Caught on Tape: Establishing the Right of Third-Party Bystanders to Secretly Record the Police

Throughout the thirty years between the televised beating of Rodney King and the videotaped murder of George Floyd, recordings of police misconduct have given a face to the perpetrators and victims of police brutality. Given the accessibility of these recordings today over social media, anyone with a smartphone can demand the nation’s attention on one of racial discrimination’s cruelest manifestations.

In spite of their utility to social movements, though, recordings of the police have occupied a legally nebulous space. Federal courts have consistently affirmed the First Amendment’s protection of individuals’ rights to publicly record the police, but they have been unclear as to whether that protection extends to secret recordings. Federal and state wiretap laws can be interpreted to make secret recordings unlawful, and courts have—until late—largely avoided deciding the question.

In December 2020, however, the First Circuit expressly held that individuals have a right to secretly record the police. Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020). In its decision, the court affirmed the value of surreptitious recordings and found that the state’s ban on producing such recordings violates individuals’ First Amendment rights. This case comment argues that courts across the country should follow the First Circuit’s model. We maintain that the production of secret recordings serves a critical First Amendment interest by providing social movements with a means to shed light on misconduct and hold power to account. Moreover, we contend that the established constitutionality of surreptitious recordings lends certainty, and therefore protection, to would-be recorders that is unavailable through other alternatives. Finally, we posit that the conventional rationales for circumscribing the right to record the police—such as preserving individuals’ right to privacy and securing public safety—cannot justify a constitutionally meaningful distinction between secret and open recordings, as the First Circuit has affirmed.

Introduction

On May 25, 2020, Darnella Frazier did an ordinary thing of extraordinary consequence—she pressed “record.”1.Joshua Nevett, George Floyd: The Personal Cost of Filming Police Brutality, BBC News (June 11, 2020), https://www.bbc.com/news/world-us-canada-52942519 [https://perma.cc/‌VC7P-C3RU].Show More Her video recording of George Floyd’s murder spread like wildfire across news and social media platforms, inspiring longstanding activists and newcomers alike to speak out against racial discrimination and police brutality.2.Audra D. S. Burch & John Eligon, Bystander Videos of George Floyd and Others Are Policing the Police, N.Y. Times (Mar. 5, 2021), https://www.nytimes.com/2020/05/26/us/‌george-floyd-minneapolis-police.html [https://perma.cc/4G2N-DVA5]. See also Eliot C. McLaughlin, How George Floyd’s Death Ignited a Racial Reckoning that Shows No Signs of Slowing Down, CNN (Aug. 9, 2020), https://www.cnn.com/2020/08/09/us/george-floyd-protests-different-why/index.html [https://perma.cc/D7UC-Y6AR] (highlighting that the protests following George Floyd’s death were unique in that they saw an influx of “myriad White faces”).Show More One study estimates that the June protests brought out as many as 26 million people to the streets, exceeding the crowds of any other single social movement in American history.3.Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Social Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/‌interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/6XAT-9MJE]. The 2017 Women’s March previously held this title, which saw crowds of 3 to 5 million in marches nationwide. Id.; McLaughlin, supranote 2.Show More By leveraging the ubiquity of smart phones and the broad reach of social media networks, Darnella Frazier reaffirmed that civilian bystanders like her can play a pivotal role in the public square and shine a light on police misconduct that might otherwise go unnoticed. She showed that, to paraphrase Scott Gant, we can all be journalists now.4.Scott Gant, We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age 6 (2007).Show More

The scope of one’s right to record the police, however, has remained somewhat unclear in federal courts. Recent developments in case law have emphasized the important First Amendment interests inherent to the production of these recordings. Federal appellate courts across the country have consistently recognized the existence of a valid First Amendment right in recording the police in public spaces.5.See Fields v. City of Philadelphia, 862 F.3d 353, 355–56 (3d Cir. 2017); Turner v. Driver, 848 F.3d 678, 689 (5th Cir. 2017); ACLU of Ill. v. Alvarez, 679 F.3d 583, 595–600, 608 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).Show More However, these decisions have not defined the scope of this right, particularly so in the context of secret recordings. Some have argued that the secret recording of police officers violates state wiretap statutes and that those responsible should be criminally sanctioned.6.SeeProject Veritas Action Fund v. Rollins, 982 F.3d 813, 819–20 (1st Cir. 2020).Show More While this theory has yet to be widely considered by federal courts, there is reason to believe they may find it persuasive.7.See, e.g., Alvarez, 679 F.3d at 606–07, 607 n.13 (“The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.”).Show More

In December 2020, however, the First Circuit concluded in Project Veritas Action Fund v. Rollins that a state may not explicitly proscribe surreptitious recordings of the police in public spaces without violating the First Amendment.8.982 F.3d at 833.Show More The case concerned a Massachusetts statute9.Mass. Gen. Laws ch. 272, § 99 (2018) (‘‘Section 99’’).Show More that prohibits the secret recording of interactions between civilians and public officials.10 10.Project Veritas, a far-right non-profit organization whose methods have sparked controversy, brought a separate challenge to Section 99 that, on appeal, was consolidated with K. Eric Martin and Rene Perez’s suit against the Suffolk County District Attorney. Martin and Perez are unaffiliated with Project Veritas. Project Veritas went beyond Martin and Perez’s requested remedy by seeking to enjoin the enforcement of this statute against the secret recording of any public official. Given the broader nature of this claim, this essay will not contest whether or not the rationales justifying the court’s decision in this case should be applied to cover all such figures. However, it is worth noting that the First Circuit rejected Project Veritas’s broader argument on the grounds that it was unripe. See Project Veritas, 982 F.3d at 817.Show More The plaintiffs were civil rights activists who wished to secretly record police-civilian interactions and promote accountability for misconduct.11 11.Brief for Plaintiff-Appellees at 1–2, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez).Show More While both had previously openly recorded the police in the past, they had faced violent reprisals for doing so, and, consequently, argued that their personal safety required their future recordings be made secretly.12 12.Id. at 9–11.Show More Such fears are often warranted; individuals across the country—such as Andre James,13 13.Gary Man Arrested for Recording Police Officer, Now Considering Legal Action, NBC Chicago (Aug. 9, 2020), https://www.nbcchicago.com/news/local/gary-man-arrested-for-recording-police-officer-now-considering-legal-action/2319456/ [https://perma.cc/CB8J-7YBK].Show More Peter Ballance,14 14.Ray Sanchez, Growing Number of Prosecutions for Videotaping the Police, ABC News (July 16, 2010), https://abcnews.go.com/US/TheLaw/videotaping-cops-arrest/story?id=‌11179076 [https://perma.cc/E3NH-N6HJ].Show More Joe Bennett,15 15.Mayor: 3 Charged in Fraudulent Check Scheme; Internal Investigation Launched After Cops Scuffle with Man Videotaping Scene, WHAS-TV (Nov. 29, 2020), https://www.whas11.com/article/news/crime/jeffersontown-officers-arrest-man-videotaping-kentucky-investigation-3-charged-check-fraud/417-a32470a8-5810-4b5e-a095-4e1105c3d331 [https://perma.cc/BJS5-L85D].Show More Sharron Tasha Ford,16 16.Press Release, ACLU, ACLU Sues After Mother Falsely Arrested by Boynton Beach Police Officers (June 25, 2010), https://www.aclu.org/press-releases/aclu-sues-after-mother-falsely-arrested-boynton-beach-police-officers [https://perma.cc/9HU9-LB2K].Show More Gregory Rizer,17 17.Press Release, ACLU Pa., Lawsuit on Behalf of Man Arrested for Recording Police Officer Settles (Oct. 9, 2013), https://www.aclupa.org/en/press-releases/lawsuit-behalf-man-arrested-recording-police-officer-settles [https://perma.cc/7DWJ-545F].Show More and Alfredo Valentin18 18.Man Arrested for Recording Police Awarded $275,000, CBS Sacramento (Nov. 29, 2017), https://sacramento.cbslocal.com/2017/11/29/man-arrested-for-recording-police-awarded-275000/ [https://perma.cc/8YNP-3SV5].Show More—have faced physical and legal reprisals following their recording of the police.

Given the critical nature of this right, we argue that the First Circuit’s holding in Project Veritas should be adopted nationally, both in the context of express prohibitions on secret recordings and its broader application to state wiretap statutes. While the Massachusetts law is unique in that it expressly prohibits secret recordings,19 19.Mass. Gen. Laws ch. 272, § 99(C)(1) (2018).Show More other wiretap statutes across the country do so implicitly.20 20.See infraPart I.A.Show More Under federal and state law, individuals cannot legally record an interaction without the consent of at least one party, so long as the relevant party can legitimately claim a reasonable expectation of privacy in that interaction.21 21.See id.Show More In the context of police-citizen encounters, then, these wiretap statutes imply that bystanders have no legal right to surreptitiously document the public activity of law enforcement without first making their intention to record known. We contend, as the First Circuit affirmed in Project Veritas, that such blanket prohibitions are unconstitutional when applied to surreptitious recordings of police activity.

In this piece, we argue that the First Circuit’s decision is sound, that an individual’s right to secretly record the police in public spaces is protected by the First Amendment, and thus any laws outlawing this activity are unconstitutional as applied. The First Amendment protects the rights of individuals in the United States to record and report matters of interest to the public.22 22.N.Y. Times Co. v. Sullivan, 376 U.S. 254, 281–83 (1964).Show More We argue here that such a right must extend to bystander secret recordings too. This is a novel claim: Scholars have argued in favor of granting First Amendment protection to public23 23.SeeMargot E. Kaminski, Privacy and the Right to Record, 97 B.U. L. Rev. 167, 170–71 (2017); Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 339 (2011); Justin Marceau & Alan K. Chen, Free Speech and Democracy in the Video Age, 116 Colum. L. Rev. 991, 997–99 (2016); Jocelyn Simonson, Copwatching, 104 Calif. L. Rev. 391, 442 (2016); Elizabeth J. Frawley, Note, No Calling Cut: The Political Right to Record Police, 17 U. Pa. J. Const. L. 287, 298 (2014).Show More and secret24 24.See Timothy D. Rodden Jr., Note, Yes, This Phone Records Audio!: The Case for Allowing Surreptitious Citizen Recordings of Public Police Encounters, 47 Suffolk U. L. Rev. 905, 926–27 (2014); Taylor Robertson, Note, Lights, Camera, Arrest: The Stage is Set for a Federal Resolution of a Citizen’s Right to Record the Police in Public, 23 B.U. Pub. Int. L.J. 117, 137–39 (2014).Show More recordings of the police, and against the application of wiretap statutes to recordings from a policy perspective,25 25.See Mary D. Fan, Democratizing Proof: Pooling Public and Police Body-Camera Videos, 96 N.C. L. Rev. 1639, 1667–68 (2018); Rebecca G. Van Tassell, Comment, Walking a Thin Blue Line: Balancing the Citizen’s Right to Record Police Officers Against Officer Privacy, 2013 BYU L. Rev. 183, 184 (2013); Mark Brncik, Note, A Case for Non-Enforcement of Anti-Recording Laws Against Citizen Recorders, 62 Case W. Rsrv. L. Rev. 485, 515 (2011); Lisa A. Skehill, Note, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981, 1011 (2009).Show More but there has not yet been engagement with how the First Circuit’s opinion advances these arguments. We argue that laws implicitly or explicitly prohibiting the secret recording of law enforcement are unconstitutional as-applied, and that the assertions of privacy interests made by those depicted in the recordings, earnest though they may be, cannot justify imposing sanctions on those who seek to illuminate wrongful conduct that could otherwise go without rebuke.

Secret recordings of police misconduct are particularly consequential because, by recording the behavior of police officers in the line of duty without their knowledge, the broader public can gain access to and awareness of conduct that would otherwise go without scrutiny. With the information depicted in these recordings, we as a society can examine potential instances of misconduct and create a mechanism for accountability.26 26.The increased prevalence of citizen recordings shifts the balance of power between police officers and the communities they serve. See Jocelyn Simonson, Beyond Body Cameras: Defending a Robust Right to Record the Police, 104 Geo. L.J. 1559, 1568 (2016) (arguing that changing the video’s perspective transfers power and serves a valuable social purpose).Show More The documentation and public dissemination of evidence of police misconduct by bystanders will enable the public to fully reckon with the harms propagated by those in power and work to hold them to account in ways that extant checks on police misconduct do not.27 27.See, e.g., Dina Mishra, Comment, Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers’ Power, 117 Yale L.J. 1549, 1553–55 (2008) (arguing that citizen recording supplements existing checks against law enforcement abuses, such as the exclusionary rule and Section 1983 actions); Simonson, supra note 23,at 407–21 (explaining how copwatching can serve as a form of deterrence to, data collection of, and constitutional engagement with police misconduct).Show More

In Part I, we provide an overview of the Project Veritas decision and examine the current state of the law regarding a civilian’s right to record the public conduct of police officers. We then, in Part II, explain how the First Amendment interests underpinning a right to openly record should extend to cover the production of secret recordings and contend with opposing views, before briefly concluding.

I. The Right to Record

In Project Veritas Action Fund v. Rollins, the First Circuit reviewed a pre-enforcement action brought by plaintiffs K. Eric Martin and Rene Perez.28 28.982 F.3d 813, 817, 820 (1st Cir. 2020), aff’gMartin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018).Show More the First Circuit reviewed a pre-enforcement action brought by plaintiffs K. Eric Martin and Rene Perez. They had initiated this challenge under Section 1983 to enjoin the Commissioner of the Boston Police and the District Attorney for Suffolk County from enforcing “Section 99,” a Massachusetts statute that prohibits the secret recording of interactions between civilians and public officials.29 29.Mass. Gen. Laws ch. 272, § 99 (2018); Project Veritas, 982 F.3d at 817, 820.Show More The plaintiffs were civil rights activists who had secretly recorded—and wished to continue secretly recording—police-civilian interactions as a mechanism for accountability.30 30.Project Veritas, 982 F.3d at 820. Though they could not predict for the court the particular moments at which they would need to make such recordings, the plaintiffs argued that their prior experience in openly recording police officers suggested that such moments would certainly occur. Brief for Plaintiff-Appellees at 9, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez).Show More However, given the history of active of enforcement of Section 99, Martin and Perez felt they had no safe, legal avenue forward.31 31.Project Veritas, 982 F.3d at 820.Show More

Though brought in a pre-enforcement action, the issue, according to the First Circuit, required no further factual development to address the plaintiffs’ claim on the merits.32 32.Id. at 828–29. It was not necessary for the court’s review that the plaintiffs specify the particular circumstances in which they would produce future secret recording, as their challenge was limited to the production of secret recordings in public spaces, a phrase the First Circuit had itself previously used to “describe the geographic bounds of the citizen’s right to record police officers.” Id.at 827 (citing Glik v. Cunniffe, 655 F.3d 78, 84–85 (1st Cir. 2011); Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014)).Show More Further, the court asserted that the statute’s recent history of enforcement could credibly create a fear of future prosecution in the absence of judicial intervention, and, therefore, was ripe for review.33 33.Id. at 829–30.Show More The court then found for the plaintiffs on the merits, concluding a statute that prohibits the surreptitious recording of police officers’ conduct in public spaces could not comply with the First Amendment.34 34.Id. at 830–31, 836.Show More While this decision was limited to the particular statute at issue, we argue its implications should inform courts across the country of the impermissible application of wiretap statutes against surreptitious citizen recordings of the police.

A. Background on Federal and State Wiretap Laws

In the United States, individuals generally cannot legally record a conversation without the consent of at least one party involved, when those parties have a reasonable expectation of privacy in the interaction. Federal law dictates that a recording is legal only so long as one of the individuals involved in the conversation or encounter agrees to be recorded; in other words, one party must consent to being recorded.35 35.18 U.S.C. § 2511(2)(d) (2018).Show More State laws differ as to which parties must consent in order for a recording to be legal; while most have adopted similar one-party consent laws,36 36.See, e.g., Kan. Stat. Ann. § 21-6101(a)(1) (2019).Show More a minority of states are two-party consent jurisdictions, meaning the permission of both parties is required to record.37 37.Cal. Penal Code § 632 (West 2017); Del. Code Ann. tit. 11, § 1335(a)(4) (2017); Fla. Stat. § 934.03(2)(d) (2019); Haw. Rev. Stat. Ann. § 711-1111(1)(d)–(e) (LexisNexis 2016); Md. Code Ann., Cts. & Jud. Proc. § 10-402(c)(3) (West 2019); Mich. Comp. Laws § 750.539c–d (2016); Mont. Code Ann. § 45-8-213(1)(c) (2019); N.H. Rev. Stat. Ann. § 570-A:2(I) (2017); 18 Pa. Cons. Stat. Ann. § 5704(4) (West 2020); Wash. Rev. Code § 9.73.030(1) (2019). In 2014, the Illinois Supreme Court held the state’s two-party consent statute was unconstitutional as written, as it banned the recording of conversations or situations when the parties had no reasonable expectation of privacy, thus violating the First Amendment. People v. Melongo, 6 N.E.3d 120, 127 (Ill. 2014).Show More

Of note, the legislative history of these statutes suggests that they were designed, broadly speaking, with two goals in mind: First, to provide law enforcement officials with a clearly lawful means to conduct wiretaps, often with the aim of facilitating the prosecution of organized crime, and second, to protect the privacy of citizens from the overreach of electronic surveillance.38 38.Brncik, supranote 25, at 492–93.Show More

Massachusetts state law goes further and explicitly prohibits the secret recording of non-consenting parties. Their wiretapping statute bans “the secret use of [modern electronic surveillance devices] by private individuals,” as the legislature worried their proliferation and use had placed the privacy of citizens in danger.39 39.Mass. Gen. Laws ch. 272, § 99(A) (2018) (“The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth.”). Notably, a recording is secret, according to the Supreme Judicial Court of Massachusetts, when it is made without the actual knowledge of the depicted subject, though that finding may be established by “unequivocal objective manifestations of knowledge.” Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976).Show More As interpreted by the Supreme Judicial Court of Massachusetts, a recording was made secretly if the recorded subject had no “actual knowledge of the recording,” though such knowledge may also be shown through “clear and unequivocal objective manifestations.”40 40.Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976). See also Commonwealth v. Hyde, 750 N.E.2d 963, 968 (Mass. 2001) (reaffirming this interpretation).Show More In practice, though, this statute also prevents bystanders from secretly recording what they perceive to be police misconduct in public spaces. In 2007, activist Peter Lowney was found in violation of this statute for recording an on-duty Boston University police sergeant during a protest.41 41.Sam Bayard, Massachusetts Wiretapping Law Strikes Again, Digit. Media L. Project (Dec. 12, 2007), http://www.dmlp.org/blog/2007/massachusetts-wiretapping-law-strikes-again [https://perma.cc/ADJ9-ZZ9Q].Show More When ordered by the police to stop filming, Lowney returned the device to his pocket but did not stop recording.42 42.Id.Show More He was convicted under the statute and received a suspended sentence of up to two years in jail, a $500 fine, and was made to remove the relevant video from the internet.43 43.Daily Free Press Admin, BU Protester Fined, Could Face Jail Time, Daily Free Press (Dec. 6, 2007), https://dailyfreepress.com/2007/12/06/bu-protester-fined-could-face-jail-time/ [https://perma.cc/MG7H-4H5X].Show More

Over recent years, the use of these state wiretap laws to penalize recordings of police-civilian interactions has been challenged repeatedly in federal court, most often when such recordings were made openly.44 44.See supranote 5.Show More Each federal court of appeal facing the issue has held the application of these statutes to public (i.e. non-secret) recording of police-citizen interactions is unconstitutional as a violation of the First Amendment.45 45.Id.Show More Since the First Amendment protects expressive activity, it also must protect the activity required to produce or create such expression.46 46.See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); see also Fields v. City of Philadelphia, 862 F.3d 353, 358–59 (3d Cir. 2017) (affirming that the First Amendment protects the act of “capturing inputs that may yield expression”) (quoting Brief for the Cato Institute as Amicus Curiae at 7); Kreimer, supra note 23, at 408–09 (concluding that given how, in public spaces, “pervasive image capture grants authority to a range of unofficial voices . . . [and] provides a means of holding the conduct of the powerful to account,” it must be that “the First Amendment protects the right to record images we observe as part of the right to form, reflect upon, and share our memories”).Show More The Department of Justice has also affirmed that citizens must have at least some right to record the police, as “[t]he First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties.”47 47.Statement of Interest of the United States at 4, Sharp v. Baltimore City Police Dep’t, No. 1:11-cv-02888, 2012 WL 9512053 (D. Md. filed Jan. 10, 2012); see also Justin Fenton, DOJ Urges Judge to Side with Plaintiff in Baltimore Police Taping Case, Balt. Sun (Jan. 11, 2012), https://www.baltimoresun.com/news/bs-xpm-2012-01-11-bs-md-ci-aclu-doj-videotaping-20120111-story.html [https://perma.cc/7XVA-W4SW ] (describing the case).Show More And notably, the courts have affirmed that this right cannot be limited to news reporters, but must also extend to recordings made by private individuals.48 48.Glik, 655 F.3d at 83–84 (“[T]he public’s right of access to information is coextensive with that of the press.”).Show More

This should not come as a surprise. Longstanding Supreme Court precedent has recognized the existence of a First Amendment interest in criticizing public officials,49 49.See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 275 (1964) (“The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”); Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.”).Show More and in particular, police officers.50 50.City of Houston v. Hill, 482 U.S. 451, 460–62, 467 (1987) (invalidating a city ordinance which made it illegal to interrupt an officer in the performance of his duties).Show More A necessary prerequisite to such expression is the gathering of information about these public officials “from any source by means within the law,”51 51.Glik, 655 F.3d at 82 (quoting Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978)).Show More which has been construed broadly enough to include audio and video recordings.52 52.SeeFirst Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978) (emphasizing that First Amendment protections go “beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw”).Show More Such action helps to facilitate “the free discussion of governmental affairs,”53 53.Glik, 655 F.3d at 82(quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).Show More uncover governmental abuse,54 54.Id.Show More and generally improve the government’s functioning.55 55.Id. at 83(quoting Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8 (1986)).Show More

Further, while such forms of newsgathering criticism often emerge spontaneously, they also take organized forms. For example, Professor Jocelyn Simonson has highlighted the fifty-year history of “copwatching,” a civic practice in which “organized groups of local residents . . . patrol their neighborhoods, monitor police conduct, and create videos of what they see.”56 56.Simonson, supranote 23, at 408.Show More She argues that copwatching is a form of constitutional engagement, as it enables local neighborhoods to “challeng[e] the control that courts and police officers have in determining what is ‘reasonable’ or ‘suspicious’ with regard to the Fourth Amendment,” and to demand that law enforcement respect the dignity of those they encounter.57 57.Id. at 421.Show More

This right to record, though, is not without limit. Some scholars and advocates argue that countervailing factors—such as the privacy interests of the police officers and civilians depicted in the recordings—justify secret recordings’ restriction.58 58.See, e.g., ACLU of Ill. v. Alvarez, 679 F.3d 583, 611 (7th Cir. 2012) (Posner, J., dissenting).Show More Courts have long held that a person does not entirely forfeit their privacy when entering public spaces.59 59.See, e.g., Nader v. Gen. Motors Corp., 255 N.E.2d 765, 771 (N.Y. 1970) (clarifying that “under certain circumstances, surveillance may be so ‘overzealous’ as to render it actionable” as an invasion of one’s right to privacy).Show More In fact, as Professor Margot Kaminski has explained, statutes that regulate recording protect legitimate privacy interests, since that which an individual does not reveal to the recorder is meant to remain private and should be protected against another’s intrusions.60 60.Kaminski, supra note 23, at 171. It should be noted, though, that privacy is a notoriously difficult value to characterize, and it often depends upon the context in which it is claimed. See Daniel J. Solove, Understanding Privacy 101–70 (2008) (proposing a taxonomy of privacy interests); Julie E. Cohen, What Privacy is For, 126 Harv. L. Rev. 1904, 1907–08 (2013) (arguing that attempts to define privacy as deriving a single overarching principle are inevitably unworkable).Show More Professor Kaminski further asserts that the distribution of such recordings—such as the posting of video and audio recordings of police misconduct on social media—implicate a second, distinct privacy interest in preserving one’s dignity from harm.61 61.Kaminski, supra note 23, at 202–03. But cf. Kreimer, supra note 23, at 404 (arguing that the primary privacy harm of recording is in its public dissemination).Show More

Police officers, however, cannot claim to have as robust expectations of privacy when acting as public officials as they might when off-duty.62 62.See, e.g.,Bartnicki v. Vopper, 532 U.S. 514, 534–35 (2001) (“[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance.”).Show More Some courts have emphasized that police officers shed any expectation of privacy when they act in public spaces, particularly if the conduct at issue is easily observable by members of the public.63 63.See e.g., State v. Flora, 845 P.2d 1355, 1357 (Wash. Ct. App. 1992) (“The State urges us to adopt the view that public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of passersby enjoy a privacy interest which they may assert under the statute. We reject that view as wholly without merit.”).Show More Other courts have focused on the prominent and important nature of the police officer’s position in the community to determine that they cannot expect the same kind of privacy when on-duty as a private citizen might otherwise claim.64 64.See, e.g., Rotkiewicz v. Sadowsky, 730 N.E. 2d 282, 287 (Mass. 2000) (finding that a police officer is a public official for purposes of defamation claims because of “the broad powers vested in police officers and the great potential for abuse of those powers, as well as police officers[’] high visibility within and impact on a community.”).Show More Moreover, the Supreme Court has made clear that an individual can claim no protection under the Fourth Amendment for information consensually disclosed to a police officer.65 65.See Lopez v. United States, 373 U.S. 427, 437–39 (1963).Show More

Other scholars claim that recording officers in public might impede the execution of important police investigations. This concern becomes most salient if the officers are acting undercover, as recording them may legitimately compromise the officer’s safety.66 66.Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1219–20 (10th Cir. 2007) (highlighting the importance of protecting officer safety but nonetheless finding that the public interest in revealing officer misconduct outweighed that concern under the facts of this case).Show More In a similar vein, some fear that the threat of recording might deter members of the public from seeking assistance from or giving critically important information to the police.67 67.SeeACLU of Ill. v. Alvarez, 679 F.3d 583, 611–12 (7th Cir. 2012) (Posner, J., dissenting). Surveys show that a majority of police officers often suggest they are supportive of wearing body cameras. See Rich Morin, Kim Parker, Renee Stepler & Andrew Mercer, Behind the Badge, Pew Rsch. Ctr. 75 (Jan. 11, 2017), https://www.pewsocialtrends.org/wp-content/uploads/sites/3/2017/01/Police-Report_FINAL_web.pdf [https://perma.cc/CG6C-FTCW]. But that support does not often extend to citizen recorders, as law enforcement feel they would unduly interfere with the execution of their duties. See, e.g., Alysia Santo, Why Cops Aren’t Ready for Their Close-Up, Marshall Project (Apr. 24, 2015), https://www.themarshallproject.org/2015/04/24/why-cops-aren-t-ready-for-their-close-up [https://perma.cc/29Y3-3ZL4] (highlighting police support for a 2015 Texas state bill that would criminalize photographing on-duty police officers).Show More For situations in which recorders hamper law enforcement’s ability to maintain public safety, though, officers have the ability to impose reasonable time, place, and manner restrictions to prevent the conduct.68 68.Alvarez, 679 F.3d at 607; Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011). See alsoKelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (observing “even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions”).Show More In a recent Section 1983 action, one plaintiff alleged an officer impermissibly interfered with his First Amendment right to record the police when the officer seized the plaintiff’s drone, which was flying over a car accident.69 69.Rivera v. Foley, No. 3:14-cv-00196, 2015 WL 1296258, at *1–2 (D. Conn. March 23, 2015).Show More The court found no violation of his First Amendment rights, because despite the plaintiff’s interest in obtaining footage, the drone’s “trespass[] onto an active crime scene” hampered the police investigation.70 70.Id. at *10. The court expressly contrasted the plaintiff’s actions with the attempts by citizens to record the police using handheld devices at a distance from the ongoing investigation, like those at issue in Glikand Alvarez. Id.Show More

B. The First Circuit’s Project Veritas Decision

In December 2020, the First Circuit became the first federal court of appeals in the country to weigh in on the constitutionality of secret recordings. Judge Barron, writing for a unanimous panel, first found that the act of producing secret recordings is deserving of First Amendment protection, given the critical role such actions play in newsgathering.71 71.Project Veritas Action Fund v. Rollins, 982 F.3d 813, 832 (1st Cir. 2020).Show More In fact, the court agreed with the plaintiffs that secret recordings can “sometimes be a better tool for ‘gathering information about’ police officers conducting their official duties in public, and thereby facilitating ‘the free discussion of governmental affairs’ and ‘uncovering . . . abuses,’ than open recording is” because it is less likely to disrupt police operations and less likely to engender resistance from police officers.72 72.Id. at 832–33.Show More Admittedly, the production of the recording is not a form of expressive speech in the same way that Professor Jocelyn Simonson has described regarding open recordings.73 73.Simonson, supranote 23, at 435–36 (describing how organized copwatching takes “the shape of a confrontational practice that seeks change through a combination of official and grassroots channels”).Show More Nonetheless, the court argued that the secret recordings “can constitute newsgathering every bit as much as a credentialed reporter’s after-the-fact efforts to ascertain what had transpired.”74 74.Project Veritas, 982 F.3d at 833.Show More

The court then affirmed the lower court’s conclusion that Section 99, like other state wiretap laws, is a “content-neutral law of general applicability.”75 75.Id. at 834 (quoting Jean v. Mass. St. Police, 492 F.3d 24, 29 (1st Cir. 2007)).Show More While First Circuit precedent had not cleanly articulated what level of scrutiny should apply to such a law, the court concluded that the lower court’s evaluation under intermediate scrutiny—whether the statute “is ‘narrowly tailored to serve a significant government interest’”—was correct.76 76.Id. (quoting Rideout v. Gardner, 838 F.3d 65, 71–72 (1st Cir. 2016)).Show More

Having identified the relevant First Amendment interest at issue and the level of scrutiny to apply, the Court then revisited the two interests Section 99 was designed to realize: to “prevent[] interference with police activities and protect[] individual privacy.”77 77.Id. at 836.Show More The court conceded these qualified as important government interests but nevertheless found that an outright ban on secret recordings was not a narrowly tailored means to pursue those ends. First, any secret recording, by definition, would be produced out of plain sight and without the actual knowledge of the officer depicted.78 78.Id.Show More Accordingly, it would be hard to imagine how the recording itself could be understood to interfere with police activity.79 79.Id. at 836–37. The court did nod to Judge Posner’s concern in ACLU of Illinois v. Alvarez, 679 F.3d 583, 613 (7th Cir. 2012) (Posner, J., dissenting)—that the potential for secret recordings could deter confidential informants from cooperating with police officers. However, the court found it was largely without merit, given that officers meeting with informants are likely careful about the circumstances in which they do so and the defendants offered no concrete evidence of such deterrence, only conjecture. Id. at 837.Show More

The court devoted considerably more attention to the second potential government interest: protecting individual privacy. At oral argument, the District Attorney argued the relevant interest was not a freedom from being filmed, but a freedom from being filmed without notice to ensure “the vibrancy of [] public spaces” and assure citizens “they will not be unwittingly recorded.”80 80.Project Veritas, 982 F.3d at 837–38.Show More While acknowledging the importance of this interest, Judge Barron countered that on-duty police officers “are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.”81 81.Id. at 838 (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)).Show More To that end, the court concluded that even where a police officer might have some privacy interest in their actions, a total ban of surreptitious audio recordings is “too unqualified to be justified in the name of protecting that degree of privacy.”82 82.Id.Show More Even the privacy concerns of individuals who interact with police officers cannot justify “the blunderbuss prohibitory approach embodied in Section 99,” given the public nature of the private individual’s speech.83 83.Id. at 839. For example, the court noted the potential privacy interest in the identity of rape victims. Id. (citing Fla. Star v. B.J.F., 491 U.S. 524, 537 (1989)).Show More Given the critically important role that surreptitious recordings play in the ability of private individuals to gather news about police officer conduct without fear of retaliation for their actions, the statute failed intermediate scrutiny.84 84.For that reason, the court found that there was no alternative kind of recording that would serve the same function as surreptitious recordings. Their outright prohibition under Section 99 could not survive intermediate scrutiny. Id. at 839–40.Show More

Police officers, as agents of the state, are entrusted with the protection of the public safety and are authorized to exert force, including deadly force if necessary, to achieve that mission.85 85.SeeBarry Friedman, Unwarranted: Policing without Permission5 (2017) (“Policing officials are granted remarkable powers. They are allowed to use force on us. And to conduct surveillance of us. . . . Possession of these powers . . .  is what defines policing, what sets it apart.”).Show More However, to render that permission legitimate, the public must be able to seek redress when its trust is abused. As Robert Post argues, this process requires that “citizens have access to the public sphere so that they can participate in the formation of public opinion” and “that governmental decision making be somehow rendered accountable to public opinion.”86 86.Robert Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477, 482 (2011). Show More Within the context of policing, the production of recordings by citizens can play a critical role in that democratic process by broadening the scope of perspectives that informs the public’s understanding of the police.

Given the extent to which many activists, like Martin and Perez, credibly fear retribution, it may be that surreptitious recordings are the only kind that activists feel safe to produce. While recordings of law enforcement officers are often made openly, with the intention of making the officer aware they are being recorded,87 87.See, e.g.,Glik v. Cunniffe, 655 F.3d 78, 79–80 (1st Cir. 2011). These kinds of tactics have consistently been used in protests over police brutality. Karen Hao, How to Turn Filming the Police into the End of Police Brutality, M.I.T. Tech. Rev. (June 10, 2020), https://www.technologyreview.com/2020/06/10/1002913/how-to-end-police-brutality-filming-witnessing-legislation/ [https://perma.cc/LLB7-686G].Show More this is not the case for those who fear reprisals. Recordings bringing attention to the most salient examples of police brutality have often come at a heavy cost to those who created them, including through violent retaliation, intimidation, and pretextual arrest at the hands of law enforcement.88 88.Officers often render citations to civilian recorders for broadly defined and difficult to disprove charges, such as obstruction. See, e.g.,Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017). Some of the most prominent civilian recorders, like those who filmed the police killings of Freddie Gray, Eric Garner, Walter Scott, Philando Castile, and Alton Sterling, have faced continued harassment at the hands of the police. Dragana Kaurin, The Price of Filming Police Violence, Vice (Apr. 27, 2018), https://www.vice.com/en/article/evqw9z/filming-police-brutality-retaliation [https://perma.cc/9PUX-6DAG].Show More Cities have also enacted ordinances imposing sanctions on those recording public police activity if an officer determines the recording unduly interferes with their ongoing investigation.89 89.See, e.g.,Tucson, Ariz., Code art. I, §§ 11-70.3, 11-70.4 (2020) (prohibiting individuals from “physically entering crime scenes or areas immediately surrounding where such enforcement activity . . . [is] taking place” and criminalizing activity that “materially inhibits, obstructs, hinders, or delays any Police Officer . . . in the exercise of the Officer’s official duties”).Show More Under such threats, it is no wonder individuals wish to keep secret their act of recording.

