Should Bump Stocks be Legal?

By: Maddy Goldman

Edited by: Isabella Canales and Claire Quan

Gun rights have long been a topic of debate in the United States. While the Second Amendment guaranteed the right to bear arms in the 1700s, technology has since rapidly developed. The creation of new weapons, necessitated new legislation limiting the Second Amendment. One major limitation was placed on the legality of machine guns. Since they are much deadlier than regular, non-automatic guns, machine guns are banned in the United States. While this may seem like a relatively straightforward prohibition, the line can easily become blurred. The invention of a “bump stock” device has increasingly blurred the lines between gun rights and ownership, calling for intervention by the Supreme Court. 

On October 1, 2017, Stephen Paddock opened fire at a country music festival in Las Vegas. [1]  In the span of only a few minutes, Paddock killed over 50 people. [2] He was able to cause such devastating harm by using a device known as a “bump stock.” A bump stock can be placed onto any gun, essentially endowing it with machine gun-like capabilities: it “causes a gun’s trigger to buck against the shooter’s finger while the gun’s recoil makes it jerk back and forth, ‘bumping’ the trigger and causing it to fire again and again.” [4] Many were outraged at the legality of such a device and urgently called for gun reform. By December 2018, the Trump Administration’s Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) put into place a federal ban on the possession of bump stocks. That is to say, anyone who owned a bump stock in the United States either had to give it up to the government or effectively destroy it. [5] This decision was different from earlier ones, as it ruled that all bump stocks should be considered machine guns, thereby rendering them illegal. [6]

When banning these devices, the Trump administration looked to a twentieth-century federal law that made the ownership of “machine guns” illegal. [7] This law, Section 922(o)(1), states that it is “unlawful for any person to transfer or possess a machine gun.” [8] The Trump administration thus decided that bump stocks count as machine guns – and therefore, should be banned federally. The 2018 ban thus made the 20th century ban more extreme, classifying a bump stock as a machine gun.

However, recently, there have been challenges to this decision, with some, such as Michael Cargill, claiming that bump stocks should be legal. Even though bump stocks are currently banned federally, courts across the country now disagree about whether bump stocks should count as machine guns, and whether or not they should be banned. 

Michael Cargill owned two bump stocks before their banning. [9] When the ATF put this ban (as discussed earlier) on bump stocks in 2018, Cargill was forced to surrender them to the government. But, rather than surrender them and move on, Cargill chose to sue the ATF. His argument focused on the issue of separation of powers. [10] He claimed that the ATF does not have the power to make such large decisions regarding gun rights. To him, the ATF did nothing more than take away over 100 million dollars of property from American bump stock owners. [11] 

However, Cargill’s challenging of the ban has brought up many additional disagreements regarding the banning of bump stocks. This disagreement can be seen in the Fifth and Sixth Circuit Courts, where it was argued that bump stocks should not be prohibited under federal law. [12] The courts claimed that the definition of a machine gun does not include bump stocks. This definition, as seen in federal laws, states that any gun capable of shooting multiple bullets “automatically” and by one trigger function counts as a machine gun. [13] To them, bump stocks are merely an accessory, not a gun, and thus do not fit the category.

In addition to arguing that a bump stock does not count as a machine gun under this definition, the Sixth Circuit concluded that the “rule of lenity” applies in this case. [14] The “rule of lenity” states that courts must apply any ambiguous criminal laws in such a way that favors the defendants. [15] As mentioned earlier, bump stocks were banned under Section 922(o)(1), which makes it illegal to own a machine gun. The 2018 ban thus classified bump stocks as machine guns, making them illegal under the same law (Section 922(o)(1)). However, the Sixth Circuit argues that the federal firearm law which prohibits machine guns, does not “clearly and unambiguously prohibit bump stocks.”[16] In other words, it is ambiguous whether a bump stock classifies as a machine gun, thus calling for the “rule of lenity” to be applied. The court argues that now, in Cargill v. Garland, the Supreme Court must decide the statute in favor of the defendant, which in this case, would mean deciding that bump stocks are, in fact, legal. 

Meanwhile, other courts, such as the U.S. Court of Appeals for the D.C. Circuit strongly disagreed. It believed the ban to be necessary and legal and continued to uphold the regulation interpreting Section 922(o)(1) as including a bump stock. [17] To the D.C. Circuit, a bump stock does fit under the definition. Deciding that a bump stock is still a “self-regulating mechanism that allows the shooter to shoot more than one shot through a single pull of the trigger,” the court said they can therefore classify it as a “machine gun.” [18]

It is evident that there has been much disagreement regarding what to do with the legality of bump stocks. Due to these court disagreements, as well as opposition on the basis of separation of powers and the ambiguity of the National Firearms Act, the Biden Administration petitioned the Supreme Court to take up an appeal on the Cargill case. [19] 

Those in favor of the ban hope that the court finds bump stocks to count as machine guns and that their possession should be illegal everywhere in the United States. Meanwhile, those who want the ban to be lifted are hoping that, in their reconsideration of various gun laws, the court finds the ATF to have made a decision that was far beyond its authority. 

It is interesting to observe who is on the Supreme Court and how this could affect this decision. Had these gun rights cases been brought to the Supreme Court before Donald Trump’s presidency, the Supreme Court would likely have ruled that bump stocks must be banned. However, now that the Supreme Court is significantly more right-leaning, there is a high chance they rule against the ban, making bump stocks legal. 

