prohibits the federal government from imposing a rule that creates “any unreasonable barriers to the ability of individuals to obtain appropriate medical care.” The physical separation requirement allegedly violates this provision because of the unreasonable burden of separation imposed by the provision. The main concern, however, is that millions of women would either be left without health care services because of federal defunding, or, that they would be under-informed in their decision-making.

In order to grant a preliminary injunction, each judge had to find that the respective lawsuit against the Trump Administration “was likely to succeed and that the rule, if not blocked, would cause irreparable harm to the [respective state] and its residents.” California issued a statewide preliminary injunction against both the physical separation requirement and “gag rule,” and Oregon Judge Michael J. McShane has stated that he plans on granting a statewide injunction similar to California’s. Judge Bastian’s injunction is the most far-reaching of the three, as it prevents the rule from taking effect across the entire nation.


The nationwide preliminary injunction is subject to appeal, and if overturned on appeal, the final rule will go into effect. Because federal courts in both Oregon and California have, or will have, statewide injunctions, a reversal of the nationwide injunction will not affect either statewide injunction. Nevertheless, the statewide injunctions are subject to appeal. However, absent a challenge, all preliminary injunctions  are in effect until the respective case is formally decided by the District Court where the case was filed.


Ariana Eunjung Cha, 21 States To File Suit To Block Trump Administration’s Abortion ‘Gag Rule’ In Family Planning Program, The Wash. Post (Mar. 4, 2019).

Compliance With Statutory Program Integrity Requirements, 84 Fed. Reg. 7714 (Mar. 4, 2019) (to be codified at 42 C.F.R. pt. 59).

Kate Smith, Trump Administration “Gag Rule” That Would Have Stripped Planned Parenthood Funding Was Just Blocked, CBS News (Apr. 25, 2019, 7:50 p.m.).

Media Release, Oregon Department of Justice, Oregon Leads National Lawsuit Challenging New Title X “Gag Rule” (Mar. 4, 2019).

Mike LaSusa, Trump’s Abortion ‘Gag Rule’ Blocked By Courts, Law 360 (Apr. 26, 2019 11:30 p.m. EDT).

News Release, Washington State Office of the Attorney General, AG Ferguson Files Lawsuit In Yakima Over Trump’s Family Planning “Gag Rule” (Mar. 5, 2019).

News Release, Washington State Office of the Attorney General, Federal Judge Blocks Trump Admin Family Planning “Gag Rule” Nationwide (Apr. 25, 2019).

Pam Belluck, Judge Temporarily Blocks Trump Rule on Abortion Referrals, N.Y. Times (Apr. 25, 2019) .

Press Release, State of California Department of Justice, Attorney General Becerra Obtains Preliminary Injunction Protecting California’s Title X Program (Apr. 26, 2019).

S. Department of Health and Human Services, Office of Population Affairs, Fiscal Year 2019 Program Priorities, (last visited April 30, 2019).

State of Washington’s Motion For Preliminary Injunction, Mar. 22, 2019.

Photo courtesy of The Washington Post

Federal Judge Strikes Down NY’s Electric Arms Ban as Unconstitutional

Written By Caleb Angell


In a recent decision, United States District Judge David N. Hurd held that New York’s taser and stun gun ban, codified as New York Penal Law § 265.01(1), was in violation of the Second Amendment. Judge Hurd’s decision in Avitabile v. Beach follows a string of recent decisions across the country in the wake of the United States Supreme Court’s decisions in D.C. v. Heller, McDonald v. Chicago, and Caetano v. Massachusetts, which have found that tasers and other electric arms are “bearable arms” subject to Second Amendment Protections. As a result, several courts have held that blanket bans on electric arms could not be justified under the asserted state interest and have also begun to offer greater legal protections to those who wish to carry them for self-defense purposes.

The Decision

Avitabile v. Beach arose out of a lawsuit filed by Matthew Avitabile, a resident of Schoharie County, New York, who wanted to buy a taser for self-defense purposes in his home. Mr. Avitabile sued New York State Police Superintendent George Beach, seeking declaratory judgment “that New York’s total ban on the civilian possession of tasers and stun guns violates the Second Amendment.” Although Mr. Avitabile owns several firearms, he filed suit because of his desire to “arm himself with a non-lethal weapon,” and out of his belief that “lethal force should be a last resort” when it comes to self-defense.

