The Genetics of Data Privacy and the Privacy of Genetic Data - Ep. 50
Download MP3Welcome to litigation nation. I'm your host, Jack Sanker, along with Danessa Watkins. As a reminder, this is the show where we recount the most important and interesting legal stories of the past couple of weeks. Danessa, what are we gonna talk about today?
Danessa Watkins:A beverage giant was recently sued under Illinois' genetic privacy law. So we're gonna discuss the allegations of that case, and we'll hear from one of our partners, John Ochoa, who is both litigated and published on the topics of privacy rights with regards to biometric and genetic data.
Jack Sanker:And we're gonna be talking about a really interesting write up in the New York Times on the newer legal standard that's being applied to certain constitutional challenges by the Supreme Court. It's the history and tradition standard that's being deployed first by the Supreme Court and now by some of the lower federal district courts, and what that might mean for some of the upcoming challenges on some landmark rules and regulations in the next couple of of years here. All that and more, here's what you need to
Danessa Watkins:know. Alright. So Great Lakes Coca Cola Distribution LLC and Raya's Holdings LLC, which is one of the largest food and beverage producers and distributors in the US, have been sued in Illinois state court for alleged violations of Illinois' genetic information privacy act. This class action was filed by a proposed group of job applicants claiming that their genetic privacy rights were violated when they were required to submit to physical exams and provide a family medical history as a condition of their employment. So just kind of in summary, and we'll get more into this during the show, but the Genetic Privacy Act bestows a right to privacy in a person's genetic information and a right to prevent the solicitation, collection, and disclosure of such information.
Danessa Watkins:So as alleged in this recently filed complaint, quote, genetic information, including familial health history, is a uniquely private and sensitive form of personal information. The genetic information contained therein reveals a trove of intimate information about that person's health, family, and innate characteristics. In requiring prospective employees, such as the plaintiff, to disclose their family medical histories, defendants have violated plaintiff's and the other putative class members' statutory end quote. So the lead plaintiff in this case, Antonio Penaloza, he applied for a job as a maintenance mechanic in Raya's facility in Niles, Illinois. And then as part of the application process, Panaloza was required to undergo a physical exam and answer questions regarding the manifestation of diseases or disorders in his family members.
Danessa Watkins:So, for example, whether he had any family members with a history of heart disease, diabetes, other medical conditions. Now I know that I've seen, and I'm sure we've all seen these type of standard questions on medical forms. However, the issue here is that providing this information was part of the hiring process and a condition of the employment. So as alleged, Panaloza would not have even been considered for that job unless he disclosed this sensitive information about his family's genetic information. The class of plaintiffs here are individuals who had applied for employment with Reyes and, similarly, were required to disclose this private information and data in order to be hired.
Danessa Watkins:So in this case, the plaintiffs are seeking injunctive relief as well as the following, which is expressly provided for under the genetic privacy act. Statutory damages of $15,000 for each reckless or intentional violation of the act. Statutory damages of $25100 for each negligent violation, and then reasonable attorney's fees, costs, and other litigation expenses. So, I mean, generally speaking, I think we can all agree that the advancements in biological science and genetic mapping have had a significant beneficial impact on modern medicine, but there's also been a whole host of privacy issues that have attached to these technologies. And these debates on scientific advancement versus rights to privacy, they've been swirling for decades.
Danessa Watkins:So, when I was doing a little research, I found that as early as 1996, the Center For Disease Control expressed concerns about people's rights to security and privacy in their genetic makeups. And then 2 years later in 1998 is when the Illinois General Assembly enacted the Genetic Privacy Act. They recognized in part that people's genetic information could potentially be used as a source of discrimination. So Illinois was actually somewhat ahead of the game in passing this legislation, because it wasn't until 10 years later that Congress enacted the Genetic Information Nondiscrimination Act of 2,008. So this was the the federal framework for prohibiting discrimination on the basis of genetic information with respect to health insurance and employment.
Danessa Watkins:So despite the fact that this law has been on the books in Illinois for 25 years, it wasn't until recently that plaintiffs began using the genetic privacy act as a basis for their claims. So to dive a little deeper into this subject, we're excited to have our partner, John Ochoa, on the show to help educate us more. John, thanks so much for joining us. Let us know a little bit about your practice here at Umenson Davis.
John Ochoa:Hi, Danessa. Thanks for having me. So I'm a member of the, cybersecurity and data privacy service group here at Amundson Davis. In that capacity, I advise clients on, best practices and legal requirements for privacy disclosures and, help them with regulation and guidance regarding privacy and cyber security. We also help clients with data privacy laws, particularly those that govern data collection, storage, and sharing of sensitive private information that includes, biometric and genetic data.
