Legal Abortions: Poland vs. the US

By: Reese Rosental Saporito

Edited by: John Perales Jr., Danielle Spitz, and Tess Ballis

A woman’s right to control her own body and her own reproductive choices have been up for debate in countries all across the world. Poland has some of the strongest abortion laws in the world, which have led to public outcry. In this essay, I will describe how we can view Poland as a case study  to anticipate the future of the United States’ abortion laws. Many similarities in policy and public responses can be seen in the United States and Poland: the actions of politicians, the interpretation of religion in politics, and politicians ignoring public opinion. The combination of these actions has led to protest and turmoil in Poland, and the United States will face the same level of unrest if the nation continues down its current path and further restricts abortion laws. I will argue that the current political climate in the U.S. could put us on a path leading to laws similar to Poland’s, and how restricting abortion on the same basis as Poland would breach the United States’ Constitution. This is revealed, in part, by Amy Coney Barrett’s recent appointment to the Supreme Court and her religion-based views on abortion.

As of October 28, 2020, decision K 1/20 made it illegal for women to have safe abortions in Poland.[1] Compared to other European countries, Poland already had strict laws regarding abortion access. Poland’s 1993 Act on Family Planning restricted legal abortions to only include cases in which the mother’s life was in danger, the fetus is irreversibly ill, or the pregnancy was the result of an illegal action such as rape.[2] This new development to Polish law will make access to abortions even more difficult, as abortion due to fetal congenital defects will be now considered unconstitutional. This ruling by the court has led to massive protests in the streets of Warsaw and across Poland. Protesters, most of whom are female, have faced brutal attacks by far-right members of Poland’s leading party, the Law and Justice Party. These attacks have been orchestrated by the far-right party leader Jarosław Kaczyński, who released a message calling for his supporters to protect churches from disruption by protestors. Instances like these have directly led to female protestors facing violence by Kaczyński’s far-right supporters.[3]  

This political decision has been perceived by reporters and civilians as an exploitation of religion and an abuse of power in the name of religion. Religion can often be used as a cover-up in politics, as ideologies can be used as an explanation for one’s view on a certain topic or policy, acting as a facade to hide their true beliefs. Religious doctrines are often employed by politicians as justifications for their policies in both Poland and the United States alike, despite the constitutional separation of church and state in America.[4] Polish politics in particular are heavily influenced by the Catholic Church, as they do not have a precedent of separating church and state.[5] Law and Justice Politicians in Poland have chosen to directly ignore the wishes of the people and outlaw abortions based on the ideology of the Catholic Church. Over one-third of the total population of Poland favored the loosening of abortion laws, but the political body in Poland tightened them regardless.[6] Polish Deputy Prime Minister Jarosław Kaczyński referred to the court’s abortion decision as “completely in line with the Polish constitution.”[7] However, Poland’s constitution “has its origins in the idea of inclusiveness and openness to many world views.”[8] Court decision K 1/20, shows that the intentions of Poland’s constitution writers are being ignored in practice.[9] Polish law also states that the Constitutional Court can only rule on abortion’s legal implications, not the moral assessment.[10] In addition to drawing on Catholic morals, Polish abortion law has utilized the textualist interpretation of Article 38 of the Constitution Article 38 gives legal protection to every human life. Despite not stating that life begins at conception, this article has been used to restrict abortion.[11]

Unlike Poland, the U.S. Constitution does not talk about conception but constitutional precedent protects freedom of religion. The U.S. also does not have a clause like Poland’s Article 38, which could be used to call the motives for attempting to ban abortion into question. The United States Senate’s recent confirmation of Justice Amy Coney Barrett to the Supreme Court could result in restricted abortion laws similar to Poland’s. Barrett has been outwardly vocal about her desire to overturn Roe v. Wade, the Supreme Court case protecting a woman’s right to choose to have an abortion.[12] Barrett has a history with anti-abortion groups and has signed public statements in opposition to abortion.[13] Similar to Kaczyński, Barrett makes her case on the basis of religion. Barrett signed an anti-abortion letter published in the South Bend Tribune when she was leaving church one day and stated, ”It was consistent with the views of my church, and it simply said we support the right to life from conception to natural death.”[14] However, the First Amendment to the Constitution of the United States ensures religious freedom.[15] Therefore, the separation of church and state comes into play by ensuring that the government does not make laws on the basis of or in favor of one religion.[16]