In his decision, Judge Hurd found that New York’s electric arms ban implicated “Avitabile’s core constitutional right as a law-abiding citizen to protect himself in his own home with a weapon commonly used for that purpose.” Judge Hurd also wrote that New York’s public safety rationale for the taser ban was “particularly hard to square with its suggestion . . . that Avitabile should just go out and buy a handgun, or perhaps a few more shotguns or rifles, if he wants to better protect himself,” given the far deadlier nature of firearms. While Judge Hurd stated that “New York’s sweeping prohibition on the possession and use of tasers and stun guns by all citizens for all purposes, even for self-defense in one’s own home, must be declared unconstitutional,” he also explained that his ruling did not “foreclose the possibility that some restriction(s) on the possession and/or use of tasers and stun guns would be permissible under the Second Amendment.”

Growing Trend of Electric Arms Legalization

In 2011, seven states outlawed the possession of electric arms. However, by operation of Judge Hurd’s decision in Avitabile, New York became the fifth of those seven states in which the possession of electric arms has become legalized. These developments were prompted by the Supreme Court’s ruling in McDonald in 2010, when it held that Second Amendment protections apply to the states. Even more recently, in Caetano, the Supreme Court signaled in a brief, unanimous decision that Second Amendment rights likely extend to electric arms.

In Caetano, the Supreme Court rejected the Massachusetts Supreme Judicial Court’s rationale behind its conclusion that Massachusetts’s electric arms ban was constitutional. The Supreme Judicial Court had concluded that the ban was constitutional because electric arms (1) “were not in common use at the time of the Second Amendment,” (2) were “unusual” weapons because they are “a thoroughly modern invention,” and (3) were not “readily adaptable” to military use. The Supreme Court rejected all three rationales for the ban’s constitutionality as clear contradictions of its Second Amendment precedent.

In his concurrence in Caetano, Justice Alito cautioned that since “[c]ountless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons—or simply out of fear of killing the wrong person,” courts “should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.”

Thus, in the past few years following McDonald, New Jersey, Wisconsin, Michigan, Massachusetts, and now New York, have either repealed their electric arms bans or had them struck down as unconstitutional, which leaves Hawaii and Rhode Island as the only remaining states with electric arm bans. However, even those bans are unlikely to remain in effect for much longer, as lawsuits are already in progress challenging their constitutionality. Moreover, both statutes may be destined for preemptive legislative repeal due to pending legislation proposing amendments to them.


The almost universal legalization of electric arms for self-defense across the United States reflects the willingness of both state and federal courts, as well as state legislatures, to extend Second Amendment guarantees to weapons invented in the modern era, at least with regard to newly invented non-lethal weapons. As technological developments in the self-defense industry continue, it will be interesting to observe whether further innovation will continue to warrant Second Amendment protections.


Avitabile v. Beach, No. 1:16-CV-1447, 2019 U.S. Dist. LEXIS 47506 (N.D.N.Y. Mar. 22, 2019).

Chris Carola, Judge says New York’s stun gun ban is unconstitutional, Associated Press (Mar. 22, 2019).

Caetano v. Massachusetts, 136 S. Ct. 1027 (2016).

Eugene Volokh, Right to Possess Stun Guns in N.Y., Right to Carry Them in Illinois, (Mar. 25, 2019).

H.R. 1473, 30th Leg. (HI 2019).

McDonald v. Chicago, 561 U.S. 742 (2010).

People v. Webb, No. 122951, 2019 Ill. LEXIS 439 (Ill. Mar. 21, 2019).

People v. Yanna, 824 N.W.2d 241 (Mich. Ct. App. 2012).

Ramirez v. Commonwealth, 94 N.E.3d 809, 810 (Mass. 2018).

Sarah Doiron & Shiina LoSciuto, RI Rep. reintroduces bill allowing stun gun ownership, (Apr. 18, 2018).

State v. Rivera, 716 S.E.2d 859, 863 n. 2 (N.C. Ct. App. 2011).

Photo courtesy of The New York Post

“I know nothing about WikiLeaks”: The Extradition Process of WikiLeaks Founder, Julian Assange

Written by Margaret E. Talt


On April 11, 2019, British police physically removed WikiLeaks founder, Julian Assange, from the Ecuadorean Embassy in London at the request of American authorities. Shortly after his arrest, United States officials unsealed the March 2018 indictment against Assange, charging him with a single count of conspiracy to commit computer intrusion. The indictment further states that Chelsea Manning previously provided Julian Assange with complete databases from several U.S. departments and agencies. Documents obtained included 90,000 Afghanistan war-related activity reports, 400,000 Iraq activity reports, 800 Guantanamo Bay detainee assessment briefs, and 250,000 U.S. Department of State cables. Chelsea Manning provided WikiLeaks with the classified records, which were then published on the WikiLeaks website in 2010 and 2011.

