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Volume 79:5

Gags with Malice
Authors: Shaakirrah R. Sanders


This Article brings agriculture privacy and other commercial gagging laws into the ongoing debate on the First Amendment actual malice rule announced in New York Times v. Sullivan. Despite a resurgence in contemporary jurisprudence, Justices Thomas and Gorsuch recently questioned the wisdom and viability of Sullivan, which originally applied actual malice to state law defamation claims brought by public officials. The Court later extended the actual-malice rule to public figures, to claims for infliction of emotional distress, and—as discussed in this Article—to claims for invasion of privacy and to issues of public importance or concern.

United States v. Alvarez recently identified the significance of Sullivan and the actual-malice rule when announcing First Amendment protection for false speech. Alvarez notably exclude defamation from the categories of protected false speech. No federal district or circuit court that applied Alvarez to agriculture privacy laws considered Sullivan or the actual malice rule. Agriculture privacy laws is a type of gag law that seeks to: (1) prevent the use of misrepresentations to gain access, employment, or unauthorized entry; (2) prevent unauthorized or nonconsensual use of video, audio, and photographic cameras or recorders if there was an intent to cause harm to the enterprise; or (3) impose a duty to submit recordings of animal or agriculture abuse. Some of the legislative history of these laws demonstrate an intent to prevent undercover investigations or exposés into the industry. Arkansas has applied a similar type of gag to all commercial businesses.

The Eighth and Ninth Circuits are currently split on the scope of Alvarez’s protection against agriculture privacy and commercial gagging laws. This Article demonstrates how Sullivan and the actual malice rule also balances the First Amendment right of privacy and press to gather and disseminate information about public matters. Part I introduces agriculture privacy and commercial gagging laws. Part II deliberates the civil rights roots and recent resurgence of Sullivan in contemporary jurisprudence. Part III contemplates how Sullivan alleviates First Amendment deficiencies that gagging courts left unaddressed, particularly with regards to the effect of gagging laws on undocumented workers and others in the marketplace of ideas about commercial food production.

Higher Education Redress Statutes: A Critical Analysis of States’ Reparations in Higher Education 
Author: Christopher L. Mathis


This Article introduces a novel concept, higher education redress statutes (HERS), to illustrate efforts that acknowledge and amend past wrongs towards African Americans. More proximally, the Article shines a probing light on the escalation of higher education redress statutes in southeastern states that serve as a site for state regulation and monitoring. Professor Mathis exposes how higher education’s redress statutes, designed to provide relief or remedy to Black people for state’s higher education’s harm, categorically ignore groups of Black people who rightfully should also be members of the statutorily protected class. He queries whether legislators can expand the scope of such statutes and reveals the myriad ways in which higher education redress statutes now serve as tools for aiding in the erasure of higher education’s industry culpability and complicity in slavery, degradation, and discrimination toward Black people. As such, this Article shows the growing hostility toward Black people’s contribution to the higher education industry and states’ unwillingness to offer redress efforts inclusively, broadly, and robustly. Thus, this Article serves as a platform for recognizing Black people’s harm and hurt and the degree to which that recognition has been undermined by the states’ disparate treatment of their humanity. Lastly, this Article proffers recommendations to activists, legislators, and other relevant stakeholders regarding the enforcement and promulgation of more comprehensive and inclusive higher education redress statutes. 

Taking the Knee No More: Police Accountability and the Structure of Racism
Author: David Dante Troutt


From before the birth of the republic to the present day, police brutality has represented a signature injustice of state authority, especially against African Americans. Defining that injustice is the lack of accountability for official misconduct. The rule of law has systematically failed to deter lawbreaking by its law enforcement departments. This Article explores the various legal and institutional means by which accountability should be imposed and demonstrates the design elements of structured immunity. Using Critical Race Theory and traditional civil rights law notions of how structural racism operates, it argues that transformative change can only come about through recognition that the current system achieves the objectives for which it was designed. These objectives must change.

Sheriffs, Shills, or Just Paying the Bills?: Rethinking the Merits of Compelling Merchant Co-operation with Third‑Party Policing in the Aftermath of George Floyd’s Death
Author: Stephen Wilks

Abstract: Forthcoming