While this decision would look politically different in the U.S. than in Poland, similar reactions might result.  If Barrett brings a challenge to Roe v. Wade to the table based on her faith, this is a violation of the First Amendment and the separation of church and state. While her religious beliefs cannot be a reason to overturn the case, she may be more adamant about bringing it back to the table for reconsideration. Therefore, her religious beliefs would be indirectly resulting in a rediscussion about Roe v. Wade. Being that Barrett’s religious opinion on abortions has been vocalized, she could be held under public scrutiny no matter the basis for overturning Roe v. Wade. Public criticism for a lifetime-appointed Supreme Court Justice can be detrimental to their career and will effectively put every statement and decision under scrutiny as well. Since Barrett will be a justice for life, the public can scrutinize her on all fronts, but in the end, she will act how she pleases which will likely be against the well-being and opinions of the American public. However, if Roe v. Wade is effectively overturned, it is left to each state to decide to protect the right to choice, so we will likely not see a nation-wide abortion ban.[17] Roe v. Wade is high-risk for being overturned, as the Supreme Court now holds a 6-3 conservative majority.[18] If the decision to overturn Roe v. Wade becomes finalized, the U.S. will face the same social turmoil and protests as Poland. We have already seen the public protests and outcry regarding the defunding of Planned Parenthood, therefore it is safe to assume that we would see a round two if Roe v. Wade gets overturned.

Similar to Poland,  U.S. decisions regarding a woman’s right to choose are made and discussed by men in politics. As of 2019, 12% of Poland’s cabinet was made up of women.[19] In the US, as of 2019,  25% of the Senate and 23% of the House of Representatives were made up of women.[20] From a logical standpoint, the women in power should be the voices listened to regarding decisions about women’s reproductive rights, being that they are affected firsthand by these laws. However, since women make up such small portions of the government in both the U.S. and Poland, we see men making critical decisions about women’s bodies with little to no input from the affected groups. Most importantly, in governments like those of Poland and the United States, decisions should be made based on the opinion of the people. Both governments operate as some form of a republic, which leaves room for democracy. Therefore, to preserve rule of law, the people should have a say and be listened to when it comes to court cases and laws restricting the choices of the people, such as in the case of abortion. 

Poland is now in a state of turmoil and civic unrest caused by its government’s decision to tighten abortion laws. The combination of Deputy Prime Minister Kaczyński’s call to action and the disregard for public desire have resulted in massive protests for women’s rights. Poland’s abortion decisions have been heavily influenced by the Catholic Church, as they do not have a separation of church and state. However, this precedent is seen in the United States, so the basis for overturning Roe v. Wade goes against years of criterion set for lawmaking regarding religion. Justice Barrett, like Deputy Prime Minister Kaczyński, is against abortion on the grounds of religion, as shown by her Notre Dame law school article recounting that the Catholic Church deemed abortion as always immoral. Therefore Justice Barrett is in direct violation of the separation of church and state as well as the First Amendment. If the U.S. does not follow the ideals of democracy and listen to the people, the unrest and protest in Poland will be replicated on American soil. Overturning a Supreme Court case takes into consideration the opinions of six conservative justices and three liberal justices and is therefore not a democratic decision based on the opinions of the people. While the Supreme Court Justices are able to make decisions based on their ideologies, they are not to use political party preference in their decision making. However, it has been confirmed, by large amounts of academic research, that these ideologies reflect a Justice’s political philosophy and party.  The U.S. will face the same issues as Poland if it does not put politics back on a democratic track.  If the Supreme Court focuses on ways to amend and overturn previous decisions, the efficacy of the court to make decisions on new cases and new change could be tossed aside. Overturning a past case inhibits the court from progressing with the rest of the country to make new, necessary, and imperative legal changes.

notes:

1. “Polish president changes stance on abortion rights amid widespread protests.” 

2. “Abortion in Poland.”

3. Karolina Wigura, “Poland's Abortion Ban Is a Cynical Attempt to Exploit Religion by a Failing Leader.”

4. Wigura, “Poland’s Abortion Ban…”.

5. John Feffer, “Church and State in Poland.”

6. Wigura, “Poland’s Abortion Ban…”.

7. Laurenz Gehrke, “Polish PM Defends New Abortion Law as Women Take to Streets.” 

8. Gehrke, “Polish PM Defends…”.

9. Ewa Łętowska, “A Tragic Constitutional Court Judgment on Abortion.” 

10. Gehrke, “Polish PM Defends…”.

11. Łętowska, “A Tragic Constitutional…”.

12. Łętowska, “A Tragic Constitutional

13. Thompson-DeVeaux and Skelley, “What Amy Coney Barrett's Confirmation Could Mean For Roe v. Wade.” 

14. Emma Green, “No One Likes Amy Coney Barrett's Abortion Answer.”

15. “First Amendment.”

16. “Separation of Church and State.”

17. Jo Yurcaba, “Planned Parenthood's President On What Could Happen If Roe V. Wade Is 'Gutted'.”

18. Joan Biskupic, “Analysis: Amy Coney Barrett Joins the Supreme Court in Unprecedented Times.”

19. Adriana Sas, “Proportion of Women in Polish Cabinets 2019.”

20. “Women's Representation.”