Who is Julian Assange?

Julian Assange is an Australian/Ecuadorean national, journalist, hacker, and the founder of the website Wikileaks. Wikileaks was created in 2006 with the intention of collecting and sharing confidential information on an “international scale.” Julian Assange gained attention in 2007, when Wikileaks released a U.S. military manual which included detailed information on the Guantanamo detention center.  However, Julian Assange’s true rise to fame came in April 2010, when WikiLeaks posted a 2007 video showing a U.S. military helicopter firing and killing two Reuters journalists and several Iraqi citizens. The video was posted on YouTube under the title “Collateral Murder.”

During the 2016 presidential race, Wikileaks released 1,200 emails from the private server Hillary Clinton used during her service as Secretary of State. Emails from Hillary Clinton’s campaign chair were also released, leading U.S. government officials to suspect that Russian agents were behind hacking into servers and supplying the emails to WikiLeaks. Although Julian Assange stated that he had no personal desire to influence the outcome of the 2016 presidential election, the U.S. public was better informed as a result of these published emails.

Revocation of Asylum

In 2012, Julian Assange sought asylum from Ecuador to avoid extradition to Sweden for sexual assault charges (that have since been dropped). He has been hiding at the Ecuadorean Embassy in London for the last seven years. However, upon “repeated violations of international conventions and daily-life protocols,” on April 11, 2019, Ecuador’s president announced the withdrawal of Julian Assange’s asylum. Ecuador’s president further alleged that Julian Assange released secret documents from the Vatican, and mistreated guards at the embassy.

U.S. and U.K. Extradition Treaty

As a result of the asylum revocation, the U.S. requested that British police detain Julian Assange as the U.S. prepares to extradite him. As Julian Assange was carried out of the Ecuadorean Embassy, he screamed “The U.K. must resist.” His attorney later clarified that Julian Assange meant the United Kingdom should resist U.S. efforts to extradite him. His attorney also made clear that Julian Assange has no intention of surrendering to the U.S. Instead, he is going to fight extradition, as he and many of his followers believe that “extradition sets a dangerous precedent for media organizations in Europe and around the world . . . for publishing truthful information about the U.S.”

The U.S. and the U.K. began renegotiating their extradition treaty after September 11, 2001. The new treaty was signed on March 31, 2003 and went into force on April 26, 2007. The treaty outlines the requirements and process in which the offender can be extradited. If the charges for extradition are not contained in the approved list or the requirements of the process are not met, the Requested State can deny the Requesting State extradition.

In 2018, the U.K.’s high court refused to send Lauri Love, a British student charged with hacking U.S. government websites, to the U.S because of concerns the student would kill himself if tried in America. In 2004, suspected terrorist Babar Ahmad was arrested in the U.K. and held for eight years before he was extradited to the U.S. in 2012. The U.K. denied the U.S. extradition for computer hacker Gary McKinnon in 2012 because then-home secretary Theresa May stated that sending McKinnon while he was “seriously ill” was a violation of his human rights. In total, the U.K. has denied the U.S. ten requests for extradition since this treaty went into effect, while the U.S. has granted all of the U.K.’s requests for extradition.


Under the extradition treaty, the U.S. asked the U.K. for a “provisional arrest”. The Requesting State may request a provisional request under Article 12 for urgent situations, pending presentation of the request for extradition. This article gives the U.S. sixty days to compile the necessary documents and file additional charges against Julian Assange before presenting the case to the U.K. However, once the case is submitted to the U.K. for extradition consideration, no additional charges can be added pursuant to Article 18, Rule of Specialty.

Once submitted for review, the U.K. determines if the request meets the “reasonable suspicion” standard, which is similar to the U.S.’s “probable cause” standard. Julian Assange’s extradition proceeding will begin in the Magistrates Court, which mostly tries criminal offenses. The judge in the Magistrates Court can decide either to approve or deny the extradition request or to send the request directly to the U.K.’s home secretary. Either way, Julian Assange can appeal the decision of the Magistrates Court to the h, which is similar to the U.S.’s intermediate appeals court.