And just as the ability to produce secret recordings incentivizes the “democratization of proof,”90 90.Fan, supranote 25, at 1645.Show More so too does it ensure that officers cannot hide from public scrutiny by changing their behavior when they know others may see it. Counsel for the government of Massachusetts, in the oral argument for Project Veritas, raised this very point, ironically asserting that secret recordings should be prohibited so that public officials can know when they are being recorded and censor their behavior accordingly.91 91.See Oral Argument at 14:20, Project Veritas Action Fund v. Rollins, No. 19-1629 (1st Cir. argued Jan. 8, 2020), sub nom. Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018), available at https://www.courtlistener.com/audio/67830/project-veritas-action-fund-v-rollins/ [https://perma.cc/NCP4-82GU] (“Under the statute, the principle that the legislature subscribed to . . . is the notion that people have an interest in knowing when they’re being recorded, so that they can make appropriate choices about how to conduct themselves.”).Show More We assert, however, that this is directly contrary to the public’s interest. We should not want police officers to modify how they would otherwise behave when the public is not watching. In fact, surreptitious recording is the only way we can truly know how public officials are acting when the cameras are no longer rolling. Embracing secret recording, as the First Circuit demonstrated in Project Veritas, would supplement the range of perspectives that the public can access. It would bring life to the idea that “[W]e are the police. What is done by the police is done by all of us.”92 92.Friedman, supranote 85, at 321.Show More

C. Other Circuit Precedent on Surreptitious Recordings

The First Circuit’s decision is groundbreaking, in large part, because no other federal circuit has addressed the question of surreptitious recordings so squarely. Though a variety of courts have identified a generalized right to record the police in public, none have examined the contours of this right in such great detail.93 93.SeeTurner v. Driver, 848 F.3d 678, 690 (5th Cir. 2017) (“This right [to record the police], however, ‘is not without limitations.’ Like all speech, filming the police ‘may be subject to reasonable time, place, and manner restrictions.’ In this case, however, we need not decide which specific time, place, and manner restrictions would be reasonable.”) (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)); see also Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017) (declining to address the limits of the constitutional right to record); ACLU of Ill. v. Alvarez, 679 F.3d 583, 606 (7th Cir. 2012) (stating that the court need not address surreptitious recordings or recordings of private conversations); Glik, 655 F.3d at 84 (declining to address the limits of the right to film); Fordyce v. City of Seattle, 55 F.3d 436, 440 (9th Cir. 1995) (noting that the Washington Supreme Court had not yet interpreted whether its wiretapping statute covered private conversations); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a First Amendment right to record but not defining its scope).Show More Further, in circuits that have not considered the issue, courts have granted police officers qualified immunity for actions taken to prevent civilian recorders from documenting officers’ actions in public, or for retaliating against these recorders, so long as they were not otherwise infringing upon the recorder’s constitutional rights.94 94.For example, the Tenth Circuit recently found that four officers were entitled to qualified immunity in a Section 1983 action that alleged the officers had unconstitutionally infringed on the plaintiff’s First Amendment right to record the police in public spaces because no such right had been clearly established at the time of the purported violation. Frasier v. Evans, 992 F.3d 1003, 1023 (10th Cir. 2021). However, the court then “exercise[d] [its] discretion to bypass the constitutional question of whether such right even exists.” Id. at 1020 n.4.Show More This reality has endangered citizens’ ability to surreptitiously record the police.

Notably, the Seventh Circuit, in ACLU of Illinois v. Alvarez, went so far as to evince explicit skepticism that the First Amendment would protect surreptitious recordings made in public spaces.95 95.See Alvarez, 679 F.3d at 605–07.Show More This was despite holding that private citizens have a right to produce public recordings of police-civilian interactions.96 96.Id. at 608 (enjoining the State’s Attorney from applying the Illinois wiretap statute against the ACLU and its employees who openly record law enforcement).Show More The court distinguished the public nature of the recording at issue from surreptitious recordings, suggesting that the regulation of the latter might survive intermediate scrutiny because secret recordings fail to provide adequate notice to subjects that they are being recorded.97 97.Id. at 605–06. Under this standard, courts ask whether the regulation is narrowly tailored to serve a substantial government interest, meaning the government must prove its interest “would be achieved less effectively absent the regulation” and that the regulation can accomplish this end without burdening “substantially more speech than is necessary.” Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).Show More According to the court, the secret nature of the recording could “bring[] stronger privacy interests into play.”98 98.Alvarez, 679 F.3d at 607 n.13 (citing Bartnicki v. Vopper, 532 U.S. 514, 529 (2001)).Show More The Seventh Circuit’s skepticism about the legality of secret recordings was, until now, the only forecast of how regulations of surreptitious recordings under state and federal wiretap statutes might be treated.

In addition, prior to the First Circuit’s decision in Project Veritas, federal courts had largely avoided questions involving the constitutionality of secret recording of the police. Federal and state courts alike often found that the act of recording does not violate state wiretap statutes, as officers cannot reasonably claim an expectation of privacy in public places.99 99.See State v. Graber, No. 12-K-10-647, 2010 Md. Cir. Ct. LEXIS 7, at *19 (Md. Cir. Ct. Sept. 27, 2010); State v. Flora, 845 P.2d 1355, 1358 (Wash. Ct. App. 1992); Jones v. Gaydula, No. CIV. A. 85-1859, 1989 WL 156343, at *3 (E.D. Pa. Dec. 22, 1989).Show More And while courts have been clear that bystanders have a right to record police-civilian interactions, they have avoided exploring whether an officer might claim a privacy interest in cases involving recordings produced by third parties by finding that the bystander recorder violated another statute while producing their recording (such that police intervention was necessary), or, conversely, that the bystander’s right to record had not been clearly established.100 100.See Bleish v. Moriarty, No.11-cv-162, 2012 WL 2752188, at *10–*12 (D.N.H. 2012) (finding a Section 1983 plaintiff’s arrest for disorderly conduct did not violate the Fourth Amendment and that the plaintiff failed to show she was arrested for exercising her First Amendment rights); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (holding that the plaintiffs failed to show that the police had violated their First Amendment right to record); Gravolet v. Tassin, No.08-3646, 2009 WL 1565864, at *4 (E.D. La. June 2, 2009) (finding a Section 1983 plaintiff’s arrest while recording did not violate his Fourth Amendment rights because the officers had probable cause to arrest him for stalking and that the plaintiff failed to clearly establish his right to record).Show More That path, however, was unavailable to the First Circuit. Section 99, as described above, is unique among wiretap statutes in that it prohibits all secretly produced audio recordings, irrespective of whether the person depicted could claim any reasonable expectation of privacy in the content of their recorded speech.101 101.Seesupra notes 35–39 and accompanying text.Show More As a result, the court, for the first time in the country, fully confronted the constitutionality of such a regulation.

II. Impact Beyond Boston

The implications of the First Circuit’s decision in Project Veritas will reach far outside the state of Massachusetts. While Section 99 is unique in its express prohibition of secret recordings, the underlying principle has direct consequences to other states’ wiretap laws. We argue here that, as similar First Amendment interests are at play in both public and secret contexts, constitutional protection for secret recordings should be extended across the country,102 102.Scholars have previously discussed the compelling justifications for extending constitutional protection to surreptitious recordings. See, e.g., Rodden, supra note 24, at 907.Show More as has successfully happened in the First Circuit. While the Seventh Circuit may be correct in highlighting that surreptitious recording of police might implicate different privacy interests than open recordings,103 103.Alvarez, 679 F.3d at 607 n.13.Show More the distinction between them is not sufficiently meaningful, on its own, to override these important First Amendment interests. Further, solutions outside of constitutionally securing the right to secretly record the police provide insufficient protection and certainty to would-be recorders. To reach an opposite conclusion would frustrate police accountability efforts and threaten the public’s understanding of police misconduct.

A. The Contours of This Argument

The claim we make here is a limited one: The First Circuit was correct to hold that a right to record should protect bystanders who secretly record on-duty officers engaging with citizens in public spaces.104 104.There are valid, constitutionally cognizable concerns that may limit the right to secretly record police-civilian interactions, for example, in private spaces. See Kaminski, supra note 23, at 238–42. However, these distinctions are not constitutionally meaningful when comparing secret and open recordings of the police in public.Show More However, such a right is not unlimited. For example, if the making of a recording might legitimately interfere with police activities, or, per the First Circuit, lead an officer to “reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties,” such recordings may be proscribed by reasonable time, place, and manner restrictions.105 105.Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014). But see Simonson, supranote 23, at 1563 (arguing that an officer may only prevent those acts of recording which would create a “concrete, physical impediment to a police officer or to public safety”).Show More It is admittedly more complicated to proscribe such measures in circumstances where the recording in question was made surreptitiously—but it would be correspondingly difficult to prove such secret recordings actually interfered with the officer’s exercise of their duties.106 106.See supra note 79 and accompanying text.Show More

An echo of this concern rings through in Judge Posner’s dissent in Alvarez. He argues that in some circumstances, a private citizen might want to engage a police officer in public without their interaction “being broadcast on the evening news or blogged throughout the world.”107 107.Alvarez, 679 F.3d at 611 (Posner, J., dissenting).Show More Just as the threat of civilian oversight might discourage members of the public—from the covert informant to the crime victim—from seeking out an officers’ aid, so too might a policeman’s ability to protect the public safety be diminished if he were to be constantly watching for any would-be recorders.108 108.See id. at 611–12 (Posner, J., dissenting).Show More It would follow that such an effect would be all the more pronounced where an officer, and the public with which he interacts, know that any passerby could record and publish their interaction, without either of them having ever been made the wiser.

The concern is not without merit, but it is one that can be addressed with tools officers already have at their disposal. First, they might meet with private citizens in private settings, where an officer’s privacy interest is stronger.109 109.See, e.g., Commonwealth v. Bradley, 232 A.3d 747, 755–56 (Pa. Sup. Ct. 2020) (holding that a no-filming condition in the lobby of a police department was a reasonable time, place, manner restriction to “ensure the safety, security and privacy of officers, informants and victims”).Show More While the public has a legitimate interest in observing the public behavior of police officers, the “Constitution itself is [not] a Freedom of Information Act.”110 110.Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978) (quoting Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 636 (1975)).Show More Thus, individuals cannot expect the government to disclose private information regarding police officer engagements, particularly if such a disclosure might “place[] their personal security, [or] that of their families, at substantial risk.”111 111.Kallstrom v. City of Columbus, 136 F.3d 1055, 1067–69 (6th Cir. 1998) (finding that the city’s release of the police personnel files, which included, among other things, officers’ home addresses, phone numbers, banking information, social security numbers, of the police officers who participated as witnesses in a criminal defense trial to defense counsel violated the officers’ due process rights by rendering them vulnerable to “private acts of vengeance”). See alsoWhalen v. Roe, 429 U.S. 589, 599–600 (1977) (holding that there is a constitutionally protected right to privacy in an individual’s interest in avoiding the disclosure of highly sensitive, personal information).Show More Second, to the extent that there may exist a legitimate need to engage a civilian without public observation, there is, of course, nothing preventing an officer from establishing reasonable time, place, and manner restrictions to do so. In an instance in which an officer might not be sure whether or not privacy is necessary to pursue an investigatory lead or promote the public safety, reasonable preemptive measures could well be taken to prevent the interference of a surreptitious recording.112 112.See, e.g.,Hill v. Colorado, 530 U.S. 703, 725–26 (2000) (holding that an eight-foot zone around persons entering a healthcare facility was “a valid time, place, and manner regulation”). Where the production of a secret recording would contravene such reasonable time, place, manner restrictions, the police may legitimately stop the citizen recorder’s production and dissemination of that recording. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017). It should be noted, though, that Supreme Court precedent suggests that the police still may not prohibit the dissemination of such recordings by third parties. SeeBartnicki v. Vopper, 532 U.S. 514, 535 (2001) (“[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”); see alsoJean v. Mass. St. Police, 492 F.3d 24, 31 (1st Cir. 2007) (finding that the publication of another’s surreptitiously produced recording, thereby violating Section 99, is entitled to First Amendment protection and therefore immunized the publisher from prosecution, even where the publisher “arguably participated . . . in a conspiracy to disclose the content of [an] illegally recorded oral communication”).Show More

Furthermore, regardless of whether a recording is produced openly or surreptitiously, it remains true there is not a cognizable constitutional claim to privacy in conversations between police officers and civilians. As in the case of openly made recordings, officers do not have a legitimate privacy interest in their conduct when acting in an official capacity in public spaces.113 113.See supra notes 62–65 and accompanying text; see also Jesse Harlan Alderman, Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity, 33 N. Ill. U. L. Rev. 485, 513 (2013) (explaining that “police officers qua police officers do not own a personal privacy expectation in their official acts under prevailing judicial interpretations”).Show More As a result, creating a distinction between open and surreptitious recordings lacks constitutional significance. Giving notice to those recorded does not change the public nature of the exchange or the public’s interest in them.

As discussed in Part I, though, private citizens captured in secret recordings have different privacy interests at stake than police officers.114 114.See supranotes 58–61 and accompanying text. Some have argued that any person who engages a police officer in a public space loses any reasonable expectation of privacy that they might otherwise be able to claim. See Alderman, supra note 113, at 513–14.Show More Private civilians interacting with the police might legitimately argue that surreptitious recordings violate their right to be let alone, particularly if the interaction devolves into violence or, as it has for too many, death. Some commentators have observed how the production, and subsequent viral consumption, of such videos can become exploitative and even echo the lynch mobs of years past.115 115.See Allissa V. Richardson, Why Cellphone Videos of Black People’s Deaths Should Be Considered Sacred, Like Lynching Photographs,The Conversation (May 28, 2020), https://theconversation.com/why-cellphone-videos-of-black-peoples-deaths-should-be-considered-sacred-like-lynching-photographs-139252 [https://perma.cc/XRH4-XL75].Show More Such privacy concerns extend to bystanders who happen to be captured by a recording, especially when they are engaged in personally or politically sensitive activity.116 116.Consider a recording of protestors that could expose them to criminal or civil liability. Depending on the circumstances of the conduct depicted, the protestor may have a colorable claim that the recording of their actions was an invasion of their privacy. See Thomas Germain, How to Record Video During a Protest, Consumer Reports (June 5, 2020), https://www.consumerreports.org/audio-video/how-to-record-video-during-a-protest/ [https://perma.cc/7BN6-QPM7].Show More

These claims, as the First Circuit found, should fail under a standard of intermediate scrutiny, as they do in the public recording context. The viability of any privacy interest underlying such claims necessarily depends on the circumstances of the interaction in question, the means of recording, and the reasonability of the party’s expectation of privacy. Scholars have presented a number of ways to determine whether an expectation of privacy is reasonable;117 117.See Scott Skinner-Thompson, Recording as Heckling, 108 Geo. L. J. 125, 169–73 (2019); see also Richard C. Turkington, Confidentiality Policy for HIV-Related Information: An Analytical Framework for Sorting Out Hard and Easy Cases, 34 Vill. L. Rev. 871, 877–78 (1989) (suggesting a three-pronged analysis to adjudicate the reasonability of an individual’s claim to privacy within the context of disclosing a patient’s HIV status); Doris DelTosto Brogan, Privacy’s Place at the Table: A Reflection on Richard Turkington’s Approach to Valuing and Balancing Privacy Interests, 61 Vill. L. Rev. 437, 445, 456–64 (2016) (arguing that Professor Turkington’s framework is broadly applicable and analyzing its potential application to the NSA data sweeping program and the deployment of police body cameras as examples).Show More an underlying theme of these proposals involves determining the costs inflicted on other important social values, including the ability for the public to critique matters of public interest.118 118.See, e.g., DelTosto Brogan, supra note 117, at 443–45 (comparing such an analysis to that proposed by Judge Learned Hand to analyze whether or not a defendant acted negligently in the canonical United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)).Show More Where such costs cannot be found to outweigh the value of maintaining one’s assertion of privacy, the privacy interest should give way.119 119.DelTosto Brogan, supra note 117, at 443–45.Show More Moreover, there are less restrictive means to protecting these privacy interests. When one is surreptitiously recorded, they can redress harm through a private tort action against the recorder as an invasion of their privacy, to the extent such a relevant interest exists.120 120.Among other causes of action, a plaintiff might successfully argue a recording was an undue invasion of their privacy if it created “unreasonable publicity,” so long as the matter publicized was “highly offensive to a reasonable person” and “not of legitimate concern to the public.” Restatement (Second) of Torts §§ 652D, 652D cmt. C (1977).Show More

And, from a pragmatic perspective, a legal distinction between open and secret recordings is not workable in a world where recording technology is ever-evolving. Today’s iPhone may well be supplanted by tomorrow’s eyeglass camera. Given the subjective nature of the inquiry of the depicted subject’s knowledge, determining whether a recording was made surreptitiously would require a court to identify the kind of recording technology of which a depicted subject was aware before even considering whether the officer understood a recording was being taken.121 121.Analogous inquiries have plagued courts. For example, the Supreme Court has previously instructed lower courts to determine whether a police officer’s use of a given piece of technology in the course of an investigation constituted a search under the Fourth Amendment by asking whether that technology was in “general public use” at the time. Kyllo v. United States, 533 U.S. 27, 34–35 (2001). Critics have argued that such an inquiry is inadequate because it fails to consider how “courts [are] to deal with the rapid pace of technological development in deciding whether something is in the general public use.” SeeChristopher Slobogin, Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo’s Rules Governing Technological Surveillance, 86 Minn. L. Rev. 1393, 1412–13 (2002) (furthering that “[a]dvanced technology can find its way in to the average home very quickly. When that happens . . . the courts will either have to change their stance, manipulate the meaning of the general public use doctrine, or ignore it”).Show More Even if a court could salvage a standard to apply to such situations, such a test would hardly provide the level of necessary certainty to those who hope to record police-civilian interactions without fear of retribution or legal sanction.

In short, prohibiting the secret recording of police-civilian interactions under wiretap laws constitutes a broad overreach that fails to account for the valid First Amendment interests such actions serve.122 122.See supranotes 75–84 and accompanying text.Show More Applying such laws to secret recordings leads to chilling effects felt by those fearing criminal prosecution and retaliation.123 123.See Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (“The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.”).Show More To most effectively promote the First Amendment interests in bringing light to misconduct that might otherwise go unnoticed, surreptitious recordings should be granted constitutional protection.124 124.For an exploration of this argument, seegenerally Rodden, supranote 24.Show More In other words, a strong implication of the Project Veritas decision is that the application of one-party consent wiretap laws against secret recordings should be held unconstitutional.

B. The Insufficiency of Alternatives

In the alternative, some scholars argue that granting constitutional protection to secret recorders is unnecessary. To fix this social problem, police departments and prosecutors’ offices should simply commit to a policy of non-enforcement of wiretap statutes against civilian recorders.125 125.Brncik, supranote 25, at 515–19.Show More Or, instead, these entities should lead educational campaigns about the potential criminal liability associated with recording the police in public spaces, so as to protect potential violators from sanction.126 126.Id. at 520–21.Show More From this perspective, amending wiretap statutes would be too difficult, given the privacy interests implicated and the opposition such efforts would engender from groups like police unions.127 127.Id. at 514–15 (citing attempts at reform in Congress and the Mississippi legislature that were stymied, in large part, by police union opposition).Show More Instead, a policy of non-enforcement would enjoy support from such special interests (who might otherwise balk at the idea of dramatic policy change) while accomplishing the same policy ends.128 128.Id. at 516–17 (pointing out police departments that have adopted such a policy and advising prosecutors’ offices to follow suit).Show More

We agree that Congress, state legislatures, and police departments would serve the public well by implementing policies that dissuade officers from arresting or harassing those who record public police conduct. And, in the absence of other developments, such a policy choice may be warranted. However, the very conceit of this argument—that the production of these recordings implicates societal values of sufficient importance to encourage policy change129 129.Id. at 502–03 (“These recordings help to inform the public and to enrich the public debate over what is or is not abusive behavior. Video evidence is particularly valuable because videos provide the viewer . . . a credible account of the interaction.”).Show More—highlights the weakness of the position. As the First Circuit’s decision makes clear, civilians’ ability to surreptitiously record the police in public spaces implicates a critical First Amendment interest that, absent a significant and countervailing government interest, cannot be infringed by state or federal policy.130 130.Project Veritas v. Rollins, 982 F.3d 813, 831 (1st Cir. 2020) (affirming the “particular significance of First Amendment newsgathering rights with respect to government”) (internal quotation marks and citations omitted).Show More The important nature of the right thereby requires that any protection granted for it be unyielding to the whims of those who may later find it inconvenient, a quality not exhibited by a policy of non-enforcement. Such a practice is only a temporary fix for a larger, structural problem and leaves individuals’ rights vulnerable to future violation. The salience of this interest necessitates constitutional protection, both inside Massachusetts and beyond.131 131.See Rodden, supranote 24, at 906–07 (advocating that the secret recording of the police be permissible under all wiretap statutes, as a discrepancy between the standards applied to secret and open recordings “gives police the ability to circumvent this right, subjects those who wish to exercise it to potential prosecution, and reduces police accountability for their actions”). The First Circuit’s decision, in many ways, serves as a model for how Rodden’s argument can be given effect nationally.Show More

Further, a policy of non-enforcement is incapable of supplying the requisite level of certainty to would-be secret recorders, in either the short or long term, to guarantee they will not face criminal penalties for their activity.132 132.For an extensive discussion on the merits and dangers of nonenforcement, see generally Zachary S. Price, Reliance on Nonenforcement, 58 Wm. & Mary L. Rev. 937 (2017).Show More While a policy of non-enforcement may temporarily abate a recorder’s fear of criminal prosecution, it is neither legally binding nor free from the prospect of its future renouncement.133 133.As explored by Professor Price, whether or not one’s reliance interests would be protected under a policy of nonenforcement depends on how a particular jurisdiction would weigh that interest against the rights of executives to enforce the law. Id. at 947.Show More As a result, those interested in recording surreptitiously may be discouraged from doing so under such guidelines. It is only by recognizing the right to secretly record that the balance of power can be shifted and third-party bystanders can be empowered to shed light on police misconduct—not merely when those in power allow it. As the First Circuit acknowledged, this aim is best accomplished through a widely-recognized constitutional guarantee of the First Amendment right to secretly record the police.134 134.See supranotes 90–92 and accompanying text.Show More In this way, Project Veritas can serve as a model for how the right to record intersects with, and by and large outweighs, other political and social interests.

Conclusion

On March 3, 1991, Rodney King was brutally beaten during a routine traffic stop by officers of the Los Angeles Police Department. A plumber named George Holliday—who observed the altercation from a nearby, second-story balcony—pulled out his newly-purchased Sony Handycam and hit “record.”135 135.Paul Martin Lester, Visual Ethics: A Guide for Photographers, Journalists, and Filmmakers 87 (2018); Erik Ortiz, George Holliday, Who Taped Rodney King Beating, Urges Others to Share Videos, NBC News (June 9, 2015), https://www.nbcnews.com/nightly-news/george-holliday-who-taped-rodney-king-beating-urges-others-share-n372551 [https://perma.cc/NM3F-Z9KZ].Show More

A direct line connects George Holliday to Darnella Frazier and the social movements their actions have inspired. These movements would not have been possible without bystander recording of the police.136 136.See McLaughlin, supra note 2.Show More In a recent statement marking the one year anniversary of George Floyd’s murder, Frazier put it simply: “If it weren’t for my video, the world wouldn’t have known the truth.”137 137.Hannah Knowles, Teen Speaks Out a Year After Filming George Floyd’s Death, Saying Her Video ‘Put His Murderer Away’, Wash. Post (May 25, 2021), https://www.washingtonpost.com/nation/2021/05/25/darnella-frazier-floyd-statement/ [https://perma.cc/4XMH-A2UZ].Show More While the interactions filmed by George Holliday and Darnella Frazier graphically illustrated the real, brutal, and unauthorized tactics of law enforcement, it was the recording of these circumstances that pushed an understanding of this reality into our public consciousness.

The First Circuit’s decision in Project Veritas affirms this reality and, in response, correctly extends constitutional protection to surreptitious recorders. A legal regime that would draw unintelligible distinctions between secret and open recordings would restrict the tools available to the Fraziers and Hollidays of tomorrow. The secret recording of the police is a particularly crucial tool, as it enables the public reporting of police activity in a way that exposes police misconduct, better informs public discourse, and makes democratic redress and reform possible, free from fear of police retaliation or legal sanction. In this way, secret recordings of the police serve a valid First Amendment interest that open recordings cannot. While these recordings implicate the privacy interests of those depicted, particularly for third-party bystanders who act without notice that their words and conduct are being recorded for public observation, these interests are not sufficient to justify the prohibition of secret recordings.

The First Circuit’s decision boldly, and correctly, gives purchase to the claim that secret recordings allow us to internalize not just what police permit us to see, but what happens at the hands of law enforcement agents when cameras are off. As other courts should soon recognize, the secret recording of police by bystanders is—and must be—a First Amendment-protected right, and wiretap statutes restricting this practice must be found unconstitutional as applied. The robustness of our public reporting and, consequently, our ability to remedy police misconduct depends on it.

  1. * Aidan J. Coleman, University of Virginia School of Law, J.D. 2021; University of Virginia, M.A. (History) 2021. Katharine M. Janes, University of Virginia School of Law, J.D. 2021; University of Virginia, M.A. (History) 2021. We would like to thank Professor Frederick Schauer, William Scheffer, and Chinmayi Sharma for their helpful feedback on early drafts of this Comment. A special thanks to the editors of the Virginia Law Review—and in particular Elizabeth Adler, Tyler Demetriou, and Anna Cecile Pepper—for their insightful comments and edits.
  2. Joshua Nevett, George Floyd: The Personal Cost of Filming Police Brutality, BBC News (June 11, 2020), https://www.bbc.com/news/world-us-canada-52942519 [https://perma.cc/‌VC7P-C3RU].
  3. Audra D. S. Burch & John Eligon, Bystander Videos of George Floyd and Others Are Policing the Police, N.Y. Times (Mar. 5, 2021), https://www.nytimes.com/2020/05/26/us/‌george-floyd-minneapolis-police.html [https://perma.cc/4G2N-DVA5]. See also Eliot C. McLaughlin, How George Floyd’s Death Ignited a Racial Reckoning that Shows No Signs of Slowing Down, CNN (Aug. 9, 2020), https://www.cnn.com/2020/08/09/us/george-floyd-protests-different-why/index.html [https://perma.cc/D7UC-Y6AR] (highlighting that the protests following George Floyd’s death were unique in that they saw an influx of “myriad White faces”).
  4. Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Social Movement in U.S. History, N.Y. Times (July 3
    , 2020),

    https://www.nytimes.com/‌interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/6XAT-9MJE]. The 2017 Women’s March previously held this title, which saw crowds of 3 to 5 million in marches nationwide. Id.; McLaughlin, supra note 2.

  5. Scott Gant, We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age
    6 (2007).

  6. See Fields v. City of Philadelphia, 862 F.3d 353, 355–56 (3d Cir. 2017); Turner v. Driver, 848 F.3d 678, 689 (5th Cir. 2017); ACLU of Ill. v. Alvarez, 679 F.3d 583, 595–600, 608 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).
  7. See Project Veritas Action Fund v. Rollins, 982 F.3d 813, 819–20 (1st Cir. 2020).
  8. See, e.g., Alvarez, 679 F.3d at 606–07, 607 n.13 (“The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.”).
  9. 982 F.3d at 833.
  10. Mass. Gen. Laws ch. 272, § 99 (2018) (‘‘Section 99’’).
  11. Project Veritas, a far-right non-profit organization whose methods have sparked controversy, brought a separate challenge to Section 99 that, on appeal, was consolidated with K. Eric Martin and Rene Perez’s suit against the Suffolk County District Attorney. Martin and Perez are unaffiliated with Project Veritas. Project Veritas went beyond Martin and Perez’s requested remedy by seeking to enjoin the enforcement of this statute against the secret recording of any public official. Given the broader nature of this claim, this essay will not contest whether or not the rationales justifying the court’s decision in this case should be applied to cover all such figures. However, it is worth noting that the First Circuit rejected Project Veritas’s broader argument on the grounds that it was unripe. See Project Veritas, 982 F.3d at 817.
  12. Brief for Plaintiff-Appellees at 1–2, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez).
  13. Id. at 9–11.
  14. Gary Man Arrested for Recording Police Officer, Now Considering Legal Action, NBC Chicago (Aug. 9, 2020), https://www.nbcchicago.com/news/local/gary-man-arrested-for-recording-police-officer-now-considering-legal-action/2319456/ [https://perma.cc/CB8J-7YBK].
  15. Ray Sanchez, Growing Number of Prosecutions for Videotaping the Police, ABC News (July 16, 2010), https://abcnews.go.com/US/TheLaw/videotaping-cops-arrest/story?id=‌11179076 [https://perma.cc/E3NH-N6HJ].
  16. Mayor: 3 Charged in Fraudulent Check Scheme; Internal Investigation Launched After Cops Scuffle with Man Videotaping Scene, WHAS-TV (Nov. 29, 2020), https://www.whas11.com/article/news/crime/jeffersontown-officers-arrest-man-videotaping-kentucky-investigation-3-charged-check-fraud/417-a32470a8-5810-4b5e-a095-4e1105c3d331 [https://perma.cc/BJS5-L85D].
  17. Press Release, ACLU, ACLU Sues After Mother Falsely Arrested by Boynton Beach Police Officers (June 25, 2010), https://www.aclu.org/press-releases/aclu-sues-after-mother-falsely-arrested-boynton-beach-police-officers [https://perma.cc/9HU9-LB2K].
  18. Press Release, ACLU Pa., Lawsuit on Behalf of Man Arrested for Recording Police Officer Settles (Oct. 9, 2013), https://www.aclupa.org/en/press-releases/lawsuit-behalf-man-arrested-recording-police-officer-settles [https://perma.cc/7DWJ-545F].
  19. Man Arrested for Recording Police Awarded $275,000, CBS Sacramento (Nov. 29, 2017), https://sacramento.cbslocal.com/2017/11/29/man-arrested-for-recording-police-awarded-275000/ [https://perma.cc/8YNP-3SV5].
  20. Mass. Gen. Laws ch. 272, § 99(C)(1) (2018).
  21. See infra Part I.A.
  22. See id.
  23. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 281–83 (1964).
  24. See Margot E. Kaminski, Privacy and the Right to Record, 97 B.U. L. Rev. 167, 170–71 (2017); Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 339 (2011); Justin Marceau & Alan K. Chen, Free Speech and Democracy in the Video Age, 116 Colum. L. Rev. 991, 997–99 (2016); Jocelyn Simonson, Copwatching, 104 Calif. L. Rev. 391, 442 (2016); Elizabeth J. Frawley, Note, No Calling Cut: The Political Right to Record Police, 17 U. Pa. J. Const. L. 287, 298 (2014).
  25. See Timothy D. Rodden Jr., Note, Yes, This Phone Records Audio!: The Case for Allowing Surreptitious Citizen Recordings of Public Police Encounters, 47 Suffolk U. L. Rev. 905, 926–27 (2014); Taylor Robertson, Note, Lights, Camera, Arrest: The Stage is Set for a Federal Resolution of a Citizen’s Right to Record the Police in Public, 23 B.U. Pub. Int. L.J. 117, 137–39 (2014).
  26. See Mary D. Fan, Democratizing Proof: Pooling Public and Police Body-Camera Videos, 96 N.C. L. Rev. 1639, 1667–68 (2018); Rebecca G. Van Tassell, Comment, Walking a Thin Blue Line: Balancing the Citizen’s Right to Record Police Officers Against Officer Privacy, 2013 BYU L. Rev. 183, 184 (2013); Mark Brncik, Note, A Case for Non-Enforcement of Anti-Recording Laws Against Citizen Recorders, 62 Case W. Rsrv. L. Rev. 485, 515 (2011); Lisa A. Skehill, Note, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981, 1011 (2009).
  27. The increased prevalence of citizen recordings shifts the balance of power between police officers and the communities they serve. See Jocelyn Simonson, Beyond Body Cameras: Defending a Robust Right to Record the Police, 104 Geo. L.J.
    1559, 1568 (2016) (

    arguing that changing the video’s perspective transfers power and serves a valuable social purpose).

  28. See, e.g., Dina Mishra, Comment, Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers’ Power, 117 Yale L.J. 1549, 1553–55 (2008) (arguing that citizen recording supplements existing checks against law enforcement abuses, such as the exclusionary rule and Section 1983 actions); Simonson, supra note 23,

    at 407–21 (explaining how copwatching can serve as a form of deterrence to, data collection of, and constitutional engagement with police misconduct)

    .

  29. 982 F.3d 813, 817, 820 (1st Cir. 2020), aff’g Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018).
  30. Mass. Gen. Laws ch. 272, § 99 (2018); Project Veritas, 982 F.3d at 817, 820.
  31. Project Veritas, 982 F.3d at 820. Though they could not predict for the court the particular moments at which they would need to make such recordings, the plaintiffs argued that their prior experience in openly recording police officers suggested that such moments would certainly occur. Brief for Plaintiff-Appellees at 9, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez).
  32. Project Veritas, 982 F.3d at 820.
  33. Id. at 828–29. It was not necessary for the court’s review that the plaintiffs specify the particular circumstances in which they would produce future secret recording, as their challenge was limited to the production of secret recordings in public spaces, a phrase the First Circuit had itself previously used to “describe the geographic bounds of the citizen’s right to record police officers.” Id. at 827 (citing Glik v. Cunniffe, 655 F.3d 78, 84–85 (1st Cir. 2011); Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014)).
  34. Id. at 829–30.
  35. Id. at 830–31, 836.
  36. 18 U.S.C. § 2511(2)(d) (2018).
  37. See, e.g., Kan. Stat. Ann. § 21-6101(a)(1) (2019).
  38. Cal. Penal Code § 632 (West 2017); Del. Code Ann. tit. 11, § 1335(a)(4) (2017); Fla. Stat. § 934.03(2)(d) (2019); Haw. Rev. Stat. Ann. § 711-1111(1)(d)–(e) (LexisNexis 2016); Md. Code Ann., Cts. & Jud. Proc. § 10-402(c)(3) (West 2019); Mich. Comp. Laws § 750.539c–d (2016); Mont. Code Ann. § 45-8-213(1)(c) (2019); N.H. Rev. Stat. Ann. § 570-A:2(I) (2017); 18 Pa. Cons. Stat. Ann. § 5704(4) (West 2020); Wash. Rev. Code § 9.73.030(1) (2019). In
    2014,

    the Illinois Supreme Court held the state’s two-party consent statute was unconstitutional as written, as it banned the recording of conversations or situations when the parties had no reasonable expectation of privacy, thus violating the First Amendment. People v. Melongo, 6 N.E.3d 120, 127 (Ill. 2014).

  39. Brncik, supra note 25, at
    492–93.

  40. Mass. Gen. Laws ch. 272, § 99(A) (2018) (“The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth.”). Notably, a recording is secret, according to the Supreme Judicial Court of Massachusetts, when it is made without the actual knowledge of the depicted subject, though that finding may be established by “unequivocal objective manifestations of knowledge.” Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976).
  41. Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976). See also Commonwealth v. Hyde, 750 N.E.2d 963, 968 (Mass. 2001) (reaffirming this interpretation).
  42. Sam Bayard, Massachusetts Wiretapping Law Strikes Again, Digit. Media L. Project (Dec. 12, 2007), http://www.dmlp.org/blog/2007/massachusetts-wiretapping-law-strikes-again [https://perma.cc/ADJ9-ZZ9Q].
  43. Id.
  44. Daily Free Press Admin, BU Protester Fined, Could Face Jail Time, Daily Free Press (Dec. 6, 2007), https://dailyfreepress.com/2007/12/06/bu-protester-fined-could-face-jail-time/ [https://perma.cc/MG7H-4H5X].
  45. See supra note 5.
  46. Id.
  47. See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); see also Fields v. City of Philadelphia, 862 F.3d 353, 358–59 (3d Cir. 2017) (affirming that the First Amendment protects the act of “capturing inputs that may yield expression”) (quoting Brief for the Cato Institute as Amicus Curiae at 7); Kreimer, supra note 23, at 408–09 (concluding that given how, in public spaces, “pervasive image capture grants authority to a range of unofficial voices . . . [and] provides a means of holding the conduct of the powerful to account,” it must be that “the First Amendment protects the right to record images we observe as part of the right to form, reflect upon, and share our memories”).
  48. Statement of Interest of the United States at 4, Sharp v. Baltimore City Police Dep’t, No. 1:11-cv-02888, 2012 WL 9512053 (D. Md. filed Jan. 10, 2012); see also Justin Fenton, DOJ Urges Judge to Side with Plaintiff in Baltimore Police Taping Case, Balt. Sun (Jan. 11, 2012), https://www.baltimoresun.com/news/bs-xpm-2012-01-11-bs-md-ci-aclu-doj-videotaping-20120111-story.html [https://perma.cc/7XVA-W4SW ] (describing the case).
  49. Glik, 655 F.3d at 83–84 (“[T]he public’s right of access to information is coextensive with that of the press.”).
  50. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 275 (1964) (“The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”); Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.”).
  51. City of Houston v. Hill, 482 U.S. 451, 460–62, 467 (1987) (invalidating a city ordinance which made it illegal to interrupt an officer in the performance of his duties).
  52. Glik, 655 F.3d at 82 (quoting Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978)).
  53. See First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978) (emphasizing that First Amendment protections go “beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw”).
  54. Glik, 655 F.3d at 82 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).
  55. Id.
  56. Id. at 83 (quoting Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8 (1986)).
  57. Simonson, supra note 23, at 408.
  58. Id. at 421.
  59. See, e.g., ACLU of Ill. v. Alvarez, 679 F.3d 583, 611 (7th Cir. 2012) (Posner, J., dissenting).
  60. See, e.g., Nader v. Gen. Motors Corp., 255 N.E.2d 765, 771 (N.Y. 1970) (clarifying that “under certain circumstances, surveillance may be so ‘overzealous’ as to render it actionable” as an invasion of one’s right to privacy).
  61. Kaminski, supra note 23, at
    171.