Bibliography:

“Abortion in Poland.” Wikipedia. Wikimedia Foundation, December 17, 2020. https://en.wikipedia.org/wiki/Abortion_in_Poland. 

Ameliatd. “What Amy Coney Barrett's Confirmation Could Mean For Roe v. Wade.” FiveThirtyEight. FiveThirtyEight, October 15, 2020. https://fivethirtyeight.com/features/what-amy-coney-barretts-confirmation-could-mean-for-roe-v-wade/. 

Biskupic, Joan. “Analysis: Amy Coney Barrett Joins the Supreme Court in Unprecedented Times.” CNN. Cable News Network, October 27, 2020. https://www.cnn.com/2020/10/27/politics/amy-coney-barrett-joins-supreme-court-unprecedented/index.html. 

Ewa Łętowska. “A Tragic Constitutional Court Judgment on Abortion.” Verfassungsblog, November 12, 2020. https://verfassungsblog.de/a-tragic-constitutional-court-judgment-on-abortion/. 

Feffer, John. “Church and State in Poland.” HuffPost. HuffPost, May 18, 2016. https://www.huffpost.com/entry/church-and-state-in-poland_b_7306004. 

“First Amendment.” Legal Information Institute. Legal Information Institute. Accessed October 30, 2020. https://www.law.cornell.edu/constitution/first_amendment. 

Gehrke, Laurenz. “Polish PM Defends New Abortion Law as Women Take to Streets.” POLITICO. POLITICO, October 27, 2020. https://www.politico.eu/article/polish-pm-defends-new-abortion-law-as-protests-continue/.

Green, Emma. “No One Likes Amy Coney Barrett's Abortion Answer.” The Atlantic. Atlantic Media Company, October 14, 2020. https://www.theatlantic.com/politics/archive/2020/10/amy-coney-barrett-roe-v-wade/616702/. 

Kuisz, Jarosław, and Karolina Wigura. “Poland's Abortion Ban Is a Cynical Attempt to Exploit Religion by a Failing Leader | Karolina Wigura.” The Guardian. Guardian News and Media, October 28, 2020. https://www.theguardian.com/commentisfree/2020/oct/28/poland-abortion-ban-kaczynski-catholic-church-protests. 

The Associated Press“Polish President Changes Stance on Abortion Rights amid Widespread Protests.” NBCNews.com. NBCUniversal News Group, October 29, 2020. https://www.nbcnews.com/news/world/polish-president-changes-stance-abortion-rights-amid-widespread-protests-n1245227. 

Representation2020.com. “Women's Representation.” RepresentWomen. Accessed October 30, 2020. 

"Roe v. Wade." Oyez. Accessed October 29, 2020. https://www.oyez.org/cases/1971/70-18.

Sas, Adriana. “Proportion of Women in Polish Cabinets 2019.” Statista, October 19, 2020. https://www.statista.com/statistics/870500/proportion-of-women-in-polish-cabinets/. 

“Separation of Church and State.” Legal Information Institute. Legal Information Institute. Accessed October 30, 2020. https://www.law.cornell.edu/wex/separation_of_church_and_state. 

Yurcaba, Jo. “Planned Parenthood's President On What Could Happen If Roe V. Wade Is 'Gutted'.” Forbes. Forbes Magazine, October 28, 2020. https://www.forbes.com/sites/joyurcaba/2020/10/28/planned-parenthoods-president-on-what-could-happen-if-roe-v-wade-is-gutted/. 

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2020 Election Litigation Undermines American Democratic Values

By: Aidan Ocampo

Edited by: Claire Lu, Maddie Bennett, and Kirsten Huh

An essential aspect of our democracy, the right to vote, is in jeopardy. The American democracy, sometimes considered a model form of government, was designed in response to a British tyranny that early colonists barely escaped. Centuries later, tyranny once again threatens to dismantle our rights and destroy our principles of democracy. Far before our time, Plato theorized about the potential downfall of the democratic system. In The Republic, Plato writes “the neglect of other things introduces the change in democracy, which occasions a demand for tyranny. [1]” 

Preceding the 2020 presidential election, President Donald Trump continuously made suggestions of voter fraud. In addition to unproven illegal voting, he even downplayed the integrity of mail-in ballots [2][3]. In the midst of a global pandemic, the method of mail-in ballots was a safer way for Americans to exercise their right to vote. Expecting a large number of Americans to utilize this opportunity, President Trump intentionally spread unfounded rumors to undermine their validity and secure his own victory. Simply put, this practice is disenfranchisement as a US President attempted to strip Americans of their vote.

President Trump promised to fight the election results in the courts, claiming he would take it to the Supreme Court [4]. However, his refusal to concede the election by delegitimizing hundreds of thousands of votes has caused irreparable damage to our democracy for years to come. In future elections, politicians unhappy with the results may continue the practice of sowing American distrust in our election systems, a practice that is lethal to our democracy.