In fact, if bump stocks are decided to be legal, it could be difficult to ever ban them again. [20] Due to a previous ruling in the 2022 New York State Rifle & Pistol Association v. Bruen case, it was essentially decided that the more commonly a weapon is used, the more protection it will receive from the Second Amendment. [21] If the Supreme Court allows for the possession of bump stocks, more and more gun owners would likely purchase them, thereby making them increasingly common. Once this occurs, it could be incredibly difficult to go beyond the 2022 ruling. 

While no final decision has been made yet, this Supreme Court case offers up many questions. What counts as a machine gun? What happens if the Supreme Court rules bump stocks to be legal? Do bump stocks fit into a category of their own? Should a new law be made to specifically regulate and outlaw them? These are all questions that will be answered with time. For now, the case offers an opportunity for nuanced debate regarding gun rights, the Second Amendment, and the interpretation of firearm laws.

Notes:

1. Lawrence Hurley, “Supreme Court to review Trump-era ban on gun ‘bump stocks’” NBC News, November 3, 2023, https://www.nbcnews.com/politics/supreme-court/supreme-court-review-trump-era-ban-gun-bump-stocks-rcna121466 

2. Lawrence Hurley, “Supreme Court to review Trump-era ban on gun ‘bump stocks’” NBC News, November 3, 2023, https://www.nbcnews.com/politics/supreme-court/supreme-court-review-trump-era-ban-gun-bump-stocks-rcna121466 

3. Lawrence Hurley, “Supreme Court to review Trump-era ban on gun ‘bump stocks’” NBC News, November 3, 2023, https://www.nbcnews.com/politics/supreme-court/supreme-court-review-trump-era-ban-gun-bump-stocks-rcna121466 

4. Ian Millhiser, “The Supreme Court will hear a case that could effectively legalize automatic weapons,” Vox, November 3, 2023, https://www.vox.com/scotus/2023/11/3/23943399/supreme-court-automatic-weapons-bump-stocks-gun-policy 

5. “Bump Stocks,” Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/rules-and-regulations/bump-stocks 

6. Amy Howe, “Justices take up bump stock dispute,” SCOTUSblog, November 3, 2023, https://www.scotusblog.com/2023/11/justices-take-up-bump-stock-dispute/ 

7. Ian Millhiser, “The Supreme Court will hear a case that could effectively legalize automatic weapons,” Vox, November 3, 2023, https://www.vox.com/scotus/2023/11/3/23943399/supreme-court-automatic-weapons-bump-stocks-gun-policy 

8. “18 U.S. Code § 922 - Unlawful acts,” Legal Information Institute, https://www.law.cornell.edu/uscode/text/18/922 

9. Lawrence Hurley, “Supreme Court to review Trump-era ban on gun ‘bump stocks’” NBC News, November 3, 2023, https://www.nbcnews.com/politics/supreme-court/supreme-court-review-trump-era-ban-gun-bump-stocks-rcna121466 

10. Ariane de Vogue, “Supreme Court to consider challenge to federal bump stock ban,” CNN, November 3, 2023, https://www.cnn.com/2023/11/03/politics/supreme-court-bump-stocks/index.html 

11. Ariane de Vogue, “Supreme Court to consider challenge to federal bump stock ban,” CNN, November 3, 2023, https://www.cnn.com/2023/11/03/politics/supreme-court-bump-stocks/index.html 

12. Amy Howe, “Justices take up bump stock dispute,” SCOTUSblog, November 3, 2023, https://www.scotusblog.com/2023/11/justices-take-up-bump-stock-dispute/ 

13. Kalvis Golde, “Government seeks review of federal gun regulations on domestic abusers, bump stocks,” SCOTUSblog, November 3, 2023, https://www.scotusblog.com/2023/04/government-seeks-review-of-federal-gun-regulations-on-domestic-abusers-bump-stocks/ 

14. Amy Howe, “Justices take up bump stock dispute,” SCOTUSblog, November 3, 2023, https://www.scotusblog.com/2023/11/justices-take-up-bump-stock-dispute/ 

15. Amy Howe, “Justices take up bump stock dispute,” SCOTUSblog, November 3, 2023, https://www.scotusblog.com/2023/11/justices-take-up-bump-stock-dispute/ 

16. Amy Howe, “Justices take up bump stock dispute,” SCOTUSblog, November 3, 2023, https://www.scotusblog.com/2023/11/justices-take-up-bump-stock-dispute/ 

17. Kalvis Golde, “Government seeks review of federal gun regulations on domestic abusers, bump stocks,” SCOTUSblog, November 3, 2023, https://www.scotusblog.com/2023/04/government-seeks-review-of-federal-gun-regulations-on-domestic-abusers-bump-stocks/ 

18. Amy Howe, “Justices take up bump stock dispute,” SCOTUSblog, November 3, 2023, https://www.scotusblog.com/2023/11/justices-take-up-bump-stock-dispute/ 

19. Ariane de Vogue, “Supreme Court to consider challenge to federal bump stock ban,” CNN, November 3, 2023, https://www.cnn.com/2023/11/03/politics/supreme-court-bump-stocks/index.html 

20. Ian Millhiser, “The Supreme Court will hear a case that could effectively legalize automatic weapons,” Vox, November 3, 2023, https://www.vox.com/scotus/2023/11/3/23943399/supreme-court-automatic-weapons-bump-stocks-gun-policy 

21. Ian Millhiser, “The Supreme Court will hear a case that could effectively legalize automatic weapons,” Vox, November 3, 2023, https://www.vox.com/scotus/2023/11/3/23943399/supreme-court-automatic-weapons-bump-stocks-gun-policy

Bibliography:

Barlow, Rich. “Your Bacon Shouldn't Be the Product of Animal Cruelty, Says Animal Rights Activist and LAW Alum.” Boston University, December 1, 2022. https://www.bu.edu/articles/2022/supreme-court-case-banning-inhumane-confinement/. 