    It should be noted, though, that privacy is a notoriously difficult value to characterize, and it often depends upon the context in which it is claimed. See Daniel J. Solove, Understanding Privacy 101–70 (2008) (proposing a taxonomy of privacy interests); Julie E. Cohen, What Privacy is For, 126 Harv. L. Rev. 1904, 1907–08 (2013) (arguing that attempts to define privacy as deriving a single overarching principle are inevitably unworkable).

  62. Kaminski, supra note 23, at 202–03. But cf. Kreimer, supra note 23, at
    404

    (arguing that the primary privacy harm of recording is in its public dissemination).

  63. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 534–35 (2001) (“[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance.”).
  64. See e.g., State v. Flora, 845 P.2d 1355, 1357 (Wash. Ct. App. 1992) (“The State urges us to adopt the view that public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of passersby enjoy a privacy interest which they may assert under the statute. We reject that view as wholly without merit.”).
  65. See, e.g., Rotkiewicz v. Sadowsky, 730 N.E. 2d 282, 287 (Mass. 2000) (finding that a police officer is a public official for purposes of defamation claims because of “the broad powers vested in police officers and the great potential for abuse of those powers, as well as police officers[’] high visibility within and impact on a community.”).
  66. See Lopez v. United States, 373 U.S. 427, 437–39 (1963).
  67. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1219–20 (10th Cir. 2007) (highlighting the importance of protecting officer safety but nonetheless finding that the public interest in revealing officer misconduct outweighed that concern under the facts of this case).
  68. See ACLU of Ill. v. Alvarez, 679 F.3d 583, 611–12 (7th Cir. 2012) (Posner, J., dissenting). Surveys show that a majority of police officers often suggest they are supportive of wearing body cameras. See Rich Morin, Kim Parker, Renee Stepler & Andrew Mercer, Behind the Badge, Pew Rsch. Ctr. 75 (Jan. 11, 2017), https://www.pewsocialtrends.org/wp-content/uploads/sites/3/2017/01/Police-Report_FINAL_web.pdf [https://perma.cc/CG6C-FTCW]. But that support does not often extend to citizen recorders, as law enforcement feel they would unduly interfere with the execution of their duties. See, e.g., Alysia Santo, Why Cops Aren’t Ready for Their Close-Up, Marshall Project (Apr. 24, 2015), https://www.themarshallproject.org/2015/04/24/why-cops-aren-t-ready-for-their-close-up [https://perma.cc/29Y3-3ZL4] (highlighting police support for a 2015 Texas state bill that would criminalize photographing on-duty police officers).
  69. Alvarez, 679 F.3d at 607; Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011). See also Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (observing “even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions”).
  70. Rivera v. Foley, No. 3:14-cv-00196, 2015 WL 1296258, at *1–2 (D. Conn. March 23, 2015).
  71. Id. at *10. The court expressly contrasted the plaintiff’s actions with the attempts by citizens to record the police using handheld devices at a distance from the ongoing investigation, like those at issue in Glik and Alvarez. Id.
  72. Project Veritas Action Fund v. Rollins, 982 F.3d 813, 832 (1st Cir. 2020).
  73. Id. at 832–33.
  74. Simonson, supra note 23, at 435–36 (describing how organized copwatching takes “the shape of a confrontational practice that seeks change through a combination of official and grassroots channels”).
  75. Project Veritas, 982 F.3d at 833.
  76. Id. at 834 (quoting Jean v. Mass. St. Police, 492 F.3d 24, 29 (1st Cir. 2007)).
  77. Id. (quoting Rideout v. Gardner, 838 F.3d 65, 71–72 (1st Cir. 2016)).
  78. Id. at 836.
  79. Id.
  80. Id. at 836–37. The court did nod to Judge Posner’s concern in ACLU of Illinois v. Alvarez, 679 F.3d 583, 613 (7th Cir. 2012) (Posner, J., dissenting)—that the potential for secret recordings could deter confidential informants from cooperating with police officers. However, the court found it was largely without merit, given that officers meeting with informants are likely careful about the circumstances in which they do so and the defendants offered no concrete evidence of such deterrence, only conjecture. Id. at 837.
  81. Project Veritas, 982 F.3d at 837–38.
  82. Id. at 838 (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)).
  83. Id.
  84. Id. at 839. For example, the court noted the potential privacy interest in the identity of rape victims. Id. (citing Fla. Star v. B.J.F., 491 U.S. 524, 537 (1989)).
  85. For that reason, the court found that there was no alternative kind of recording that would serve the same function as surreptitious recordings. Their outright prohibition under Section 99 could not survive intermediate scrutiny. Id. at 839–40.
  86. See

    Barry Friedman, Unwarranted: Policing without Permission

    5 (2017) (“Policing officials are granted remarkable powers. They are allowed to use force on us. And to conduct surveillance of us. . . . Possession of these powers . . .  is what defines policing, what sets it apart.”).

  87. Robert Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477, 48
    2 (2011).

  88. See, e.g., Glik v. Cunniffe, 655 F.3d 78, 79–80 (1st Cir. 2011). These kinds of tactics have consistently been used in protests over police brutality. Karen Hao, How to Turn Filming the Police into the End of Police Brutality, M.I.T. Tech. Rev. (June 10, 2020), https://www.technologyreview.com/2020/06/10/1002913/how-to-end-police-brutality-filming-witnessing-legislation/ [https://perma.cc/LLB7-686G].
  89. Officers often render citations to civilian recorders for broadly defined and difficult to disprove charges, such as obstruction. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017). Some of the most prominent civilian recorders, like those who filmed the police killings of Freddie Gray, Eric Garner, Walter Scott, Philando Castile, and Alton Sterling, have faced continued harassment at the hands of the police. Dragana Kaurin, The Price of Filming Police Violence, Vice (Apr. 27, 2018), https://www.vice.com/en/article/evqw9z/filming-police-brutality-retaliation [https://perma.cc/9PUX-6DAG].
  90. See, e.g., Tucson, Ariz., Code art. I, §§ 11-70.3, 11-70.4 (2020) (prohibiting individuals from “physically entering crime scenes or areas immediately surrounding where such enforcement activity . . . [is] taking place” and criminalizing activity that “materially inhibits, obstructs, hinders, or delays any Police Officer . . . in the exercise of the Officer’s official duties”).
  91. Fan, supra note 25, at 1645.
  92. See Oral Argument at 14:20, Project Veritas Action Fund v. Rollins, No. 19-1629 (1st Cir. argued Jan. 8, 2020), sub nom. Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018), available at https://www.courtlistener.com/audio/67830/project-veritas-action-fund-v-rollins/ [https://perma.cc/NCP4-82GU] (“Under the statute, the principle that the legislature subscribed to . . . is the notion that people have an interest in knowing when they’re being recorded, so that they can make appropriate choices about how to conduct themselves.”).
  93. Friedman, supra note 85, at 321.
  94. See Turner v. Driver, 848 F.3d 678, 690 (5th Cir. 2017) (“This right [to record the police], however, ‘is not without limitations.’ Like all speech, filming the police ‘may be subject to reasonable time, place, and manner restrictions.’ In this case, however, we need not decide which specific time, place, and manner restrictions would be reasonable.”) (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)); see also Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017) (declining to address the limits of the constitutional right to record); ACLU of Ill. v. Alvarez, 679 F.3d 583, 606 (7th Cir. 2012) (stating that the court need not address surreptitious recordings or recordings of private conversations); Glik, 655 F.3d at 84 (declining to address the limits of the right to film); Fordyce v. City of Seattle, 55 F.3d 436, 440 (9th Cir. 1995) (noting that the Washington Supreme Court had not yet interpreted whether its wiretapping statute covered private conversations); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a First Amendment right to record but not defining its scope).
  95. For example, the Tenth Circuit recently found that four officers were entitled to qualified immunity in a Section 1983 action that alleged the officers had unconstitutionally infringed on the plaintiff’s First Amendment right to record the police in public spaces because no such right had been clearly established at the time of the purported violation. Frasier v. Evans, 992 F.3d 1003, 1023 (10th Cir. 2021). However, the court then “exercise[d] [its] discretion to bypass the constitutional question of whether such right even exists.” Id. at 1020 n.4.
  96. See Alvarez, 679 F.3d at 605–07.
  97. Id. at 608 (enjoining the State’s Attorney from applying the Illinois wiretap statute against the ACLU and its employees who openly record law enforcement).
  98. Id. at 605–06. Under this standard, courts ask whether the regulation is narrowly tailored to serve a substantial government interest, meaning the government must prove its interest “would be achieved less effectively absent the regulation” and that the regulation can accomplish this end without burdening “substantially more speech than is necessary.” Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).
  99. Alvarez, 679 F.3d at 607 n.13 (citing Bartnicki v. Vopper, 532 U.S. 514, 529 (2001)).
  100. See State v. Graber, No. 12-K-10-647, 2010 Md. Cir. Ct. LEXIS 7, at *19 (Md. Cir. Ct. Sept. 27, 2010); State v. Flora, 845 P.2d 1355, 1358 (Wash. Ct. App. 1992); Jones v. Gaydula, No. CIV. A. 85-1859, 1989 WL 156343, at *3 (E.D. Pa. Dec. 22, 1989).
  101. See Bleish v. Moriarty, No.11-cv-162, 2012 WL 2752188, at *10–*12 (D.N.H. 2012) (finding a Section 1983 plaintiff’s arrest for disorderly conduct did not violate the Fourth Amendment and that the plaintiff failed to show she was arrested for exercising her First Amendment rights); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (holding that the plaintiffs failed to show that the police had violated their First Amendment right to record); Gravolet v. Tassin, No.08-3646, 2009 WL 1565864, at *4 (E.D. La. June 2, 2009) (finding a Section 1983 plaintiff’s arrest while recording did not violate his Fourth Amendment rights because the officers had probable cause to arrest him for stalking and that the plaintiff failed to clearly establish his right to record).
  102. See supra notes 35–39 and accompanying text.
  103. Scholars have previously discussed the compelling justifications for extending constitutional protection to surreptitious recordings. See, e.g., Rodden, supra note 24, at 907.
  104. Alvarez, 679 F.3d at 607 n.13.
  105. There are valid, constitutionally cognizable concerns that may limit the right to secretly record police-civilian interactions, for example, in private spaces. See Kaminski, supra note 23, at 238–42. However, these distinctions are not constitutionally meaningful when comparing secret and open recordings of the police in public.
  106. Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014). But see Simonson, supra note 23, at 1563 (arguing that an officer may only prevent those acts of recording which would create a “concrete, physical impediment to a police officer or to public safety”).
  107. See supra note 79 and accompanying text.
  108. Alvarez, 679 F.3d at 611 (Posner, J., dissenting).
  109. See id. at 611–12 (Posner, J., dissenting).
  110. See, e.g., Commonwealth v. Bradley, 232 A.3d 747, 755–56 (Pa. Sup. Ct. 2020) (holding that a no-filming condition in the lobby of a police department was a reasonable time, place, manner restriction to “ensure the safety, security and privacy of officers, informants and victims”).
  111. Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978) (quoting Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 636 (1975)).
  112. Kallstrom v. City of Columbus, 136 F.3d 1055, 1067–69 (6th Cir. 1998) (finding that the city’s release of the police personnel files, which included, among other things, officers’ home addresses, phone numbers, banking information, social security numbers, of the police officers who participated as witnesses in a criminal defense trial to defense counsel violated the officers’ due process rights by rendering them vulnerable to “private acts of vengeance”). See also Whalen v. Roe, 429 U.S. 589, 599–600 (1977) (holding that there is a constitutionally protected right to privacy in an individual’s interest in avoiding the disclosure of highly sensitive, personal information).
  113. See, e.g., Hill v. Colorado, 530 U.S. 703, 725–26 (2000) (holding that an eight-foot zone around persons entering a healthcare facility was “a valid time, place, and manner regulation”). Where the production of a secret recording would contravene such reasonable time, place, manner restrictions, the police may legitimately stop the citizen recorder’s production and dissemination of that recording. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017). It should be noted, though, that Supreme Court precedent suggests that the police still may not prohibit the dissemination of such recordings by third parties. See Bartnicki v. Vopper, 532 U.S. 514, 535 (2001) (“[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”); see also Jean v. Mass. St. Police, 492 F.3d 24, 31 (1st Cir. 2007) (finding that the publication of another’s surreptitiously produced recording, thereby violating Section 99, is entitled to First Amendment protection and therefore immunized the publisher from prosecution, even where the publisher “arguably participated . . . in a conspiracy to disclose the content of [an] illegally recorded oral communication”).
  114. See supra notes 62–65 and accompanying text; see also Jesse Harlan Alderman, Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity, 33 N. Ill. U. L. Rev. 485, 513 (2013) (explaining that “police officers qua police officers do not own a personal privacy expectation in their official acts under prevailing judicial interpretations”).
  115. See supra notes 58–61 and accompanying text. Some have argued that any person who engages a police officer in a public space loses any reasonable expectation of privacy that they might otherwise be able to claim. See Alderman, supra note 113, at 513–14.
  116. See Allissa V. Richardson, Why Cellphone Videos of Black People’s Deaths Should Be Considered Sacred, Like Lynching Photographs, The Conversation (May 28, 2020), https://theconversation.com/why-cellphone-videos-of-black-peoples-deaths-should-be-considered-sacred-like-lynching-photographs-139252 [https://perma.cc/XRH4-XL75].
  117. Consider a recording of protestors that could expose them to criminal or civil liability. Depending on the circumstances of the conduct depicted, the protestor may have a colorable claim that the recording of their actions was an invasion of their privacy. See Thomas Germain, How to Record Video During a Protest, Consumer Reports (June 5, 2020), https://www.consumerreports.org/audio-video/how-to-record-video-during-a-protest/ [https://perma.cc/7BN6-QPM7].
  118. See Scott Skinner-Thompson, Recording as Heckling, 108 Geo. L. J. 125, 169–73 (2019); see also Richard C. Turkington, Confidentiality Policy for HIV-Related Information: An Analytical Framework for Sorting Out Hard and Easy Cases, 34 Vill. L. Rev. 871, 877–78 (1989) (suggesting a three-pronged analysis to adjudicate the reasonability of an individual’s claim to privacy within the context of disclosing a patient’s HIV status); Doris DelTosto Brogan, Privacy’s Place at the Table: A Reflection on Richard Turkington’s Approach to Valuing and Balancing Privacy Interests, 61 Vill. L. Rev. 437, 445, 456–64 (2016) (arguing that Professor Turkington’s framework is broadly applicable and analyzing its potential application to the NSA data sweeping program and the deployment of police body cameras as examples).
  119. See, e.g., DelTosto Brogan, supra note 117, at 443–45 (comparing such an analysis to that proposed by Judge Learned Hand to analyze whether or not a defendant acted negligently in the canonical United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)).
  120. DelTosto Brogan, supra note 117, at 443–45.
  121. Among other causes of action, a plaintiff might successfully argue a recording was an undue invasion of their privacy if it created “unreasonable publicity,” so long as the matter publicized was “highly offensive to a reasonable person” and “not of legitimate concern to the public.” Restatement (Second) of Torts §§ 652D, 652D cmt. C (1977).
  122. Analogous inquiries have plagued courts. For example, the Supreme Court has previously instructed lower courts to determine whether a police officer’s use of a given piece of technology in the course of an investigation constituted a search under the Fourth Amendment by asking whether that technology was in “general public use” at the time. Kyllo v. United States, 533 U.S. 27, 34–35 (2001). Critics have argued that such an inquiry is inadequate because it fails to consider how “courts [are] to deal with the rapid pace of technological development in deciding whether something is in the general public use.” See Christopher Slobogin, Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo’s Rules Governing Technological Surveillance, 86 Minn. L. Rev. 1393, 1412–13 (2002) (furthering that “[a]dvanced technology can find its way in to the average home very quickly. When that happens . . . the courts will either have to change their stance, manipulate the meaning of the general public use doctrine, or ignore it”).
  123. See supra notes 75–84 and accompanying text.
  124. See Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (“The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.”).
  125. For an exploration of this argument, see generally Rodden, supra note 24.
  126. Brncik, supra note 25, at 515–19.
  127. Id. at 520–21.
  128. Id. at 514–15 (citing attempts at reform in Congress and the Mississippi legislature that were stymied, in large part, by police union opposition).
  129. Id. at 516–17 (pointing out police departments that have adopted such a policy and advising prosecutors’ offices to follow suit).
  130. Id. at 502–03 (“These recordings help to inform the public and to enrich the public debate over what is or is not abusive behavior. Video evidence is particularly valuable because videos provide the viewer . . . a credible account of the interaction.”).
  131. Project Veritas v. Rollins, 982 F.3d 813, 831 (1st Cir. 2020) (affirming the “particular significance of First Amendment newsgathering rights with respect to government”) (internal quotation marks and citations omitted).
  132. See Rodden, supra note 24, at 906–07 (advocating that the secret recording of the police be permissible under all wiretap statutes, as a discrepancy between the standards applied to secret and open recordings “gives police the ability to circumvent this right, subjects those who wish to exercise it to potential prosecution, and reduces police accountability for their actions”). The First Circuit’s decision, in many ways, serves as a model for how Rodden’s argument can be given effect nationally.
  133. For an extensive discussion on the merits and dangers of nonenforcement, see generally Zachary S. Price, Reliance on Nonenforcement, 58 Wm. & Mary L. Rev. 937 (2017).
  134. As explored by Professor Price, whether or not one’s reliance interests would be protected under a policy of nonenforcement depends on how a particular jurisdiction would weigh that interest against the rights of executives to enforce the law. Id. at 947.
  135. See supra notes 90–92 and accompanying text.
  136. Paul Martin Lester, Visual Ethics: A Guide for Photographers, Journalists, and Filmmakers 87 (2018); Erik Ortiz, George Holliday, Who Taped Rodney King Beating, Urges Others to Share Videos, NBC News (June 9, 2015), https://www.nbcnews.com/nightly-news/george-holliday-who-taped-rodney-king-beating-urges-others-share-n372551 [https://perma.cc/NM3F-Z9KZ].
  137. See McLaughlin, supra note 2.
  138. Hannah Knowles, Teen Speaks Out a Year After Filming George Floyd’s Death, Saying Her Video ‘Put His Murderer Away’, Wash. Post (May 25, 2021), https://www.washingtonpost.com/nation/2021/05/25/darnella-frazier-floyd-statement/ [https://perma.cc/4XMH-A2UZ].

Slaying “Leviathan” (Or Not): The Practical Impact (Or Lack Thereof) of a Return to a “Traditional” Non-Delegation Doctrine

Administrative agencies play an integral role in the everyday lives of all Americans. Although it would be impossible to point to a single cause of the administrative state’s growth since the New Deal era, the Supreme Court’s acquiescence in congressional delegation of legislative authority is certainly one part of the equation. Since the early twentieth century, the Supreme Court has employed the so-called “intelligible principle” test to determine when Congress unconstitutionally delegates authority. In the century since the inception of the “intelligible principle” test, however, the Court has stricken down only two statutes as such unconstitutional delegations of legislative authority. For better or worse, this lax approach to delegation has permitted administrative agencies to gain increasingly broad authority.

Some believe, however, that a dissent authored by Justice Neil Gorsuch in a recent Supreme Court case, Gundy v. United States, marked the beginning of the end for the “intelligible principle” test and, thereby, the modern administrative state. This Note takes on the latter concern. It argues that a return to the traditional view of the nondelegation doctrine advocated by Justice Gorsuch does not compel the unwinding of the modern administrative state. It does so by applying the traditional tests to two modern statutes, both of which have received sustained and recent constitutional doubt under even the permissive “intelligible principle” test. This Note demonstrates that both statutes likely would survive nondelegation scrutiny under the traditional tests. Taking these statutes as an apt—albeit imperfect—proxy for the administrative state, this Note thus demonstrates that a return to a traditional nondelegation doctrine would not result in the sea-change in administrative law that some have predicted.

Introduction

Administrative agencies are an integral part of the modern American legal landscape.1.See, e.g., J. Harvie Wilkinson III, Assessing the Administrative State, 32 J.L. & Pol. 239, 243 (2017) (describing the “American regulatory landscape” as a “diverse set of institutions . . . that, together, seem to sprawl over just about every facet of modern life”).Show More For better or worse, the so-called “administrative state” has continued to grow from its inception in the New Deal era forward into the twenty-first century.2.See id. at 242–44 (describing the growth of the administrative state from the New Deal era to modern day).Show More Today, administrative agencies oversee how we vote,3.52 U.S.C. § 30106 (Supp. II 2012) (Federal Election Commission).Show More how we retire,4.42 U.S.C. § 901 (2012) (Social Security Administration).Show More the food we eat,5.21 U.S.C. § 393 (2012) (Food and Drug Administration).Show More the shows we watch on television,6.47 U.S.C. § 151 (2012) (Federal Communications Commission).Show More and much more. While one would be hard-pressed to pin down any one entity responsible7.Indeed, Congress must legislate, the Executive must act pursuant to that legislation, and the courts must stay out of the way.Show More for the growth of this “fourth branch,” at least part of the credit lies with the judicial branch. Courts repeatedly have played a role in granting increased authority to this new “Leviathan,”8.This term is frequently used to refer to the administrative state. See e.g., Wilkinson, supra note 1, at 242 (referring to the administrative state as an “impersonal leviathan”); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 Yale L.J. 266, 281 (2013) (“[W]e must appreciate the crucial role of the newly expanded federal administrative state—the leviathan—in providing legislative history to the Court.”); Jamison E. Colburn, “Democratic Experimentalism”: A Separation of Powers for Our Time?, 37 Suffolk U. L. Rev. 287, 287 (2004); Marek D. Steedman, Taming Leviathan, 52 Tulsa L. Rev. 621 (2017); David French, John Roberts Throws the Administrative State a Lifeline, Nat’l Rev. (June 26, 2019), https://www.nationalreview.com/2019/06/john-roberts-throws-the-administrative-state-a-lifeline/ [https://perma.cc/B4SX-4GZJ] (referring to the “federal administrative leviathan”).Show More tacitly approving of its continued expansion in case after case.

One way in which the judiciary has acquiesced in the administrative state’s growth is through the judiciary’s reluctance to invoke the nondelegation doctrine as one means by which to rein in the authority granted.9.Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1240 (1994) (pointing out that it is “not . . . for lack of opportunity” that the Court “has not invalidated a congressional statute on nondelegation grounds since 1935”).Show More In 1928, the Supreme Court articulated what has become the modern standard for determining when Congress goes too far in its delegation of authority to administrative agencies—what is referred to as the “intelligible principle” test.10 10.J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).Show More On only two occasions since that time, both in 1935, has the Supreme Court stricken down a duly enacted statute on the grounds that the law was an unconstitutional delegation of legislative authority.11 11.Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935).Show More Since then, the Court has routinely upheld broad delegations of authority to administrative agencies, citing the “intelligible principle” test as a pro-forma step leading to the delegation’s inevitable approval.12 12.See infra note 43 (collecting cases in which the Court applied the “intelligible principle” test).Show More This has led many who are skeptical of the constitutionality of the increasingly large role agencies play in the government to mourn that the nondelegation doctrine is nothing more than a dead letter.13 13.See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 404 (2017) (arguing that there is not “much basis for thinking that there was ever a seriously confining nondelegation doctrine as part of the effective constitutional order”); Lawson, supra note 9, at 1237–41 (“Thus, the demise of the nondelegation doctrine . . . has encountered no serious real-world legal or political challenges, and none are on the horizon.”).Show More

That hand-wringing aside, the tide is turning on the nondelegation doctrine. A recent dissent by Justice Gorsuch in Gundy v. United States served as a strong signal that the nondelegation doctrine may yet have life in it.14 14.See generally, Gundy v. United States, 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting) (arguing that the Court should be less deferential to delegations of legislative power).Show More In his dissent, Justice Gorsuch argues that the “intelligible principle” test is without doctrinal or constitutional mooring and should be put to rest.15 15.Id. at 2138–40.Show More His dissent also articulates three “traditional tests” that, in his view, represent the true underpinnings of what the nondelegation doctrine ought to be employed to do.16 16.Id. at 2135–37, 2139.Show More With the momentum of an ideologically shifting Court behind him, his dissent sparked hand-wringing of a different sort—over the practical implications of waking the nondelegation doctrine after its nearly century-long slumber.17 17.Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”); see also Jonathan Hall, Note, The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation, 70 Duke L.J. 175, 179 (2020) (arguing that adoption of “the Gorsuch test” would have “destabilizing effects”); Ian Millhiser, Brett Kavanaugh’s Latest Opinion Should Terrify Democrats, Vox (Nov. 26, 2019), https://www.vox.com/2019/11/26/20981758/brett-kavanaughs-terrify-democrats-supreme-court-gundy-paul [https://perma.cc/DAL6-Z3H4] (“[Justice] Gorsuch, in other words, would give the Republican-controlled Supreme Court a veto power over all federal regulations.”).Show More This Note addresses, among other things, those concerns.

To be sure, a single dissenting opinion ordinarily wouldn’t sound the death-knell of a doctrine that has been a staple of constitutional jurisprudence for nearly a century. Nonetheless, it is not difficult to count to five votes in support of Justice Gorsuch’s position in Gundy. Chief Justice Roberts and Justice Thomas both joined the dissent, obviously indicating that they endorse its reasoning.18 18.See Gundy, 139 S. Ct. at 2131–48 (Gorsuch, J., dissenting).Show More Justice Alito concurred in the judgment only.19 19.Id. at 2130–31 (Alito, J., concurring in the judgment).Show More But his vote to uphold the result in Gundy was driven by a desire not to “single out” the statute at issue in Gundy “for special treatment.”20 20.Id.Show More And if a majority of the Court were willing to engage in a wholesale revision of the nondelegation doctrine, Justice Alito “would support that effort.”21 21.Id.Show More Neither Justice Kavanaugh nor Justice Barrett participated in the Gundy decision, leaving their views less known. In the time since Gundy, however, Justice Kavanaugh has indicated that he agrees with Justice Gorsuch’s position.22 22.See Paul v. United States, 140 S. Ct. 342, 342 (2019) (statement of Kavanaugh, J., respecting the denial of certiorari).Show More In a statement respecting the denial of certiorari in a companion case to Gundy, Justice Kavanaugh wrote that “Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.”23 23.Id.Show More Thus, while Justice Gorsuch’s dissent was just that—a dissent—it seems likely that his opinion now carries the support of a majority of the current members on the Court.24 24.This Note does not—nor does it need to in light of the head-counting provided above—take a view on what Justice Barrett’s stance may be on this issue. Even assuming Justice Barrett disagrees with Justice Gorsuch, it seems as though there are now five votes to support his dissenting position.Show More That reality raises the stakes for what the opinion means for the administrative state, which is what this Note aims to address.

This Note analyzes the constitutional and pragmatic issues implicated by Justice Gorsuch’s opinion. Part I addresses the fundamental principle of separation of powers. That part provides a brief constitutional overview of how the delegation of legislative authority to non-legislative actors implicates that basic constitutional precept. Part II provides a brief overview of the Court’s decision and Justice Gorsuch’s dissent in Gundy. Part III explores the constitutional and doctrinal bases for the “traditional tests” Justice Gorsuch articulates in his Gundy dissent. That Part, by explaining the constitutional and precedential frameworks for those tests, defends the soundness of Justice Gorsuch’s premise. Part IV then applies the “traditional tests” to two specific statutes, which received nondelegation scrutiny beginning nearly a century ago, and continue to be scrutinized as recently as cases decided within the past year. In its application of the “traditional tests” to these constitutionally dubious statutes, this Note argues that Justice Gorsuch’s proposed “revolution” of nondelegation jurisprudence would not result in the sea-change that some have predicted. Rather, its analysis shows that the limits these “traditional tests” impose on delegation, while meaningful, are not impossible to satisfy. Indeed, the tests leave Congress ample flexibility to govern effectively without forsaking the boundaries imposed by the separation of powers. At bottom, it demonstrates, in contrast with the plurality’s fears articulated in Gundy, that Justice Gorsuch’s traditional nondelegation approach does not compel the alarmist conclusion that “most of Government is unconstitutional.”25 25.Gundy, 139 S. Ct. at 2130.Show More