Former Vice President Joe Biden managed to pull off an electoral victory by flipping key battleground states such as Pennsylvania, Arizona, Wisconsin, Michigan and Georgia. Coincidentally, these are the same states that President Trump’s post-election litigation has targeted. Given the number of mail-in ballots, many of these states required days after the Tuesday general election to process and count such ballots. This delay in counting allowed President Trump to sow distrust in the American electoral system. His refusal to accept the results of the election has even warranted criticism from his own party. 

Prominent Republican politician, Senator Mitt Romney (R-UT) denounced President Trump’s claims saying he “failed to make even a plausible case of widespread fraud or conspiracy before any court of law, the President has now resorted to overt pressure on state and local officials to subvert the will of the people and overturn the election,” said Romney, a former Republican nominee for president. “It is difficult to imagine a worse, more undemocratic action by a sitting American President [5].” 

Much of the Trump campaign’s post-election litigation depends on alleged claims of inconsistencies in ballot counting – a claim that it has failed to provide evidence to prove. In Pennsylvania, the Trump campaign filed a claim in a US District court that mail-in ballots were given less oversight than in-person ballots [6]. Citing Bush v. Gore, the plaintiffs included that “the right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise… the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another [7].” However, the use of Bush v. Gore as precedent is an invalid attempt to justify baseless claims. The Supreme Court case Bush v. Gore pertained to inconsistencies given to ballot counting procedures between different counties in the state of Florida. In Trump’s Pennsylvania case, Donald J. Trump et al. v. Kathy Boockvar et al., No. 20-845 (2020), Trump’s argument pertains to alleged inconsistencies within particular counties, namely Allegheny, Chester, Delaware, Montgomery, Northampton, and Philadelphia county. Therefore, the alleged inconsistencies within counties does not warrant the use of Bush v. Gore, No. 00-949 (2000), which argued inconsistencies between counties. Additionally, Bush v. Gore was decided by court justices who were aware of its potential precedential consequences, stating in the per curiam, that “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities [8].” Thus, the court’s justices did not want this case to be established as precedent for future cases, limiting its ruling to this single instance.

Most of Trump’s election litigation has no legal basis. No matter how hard his legal team searches, there is no legal precedent for overturning election results. In fact, many of his cases have already been shut down in the courts by judges. In the aforementioned Pennsylvania case, district court Judge Brann “wholeheartedly rejected the Trump campaign’s attempt to throw out the Pennsylvania vote [9].” In Judge Brann’s order, he stated “it is not in the power of this Court to violate the Constitution [10].”

Besides few small legal victories [11], Trump’s campaign has been unsuccessful in his larger efforts to overturn the election. The longer he delays the inevitable Biden presidency, the more damage he imposes on our electoral system. The past four years of a Trump administration have already left deep cracks in our democratic foundation, and the next months of litigation could shatter it.

In 2016, Andrew Sullivan wrote for New York Magazine, “In terms of our liberal democracy and constitutional order, Trump is an extinction-level event. It’s long past time we started treating him as such. [12]” Trump’s response to the results of the 2020 general election is direct evidence of this. Four years ago, Sullivan hypothesized on the threat Trump posed to our democracy. Now, it may be too late.

notes:

1. Plato. 2008. “The Project Gutenberg EBook of The Republic,” August 27. https://www.gutenberg.org/files/1497/1497-h/1497-h.htm.

2. Andrew Solender. Forbes. October 24. Accessed November 21, 2020. https://www.forbes.com/sites/andrewsolender/2020/10/24/trump-votes-in-person-and-slams-mail-in-voting-as-campaign-urges-voters-to-vote-by-mail/?sh=384f4dfe1ec1.

3. Donald J. Trump. 2016. Twitter. https://twitter.com/realdonaldtrump/status/802972944532209664?lang=en.

4. Devin Dwyer. 2020. ABC NEWS. November 4. Accessed November 21, 2020. https://abcnews.go.com/Politics/trump-asks-supreme-court-intervene-pennsylvania-vote-count/story?id=74026219.

5. Kyle Feldscher. 2020. CNN Politics. November 20. https://www.cnn.com/2020/11/19/politics/mitt-romney-ben-sasse-trump/index.html.

6. Donald J. Trump et al. v. Kathy Boockbar et al. No. 20-845 (2020). 

7. Donald J. Trump et al. No. 20-845 (2020)

8. George W. Bush et al., Petitioners v. Albert Gore, Jr., et al. No. 00-949 (2000). 

9. Katelyn Polantz and Kevin Bohn. 2020. CNN.com. November 21. Accessed November 21, 2020. https://www.cnn.com/2020/11/21/politics/federal-judge-dismisses-trump-pennsylvania-lawsuit/index.html.