John Ochoa:I'm also on the, class action litigation team here, which litigates, consumer and privacy class actions.
Danessa Watkins:Excellent. So you are the perfect guest to to talk about, these crazy new cases under the genetic privacy act. So, let's jump right in. It seems like the floodgates are officially open here with these civil actions. Can you give us a little bit more background about the purpose of the Genetic Privacy Act and who or what it was intended to protect?
John Ochoa:Sure. So the genetic privacy act is a fairly comprehensive statute. It's much longer than, the biometric privacy act. The statute regulates not just, employers actions, but also other industries, including the insurance industry. And the law has 2 main components.
John Ochoa:The first deals with the protection and sharing of one's genetic information. Basically, this means that if someone or some company collects your genetic information, they can't share it with anyone else without your written consent. The second portion of the statute is a nondiscrimination, aspect. And that basically means that one's genetic information cannot be the basis of hiring or firing decisions, demotions, or other, negative outcomes in the workplace. The statute has, many requirements specific to employers.
Danessa Watkins:Okay. And does I'm I'm sure it does, but, of course, you know, our we wouldn't have jobs unless we litigated the terms of statute. But does does the statute provide a fairly comprehensive explanation of what genetic information is?
John Ochoa:It does. And the definition in the statute is fairly broad. The genetic privacy act borrows the definition of genetic information from federal HIPAA statute. And it defines genetic information as information pertaining to an individual's genetic test, the genetic test of family members of that individual, the manifestation of a disease or disorder in family members of such individual, or any request for receipt of genetic services or participation in clinical research, which includes genetic services by the individual or any family member. So, the definition has many sub parts.
John Ochoa:It's quite broad. Specifically, the provision concerning the manifestation of disease or disorder in family members, could potentially encompass a wide variety of information. I heard you mention this when discussing the Reyes case earlier. For instance, if a sibling or parent suffered from heart disease or diabetes, this could potentially be considered genetic information under the statute. And I I say potentially because the full scope of these definitions, has not yet been litigated in Illinois courts.
John Ochoa:So we we can't say with certainty right now whether that definition, is what courts would adopt or whether these complaints have merit when they say that, you know, someone's, information about a family member is being collected during the hiring process.
Danessa Watkins:That yeah. That makes sense. So is it it it seems like you're saying that this this statute, isn't we haven't seen it be litigated that much until recently. Is that right?
John Ochoa:That's right. The statute was passed in 1998, and Illinois was really on on the cutting edge when it enacted the statute, but it sat dormant for over 20 years after it was passed. And we've only seen, a wave of filing of these cases in the last 12 to 18 months or so.
Danessa Watkins:Okay. So we probably haven't even really seen any appeals yet. It's it's still at the trial court level for the most part.
John Ochoa:That's correct. There haven't been any cases that have been litigated through trial on the merits yet. There have been a few earlier cases, involving the genetic privacy act. Some of them were, data breach cases involving Illinois healthcare companies. There was one case brought related to the, asset purchase of a company that dealt with consumers genetic information, but lawsuits like the Reyes case were only seeing pop up recently.
Jack Sanker:What are the, the damages that the plaintiff's entitled to?
John Ochoa:Sure. The damages under, the genetic privacy act are are pretty high, and they're, 2,500 per violation for negligent violations and $15,000 for intentional or willful violations. Plus the plaintiff's counsel can collect their attorney's fees plus be awarded injunctive relief.
Jack Sanker:That seems comparable to the biometrics act.
John Ochoa:Yes. It is. They're actually a bit higher. Under BIPA, the damages are a 1,000 for negligent violations and 5,000 per intentional violation.
Danessa Watkins:So in the Reyes case then, I mean, obviously, it just got filed and they probably don't even know the size of the class yet. But let's say there were a 100 class members. If there was a finding of reckless or intentional violation of the act by the employer, then that could be $15,000 per, per litigant?
John Ochoa:That's right.
Danessa Watkins:Wow. That's pretty steep.
John Ochoa:It is. And, you know, that's obviously the deterrent effect of the statute. That's why they enacted it in that way, and that's probably why Illinois enacted, the biometric privacy law in that way is to discourage these types of practices.
Danessa Watkins:Yeah. So I know that you're you're certainly well versed in Illinois' Biometric Information Privacy Act or BIPA as we love to call it. Can you give us just a kind of a comparison of of BIPA versus this genetic privacy act? Like, are are they similar? Or I mean, we know the damages differ a little bit, but they seem to have kind of the same aim.