  1. * University of Virginia School of Law, J.D. 2020. This paper has benefitted greatly from a host of folks, without whom it would not have been written in the first place, much less published. Specifically, thanks go to Ray Gans and Andrew Kintner for their helpful, encouraging, and thoughtful feedback from the earliest stages of putting pen to paper. Additionally, to the members of the Virginia Law Review for their thorough and insightful revisions throughout the editing process. All the credit is theirs—all the errors mine.
  2. See, e.g., J. Harvie Wilkinson III, Assessing the Administrative State, 32 J.L. & Pol. 239, 243 (2017) (describing the “American regulatory landscape” as a “diverse set of institutions . . . that, together, seem to sprawl over just about every facet of modern life”).
  3. See id. at 242–44 (describing the growth of the administrative state from the New Deal era to modern day).
  4. 52 U.S.C. § 30106 (Supp. II 2012) (Federal Election Commission).
  5. 42 U.S.C. § 901 (2012) (Social Security Administration).
  6. 21 U.S.C. § 393 (2012) (Food and Drug Administration).
  7. 47 U.S.C. § 151 (2012) (Federal Communications Commission).
  8. Indeed, Congress must legislate, the Executive must act pursuant to that legislation, and the courts must stay out of the way.
  9. This term is frequently used to refer to the administrative state. See e.g., Wilkinson, supra note 1, at 242 (referring to the administrative state as an “impersonal leviathan”); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 Yale L.J. 266, 281 (2013) (“[W]e must appreciate the crucial role of the newly expanded federal administrative state—the leviathan—in providing legislative history to the Court.”); Jamison E. Colburn, “Democratic Experimentalism”: A Separation of Powers for Our Time?, 37 Suffolk U. L. Rev. 287, 287 (2004); Marek D. Steedman, Taming Leviathan, 52 Tulsa L. Rev. 621 (2017); David French, John Roberts Throws the Administrative State a Lifeline, Nat’l Rev. (June 26, 2019), https://www.nationalreview.com/2019/06/john-roberts-throws-the-administrative-state-a-lifeline/ [https://perma.cc/B4SX-4GZJ] (referring to the “federal administrative leviathan”).
  10. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1240 (1994) (pointing out that it is “not . . . for lack of opportunity” that the Court “has not invalidated a congressional statute on nondelegation grounds since 1935”).
  11. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
  12. Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935).
  13. See infra note 43 (collecting cases in which the Court applied the “intelligible principle” test).
  14. See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 404 (2017) (arguing that there is not “much basis for thinking that there was ever a seriously confining nondelegation doctrine as part of the effective constitutional order”); Lawson, supra note 9, at 1237–41 (“Thus, the demise of the nondelegation doctrine . . . has encountered no serious real-world legal or political challenges, and none are on the horizon.”).
  15. See generally, Gundy v. United States, 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting) (arguing that the Court should be less deferential to delegations of legislative power).
  16. Id. at 2138–40.
  17. Id. at 2135–37, 2139.
  18. Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”); see also Jonathan Hall, Note, The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation, 70 Duke L.J. 175, 179 (2020) (arguing that adoption of “the Gorsuch test” would have “destabilizing effects”); Ian Millhiser, Brett Kavanaugh’s Latest Opinion Should Terrify Democrats, Vox (Nov. 26, 2019), https://www.vox.com/2019/11/26/20981758/brett-kavanaughs-terrify-democrats-supreme-court-gundy-paul [https://perma.cc/DAL6-Z3H4] (“[Justice] Gorsuch, in other words, would give the Republican-controlled Supreme Court a veto power over all federal regulations.”).
  19. See Gundy, 139 S. Ct. at 2131–48 (Gorsuch, J., dissenting).
  20. Id. at 2130–31 (Alito, J., concurring in the judgment).
  21. Id.
  22. Id.
  23. See Paul v. United States, 140 S. Ct. 342, 342 (2019) (statement of Kavanaugh, J., respecting the denial of certiorari).
  24. Id.
  25. This Note does not—nor does it need to in light of the head-counting provided above—take a view on what Justice Barrett’s stance may be on this issue. Even assuming Justice Barrett disagrees with Justice Gorsuch, it seems as though there are now five votes to support his dissenting position.
  26. Gundy, 139 S. Ct. at 2130.
  27. Mistretta v. United States, 488 U.S. 361, 372 (1989).
  28. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825).
  29. Yakus v. United States, 321 U.S. 414, 425 (1944) (alteration in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)).
  30. See The Federalist No. 47, at 301 (James Madison) (stating that, if the Constitution failed to protect against a breakdown in the separation of powers, “no further arguments would be necessary to inspire a universal reprobation of the system”).
  31. Id.
  32. The Federalist No. 37, at 228 (James Madison).
  33. The Federalist No. 47, at 301 (James Madison).
  34. See The Federalist No. 51, at 321–22 (James Madison) (“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.”).
  35. The Federalist No. 47, at 301 (James Madison); see also Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825) (holding that Congress may not constitutionally delegate legislative powers); Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 Cornell L. Rev. 1, 8 (1994) (“[T]he abdication of power and its corresponding responsibilities is as serious a problem as aggrandizement.”).
  36. U.S. Const. art. I, § 1 (emphasis added).
  37. Wayman, 23 U.S. at 42–43.
  38. Field v. Clark, 143 U.S. 649, 693–94 (1892) (quotation omitted).
  39. Id. at 694 (quotation omitted).
  40. Id. at 693–94 (quotation omitted).
  41. Wayman, 23 U.S. at 42–43.
  42. 276 U.S. 394 (1928).
  43. Id. at 409.
  44. See, e.g., Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 474 (2001) (“The scope of discretion § 109(b)(1) [of the Clean Air Act] allows is in fact well within the outer limits of our nondelegation precedents.”); Mistretta v. United States, 488 U.S. 361, 371–79 (1989) (holding that, “[a]lthough Congress ha[d] delegated significant discretion,” the Court had “no doubt” that the delegation in the sentencing guidelines to the Sentencing Commission was “sufficiently specific and detailed to meet constitutional requirements”); Loving v. United States, 517 U.S. 748, 751, 771–74 (1996) (finding “no fault” in the delegation to the President the authority to define aggravating factors that permit the death penalty in military capital cases); Touby v. United States, 500 U.S. 160, 162, 165–66 (1991) (discussing the intelligible-principle test and holding that “even if greater congressional specificity” were “required in the criminal context,” legislative delegation of authority to the Attorney General under § 201(h) of the Controlled Substances Act would still pass constitutional muster); Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 221 n.7 (1986) (rejecting the assertion that the discretionary authority granted by Multiemployer Pension Plan Amendments Act of 1980 did not constitute “a reasonable means of achieving congressional aims,” and that it provided an “intelligible principle” to guide the delegee); Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976) (stating that 19 U.S.C. § 1862(b), or Section 232 of the Trade Expansion Act, “easily fulfills” the intelligible-principle test); Lichter v. United States, 334 U.S. 742, 774–87 (1948) (applying the intelligible-principle test and concluding the purpose and background of the Renegotiation Act established a “sufficient meaning” for the phrase “excessive profits” so as to make the Act “a constitutional definition of administrative authority and not an unconstitutional delegation of legislative power”).
  45. Panama Refin. Co. v. Ryan, 293 U.S. 388, 431–33 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541–42 (1935).
  46. 293 U.S. 388 (1935).
  47. 295 U.S. 495 (1935).
  48. See generally Schechter Poultry, 295 U.S. at 519–51 (failing, in its 32-page opinion, to invoke the phrase “intelligible principle”).
  49. See Panama Refin., 293 U.S. at 420–30 (providing the “intelligible principle” language from J.W. Hampton as just one of many examples in which “the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend”).
  50. See Gundy v. United States, 139 S. Ct. 2116, 2138–40 (2019) (Gorsuch, J., dissenting) (arguing that the “intelligible principle” phrase was used in J.W. Hampton as a way of “explain[ing] the operation of [other] traditional tests,” and describing it as a “passing comment” that has been “divorc[ed] . . . from its context,” and an “isolated phrase” that has been “treat[ed] . . . as if it were controlling”).
  51. See supra note 43.
  52. See Gundy, 139 S. Ct. at 2139–40 (Gorsuch, J., dissenting) (“This mutated version of the ‘intelligible principle’ remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked.”); id. at 2131 (Alito, J., concurring in the judgment) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”).
  53. See supra notes 18–21 and accompanying text.
  54. See supra notes 22–23 and accompanying text.
  55. Gundy, 139 S. Ct. at 2121–22 (plurality opinion).
  56. Id. at 2122.
  57. 34 U.S.C. § 20913(d) (2012).
  58. Gundy, 139 S. Ct. at 2132 (Gorsuch, J., dissenting) (“The breadth of the authority Congress granted to the Attorney General in these few words can only be described as vast.”).
  59. Id. (providing examples of how the “pendulum swung” on retroactive application of SORNA depending on who happened to be serving as Attorney General at the time); but see id. at 2122 (plurality opinion) (“The final rule, issued in December 2010, reiterated that SORNA applies to all pre-Act offenders. That rule has remained the same to this day.”) (citation omitted).
  60. Id. at 2123–24 (plurality opinion).
  61. Id. (emphasis added).
  62. Id. at 2125.
  63. See id. at 2129 (reframing the constitutional question as such: “The question becomes: Did Congress make an impermissible delegation when it instructed the Attorney General to apply SORNA’s registration requirements to pre-Act offenders as soon as feasible?”).
  64. Id.
  65. Id. at 2124.
  66. For the plurality’s proposition, see id. at 2129. For Justice Gorsuch’s disagreement, see id. at 2131–32 (Gorsuch, J., dissenting).
  67. Id. at 2131–32 (Gorsuch, J., dissenting) (quoting Wayne A. Logan, The Adam Walsh Act and the Failed Promise of Administrative Federalism, 78 Geo. Wash. L. Rev. 993, 1000 (2010)).
  68. Id. at 2132.
  69. This exposes what was really at issue in Gundy—it was a case that turned on statutory interpretation. See e.g., Aditya Bamzai, Commentary, Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law, 133 Harv. L. Rev. 164, 166 (2019) (stating that Gundy “turned largely on the plurality’s narrowing construction of a statutory scheme”). The plurality was content to impose a limiting construction to avoid the delegation question, while Justice Gorsuch was willing to take on the broader issue. See also Gundy, 139 S. Ct. at 2145 (Gorsuch, J., dissenting) (“Most everyone, the plurality included, concedes that if SORNA allows the Attorney General as much authority as we have outlined, it would present ‘a nondelegation question.’” (quoting id. at 2123–24 (plurality opinion))).
  70. Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting).
  71. Id. at 2135–39.
  72. See id. at 2136–37 (citing both Wayman v. Southard, 23 U.S. (10 Wheat.) 31, 43 (1825) and The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 388 (1813) as articulating these standards). To be sure, it does not seem as though the third category comes explicitly from any one case. See id. at 2137. Nonetheless, Justice Gorsuch asserts that both Wayman and Aurora could have appropriately been decided on these grounds. Id. Further, it seems obvious that separation of powers concerns are not implicated when Congress gives another branch discretion over matters properly within the scope of that branch’s powers. See, e.g., David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223, 1260 (1985) (“Legislation that leaves the Executive Branch with discretion does not delegate legislative power where the discretion is to be exercised over matters already within the scope of executive power.”). In other words, nondelegation is implicated only when Congress abdicates its own constitutionally assigned power, not when it empowers another branch to act within that branch’s proper sphere.
  73. While the tests are interrelated, the satisfaction of any test is sufficient to insulate a statute from a nondelegation challenge. Which test applies depends on the unique circumstances presented by the delegation at issue in a particular case. See infra Part III.
  74. Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting) (quoting Wayman, 23 U.S. at 43).
  75. Id.
  76. Id. at 2137.
  77. See id. at 2137–38 (Gorsuch, J., dissenting).
  78. Id. at 2139 (“There’s a good argument, as well, that the statute in J. W. Hampton passed muster under the traditional tests.”).
  79. Id. at 2145 (“Nor would enforcing the Constitution’s demands spell doom for what some call the ‘administrative state.’ . . . Respecting the separation of powers forecloses no substantive outcomes.”).
  80. See supra note 17.
  81. Gundy, 139 S. Ct. at 2137–39 (Gorsuch, J., dissenting).
  82. Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”).
  83. Yakus v. United States, 321 U.S. 414, 425 (1944) (alterations in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)).
  84. See Bamzai, supra note 68, at 177 (describing Justice Gorsuch’s approach as “a set of formal rules to identify those cases that pose a nondelegation problem”).
  85. Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)).
  86. By this, Chief Justice Marshall meant areas that did not implicate “powers which are strictly and exclusively legislative.” Wayman, 23 U.S. at 42–43.
  87. Id. at 43. For another early example of the “fill up the details” test, see, e.g., Hannibal Bridge Co. v. United States, 221 U.S. 194, 205 (1911) (“All that the act did was to impose upon the Secretary the duty of attending to such details as were necessary in order to carry out the declared policy of the Government.”).
  88. Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (citing Wayman, 23 U.S. at 43)).
  89. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912) (citations omitted).
  90. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904).
  91. Id.
  92. Id.
  93. Id.
  94. Red “C” Oil Mfg. Co., 222 U.S. at 394.
  95. Buttfield, 192 U.S. at 496; see also St. Louis, Iron Mountain & S. Ry. Co. v. Taylor, 210 U.S. 281, 286–87 (1908) (holding that permitting the American Railway Association to set “the standard height of draw bars for freight cars,” which was binding on all railways engaged in interstate commerce, was not an unconstitutional delegation under Buttfield, presumably due to the fact that this was a detail that was constrained by the greater purpose, or primary standard, of the legislation—safety).
  96. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935) (“Accordingly, we look to the statute to see . . . whether Congress in authorizing ‘codes of fair competition’ has itself established the standards of legal obligation . . . or, by the failure to enact such standards, has attempted to transfer that function to others.”); Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (“Moreover, the Congress . . . may establish primary standards, devolving upon others the duty to carry out the declared legislative policy”) (citing Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)).
  97. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (citations omitted).
  98. See Buttfield, 192 U.S. at 496.
  99. See Wayman, 23 U.S. at 43.
  100. See J.W. Hampton, 276 U.S. at 406; Buttfield, 192 U.S. at 496. To be sure, Congress’s requirement to provide “defined limits” for the Executive cannot be a high bar and remain consistent with the Court’s precedent. For example, in the statute at issue in Buttfield, Congress provided that the Secretary of the Treasury was to consider “purity, quality, and fitness for consumption” in making its determination. Id. at 494. Further, that statute required the Secretary to appoint a seven-member board of tea “expert[s]” who were to “prepare and submit to [the Secretary] standard samples of tea” and provide recommendations for the “standards of purity, quality, and fitness for consumption” of imported teas. An Act To Prevent the Importation of Impure and Unwholesome Tea, 29 Stat. 604, 605 (1897). Conversely, it is argued here that Congress could not have constitutionally stated a purpose of improving the quality of tea, and then empowered the Secretary to ban all tea of inferior quality, with no exposition as to how the Secretary was to make that determination. While the constraints provided in the Act at issue in Buttfield were admittedly not severe, they nonetheless confined the authority of the Secretary to some extent.
  101. See Schechter Poultry, 295 U.S. at 530, 541–42 (stating that the relevant provision of the Act represents an unconstitutional delegation of authority in part because it “supplies no standards”).
  102. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912); Buttfield, 192 U.S. at 496; St. Louis, Iron Mountain & S. Ry. Co., 210 U.S. 281, 287 (1908).
  103. 11 U.S. (7 Cranch) 382 (1813). Many early cases employed the “conditional fact-finding” test. See, e.g., Miller v. Mayor of New York, 109 U.S. 385, 394 (1883) (“The efficiency of an act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the act shall take effect may be left to such agencies as it may designate.” (citing South Carolina v. Georgia, 93 U.S. 4, 13 (1876)); Field v. Clark, 143 U.S. 649, 694 (1892) (“The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.”) (quoting Locke’s Appeal, 72 Pa. 491, 498 (1873)).
  104. See Aurora, 11 U.S. at 386 (argument of Joseph R. Ingersoll) (stating that making the revival of a law contingent on the President’s proclamation is the equivalent of giving “that proclamation the force of law”); see also Union Bridge Co. v. United States, 204 U.S. 364, 378 (1907) (describing both the statute at issue and the Court’s analysis in Aurora).
  105. Aurora, 11 U.S. at 388.
  106. See Field v. Clark, 143 U.S. 649, 682–83 (1892) (describing the statute at issue in Aurora).
  107. 204 U.S. 364, 387 (1907); see also, J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928) (“Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive.”); Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (“[A]uthorizations given by Congress to selected instrumentalities for the purpose of ascertaining the existence of facts to which legislation is directed, have constantly been sustained.”); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935) (“[T]he Constitution has never been regarded as denying to Congress the [ability to] . . . leav[e] to selected instrumentalities . . . the determination of facts to which the policy as declared by the legislature is to apply.”) (citing Panama Refin., 293 U.S. at 421).
  108. Union Bridge Co., 204 U.S. at 387.
  109. Id. at 366 (quoting An Act Making Appropriations for the Construction, Repair, and Preservation of Certain Public Works on Rivers and Harbors, and for Other Purposes, 30 Stat. 1121, 1153–54 (1899)).
  110. Id.
  111. Id. at 385.
  112. Id. at 386–88.
  113. See supra note 95 (citing to the Court’s discussion of conditional fact finding in both Schechter Poultry and Panama Refining).
  114. Panama Refin. Co. v. Ryan, 293 U.S. 388, 415 (1935).
  115. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 538 (1935) (describing the three “findings” that the President was required to make under the Recovery Act in order to exercise his discretion: (1) find that the proposed trade or industrial code did not inequitably restrict admission to membership in industrial associations; (2) that the proposed code did not promote monopolies; and (3) that the proposed code would “tend to effectuate the policy of” the Act (quoting National Industrial Recovery Act, Pub. L. No. 73-67 § 3, 48 Stat. 195, 196 (1933)).
  116. Id.
  117. Id.
  118. Id. at 537–42.
  119. See, e.g., Union Bridge Co. v. United States, 204 U.S. 364, 386–88 (1907).
  120. See Panama Refin. Co. v. Ryan, 293 U.S. 388, 415 (1935).
  121. See Schechter Poultry, 295 U.S. at 538.
  122. For example, the statute at issue in Buttfield required only that the Secretary of Treasury act with the purpose of excluding the lowest quality of tea. While it could conceivably be argued that this finding of quality constituted a finding of fact, that is not how the Court approached the statute. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904) (finding the statute to simply provide the Secretary of the Treasury with the necessary standard to “effectuate the legislative policy declared in the statute”).
  123. Indeed, it is hard to imagine how Congress would condition an action upon the finding of fact if there were no declared policy. For example, in Union Bridge, what facts would have been relevant to the Secretary of War in determining which bridges must be removed or altered if the policy of promoting the free travel upon navigable waters was not clearly stated? See Union Bridge, 204 U.S. at 366.
  124. This conclusion is bolstered by the fact that the Court in Union Bridge also determined that Congress had previously laid down a “general rule” that the administrator was acting within. See id. at 386.
  125. Gundy v. United States, 139 S. Ct. 2116, 2137 (Gorsuch, J., dissenting).
  126. See id. (citing no direct authority for this proposition).
  127. See, e.g., Loving v. United States, 517 U.S. 748, 768 (1996) (“And it would be contrary to the respect owed the President as Commander in Chief to hold that he may not be given wide discretion and authority.”).
  128. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment) (“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”) .
  129. 299 U.S. 304, 319–20 (1936); see also Youngstown, 343 U.S. at 635–37 (Jackson, J., concurring in the judgment) (explaining that, when the President acts within an area of executive discretion and in accordance with an express or implied congressional authorization, “his authority is at its maximum” and such an act in accordance with a congressional delegation would be afforded “the widest latitude of judicial interpretation”).
  130. Curtiss-Wright, 299 U.S. at 319–22.
  131. See Schoenbrod, supra note 71, at 1260.
  132. Id. at 1260–61.
  133. Field v. Clark, 143 U.S. 649 (1892).
  134. Id. at 1262–63; Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting) (“Wayman itself might be explained by the same principle as applied to the judiciary: Even in the absence of any statute, courts have the power under Article III ‘to regulate their practice.’”) (citing Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)).
  135. The statute at issue in this case was about a trade embargo against the British. See The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 382–83 (1813).
  136. Clark, 143 U.S. 649, 691 (1892).
  137. Wayman, 23 U.S. at 43 (1825). As Justice Gorsuch notes in his dissent, courts possess this power under Article III, regardless of statutory authorization. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting).
  138. See The Federalist No. 78, at 465 (Alexander Hamilton) (“The legislature . . . prescribes the rules by which the duties and rights of every citizen are to be regulated.”).
  139. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting).
  140. See Schoenbrod, supra note 71, at 1260–61.
  141. Id. at 1260.
  142. Or, in other words, the point at which the “intelligible-principle” test got its legs. See supra note 43 (citing cases, beginning in 1948, when the Court began earnestly applying the “intelligible principle” test).
  143. Gundy, 139 S. Ct. at 2130 (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”).
  144. It bears mentioning that any selection of statutes would be an imperfect proxy for the administrative state as a whole (as would any individual field). The purpose of this Note is not to prove that every statute that delegates authority to an administrative agency would be upheld under the traditional tests. Rather, it is intended to show that even these broad delegations are likely constitutional under the traditional tests, indicating that much of the administrative state would fare similarly. While a statute-by-statute analysis might be productive, such an analysis is beyond the scope of this Note. Thus, the selected statutes are apt, if imperfect, vessels by which to gauge the impact of Justice Gorsuch’s dissent.
  145. Big Time Vapes, Inc. v. FDA, 963 F.3d 436, 447 (5th Cir. 2020) (internal quotation marks and citation omitted), petition for cert. filed, (U.S. Dec. 28, 2020) (No. 20-850).
  146. Am. Inst. for Int’l Steel v. United States, 376 F. Supp. 3d 1335, 1344 (Ct. Int’l Trade 2019) (stating that Section 232 “invite[s] the President to regulate commerce by way of means reserved for Congress”).
  147. Id. at 1346–52 (Katzmann, J., concurring dubitante).
  148. 21 U.S.C. § 387a–1 et seq. (2018); Pub. L. No. 111-31, 123 Stat. 1776, 1784 (2009).
  149. 21 U.S.C. § 301, et seq. (2018); Pub. L. No. 75-717, 52 Stat. 1040 (1938); see Big Time Vapes, 963 F.3d at 438.
  150. Big Time Vapes, 963 F.3d at 440. An “e-liquid” is a liquid mixture that is used in electronic vaping products. The liquid is aerosolized by the vaping device and inhaled by the user. See id. at 439 n.11.
  151. Deeming Tobacco Products to Be Subject to the Federal Food, Drug, and Cosmetic Act, 81 Fed. Reg. 28,974, 28,974­–75 (May 10, 2016).
  152. Big Time Vapes, 963 F.3d at 438–440.
  153. Id. at 446.
  154. The plurality opinion, plus Justice Alito’s concurrence.
  155. Big Time Vapes, 963 F.3d. at 447.
  156. Id. (cleaned up).
  157. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125–26 (2000).
  158. 21 U.S.C. § 387 et seq. (2018).
  159. Id. § 387a(b).
  160. Id. (emphasis added).
  161. Id. § 387(20).
  162. Id. § 387d.
  163. Id. § 387e(b), (g).
  164. Id. § 387j(a)(1)–(2), (c)(1)(A).
  165. Id. § 387f(d), (a), 387c(a)(8)(B)(i).
  166. Id. § 321(rr)(1).
  167. Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, 81 Fed. Reg. 28,974, at 28,976 (May 10, 2016).
  168. Id.
  169. 21 U.S.C. § 387a(b) (2018).
  170. Id.
  171. Id.
  172. Appellants’ Principal Brief at 45, Big Time Vapes, Inc. v. FDA, 963 F.3d 436 (5th Cir. 2020) (No. 19-60921), 2020 WL 957184 (emphasis added), petition for cert. filed, (U.S. Dec. 18, 2020) (No. 20-850).
  173. Id. at 58.
  174. Gundy v. United States, 139 S. Ct. 2116, 2130 (2019).
  175. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825).
  176. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912) (citations omitted).
  177. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904).
  178. Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, § 3, 123 Stat. 1776, 1781–82 (2009). While not codified at 21 U.S.C. § 387 et seq., the Fifth Circuit in Big Time Vapes nonetheless relied on it to discern a congressional purpose. As the court put it, “Section 3 is part of the positive law that ran the gauntlet of bicameralism and presentment. That’s a far cry from ‘the sort of unenacted legislative history that often is neither truly legislative nor truly historical.’” Big Time Vapes, 963 F.3d at 444 n.24 (cleaned up) (quoting BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting)). The distinction between statutory and legislative history is beyond the scope of this Note. Suffice it to say, when Congress enacts a statute by bicameralism and presentment, the entirety of that statute is fair game. See Loos, 139 S. Ct. at 906 (Gorsuch, J. dissenting) (describing statutory history as “the record of enacted changes Congress made to the relevant statutory text over time, the sort of textual evidence everyone agrees can sometimes shed light on meaning”).
  179. § 3(2), 123 Stat. at 1781.
  180. § 3(5)–(9), 123 Stat. at 1782.
  181. § 3(3), 123 Stat. at 1782.
  182. Buttfield, 192 U.S. at 496.
  183. Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380 (1912).
  184. Id. at 394.
  185. See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (stating that it is “frequently necessary to use officers of the Executive Branch, within defined limits”) (emphasis added). To be sure, Congress could express a clear purpose but provide no guidance on how the delegee was to achieve that purpose. Such a delegation, while it may contain a “sufficient primary standard” would almost certainly be an unconstitutional delegation of legislative authority. For example, suppose Congress passed a law to combat homelessness. In that hypothetical law, there are three sections: The first section creates a “Homelessness Commission”; the second section instructs the Homelessness Commission to “by the year 2024, reduce homelessness in America by 98%, by whatever means the Commission deems appropriate”; and the third section defines “homelessness.” The purpose here is exceptionally clear, and yet it is uncontroversial that providing no guidance as to how to achieve that purpose would be constitutionally problematic.
  186. Id. (emphasis added).
  187. Tariff Act of 1922, ch. 356, § 315, 42 Stat. 858, 941–43 (1922).
  188. See Hampton, Jr., & Co. v. United States, 14 Ct. Cust. App. 350, 361–67, T.D. 42030 (1927).
  189. It is illustrative because Justice Gorsuch stated that the statute at issue in J.W. Hampton likely “passed muster under the traditional tests.” Gundy v. United States, 139 S. Ct. 2116, 2139 (2019) (Gorsuch, J., dissenting).
  190. Hampton. Jr., & Co., 14 Ct. Cust. App. at 362.
  191. Id. at 361–63.
  192. Id. at 362.
  193. Id.
  194. Id at 361–62.
  195. Id. at 362.
  196. Id.
  197. Big Time Vapes, Inc. v. FDA 963 F.3d 436, 445 (5th Cir. 2020) (citing 21 U.S.C. § 321(rr)(1)), petition for cert. filed, (U.S. Dec. 18, 2020) (No. 20-850).
  198. 21 U.S.C. § 387a(b) (2018) (subjecting all cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco to TCA regulation).
  199. Id. § 387d(a).
  200. Id. § 387e(i)(1).
  201. Id. § 387j(a)–(c).
  202. Big Time Vapes, 963 F.3d at 446.
  203. 21 U.S.C. § 387a(b).
  204. 19 U.S.C. § 1862 (2018).
  205. 376 F. Supp. 3d 1335, 1337, 1345 (Ct. Int’l Trade 2019), cert. denied, 141 S. Ct. 133 (June 22, 2020) (No. 19-1117).
  206. Id. at 1346–47 (Katzmann, J., concurring dubitante) (“While acknowledging the binding force of [Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976)], with the benefit of the fullness of time and the clarifying understanding borne of recent actions, I have grave doubts.”).
  207. This statute has been the focus of much criticism for the breadth of discretion it confers on the President. See, e.g., Paul Bettencourt, Note, “Essentially Limitless”: Restraining Administrative Overreach Under Section 232, 17 Geo. J.L. Pub. Pol’y 711, 726–27 (2019) (analyzing Section 232 under a nondelegation framework, using the AIIS case as an example, but claiming that challenging the statute on a nondelegation basis would be “unlikely to succeed” unless “the Court revisits its jurisprudence”).
  208. 19 U.S.C. § 1862 (2018).
  209. Id. § 1862(b)(1)(A).
  210. Id. § 1862(b)(3)(A).
  211. Id.
  212. Id. § 1862(c)(1)(A).
  213. Id. § 1862(c)(1)(A)(ii).
  214. Id. § 1862(c)(1)(B), (c)(2).
  215. Id. § 1862(d).
  216. Id.
  217. Id. This is significant because it empowers the President to effectively conflate “economy” with “security.”
  218. Proclamation No. 9705, 83 Fed. Reg. 11,625, at 11,626 (Mar. 8, 2018).
  219. Proclamation No. 9704, 83 Fed. Reg. 11,619, at 11,620 (Mar. 8, 2018).
  220. Prior to the Trump administration, a President acted pursuant to Section 232 on six occasions, the last of which occurred in 1986. See Rachel F. Fefer et al., Cong. Rsch. Serv., Section 232 Investigations: Overview and Issues for Congress 4, App. B (2020). In contrast, under the Trump administration there were five investigations. Id. at app. B. Two of those investigations resulted in the imposition of tariffs, two are still in process, and one seemingly expired with no action due to a missed deadline. See id. at App. B. (providing a table of Section 232 investigations dating back to 1963); see also David Lawder, Trump Can No Longer Impose ‘Section 232’ Auto Tariffs After Missing Deadline: Experts, Reuters (Nov. 19, 2019), https://www.reuters.com/article/us-usa-trade-autos/trump-can-no-longer-impose-section-232-auto-tariffs-after-missing-deadline-experts-idUSKBN1XT0TK [https://perma.cc/D5QY-X7ZX] (stating that the statutory deadline for the Section 232 investigation being used to impose tariffs on foreign-made cars and auto parts passed with no action, forfeiting the administration’s opportunity to utilize such tariffs).
  221. See Fefer, supra note 219, at 7 (noting that in his Memo on proposed Section 232 tariffs, Secretary of Defense James Mattis, while agreeing that “imports of foreign steel and aluminum based on unfair trading practices impair the national security,” ultimately disagreed with the President’s broad-brushed imposition of tariffs in this instance, as “U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production”) (quoting Letter from James N. Mattis, Secretary of Defense, to Wilbur L. Ross Jr., Secretary of Commerce (2018), https://www.commerce.gov/sites/default/files/depart‌ment_of_defense_memo_response_to_steel_and_aluminum_policy_recommendations.pdf [https://perma.cc/M2FB-U63M]; see also Editorial Board, The National Security Tariff Ruse, Wall St. J. (Mar. 12, 2018), https://www.wsj.com/articles/the-national-security-tariff-ruse-1520897310 [https://perma.cc/V9UP-VYCY] (describing the Trump administration’s use of Section 232 to justify tariffs as “dubious,” because “[n]ot even the Pentagon buys” the notion “that steel and aluminum imports make the U.S. military vulnerable”); John Brinkley, Trump’s National Security Tariffs Have Nothing To Do with National Security, Forbes (Mar. 12, 2018) https://www.forbes.com/sites/johnbrinkley/2018/03/12/trumps-national-security-tariffs-have-nothing-to-do-with-national-security/?sh=197f0c6e706c [https://perma.cc/WZE3-AYNP] (arguing that “[t]he national security argument [on behalf of the tariffs] is a sham and everyone knows it,” as “[n]ot even Defense Secretary James Mattis bought it”).
  222. See Brinkley, supra note 220 (“It’s obvious that [the President] used the national security argument as a pretense for something he wanted to do, but for which he had no other legal justification.”).
  223. See Fefer, supra note 219, at 12 (quoting Requirements for Submissions Requesting Exclusions from the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel into the United States and Adjusting Imports of Aluminum into the United States, 83 Fed. Reg. 12,106 (Mar. 19, 2018)).
  224. Andrea Shalal, U.S. Handling of Tariffs Raises Appearance of ‘Improper Influence’: Watchdog, Reuters (Oct. 30, 2019) (quotation omitted), https://www.reuters.com/article/us-usa-trade-steel/u-s-handling-of-tariffs-raises-appearance-of-improper-influence-watchdog-idUSKBN1X92KP?feedType=RSS&feedName=topNews [https://perma.cc/5XPA-33J6].
  225. Fefer, supra note 219, at 12–15; see also Shalal, supra note 223 (explaining that the Commerce Department’s inspector general found a lack of transparency surrounding the Trump Administration’s tariff policy).
  226. 426 U.S. 548, 558–60 (1976).
  227. Proclamation No. 4341, 40 Fed. Reg. 3965, 3966 (Jan. 27, 1975); see also Algonquin, 426 U.S. at 554–55 (observing that President Ford’s Proclamation targeted the importation of petroleum and derivative products on the basis of national security concerns).
  228. Algonquin SNG, Inc. v. Fed. Energy Admin., 518 F.2d 1051, 1062 (D.C. Cir. 1975) (“[W]e do not say that Congress cannot constitutionally delegate, accompanied by an intelligible standard, such authority to the President; we merely find that they have not done so by this statute. We reach no conclusion on any delegation issue raised by the parties.”).
  229. Id.
  230. Id.
  231. Algonquin, 426 U.S. at 570–71.
  232. Id. at 559.
  233. Id. at 558–60.
  234. Id. at 559.
  235. 19 U.S.C. § 1862(b) (2018) (preconditioning the President’s action on the determination of the Secretary of Commerce).
  236. Id. § 1862(a).
  237. Algonquin, 426 U.S. at 559.
  238. Id. (quoting 19 U.S.C. § 1862(b)).
  239. Id.
  240. See 19 U.S.C. § 1862(d) (providing, among other factors, that the President should, “without excluding other relevant factors” consider factors such as “unemployment,” “effects resulting from the displacement of any domestic products by excessive imports,” and “the investment, exploration, and development necessary to assure” growth of domestic industries pertinent to national security).
  241. See Algonquin, 426 U.S. at 559.
  242. 376 F. Supp. 3d 1335 (Ct. Int’l Trade 2019).
  243. Id. at 1344–45.
  244. Id. at 1345 (citation omitted).
  245. Not to be confused with Second Circuit Senior Judge Robert Katzmann.
  246. Am. Inst. for Int’l Steel, 376 F. Supp. at 1347 (Katzmann, J., concurring dubitante).
  247. Id. at 1346. Judge Katzmann previously concluded that the power at issue, imposing duties and tariffs, “is a core legislative function.” Id.
  248. Id. at 1351–52.
  249. Id. at 1352.
  250. Id.
  251. Certainly, those who would claim that Justice Gorsuch’s position makes “most of Government . . . unconstitutional” would seem to agree with this statement. See Gundy v. United States, 139 S. Ct. 2116, 2130 (2019) (plurality opinion).
  252. See Am. Inst. for Int’l. Steel, 376 F. Supp. 3d at 1344–45 (majority opinion) (concluding that although, among other concerns, Section 232 “bestow[s] flexibility on the President and seem[s] to invite the President to regulate commerce by way of means reserved for Congress, leaving very few tools beyond his reach,” “such concerns are beyond this court’s power to address, given the Supreme Court’s decision in Algonquin”); see also id. at 1352 (Katzmann, J., concurring dubitante) (“[I]t is difficult to escape the conclusion that [Section 232] has permitted the transfer of power to the President in violation of the separation of powers.”). The conclusion that Section 232 presents a nondelegation “close call” is not undercut by the cursory analysis provided by the Court in Algonquin. To be sure, the Court there stated that Section 232 “easily fulfills” the intelligible-principle test. Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976). That statement notwithstanding, as stated above, the Court did not meaningfully analyze the delegation claim in Algonquin. See supra Subsection IV.B.ii.
  253. See supra Section III.B.
  254. Cf. Am. Inst. for Int’l. Steel, 376 F. Supp. 3d at 1352 (Katzmann, J., concurring dubitante) (providing brief recognition of “the flexibility that can be allowed the President in the conduct of foreign affairs”).
  255. Id. at 1346 (Katzmann, J., concurring dubitante).
  256. 19 U.S.C. § 1862(a) (2018).
  257. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
  258. See supra Section III.C.
  259. 19 U.S.C. § 1862(c)(1)(A). Indeed, the Court in Algonquin stated as much. Fed. Energy Admin v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976) (“[Section 232] establishes clear preconditions to Presidential action.”).
  260. Compare A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 538 (1935) (holding that the conditions precedent to presidential action in the Recovery Act were more appropriately described as “a statement of an opinion as to the general effect” that the proposed regulations would have) with The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 382–83, 388–89 (1813) (holding that delegating the authority to the President to reinstate a law based on the factual determination of Great Britain’s ceasing to violate the neutral commerce of the United States was constitutionally permissible).
  261. 19 U.S.C. § 1862(c)(1)(A).
  262. See, e.g., Aurora, 11 U.S. at 382, 387–89 (reviewing the statutory scheme that “ma[d]e the revival of an act depend upon a future event”); Union Bridge Co. v. United States, 204 U.S. 364, 366–67 (1907) (requiring a finding of “an unreasonable obstruction to the free navigation” of navigable waters).
  263. See supra note 114 (listing the precedent findings the President was required to make under the Recovery Act at issue in Schechter Poultry).
  264. 19 U.S.C. § 1862(d).
  265. Schechter Poultry, 295 U.S. at 538 (citations omitted).
  266. Id.
  267. See 19 U.S.C. § 1862(a), (b), (c).
  268. Schechter Poultry, 295 U.S. at 538.
  269. Meshal v. Higginbotham, 804 F.3d 417, 443 (D.C. Cir. 2015) (Pillard, J., dissenting).
  270. See, e.g., Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1577–87 (2011) (providing an in-depth analysis of how to best define “national security”).
  271. Id. at 1580.
  272. 19 U.S.C. § 1862(a); see also, Bettencourt, supra note 206, at 715 (noting the “broad discretion” granted to the “executive branch’s interpretation of ‘national security’” under Section 232) (citation omitted).
  273. See Schoenbrod, supra note 71, at 1260.
  274. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–20 (1936).
  275. See, e.g., Abraham D. Sofaer, Presidential Power and National Security, 37 Presidential Stud. Q. 101, 120 (2007) (“The Constitution allocates powers over national security to all the branches that enable each to affect national policy.”); Schoenbrod, supra note 71, at 1260–61 (describing the confluence of executive and legislative power in the “war and foreign affairs” context).
  276. Sofaer, supra note 274, at 120. For example, Congress holds the power to declare war, U.S. Const. art. I, § 8, while the President, as Commander in Chief, exercises simultaneous military and national security powers. U.S. Const. art. II, § 2.
  277. Gundy v. United States, 139 S. Ct. 2116, 2137 (2019) (Gorsuch, J., dissenting); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment) (“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence.”).
  278. To be sure, an analysis of executive powers is a topic of ongoing debate and is well beyond the scope of this Note. See, e.g., Sofaer, supra note 274, at 120–22 (explaining the debate over those powers which are exercised exclusively by the President and which powers are shared with other branches).
  279. Id. at 120.
  280. U.S. Const. art. I, § 8; see also Am. Inst. for Int’l Steel v. United States, 376 F. Supp. 3d 1335, 1346 (Ct. Int’l Trade 2019) (Katzmann, J., concurring dubitante) (“[T]he power to impose duties is a core legislative function.”).
  281. Schoenbrod, supra note 71, at 1260.
  282. This, clearly, does not require a finding that the administration’s actions under Section 232 discussed previously are permissible. Those actions remain subject to challenge on the grounds that the President has stepped beyond the bounds of Section 232 and is not acting in the interest of national security. That analysis encompasses an entirely different set of questions and is not addressed by this Note.
  283. Gundy v. United States, 139 S. Ct. 2116, 2145 (2019) (Gorsuch, J., dissenting).
  284. Id. at 2130 (plurality opinion).
  285. Yakus v. United States, 321 U.S. 414, 425 (1944) (alterations in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)).

Velvet Rope Discrimination

Public accommodations are private and public facilities that are held out to and used by the public. Public accommodations were significant battlegrounds for the Civil Rights Movement as protesters and litigators fought for equal access to swimming pools, movie theaters, and lunch counters. These sites were also important for the Women’s Rights Movement, which challenged sexist norms that prohibited their service in bars and restaurants if they were unaccompanied by men. Tragically, public accommodations receive less attention within the civil rights race and gender agenda today. This inattention exists despite media accounts, case law, and empirical data that demonstrate that discrimination based on race and sex thrives in these spaces. This Article focuses on two normalized practices that violate federal and state anti-discrimination laws yet have been undertheorized in the public accommodations context: dress codes and gender-based pricing in bars, restaurants, and nightclubs. It deploys legal history to illustrate how assumptions about race and sex have determined access to these public accommodations for more than a century. Statutory developments—mostly notably Title II of the Civil Rights Act of 1964 and similar state analogs—helped cabin racial and gender discrimination in public accommodations. Yet throughout the late 1960s, “velvet rope discrimination” evolved, which refers to the use of legally protected categories by public accommodations in their determinations of who is granted entry and in their provision of service. This Article examines public accommodations law through the lens of velvet rope discrimination and argues for the legal prohibition of dress codes and gender-based pricing. These policies traffic dangerous stereotypes about racial minorities, women, and the LGBTQ community and preclude their equal enjoyment of these facilities. By offering the first comprehensive account of two overlooked practices, this Article presents a new way of thinking about anti-discrimination law and democratic inclusion.

Introduction

The legal trouble for Gaslamp, a beleaguered Houston-based nightclub, began in 2015. In May of that year, some women of color attempted to gain access into the club but were refused entry. A sympathetic white woman, clearly miffed by the refusal, attempted to intervene to no avail. By chance, someone happened to be recording the incident. “That is so racist,” the white woman exclaimed.1.Joey Guerra, Video: Gaslamp Employee Says ‘Have a Good Night in the ‘Hood,’ Hous. Chron. (Sept. 28, 2016, 6:16 PM), https://www.chron.com/entertainment/restaurants-bars/article/Video-Gaslamp-employee-says-have-a-good-night-6522262.php [https://perma.cc/VP5K-9FSM].Show More Commenting on what appeared to be textbook discrimination, she added, “I’m white, and I got in for free. They were right behind me, and they charged them 20 bucks. They’re [B]lack.”2.Id.Show More One African-American woman added, “He didn’t even look at us. He didn’t even look at our IDs . . . He just said, ‘$20.’”3.Id.Show More The club’s gatekeepers made matters worse. After some laughs, waves, and blown kisses toward the camera, one of the doormen taunted, “How ‘bout this, Yelp it.”4.Id.Show More Another teased, “Have a good night in the ‘hood’ . . . Tell Tyrone I said hi.”5.Id.Show More In a world where legal remedies for civil rights violations are limited,6.See, e.g., Nancy Leong & Aaron Belzer, The New Public Accommodations: Race Discrimination in the Platform Economy, 105 Geo. L.J. 1271, 1275–76 (2017) (discussing the inadequacies of public accommodations anti-discrimination laws in the platform economy business model); Stephen B. Burbank & Sean Farhang, Rights and Retrenchment: The Counterrevolution Against Federal Litigation 3 (2017) (recounting a successful movement beginning in the 1980s to undermine the possibility of the enforcement of individual rights through private litigation); Kate Sablosky Elengold, Consumer Remedies for Civil Rights, 99 B.U. L. Rev. 587, 598–99 (2019) (describing the difficulties in applying anti-discrimination statutes).Show More the incident would seemingly fade away.