If the home secretary approves extradition, Julian Assange can still appeal to the high court, and continue appealing unfavorable decisions to the U.K.’s Supreme Court, similar to the U.S. Supreme Court. This process is known to take many years, and some have taken as long as thirteen years to work their way through the U.K.’s court system.


According to the Department of Justice, if extradited and convicted, Julian Assange faces a maximum penalty of five years in prison. However, because the procedural protections afforded Julian Assange in the extradition process, it may be many years before he is back on American soil. Alternatively, if the U.K. denies the U.S. its request for extradition, Julian Assange may never face charges in the U.S.


Ben Kochman, Extradition Clash Erupts After Assange’s Arrest In London, Law 360 (Apr. 11, 2019, 9:29 AM).

Costas Pitas, Guy Faulconbridge, & Kate Holton, U.S. Charges Assange after London arrest ends seven years in Ecuador embassy, Reuters (Apr. 11. 2019, 5:43 AM).

Extradition Treaty, N. Ir.-U.K. of Gr. Brit.-U.S., opened for signature Mar. 31, 2003 T.I.A.S. No. 07-426 (entered into force Apr. 26, 2007).

Indictment at 2, United States v. Julian Paul Assange, Criminal No. 1:18 cr (E.D. Va. 2018).

Julian Assange Biography, Biography (Apr. 2, 2014).

Julian Assange: WikiLeaks co-founder arrested in London, BBC (Apr. 12, 2019).

Zoe Tillman, It Could Be Years Before Julian Assange Steps Foot In the United States, BuzzFeed News (Apr. 12, 2019 at 4:09 PM).

FAQs on the U.S.-U.K Extradition Relationship, U.S. Embassy and Consulate in The United Kingdom (last visited Apr. 14, 2019).

Photo Courtesy of Express, UK

Off the Field Goals: Women’s National Soccer Team Seeks Equal Pay for Equal Play

Written by Aubre G. Dean



On March 8, 2019, International Women’s Day, the U.S. Women’s National Soccer Team (“USWNT”) filed a lawsuit against the United States Soccer Federation (“USSF”) for gender discrimination. The lawsuit names twenty-eight women as plaintiff, including some of the most recognized names in the sport: Alex Morgan, Megan Rapinoe and Cali Lloyd. Filed in the United States District Court, the complaint alleges that the USSF has created a system of “institutionalized gender discrimination” under both the Equal Pay Act of 1963 (“EPA”) and Title VII of the Civil Rights Act (“Title VII”). The twenty-eight women are also seeking class certification to include any female players since 2015.

Litigation Background

The case comes to the District Court after five players filed complaints with the Equal Employment Opportunity Commission (“EEOC”) in March 2016. After investigating the claims, the EEOC issued the players Notices of Right to Sue allowing them to file a lawsuit within 90 days. The complaint was also filed one month before Equal Pay Day, which took place on April 2, 2019. The complaint itself mirrors those often seen in cases where women are paid less than men performing the same job. The complaint focuses on the fact that a player on the USWNT can make a maximum of $4,950 per game, while a player on the Men’s National Team earns on average $13,166 per game. On average, a female player on the USWNT makes 38% what the male players make.

Legal Basis

Under federal law, an employer may not discriminate in its employee practices on the basis of sex. According to the EPA, men and women must be given equal pay for equal work. In conjunction with that requirement, Title VII makes it unlawful for employers to discriminate against pay and benefits on the basis of sex. Here, once the plaintiffs show a prima facie case of salary discrimination, the burden will shift to the USSF to prove that the pay is justified by one of the four exceptions: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality or work; or (4) a differential based on any factor other than sex.

Comparing the Pay of Men and Women

Often when pay and playing conditions for female athletes is compared to pay of male athletes, the focus turns to whether the same type of revenue is made by the individual sport. Accordingly, the complaint focuses on the fact that the pay gap exists, despite the USWNT’s performance being superior to that of the USMNT, with the female players becoming world champions. As the reigning World Cup Champions, the USWNT will be heading in as one of the favorites to win the 2019 Women’s World Cup. In fact, the USWNT is consistently one of the best teams in the world, having won three of the seven most recent Women’s Cup titles. The USWNT has also placed first in the Olympics four of the six times that women’s soccer has been played. As for the men on the USMNT, the highest they have placed is third in the World Cup, in 1930. This last year the American team missed qualifying for the 2018 World Cup. The bonus for winning the final game of the Women’s World Cup was $1.725 million, a sharp contrast to the $5.375 million paid to the men for losing in the round of 16 in 2014. The complaint states simply: “during the period relevant to this case, the WNT earned more in profits and/or revenue than the MNT.”