10. CNN. 2020. CNN.com. November 21. Accessed November 21, 2020. https://www.cnn.com/2020/11/21/politics/pennsylvania-trump-lawsuit-dismissal/index.html.

11. Maryclaire Dale and Alanna Durkin Richer. 2020. APnews.com. Accessed December 17, 2020. https://apnews.com/article/joe-biden-donald-trump-campaigns-pennsylvania-lawsuits-b56e0555a2bea650b12f53b979ea7493

12. Andrew Sullivan. 2016. New York Magazine. May 1. Accessed November 1, 2020. https://nymag.com/intelligencer/2016/04/america-tyranny-donald-trump.html.

Bibliography:

CNN. 2020. CNN.com. November 21. Accessed November 21, 2020. https://www.cnn.com/2020/11/21/politics/pennsylvania-trump-lawsuit-dismissal/index.html

Dale, Maryclaire, and Richer, Alanna Durkin. 2020. APnews.com. Accessed December 17, 2020. https://apnews.com/article/joe-biden-donald-trump-campaigns-pennsylvania-lawsuits-b56e0555a2bea650b12f53b979ea7493

Dwyer, Devin. 2020. ABC NEWS. November 4. Accessed November 21, 2020. https://abcnews.go.com/Politics/trump-asks-supreme-court-intervene-pennsylvania-vote-count/story?id=74026219.

Feldscher, Kyle. 2020. CNN Politics. November 20. https://www.cnn.com/2020/11/19/politics/mitt-romney-ben-sasse-trump/index.html.

Illing, Sean. 2016. Vox.com. November 7. Accessed November 21, 2020. https://www.vox.com/policy-and-politics/2016/11/7/13512960/donald-trump-plato-democracy-tyranny-fascism-2016-elections.

Plato. 2008. The Project Gutenberg EBook of The Republic. August 27. https://www.gutenberg.org/files/1497/1497-h/1497-h.htm.

Polantz, Katelyn, and Kevin Bohn. 2020. CNN.com. November 21. Accessed November 21, 2020. https://www.cnn.com/2020/11/21/politics/federal-judge-dismisses-trump-pennsylvania-lawsuit/index.html.

Solender, Andrew. 2020. Forbes. October 24. Accessed November 21, 2020. https://www.forbes.com/sites/andrewsolender/2020/10/24/trump-votes-in-person-and-slams-mail-in-voting-as-campaign-urges-voters-to-vote-by-mail/?sh=384f4dfe1ec1.

Sullivan, Andrew. 2016. New York Magazine. May 1. Accessed November 1, 2020. https://nymag.com/intelligencer/2016/04/america-tyranny-donald-trump.html.

Trump, Donald J. 2016. Twitter. https://twitter.com/realdonaldtrump/status/802972944532209664?lang=en.

Press Freedom Violations, Police, and the Need for Heightened Legal Protection for Journalists

By: Hannah Cheves

Edited by: Olivia Cohen

In recent years, the integrity of journalists and newsrooms has come under fire in ways many have never seen before. With repeated attacks from the current President, who maligns the “fake news media”[1] on Twitter and in speeches at every opportunity, trust in the media has fallen drastically, with only about 40% of Americans claiming to have a “great amount/fair amount” of trust in the media.[2]  This has been coupled with increased press freedom infringements against journalists in protests. According to the U.S Press Freedom Tracker, a nonpartisan database of press freedom incidents in the United States, there have been over 880 reported aggressions against the press, including many by police or other government entities during the 2020 Black Lives Matter protests alone.[3]  This number includes aggressions such as equipment seizures, equipment damages, arrests, subpoenas, denial of access, or other incidents.Those infringements committed by governmental entities, such as the police, normally fall under the umbrella of violating a journalist’s First and/or Fourth Amendment rights. The increased frequency of these violations can hardly be traced back to one single thing, but it is impossible to ignore the anti-media rhetoric that has pervaded the country’s national dialogue in past years. With the increase of these infringements, it becomes more crucial than ever to expand existing legal protections for journalists when they cover protests. 

As it stands, journalists operating in their official capacity are subject to the same laws as non-members of the press when it comes to their reporting. For example, journalists, unless they receive an exemption, must comply with all mobility restrictions, such as curfews.[4]  However, the right of journalists to record governmental interactions are all well documented and solidly founded in legal precedent. In Smith v. Daily Mail Publishing Co., the Court ruled that “if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information absent a need to further a state interest of the highest order” Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979). Similarly, it is well within the scope of journalists to record police activity, which is an issue that has repeatedly come up in protests. See Fordyce v. City of Seattle 55 F.3d 436, 439 (9th Cir. 1995). For example, Amr Alfiky, a photojournalist, was arrested by police in Manhattan as he filmed the police performing an arrest.[5]  It has also been determined that the right to record police and law enforcement actions is in fact crucial First Amendment protection. See Statement of Interest of the United States, Garcia v. Montgomery County, No. 8:12-cv-03592-JFM (D. Md. filed March 4, 2013). This Statement directly states that “the derogation of these rights erodes public confidence in our police departments, decreases the accountability of our governmental officers, and conflicts with the liberties that the Constitution was designed to uphold.” 