“Bump Stocks,” Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/rules-and-regulations/bump-stocks 

Calamur, Krishnadev. “Supreme Court to review Trump-era gun rule banning bump stocks,” NPR, November 3, 2023, https://www.npr.org/2023/11/03/1210516804/supreme-court-bump-stocks  

De Vogue, Ariane. “Supreme Court to consider challenge to federal bump stock ban,” CNN, November 3, 2023, https://www.cnn.com/2023/11/03/politics/supreme-court-bump-stocks/index.html 

“Garland V. Cargil,” Oyez, https://www.oyez.org/cases/2023/22-976 

Golde, Kalvis. “Government seeks review of federal gun regulations on domestic abusers, bump stocks,” SCOTUSblog, November 3, 2023, https://www.scotusblog.com/2023/04/government-seeks-review-of-federal-gun-regulations-on-domestic-abusers-bump-stocks/ 

Howe, Amy. “Justices take up bump stock dispute,” SCOTUSblog, November 3, 2023, https://www.scotusblog.com/2023/11/justices-take-up-bump-stock-dispute/ 

Hurley, Lawrence. “Supreme Court to review Trump-era ban on gun ‘bump stocks.’” NBC News, November 3, 2023, https://www.nbcnews.com/politics/supreme-court/supreme-court-review-trump-era-ban-gun-bump-stocks-rcna121466 

“18 U.S. Code § 922 - Unlawful acts,” Legal Information Institute, https://www.law.cornell.edu/uscode/text/18/922 

Millhiser, Ian.  “The Supreme Court will hear a case that could effectively legalize automatic weapons,” Vox, November 3, 2023, https://www.vox.com/scotus/2023/11/3/23943399/supreme-court-automatic-weapons-bump-stocks-gun-policy 

Navigating the Push for D.C. Statehood

By: Alexandra Henriquez

Edited by: Connor Tooman and Jared Fischer

The rallying cry “No Taxation Without Representation” resoundingly marked the inception of the United States, encapsulating the core principle that ignited the drive for independence. It now, quite literally, roams the streets of the nation’s capital, Washington D.C. Since November of 2000, the D.C. license plate has projected this same phrase coined during the nation’s strive for independence. [1] For over two centuries, the United States has grappled with a stark contradiction to this foundational belief. Despite living in the heart of the nation and paying more federal taxes than individuals from many other states, Washington, D.C. residents lack full representation in Congress. Throughout the past few decades, there have been evolving movements advocating for statehood for the United States’ capital. Amid ongoing efforts for reform, the lingering question remains: will tangible change ever materialize? 

Clause 17 of Article 1 Section 8 of the Constitution, also known as the “Enclave Clause” or “District Clause,” established the nation’s capital as a district “not exceeding ten miles square” independent of state control and completely under congressional jurisdiction. [2] The framers sought to ensure that state jurisdiction could not interfere with the security and functioning of the national government. The concern arose mainly from a 1783 incident under the Articles of Confederation when the Continental Congress in Philadelphia was threatened by a group of soldiers demanding monetary compensation for service. The state government refused to provide protection to Congress. [3] As a result, in July of 1790, Congress passed the Residence Act, which established Philadelphia as the temporary capital for a period of ten years. It also authorized the later creation of a new federal district along the Potomac River, which would be independent of any state and serve as the permanent location of the U.S. government. [4] This district later became known as Washington, D.C. However, the Residence Act failed to account for the representation of individuals residing in the district. Under the provisions of the United States Constitution, Congressional representation and Electoral College votes are apportioned “among the several States according to their respective numbers.” [5] This allocation does not extend to the District of Columbia, which is not recognized as a state. Residents of the District of Columbia, formerly constituents of Maryland and Virginia, were deprived of the voting and representation rights they had previously possessed. 

Residents of Washington, D.C. have long sought the same voting rights as state citizens. The movement for equal representation began alongside the civil rights movement. [6] In 1961, Congress ratified the 23rd Amendment, granting “the citizens of the District of Columbia with appropriate rights of voting in national elections for President and Vice President of the United States.” [7] Regarding congressional representation, the 1970 District of Columbia Delegate Act enabled the election of a non-voting “shadow” House representative, and, starting in 1990, D.C. began electing two shadow senators. [8] The 1973 Home Rule Act allowed a locally elected mayor and city council. [9] However, Congress must still approve all D.C. legislation, including budgets, within a specified review period. In 1979, a pivotal moment in American political history unfolded with the passage of the D.C. Voting Rights Amendment in both the House and Senate. The ambitious amendment, aimed at granting statehood to the District of Columbia, achieved a remarkable feat by securing a two-thirds majority in both chambers of Congress. Despite this significant congressional support, the amendment encountered a major hurdle: ratification by at least 38 states. It fell considerably short, with only 16 states voting in favor. [10] In 2020 and again in 2021, the House passed H.R. 51, the Washington, D.C. Admission Act, similarly aimed at granting statehood to the district, but this time via legislative change rather than a constitutional amendment. The bill, however, died in the Senate both times. 