In another encounter, three Black men sought entry into Gaslamp but were presented with a $20 entry fee that they declined to pay.7.Phaedra Cook, Midtown Nightclub Accused of Discriminatory Practices, Hous. Press (Sept. 14, 2015, 6:00 AM), https://www.houstonpress.com/restaurants/midtown-nightclub-accused-of-discriminatory-practices-7762250 [https://perma.cc/3KCW-X9AX]; Grizzard, Houston Bar Discriminates Against Blacks, Lawyer Tim Sutherland Lies, Says Federal Law Doesn’t Apply, Daily Kos (Sept. 18, 2015, 1:38 PM), https://www.dailykos.com/­stories/2015/9/18/1422605/-Houston-Bar-Discriminates-Against-Blacks-Lawyer-Tim-Sutherland-Lies-Says-Federal-Law-Doesn-t-Apply [https://perma.cc/VL3C-JN3K].Show More When walking by a few minutes later, they saw white men entering Gaslamp without paying the entry fee, while African Americans, Asian Americans, and Latinx people were being asked to pay the entry fee.8.Grizzard, supra note 7.Show More Again, suspicions of racial discrimination grew. Interracial corroboration was noteworthy here too. After observing how the club implemented its cover fee, a white ally revealed, “They were letting all white guys in for free and charging minority men a cover fee . . . It never had anything to do with dress code . . . If a minority male showed up with a bunch of women, sometime [sic] they’d let them in.”9.Cook, supra note 7.Show More

After these allegations went public, Gaslamp’s lawyer explained that the cover charge was not about race, but about gender and sexuality. “Our club doesn’t allow multiple males with no females, so our policy is to charge a cover for that group,” he explained.10 10.Id.Show More He admitted that women’s payment of the cover charge was a discretionary decision made by bouncers and noted that “[s]ometimes the door guy thinks you’re a smokin’ hot babe, and you get in free.”11 11.Grizzard, supra note 7.Show More The attorney also acknowledged that there was no predetermined ideal ratio of men to women, and recommended, “[Y]ou’d want at least one [woman] for a group of three [men] and a one-to-one ratio is better.”12 12.Cook, supra note 7.Show More One of the bouncers who worked the door the night the men were excluded was less diplomatic. He described the three men in a subsequently deleted Facebook post as, “3 old, out of shape, with no girls dorks lol.”13 13.Id.Show More Those three men happened to be lawyers.14 14.Id.Show More They filed a lawsuit in federal court under Title II of the Civil Rights Act of 1964,15 15.Cara Smith, Houston Lawyers Sue Popular Midtown Bar, Support HERO, Hous. Bus. J. (Nov. 2, 2015, 9:28 AM), https://www.bizjournals.com/houston/morning_call/2015/11/‌houston-lawyers-sue-popular-midtown-bar-support.html [https://perma.cc/YBD7-YX22].Show More which prohibits racial discrimination in public accommodations.16 16.42 U.S.C. § 2000a.Show More President Obama’s Department of Justice intervened in 2016 and the agency settled with the club two years later under the Trump Administration.17 17.Settlement Agreement, United States v. Ayman Jarrah, No. 4:16-cv-02906 (S.D. Tex. Feb. 1, 2018), https://www.justice.gov/crt/case-document/file/1031751/download [https://perma.cc/L8DG-QET7] (requiring the defendant to cease discriminating, engage in training on the substantive provisions of Title II, publicize a non-discrimination policy in its entrance, and develop a program to monitor compliance with Title II).Show More

At the heart of the Gaslamp fiasco is a constellation of normalized social and legal practices that I refer to as “velvet rope discrimination.” I borrow and adapt this term from sociologist Reuben Buford May, who developed the term “velvet rope racism” to focus specifically on racial discrimination in nightlife.18 18.See Reuben A. Buford May, Velvet Rope Racism, Racial Paranoia, and Cultural Scripts: Alleged Dress Code Discrimination in Urban Nightlife, 2000–2014, 17 City & Cmty. 44, 45, 51–52 (2018).Show More The analysis here, which focuses specifically on bars, restaurants, and nightclubs expands the concept to focus on race as well as gender and sexuality. The practices that constitute velvet rope discrimination have gone relatively unnoticed by legal scholars despite ample litigation,19 19.See, e.g., supra note 15; infra notes 295–99, 301–02.Show More as well as varying treatments in social sciences, humanities, and journalism.20 20.See, e.g., Reuben A. Buford May, Urban Nightlife: Entertaining Race, Class, and Culture in Public Space 8–9 (2014); Philip R. Kavanaugh & Tammy L. Anderson, Managing Physical and Sexual Assault Risk in Urban Nightlife: Individual- and Environmental-Level Influences, 30 Deviant Behav. 680, 706 (2009); James G. Fox & James J. Sobol, Drinking Patterns, Social Interaction, and Barroom Behavior: A Routine Activities Approach, 21 Deviant Behav. 429, 440–41 (2000); Emily Heil, A Baltimore Restaurant Group Apologizes to a Black Woman and Son for Unequally Enforcing Its Dress Code, Wash. Post (June 23, 2020, 7:00 PM), https://www.washingtonpost.com/news/voraciously/wp/2020/06/23/a-baltimore-restaurant-group-apologizes-to-a-black-woman-and-son-for-unequally-enforcing-its-dress-code/ [https://perma.cc/F7UC-K8EF]; Emily Suzanne Lever, Man Suing NYC Bar for $50K Claiming They Discriminated Against Men by Hosting Ladies Night (Oct. 15, 2019, 3:41 PM), https://gothamist.com/news/man-sues-bar-ladies-night-discrimination [https://perma. ‌cc/H4KR-BXLB].Show More Far from an isolated set of incidents, the exclusion faced by the men and women at Gaslamp is part of a larger, jagged evolution of anti-discrimination law. Racial, gender, and sexual considerations thrive in public accommodations despite running afoul of a host of federal, state, and local anti-discrimination laws.21 21.See Wash. Rev. Code§ 49.60.215 (2020) (“It shall be an unfair practice for any person . . . to commit an act which directly or indirectly results in any . . . discrimination . . . or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement . . . .”) (emphasis added); Or. Rev. Stat. § 659A.403 (2020) (“[A]ll persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age . . . .”) (emphasis added); Conn. Gen. Stat. § 46a-64 (2017) (“It shall be a discriminatory practice . . . [t]o deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability, physical disability, including, but not limited to, blindness or deafness, or status as a veteran, of the applicant . . . .”) (emphasis added).Show More Notwithstanding Richard Epstein’s assertation a quarter century ago that “the law of public accommodations could be described as ‘ancient history,’”22 22.Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 128 (1995).Show More available descriptive and empirical accounts indicate that race and sex discrimination flourish in restaurants and nightlife.23 23.Lauren A. Rivera, Status Distinctions in Interaction: Social Selection and Exclusion at an Elite Nightclub, 33 Qualitative Socio. 229, 239 (2010); Reuben A. Buford May & Kenneth Sean Chaplin, Cracking the Code: Race, Class, and Access to Nightclubs in Urban America, 31 Qualitative Socio. 57, 58, 60 (2007) (examining racial discrimination in Athens, Georgia through participant observation); David Grazian, Urban Nightlife, Social Capital, and the Public Life of Cities, 24 Socio. F. 908, 915–16 (2009) (offering empirical data about racial and class barriers, the normalization of gender differences, and the lack of inclusiveness in nightlife to argue that nightlife can serve as a bonding mechanism).Show More

This Article fills a gaping hole in statutory anti-discrimination law scholarship. With the exception of Joseph Singer’s work and an important article by Elizabeth Sepper and Deborah Dinner, anti-discrimination law is heavily centered on the veritable problems of housing and employment, with less attention given to public accommodations.24 24.Most generally, Joseph Singer has shaped recent legal thinking on race and public accommodations, whereas Elizabeth Sepper and Deborah Dinner have recently written about sex discrimination in public accommodations. SeeJoseph William Singer, We Don’t Serve Your Kind Here: Public Accommodations and the Mark of Sodom, 95 B.U. L. Rev. 929, 930, 950 (2015); Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. L. Rev. 1283, 1286, 1296 (1996); Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78, 83 (2019). This Article is indebted to their work and extends their analyses. There are also some helpful but dated accounts of discrimination in bars and nightclubs in a few student notes. These various insights are all helpful but fail to capture the robustness of contemporary public accommodations discrimination. See, e.g., Lisa Gabrielle Lerman & Annette K. Sanderson, Project, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N.Y.U. Rev. L. & Soc. Change 215, 250 (1978); Alan J. Hoff, Note, A Proposed Analysis for Gender-Based Practices and State Public Accommodations Laws, 16 U. Mich. J.L. Reform 135, 137 (1982) (arguing that gender-preferential practices are acceptable when applied reasonably); Joyce L. McClements & Cheryl J. Thomas, Comment, Public Accommodations Statutes: Is Ladies’ Night Out?, 37 Mercer L. Rev. 1605, 1605 (1986) (discussing the use of public accommodations laws by men for sex discrimination claims in the 1980s); Heidi C. Paulson, Note, Ladies’ Night Discounts: Should We Bar Them or Promote Them?, 32 B.C. L. Rev. 487, 489 (1991) (exploring “ladies night” events and gender-based pricing in relation to public accommodations laws and sex discrimination between the 1980s and the beginning of the 1990s); Jessica E. Rank, Comment, Is Ladies’ Night Really Sex Discrimination?: Public Accommodation Laws, De Minimis Exceptions, and Stigmatic Injury, 36 Seton Hall L. Rev. 223, 225–28 (2005) (describing the variety of approaches to the issue of “ladies night” sex discrimination around the country). Some particularly instructive insights have been offered by scholars who have addressed these issues in a few pages of what are larger, book-length projects on anti-discrimination law. See Nancy Levit, The Gender Line: Men, Women, and the Law 102–04 (1998) (providing examples of “ladies night” discrimination and examining various state sex discrimination laws); Richard Thompson Ford, Rights Gone Wrong: How Law Corrupts the Struggle for Equality 85–92 (2011) (discussing specific cases of gender discrimination and distinguishing between harmless and harmful gender distinctions); Joanna L. Grossman, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace 2–3 (2016) (analyzing a “ladies night” case in New Jersey in an exploration of sex discrimination). For helpful takes on housing discrimination, see Lee Anne Fennell, Searching for Fair Housing, 97 B.U. L. Rev. 349, 351–52 (2017) (exploring the underlying racial biases of home seekers as they relate to housing discrimination); Rachel D. Godsil, The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319, 324 (2013) (conducting a historical analysis of gentrification and offering alternative legal mechanisms for in-place residents facing gentrification); Olatunde Johnson, The Last Plank: Rethinking Public and Private Power to Advance Fair Housing, 13 U. Pa. J. Const. L. 1191, 1193, 1195–96 (2011) (examining the Fair Housing Act’s enforcement regime and its mandate to affirmatively further fair housing). For instructive treatments of employment discrimination, see Tristin K. Green, Racial Emotion in the Workplace, 86 S. Cal. L. Rev. 959, 969 (2013) (arguing that racial emotion is a source of discrimination in the workplace in order to advocate for more comprehensive laws that will better recognize and address this form of discrimination); Serena Mayeri, Intersectionality and Title VII: A Brief (Pre-)History, 95 B.U. L. Rev. 713, 715 (2015) (providing an analysis of the role of intersectionality in the development and execution of Title II of the Civil Rights Act of 1964); Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 718 (2014) (analyzing cases on gender stereotyping and sexual orientation claims in the workplace).Show More Alternatively, attention is given to public spaces, but primarily through the lens of disability law or the longstanding public accommodations clash between religion and sexuality.25 25.For recent examinations of the interface of religion and sexual orientation in these sites, see Pamela S. Karlan, Just Desserts?: Public Accommodations, Religious Accommodations, Racial Equality, and Gay Rights, 2018 Sup. Ct. Rev. 145, 146; Melissa Murray, Inverting Animus: Masterpiece Cakeshop and the New Minorities, 2018 Sup. Ct. Rev. 257, 257–58 (2018); Elizabeth Sepper, The Role of Religion in State Public Accommodations Laws, 60 St. Louis U. L.J. 631, 636–37 (2016) (tracking religious exemptions in public accommodations law). The Americans with Disabilities Act goes further than Title II in that it requires an affirmative duty to remove physical barriers to access to ensure that people are not discriminated against on the basis of disability See 42 U.S.C. § 12181. Some of the most helpful takes on disability and public accommodations include: Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stan. L. Rev. 1205, 1208–09 (2014); Elizabeth F. Emens, Integrating Accommodation, 156 U. Pa. L. Rev. 839, 843 (2008) (identifying certain benefits created for third parties by the Americans with Disabilities Act); Colin Crawford, Cyberplace: Defining A Right to Internet Access Through Public Accommodation Law, 76 Temp. L. Rev. 225, 227–28 (2003) (exploring whether to impose a public accommodations law framework onto cyberspace); Robert L. Burgdorf, Jr., “Equal Members of the Community”: The Public Accommodations Provisions of the Americans with Disabilities Act, 64 Temp. L. Rev. 551, 554 (1991).Show More This Article deploys the gifts of legal history to supplement these lines of inquiry and make the case that discrimination in public accommodations matters in the context of racial, gender, and LGBTQ justice. Two intellectual moves are central to this endeavor.

First, the Article sketches out the terrain of velvet rope discrimination, which I define as the use of legally protected categories by public accommodations in their determinations of who is granted entry and in their provision of service. The legal categories I focus on are race and sex, and the public accommodations of interest in this Article are bars, restaurants, and nightclubs. I pay particular attention to gender-based pricing schemes, the use of dress codes as proxies for race, and the trafficking of stereotypes that come with these forms of vetting. This descriptive endeavor shows how law, in some ways, is well-suited to regulate velvet rope discrimination but in other ways is ill-equipped to satisfy the goal of equal access to public accommodations. Entry into these spaces is often granted or denied based on stereotypes that could be considered socially objectionable and legally impermissible if actually uttered. In ways that hark back to the 1970s critiques of romantic paternalism,26 26.Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (“Traditionally, [sex] discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”).Show More women are considered ideal customers because their presence ostensibly increases alcohol purchases by men (as gifts, courtship, and/or status displays).27 27.Rivera, supra note 23, at 239.Show More Dress codes attempt to curate audiences by prohibiting styles associated with racial minorities or maintaining requirements that exclude gender non-conforming individuals. Most generally, the discretionary aspect of admission—which is lightly regulated as a legal matter28 28.Robert Bork foresaw the enforcement problems with Title II before it was passed.Of what value is a law which compels service to Negroes without close surveillance to make sure the service is on the same terms given to whites? It is not difficult to imagine many ways in which barbers, landlords, lunch counter operators, and the like can nominally comply with the law but effectively discourage Negro patrons. Must federal law enforcement agencies become in effect public utility commissions charged with the supervision of the nation’s business establishments or will the law become an unenforceable symbol of hypocritical righteousness?Robert Bork, Civil Rights – A Challenge, New Republic, Aug. 31, 1963, at 23.Show More—is rife with potential discrimination along a host of categories (e.g., race, gender, sexual orientation, color, national origin).

The second move is normative and unsettles taken-for-granted assumptions about law, public accommodations, and leisure. Here, I argue that in the context of public accommodations, the use of dress codes and gender-based pricing—core features of velvet rope discrimination—should be prohibited. This prescriptive position is rooted in a close analysis of public accommodations jurisprudence and growing statutory developments. Unlike Title VII, which covers employment discrimination and contains a business necessity clause that allows employers to discriminate based on legally protected categories,29 29.42 U.S.C. § 2000e-2(e).Show More Title II of the Civil Rights Act of 1964 does not contain a business necessity defense30 30.42 U.S.C. § 2000a.Show More and courts have routinely rejected such arguments in the public accommodations context.31 31.See sources cited infra notes 372–73 (discussing cases).Show More Moreover, jurisdictions are slowly adopting anti-discrimination provisions designed to combat velvet rope discrimination.32 32.See sources cited infra notes 351, 360–63, 366 (discussing recent legislation designed to curtail velvet rope discrimination).Show More The combination of settled jurisprudence and a budding statutory shift suggests that the Article’s normative position, which may seem initially jarring, actually has bases in settled law.

This Article proceeds in four parts. Part I outlines the development of federal and state statutes that prohibit discrimination in public accommodations. These laws surfaced after the Civil War and became most notable when Congress passed the Civil Rights Act of 1875,33 33.Pub. L. No. 43-114, 18 Stat. 335–37, invalidated by Civil Rights Cases, 109 U.S. 3 (1883).Show More which the Court struck down in the 1883 Civil Rights Cases.34 34.109 U.S. 3, 26 (1883).Show More That decision, along with Plessy v. Ferguson,35 35.163 U.S. 537, 550–51 (1896).Show More led more states to pass public accommodations statutes. None of these laws prohibited sex-based segregation. Such discrimination was normalized as a reasonable feature of human relations.36 36.SeeBarbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855–1914, 13 L. & Hist. Rev. 261, 271 (1995).Show More Nevertheless, in the first half of the twentieth century, when there was no federally recognized right to equal access to public accommodations, minority leisure-seekers used state laws to contest their exclusion from this realm of social life.37 37.See e.g., infra notes 83, 103, 111, 118.Show More These cases provided fodder for challenges to recreational segregation after the Court invalidated Jim Crow in Brown v. Board of Education38 38.347 U.S. 483, 495 (1954).Show More and presaged the passage of Title II of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations based on race, color, religion, or national origin. Gender again would be left out of public accommodations laws’ purview. It would take approximately a decade for a majority of states to include sex in their anti-discrimination statutes.39 39.Sepper & Dinner, supra note 24, at 104, 111.Show More This federal and state framework buoyed existing local agencies that developed their own municipal prohibitions on public accommodations discrimination.40 40.See Charles S. Rhyne & Brice W. Rhyne, Civil Rights Ordinances 71–89 (1963); Joseph Parker Witherspoon, Administrative Implementation of Civil Rights 531–38 (1968).Show More

The accretion of laws prohibiting public accommodations discrimination should, in theory, regulate discrimination against protected groups in bars, restaurants, and nightclubs. However, Part II suggests otherwise and sketches the contours of velvet rope discrimination. I begin this Part by describing the myriad ways restaurants, bars, and nightclubs promote practices that, at first glance, contravene anti-discrimination laws and, in some instances, actually violate such laws based on determinations by courts and agencies. In the 1960s, some of these entities responded to the new civil rights landscape by mimicking other integration-resistant public accommodations. Some claimed private status or mandated the display of selectively furnished “membership cards.”41 41.See, e.g., United States v. Jordan, 302 F. Supp. 370, 374 (E.D. La. 1969); United States v. Nw. La. Rest. Club, 256 F. Supp. 151, 153 (W.D. La. 1966).Show More Other public accommodations rigorously enforced real and unstated dress codes; this emerged as the more economically and socially defensible practice. Dress codes—which were tied to sartorial practices that preceded anti-discrimination law42 42.Ruthann Robson, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes, 8–27 (2013) (describing the historical development of laws regulating dress).Show More—became a salient screening mechanism for innocent profit-seekers and bigots alike. Sex integration in public accommodations was also contested as women fought for access to exclusionary bars and restaurants.43 43.See sources cited infra notes 204–11 (discussing early instances of discrimination in bars and restaurants in the mid-twentieth century).Show More But the socio-legal landscape evolved differently due to patriarchy’s simultaneous degradation and valorization of women. Sex-based anti-discrimination laws surfaced at the closing of the 1960s and the beginning of the 1970s, when the notion of wage-earning women normalized, ideas about adult consensual sex liberalized, and women publicly asserted their independence.44 44.Sepper & Dinner, supra note 24 at 83; see alsoJulia Kirk Blackwelder, Now Hiring: The Feminization of Work in the United States, 1900–1995, 176–204 (1997); Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, 28 Yale J.L. & Feminism 3 (2017) (arguing that the Supreme Court’s 1972 declaration that laws criminalizing contraceptives are unconstitutional made family law “more inclusive, liberatory, sex-positive, and feminist”); Elana Levine, Wallowing in Sex: The New Sexual Culture of 1970s American Television 3 (2007) (explaining how television reflected shifting sexual mores in the 1970s); Daphne Spain, Constructive Feminism, Women’s Spaces and Women’s Rights in the American City 2 (2016) (describing the ways feminists challenged sex segregation in public institutions and thus changed the use of urban space).Show More Owners of public accommodations soon offered gender-based discounts that were in accord with this independence, but these deals would be challenged by men in the 1980s. At this point, state courts had a limited lexicon for gender discrimination and took different approaches to these schemes. Some states upheld gender-based pricing in public accommodations under the problematic logic that these arrangements were innocuous, while some courts invalidated these schemes in ways that troublingly validated men’s weaponization of civil rights laws against women.45 45.See Bethany M. Coston & Michael Kimmel, White Men as the New Victims: Reverse Discrimination Cases and the Men’s Rights Movement, 13 Nev. L.J. 368, 37374 (2013).Show More Ultimately, Part II describes how the 1970s and 1980s produced a public accommodations regime that was poorly equipped to regulate velvet rope discrimination.

Part III conceptually maps out the contemporary operation of velvet rope discrimination by detailing specific examples. It also explicates public accommodations owners’ business justifications of gender-based pricing and dress codes. The most common explanations for gender-based pricing are profitability, establishments’ desire to attract women to entice men, and chivalry.46 46.See infranotes 368–71 and accompanying text (discussing different views).Show More In public accommodations law, courts have rejected business necessity-like arguments that use profit motives to justify discrimination. In addition to resting on heteronormative assumptions, chivalry-based defenses understand discrimination through the traditional and narrow lens of “hostile” sexism, yet ignore the “benevolent” versions of sexism that legal scholars, feminists, and social scientists have long described.47 47.See sources citedinfra notes 238, 376 (describing prominent accounts of “benevolent” sexism).Show More Meanwhile, dress codes are instituted because of owners’ desire to attract a particular clientele, keep out troublemakers, and/or create a certain ambiance. These are undeniably legitimate business goals, but the noteworthy cases involving alleged discrimination by way of dress codes lead to reasonable inferences that these policies are crafted specifically to exclude minorities. Although men of color attract much of the attention in the discourse on discriminatory dress codes, overly vague dress codes that prohibit “inappropriate attire” allow bouncers to deploy rules to exclude women of color and sexual minorities in ways that also run afoul of various anti-discrimination laws.48 48.See sources cited infra 328–38 and accompanying text (discussing the operation of dress codes at bars and nightclubs).Show More At the same time, considering the reality of recreational segregation, this Part complicates the story by pointing to the various intraracial implications of velvet rope discrimination and discusses the challenges that arise when minorities are excluded from bars and nightclubs that employ, are owned by, and/or predominantly service other minorities. Overall, this Part establishes how the economic and putatively rational logics used to defend dress codes often crumble upon deeper scrutiny yet thrive due to our inadequate anti-discrimination law regime. In this way, the Article joins a group of scholars who describe how entities evade anti-discrimination statutes and offers suggestions about how to think about these laws in the modern world.49 49.See Leong & Belzer,supra note 6, at 1275 (arguing that public accommodations laws must account for discrimination in the “platform economy”); David Brody & Sean Bickford, Discriminatory Denial of Service: Applying State Public Accommodations Laws to Online Commerce 1 (2020) (arguing the same for online commerce); Jonah Gelbach, Jonathan Klick & Lesley Wexler, Passive Discrimination: When Does It Make Sense To Pay Too Little?, 76 U. Chi. L. Rev. 797, 823–40 (2009); Angela Onwuachi-Willig, Volunteer Discrimination, 40 U.C. Davis L. Rev. 1895, 1901 (2007); Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437, 439–40 (2006); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460–61 (2001).Show More

The Conclusion offers some normative thoughts on velvet rope discrimination. It does not purport to solve the aforementioned problems but offers a variety of suggestions that might help reframe public accommodations law. The prescriptions attempt to offer meaningful ways in which federal, state, and local governments can honor the underlying principles of anti-discrimination law.

Two quick points are worth offering before proceeding—one about why dress codes and gender-based pricing should be analyzed in tandem and the other about the significance of velvet rope discrimination. At first blush, gender-based pricing and dress codes may appear to be distinct practices that merit separate analytical treatment. Since the potential harms that flow from these practices are qualitatively different, our normative ideas about regulation might lead to different conclusions. The perceived differences between the two are not negligible. At the most basic level, dress codes seem to be animated by keeping out a particular group of people—people who do not conform to some ideal style guide—whereas gender-based pricing is inspired by attracting a specific group of people—cisgender heterosexual women. This is just one way of looking at such discretion. One could easily understand both practices as good-faith attempts to curate a particular ambiance. They could also be considered crude forms of racial and gender balancing.50 50.Press Release, N.Y. State Off. Att’y Gen., Settlement with Manhattan Nightclub Ends Investigation of Discrimination Allegations (June 3, 2003), https://ag.ny.gov/press-release/2003/settlement-manhattan-nightclub-ends-investigation-discrimination-allegations [https://perma.cc/72JE-82K7] (announcing $10,0000 settlement with a club that refused to admit a group of South Asians, who the doorman told: “It’s my responsibility to blend this club. There has to be a balance, there has to be.”).Show More Herein lies one of the many points of convergence that demonstrate why these practices should not be understood in silos: both are screening mechanisms that determine who has access to what are, in theory, public spaces, which raises weighty legal questions about inclusion.51 51.SeeDon Mitchell, The Right to the City: Social Justice and the Fight for Public Space 5 (2003) (outlining the history of inclusion in and exclusion from public space in American cities).Show More These screening mechanisms are generally absent from other types of public accommodations (i.e., movie theaters, amusement parks, transportation services). The average reader would likely bristle at the idea of being subject to a dress code at a post office or gender-based pricing at a public park. These screening mechanisms differently promote the kinds of intimate discrimination that Elizabeth Emens has cautioned against; they can also limit romantic prospects and the possibility of relationship formation for socially marginalized groups such as racial minorities, women, people with disabilities, the LGBTQ community, and people at the intersections of some of these categories, to name a few.52 52.Elizabeth F. Emens, Intimate Discrimination: The State’s Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307, 1374–75 (2009) (discussing how people with disabilities have limited opportunities to form intimate relations and how race and gender can “intersect to create . . . subgroups who are relatively excluded in their intimate prospects”); see also Jasmine E. Harris, The Aesthetics of Disability, 119 Colum. L. Rev. 895, 941 (2019) (noting how ideas about aesthetics and appearance can impact access to public accommodations for people with disabilities).Show More Gender-based pricing and dress codes also defy ideas about inclusion and equality that are at the heart of anti-discrimination law but might get lost if they are understood in atomistic terms.

In addition to raising questions about inclusion, dress codes and gender-based pricing contribute to the normalization of ideas about race, class, gender, sexuality, and the intersections of these categories. This normalization can impact the quality of life for marginalized people, as well as groups traditionally understood as privileged. For example, dress codes may be facially neutral, but nightclub litigation, along with a broader literature on fashion, appearance, and employment, demonstrate that such policies also smuggle pernicious ideas about whiteness that can be disadvantageous to racial minorities, as well as whites themselves.53 53.See Robson, supra note 42, at 119–20 (describing how proscriptions against saggy pants and gang-affiliated colors facilitated profiling against young males, despite their broad popularity in contemporary youth culture); Devon W. Carbado & Mitu Gulati, Acting White?: Rethinking Race in “Post-Racial” America 10–15 (2013) (explaining how President Obama navigated presenting his Black identity so as not to alienate white people uncomfortable with confronting racism and stereotyping); Deborah L. Rhode, The Beauty Bias: The Injustice of Appearance in Life and Law 6–7 (2010) (noting how a preference for white-European features has prompted exponential increases in spending on nonessential cosmetic procedures as well as psychological disorders in the United States).Show More The normalization that flows from dress codes is not just about men of color, who appear to be the subject of their implementation, but men more generally. For various reasons, some men do not conform to the standards that these dress codes demand—and sometimes their nonconformity manifests itself in disgruntlement or sexual violence.54 54.See Michael Kimmel, Angry White Men: American Masculinity at the End of an Era 25–26 (2013) (noting how perceptions of disenfranchisement have led white men to associate with misogynistic and white supremacist movements and militias).Show More Legally questionable dress codes in these public accommodations may also pathologize women’s fashion choices by imposing disturbing norms about how women should dress, act, and behave.55 55.Sahar F. Aziz, Coercing Assimilation: The Case of Muslim Women of Color, 18 J. Gender Race & Just. 389, 398 (2016); Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. 1079, 1106–08 (2010); Jennifer L. Levi, Misapplying Equality Theories: Dress Codes at Work, 19 Yale J.L. & Feminism 353, 364–65 (2008); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 390–93 (1991).Show More

Similar kinds of reification abound in the context of gender-based pricing. As Richard Ford observes, gender-based pricing might be charitably understood as akin to the type of courting practices that have long defined modern urban romance or could be read less generously as extensions of a crude heteronormative hunter-gatherer logic that imagines women as available and present primarily for men’s consumption.56 56.See Ford, supra note 24, at 85. For an instructive examination on the evolution of courting see Elizabeth Alice Clement, Love for Sale: Courting, Treating, and Prostitution in New York City, 1900–1945, at 22–43 (2006).Show More Either framework positions women—some of whom are disinterested in romantic pursuits and go to these spaces simply for platonic sociality and leisure—as sexually available. These assumptions and the larger project of patriarchy provide some explanatory power for the sexual violence that emanates from these spaces.57 57.See sources cited infra notes 384–87 and accompanying text (noting how gender-based pricing in bars and clubs perpetuates stereotypical versions of femininity while facilitating increased levels of sexual violence against their female patrons).Show More But men are straight-jacketed by gender-based pricing too, as this custom can make them unnecessarily competitive and compel them to perform crass versions of masculinity.58 58.See sources cited infra notes 389–92 and accompanying text.Show More Ultimately, assumptions about race, gender, and sexuality become more visible by examining dress codes and gender-based pricing together.

Finally, dress codes and gender-based pricing highlight critical gaps and live controversies within anti-discrimination law. Some of these issues, like dress codes, have been deeply interrogated by scholars of gender and employment and have relevance for public accommodations.59 59.SeeMary Anne Case, Legal Protections for the “Personal Best” of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan. L. Rev. 1333, 1354–60 (2014) (exploring how federal courts have struggled to interpret different workplace grooming standards between men and women as a violation of Title VII’s sex stereotyping protections); William R. Corbett, Hotness Discrimination: Appearance Discrimination as a Mirror for Reflecting on the Body of Employment-Discrimination Law, 60 Cath. U. L. Rev. 615, 624–28 (2011) (explaining the inherent difficulty in establishing a legally viable appearance-based employment discrimination claim despite the pervasiveness of this discrimination in the United States); Deborah L. Rhode, The Injustice of Appearance, 61 Stan. L. Rev. 1033, 1067–69 (2009) (noting the popular pragmatic arguments against expanding Title VII protections to include appearance-based discrimination); Ann C. McGinley, Babes and Beefcake: Exclusive Hiring Arrangements and Sexy Dress Codes, 14 Duke J. Gender L. & Pol’y 257, 263 (2007) (exploring gendered hiring and expectations for cocktail servers in casinos); Gowri Ramachandran, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing, 66 Md. L. Rev. 11, 55–58 (2006) (arguing that the government should interfere to protect freedom of dress in private workplaces in order to take the power from employers, but remain hands-off in other private settings); David B. Cruz, Making Up Women: Casinos, Cosmetics, and Title VII, 5 Nev. L.J. 240, 243–48 (2004) (analyzing how courts have interpreted Title VII’s BFOQ provision to uphold sex-discriminatory dress and appearance requirements); Katharine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality, 92 Mich. L. Rev. 2541, 2556–59 (1994) (arguing that courts upholding gendered dress and appearance restrictions reinforces unexamined gender stereotypes and prejudices); Karl E. Klare, Power/Dressing: Regulation of Employee Appearance, 26 New Eng. L. Rev. 1395, 1418–21 (1992) (exploring permissible uses of gender discrimination in the context of gendered dress codes addressing hair length and pants).Show More Most basically, dress codes and gender-based pricing coincide with the kinds of appearance discrimination that are technically not covered by anti-discrimination law but often reliant on ideas about protected categories such as disability, race, gender, and sexual orientation. More specifically, these screening mechanisms highlight bias against transgender individuals.60 60.Heath Fogg Davis, Sex-Classification Policies as Transgender Discrimination: An Intersectional Critique, 12 Persps. on Pol. 45, 45 (2014).Show More This issue is connected to the themes discussed herein and appears where relevant but warrants more in-depth treatment than this Article can offer. Gender-based pricing and dress codes generate the kinds of “administrative violence” Dean Spade has thoroughly detailed.61 61.Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law 9–10 (2015).Show More As Heath Fogg Davis similarly explains, “[S]ex-classification policies are unjust because they prompt and authorize administrative agents to use their own subjective gender judgments to target, inspect, and exclude transgender-appearing people from the public accommodations under their watch.”62 62.Davis, supra note 60.Show More But the sparsity of anti-discrimination laws protecting transgender individuals, along with law’s inability to grasp the velvet rope discrimination in this Article, render their treatment in these public accommodations invisible. Accordingly, this Article uses dress codes and gender-based pricing to provide alternative ways of thinking about enduring and new challenges in the anti-discrimination subfield of public accommodations law.

The political and social significance of discrimination is also worth emphasizing before proceeding. In a country where there is deep concern about the future of democracy, police violence toward unpopular groups, tenacious wage disparities, and a host of other maladies (including a pandemic), it is tempting to dismiss velvet rope discrimination as inconsequential. Put another way, it is easy to consider the issues described in this Article as a distraction from more dire issues facing marginalized groups. But this trivialization faces three problems.

As a sociological issue, this kind of diminishment ignores how discrimination in public accommodations can normalize ideas about race, gender, and sexuality for people who actively discriminate, as well as the individuals who are subject to unequal treatment. Throughout history, inequality has been able to thrive due to norms that are legally or socially sanctioned.63 63.Kate Manne, Down Girl: The Logic of Misogyny 13 (2017) (“Misogyny . . . visit[s] hostile or adverse social consequences on a certain (more or less circumscribed) class of girls or women to enforce and police social norms that are gendered either in theory (i.e., content) or in practice (i.e., norm enforcement mechanisms).”); Ruth Thompson-Miller, Joe R. Feagin & Leslie H. Picca, Jim Crow’s Legacy: The Lasting Impact of Segregation 157, 179 (2015) (noting how “[t]he racial norms of Jim Crow were firmly grounded in African Americans’ knowing ‘their place’ at the bottom of the racial hierarchy” and suggesting that the fragility of racial hierarchy “depends upon everyday individual acts to collectively uphold it”); Roberto Lovato, Juan Crow in Georgia, The Nation (May 8, 2008), https://www.thenation.com/‌article/juan-crow-georgia/ [https://perma.cc/38PH-Y3P9] (describing Juan Crow as “the matrix of laws, social customs, economic institutions and symbolic systems enabling the physical and psychic isolation needed to control and exploit undocumented immigrants”).Show More The velvet rope discrimination described in this Article is part of a doxa that, in many ways, endorses odious social distinctions.