John Ochoa:Yes. I mean, they're they're similar in the sense that they're protecting information about individuals that wasn't always traditionally seen as protected under the law. And I think that is coming about because of the advances in technology that, you know, have now allowed people to have their biometrics recorded. You know, you use your biometrics when you open up your phone, either a face face scan or fingerprint. And now in the last 10 years or so, employers are using thumbprints and hand handprints for, you know, punching in and punching out rather than using a time card.
John Ochoa:So, you know, the the technology is is catching up, and, you know, Illinois was sort of ahead of the pack when it came to passing laws protecting this type of information. I think, you know, genetic information is is somewhat similar in that, you know, 20 years ago, it was a very, you know, new emerging type of field. Now it's becoming more common, you know, with services like 23 and me or ancestry.com. People are are getting more interested in, you know, their genetic makeup and, you know, maybe becoming more comfortable in in sharing that with other people. So, you know, Illinois again saw the the potential risks of that information falling into the wrong hands or being misused or stored improperly.
John Ochoa:And that's where I think, the genetic privacy that comes in.
Danessa Watkins:Yeah. That makes sense because even BIPO was passed, I I believe, in 2008. But like the genetic privacy act, it really sat dormant for a number of years before the plaintiff's counsel started seeing, hey, maybe we can bring some claims under this.
John Ochoa:Yeah. Absolutely. I I think the use of fingerprint scanners by employers for for punching in and punching out largely drove, BIPA into becoming the the statute that it is, where, you know, companies are still being sued on a regular basis. It helps that the statute has a 5 year statute of limitations. So, plaintiff's attorneys and their clients can look back 5 years in the past to find violations.
John Ochoa:So even if a company had, you know, updated their disclosures and we're doing things the right way for the past 3 years, they could still get hit with these, BIPA lawsuits.
Danessa Watkins:Is it do you know the is the statute of limitations the same for a genetic privacy act?
John Ochoa:That is not yet known. That that's one of the many that's one of the many questions that will probably need to be answered by Illinois courts. And and this is, something that happened with the Biometric Privacy Act, and I see it happening with the genetic privacy act act also, is that there are a lot of unanswered questions about, you know, for instance, what's the definition of genetic information? What is the statute of limitations? How high should damages be under the statute.
John Ochoa:You know, all the same questions that have now been answered for the biometric privacy act will have to be answered for the genetic privacy act also.
Danessa Watkins:Got it. Yeah. I did see, a couple rulings came down last year under BIPA. The Northern District of Illinois found that the statutory damages under BIPA were discretionary rather than fixed in amount. And the Supreme Court, it looks like in a split decision 4 to 3 in Cawthorn versus White Castle system, They found that, a claim under BIPA may accrue each time a private entity collects or discloses biometric identifiers, so that's like fingerprints or retina scans, without informed consent as opposed to accruing only with the first collection of disclosure.
Danessa Watkins:So in other words, if you have an employee that's using a fingerprint to clock in and out over the course of a year, every single violation could be a fine of as much as $5,000. Is that right?
John Ochoa:That that's right. And, you know, the the courts have kind of given thrown a bone to plaintiff's attorneys and defense, on BIPA. On the one hand, every every scan could be a violation, but on the other hand, damages are discretionary up to a 1,000 or $5,000. So a, jury in deciding damages could decide to award damages much lower than $1,000 per violation. We we saw this somewhat play out in a case brought against Burlington Northern Santa Fe under BIPA where they took the case to trial and lost, and the judge awarded approximately $220,000,000 in damages.
John Ochoa:After the Illinois Supreme Court said the damages were discretionary, the judge in that case ordered a retrial on the issue of only damages, putting putting the issue at in the the question in the hands of the jury rather than the judge. Before that jury trial happened, the party settled the case for much lower than 220,000,000. They settled the case for around $70,000,000, which came out to approximately $1,000 per class member, which coincidentally is what we're seeing a lot of these cases settling at now. So I think, we we can see take that as a sign that somewhat of a win for the defense bar that, you know, they're they're a little nervous that a jury may not decide to impose annihilating damages on a company for these sorts of violations.
Danessa Watkins:Yeah. I I mean, I'm sure that once these lawsuits started being filed, it probably came as a real shock to a number of employers. And I'm just curious. Has there been any action by the legislature to try to maybe push back? I mean, these these statutes were enacted early, maybe before the legislature even knew how they were gonna be used.
Danessa Watkins:So has has this flood of litigation caused them to pull back at all?