The complaint also alleges there are other discriminatory practices being utilized by the USSF. From 2015 to 2018, the women played nineteen more games because of their success. The women played more games on artificial turf than the men and were never flown on a charter plane, despite the men having seventeen flights. The claim also asserts that the lower ticket prices of women’s friendlies and less promotion of matches led to “USSF-manufactured revenue depression.” Additionally, the complaint also focuses on the attention and revenue that the USWNT has brought to the sport of soccer. In 2015, more than 23 million viewers in the United States tuned in to Fox to watch the USWNT beat Japan in the final round of the Women’s World Cup. To date, this is the largest audience in American history for a single soccer event.


The outcome of the lawsuit is unclear, and the women will most likely not get their shot at this goal before they head to France for the 2019 Women’s World Cup. Further, the USSF has rejected pay alternatives proposed by the USWNT players association, including a compensation model where the women would only receive more money in the years that the USSF derives more revenue through USWNT. However, this suit means more than just a paycheck for the women as it shines light on the gender pay gap in athletics and creates a motto of “equal play, equal pay” which is rippling throughout the sports world.


Complaint for Petitioner, Morgan et al., No. 2:19-CV-01717 (C.D. Cal. 2019)

Andrew Das, U.S. Women’s Soccer Team Sues U.S. Soccer for Gender Discrimination, N.Y. Times, (March 8, 2019).

Laurel Wamsley, U.S. Women’s Soccer Team Sues U.S. Soccer For Gender Discrimination, All Things Considered, (March 8, 2019, 1:38 PM),

Civil Rights Act, 42 USCS § 2000e (1964).

Equal Pay Act, 29 U.S.C. § 206(d) (1963).

Photo courtesy of Alex Morgan, Twitter.

Okurrr?: The Legal Implications of Trademarking a Catchphrase

Written By Shannon Knapp



Since the summer of 2017, Cardi B has become one of the biggest names in the music industry (and one of the most controversial). Beyond being famous for her music and social media presence, Cardi is known for her tongue-rolling phrase “Okurrr,” a sassy and elongated way of saying “okay.” However, Cardi B arguably did not create the word. Cardi tweeted that the Kardashian sisters got her hooked on saying it. Likely, the Kardashians picked it up from contestants on RuPaul’s Drag Race, who credit the term to Laura Bell Bundy. Yet, the term has become associated with Cardi B, even becoming the basis of a Pepsi advertisement she starred in during the Super Bowl.

Cardi B (through her company Washpoppin) has filed an application to the United States Patent and Trademark Office (“USPTO”) to trademark “okurrr” for use on paper goods, namely paper cups and posters. She also filed a second application for the same term to be used on clothing, including t-shirts and caps. Prior to the above applications, Washpoppin filed a similar application for another variant of the phrase, spelled “okurr” (two r’s instead of three).

Cardi B is not the first celebrity to try to take ownership of popular phrases. Paris Hilton famously trademarked the catchphrase “that’s hot” (for use on alcohol and clothing) in 2006; Anthony Davis has trademarked the two phrases “fear the brow” and “raise the brow” (for use on a number of products including aftershave and entertainment services); and Will.I.Am attempted to trademark the phrase “willpower” (although that application was rejected by the Trademark Trial and Appeal Board).

This particular trademark application by Cardi B has been met with criticism and confusion due to concerns that the term will be taken out of the public domain and inhibit people from being able to say the phrase. Misunderstanding about the trademark process perpetuates this confusion. So what is a trademark? If Cardi B is successful, will we never be able to say “okurrr” again?

What is a Trademark?

A trademark is one of many types of intellectual property protected under United States law (both at the federal and state level). A trademark serves a number of functions, including identifying a single source of origin for goods and services, distinguishing the owner’s goods and services from those of others, and providing the owner of the mark with the right to prevent others from adopting similar marks likely to cause confusion in the marketplace. Trademarks are usually for specific commercial uses and spellings. In this case, Cardi B is only looking to use the specific spelling of “okurr/r” on merchandise. There can be trademarks for words, names, symbols, and devices, as well as for trade dress, colors, sounds, and scents.