With these rights clearly established, the rise in the number of cases of violations of press freedoms must be addressed. In many of these cases, such as that of Omar Jimenez[6], the police departments simply release the journalists and, in some cases, apologize.  However, this does not do anything to curb the violence faced by journalists by police during protests, nor the way that this violence interferes with their newsgathering and storytelling. It also does not recognize the Constitutional violation that happens in these incidents, and thus makes the incidents seem milder of an offense than they are. In addition, according to the 2020 Freedom of the Press Foundation report, no police officers have been charged with illegally arresting a journalist, while at least 16 journalists still face long-term legal ramifications for their arrests. The nonprofit legal group Reporters Committee or Freedom of the Press, along with other legal groups, sent a letter to California governor Gavin Newsom denouncing police attacks on journalists.[7] They cited several instances of press freedom violations in California, and asked Newsom to implement protocols to protect journalists at protests. The proposed protocols such as informing officers that detaining a journalist could be a First Amendment violation, discipline for officers who violate that right, requiring officers to display their badge numbers and other identifying information, allow journalists to be exempt from mobility restrictions, prohibiting officers from turning off their body cameras, and releasing information about the interactions of police and the press to ensure legitimacy of these interactions. In October, Newsom vetoed the proposed bill, stating that the language was too broad.[8]

Despite the failure of this bill, it is becoming more and more evident that increased protections for members of the media is absolutely necessary to the health of our democracy. The United States prides itself on freedom, and constantly infringing on the rights of the press could take the country in a dangerous direction, especially in times of great civil unrest. As stated in the U.S Statement of Interest, infringement on these rights “conflicts with the liberties the Constitution was designed to uphold.” See Statement of Interest of the United States, Garcia v. Montgomery County, No. 8:12-cv-03592-JFM (D. Md. filed March 4, 2013) If it is not physical assault on the press, rhetorical attacks, such as the ones we see even from the highest levels of government, give legitimacy to the infringement of First Amendment rights during protests. In these increasingly fraught times, local governments must prioritize the protection of journalists at protests- if not for the media, then for them. Having the country watch as officers violently detain[9] journalists further erodes trust in state governments and police. 

In summary, states and the federal government are not doing enough to protect our nation’s freedom of the press. Governments should enact legislation proactively protecting journalists, rather than looking at each situation on a case by case basis and determining if the arrest or seizure was justified. Further, police should be reminded that they are not at liberty to make arrests of journalists haphazardly, and if they do so, they need to be charged, as they directly contradict First Amendment rights and years of precedent determining they can and must be held accountable.

notes:

1. Berkeley Lovelace, “Trump Claims the Worsening U.S. Coronavirus Outbreak Is a 'Fake News Media Conspiracy' Even as Hospitalizations Rise,” CNBC (CNBC, October 29, 2020), https://www.cnbc.com/2020/10/26/coronavirus-trump-claims-the-worsening-us-outbreak-is-a-fake-news-media-conspiracy-even-as-hospitalizations-rise.html. 

2.  Megan Brenan, “Americans Remain Distrustful of Mass Media,” Gallup.com (Gallup, November 9, 2020), https://news.gallup.com/poll/321116/americans-remain-distrustful-mass-media.aspx.

3. “Need to Know: June 2, 2020,” American Press Institute, June 2, 2020, https://www.americanpressinstitute.org/need-to-know/need-to-know-june-2-2020/.

4. “NY Photojournalist Arrested While Recording Police.” First Amendment Watch, February 13, 2020. https://firstamendmentwatch.org/new-york-police-arrest-journalist-while-recording-another-mans-arrest/. 

5. Amir Vera, “CNN Crew Released from Police Custody after They Were Arrested Live on Air in Minneapolis,” CNN (Cable News Network, May 30, 2020), https://www.cnn.com/2020/05/29/us/minneapolis-cnn-crew-arrested/index.html.

6. Jimenez, a correspondent and journalist for CNN, was arrested along with his crew by police in Minneapolis while he covered the Black Lives Matter protests there. He was clearly displaying his press pass.  He was detained but later released, with the governor and police apologizing for the arrest. Amir Vera, “CNN Crew Released from Police Custody after They Were Arrested Live on Air in Minneapolis,” CNN (Cable News Network, May 30, 2020), https://www.cnn.com/2020/05/29/us/minneapolis-cnn-crew-arrested/index.html.