In 1790, when the District was first established, only an estimated 3,000 citizens lived in the area. [11] As of July 1, 2022, the U.S. Census Bureau estimated the Washington D.C. population to be 671,803. [12] Washington, D.C., now has a larger population than it did in 1790, one significantly higher than the states of Vermont and Wyoming. Nonetheless, it is still denied representation in Congress. Moreover, this lack of political representation for the District of Columbia is argued to be one of the ways our political system underrepresents voters of color. While most states have a majority white population, Washington D.C. has a majority African American population. In 1970, 71.1% of the D.C. population was Black. [13] Most recently, according to the 2022 Census, the District of Columbia is still about 45% African-American, meaning Black Americans still comprise a considerably higher proportion of its population than other states. [14] Thus, proponents of D.C. statehood argue that the lack of representation not only perpetuates a significant issue of disenfranchisement and civil rights but also one that holds the nation back from moving forward in racial equality.

D.C. statehood proponents firmly argue that Article IV, Section 3 of the Constitution provides that Congress may admit new states to the Union. [15] However, the question in this context is not whether Congress can admit a new state but whether they can admit the nation’s capital as a new state. Therefore, while incorporating a new state into the Union is not inherently unconstitutional, transforming the District into a full state represents a significant shift of power, a move that directly challenges the explicit constitutional authority vested solely in Congress. In response to this constitutional concern, advocates for D.C. statehood often cite a certain historical precedent to support their case: the retrocession in 1846 when Congress returned the portion of the District originally ceded by Virginia back to the state. Statehood proponents see this act as an instance when Congress demonstrated flexibility in altering the composition of the District. However, there is a critical distinction to be made between partial retrocession and full statehood. The retrocession of land to Virginia in the 19th century did not encompass granting the remaining area of the District the full rights and responsibilities of statehood. Instead, it targeted the adjustment of boundaries, a move that does not directly contradict any constitutional provision. Statehood’s second potential constitutional problem is Article IV, Section 3, which provides that no new state may be created out of the territory of an existing state without that state’s permission. [16] Under this clause, it is thought by some that Maryland must consent before the District could be granted statehood. While it ceded its territory to the federal government for use of the new district, it never explicitly consented to its territory being used for a new state. However, this constitutional provision is less likely to cause issues to the push for statehood since Maryland has, in recent years, shown a more favorable stance towards the idea of D.C. becoming a state. [17] Moreover, one could argue that the territory was originally ceded for creating a federal district, not necessarily with the condition of permanence as a non-state entity, nullifying these concerns. Pursuing this line of reasoning, Maryland’s approval for statehood might not be a strict constitutional necessity. The 23rd Amendment also raises a conflict in the case that the District was to become a state via congressional legislation. [18] According to Article II, Section I of the Constitution, electors are given in proportion to their congressional representation. [19] Yet according to the 23rd Amendment, D.C.’s electoral votes should equal “in no event more than the least populous State.” [20] Addressing these complex issues that arise from statehood requires a constitutional amendment, as legislation alone would not suffice. 

The question, therefore, stands: Is there a way to salvage the need for effective and efficient federalism without infringing on the representation rights of U.S. citizens? The concept of federalism, ingrained in the United State’s founding, aims to ensure that neither the federal government nor the state governments hold complete power, maintaining a check-and-balance system. The challenge with D.C. statehood lies in balancing the unique status of the nation’s capital and its contribution to federalism with the constitutional and democratic principles that guide the country. Statehood would inherently retract a significant player in the model of federalism, allowing for state laws to influence federal processes. Politically, achieving statehood is similarly complex. While Democrats are generally supportive of D.C. statehood as is, many Republicans who have voiced their support for fair representation propose full retrocession of the District to Maryland, rejecting statehood since it is seen as a threat to their hope for control over the Senate. However, this solution is far from ideal since it fails to solve the issue of federalism, which established the District in the first place. Other potential solutions could involve a constitutional amendment that provides a creative reconfiguration of the District’s boundaries or governance. A partial retrocession of this kind could reduce the impact of lack of representation by adjusting D.C.'s boundaries, leaving a smaller federal district. Alternatively, a model of cooperative federalism could offer a blend of state and federal governance. This approach would involve shared responsibilities and cooperation between the federal government and the District or new state, maintaining federal jurisdiction on protective principles surrounding federal government procedures and protections. But is this form of compromise even possible? It would necessitate innovative legislative design and a willingness to redefine long-standing governance traditions.

Notes:

1.  David Montgomery, “Mayor Signs Order for DC Democracy Plates,” The Washington Post, August 17, 2000. https://www.washingtonpost.com/archive/local/2000/08/17/mayor-signs-order-for-dc-democracy-plates/33865026-42dd-4756-8076-f5b1d2280a9f/. 

2. U.S. Constitution, Art. I, § 8, Cl. 17. 

3. William Tindall, Origin and Government of the District of Columbia. Washington Government Printing Office, 1908, 6, https://www.loc.gov/item/08035146/. 

4. “An Act for Establishing the Temporary and Permanent Seat of the Government of the United States”, Ch. 28, 1 Stat. 130, 1790. 

5. U.S. Const. amend. XIV, § 2, cl. 1.

6. Maya Efrati, “DC Statehood Explained,” Brennan Center for Justice, 18 Mar. 2022, www.brennancenter.org/our-work/research-reports/dc-statehood-explained. 

7. U.S. Const. Amend. XXIII. 

8. “District of Columbia Delegate Act”, Pub. L. No. 91-405, Vol. 84 Stat. 845, 1970.

9. “District of Columbia Self-Government and Governmental Reorganization Act”, Pub. L. No. 93-198, 87 Stat. 774, 1973. 

10. “Washington DC Voting Rights Amendment,” Legal Information Institute, Accessed 4 Dec. 2023,  www.law.cornell.edu/wex/washington_dc_voting_rights_amendment. 

11. “Overview of the State - District of Columbia - 2020,” Health Resources & Services Administration, U.S. Department of Health and Human Services, https://mchb.tvisdata.hrsa.gov/Narratives/Overview/258318d0-8dbe-46fd-9a77-385b6753e1c7. 