To successfully acquire federal trademark protection, the mark must be distinctive, be of acceptable subject matter, and be used in commerce. The first requirement, distinctiveness, can be achieved in two primary ways. A mark is distinctive if it is inherently distinctive, which means that it is immediately capable of identifying a source of origin for a good or service. Or, a mark can have acquired distinctiveness, which means that it is not inherently distinctive, but has gained secondary meaning over time from use and promotion in the market. Second, a mark is of acceptable subject matter if it is defined in Section 45 of the Lanham Act, which includes words, names, symbols, images, sounds, etc. Lastly, a mark must have been used in interstate commerce in connection with the good or service.

Will Cardi B be Successful?

It is ultimately up to the USPTO whether Cardi B will be successful in her trademark application. She is covering her bases by submitting multiple spellings, but she still might have difficulty. The spoken word in which the written phrase is representing has no standard form, which can cause difficulties. Also, Cardi B is not the originator of the phrase, which could hinder her application. However, her lawyers could claim she has achieved “acquired distinctiveness” because people have come to commonly associate her with the expression. But, Cardi B may be facing other challenges to her application, including a potential registration challenge from a drag queen named Alaska.


No matter what happens with Cardi B’s trademark application, no one needs to worry about a crackdown on using the fun phrase. Cardi B is only seeking protection for certain merchandise, and this is not the first time a celebrity has trademarked famous words or sayings.


Aleksi Tzatzev, 10 Celebrity Trademarks We Can’t Believe Exist, Business Insider.

Ben Zimmer, Cardi B Didn’t Invent “Okurrr,” but That Might Not Matter to a Trademark Judge, The Atlantic.

Hugh McIntyre, Cardi B Wants to Trademark The Phrase ‘Okurrr,’ Forbes.

Practical Law Intellectual Property & Technology, Trademark: Overview (2019).

Withrop & Weinstine, P.A., Cardi B, You (Probably) Can’t Trademark “Okurrr,” Okay?, JDSUPRA.

Photo courtesy of JD Supra.

Universities & Parents Face Civil Suits as College Admissions Scandal Continues to Unfold

Written by Jeffrey Fasoldt


Federal prosecutors charged 50 peopleincluding 33 parentswith colluding to buy spots at selective universities last week in the largest college admissions scandal the country has ever seen. The charges have stirred up a discussion in the national mediapartly due to the wealthy business-persons and celebrities involved, and partly due to the economic and social issues intertwined in the overall discussion. Collectively, the parents paid millions of dollars to secure admission for their kids. Now, as the criminal charges against the parents play out, several current students, as well as students that had been denied from the universities involved, are filing civil lawsuits claiming these schools were negligent in failing to oversee the admissions process, and their own academic and future success potentially suffered from the incident.

The Initial Indictment

According to the indictment filed in United States District Court for the District of Massachusetts, William “Rick” Singer founded The Edge College & Career Network, as a “college counseling and preparation business” in 2007, as well as the Key Worldwide Foundation, a non-profit. Using these two companies, Singer allegedly used illegal and fraudulent techniques to help children gain admission to selective universities, while avoiding federal income taxes.

The indictment states that Singer (1) “facilitated cheating on the ACT and SAT exams in exchange for bribes,” and (2) designated “applicants as purported recruits for competitive college teams, without regard for the applicants’ athletic abilities.”

Singer allegedly used donations from parents to bribe standardized test officials who sometimes allowed another person to take the test in place of the applicant. Parents also allegedly paid Singer approximately $25 million from 2011 to 2019 to bribe college athletics coaches to designate their children as recruited athletes in order to increase chances of admission by the admissions committee at several schools.

Singer, as well as the other defendants named in the indictment face potential prison time for their involvement in the alleged conspiracy. At this point, no colleges have been named in any criminal indictment, and neither have any of the children involved. Some of the colleges have begun their own investigations into the matter.

The Response

In addition to the criminal charges, some parents, as well as a few of the colleges involved, are now facing class-action civil lawsuits. Erica Olsen and Kalea Woods, two current Stanford students, allege being denied admission from Yale and U.S.C. respectively, despite both having near-perfect ACT and SAT test scores. In addition, the students also claim that their degrees have been “devalued” since they both attend Stanfordone of the schools linked to the scandal.


Olsen and Wood’s first claim is that the universities involved were negligent in their admissions process. The complaint states “[e]ach of these students had a right to know that their application was going to be part of a review process corrupted by rampant fraud and back-door bribery.”