Relatedly, derision toward this form of discrimination loosely resembles historical criticisms—from the left and the right—of mid-twentieth-century civil rights litigants who sought equal access to water fountains, pools, lunch counters, theaters, gyms, and recreational parks.64 64.Dismissals of the fight for public accommodations desegregation came from outside and inside of the Black community. Strom Thurmond famously claimed, “[T]here’s not enough troops in the [A]rmy to force the [S]outhern people to break down segregation and admit the Negro race into our theaters, into our swimming pools, into our homes, and into our churches.” Nadine Cohodas, Strom Thurmond and the Politics of Southern Change 177 (1993). See also Malcolm X Speaks: Selected Speeches and Statements 9 (George Breitman ed., 1965) (“The only revolution in which the goal is loving your enemy is the Negro revolution. It’s the only revolution in which the goal is a desegregated lunch counter, a desegregated theater, a desegregated park, and a desegregated public toilet; you can sit down next to white folks—on the toilet. That’s no revolution.”).Show More The National Association for the Advancement of Colored People (NAACP), which litigated many of the public accommodations disputes that went to the Supreme Court, managed these cases amidst a similar set of concerns around democracy, employment discrimination, police violence, criminal justice inequality, and a host of other issues.65 65.See generally Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era 57–59 (2018) (describing the role of the NAACP in the sit-in movement).Show More The National Organization for Women (NOW) challenged men’s-only bars amidst concerns about reproductive rights, wage gaps, and sexual violence.66 66.See Sepper & Dinner, supra note 24, at 111–14; Georgina Hickey, Barred from the Barroom: Second Wave Feminists and Public Accommodations in U.S. Cities, 34 Feminist Stud. 382, 385–88 (2008).Show More Trivialization of velvet rope discrimination implies that these organizations mismanaged their priorities in the past or suggests that the concerns these organizations had about public accommodations discrimination are relics of the past. The benefits of historical hindsight suggest that these were not worthless endeavors, but important steps toward attempting to extirpate bias in American society that still exists.67 67.Ella J. Baker, Bigger than a Hamburger, S. Patriot, May 1960, at 4 (“The Student Leadership Conference made it crystal clear that current sit-ins and other demonstrations are concerned with something much bigger than a hamburger or even a giant-sized coke . . . [they] are seeking to rid America of the scourge of racial segregation and discrimination—not only at lunch counters, but in every aspect of life.”); Jack Williams, Lady Lawyer Fights for Women’s Rights, Ithaca J., Feb. 5, 1969, at 4 (“I don’t particularly care if I ever go into a bar—not that I don’t drink—but the issue is one of being treated the same way as a first-class citizen.”).Show More

Finally, as a legal and political issue, such dismissals fail to appreciate the democratic and dignity concerns at the heart of anti-discrimination law.68 68.3 Bruce Ackerman, We the People: The Civil Rights Revolution 127–53 (2014) (describing the anti-humiliation principle that has figured into constitutional law).Show More In his comments to Congress on proposed civil rights legislation, President Kennedy insisted that “no action is more contrary to the spirit of our democracy and Constitution—or more rightfully resented by a Negro citizen who seeks only equal treatment—than the barring of that citizen from restaurants, hotels, theatres, recreational areas and other public accommodations and facilities.”69 69.Daniel v. Paul, 395 U.S. 298, 306 (1969) (quoting Special Message to the Congress on Civil Rights and Job Opportunities, 248 Pub. Papers 483, 485 (June 19, 1963)).Show More When the Senate Commerce Committee discussed the Civil Rights Act of 1964, it noted that “[d]iscrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public.”70 70.S. Rep. No. 88-872, at 16 (1964).Show More Echoing and building on Professor Regina Austin’s unheeded clarion call two decades ago for scholars to pay closer attention to leisure and the law as a civil rights matter,71 71.Regina Austin, “Not Just for the Fun of It!”: Governmental Restraints on Black Leisure, Social Inequality, and the Privatization of Public Space, 71 S. Cal. L. Rev. 667, 711–12 (1998).Show More this Article calls attention to the ways discrimination in public accommodations speaks to questions of democratic membership and inclusion.

 

  1. * Presidential Assistant Professor of Law, University of Pennsylvania Law School. This paper benefitted from feedback and conversations with Regina Austin, Monica Bell, Guy-Uriel Charles, Jessica Clarke, Charlton Copeland, Deborah Dinner, Brittney Farr, Jill Fisch, Thomas Frampton, Trevor Gardner, Jean Galbraith, Sally Gordon, Jasmine Harris, Tanya Hernandez, Dave Hoffman, Osamudia James, Jasmine Johnson, Olati Johnson, Jonathan Klick, Seth Kriemer, Benjamin Levin, Sophia Lee, Tim Lovelace, Reuben Buford May, Serena Mayeri, Jonathan Masur, Darrell Miller, Melissa Murray, Julian Nyarko, Elizabeth Pollman, Christopher Schmidt, Elizabeth Sepper, Fred Smith, Henry Bluestone Smith, Brian Soucek, Ted Ruger, Kendall Thomas, Andrea Wang, Tess Wilkinson-Ryan, Jamillah Bowman Williams, Tobias Barrington Wolff and members of the Department of African American Studies at UC Berkeley. A special thanks to Olivia Bethea and Fatoumata Waggeh for their research assistance as well as Hannah Pugh and Bridget Lavender for their editorial guidance.

  2. Joey Guerra, Video: Gaslamp Employee Says ‘Have a Good Night in the ‘Hood,’ Hous. Chron. (Sept. 28, 2016, 6:16 PM), https://www.chron.com/entertainment/restaurants-bars/article/Video-Gaslamp-employee-says-have-a-good-night-6522262.php [https://perma.cc/VP5K-9FSM].

  3. Id.

  4. Id.

  5. Id.

  6. Id.

  7. See, e.g., Nancy Leong & Aaron Belzer, The New Public Accommodations: Race Discrimination in the Platform Economy, 105 Geo. L.J. 1271, 1275–76 (2017) (discussing the inadequacies of public accommodations anti-discrimination laws in the platform economy business model); Stephen B. Burbank & Sean Farhang, Rights and Retrenchment: The Counterrevolution Against Federal Litigation

    3

    (2017) (recounting a successful movement beginning in the 1980s to undermine the possibility of the enforcement of individual rights through private litigation); Kate Sablosky Elengold, Consumer Remedies for Civil Rights, 99 B.U. L. Rev. 587, 598–99 (2019) (describing the difficulties in applying anti-discrimination statutes).

  8. Phaedra Cook, Midtown Nightclub Accused of Discriminatory Practices, Hous. Press (Sept. 14, 2015, 6:00 AM), https://www.houstonpress.com/restaurants/midtown-nightclub-accused-of-discriminatory-practices-7762250 [https://perma.cc/3KCW-X9AX]; Grizzard, Houston Bar Discriminates Against Blacks, Lawyer Tim Sutherland Lies, Says Federal Law Doesn’t Apply, Daily Kos (Sept. 18, 2015, 1:38 PM), https://www.dailykos.com/­stories/2015/9/18/1422605/-Houston-Bar-Discriminates-Against-Blacks-Lawyer-Tim-Sutherland-Lies-Says-Federal-Law-Doesn-t-Apply [https://perma.cc/VL3C-JN3K].

  9. Grizzard, supra note 7.

  10. Cook, supra note 7.

  11. Id.

  12. Grizzard, supra note 7.

  13. Cook, supra note 7.

  14. Id.

  15. Id.

  16. Cara Smith, Houston Lawyers Sue Popular Midtown Bar, Support HERO, Hous. Bus. J. (Nov. 2, 2015, 9:28 AM), https://www.bizjournals.com/houston/morning_call/2015/11/‌houston-lawyers-sue-popular-midtown-bar-support.html [https://perma.cc/YBD7-YX22].

  17. 42 U.S.C. § 2000a.

  18. Settlement Agreement, United States v. Ayman Jarrah, No. 4:16-cv-02906 (S.D. Tex. Feb. 1, 2018), https://www.justice.gov/crt/case-document/file/1031751/download [https://perma.cc/L8DG-QET7] (requiring the defendant to cease discriminating, engage in training on the substantive provisions of Title II, publicize a non-discrimination policy in its entrance, and develop a program to monitor compliance with Title II).

  19. See Reuben A. Buford May, Velvet Rope Racism, Racial Paranoia, and Cultural Scripts: Alleged Dress Code Discrimination in Urban Nightlife, 2000–2014, 17 City & Cmty. 44, 45, 51–52 (2018).

  20. See, e.g., supra note 15; infra notes 295–99, 301–02.

  21. See, e.g., Reuben A. Buford May, Urban Nightlife: Entertaining Race, Class, and Culture in Public Space 8–9 (2014); Philip R. Kavanaugh & Tammy L. Anderson, Managing Physical and Sexual Assault Risk in Urban Nightlife: Individual- and Environmental-Level Influences, 30 Deviant Behav. 680, 706 (2009); James G. Fox & James J. Sobol, Drinking Patterns, Social Interaction, and Barroom Behavior: A Routine Activities Approach, 21 Deviant Behav. 429, 440–41 (2000); Emily Heil, A Baltimore Restaurant Group Apologizes to a Black Woman and Son for Unequally Enforcing Its Dress Code, Wash. Post (June 23, 2020, 7:00 PM), https://www.washingtonpost.com/news/voraciously/wp/2020/06/23/a-baltimore-restaurant-group-apologizes-to-a-black-woman-and-son-for-unequally-enforcing-its-dress-code/ [https://perma.cc/F7UC-K8EF]; Emily Suzanne Lever, Man Suing NYC Bar for $50K Claiming They Discriminated Against Men by Hosting Ladies Night (Oct. 15, 2019, 3:41 PM), https://gothamist.com/news/man-sues-bar-ladies-night-discrimination [https://perma. ‌cc/H4KR-BXLB].

  22. See Wash. Rev. Code

     

    § 49.60.215 (2020) (“It shall be an unfair practice for any person . . . to commit an act which directly or indirectly results in any . . . discrimination . . . or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement . . . .”) (emphasis added); Or. Rev. Stat

    .

    § 659A.403 (2020) (“[A]ll persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age . . . .”) (emphasis added); Conn. Gen. Stat. § 46a-64 (2017) (“It shall be a discriminatory practice . . . [t]o deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability, physical disability, including, but not limited to, blindness or deafness, or status as a veteran, of the applicant . . . .”) (emphasis added).

  23. Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws 128 (1995).

  24. Lauren A. Rivera, Status Distinctions in Interaction: Social Selection and Exclusion at an Elite Nightclub, 33 Qualitative Socio. 229, 239 (2010); Reuben A. Buford May & Kenneth Sean Chaplin, Cracking the Code: Race, Class, and Access to Nightclubs in Urban America, 31 Qualitative Socio. 57, 58, 60 (2007) (examining racial discrimination in Athens, Georgia through participant observation); David Grazian, Urban Nightlife, Social Capital, and the Public Life of Cities

    ,

    24 Socio. F. 908, 915–16 (2009) (offering empirical data about racial and class barriers, the normalization of gender differences, and the lack of inclusiveness in nightlife to argue that nightlife can serve as a bonding mechanism).

  25. Most generally, Joseph Singer has shaped recent legal thinking on race and public accommodations, whereas Elizabeth Sepper and Deborah Dinner have recently written about sex discrimination in public accommodations. See Joseph William Singer, We Don’t Serve Your Kind Here: Public Accommodations and the Mark of Sodom, 95 B.U. L. Rev. 929, 930, 950 (2015); Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. L. Rev. 1283, 1286, 1296 (1996); Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78, 83 (2019). This Article is indebted to their work and extends their analyses. There are also some helpful but dated accounts of discrimination in bars and nightclubs in a few student notes. These various insights are all helpful but fail to capture the robustness of contemporary public accommodations discrimination. See, e.g., Lisa Gabrielle Lerman & Annette K. Sanderson, Project, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N.Y.U. Rev. L. & Soc. Change 215, 250 (1978); Alan J. Hoff, Note, A Proposed Analysis for Gender-Based Practices and State Public Accommodations Laws, 16 U. Mich. J.L. Reform 135, 137 (1982) (arguing that gender-preferential practices are acceptable when applied reasonably); Joyce L. McClements & Cheryl J. Thomas, Comment, Public Accommodations Statutes: Is Ladies’ Night Out?, 37 Mercer L. Rev. 1605, 1605 (1986) (discussing the use of public accommodations laws by men for sex discrimination claims in the 1980s); Heidi C. Paulson, Note, Ladies’ Night Discounts: Should We Bar Them or Promote Them?, 32 B.C. L. Rev. 487, 489 (1991) (exploring “ladies night” events and gender-based pricing in relation to public accommodations laws and sex discrimination between the 1980s and the beginning of the 1990s); Jessica E. Rank, Comment, Is Ladies’ Night Really Sex Discrimination?: Public Accommodation Laws, De Minimis Exceptions, and Stigmatic Injury, 36 Seton Hall L. Rev. 223, 225–28 (2005) (describing the variety of approaches to the issue of “ladies night” sex discrimination around the country). Some particularly instructive insights have been offered by scholars who have addressed these issues in a few pages of what are larger, book-length projects on anti-discrimination law. See Nancy Levit, The Gender Line: Men, Women, and the Law 102–04 (1998) (providing examples of “ladies night” discrimination and examining various state sex discrimination laws); Richard Thompson Ford, Rights Gone Wrong: How Law Corrupts the Struggle for Equality 85–92 (2011) (discussing specific cases of gender discrimination and distinguishing between harmless and harmful gender distinctions); Joanna L. Grossman, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace 2–3 (2016) (analyzing a “ladies night” case in New Jersey in an exploration of sex discrimination). For helpful takes on housing discrimination, see Lee Anne Fennell, Searching for Fair Housing, 97 B.U. L. Rev. 349, 351–52 (2017) (exploring the underlying racial biases of home seekers as they relate to housing discrimination); Rachel D. Godsil, The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319, 324 (2013) (conducting a historical analysis of gentrification and offering alternative legal mechanisms for in-place residents facing gentrification); Olatunde Johnson, The Last Plank: Rethinking Public and Private Power to Advance Fair Housing, 13 U. Pa. J. Const. L. 1191, 1193, 1195–96 (2011) (examining the Fair Housing Act’s enforcement regime and its mandate to affirmatively further fair housing). For instructive treatments of employment discrimination, see Tristin K. Green, Racial Emotion in the Workplace, 86

    S.

    Cal. L. Rev. 959, 969 (2013) (arguing that racial emotion is a source of discrimination in the workplace in order to advocate for more comprehensive laws that will better recognize and address this form of discrimination); Serena Mayeri, Intersectionality and Title VII: A Brief (Pre-)History, 95 B.U. L. Rev. 713, 715 (2015) (providing an analysis of the role of intersectionality in the development and execution of Title II of the Civil Rights Act of 1964); Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 718 (2014) (analyzing cases on gender stereotyping and sexual orientation claims in the workplace).

  26. For recent examinations of the interface of religion and sexual orientation in these sites, see Pamela S. Karlan, Just Desserts?: Public Accommodations, Religious Accommodations, Racial Equality, and Gay Rights, 2018 Sup. Ct. Rev. 145, 146; Melissa Murray, Inverting Animus: Masterpiece Cakeshop and the New Minorities, 2018 Sup. Ct. Rev. 257, 257–58 (2018); Elizabeth Sepper, The Role of Religion in State Public Accommodations Laws, 60 St. Louis U. L.J. 631, 636–37 (2016) (tracking religious exemptions in public accommodations law). The Americans with Disabilities Act goes further than Title II in that it requires an affirmative duty to remove physical barriers to access to ensure that people are not discriminated against on the basis of disability See 42 U.S.C. § 12181. Some of the most helpful takes on disability and public accommodations include: Samuel R. Bagenstos, The Unrelenting Libertarian Challenge to Public Accommodations Law, 66 Stan. L. Rev. 1205, 1208–09 (2014); Elizabeth F. Emens, Integrating Accommodation, 156 U. Pa. L. Rev. 839, 843 (2008) (identifying certain benefits created for third parties by the Americans with Disabilities Act); Colin Crawford, Cyberplace: Defining A Right to Internet Access Through Public Accommodation Law, 76 Temp. L. Rev. 225, 227–28 (2003) (exploring whether to impose a public accommodations law framework onto cyberspace); Robert L. Burgdorf, Jr., “Equal Members of the Community”: The Public Accommodations Provisions of the Americans with Disabilities Act, 64 Temp. L. Rev. 551, 554 (1991).

  27. Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (“Traditionally, [sex] discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”).

  28. Rivera, supra note 23, at 239.

  29. Robert Bork foresaw the enforcement problems with Title II before it was passed.

    Of what value is a law which compels service to Negroes without close surveillance to make sure the service is on the same terms given to whites? It is not difficult to imagine many ways in which barbers, landlords, lunch counter operators, and the like can nominally comply with the law but effectively discourage Negro patrons. Must federal law enforcement agencies become in effect public utility commissions charged with the supervision of the nation’s business establishments or will the law become an unenforceable symbol of hypocritical righteousness?

    Robert Bork, Civil Rights – A Challenge, New Republic, Aug. 31, 1963, at 23.

  30. 42 U.S.C. § 2000e-2(e).

  31. 42 U.S.C. § 2000a.

  32. See sources cited infra notes 372–73 (discussing cases).

  33. See sources cited infra notes 351, 360–63, 366 (discussing recent legislation designed to curtail velvet rope discrimination).

  34. Pub. L. No. 43-114, 18 Stat. 335–37, invalidated by Civil Rights Cases, 109 U.S. 3 (1883).

  35. 109 U.S. 3, 26 (1883).

  36. 163 U.S. 537, 550–51 (1896).

  37. See Barbara Y. Welke, When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855–1914, 13 L. & Hist. Rev. 261, 271 (1995).

  38. See e.g., infra notes 83, 103, 111, 118.

  39. 347 U.S. 483, 495 (1954).

  40. Sepper & Dinner, supra note 24, at 104, 111.

  41. See Charles S. Rhyne & Brice W. Rhyne, Civil Rights Ordinances 71–89 (1963); Joseph Parker Witherspoon, Administrative Implementation of Civil Rights 531–38 (1968).

  42. See, e.g., United States v. Jordan, 302 F. Supp. 370, 374 (E.D. La. 1969); United States v. Nw. La. Rest. Club, 256 F. Supp. 151, 153 (W.D. La. 1966).

  43. Ruthann Robson, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes, 8–27 (2013) (describing the historical development of laws regulating dress).

  44. See sources cited infra notes 204–11 (discussing early instances of discrimination in bars and restaurants in the mid-twentieth century).

  45. Sepper & Dinner, supra note 24 at 83; see also Julia Kirk Blackwelder, Now Hiring: The Feminization of Work in the United States

    , 1900–1995

    , 176–204 (1997); Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, 28 Yale J.L. & Feminism 3 (2017) (arguing that the Supreme Court’s 1972 declaration that laws criminalizing contraceptives are unconstitutional made family law “more inclusive, liberatory, sex-positive, and feminist”); Elana Levine, Wallowing in Sex: The New Sexual Culture of 1970s American Television 3 (2007) (explaining how television reflected shifting sexual mores in the 1970s); Daphne Spain, Constructive Feminism, Women’s Spaces and Women’s Rights in the American City 2 (2016) (describing the ways feminists challenged sex segregation in public institutions and thus changed the use of urban space).

  46. See Bethany M. Coston & Michael Kimmel, White Men as the New Victims: Reverse Discrimination Cases and the Men’s Rights Movement, 13 Nev. L.J

    . 368, 373

    74

    (2013).

  47. See infra notes 368–71 and accompanying text (discussing different views).

  48. See sources cited infra notes 238, 376 (describing prominent accounts of “benevolent” sexism).

  49. See sources cited infra 328–38 and accompanying text (discussing the operation of dress codes at bars and nightclubs).

  50. See Leong & Belzer, supra note 6, at 1275 (arguing that public accommodations laws must account for discrimination in the “platform economy”); David Brody & Sean Bickford, Discriminatory Denial of Service: Applying State Public Accommodations Laws to Online Commerce 1 (2020) (arguing the same for online commerce); Jonah Gelbach, Jonathan Klick & Lesley Wexler, Passive Discrimination: When Does It Make Sense To Pay Too Little?, 76 U. Chi. L. Rev. 797, 823–40 (2009); Angela Onwuachi-Willig, Volunteer Discrimination, 40 U.C. Davis L. Rev. 1895, 1901 (2007); Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437, 439–40 (2006); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460–61 (2001).

  51. Press Release, N.Y. State Off. Att’y Gen., Settlement with Manhattan Nightclub Ends Investigation of Discrimination Allegations(June 3, 2003), https://ag.ny.gov/press-release/2003/settlement-manhattan-nightclub-ends-investigation-discrimination-allegations [https://perma.cc/72JE-82K7] (announcing $10,0000 settlement with a club that refused to admit a group of South Asians, who the doorman told: “It’s my responsibility to blend this club. There has to be a balance, there has to be.”).

  52. See

     

    Don Mitchell, The Right to the City: Social Justice and the Fight for Public Space 5 (2003) (outlining the history of inclusion in and exclusion from public space in American cities).

  53. Elizabeth F. Emens, Intimate Discrimination: The State’s Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307, 1374–75 (2009) (discussing how people with disabilities have limited opportunities to form intimate relations and how race and gender can “intersect to create . . . subgroups who are relatively excluded in their intimate prospects”); see also Jasmine E. Harris, The Aesthetics of Disability, 119 Colum. L. Rev. 895, 941 (2019) (noting how ideas about aesthetics and appearance can impact access to public accommodations for people with disabilities).

  54. See Robson, supra note 42, at 119–20 (describing how proscriptions against saggy pants and gang-affiliated colors facilitated profiling against young males, despite their broad popularity in contemporary youth culture); Devon W. Carbado & Mitu Gulati, Acting White?: Rethinking Race in “Post-Racial” America 10–15 (2013) (explaining how President Obama navigated presenting his Black identity so as not to alienate white people uncomfortable with confronting racism and stereotyping)

    ;

    Deborah L. Rhode, The Beauty Bias: The Injustice of Appearance in Life and Law 6–7 (2010) (noting how a preference for white-European features has prompted exponential increases in spending on nonessential cosmetic procedures as well as psychological disorders in the United States)

    .

  55. See Michael Kimmel, Angry White Men: American Masculinity at the End of an Era 25–26 (2013) (noting how perceptions of disenfranchisement have led white men to associate with misogynistic and white supremacist movements and militias).

  56. Sahar F. Aziz, Coercing Assimilation: The Case of Muslim Women of Color, 18

    J.

    Gender Race & Just. 389, 398 (2016); Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. 1079, 1106–08 (2010); Jennifer L. Levi, Misapplying Equality Theories: Dress Codes at Work, 19 Yale J.L. & Feminism 353, 364–65 (2008); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 390–93 (1991).

  57. See Ford, supra note 24, at 85. For an instructive examination on the evolution of courting see Elizabeth Alice Clement, Love for Sale: Courting, Treating, and Prostitution in New York City

    , 1900–1945,

    at 22–43 (2006).

  58. See sources cited infra notes 384–87 and accompanying text (noting how gender-based pricing in bars and clubs perpetuates stereotypical versions of femininity while facilitating increased levels of sexual violence against their female patrons).

  59. See sources cited infra notes 389–92 and accompanying text.

  60. See Mary Anne Case, Legal Protections for the “Personal Best” of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan. L. Rev. 1333, 1354–60 (2014) (exploring how federal courts have struggled to interpret different workplace grooming standards between men and women as a violation of Title VII’s sex stereotyping protections); William R. Corbett, Hotness Discrimination: Appearance Discrimination as a Mirror for Reflecting on the Body of Employment-Discrimination Law, 60 Cath. U. L. Rev. 615, 624–28 (2011) (explaining the inherent difficulty in establishing a legally viable appearance-based employment discrimination claim despite the pervasiveness of this discrimination in the United States); Deborah L. Rhode, The Injustice of Appearance, 61 Stan. L. Rev. 1033, 1067–69 (2009) (noting the popular pragmatic arguments against expanding Title VII protections to include appearance-based discrimination); Ann C. McGinley, Babes and Beefcake: Exclusive Hiring Arrangements and Sexy Dress Codes, 14 Duke J. Gender L. & Pol’y 257, 263 (2007) (exploring gendered hiring and expectations for cocktail servers in casinos); Gowri Ramachandran, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing, 66 Md. L. Rev. 11, 55–58 (2006) (arguing that the government should interfere to protect freedom of dress in private workplaces in order to take the power from employers, but remain hands-off in other private settings); David B. Cruz, Making Up Women: Casinos, Cosmetics, and Title VII, 5 Nev. L.J. 240, 243–48 (2004) (analyzing how courts have interpreted Title VII’s BFOQ provision to uphold sex-discriminatory dress and appearance requirements); Katharine T. Bartlett, Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms, and Workplace Equality, 92 Mich. L. Rev. 2541, 2556–59 (1994) (arguing that courts upholding gendered dress and appearance restrictions reinforces unexamined gender stereotypes and prejudices); Karl E. Klare, Power/Dressing: Regulation of Employee Appearance, 26 New Eng. L. Rev. 1395, 1418–21 (1992) (exploring permissible uses of gender discrimination in the context of gendered dress codes addressing hair length and pants).

  61. Heath Fogg Davis, Sex-Classification Policies as Transgender Discrimination: An Intersectional Critique, 12 Persps. on Pol. 45, 45 (2014).

  62. Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law

    9–10 (2015).

  63. Davis, supra note 60.

  64. Kate Manne, Down Girl: The Logic of Misogyny 13 (2017) (“Misogyny . . . visit[s] hostile or adverse social consequences on a certain (more or less circumscribed) class of girls or women to enforce and police social norms that are gendered either in theory (i.e., content) or in practice (i.e., norm enforcement mechanisms).”); Ruth Thompson-Miller, Joe R. Feagin & Leslie H. Picca, Jim Crow’s Legacy: The Lasting Impact of Segregation 157, 179 (2015) (noting how “[t]he racial norms of Jim Crow were firmly grounded in African Americans’ knowing ‘their place’ at the bottom of the racial hierarchy” and suggesting that the fragility of racial hierarchy “depends upon everyday individual acts to collectively uphold it”); Roberto Lovato, Juan Crow in Georgia, The Nation (May 8, 2008), https://www.thenation.com/‌article/juan-crow-georgia/ [https://perma.cc/38PH-Y3P9] (describing Juan Crow as “the matrix of laws, social customs, economic institutions and symbolic systems enabling the physical and psychic isolation needed to control and exploit undocumented immigrants”).

  65. Dismissals of the fight for public accommodations desegregation came from outside and inside of the Black community. Strom Thurmond famously claimed, “[T]here’s not enough troops in the [A]rmy to force the [S]outhern people to break down segregation and admit the Negro race into our theaters, into our swimming pools, into our homes, and into our churches.” Nadine Cohodas, Strom Thurmond and the Politics of Southern Change 177 (1993). See also Malcolm X Speaks: Selected Speeches and Statements 9 (George Breitman ed., 1965) (“The only revolution in which the goal is loving your enemy is the Negro revolution. It’s the only revolution in which the goal is a desegregated lunch counter, a desegregated theater, a desegregated park, and a desegregated public toilet; you can sit down next to white folks—on the toilet. That’s no revolution.”).

  66. See generally Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era 57–59 (2018) (describing the role of the NAACP in the sit-in movement).

  67. See Sepper & Dinner, supra note 24, at 111–14; Georgina Hickey, Barred from the Barroom: Second Wave Feminists and Public Accommodations in U.S. Cities, 34 Feminist Stud. 382, 385–88 (2008).

  68. Ella J. Baker, Bigger than a Hamburger, S. Patriot, May 1960, at 4 (“The Student Leadership Conference made it crystal clear that current sit-ins and other demonstrations are concerned with something much bigger than a hamburger or even a giant-sized coke . . . [they] are seeking to rid America of the scourge of racial segregation and discrimination—not only at lunch counters, but in every aspect of life.”); Jack Williams, Lady Lawyer Fights for Women’s Rights, Ithaca J., Feb. 5, 1969, at 4 (“I don’t particularly care if I ever go into a bar—not that I don’t drink—but the issue is one of being treated the same way as a first-class citizen.”).

  69. 3 Bruce Ackerman, We the People: The Civil Rights Revolution 127–53 (2014) (describing the anti-humiliation principle that has figured into constitutional law).

  70. Daniel v. Paul, 395 U.S. 298, 306 (1969) (quoting Special Message to the Congress on Civil Rights and Job Opportunities, 248 Pub. Papers 483, 485 (June 19, 1963)).

  71. S. Rep. No. 88-872, at 16 (1964).

  72. Regina Austin, “Not Just for the Fun of It!”: Governmental Restraints on Black Leisure, Social Inequality, and the Privatization of Public Space, 71 S. Cal. L. Rev. 667, 711–12 (1998).

  73. Act of May 16, 1865, ch. 277, § 1, 1865 Mass. Acts 650, reprinted in Milton R. Konvitz, A Century of Civil Rights 156 (1961); Wallace F. Caldwell, State Public Accommodations Laws, Fundamental Liberties and Enforcement Programs, 40 Wash. L. Rev. 841, 843 (1965); Kazuteru Omori, Race-Neutral Individualism and Resurgence of the Color Line: Massachusetts Civil Rights Legislation, 1855–1895, 22 J. Am. Ethnic Hist. 32, 37 (2002).

  74. See Act of Feb. 25, 1873, No. 12, § 3, 1873 Ark. Acts 15, 15–19 (prohibiting discrimination in public accommodations, dating back to 1873); Act of Feb. 27, 1874, ch. 49, § 1, 1874 Kan. Sess. Laws 82, 82–83, noted in Konvitz, supra note 72, at 156; Act of Apr. 9, 1873, ch. 186, § 1, 1873 N.Y. Laws 583–84 (1873), noted in Konvitz, supra note 72, at 156. For more on the history of state public accommodations statutes, see Lerman & Sanderson, supra note 24, at 238–40 (1978).

  75. Act of Mar. 1, 1875, ch. 114, 18 Stat. 335 (1875).

  76. Id. See also Sauvinet v. Walker, 27 La. Ann. 14, 15 (1875), aff’d, 92 U.S. 90, 90–93 (1876) (describing a $1000 judgment against defendant as a “penalty wholly disproportionate to the offense”).

  77. Act of Mar. 1, 1875, ch. 114, 18 Stat. 335 (1875).

  78. 109 U.S. 3, 26 (1883). The Civil Rights Act of 1866 and the Fourteenth Amendment provided for equal protection under the law and supplied a basis for public accommodations claims, but nonenforcement and obstruction set the stage for the stronger legislative intervention that came with the 1875 Act. See A.K. Sandoval-Strausz, Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America, 23 Law & Hist. Rev. 53, 58–59 (2005).

  79. 109 U.S. 3, 4, 25 (1883).

  80. 163 U.S. 537, 550–51 (1896).

  81. Robert B. McKay, Segregation and Public Recreation, 40 Va. L. Rev. 697, 697–707 (1954).

  82. Charles S. Mangum, Jr., The Legal Status of the Negro 28–36 (1940); see Pauli Murray, States’ Laws on Race and Color

    7–9

    (1950).

  83. See Act of Feb. 27, 1874, ch. 49, § 1, 1874 Kan. Sess. Laws 82, 82–83; Mangum, supra note 81, at 50–51 (discussing states that did not cover restaurants).

  84. 10 F. 4, 6 (S.D.N.Y. 1882).

  85. Id.

  86. Id. at 6–7.

  87. Evan Friss, Blacks, Jews, and Civil Rights Law in New York, 1895–1913, 24 J. Am. Ethnic Hist. 87, 87 (2005).

  88. Friss, supra note 86, at 89–91; see also M. Alison Kibler, Censoring Racial Ridicule: Irish, Jewish, and African American Struggles over Race and Representation

    , 1890–1930

    , at 117–20 (2015) (describing the relationship between African Americans and Jews, and their views on the New York public accommodations law).

  89. Peter Adams, Politics, Faith, and the Making of American Judaism 5 (2014) (“Jews were subject to discreet—and not so discreet—discrimination in employment and public accommodations.”); Friss, supra note 86, at 83 (“But for Jews, more likely to frequent upstate resorts, advertisements such as ‘No Dogs or Jews Allowed’ and ‘We do not cater to Hebrews or invalids’ had successfully offended Jewish travelers for years.”); John Higham, Social Discrimination Against Jews in America, 1830–1930, 47 Publ’ns Am. Jewish Hist. 1, 12–14 (1957) (describing how, beginning in the late nineteenth century, anti-Semitism “was more acute at resorts than elsewhere, for no other institution combined such indiscriminate social mingling with such ardent social aspirations,” and how discrimination in those establishments, along with “clubs and private schools increased during the years before the First World War”); Chanelle N. Rose, Tourism and the Hispanicization of Race in Jim Crow Miami, 1945–1965, 45 J. Soc. Hist. 735, 745 (2012) (“[D]uring the 1930s and 1940s, racial discrimination was not solely limited to [B]lacks since a number of Miami Beach hotels read: ‘Gentile Only’ or ‘No Jews, No Dogs.’”).

  90. Jeffrey Gurock, The 1913 New York State Civil Rights Act, 1 Ass’n Jewish Stud. Rev. 93, 95 (1976). The anti-discrimination norms of public accommodations law would remain elusive:

    Enterprising hotelkeepers, capitalizing on the strict-constructionist attitude of the courts, circumvented the law by inventing several new ‘code words’ for exclusion. Such terms as ‘restricted clientele,’ ‘churches nearby,’ and ‘buses to church’ were added to the advertiser’s vocabulary. These euphemisms, which soon became intelligible to Jew and Gentile alike, stymied public officials and frustrated Jewish leaders in their attempts to have the law enforced.

    Id. at 111.

  91. Higham, supra note 88, at 16.

  92. Gurock, supra note 89, at 97.

  93. Kalyn Oyer, ‘It’s Too Dark in Here’: Black Nightclub DJs in Charleston Speak Up About Discrimination, Post & Courier (June 17, 2020), https://www.postandcourier.com/‌charleston_scene/its-too-dark-in-here-black-nightclub-djs-in-charleston-speak-up-about-discrimination/article_5dfa8cf4-acd8-11ea-a85e-db71746cc171.html [https://perma.cc/HQN6-T96K] (describing the experience of a DJ who contended that that club owners attempt to limit the number of Black people in their venues).

  94. Babb v. Elsinger, 147 N.Y.S. 98, 98–99 (N.Y. App. Div. 1914); Court Holds It Unlawful to Draw Color Line in Saloons, N.Y. Age, Apr. 23, 1914, at 1.

  95. Johnson v. Auburn & Syracuse Elec. R.R. Co., 222 N.Y. 443, 446–47, (N.Y. 1918); Springer v. McDermott, 173 N.Y.S. 413, 413–14 (N.Y. App. Div. 1919); see also Baer v. Wash. Heights Café, 168 N.Y.S. 567, 567–68 (N.Y. Mun. Ct. 1917) (holding that the rear of a saloon where food and liquor were served was a place of public accommodation).

  96. Matthews v. Hotz, 173 N.Y.S. 234, 235 (N.Y. App. Div. 1918).

  97. Id.

  98. Cohn v. Goldgraben, 170 N.Y.S. 407, 407–08 (N.Y. App. Div. 1918).

  99. Ian Haney López, White by Law: The Legal Construction of Race

    151

    (10th ed. 2006). See generally, Karen Brodkin, How Jews Became White Folks and What That Says About Race in America

    26–30 (1998)

    (describing the United States’ history of anti-Semitism at the turn of the twentieth century); Eric L. Goldstein, The Price of Whiteness: Jews, Race, and American Identity 1–2 (2006) (explaining the complicated relationship between Jewishness and whiteness and its development during the twentieth century).

  100. Cohn, 170 N.Y.S. at 407.

  101. Paul Chevigny, Gigs: Jazz and the Cabaret Laws in New York City 33 (1991); see also Burton W. Peretti, Nightclub City: Politics and Amusement in Manhattan 18 (2007) (describing anti-Semitic understandings of nightlife in New York City).

  102. Gibbs v. Arras Bros., Inc., 222 N.Y. 332, 332 (N.Y. 1918).

  103. Equal Rights in Places of Public Accommodation, Resort or Amusement, ch. 14, § 40, 1918 N.Y. Laws 61, 61–62 (adding saloons to Civil Rights Law § 40).

  104. 74 Minn. 200, 200 (1898); William D. Green, Degrees of Freedom: The Origins of Civil Rights in Minnesota, 1865–1912, at 244 (2015).

  105. Green, supra note 103, at 246–47.

  106. Id. at 247.

  107. Rhone, 74 Minn. at 204–05.

  108. Green, supra note 103, at 223, 246.

  109. Id. at 245.

  110. Id. at 246.

  111. Act of Mar. 6, 1899, ch. 41, §1, 1899 Minn. Laws 38, 38–39.

  112. Kellar v. Koerber, 61 Ohio St. 388, 389 (1899).

  113. Id. at 391.

  114. Youngstown Park & Falls St. Ry. Co. v. Tokus, 4 Ohio App. 276, 277 (Ohio Ct. App. 1915).

  115. Id. at 276–82.

  116. Anderson v. State, 30 Ohio C.C. 510, 511 (Ohio Ct. App. 1918).

  117. Id. at 512; see also Leonard Dinnerstein, Antisemitism in America 58 (1994) (“Indeed, the racial components of antisemitic thought in America, always inherent yet mostly hidden, became obvious in the period known as the Progressive era.”).