12. “U.S. Census Bureau QuickFacts: District of Columbia,” United States Census Bureau, U.S. Department of Commerce, ​​https://www.census.gov/quickfacts/fact/table/DC/PST045223. 

13. Joy Phillips, “District of Columbia Black Population Demographic Characteristics,” Government of the District of Columbia, D.C. Office of Planning State Data Center, February 2012, https://planning.dc.gov/sites/default/files/dc/sites/op/publication/attachments/District%2520of%2520Columbia%2520Black%2520Population%2520Demographic%2520Characteristics.pdf. 

14. “U.S. Census Bureau QuickFacts: District of Columbia,” United States Census Bureau, U.S. Department of Commerce, https://www.census.gov/quickfacts/fact/table/DC/PST045223. 

15. U.S. Const. Art. IV, § 3. 

16. U.S. Const. Art. IV, § 3. 

17. Josh Kurtz, “Marylanders in Congress Aiding D.C. Statehood Effort,” Maryland Matters, 31 May 2019, www.marylandmatters.org/2019/05/31/marylanders-in-congress-aiding-dc-statehood-effort/. 

18.  U.S. Const. Amend. XXIII. 

19. U.S. Const. Art. II, § 1. 

20. U.S. Const. Amend. XXIII. 

Bibliography:

“An Act for Establishing the Temporary and Permanent Seat of the Government of the United States.” Ch. 28, 1 Stat. 130 (1790). 

“District of Columbia Delegate Act.” Pub. L. No. 91-405, Vol. 84 Stat. 845 (1970). 

“District of Columbia Self-Government and Governmental Reorganization Act.” Pub. L. No. 93- 198, 87 Stat. 774 (1973). 

Efrati, Maya. “DC Statehood Explained.” Brennan Center for Justice, (March 2022), www.brennancenter.org/our-work/research-reports/dc-statehood-explained.  

Kurtz, Josh. “Marylanders in Congress Aiding D.C. Statehood Effort.” Maryland Matters, (May 2019), www.marylandmatters.org/2019/05/31/marylanders-in-congress-aiding-d-cstatehood-effort/. 

Montgomery, David. “Mayor Signs Order for DC Democracy Plates.” The Washington Post, (August 2000), https://www.washingtonpost.com/archive/local/2000/08/17/mayor-signs-order-for-dc-democracy-plates/33865026-42dd-4756-8076-f5b1d2280a9f/. 

 “Overview of the State - District of Columbia - 2020.” Health Resources & Services Administration, U.S. Department of Health and Human Services, https://mchb.tvisdata.hrsa.gov/Narratives/Overview/258318d0-8dbe-46fd-9a77-385b6753e1c7.

Tindall, William. The Origin and Government of the District of Columbia. Washington Government Printing Office, (1908), https://www.loc.gov/item/08035146/. 

“U.S. Census Bureau QuickFacts: District of Columbia.” United States Census Bureau, U.S. Department of Commerce. https://www.census.gov/quickfacts/fact/table/DC/PST045223. 

U.S. Constitution, Art. I, § 8, Cl. 17. 

U.S. Const. Art. II, § 1.

U.S. Const. Art. IV, § 3. 

U.S. Const. Amend. XIV, § 2, cl. 1.

U.S. Const. Amend. XXIII. 

Phillips, Joy. “District of Columbia Black Population Demographic Characteristics,” Government of the District of Columbia, D.C. Office of Planning State Data Center, (February 2012), https://planning.dc.gov/sites/default/files/dc/sites/op/publication/attachments/District%2520of%2520Columbia%2520Black%2520Population%2520Demographic%2520Characteristics.pdf. 

 “Washington DC Voting Rights Amendment.” Legal Information Institute, www.law.cornell.edu/wex/washington_dc_voting_rights_amendment. 

U.S. v. Google: The Biggest Antitrust Lawsuit Since ‘98

By: Ana Cucalon

Edited by: Anna Dellit and Colin Crawford

The United States Justice Department has accused Google of abusing its power to exclude competitors from the market and form an illegal monopoly. The case is a jarring move against modern-day tech giants and is one of many recent efforts by the federal government to reign in Silicon Valley’s biggest conglomerates. While it is not illegal in the United States to have a monopoly, federal prosecutors worry that Google isn’t allowing competition to present itself, let alone overpower it in the market, and is therefore illegally excluding its competitors. [1] The case mainly focuses on sections 1 and 2 of the 1890 Sherman Act, which states:

Sec. 1. Every contract, combination in the form of trust or other- wise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, at the discretion of the court.

Sec. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof; shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.[2]

In the lawsuit, the U.S. government details when and how through its expansion Google violated this Antitrust Act, according to federal prosecutors, and leaves Google to defend its actions and intentions from as early as the year 2000, when Google launched Google Ads. [3]

Antitrust and antimonopoly laws usually revolve around monetary issues, specifically how monopolies drive up prices and hurt consumers. In the new era of digital technology, Google is free and accessible to consumers despite its growing popularity and outstanding worth. Federal prosecutors argue that while Google’s negative impact on consumers can’t necessarily be quantified by price, Google’s monopoly still hurts consumers by illegally excluding its competition. Furthermore, Google’s obstruction of the competition incapacitates other businesses from succeeding in the search engine market, therefore hurting consumers by forcing them to use a product that is not necessarily the best one. For example, Google exhaustively collects user data to generate ads and personalized content. The government claims that Google’s domination over its market could impede consumers from choosing a search engine that collects less data on them. They claim that by taking out the consumer’s choice to pick a search engine, Google is violating the core of the antitrust laws. [4] Google’s domination over the market makes it impossible for other products to surface, products that could be better for consumers or at least incentivize other companies to provide better services. 