7. Letter to Gavin Newsom: https://www.rcfp.org/wp-content/uploads/2020/07/7-8-20-California-Media-Coalition-Press-Attacks-Letter.pdf

8.  It is important to note that the language in the bill is the same as language that is in an existing California bill regarding the press. So far, there is little information on the next steps for these legal groups. Colleen Shalby, “Newsom Vetoes Bill That Would Have Further Protected Journalists Covering Protests,” Los Angeles Times (Los Angeles Times, October 1, 2020), https://www.latimes.com/california/story/2020-10-01/newsom-vetoes-bill-that-would-have-further-protected-journalists-covering-protests.

9.  Josie Huang was arrested in California while covering a protest, and was pinned on the pavement and handcuffed. The officers said she was “not wearing credentials”, but they were clearly displayed around her neck. Bruce Haring, “Media Organizations Send Letter To LA Sheriff's Dept. Condemning Arrest Of KPCC/LAist Reporter Josie Huang,” Deadline (Deadline, September 16, 2020),  https://deadline.com/2020/09/media-organizations-send-sheriffs-letter-on-laist-reporter-josie-huang-arrest-1234575994/.
   

Bibliography:

Brenan, Megan, “Americans Remain Distrustful of Mass Media.” Gallup.com. Gallup, November 9, 2020. https://news.gallup.com/poll/321116/americans-remain-distrustful-mass-media.aspx. 

Haring, Bruce. “Media Organizations Send Letter To LA Sheriff's Dept. Condemning Arrest Of KPCC/LAist Reporter Josie Huang.” Deadline. Deadline, September 16, 2020. https://deadline.com/2020/09/media-organizations-send-sheriffs-letter-on-laist-reporter-josie-huang-arrest-1234575994/. 

Lovelace, Berkeley. “Trump Claims the Worsening U.S. Coronavirus Outbreak Is a 'Fake News Media Conspiracy' Even as Hospitalizations Rise.” CNBC. CNBC, October 29, 2020. https://www.cnbc.com/2020/10/26/coronavirus-trump-claims-the-worsening-us-outbreak-is-a-fake-news-media-conspiracy-even-as-hospitalizations-rise.html. 

“Need to Know: June 2, 2020.” American Press Institute, June 2, 2020. https://www.americanpressinstitute.org/need-to-know/need-to-know-june-2-2020/. 

Shalby, Colleen. “Newsom Vetoes Bill That Would Have Further Protected Journalists Covering Protests.” Los Angeles Times. Los Angeles Times, October 1, 2020. https://www.latimes.com/california/story/2020-10-01/newsom-vetoes-bill-that-would-have-further-protected-journalists-covering-protests. 

Vera, Amir. “CNN Crew Released from Police Custody after They Were Arrested Live on Air in Minneapolis.” CNN. Cable News Network, May 30, 2020. https://www.cnn.com/2020/05/29/us/minneapolis-cnn-crew-arrested/index.html. 

Letter to Gavin Newsom. Re: Law Enforcement Targeting Journalists during Protests, July 8, 2020. 

U.S Statement of Interest, Garcia v. Montgomery County, March 4, 2013.

U.S. Press Freedom Tracker, October 31, 2020. https://pressfreedomtracker.us/. 

“NY Photojournalist Arrested While Recording Police.” First Amendment Watch, February 13, 2020. https://firstamendmentwatch.org/new-york-police-arrest-journalist-while-recording-another-mans-arrest/. 

Taylor Swift’s Ongoing Battle for Artists Everywhere to Own Their Music

By: Danielle Spitz

Edited by: Michelle Pak, Olivia Cohen, and Dheven Unni

November 2020 brings both good and bad news for Taylor Swift. This month marks the first time that Swift will be contractually permitted to re-record the biggest hits off of her first six studio albums. Swift is also reminded, however, that she is not legally in possession of her work as her master recordings, or the original recordings of songs, have been put into question for the second time in less than two years. The public controversy involving Swift’s recording copyrights was sparked after Scooter Braun’s media company Ithaca Holdings LLC purchased Swift’s former label Big Machine Label Group (BMLG), and with it Swift’s master recordings, in the summer of 2019. On Nov. 16, about 17 months after Braun acquired BMLG, it was announced that the entrepreneur sold Swift’s master rights again to the private equity firm Shamrock Holdings. This is the latest installment in Swift’s history of championing artists’ rights, including her challenges to streaming services Apple Music and Spotify over royalties and how they compensate artists. This latest challenge over music copyrights is representative of the longstanding struggle between artists and record labels to have exclusive rights to masters.

Music copyright is divided into sound recording and composition rights. Swift’s new deal with Universal Music Group’s Republic Records signed in November of 2018 gives her control of both for the first time in her career. Before entering this new deal, Swift’s compositions, or songwriting, belonged exclusively to Sony/ATV Music Publishing per a deal she signed with the music publisher at age 14. Swift signed a separate deal at age 15 with BMLG that gave the record label exclusive rights to her master recordings. Although Swift’s deal with Republic Records allows her to own her new music, she is still left battling for control over the music she recorded while signed with BMLG. 