  118. See infra Section I.D. (discussing Title II of the Civil Rights Act of 1964).

  119. 27 La. Ann. 14, 14–15 (1875), aff’d, 92 U.S. 90, 90–93 (1876).

  120. Justin A. Nystrom, New Orleans After the Civil War: Race, Politics, and a New Birth of Freedom 96–98 (2010).

  121. Sauvinet, 27 La. Ann. at 14.

  122. Id.

  123. Id. at 14–15.

  124. Id. at 15 (Wyly, J., dissenting).

  125. Id.

  126. Walker v. Sauvinet, 92 U.S. 90, 92–93 (1876).

  127. Ferguson v. Gies, 46 N.W. 718, 718 (Mich. 1890).

  128. Id.

  129. See Rayford M. Logan, The Negro in American Life and Thought: The Nadir, 1877–1901, at 52 (1954).

  130. Ferguson, 46 N.W. at 719.

  131. Id. at 721.

  132. Bryan v. Adler, 72 N.W. 368, 368 (Wis. 1897).

  133. Id. at 369.

  134. Id.

  135. Id.

  136. Id.

  137. Id. at 369–70.

  138. See, e.g., Traci Parker, Department Stores and the Black Freedom Movement: Workers, Consumers, and Civil Rights from the 1930s to the 1980s, at 57–71

    (2019)

    (discussing the “Don’t Buy Where You Can’t Work” movement)

    ;

    Wayne A. Wiegand & Shirley A. Wiegand, The Desegregation of Public Libraries in the Jim Crow South: Civil Rights and Local Activism 8

    (2018) (

    explaining that Brown v. Board of Education “functioned as an open invitation to southern [B]lacks to serve as plaintiffs in a series of lawsuits to desegregate public facilities across the South”)

    ;

    David E. Goldberg, The Retreats of Reconstruction: Race, Leisure, and the Politics of Segregation at the New Jersey Shore

    , 1865–1920,

    at 18–21

    (2017) (

    describing how Black protestors successfully integrated recreational venues at the Jersey shore through consumer protests)

    ;

    Victoria W. Wolcott, Race, Riots, and Roller Coasters: The Struggle over Segregated Recreation in America

    88–89 (2012) (

    describing how, after Brown v. Board of Education, “activists became more emboldened to challenge recreational segregation nationally”)

    ;

    Jeff Wiltse, Contested Waters: A Social History of Swimming Pools in America

    157–59 (2007) (

    describing efforts to desegregate pools in the North)

    ;

    George B. Kirsch, Municipal Golf and Civil Rights in the United States, 1910–1965, 92 J. Afr. Am. Hist. 371, 383–86 (2007) (explaining how the Brown v. Board of Education and Dawson v. Mayor & City Council of Baltimore City “decisions opened the door for a series of federal judicial rulings that outlawed racial discrimination on municipal golf courses in several southern cities”).

  139. Fuller v. McDermott, 87 N.Y.S. 536, 537 (N.Y. App. Term 1904). But see Hubert v. Jose, 132 N.Y.S. 811, 812 (N.Y. App. Div. 1912) (asserting in dicta that a showing of citizenship is not necessary for protection by the civil rights law without addressing its previous ruling on the issue).

  140. Grace v. Moseley, 112 Ill. App. 100, 102 (Ill. App. Ct. 1904).

  141. Id.

  142. State ex rel. Tax Collector v. Falkenheiner, 49 So. 214, 215 (La. 1909).

  143. Kan. Gen. Stat. § 3791 (1915) (repealed 1969).

  144. State v. Brown, 212 P. 663, 664 (Kan. 1923).

  145. Nance v. Mayflower Tavern, 150 P.2d 773, 774–75 (Utah 1944).

  146. Crosswaith v. Bergin, 35 P.2d 848, 848 (Colo. 1934).

  147. Ross v. Schade, 7 Conn. Supp. 443, 444–45 (Super. Ct. 1939).

  148. 39 N.E.2d 167, 169 (Ohio Ct. App. 1941).

  149. Id. at 171.

  150. Evans v. Fong Poy, 108 P.2d 942, 942–43 (Cal. Dist. Ct. App. 1941); State Appeals Court Upholds Negro Rights, S.F. Exam’r, Jan. 8, 1941, at B.

  151. Suits Ask $80,000 Under Civil Rights, Democrat & Chron. (Rochester), Feb. 18, 1949, at 12.

  152. Powell v. Utz, 87 F. Supp. 811, 812–13, 816 (E.D. Wash. 1949).

  153. Suit Defendants Ask Bankruptcy, Spokane Daily Chron., Aug. 9, 1950, at 3.

  154. Sepper & Dinner, supra note 24, at 83.

  155. Ex parte Smith, 38 Cal. 702, 709–12 (1869) (upholding an ordinance prohibiting the presence of women in public drinking saloons after midnight as constitutional).

  156. 192 U.S. 108 (1904).

  157. Id. at 113.

  158. Id. at 114–15.

  159. See, e.g., Wilson v. Razzetti, 150 N.Y.S. 145, 145 (N.Y. App. Term 1914) (holding that restaurant owners who refused to serve a Black woman violated the New York Civil Rights Law and that the owners’ defense—that the reason they did not serve the plaintiff was that they were out of food—was “absurd and frivolous”); Amos v. Prom, Inc., 117 F. Supp. 615, 618–19, 630 (N.D. Iowa 1954) (holding that a dance hall, which had refused to admit a Black woman, was a place of amusement under the Iowa Civil Rights Act); Slack v. Atl. White Tower Sys., Inc., 284 F.2d 746, 746 (4th Cir. 1960) (holding that the Interstate Commerce Act did not prohibit a privately owned restaurant from refusing to serve a Black woman).

  160. Gastenau v. Commonwealth, 56 S.W. 705, 705 (Ky. 1900).

  161. Id.

  162. Id.

  163. Id. at 705–06.

  164. State v. Nelson, 79 P. 79, 82 (Idaho 1905) (emphasis added).

  165. Laughlin v. Tillamook City, 147 P. 547, 547 (Or. 1915) (quoting State v. Baker, 92 P. 1076, 1078 (Or. 1907)).

  166. Commonwealth v. Price, 94 S.W. 32, 33 (Ky. 1906).

  167. Goesaert v. Cleary, 335 U.S. 464, 465–66 (1948) (validating a state law that only allowed men to be bartenders and stating, “The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic”); City of De Ridder v. Mangano, 171 So. 826, 827–28 (La. 1936) (upholding law prohibiting women’s employment in bars); State v. Mayor of Hoboken, 53 A. 693, 693 (N.J. 1902) (upholding a statute that prohibited women’s employment in saloons and stating, “It is difficult to imagine a course of conducting a liquor saloon more deserving of reprobation than the permitting the assembling there of women for the purpose of enticing customers”); Ex parte Felchin, 31 P. 224, 224 (Cal. 1892) (requiring a higher licensing fee for bars and saloons that employed women).

  168. In re Farley, 111 N.E. 479, 481 (N.Y. 1916).

  169. Sharp v. Bussey, 187 So. 779, 780 (Fla. 1939).

  170. Stoumen v. Reilly, 234 P.2d 969, 970 (Cal. 1951).

  171. Tom Murray, Preachers, Faggots, Perverts & Palaces, S.F. Sentinel, Mar. 6, 1987, at 4. See generally Nan Alamilla Boyd, Wide-Open Town: A History of Queer San Francisco to 1965 (2003) (discussing the hostile policing of bars and taverns, including harassment and intimidation by local police).

  172. Murray, supra note 170.

  173. Stoumen, 234 P.2d at 970.

  174. Id. at 971.

  175. Tynes v. Gogos, 144 A.2d 412, 413–15 (D.C. 1958).

  176. 347 U.S. 483, 488, 495 (1954).

  177. Cybelle Fox & Thomas A. Guglielmo, Defining America’s Racial Boundaries: Blacks, Mexicans, and European Immigrants, 1890–1945, 118 Am. J. Socio. 327, 358 (2012).

  178. Randall Kennedy, The Civil Rights Act’s Unsung Victory and How It Changed the South, Harper’s Mag. (June 2014), https://harpers.org/archive/2014/06/the-civil-rights-acts-unsung-victory/ [https://perma.cc/M6EV-HM48].

  179. Id.

  180. Lynne Olson, Freedom’s Daughters: The Unsung Heroines of the Civil Rights Movement from 1830 to 1970, at 19–20 (2001); Flora Bryant Brown, NAACP Sponsored Sit-ins by Howard University Students in Washington, D.C., 1943–1944, 85 J. Negro Hist. 274, 278 (2000).

  181. Olson, supra note 179, at 78–79.

  182. See, e.g., Bell v. Maryland, 378 U.S. 226 (1964); Barr v. City of Columbia, 378 U.S. 146 (1964), Robinson v. Florida, 378 U.S. 153 (1964); Bouie v. City of Columbia, 378 U.S. 347 (1964).

  183. Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era 182 (2018).

  184. Glenn T. Eskew, But for Birmingham: The Local and National Movements in the Civil Rights Struggle 312 (1997).

  185. 42 U.S.C. § 2000a.

  186. Id. § 2000a(a).

  187. See id. § 2000a; discussion infra Section II.A. (describing the work of activists in response to the non-coverage of sex discrimination in the Act).

  188. 42 U.S.C. § 2000a(b).

  189. See sources cited infra note 195 (detailing the various cases in which the categorization of various bars, taverns, and establishments was disputed).

  190. Harry T. Quick, Note, Public Accommodations: A Justification of Title II of the Civil Rights Act of 1964, 16 Case W. Rsrv. L. Rev. 660, 683 (1965).

  191. 42 U.S.C. § 2000a(c); Katzenbach v. McClung, 379 U.S. 294, 298, 305 (1964); Heart of Atl. Motel, Inc. v. United States, 379 U.S. 241, 243, 247–48, 261–62 (1964).

  192. 42 U.S.C. § 2000a(c).

  193. See sources cited infra note 197 (discussing which establishments were deemed to be a place of public accommodation by various courts).

  194. 42 U.S.C. § 2000a(e).

  195. Senator Magnuson, a key shepherd of the bill, noted:

    As a general rule, establishments of this kind will not come within the scope of the title. But a bar or nightclub physically located in a covered hotel will be covered, if it is open to patrons of the hotel. A nightclub might also be covered . . . if it customarily offers entertainment which moves in interstate commerce.

    110 Cong. Rec. 7,407 (1964).

  196. Cuevas v. Sdrales 344 F.2d 1019, 1020, 1023 (10th Cir. 1965), cert. denied, 382 U.S. 1014 (1966); see also Robertson v. Johnston, 249 F. Supp. 618, 620–21 (E.D. La. 1966) (holding that a bar or nightclub that served only drinks was not a “restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises” within the public accommodations provisions of the Civil Rights Act of 1964), rev’d on other grounds, 376 F.2d 43 (5th Cir. 1967); Selden v. Topaz 1-2-3 Lounge, Inc., 447 F.2d 165, 165 (5th Cir. 1971) (holding that a lounge that did not serve food or offer entertainment did not fall under the Civil Rights Act of 1964). But see United States v. DeRosier, 473 F.2d 749, 750–52 (5th Cir. 1973) (ruling that a neighborhood bar-tavern that derived a small portion of its total business from mechanical amusement devices that had moved in interstate commerce was a “place of entertainment” within the meaning of the Civil Rights Act of 1964).

  197. See discussion supra Section I.A (discussing the conflicting approaches and disputes regarding interpretation between different courts and jurisdictions).

  198. DeRosier, 473 F.2d at 750–52; United States v. Vizena, 342 F. Supp. 553, 554 (W.D. La. 1972) (holding that a bar that provided a juke box and pool table for amusement of its patrons was a “place of entertainment” within the Civil Rights Act); United States v. Deetjen, 356 F. Supp. 688, 689–90 (S.D. Fla. 1973) (finding that a Florida bar was a public accommodation under Title II because the alcoholic beverages, television, piano, and juke box were manufactured out of state and affected commerce); United States v. Purkey, 347 F. Supp. 1286, 1287 (E.D. Tenn. 1971) (concluding that the Civil Rights Act extended to a neighborhood tavern that practiced racial discrimination and contained a “juke box, records, pinball machine and bowling machine which were manufactured out-of-state”); Nanez v. Ritger, 304 F. Supp. 354, 356 (E.D. Wis. 1969) (ruling that a tavern-restaurant is likely a “place of public accommodation” under a civil rights statute); United States by Clark v. Fraley, 282 F. Supp. 948, 952, 954 (M.D.N.C. 1968) (holding that a bar was covered under Title II because it had the characteristics of a restaurant and held itself out as one); Fazzio Real Estate Co. v. Adams, 396 F.2d 146, 149, 150 (5th Cir. 1968) (holding that although bars, per se, are not covered by the Civil Rights Act of 1964, they may be covered where beer is served in conjunction with food).

  199. Daniel v. Paul, 395 U.S. 298, 306 (1969).

  200. See Paulson, supra note 24, at 491 (citing Barbara Allen Babcock, Ann E. Freedman, Eleanor Holmes Norton & Susan C. Ross, Sex Discrimination and the Law: Causes and Remedies 1037 (1975)) (“One author explained that this omission was due to the low consciousness level of sex bias, and because at the time the Act was passed, most of the exclusions from public accommodations were based on race.”). Other speculative guesses point to civil rights leaders’ privileging of race, the existing state-based frameworks that focused on race, the uncertainty around whether the bill would pass, and fear about what including sex might mean for its passage. See generally Janet Dewart Bell, Lighting the Fires of Freedom: African American Women in the Civil Rights Movement (2018) (discussing the role of Black women in civil rights activism and the interplay between sex and race discrimination); Clay Risen, The Bill of the Century: The Epic Battle for the Civil Rights Act (2014) (explicating issues with the bill that stoked worries and uncertainty about its passing).

  201. Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution 106–43 (2011).

  202. Sepper & Dinner, supra note 24, at 101; Maryann Barakso, Governing NOW: Grassroots Activism in the National Organization for Women 12, 45 (2004).

  203. Faith A. Seidenberg, The Wave of the Future — NOW, 21 Cornell L. F

    .

    2, 2 (1969); see also Grossman, supra note 24, at 3 (“[N]o court would countenance a bar’s offering of ‘whites’ night’ as a legitimate means to entice white customers, nor would any court think that the offering of ‘[B]lacks’ night’ on another day of the week would cure its discriminatory impact. Yet courts have entertained both these possibilities for sex-specific discounts.”).

  204. DeCrow v. Hotel Syracuse Corp., 288 F. Supp. 530, 532 (N.D.N.Y. 1968).

  205. Seidenberg v. McSorleys’ Old Ale House, 317 F. Supp. 593, 594 (S.D.N.Y. 1970).

  206. Id. at 599.

  207. Id. at 605.

  208. Id. at 606 (footnote omitted).

  209. Johnson v. Heinemann Candy Co., 402 F. Supp. 714, 718 (E.D. Wis. 1975); Women’s Liberation Union of Rhode Island v. Israel, 512 F.2d 106, 108–09 (1st Cir. 1975).

  210. Bennett v. Dyer’s Chop House, 350 F. Supp. 153, 154–55 (N.D. Ohio 1972) (citing Seidenberg, 317 F. Supp. at 603); see also Sepper & Dinner, supra note 24, at 105–14.

  211. Craig v. Boren, 429 U.S. 190, 208 (1976) (citing Seidenberg, 317 F. Supp. 593).

  212. White v. Fleming, 522 F.2d 730, 731, 733, 736–37 (7th Cir. 1975) (ruling that a city ordinance that prohibited female employees from sitting with male patrons or standing behind a bar was unconstitutional); Daugherty v. Daley, 370 F. Supp. 338, 340–41 (N.D. Ill. 1974) (striking down an Illinois statute that prohibited female employees from soliciting the purchases of drinks and prohibited anyone from serving female employees drinks purchased by male patrons); Sail’er Inn v. Kirby, 485 P.2d 529, 542–43 (Cal. 1971) (citing Seidenberg, 308 F. Supp. at 1260); Commonwealth, Alcoholic Beverage Control Bd. v. Burke, 481 S.W.2d 52, 54 (Ky. 1972); Paterson Tavern & Grill Owners Ass’n v. Borough of Hawthorne, 270 A.2d 628, 630–31 (N.J. 1970) (citing Seidenberg, 308 F. Supp. at 1260).

  213. Sepper & Dinner, supra note 24, at 104; Lerman & Sanderson, supra note 24, at 264–65.

  214. See Melissa Murray, Griswold’s Criminal Law, 47 Conn. L. Rev. 1045, 1072 (2015) (noting that the 1965 decision Griswold v. Connecticut is “credited with helping to transform society from one in which the state demanded compliance with majoritarian sexual norms to one in which the state respected some degree of sexual autonomy”); see also Daphne Spain, Constructive Feminism: Women’s Spaces and Women’s Rights in the American City 12–16 (2016) (describing the 1970s development of feminists’ “free spaces” such as bookstores, clinics, and women’s centers, which reinforced feminists’ independence and self-determination); Susan Frelich Appleton, The Forgotten Family Law of Eisenstadt v. Baird, 28 Yale J.L. & Feminism 1, 12–16 (2016) (arguing that the 1972 case Eisenstadt v. Baird challenged ideas about illegitimacy, family planning, and marriage).

  215. Julia Kirk Blackwelder, Now Hiring: The Feminization of Work in the United States, 1900–1995, at 177–204 (1997) (describing women’s participation in the workforce in the 1970s).

  216. Alice Kessler-Harris, Women Have Always Worked: A Concise History 1–16

    (

    2d ed.

    2018

    ); Vicki L. Ruiz, From Out of the Shadows: Mexican Women in Twentieth-Century America 72–98

    (2008);

    Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor 1–3

     

    (

    2002

    ); Tera

     

    W. Hunter, To ’Joy My Freedom: Southern Black Women’s Lives and Labors After the Civil War 44–73

    (1998).

  217. Sepper & Dinner, supra note 24, at 115 (2019) (noting that “[s]ex equality in public accommodations required independence from attachment to men” and describing how women who protested discrimination in these spaces “demanded legal recognition as individuals without sexual attachment to a man as a physical companion or economic proxy”).

  218. Reginald G. Smart, The Happy Hour Experiment in North America, 23 Contemp. Drug Probs. 291, 292–93 (1996) (discussing how in the early 1970s, many bars, taverns, and restaurants “initiated a variety of sales programs to attract more customers and increase profits” and how some these included “[r]eductions in prices or free beverages for a particular type of patron, usually for women” and concluding how “[s]uch reductions may possibly have been based upon the assumption that many women would not go to bars without special inducements”).

  219. See sources cited supra notes 10–12 (highlighting the discretion placed with bouncers to charge or not charge women cover to enter a club).

  220. Julia Bauer, Despite Law, Bars Still Offer Women Free Booze, Herald, Mar. 8. 1974, at 4 (offering comments from a female patron who observed, “The men probably drink enough to make up for the girls’ free drinks”); Robert Schwartzman, Ladies’ Night Unfair—He Says, Fla. Today, Dec. 16, 1974, at 10C (male employee discussing the subsidization); David Green, Chivalry Lost: All Dinners May Be Created Equal-Cafe Official, Ithaca J., Feb. 7, 1976, at 3.

  221. William T. Kong, ‘Ladies Night’ Illegal, Rights Unit Rules, Des Moines Trib., Feb. 18, 1971, at 1.

  222. Elaine Viets, He Won’t Drink to Ladies Night, St. Louis Post-Dispatch, Feb. 3, 1980, at 1–121 (emphasis added).

  223. Nancy Webb Hatton, Ladies’ Night—No Hassle, Hustle, Mia. Herald, May 13, 1978, at 2D.

  224. Id.

  225. Bar ‘Ladies Nights’ Illegal, Official Says, Star Trib. (Minn.), Dec. 9, 1972, at 5 (quoting the Deputy Director of the Minneapolis Civil Rights Department claiming that the agency had “many, many, many more important priorities” than to devote much time to ladies specials, but would respond to discrimination as it is called to the agency’s attention); ‘Ladies Night’ Soon May Not Be a Familiar Cry in Idaho’s Bars, Times-News (Twin Falls), Jan. 28, 1980, at 14 (discussing how the Idaho Commission on Rights would use informal means to persuade businesses to eliminate discriminatory practices and how the commission had failed to pursue cases because of “limited staff and funds” and because the damages were lower than other discriminatory activity brought to its attention).

  226. Regents Univ. Cal. v. Bakke, 438 U.S. 265, 320 (1978) (holding that since the medical school could not “carry its burden of proving that, but for the existence of its unlawful special admissions program” the white applicant would not have been admitted, the applicant was entitled to admission).

  227. Magid v. Oak Park Racquet Club Assocs., 269 N.W.2d 661, 622, 663–64 (Mich. Ct. App. 1978).

  228. Tucich v. Dearborn Indoor Racquet Club, 309 N.W.2d 615, 617 (Mich. Ct. App. 1981).

  229. Civil Rights in Licensed Premises; Distributor Sales to Non-Licensees, 235 Ill. Comp. Stat. 5/6-17 (1990).

  230. Dock Club v. Ill. Liquor Control Comm’n, 428 N.E.2d 735, 738 (Ill. App. Ct. 1981).

  231. Id.

  232. Id.

  233. Id.

  234. Id.

  235. MacLean v. First Nw. Indus. of Am., Inc., 635 P.2d 683, 686 (Wash. 1981).

  236. Id. at 684.

  237. Id. at 687.

  238. See Dave Zirin, What’s My Name, Fool?: Sports and Resistance in the United States 12 (2005) (noting that Billie Jean King “became a giant protesting the exclusion and second-class citizenship of female athletes”); Susan K. Cahn, Coming on Strong: Gender and Sexuality in Twentieth-Century Women’s Sport 2–3 (1994) (describing the constraints that women athletes and women’s sports have faced in modern American history).

  239. Peter Glick & Susan T. Fiske, The Ambivalent Sexism Inventory: Differentiating Hostile and Benevolent Sexism, 70 J. Personality & Soc. Psych. 491, 491 (1996); see also Katharine T. Bartlett, Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 Va. L. Rev. 1893, 1917 (2009) (suggesting that benevolent sexism satisfies “people’s need to think of themselves as egalitarian, while at the same time helping them to rationalize or obscure their more negative or patronizing views”); Matthew D. Hammond, Chris G. Sibley & Nickola C. Overall, The Allure of Sexism: Psychological Entitlement Fosters Women’s Endorsement of Benevolent Sexism over Time, 5 Soc. Psych. & Personality Sci

    .

    422, 423–24 (2013) (arguing that the benefits of benevolent sexism lead women to endorse it).

  240. See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1534 (2004).

  241. Id. at 1472–73.

  242. See Murray supra note 25, at 294–96; Bradley A. Areheart, The Anticlassification Turn in Employment Discrimination Law, 63 Ala. L. Rev. 955, 957–58 (2012); Jessica A. Clarke, Protected Class Gatekeeping, 92 N.Y.U. L. Rev. 101, 141–42 (2017); Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 128 (2010).

  243. Pa. Liquor Control Bd. v. Dobrinoff, 471 A.2d 941, 943–44 (Pa. Commw. Ct. 1984).

  244. Id. at 943.

  245. Id.

  246. Id.

  247. Id.

  248. 707 P.2d 195 (Cal. 1985).

  249. Id. at 195–96.

  250. Steven Emmons & David Reyes, He Stood Up Like a Man—and Won, L.A. Times, Oct. 18, 1985, at 34.

  251. Koire, 707 P.2d at 202.

  252. Id. at 198 (“Most often, the nature of the business enterprise or the facilities provided has been asserted as a basis for upholding a discriminatory practice only when there is a strong public policy in favor of such treatment. . . . For example, it is permissible to exclude children from bars or adult bookstores because it is illegal to serve alcoholic beverages or to distribute ‘harmful matter’ to minors.” (citations omitted)).

  253. Id. at 199–200 (“However, the ‘social’ policy on which [the nightclub] relies—encouraging men and women to socialize in a bar—is a far cry from the social policies which have justified other exceptions to the [anti-discrimination statute]. For example, the compelling societal interest in ensuring adequate housing for the elderly which justifies differential treatment based on age cannot be compared to the goal of attracting young women to a bar. . . . The need to promote the ‘social policy’ asserted by [the nightclub] is not sufficiently compelling to warrant an exception to the [statute’s] prohibition on sex discrimination by business establishments.”).

  254. Id. at 199 (“[T]his court [has] held that the fact that a business enterprise was ‘proceed[ing] from a motive of rational self-interest’ [does] not justify discrimination. . . . It would be no less a violation of the Act for an entrepreneur to charge all homosexuals, or all nonhomosexuals, reduced rates in his or her restaurant or hotel in order to encourage one group’s patronage and, thereby, increase profits. The same reasoning is applicable here, where reduced rates were offered to women and not men.” (second alteration in original)).

  255. Id. at 204.

  256. Peppin v. Woodside Delicatessen, 506 A.2d 263, 267–68 (Md. Ct. Spec. App. 1986).

  257. Id. at 264.

  258. Id. at 265.

  259. Id. at 264–65.

  260. Id.; see also Trends: Skirting the Law, Phila. Inquirer, Apr. 13, 1986, at 3A (reporting on the case outcome and noting that some men showed up wearing skirts when the restaurant initiated its “skirts and gowns” discount).

  261. Murray, supra note 25 at 293.

  262. See supra note 197.

  263. See, e.g., Everett v. Harron, 110 A.2d 383, 385 (Pa. 1955) (noting that the defendant “frankly admit[ed] that a crude attempt to give the enterprise the character of a private club in order to justify a selective admission of applicants was but a device to keep Negroes from the swimming pool”); Commonwealth v. Moore, 32 Pa. D. & C. 630, 635 (1938) (rejecting the argument that the defendant-hotel was a place of public accommodation “which [is] in [its] nature ‘distinctly private’”); Gilmore v. Paris Inn, 51 P.2d 1103, 1103 (Cal. Dist. Ct. App. 1935) (affirming judgment for defendant who argued café was a private club); Norman v. City Island Beach Co., 126 Misc. 335, 336 (N.Y. App. Term 1926) (rejecting defendant’s assertion that pool was private and not subject to state civil rights statute); Bowlin v. Lyon, 25 N.W. 766, 768 (Iowa 1885) (ruling that a skating rink that denied admission to Black person was essentially a private business).

  264. United States v. Nw. La. Rest. Club, 256 F. Supp. 151, 152 (W.D. La. 1966); North Louisiana Assn.—Restaurant Club Outlawed, Shreveport J., July 15, 1966, at 2C.

  265. “Segregation academies,” which were private schools designed to avoid desegregation, are a prominent example. See Anthony M. Champagne, The Segregation Academy and the Law, 42 J. Negro Educ., 58, 58 (1973). See generally Mary Thornton, A Legacy of Legal Segregation Returns to Haunt a Small Town, Wash. Post, Apr. 21, 1983, at A2 (“In community after community, white officials during the 1960s transferred public property to private organizations as integration loomed. Schools, swimming pools, athletic playing fields, even school books, were given to private owners.”).

  266. Nw. La. Rest. Club, 256 F. Supp. at 153.

  267. Id.

  268. United States v. Jordan, 302 F. Supp. 370, 374, 377 (E.D. La. 1969).

  269. Id. at 379–80.

  270. 395 U.S. 298, 298, 307–08 (1969).

  271. Art Peters, LCB Card: A Way to Discriminate?, Phila. Inquirer, Sept. 6, 1972, at 31.

  272. Id.

  273. Id.

  274. Robert A. Jordan, Cafe Bias Spotlight Spurs Progress, Bos. Globe, Oct. 21, 1976, at 31.

  275. Id.

  276. Courtland Milloy, Some Doors Closed to Black Faces: Integration and ‘Chic’ in D.C. Clubs, Wash. Post, May 31, 1979, at A1, A13 (quoting a nightclub owner as saying “clubs try to restrict their [B]lack clientele to about 10 to 25 percent”).

  277. Id. at A13.

  278. Interracial Group Finds Discrimination by Tavern, Balt. Sun, Mar. 28, 1968, at C7; Suit Attacks Discrimination Hearing, Courier-J., June 24, 1967, at 7.

  279. Patrick Boyle, Human Relations Report Hails State’s ’67 Gains, Pitt. Press, July 25, 1968 (“Typical of illegal acts stopped by the commission in the area of public accommodations was the case of a Negro charged 95 cents for a pitcher of beer in a Pennsylvania tavern while white patrons paid only 75 cents.”); $25 Fine for a $1 Beer, Ariz. Rep., Jan. 17, 1968, at 55 (noting how a tavern owner was sentenced to pay a $25 fine or spend eight days in a city jail for conviction under the Phoenix public accommodations ordinance for charging a Black person $1 for a 35-cent beer).

  280. Cops Who Dance the Night Away, S.F. Exam’r, June 23, 1980, at B9; Dallas Revises Law to Restrict Club Dress Codes, Tyler Courier-Times, Dec. 23, 1979, at 5.

  281. Jack Kadden, Results Due in Month in Probe of Nightclub, Hartford Courant, June 9, 1978, at E24; Disco Faces Bias Hearing, Hartford Courant, Jan. 18, 1980, at 42.

  282. ABCC Invites Discrimination Complaints, Bos. Globe, Sept. 23, 1976, at 67.

  283. Walter V. Robinson, Back Bay Disco Accused of Barring Blacks, Bos. Globe, Sept. 22, 1976, at A1; Walter V. Robinson, Whimseys Closing 4 Days as Discrimination Penalty, Bos. Globe, Jan. 5, 1977, at 3.

  284. Viola Osgood, Black Doorman To Be Hired: Whimsey’s Settles Bias Dispute, Bos. Globe, June 11, 1977, at 3.

  285. McDaniel v. Cory, 631 P.2d 82, 83 n.5 (Alaska 1981).

  286. Id.

  287. Id.

  288. Andrew Means, Sophisticated Discrimination, Ariz. Republic, Dec. 4, 1983, at H1.

  289. Dave Gosch, Club Metro Now Offering Free Memberships to All, Gazette, Aug. 1, 1986, at 5A.

  290. Red Onion OKs Discrimination Settlement, Desert Sun, July 30, 1986, at 1; A. Dahleen Glanton, Red Onion Agrees To Pay $390,000 in Racism Suit, L.A. Times, Sept. 3, 1988, at 3.

  291. Glanton, supra note 289.

  292. Red Onion OKs Discrimination Settlement, supra note 289, at 1.

  293. Ray Perez & Heidi Evans, Red Onion Promises to Prevent Discrimination, L.A. Times, May 16, 1986, at Part II.

  294. Glanton, supra note 289.

  295. Id.

  296. United States v. Glass Menagerie, 702 F. Supp. 139, 140 (E.D. Ky. 1988).

  297. Id.

  298. Russo v. Corbin, No. C.A. 01A-07-001, 2002 WL 88948, at *2–*3 (Del. Super. Ct. Jan. 8, 2002) (finding substantial evidence unlawful denial of service at a restaurant to racial minorities in violation of state law).

  299. Consent Decree, United States v. Walker, No. 7:01-0008 (M.D. Ga. June 26, 2001) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-591 [https://perma.cc/D5JE-VS97] (resolving allegations of racial overcharging in violation of Title II).

  300. Consent Decree, United States v. Freeway Club (N.D. Ala. May 13, 2002) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-421 [https://perma.cc/B93H-S5FG] (resolving allegations that a nightclub discriminated against Black patrons by demanding more forms of ID than from other patrons); Consent Order, United States v. Black Wolf, Inc. (N.D. W.Va. Nov. 20, 2003) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-303 [https://perma.cc/Q6VY-Y5TQ] (resolving allegations of racial discrimination by bar-restaurant that required Black patrons to show a membership card before being served while not requiring the same from others).

  301. See source cited supra note 50 (resolving a nightclub’s admission policies turning away certain patrons to achieve racial “balance”).

  302. U.S. Dep’t of Just., News Release, West Virginia Nightclub Agrees Not To Turn Away African American Patrons, Under Agreement with Justice Department (Jan. 27, 1998), https://www.justice.gov/archive/opa/pr/1998/January/028.htm [https://perma.cc/G2ZG-GM47] (resolving claims that club denied entry to Black patrons by telling them there was a private event).

  303. Consent Decree, United States v. Candy II, No. 05-C-1358 (E.D. Wis. Mar. 1, 2007) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-75 [https://perma.cc/JK7M-JWPJ] (decree resolving allegations that club discriminatorily applied dress code); Consent Order, United States v. Badeen (D. Kan. Mar. 8, 2002) (Dep’t of Just., Hous. & Civ. Enf’t Cases), https://www.justice.gov/crt/housing-and-civil-enforcement-cases-documents-321 [https://perma.cc/RAH3-AD9D] (resolving allegations of club’s discriminatory enforcement of dress code against Blacks and Latinx persons); N.Y. State Off. Att’y Gen., A.G. Schneiderman Announces Agreement with Midtown Nightclub Ensuring Equal Access for All Patrons (June 27, 2013), https://ag.ny.gov/press-release/2013/ag-schneiderman-announces-agreement-midtown-nightclub-ensuring-equal-access-all [https://perma.cc/MH89-JCEZ] (addressing $20,000 settlement to state and $500 of restitution to each patron for club’s discriminatory use of dress codes, along with other methods of exclusion); People v. Peter & John’s Pump House, Inc., 914 F. Supp. 809, 809, 811, 814 (N.D.N.Y. 1996) (finding that New York’s allegation that a nightclub imposed a discriminatory dress code gave the state parens patriae standing); Stephen Labaton, Denny’s Restaurants To Pay $54 Million in Race Bias Suits, N.Y. Times, May 25, 1994, at A1 (describing the $54 million settlement involving Denny’s, which was accused of engaging in racial segregation in their restaurants, discriminatorily requiring Black patrons pre-pay, rude treatments toward them, and long waits for service).

  304. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460–61 (2001).

  305. See sources cited supra note 137 (demonstrating examples of discrimination at swimming pools, movie theaters, cafes, and amusement parks).

  306. Smith v. Bradley Pizza, Inc., 314 F. Supp. 3d 1017, 1020 (D. Minn. 2018) (finding standing for a plaintiff with a disability in a claim of lack of access to restaurant arising from architectural barriers); Whitaker v. Firman, No. 2:12-cv-224, 2013 WL 4498979, at *2, *6, *9, *11 (W.D. Pa. Aug. 20, 2013) (rejecting, on standing grounds, a Title III claim brought by a plaintiff who suffered from a rare joint disease that made it difficult to stand, and alleged that the defendant-nightclub did not allow her to sit on a stool on the dancefloor or sit in the VIP area); Wilson v. Superclub Ibiza, LLC, 931 F. Supp. 2d 61, 62–63 (D.D.C. 2013) (evaluating the admissibility of evidence brought by a patron who alleged a nightclub operator denied her entry in violation of the ADA); Sharp v. Capitol City Brewing Co., LLC, 680 F. Supp. 2d 51, 58–61 (D.D.C. 2010) (rejecting various claims brought by a restaurant patron alleging violations of Title III of the ADA); MacDougal v. Catalyst Nightclub, 58 F. Supp. 2d 1101, 1102, 1103 (N.D. Cal. 1999) (deciding attorney’s fees for plaintiffs who brought two lawsuits against defendant nightclub for failure to provide access to disabled patrons and food service in violation of the ADA); Pinnock v. Int’l House of Pancakes Franchisee, 844 F. Supp. 574, 578 (S.D. Cal. 1993); see also Beth Winegarner, How Some Local Nightclubs Fail Their Disabled Patrons, S.F. Weekly (Oct. 22, 2018, 6:53 AM), https://www.sfweekly.com/music/how-some-local-nightclubs-fail-their-disabled-patrons/ [https://perma.cc/45VB-JLHR]; David Perry, Restaurants Haven’t Lived Up to the Promise of the Americans with Disabilities Act, Eater (May 31, 2017, 9:28 AM), https://www.eater.com/2017/5/31/15701042/american-disabilities-act-restaurants-compliance [https://perma.cc/3QP8-GTPU].