Most importantly, federal prosecutors argue that Google’s billion-dollar agreements with electronic companies such as Apple have excluded its competitors from the market and illegally monopolized the search engine business. Their claim is proved if by doing so, the agreements have hurt consumers, competitors, and the general innovation of the industry. For example, Google has a 1 billion dollar agreement with Apple to make Google the default search engine for all Apple products. When a user goes to look something up on Safari, Apple’s browser, their device takes them directly to Google. [5] Google has similar agreements with Mozzila, Firefox, and other wireless providers. It also has agreements with Android companies to download the Chrome app on their devices by default. Federal prosecutors argue that Google has used these contracts to make it inaccessible for competition to gain access to the wider public market. They believe that since Google has so many users, it has much more data than any of its competitors to make its search engine better, leading to more users continuing to use it. This cycle is then illegally accelerated by the above agreements. This is because Google is now at risk of owing its success to these contracts instead of its organic consumer pool, which would make the contracts illegal. To conclude, the Justice Department argues that the agreements exponentially increase Google’s size and domination, making it more valuable and further excluding its competition. [6]

Google’s defense centers on three main points. First, its popularity among consumers. It argues that people who use Google choose Google because they like it, not because Google uses agreements to block out competition. It claims its dominance is solely based on the continued success of its product, highlighting how companies choose to partner with it because consumers prefer it. Second, the agreements they hold with other tech companies are not as exclusive as the government depicts them. Google says that users can easily change their default browser from Google to another search engine with a few clicks and that the purpose of the agreements is to create a seamless experience for those who choose Google. Lastly, it argues that it does not dominate the search engine market nearly as much as the government depicts. The Justice Department states that Google has a 90% market share when you define its competition as “general search” (pop in any question and get an answer). [7] In contrast, Google says it has less than 90% market share because it competes with many more platforms than just the ones allowing for “general search”. For example, it says it competes with Amazon for searching for products, TikTok and Redditt for less generalized questions, Spotify for music and podcasts, and Chat GPT for academic help. On that account, Google affirms that it is not in dominance of its market or competition, and is therefore not violating antitrust laws as it does not monopolize the search engine market. [8]

After hearing both sides, the judge has to decide three things: is Google a monopoly? If yes, did these agreements violate the Sherman Antitrust Act? What line should be drawn for these powerful companies that own big online platforms? If the Judge rules in favor of the government, Google would likely be asked to change its behavior and would be limited in its ability to engage in agreements such as the one it has with Apple. If the Judge rules for Google, it could send a message to other Silicon Valley companies that the government’s increased pressure on them is not a serious threat. In addition, Washington would receive the message that antitrust laws cannot properly oversee companies based on providing free services.  

Finally, the trial has the potential to shape the future of tech as corporations fight to dominate platforms such as artificial intelligence. As this case progresses, the question remains whether Google and companies like it will continually be placed in a position of advantage to dominate data marketplaces, and how that would impact the new era of the internet. The official case, titled U.S. and Plaintiff States v. Google LLC, can be further tracked and viewed on the Justice Department’s official website.

Notes:

1. The Daily, The New York Times. 2023. “U.S. v. Google.” (The New York Times, September 13, 2023). https://www.nytimes.com/2023/09/11/podcasts/the-daily/google-monopoly-trial.html.

2. National Archives. 2022. “Sherman Anti-Trust Act (1890)” (National Archives, 2022). https://www.archives.gov/milestone-documents/sherman-anti-trust-act.

3. U.S. v. Google LLC, 2023CV00108, Washington, DC, (District Court for the Eastern District of Virginia. 2023).

4. Kerr, Dara. 2023. “The DOJ's antitrust trial against Google over its search dominance begins.” (NPR, September 12, 2023). https://www.npr.org/2023/09/12/1198558372/doj-google-monopoly-antitrust-trial-search-engine.

5. Villasenor, John. 2023. “A primer on some key issues in U.S. v. Google | Brookings.” (Brookings Institution). https://www.brookings.edu/articles/a-primer-on-some-key-issues-in-u-s-v-google/.

6. (The Daily, The New York Times 2023)

7. (The Daily, The New York Times 2023)

8. (The Daily, The New York Times 2023)

Bibliography:

The Daily, The New York Times. 2023. “U.S. v. Google.” The New York Times, September 13, 2023.https://www.nytimes.com/2023/09/11/podcasts/the-daily/google-monopoly-trial.html.

Kang, Cecilia. 2023. “In Its First Monopoly Trial of Modern Internet Era, U.S. Sets Sights on Google.” The New York Times, September 12, 2023. https://www.nytimes.com/2023/09/06/technology/modern-internet-first-monopoly-trial-us-google-dominance.html.

Kerr, Dara. 2023. “The DOJ's antitrust trial against Google over its search dominance begins.” NPR, September 12, 2023. https://www.npr.org/2023/09/12/1198558372/doj-google-monopoly-antitrust-trial-search-Engine.

“Sherman Anti-Trust Act (1890) | National Archives.” 2022. National Archives |. https://www.archives.gov/milestone-documents/sherman-anti-trust-act.

U.S. Department of Justice. 2023. “Justice Department Sues Google for Monopolizing Digital Advertising Technologies.” Department of Justice, January  24, 2023. https://www.justice.gov/opa/pr/justice-department-sues-google-monopolizing-digital-advertising-technologies.