In North v. West Virginia Board of Regents, the West Virginia court stated “[a]s long as the conduct of educators is not high-handed, arbitrary or capricious,” educators should be left alone to do their job without interference from those of us in the judiciary who have neither the expertise nor the insight to evaluate their decisions. However, the facts of that case involved a medical student challenging the administrative procedures the school took prior to expelling him for falsifying his application to get into medical school.

Still, in Ross v. Creighton University, Ross alleged the school was negligent for accepting him. Ross was an athlete, but the college should have known he was not prepared academically. The United States Court of Appeals for the Seventh Circuit court rejected this argument, stating “determining who is a ‘reasonably qualified student’ necessarily requires subjective assessments of such things as the nature and quality of the defendant institution and the intelligence and educability of the plaintiff. Such decisions are not open to ready determination in the judicial process.”

As for the second claimthat the scandal devalues their degreesin Gomez-Jimenez v. New York Law School, plaintiffs, graduates of New York Law School alleged that “the disclosures of post-graduate employment and salary data by defendant New York Law School to prospective students” caused “them to enroll in school to obtain, at a very high price, a law degree that proved less valuable in the market-place than they were led to expect.” The students asserted claims of fraudulent and negligent misrepresentation as well as a claim for deceptive acts in violation of New York’s General Business Law.

The appellate court was “sympathetic” to the plaintiff’s claim, but ultimately upheld the law school’s motion to dismiss for failure to state a claim.


Because this is the largest college admissions scandal in school history, there are going to be a few issues that courts may have not dealt with before. However, based on the law that exists, as well as the reluctance of the judiciary to get involved in the educational admissions process, it will likely be an uphill battle for the civil plaintiffs.


Brief for Plaintiff, Olsen v. Singer, No. 19-CV-01351 (D. Cal. filed Mar. 13, 2019).

Brief for U.S., U.S. v. Ernst, No. 19-CR-10081 (D. Mass. filed Mar. 5, 2019).

Elie Mystal, Current Standford Students File Class-Action Because Scammers ‘Devalued’ Their Degree, ABOVE THE LAW (Mar. 14, 2019, 1:13 PM).

Gomez-Jimenez v. New York L. Sch., 956 N.Y.S.2d 54, 57 (App. Div. 2012).

Hannah Fry, College admissions scandal fallout: Stanford students sue UCLA, USC and Yale, L.A. TIMES (Mar. 14, 2019, 9:10 AM).

Jennifer Medina, Katie Benner, & Kate Taylor, Actresses, Business Leaders and Other Wealthy Parents Charged in U.S. College Entry Fraud, N.Y. TIMES (Mar. 12, 2019).

North v. W. Virginia Bd. of Regents, 332 S.E.2d 141, 146–47 (W. Va. 1985).

Ross v. Creighton U., 957 F.2d 410, 415 (7th Cir. 1992).

Photo courtesy of Hollywood Reporter.

Supreme Court to Rule on Establishment Clause Challenge to the Bladensburg Peace Cross Memorial

Written By Gaity Hashimi



The Supreme Court recently heard arguments regarding the constitutionality of the display and maintenance of a 40-foot tall cross in Bladensburg, Maryland which was erected in 1919 to honor veterans. Maryland-National Capital Park and Planning Commission purchased both the cross and the land in 1961, and has since spent a significant amount of money to maintain and repair the cross. The American Humanist Association, a non-profit organization which advocates for the separation of church and state, brought suit against the Commission, claiming that their activities violate the Establishment Clause of the First Amendment. The American Legion, a U.S. war veterans organization, is also involved in the suit.

History of the Establishment Clause

The First Amendment’s Establishment Clause states that “Congress shall make no law respecting an establishment of religion”. In Lemon v. Kurtzman, the Supreme Court created the Lemon test to decide whether a statute which provided state funding for private, non-secular schools violated the Establishment Clause. The Court articulated that the statute must (1) have a secular legislative purpose, (2) its principal or primary effects must be one that neither promotes nor inhibits religion, and (3) it must not foster “excessive government entanglement with religion.”

Since Lemon, the Supreme Court has resolved Establishment Clause challenges in a variety of ways. For example, in Stone v. Graham, the Supreme Court held that a Kentucky statute requiring posting of a copy of the Ten Commandments on the walls of each public classroom violated the Establishment Clause because the statute had a clear, non-secular purpose. On the other hand, in Van Orden v. Perry, the Supreme Court did not rely on the Lemon test and instead, relying on the nature of the monument and the Nation’s history, held that the display of a monument inscribed with the Ten Commandments on the grounds of Texas State Capitol was constitutional.