  307. Jessica A. Clarke, Explicit Bias, 113 Nw. U. L. Rev. 505, 510 (2018).

  308. Onwuachi-Willig, supra note 49, at 1895 (2007).

  309. Id.

  310. DeWayne Wickham, Commentary, Dress Codes Restore Pride in Appearance, Ithaca J., July 6, 2004, at 7A.

  311. Onwuachi-Willig, supra note 49, at 1898–99.

  312. Kenji Yoshino, Covering: The Hidden Assault on Our Civil Rights, at ix, 23–24 (2006).

  313. Id. at 21.

  314. See sources cited supra notes 55, 59 (describing various situations in which identity performance takes place in the workplace and other social situations); see also Gowri Ramachandran, Intersectionality as “Catch 22”: Why Identity Performance Demands Are Neither Harmless Nor Reasonable, 69 Alb. L. Rev. 299, 300 (2006).

  315. Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437, 477–78 (2006).

  316. Id. (describing amenities strategies of Ave Maria Township, which was described as “America’s first gated Catholic community”).

  317. Gelbach, Klick & Wexler, supra note 49, at 818.

  318. Id. (citing Peggy D. Dwyer, James H. Gilkeson & John A. List, Gender Differences in Revealed Risk Taking: Evidence from Mutual Fund Investors, 76 Econ. Letters 151, 156 (2002)).

  319. David Martin, Kansas City Officials Had Plenty of Warning that the Cordish Co. Would Impose a Discriminatory Dress Code, Pitch (July 3, 2008), https://www.thepitchkc.com/kansas-city-officials-had-plenty-of-warning-that-the-cordish-co-would-impose-a-discriminatory-dress-code/ [https://perma.cc/26N7-63LH] (describing the decade-long accusations of racial discrimination against a real estate company that maintains bars and restaurants and arguing that “what looks like bad publicity on the surface might, in [the company’s] dark way of doing business, be an inexpensive means of letting white suburbanites know that the Power & Light District is sensitive to their fears. Not a fan of hip-hop style? Neither are we. So come on down and take a ride on our mechanical bull.”).

  320. See sources cited supra notes 24–25 (outlining the literature on discrimination in public accommodations).

  321. In one incident, a nightclub disavowed the comments of a promoter who it claimed did not work for the company. In a captured text conversation with a Latinx patron who wanted entry into the club with an entourage, the promoter told him, “‘If you [have] any of their [Instagram] or pics send cuz they’re strict [at] the door.’ He then added: ‘Gotta be 8/10 no hood [B]lack or fat.’” Mona Holmes, Hollywood Club Promoter Called Out for Racist, Sexist Door Policies, Eater LA (May 3, 2018), https://la.eater.com/2018/5/3/17315890/hollywood-club-promoter-discrimination-the-argyle [https://perma.cc/7FDW-N285].

  322. Marlon Bishop, East Village Bar Accused of Racist Door Policy, WNYC (Jan. 31, 2011), https://www.wnyc.org/story/112317-east-village-bar-accused-racist-door-policy/ [https://perma.cc/4V58-D95E] (describing a complaint leveled by a Black woman who was denied entry into a nightclub by a Black security guard while white women were allowed entry, to which the guard replied, “This is what the owner wants. Do you think I like denying my own people?”); Caroline M. McKay, Boston Club Will Pay Discrimination Fine, Harv. Crimson (May 13, 2011), https://www.thecrimson.com/ article/2011/5/13/club-black-against-cure/ [https://perma.cc/N52T-2FLW] (discussing how a Boston club was forced to pay approximately $28,000 after it discriminated against Black Harvard and Yale graduate students and alumni, Sherif Hashem, the head of security, a person of color, told them there was a concern about “weed smoking brothers from the other side of Massachusetts Avenue who will want to come in if they see beautiful [B]lack women in line, and it will be a problem if we try to turn them away”). This is not new. See Juan Williams, The Discriminating Club, Wash. Post, Nov. 9, 1979, at A21 (describing a Black club in Washington D.C. that tried to “create a discriminating mix”).

  323. Tanya Katerí Hernandez, Multiracials and Civil Rights: Mixed-Race Stories of Discrimination 67–74 (2018) (describing the paucity of legally recognized claims involving multiracial discrimination in public accommodations); Kimberly Jade Norwood, “If You Is White, You’s Alright. . . .” Stories About Colorism in America, 14 Wash. U. Global Stud. L. Rev. 585, 605 (2015) (discussing light-skin parties and “battle of the complexions” contests in Black nightclubs across America); Desiree Cooper, Still, Blacks Struggle to Accept Selves, Detroit Free Press, Nov 1. 2007, at 1 (discussing a Detroit promoter’s plan to have a “Light Skin Libra Birthday Bash,” which was intended to let “light skin” Black women into a downtown club for free).

  324. The Philadelphia Commission on Human Relations, the local agency responsible for regulating anti-discrimination in the city, found that businesses in Philadelphia’s Gayborhood—a geographical area consisting of bars and nightclubs for the LGBTQ community—“create preferable environments for white, cisgender male patrons” and discriminate against women, racial minorities, and transgender individuals. This discrimination included “ad hoc, inconsistent, and arbitrary treatment of customers related to dress codes, ID policies, bar service, and treatment by staff [that] create[d] a climate of ‘unwelcomeness,’ exclusivity, and hostility” toward these groups. One lesbian commented, “[M]y partner and I, and our friends, have experienced feeling invisible in bars . . . and have watched on multiple occasions men who came up to the bar after us, get served before us.” Philadelphia Commission on Human Relations, Inform, Monitor, Enforce: Addressing Racism and Discrimination in Philadelphia’s LGBTQ Community 8, 10 (2017); see also Patrick Saunders, Atlanta Gay Bar Blake’s Taking Heat over Dress Code Sign, Georgia Voice (July 10, 2015, 11:36 AM), https://thegavoice.com/news/georgia/atlanta-gay-bar-blakes-taking-heat-over-dress-code-sign/ [https://perma.cc/AF5B-EPYG]; Naomi Waxman, Boystown Bar Called Racist for Banning Rap, Eater Chicago (May 30, 2019, 2:55 PM), https://chicago.eater.com/2019/5/30/18645763/progress-bar-boystown-gay-rap-ban-leaked-email-social-media [https://perma.cc/4F97-2JC4].

  325. Combs v. Cordish Companies, 862 F.3d 671, 681 (8th Cir. 2017).

  326. Id.

  327. Id. at 682.

  328. Others include:

    Questioning African American patrons at the entrances to clubs and/or the district in general for the purpose of eliciting “annoyance” or some other response to be identified as “aggression,” all for the purpose of creating a rule violation which would serve as a basis for turning the individual away from the club or district or having him ejected from same;

    Ignoring/failing to serve African Americans at tables, bars and other areas, all for the purpose of giving them an “unwelcome” message;

    Keeping a head count on numbers of African Americans present in any one club or area of the District, so that when the “target” or limit number is reached, additional African Americans will be turned away or caused to leave by virtue of a change in the music genre or some other strategy;

    Telling African Americans who call to reserve tables in a club that the reservations are all sold out for a particular night, when in fact same is not true;

    Telling African Americans who have arrived at a club for their already-booked reservation that there is nothing on the books in their names, or that the computer must have messed up, or tables are double-booked and everyone else has already arrived.

    Original Class Action Complaint at 2–3, Combs v. Lounge KC, L.L.C., No. 4:14-cv-00227, 2014 WL 939699 (W.D. Mo. Mar. 10, 2014).

  329. Erin Donnelly, Is this Restaurant’s Ban on Stilettos, Low-Hanging Pants, and Plain White T-Shirts Racist?, Yahoo! (May 17, 2018), https://www.yahoo.com/lifestyle/restaurants-ban-stilettos-low-hanging-pants-plain-white-t-shirts-racist-155438657.html [https://perma.cc/RWZ8-X9BF].

  330. Deepa Lakshmin, 11 Times Hulk Hogan Broke His Own Restaurant’s Dress Code, MTV (Sept. 25, 2014), www.mtv.com/news/1942900/hulk-hogan-broke-dress-code/ [https://perma.cc/YRL8-AN4C].

  331. Id.; Stephen Romano, Long Island Bar Turns Away Man for Wearing Turban, Port Jefferson, NY Patch (May 16, 2019), https://patch.com/new-york/portjefferson/long-island-bar-turns-away-man-wearing-turban [https://perma.cc/KMD7-XM2P].

  332. Emily Heil, Critics Say a New Baltimore Crab House is Targeting Minorities with Its Strict Dress Code, Wash. Post (Sept. 17, 2019), https://www.washingtonpost.com/­news/food/wp/2019/09/17/critics-say-a-new-baltimore-crab-house-is-targeting-minorities-with-its-strict-dress-code/ [https://perma.cc/QY6B-TJTX].

  333. Aimee Green, Black Man Told He Couldn’t Enter Portland Bar Because of His Jewelry; Real Reason Was Racism, Lawsuit Says, Oregonian (Aug. 21, 2019), https://www.oregonlive.com/news/2019/08/black-man-told-he-couldnt-enter-portland-bar-because-of-his-jewelry-real-reason-was-racism-lawsuit-says.html [https://perma.cc/4B53-AC62]; Theresa Braine, New Jersey Restaurant Nixes Uber-Specific Dress Code Sign After Being Accused of Racism, N.Y. Daily News (Jan. 16, 2019), https://www.nydailynews.com­/news/ny-news-ashford-jersey-city-restaurant-dress-code-racist-20190115-story.html [https://perma.cc/637U-B9DQ].

  334. Gene Demby, Dress Codes Are Open to Interpretation — And a Lot of Contention, NPR (July 10, 2014), https://www.npr.org/sections/codeswitch/2014/07/10/330422908/dress-codes-are-open-to-interpretation-and-a-lot-of-contention [https://perma.cc/64SZ-MR5G].

  335. Jelisa Castrodale, Pizzeria Accused of Racism over Ridiculously Restrictive Dress Code, Vice (June 3, 2017), https://www.vice.com/en_us/article/vbgm53/pizzeria-accused-of-racism-over-ridiculously-restrictive-dress-code [https://perma.cc/GXM6-CS7Z]; River North Bar Releases Lengthy Dress Code, CBS Chi. (May 30, 2017), https://chicago.cbslocal.com­/2017/05/30/dress-code-bottled-blonde/ [https://perma.cc/M8JG-7PG5].

  336. Hope Schreiber, Sacramento Bar Under Fire for New Dress Code Which Critics Call a Modern-Day ‘WHITES ONLY’ Sign, Yahoo! (Sept. 4, 2019), https://www.yahoo.com­/lifestyle/sacramento-bar-under-fire-for-new-dress-code-which-critics-call-a-modern-day-whites-only-sign-165735079.html [https://perma.cc/G4N7-WGFK].

  337. Alex Zielinski, Discriminatory Club Policies Are Pushing African Americans Out of Portland’s Nightlife, Portland Mercury (July 4, 2019), https://www.portlandmercury.com­/news/2019/07/04/26745491/discriminatory-club-policies-are-pushing-african-americans-out-of-portlands-nightlife [https://perma.cc/ZK9Q-2ZDH].

  338. See Heil, supra note 331 (discussing Baltimore restaurant’s ban on “inappropriate attire”).

  339. Jerod MacDonald-Evoy, Bar with Eyes on Tempe Accused of Racial Discrimination at Texas Location, Ariz. Republic (May 4, 2018), https://www.azcentral.com/story/­news/local/tempe/2018/05/04/bar-coming-tempe-accused-using-dress-code-discriminate-texas/546368002/ [https://perma.cc/BYR4-QJBR].

  340. 42 U.S.C. §§ 2000e-2(k)(1)(A)-(B).

  341. See Settlement Agreement, United States v. Ayman Jarrah, supra note 17, at 1–3 (resolving allegations of a bar’s discriminatory use of a cover charge to limit the number of minorities admitted); Consent Decree, United States v. Candy II, supra note 302, at 1 (resolving allegations that club discriminatorily applied dress code); Consent Order, United States v. Badeen, supra note 302, at 1 (resolving allegations of club’s discriminatory enforcement of dress code against Blacks and Latinx persons); see also Williams v. Thant Co., No. 02-1214, 2004 WL 1397554, at *1 (D. Or. June 22, 2004) (denying defendant’s motion for summary judgment arising out of plaintiffs’ allegation that nightclub selectively enforced dress code against them because of their race); Consent Decree at 2, United States v. Routh Guys, L.L.C., No. 3:15-cv-02191 (N.D. Tex. June 30, 2015), https://www.justice.gov/sites/default/files/crt/legacy/2015/07/06/–kungfusettle.pdf [https://perma.cc/C4YH-7XP2] (settling with bar and restaurant that denied African American and American patrons because of discriminatory enforcement of dress code).

  342. See May, supra note 18, at 51–53 (discussing how dress codes in nightclubs often prohibit the type of dress typically worn by African Americans); see also, May & Chaplin, supra note 23, at 60 (noting how, in hip-hop culture, “[A]thletic jerseys, baggy jeans, oversized plain white T-shirts, sweat-bands, do-rags (polyester head wraps), ‘wife beaters,’ (‘tank tops’) and thick gold chains are worn as a means of representing one’s identification with that culture. These clothing styles are typically adopted by young, [B]lack males in urban areas”); Tricia Rose, “Fear of a Black Planet”: Rap Music and Black Cultural Politics in the 1990s, 60 J. Negro Educ. 276, 277 (1991) (“Black teenage males sporting sneakers and other Hip Hop gear are perceived as criminal equivalents.”); Marc Gunther, Faith and Fortune: How Compassionate Capitalism Is Transforming American Business 149 (2004) (noting the popularity of Timberland boots in the African American community); Russell K. Robinson, Uncovering Covering, 101 Nw. U. L. Rev. 1809, 1825 (2007) (describing the association of doo-rags with “ghetto culture” and its association with African American men); Pancho McFarland & Leslie Baker Kimmons, Style, in 3 Encyclopedia of Race, Ethnicity, and Society 1125 (Richard T. Schaefer, ed., 2008) (describing how 1990s hip-hop style entailed hooded sweatshirts and Timberlands whereas the turn of the twenty-first century popularized large platinum chains, diamond studs, and doo-rags); D. Wendy Greene, Title VII: What’s Hair (And Other Race-Based Characteristics) Got to Do with It?, 79

    U.

    Colo. L. Rev. 1355, 1383–94 (2008) (noting how doo-rags are “indicative of Blackness in the lay community”); Brian Josephs, Who Criminalized the Durag? GQ (Mar. 2, 2017), https://www.gq.com/story/who-criminalized-the-durag [https://perma.cc/D3DM-2ZAL] (discussing the relationship between doo-rags and Blackness, the NFL’s and NBA’s respective bans in 2001 and 2005, and suggesting that the stigma of this article of clothing is tied to the criminalization of Black expression); Emily Chertoff, The Racial Divide on . . . Sneakers, Atlantic (Aug. 20, 2012), https://www.theatlantic.com/national/archive­/2012/08/the-racial-divide-on-sneakers/261256/ [https://perma.cc/LBA9-WV4C] (“Jordans and Chucks come from the same originary sneaker, a canvas plimsoll from the mid-19th century. . . . How did the first become associated with [B]lack street culture and the second with white-dominated hipsterism?”).

  343. See Robert Wilonsky, Yet Again, Allegations Arise that in Some Uptown Bars, ‘Dress Code’ Means No Minorities, Dallas Morning News (June 29, 2017), https://www.dallasnews.com/opinion/commentary/2017/06/29/yet-again-allegations-arise-that-in-some-uptown-bars-dress-code-means-no-minorities/ [https://perma.cc/B47Z-K5MT] (discussing incident where Black women were denied entry into bar for being out of dress code); Morgan Gstalter, Man Wearing Makeup Denied Entry to Texas Nightclub, The Hill (May 12, 2018), https://thehill.com/blogs/blog-briefing-room/news/387438-man-wearing-makeup-denied-entry-to-texas-nightclub [https://perma.cc/557L-55A2] (detailing incident wherein man wearing makeup was denied entry to Texas nightclub); Hollywood Club Accused of Discrimination After Promoter Allegedly Instructs: ‘No Hood Black or Fat’, Fox L.A. (May, 2, 2018), https://www.foxla.com/news/hollywood-club-accused-of-discrimination-after-promoter-allegedly-instructs-no-hood-black-or-fat [https://perma.cc/7HCC-F8RX] (describing Hollywood club accused of denying entry to anyone described as “hood [B]lack”).

  344. Complaint at 3, United States v. Davis, No. 2:07cv430 (E.D. Va. Sep. 20, 2007), https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/kokocomp.pdf [https://perma.cc/4MKL-63CK].

  345. Consent Decree at 1–2, United States v. Davis, No. 2:07cv430 (E.D. Va. Mar. 10, 2008); Duane Bourne, Kokoamos Owner To Apologize for Barring Entry to Two Who Sued, Virginian-Pilot (Mar. 12, 2008), https://www.pilotonline.com/news/article_1b7467ce-39f5-51ff-af29-47aefa87e36c.html [https://perma.cc/FGP2-6WSM].

  346. See Gstalter, supra note 342.

  347. Id.

  348. Id.

  349. Elise Solé, ‘You’re a Man in Women’s Clothing’: 22-Year-Old Says He Was Dress Coded for Wearing Makeup and High Heels, Yahoo! (Mar. 27, 2019), https://finance.yahoo.com­/news/nightclub-denies-banning-gay-customer-wearing-stiletto-heels-makeup-000454296.html [https://perma.cc/2D3B-YC3W].

  350. Id.

  351. See May, supra note 18, at 57–58 (discussing how owners of nightclubs often justify dress codes as a means of “maintaining a specific kind of atmosphere and clientele”).

  352. See Aimee Green, Lawsuit Claiming Portland Nightclubs Turned Away Black Customers Ends in Settlement, Oregonian (June 19, 2019), https://www.oregonlive.com­/news/2019/06/lawsuit-claiming-portland-nightclubs-turned-away-black-customers-ends-in-settlement.html [https://perma.cc/VA9H-MYKU] (recounting incident involving Portland nightclub that turned away Black patron for violating dress code that prohibited “excessive matching”); see also Jennifer Daley, Bandana, in Ethnic Dress in the United States: A Cultural Encyclopedia 17, 19 (Anette Lynch & Mitchell D. Strauss, eds., 2014) (discussing how gang members often wear the same color bandana that corresponds with their gang’s colors as a means of identification).

  353. See Kan. City, Mo., Mun. Code §§ 38-113(b), 38-1(a)(26) (2020), https://library.municode.com/mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE [https://perma.cc/XX5G-V486] (making it an unlawful accommodation practice to use a prohibited dress code to deny anyone accommodations).

  354. Id.

  355. See Andrea K. Walker, Dress Code Makeover at Cordish Venue in Ky., Balt. Sun (July 2, 2004), https://www.baltimoresun.com/news/bs-xpm-2004-07-02-0407020158-story.html [https://perma.cc/U2JG-URNT] (describing a dress code implemented by Cordish Co. that the ACLU and other local activists say unfairly discriminated against minorities and urban youth).

  356. Id.

  357. Joseph Gerth, Activists Call 4th Street Live Dress Code Discriminatory, Courier-J., June 26, 2004, at B1.

  358. Id.

  359. See Cary v. Cordish Co., 731 F. App’x 401, 402–03 (6th Cir. 2018) (lawsuit filed by several African-American men who claim they were denied entry to Cordish-owned 4th Street Live because of their race); Patrick T. Sullivan, Men Allege Race Discrimination at 4th Street Live, Courier-Journal (June 4, 2014), https://www.courier-journal.com/story/news /crime/2014/06/04/men-allege-race-discrimination-th-street-live/9977255/ [https://perma.cc/WCD7-GRP8] (detailing litigation against Cordish Co. related to discriminatory accommodation practices); The Cordish Company Should Address Racial Discrimination Claims Immediately,

    ACLU

    (Jan. 21, 2013), https://www.aclu.org/press-releases/cordish-company-should-address-racial-discrimination-claims-immediately?redirect=racial-justice/cordish-company-should-address-racial-discrimination-claims-immediately [https://perma.cc/38NL-FVHJ]; Amber Duke, Coalition Concerned About Cordish Issues Points of Emphasis for Moving Community Forward,

    ACLU KY

    (Dec. 1, 2015), https://www.aclu-ky.org/en/news/coalition-concerned-about-cordish-issues-points-emphasis-moving-community-forward [https://perma.cc/6VQT-W5E8].

  360. Lynn Horsley, Despite Large Power & Light District Crowds, Taxpayers Are Still on the Hook, K.C. Star (Feb. 7, 2015), https://www.kansascity.com/news/politics-government/article9530081.html [https://perma.cc/3V63-926E].

  361. Sylvia Maria Gross, Nightlife Area’s Dress Code Seen as Discriminatory, NPR (June 25, 2009), https://www.npr.org/templates/story/story.php?storyId=105890577 [https://perma.cc/­RTZ4-RWHL].

  362. Kan. City, Mo., Mun. Code

     

    § 38-113(a) (2020), https://library.municode.com–/mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE_ARTIIIDIPR [https://perma.cc/2ZW8-W9K4].

  363. Kan. City, Mo., Mun. Code § 38-1(a)(26) (2020), https://library.municode.com/–mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE_ARTIIIDIPR [https://perma.cc/2ZW8-W9K4] reads:

    Prohibited dress code means a set of rules governing, prohibiting or limiting access to a place or business, or portion thereof, defined herein as a “public accommodation” because of any of the following:

    (a) The wearing of jewelry, the manner in which jewelry is worn or the combination of items of jewelry worn,

    (b) The wearing of a garment or headdress which is generally associated with specific religions, national origins or ancestry,

    (c) The length of the sleeve of a shirt or the leg of a pair of pants or shorts is too long, except that nothing herein shall be construed to prohibit a dress code that requires the wearing of a shirt,

    (d) The style, cut or length of a hair style,

    (e) The colors of the garments,

    (f) In conjunction with a major Kansas City sporting event, the wearing of athletic apparel which displays either a number, a professional or college team name or the name of a player;

    (g) The wearing of tee-shirts, except that nothing herein shall be construed to prohibit a dress code that requires such tee-shirts to have sleeves, or to prohibit a dress code that does not allow undershirts, undergarments, or tee-shirts of an inappropriate length. Designer tee-shirts, which are fitted and neat, cannot be banned.

  364. Kan. City, Mo., Mun. Code § 38-113(b)(2) (2020), https://library.municode.com­/mo/kansas_city/codes/code_of_ordinances?nodeId=PTIICOOR_CH38HURE_ARTIIIDIPR [https://perma.cc/2ZW8-W9K4] states it does not prohibit:

    Any owner, agent, operator or employee of a business or facility within a redevelopment area from affirmatively requiring the wearing of specified articles of clothing, which may include collared shirts and ties, sports jackets, business suits, business casual, formal clothing or smart casual clothing in keeping with the ambiance and quality of the particular business or facility and formal footwear, so long as the requirements are enforced with regard to each and every patron, regardless of race, religion, color, ancestry, national origin, sex, marital status, familial status, disability, sexual orientation or gender identity.

  365. See sources cited supra notes 328–38.

  366. In fact, the history described in this paper suggests that some owners of public accommodations will be determined to find ways to evade anti-discrimination law. Still, one might argue that affirmative dress requirements impose a certain kind of uniformity that makes compliance easier for patrons whereas the status quo—loosely worded prohibitions—allow for more discretionary and arbitrary enforcement.

  367. Mariel Padilla, New Jersey Is Third State To Ban Discrimination Based on Hair, N.Y. Times (Dec. 20, 2019), https://www.nytimes.com/2019/12/20/us/nj-hair-discrimination.html [https://perma.cc/M6WE-E5UV]; Aris Folley, New York Bans Discrimination Against Natural Hair, Hill (July 13, 2019), https://thehill.com/homenews/state-watch/452959-new-york-bans-discrimination-against-natural-hair [https://perma.cc/4HNW-E4KP]; Phil Willon & Alexa Díaz, California Becomes First State to Ban Discrimination Based on One’s Natural Hair, L.A. Times (July 3, 2019), https://www.latimes.com/local/lanow/la-pol-ca-natural-hair-discrimination-bill-20190703-story.html [https://perma.cc/664D-FM5B].

  368. See Erynn Masi de Casanova, Buttoned Up: Clothing, Conformity, and White-Collar Masculinity 144–46 (2015).

  369. Chris Dixon, The “Ladies’ Night” Strategy, Bus. Insider (Oct. 16, 2010), https://www.businessinsider.com/the-ladies-night-strategy-2011-1 [https://perma.cc/V8NM-S8SQ].

  370. See Koire v. Metro Car Wash, 707 P.2d 195, 199 (Cal. 1985) (recounting argument by defendant that a “Ladies Night” promotion encouraged more women to attend the bar, thus promoting more interaction between men and women); City of Clearwater v. Studebaker’s Dance Club, 516 So. 2d 1106, 1108 (Fla. Dist. Ct. App. 1987) (same).

  371. Novak v. Madison Motel Assocs., 525 N.W.2d 123, 124, 127 (Wis. Ct. App. 1994) (rejecting the defendant-bar’s argument that its “ladies drink free” special was designed to increase patronage by all groups and indicating that “intent is not relevant . . . promotions may not involve price differentials or other differential treatment based on the categories covered by the statute, whatever the intent”).

  372. Commonwealth Liquor Control Bd. v. Dobrinoff, 471 A.2d 941, 943 (Pa. Commw. Ct. 1984) (highlighting how the trial court identified “chivalry and courtesy to the fair sex” as a purpose for some women’s exemption from a bar’s cover charge).

  373. See, e.g., Easebe Enters., Inc. v. Rice, 190 Cal. Rptr. 678, 681 (Ct. App. 1983) (“An entrepreneur’s discriminatory practice based upon ostensible rational economic self-interest still violates public policy.”); Koire, 707 P.2d at 199 (rejecting the defendants’ arguments that gender-based discounts were permissible because they were profitable).

  374. Ladd v. Iowa W. Racing Ass’n, 438 N.W.2d 600, 602 (Iowa 1989) (rejecting the defendant’s claim that its ladies’ night promotion was animated by a desire to “stimulate business”).

  375. See sources cited supra note 238 and infra note 376 and accompanying text (describing “benevolent sexism” and its documentation in the literature).

  376. Hoff, supra note 24, at 141.

  377. Kristin J. Anderson, Modern Misogyny: Anti-Feminism in a Post-Feminist Era

     
    108

    (2015).

  378. Cf. Tammy L. Anderson, Better to Complicate, Rather than Homogenize, Urban Nightlife: A Response to Grazian, 24 Soc. F. 918, 923 (2009).

  379. Id.

  380. Id.

  381. Id. (“I have seen the harassment of women and their risk for sexual assault increase where clubbing ethos and norms center on hooking up or being on the pull. Women are regularly exploited when clubs use sexual props and gimmicks to sell alcohol or provide entertainment.”).

  382. See Anderson, supra note 377, at 923; David Grazian, Urban Nightlife, Social Capital, and the Public Life of Cities, 24 Socio. F. 908, 913 (2009).

  383. Grazian, supra note 381, at 913 (“[Y]oung female nightlife patrons are similarly expected to perform hegemonic femininity by adhering to constraining gender norms that include wearing snug designer jeans, low-cut blouses, and stiletto heels.”).

  384. Philip R. Kavanaugh, The Continuum of Sexual Violence: Women’s Accounts of Victimization in Urban Nightlife, 8 Feminist Criminology 20, 22 (2013) (canvassing the research in this area).

  385. Id. at 21.

  386. Id. at 22.

  387. See generally Laura Beth Nielsen, License to Harass: Law, Hierarchy, and Offensive Public Speech

    (2004

    ) (cataloguing misogynistic, harassing speech in public spaces)

    ;

    Peggy Reeves Sanday, Fraternity Gang Rape: Sex, Brotherhood, and Privilege on Campus

    (

    2d ed. 2007

    )

    (discussing sexual assault at college fraternity parties)

    ;

    Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination

    (1979)

    (theorizing sexual harassment as sex discrimination and arguing that it is prohibited by Title VII).

  388. David Grazian, On the Make: The Hustle of Urban Nightlife 263 n.1 (2008).

  389. Philip R. Kavanaugh & Tammy L. Anderson, Managing Physical and Sexual Assault Risk in Urban Nightlife: Individual- and Environmental-level Influences, 30 Deviant Behav. 680, 706 (2009).

  390. See sources cited supra note 386 (discussing men’s verbal and physical abuse of women on the street, in the university, and in the workplace).

  391. Jennifer S. Hirsch & Shamus Khan, Sexual Citizens: A Landmark Study of Sex, Power, and Assault on Campus 81 (2020) (“The mystery here is not the persistence of drunk sex among students; rather, it is the persistent exoticization, among adults, of students’ recreational drinking and sex, especially considering their own well-accepted practice of drinking to have sex.”).

  392. Grazian, supra note 381, at 913 (“Nightclubs, restaurants, and cocktail lounges rely on the physical attractiveness and sexual magnetism of female service staff and the promise of eroticized interaction to recruit customers. Female workers in nightlife settings are often expected to ‘do gender’ by attempting an exaggerated performance of sexualized femininity that includes wearing tight and revealing clothing, and handling obnoxious and suggestive comments from groups of male customers with flirty come-ons and gracious humor.”) (citations omitted).

  393. For a different take on how bars and nightclubs shape romantic marketplaces and inform stereotypes about gay men and lesbians, see Russell K. Robinson, Structural Dimensions of Romantic Preferences, 76 Fordham L. Rev. 2787, 2800–02 (2008).

  394. See Murray, supra note 25, at 288–92.

  395. Id; Matt Pearce, That Time Donald Trump Got Sued by a California Men’s Rights Activist, L.A. Times (Nov. 1. 2016), https://www.latimes.com/politics/la-na-pol-trump-mens-rights-20161027-story.html [https://perma.cc/U6GW-M52A] (discussing a lawsuit brought by a men’s right activist against Trump National Golf Club for a promotion it offered in recognition of breast cancer awareness month).

  396. David Harsanyi, Man’s Goal: Lights Out on Ladies Night, Denver Post (Sept. 18, 2006, 5:07 PM), https://www.denverpost.com/2006/09/18/mans-goal-lights-out-on-ladies-night/ [https://perma.cc/RE23-HSHA].

  397. Jessica A. Clarke, Protected Class Gatekeeping, 92 N.Y.U. L. Rev. 101, 105 (2017). As Suzanne Goldberg put it in a recent controversy involving a women’s workspace in New York City, “Anti-discrimination laws don’t only protect groups that have experienced histories of discrimination . . . . These laws protect everyone from discrimination based on specified aspects of their identity.” Karen Matthews, Can a Club for Women Legally Exclude Men? NYC Launches Probe, AP News (Mar. 29, 2018), https://apnews.com/article­/90b8bbab98a24a15a44aef9814210c2c [https://perma.cc/CH2T-59PS] (internal quotation marks omitted). In this same controversy, Katherine Franke added, “We can’t say it’s illegal for the men to keep women out of their clubs and say it’s legal for the women to keep the men out of their clubs.” See Maura Barrett & Jo Ling Kent, Despite Success, Women’s Work Sanctuaries May Break the Law, NBC News (May 21, 2018, 10:12 AM), https://www.nbcnews.com/business/business-news/despite-success-women-s-work-sanctuaries-may-break-law-n875551 [https://perma.cc/GW8Q-F6W2].

  398. Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 14–15 (2003) (“[T]he question whether a practice violates an antisubordination principle depends heavily on factual and historical contexts, and, in particular, on the laws and social mores that prevail in a given society at a given moment in history . . . . Few would characterize the anticlassification principle as similarly flexible.”).

  399. See discussion supra Section II.B; Cops Who Dance the Night Away, supra note 279, at B9; Dallas Revises Law to Restrict Club Dress Codes, Tyler Courier-Times, Dec. 23, 1979, at 5.

  400. The most noteworthy exception to this point is the New York City Commission on Human Rights, which has been recently active in this area, uniquely organized, and has “one of the broadest and most protective anti-discrimination laws” at its disposal: the New York City Human Rights Law. Gurjot Kaur & Dana Sussman, Unlocking the Power and Possibility of Local Enforcement of Human and Civil Rights: Lessons Learned from the NYC Commission on Human Rights, 51 Colum. Hum. Rts. L. Rev. 582, 598 (2020). For a general discussion on the role of these agencies, see Columbia Law Sch. Human Rights Inst., Columbia Law Sch. & Int’l Ass’n of Official Human Rights Agencies, State and Local Human Rights Agencies: Recommendations for Advancing Opportunity and Equality Through an International Human Rights Framework (2010).

  401. Devon W. Carbado, Predatory Policing, 85 UMKC L. Rev. 545, 556–58 (2017) (describing fines and citations as sources of revenue that use police officers as their front-line agents).

  402. Bernadette Atuahene & Christopher Berry, Taxed Out: Illegal Property Tax Assessments and the Epidemic of Tax Foreclosures in Detroit, 9 U.C. Irvine L. Rev. 847, 849, 851 (2019) (providing empirical evidence of a systemic and unconstitutional pattern of over-assessment of home values in Detroit, leading to inflated property taxes).

  403. Adam Crepelle, Probable Cause to Plunder: Civil Asset Forfeiture and the Problems It Creates, 7 Wake Forest J.L. & Pol’y 315, 315–16 (2017) (describing the poor incentive effects of law enforcement revenue generation from civil asset forfeiture).

  404. See generally Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for the Poor (2016) (theorizing court sanctions as a form of social control of the poor).

  405. See Nightlife Industry Overview, Am. Nightlife Ass’n, https://www.nightlifeassociation.org/market-overview/ [https://perma.cc/9XPM-PFQ2] (last visited Jan. 18, 2021) (noting that the larger nightlife industry, of which bars and nightclubs are a part of, brings in in roughly $26 billion annually in revenue).

  406. See Michael Hunter Schwarz & Jeremiah A. Ho, Curriculum Reforms at Washburn University School of Law, in Reforming Legal Education: Law Schools at the Crossroads 41, 42–43 (David M. Moss & Debra Moss Curtis eds., 2012).

  407. For voting rights see Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes, The Law of Democracy: Legal Structure of the Political Process

    (

    4th ed.

    2012)

    ;

     

    James A. Gardner & ‎Guy-Uriel Charles, Election Law in the American Political System (2d ed. 2018)

    .

    For employment law and discrimination see

     

    Mark Rothstein & Lance Liebman, Employment Law (6th ed. 2007)

    .

    For education law see Michael J. Kaufman & Sherelyn R. Kaufman, Education Law, Policy, and Practice: Cases and Materials (4th ed. 2018); Charles J. Russo, Reutter’s The Law of Public Education (6th ed. 2006). Housing falls within property and/or land use law and casebooks. See Stewart E. Sterk, Eduardo M. Peñalver & Sara C. Bronin, Land Use Regulation (2d ed. 2016); Joseph William Singer, Bethany R. Berger, Nestor M. Davidson & Eduardo Moisés Peñalver, Property Law: Rules, Policies, and Practices (6th ed. 2014). For book-length treatments on housing and discrimination by legal scholars see Richard R. W. Brooks & Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (2013); Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017). The criminal procedure story is well-told. See Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004).

  408. Austin, supra note 71, at 667.

  409. Id. at 670.

  410. Id. at 668. See generally John Wilson, Politics and Leisure (1988) (discussing how leisure is treated by differently-structured political states)

    ;

    A Handbook of Leisure Studies (Chris Rojek, Susan M. Shaw & A.J. Veal eds., 2006) (collecting a variety of essays on the origins, nature, and analysis of leisure)

    ;

    Robert A. Stebbins, Serious Leisure, Society, May 2001, at 53 (comparing a light-hearted, simple, and unsatisfying “casual leisure” with a more substantial “serious leisure” which requires time and effort to master and generates more lasting rewards)

    ;

    Sociology of Leisure: A Reader (C. Critcher, P. Bramham & A. Tomlinson eds., 1995).

  411. A Handbook of Leisure Studies, supra note 409, at 1–2.

  412. See sources cited supra note 137 (describing movements to desegregate American public accommodations); Ricard Gil & Justin Marion, Residential Segregation, Discrimination, and African-American Theater Entry During Jim Crow, 108 J. Urb. Econ. 18, 18–19 (2018).

  413. See sources cited supra note 25 (noting recent scholarship on sexual orientation, religion, and disability in the context of public accommodations law).