U.S. v. Google LLC, 2023CV00108, Washington, DC, (District Court for the Eastern District of Virginia. 2023).

Villasenor, John. 2023. “A primer on some key issues in U.S. v. Google | Brookings.” Brookings Institution. https://www.brookings.edu/articles/a-primer-on-some-key-issues-in-u-s-v-google/.

Can Government Officials Violate the First Amendment through Social Media?

By: Maddy Goldman

Edited by: isabella Canales and Grace Wu

Americans treasure their First Amendment right to free speech. The freedom to protest, act, speak, and dress in any manner has driven politics and social reform throughout history. However, with this immense amount of freedom comes an immense amount of debate. Should we place limitations on free speech? Who gets to set and enact these boundaries? The government? The people? These questions demonstrate a gray area in the First Amendment, where, in certain instances, it can become unclear how to deal with free speech or the potential restriction of it. 

However, another recent development has sparked a new debate on the question of free speech: the internet. With the creation of the internet and social media platforms like Facebook and Twitter, the gray area of the First Amendment grows. Does everyone have the right to publicly post their opinions online? Is there such a thing as a “private” account? What is the role of the government concerning free speech and social media? This last question has been brought to the forefront of the legal scene in recent times. 

Government-specific questions regarding free speech and social media have risen rapidly after various officials were sued for violating the First Amendment via their actions on Twitter and Facebook. Should officials post updates and promote themselves through it? Are they speaking as the government or their private self when they post, comment, or converse on social media? Does this difference matter? Can officials block their critics? Or is that an infringement of the First Amendment? 

Two exemplary cases that demonstrate the confusing connection between free speech, the government, the people, and social media are O'Connor-Ratcliff v. Garnier and Lindke v. Freed. In both cases, the plaintiff sued a government official for violating their First Amendment right to free speech. [1] Many of the aforementioned questions were brought up, and many were left unanswered. Ultimately, it is unclear how best to handle the issues which arise when social media, the government, and the question of free speech are intertwined. As demonstrated by the decisions and discussions surrounding O'Connor-Ratcliff v. Garnier and Lindke v. Freed, people are divided about whether an official’s social media account counts as an extension of their governmental role, or if it is simply a personal page unrelated to the government. [2]

O'Connor-Ratcliff v. Garnier occurred in October 2017 when Michelle O’Connor-Ratcliff and T.J. Zane blocked two of their main critics, Christopher and Kimberly Garnier, on social media. [3] O’Connor-Ratcliff and Zane were both trustees for the Poway Unified School District, which is classified as a governmental/official position. [4] They originally started their social media pages as a way to promote their campaigns; however, after being elected to the Board of Trustees, they transitioned their accounts to official ones. [5] They implemented new official titles and began to post news, business, and updates pertaining to the Poway Unified School District. [6] Parents such as Christopher and Kimberly Garnier, however, began voicing their concerns and criticisms regarding their children's schools in the replies of the trustees' Facebook and Twitter posts. [7] As the critique's intensity and insistence increased, Ratcliff and Zane began to first hide, and then delete negative comments on posts. [8] This meant the Garniers’ critiquing comments could no longer be seen or attached to the trustees’ posts. This also meant all future critiques from the Garniers were stopped. Consequently, the Garniers sued the trustees, claiming the trustees violated their First Amendment right to free speech. [9] The court decided that public officials could not, due to the First Amendment, block individuals on their social media accounts. [10]

Another similar incident occurred in October 2023, in Lindke v. Freed. Similarly to Ratcliff and Zane, James Freed originally created a private account, where he posted for his friends and family. [11] However, as time passed he amassed over 5,000 followers, forcing him to convert his account to a public profile. [12] He was soon elected as city manager for Port Huron, Michigan, subsequently changing his profile to show his official name and title. [13] On this page, Freed posted both personal and professional updates, the latter of which included news on topics such as city policies. [14, 15] People, such as Kevin Lindke, also began to post critical thoughts in regard to Freed’s various policies. [16]He was specifically upset about Freed’s policies surrounding COVID-19. [17] Freed began to delete or hide Lindke’s critical comments. [18] Ultimately, Freed blocked Lindke from his social media pages. [19] Thus, similarly to O'Connor-Ratcliff v. Garnier, the plaintiff, Lindke, sued Freed, claiming his First Amendment rights to free speech were being violated. [20] The lower and Sixth Circuit courts dismissed Lindke’s Case. However, Lindke's petition for certiorari was granted by the Supreme Court, and the case will be viewed again on April 24, 2023. [21]

In both of these cases, the plaintiffs argued that the official was acting in the name of the government, and thus was restricting free speech by preventing them from voicing their opinions on a public platform. Lindke and Garner both sued under 42 U.S.C. § 1983, which states: 

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. [22, 23] 

Despite arguing similar concepts, neither of these cases have led to a clear conclusion on what role the government and social media hold in free speech and vice versa. The main issue regarding this topic is “whether government officials are even acting in their government capacities–that is, taking ‘state action’–when they curate their social media profiles.” [24] This question divided and puzzled the Court. If the officials were acting privately, then their act of blocking critics should not violate the First Amendment. However, the same is not true if they were acting as a governmental authority. 

Using the above logic, in O'Connor-Ratcliff v. Garnier, the trustees were found to have violated the First Amendment since the trustees were deemed to be acting in the name of the government. [25] Meanwhile, in Lindke v. Freed, the court granted summary judgment to Freed, meaning Freed’s Facebook page did not count as governmental or state action. [26] Hence, according to the court, he did not violate the First Amendment. The different ruling in these two cases clearly outlines the gray area mentioned earlier. 