When Braun’s company purchased BMLG and Swift’s master rights for $300 million in 2019, Braun acquired much more than a few hit singles. Master recordings are major sources of revenue and licensing opportunities. Royalties from master recordings include those earned from streaming and consumption, sampling, public broadcast, and use in television and other forms of media.  For Swift, this means she only receives a percentage of the royalties produced from her first six albums while BMLG takes the rest. Now that Braun has sold Swift’s masters for $300 million -- the same price for which he acquired BMLG in 2019 -- the ownership of Swift’s masters is once again in question. According to a recent post on Swift’s Twitter account, Braun made it very difficult for Swift to enter negotiations to repossess her old work. Braun’s new deal with Shamrock Holdings will still allow Braun to profit off of Swift’s old musical catalog, meaning Swift’s only solution to reclaim her music is to re-record her past albums. 

Although Swift’s contract with BMLG is not considered unconventional in the music industry, it is indicative of the ongoing fight that artists face to own their work. Part of the complexity of this fight is the limited amount of information over copyrights that artists are privy to. Due to all of the monetary benefits that come with master rights, it is typically not in the label’s best interest to inform artists of certain copyright laws. Section 203 of the 1976 Copyright Revision Act does, however, include provisions that are essential to master rights for artists. 

According to Section 203, artists may reclaim ownership of their music copyrights and master recordings 35 years after an album’s release. Also known as the “35-year law,” this provision allows for the termination of the copyrights of both sound recordings and musical compositions for works published in 1978 and after. There is also a five-year window after the end of the 35-year period, meaning the effective date of termination spans from 35 to 40 years after the publication of a work. Artists may send a Notice of Termination up to ten years before the end of a 35-year period and not less than two years prior to the end of the period. During those two years and up to the effective date of termination, the current record company, or publisher in the case of an author, has exclusive privileges to make a deal with the artist. This might lead to favorable terms for artists in that two-year period, but if no deal has been made in that time then the artist is free to make whatever deal they want or even put their recordings on their own label. Swift’s public argument with BMLG put the issue of artists’ rights in the spotlight, despite record labels’ attempts to shield artists from litigation that could help them reclaim their work. 

Swift is not alone in her pursuits to reclaim ownership of her music copyrights. Other notable artists such as Prince, Jay-Z, and Janet Jackson have publicly expressed their anguish over not owning the master rights to their work. Although Swift and other prominent artists have become the face of this issue, the question of artists owning their own work also has real implications for lesser-known artists. The common tradeoff is for record labels to invest in unknown talent, such as Swift at age 15, while maintaining master rights. For struggling artists, this is often their best option to break into the music industry. However, Swift’s powerful stance might indicate that the status quo is due for a change.  

Bibliography:

Copyright Termination Experts (2018). “Urgent Deadlines.” http://copyrightterminationexperts.com/urgent-deadlines/. 

Copyright Termination Experts (2018). “US Copyright Act” http://copyrightterminationexperts.com/us-copyright-act/. 

Coscarelli, J. and Sisario, B. (2019, July 1). “Taylor Swift’s Feud With Scooter Braun Spotlights Musicians’ Struggles to Own Their Work.” New York Times.  https://www.nytimes.com/2019/07/01/arts/music/taylor-swift-master-recordings.html. 

Haack, B. (2017, Sept. 29). “Why Are So Few Artists Fighting To Get Back Their Masters?” Grammy News. https://www.grammy.com/grammys/news/why-are-so-few-artists-fighting-get-back-their-masters

Halperin, S. (2020, Nov. 16). “Scooter Braun Sells Taylor Swift’s Big Machine Masters for Big Pay Day.” Variety. https://variety.com/2020/music/news/scooter-braun-sells-taylor-swift-big-machine-masters-1234832080/. 

Ingham, T. (2019, Dec. 9). “Taylor Swift Plans to Re-Record Her Hits. Here’s What She Might Be Facing.” Rolling Stone. https://www.rollingstone.com/pro/features/taylor-swift-plans-to-re-record-her-hits-heres-what-she-might-be-facing-923019/.

Meiselman, J. (2019, Nov. 20). “Taylor Swift’s Messy Legal Situation, Explained.” Vice. https://www.vice.com/en/article/wjw3v4/taylor-swifts-messy-legal-situation-with-scooter-braun-big-machine-explained.

Sisario, B. (2020, Feb. 6). “Taylor Swift’s Next Big Deal Is for Her Songwriting.” New York Times.  https://www.nytimes.com/2020/02/06/arts/music/taylor-swift-universal-publishing-deal.html.