District Court Ruling

In American Humanist Association v. Maryland-National Capital Park, the District Court applied the Lemon test and held that the monument had a secular purpose, that “within the context of its long history . . . a reasonable observer would not view the Monument as having the effect of impermissibly endorsing religion, and that the display did not create excessive government entanglement with religion because “the Monument itself [was] not a governmental endorsement of religion.” The Court also held that it was constitutional under the context and history test in Van Orden, since the Monument had been “used almost exclusively as a site to commemorate veterans on secular patriotic holidays for its entire history.”

Fourth Circuit Ruling

The Fourth Circuit reversed the District Court’s decision and held that the display was unconstitutional under the Lemon test. Although the Court found that the Commission’s maintenance of a significant war memorial had a legitimate secular purpose, it found that the meaning and history of the cross had the primary effect of endorsing Christianity to a reasonable observer. Furthermore, the Court found that there was excessive government entanglement because the Commission owns and maintains the cross on government property, set aside a significant amount of money for its restoration and it was “displaying the hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets.” Therefore, the Court held that the display and maintenance of the Cross was an unconstitutional violation of the Establishment Clause.

Supreme Court Grants Certiorari

The Supreme Court granted certiorari and heard arguments on February 27, 2019. The American Humanist Association argued that the public display should be viewed in context, and that the giant Latin cross was clearly Christian. The Commission argued that the cross was constitutional because its purpose was primarily secular and that it was a symbol marking the deceased in World War I, giving the cross a dual meaning.

The other petitioner, The American Legion, argued for the application of the “coercion test,” which would hold a display unconstitutional if a religious minority was “tangibly hurt.” Essentially, it would allow public religious displays, unless they coerce religious minorities into believing something against their principles.

Possible Outcome

If the Supreme Court agrees with American Legion and adopts the “coercion test,” prior cases adopting the Lemon test would be overruled, and the landscape of the First Amendment Law would change entirely. There potentially would be no limit on the power of the government to erect religious monuments and symbols on government property, since it would likely be hard to prove that a certain religious display proselytized or tangibly hurt a religious minority.

There is a high possibility that this conservative Supreme Court will declare the monument constitutional, as the conservative view generally leans toward accommodating religion. The Court could agree with the District Court and the Commission and rule that under the Lemon test, the monument had a secular purpose, did not primarily endorse religion, and that there was no excessive government entanglement with religion. The Court could also elect to adopt the Van Orden reasoning and rule that the Monument’s rich history warrants a finding that it is constitutional. The effect of this outcome will likely mean that other similar monuments will be allowed to stand. This outcome may be viewed by a part of society as the government aligning itself with a single religion, as the Latin cross is a symbol of Christianity.

If the Supreme Court agrees with the Fourth Circuit, and declare the monument unconstitutional, it could mean that similar monuments of the Peace Cross may have to be taken down. Furthermore, expenditures of tax revenues on government speech that has a religious aspect, such as expenditures for cross-shaped military medals, would potentially be declared unconstitutional.

The Supreme Court is expected to reach a decision by June, 2019.


Am. Humanist Ass’n v. Maryland-Nat’l Capital Park, 147 F. Supp. 3d 373 (D. Md. 2015), rev’d sub nom. Am. Humanist Ass’n v. Maryland-Nat’l Capital Park & Planning Comm’n, 874 F.3d 195 (4th Cir. 2017).

Am. Humanist Ass’n v. Maryland-Nat’l Capital Park & Planning Comm’n, 874 F.3d 195 (4th Cir. 2017), cert. granted sub nom. The Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 451 (2018), and cert. granted, 139 S. Ct. 451 (2018).

Erwin Chemerinsky, Chemerinsky: Do religious symbols on government property infringe on First Amendment?, ABA Journal (Feb. 26, 2019).

Jimmy Hoover, Up Next At High Court: Opinions, Orders And 1st Amendment, Law360 (Feb, 22, 2019).

Lemon v. Kurtzman, 403 U.S. 602 (1971).

Nina Totenburg, Cross Clash Could Change Rules for Separation of Church And State, NPR Law (Feb, 25, 2019).

Nina Totenburg, Supreme Court Appears Ready to Let Cross Stand But Struggles With Church-State Test, NPR Law (Feb, 27, 2019).

Photo courtesy of Snopes.