 Thus, many questions remain unanswered. Even if it is decided that an official blocking a critic on social media violates the First Amendment only if the official is acting in the name of the government, it is still unclear how to determine for whom the official is acting. Do we base it on their account’s name? In both O'Connor-Ratcliff v. Garnier and Lindke v. Freed, the officials updated their account names to their official titles. Should we take into account the content posted? Freed had more personal posts, while O’Connor-Ratcliff had more political and official posts. [26] Could this difference in intent of the page be the reason one official was deemed to have violated the law, while the other was not? Even after a thorough examination of two key cases, the realm of free speech on social media remains largely debated and complex. 

Notes:

1.  Howe, Amy. “Justices Weigh Rules for When Public Officials Can Block Critics on Social Media.” SCOTUSblog, November 3, 2023. https://www.scotusblog.com/2023/10/justices-weigh-rules-for-when-public-officials-can-block-critics-on-social-media/.  

2. Howe, Amy. “Justices Weigh Rules for When Public Officials Can Block Critics on Social Media.” SCOTUSblog, November 3, 2023. https://www.scotusblog.com/2023/10/justices-weigh-rules-for-when-public-officials-can-block-critics-on-social-media/.  

3. "O'Connor-Ratcliff v. Garnier." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-324.

4. "O'Connor-Ratcliff v. Garnier." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-324.

5. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/.  

6. Howe, Amy. “Justices Weigh Rules for When Public Officials Can Block Critics on Social Media.” SCOTUSblog, November 3, 2023. https://www.scotusblog.com/2023/10/justices-weigh-rules-for-when-public-officials-can-block-critics-on-social-media/.  

7. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

8. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

9. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

10.  Howe, Amy. “Justices Consider Liability for Officials Who Block Critics on Social Media.” SCOTUSblog, November 1, 2023, https://www.scotusblog.com/2023/10/justices-consider-liability-for-officials-who-block-critics-on-social-media/.  

11.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611.  

12.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

13.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

14.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

15. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

16. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

17. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

18.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

19.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

20. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

21. “Lindke v. Freed.” Legal Information Institute. Accessed February 13, 2024, https://www.law.cornell.edu/supct/cert/22-611

22.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

23.  “42 U.S. Code § 1983 - Civil Action for Deprivation of Rights.” Legal Information Institute. Accessed November 16, 2023, https://www.law.cornell.edu/uscode/text/42/1983.  

24.  “O’Connor-Ratcliff v. Garnier and Lindke v. Freed.” American Civil Liberties Union, September 19, 2023, https://www.aclu.org/cases/oconnor-ratcliff-v-garnier-and-lindke-v-freed. 

25. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

26.  No. 22-611 I T Supreme Court of the United States. Accessed November 16, 2023, https://www.supremecourt.gov/DocketPDF/22/22-611/270233/20230630161427317_Amicus%20-%20ASU%20Law%20-%20Lindke%20v%20Freed%20-%20No%2022-611.pdf. 

27. Howe, Amy. “Justices Weigh Rules for When Public Officials Can Block Critics on Social Media.” SCOTUSblog, November 3, 2023. https://www.scotusblog.com/2023/10/justices-weigh-rules-for-when-public-officials-can-block-critics-on-social-media/. 

Bibliography:

“42 U.S. Code § 1983 - Civil Action for Deprivation of Rights.” Legal Information Institute. Accessed November 16, 2023. https://www.law.cornell.edu/uscode/text/42/1983. 

“Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023. https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

Golde, Kalvis. “Lindke v. Freed.” SCOTUSblog. Accessed November 16, 2023. https://www.scotusblog.com/case-files/cases/lindke-v-freed/. 

Golde, Kalvis. “O’Connor-Ratcliff V. Garnier.” SCOTUSblog. Accessed November 16, 2023. https://www.scotusblog.com/case-files/cases/oconnor-ratcliff-v-garnier/. 

Howe, Amy. “Justices Consider Liability for Officials Who Block Critics on Social Media.” SCOTUSblog, November 1, 2023. https://www.scotusblog.com/2023/10/justices-consider-liability-for-officials-who-block-critics-on-social-media/. 

Howe, Amy. “Justices Weigh Rules for When Public Officials Can Block Critics on Social Media.” SCOTUSblog, November 3, 2023. https://www.scotusblog.com/2023/10/justices-weigh-rules-for-when-public-officials-can-block-critics-on-social-media/. 

Jennifer Stisa Granick, Vera Eidelman. “The Supreme Court Will Set an Important Precedent for Free Speech Online: ACLU.” American Civil Liberties Union, October 19, 2023. https://www.aclu.org/news/privacy-technology/the-supreme-court-will-set-an-important-precedent-for-free-speech-online. 

"Lindke v. Freed." Oyez. Accessed November 16, 2023. https://www.oyez.org/cases/2023/22-611  

“Lindke v. Freed.” Legal Information Institute. Accessed February 13, 2024, https://www.law.cornell.edu/supct/cert/22-611

No. 22-611 I T Supreme Court of the United States. Accessed November 16, 2023. https://www.supremecourt.gov/DocketPDF/22/22-611/270233/20230630161427317_Amicus%20-%20ASU%20Law%20-%20Lindke%20v%20Freed%20-%20No%2022-611.pdf. 

“O’Connor-Ratcliff v. Garnier and Lindke v. Freed.” American Civil Liberties Union, September 19, 2023. https://www.aclu.org/cases/oconnor-ratcliff-v-garnier-and-lindke-v-freed. 

"O'Connor-Ratcliff v. Garnier." Oyez. Accessed November 16, 2023. https://www.oyez.org/cases/2023/22-324.