John Ochoa:It has. There's a bill working its way through the Illinois legislature right now that would take the per violation damages away from the genetic I'm sorry, the biometric privacy act. And instead only allow plaintiff to recover damages for the first violation. So in the example we had of a employee clocking in and clocking out multiple times a day, only the first time that that employee used the finger scanner would have violation accrue. And there there couldn't be recovery of additional damages for subsequent scams.
John Ochoa:That that law seems to have pretty broad, support amongst the Democrats. Republicans oppose the bill thinking it doesn't go far enough, and they want to see more of the protections of the the rolled back. But, you know, given given the support on on the Democratic side, I expect that the bill will pass. With one one key question being whether or not the bill will have a retroactive effect for employers facing, biometric privacy at claims right now.
Danessa Watkins:So do you expect that the genetic information act and the the lawsuits that are being filed under that are gonna kind of follow this similar trajectory of we need to first figure out what is the scope of this act and what are the definitions, like you said, the statute of limitations. And then maybe once there's been enough rulings on those basic issues, perhaps the legislature will take another look at, you know, whether they've gone too far again.
John Ochoa:Mhmm. I think it will. I think the first main question will be exactly what is genetic information. And because that that question could make a huge difference in whether these, you know, pre employment screening cases have legs or not.
Danessa Watkins:Mhmm.
John Ochoa:If if a court takes a broad definition that asking someone about, you know, their father's heart disease or diabetes is genetic information, that could potentially open the floodgates for many more of these types of claims. If, on the other hand, a court takes a narrower view and says that, you know, only diseases or disorders relating to someone's genetics is genetic information. Well, that that would dramatically narrow the amount of diseases or conditions that could be considered genetic information and, you know, probably put an end to a lot of these lawsuits.
Danessa Watkins:So I guess it's it's sort of a wait and see on how things develop over the next 12 to 18 months. Not that I wanna provide this type of publicity, but this seems to be one of those attractive, you know, niche areas for plaintiff's firms right now to jump on, especially with the liquidated damages and fee shifting.
John Ochoa:Yeah. It does. It it has all the same, you know, hallmarks that the, Biometric Privacy Act does. It has large statutory damages as fee shifting, pretty broad definitions, and, it has a lot of requirements that, you know, more than, you know, an average company would know about or even have on their radar right now. So I think it could catch a lot of companies unaware.
John Ochoa:You know, and if the courts decide that it has a 4 or 5 year statute of limitations, you know, that that's a lot of exposure hanging out there.
Jack Sanker:I think maybe, noting by the litigation at least, it was the by the litigation that shut down, Facebook's facial recognition program, and I know that they paid out pretty significant settlement on that. The financial penalties that have been assessed under similar statutory schemes have been in the tens to 100 of 1,000,000 of dollars. So something like this has that potential for, like, a knockout type penalty.
John Ochoa:The Facebook settlement, which many Illinois residents are probably aware of because they received a notice, put together a pot of money of $650,000,000 approximately to to pay out in claims for people whose, you know, facial recognition features were were captured, under Facebook's tagging process. And if, a large Illinois employer who for years has been collecting, information about their employees, you know, health histories of their family members is dinged under the statute. We we can see the the same type of damages. You know, thus far under the biometric privacy act, only one company has decided to take it all the way through to trial, see what happens, and that's Burlington Northern. Most other companies, virtually all of them will settle the case prior to getting to that point.
John Ochoa:So another interesting thing to watch for under the genetic privacy act is once we see the first settlements coming down the pipeline, if we do. And if we do, what size are those settlements? How much are they settling per per class member? The biometric privacy act was was in flux for a little bit, but now it's kind of settled into this sort of $1,000 per, class member band. And, obviously, there's there's some differences in cases that might change that number, but generally speaking, we're talking about $1,000.
John Ochoa:Since the damages under the genetic privacy act are higher, perhaps those might be more like 2,000 or 3,000. On the other side of it, the, violations under the the, genetic privacy act maybe won't have the same type of recurrence that they do under the biometric privacy act. You know, going back again to an employee's punching in and punching out using their fingerprint multiple times a day, the damages accrue very quickly. Under, the genetic privacy act, there may just be one instance, you know, one application, one, time that someone's biometric information is is collected in violation of the statute. So that that may also put a damper on on the amount of damage awarded in a genetic privacy act claim.
Danessa Watkins:Yeah. And the genetic privacy act, I, you know, I I certainly don't know the ins and outs of it like you do, but it seems to be a little bit more limited in that, as you started off with those kinda 2 buckets of where these claims fall into. 1 being sharing information without written consent, and then the other being, discriminating against someone based on their genetic information. So and and you may not have the answer to this, but it would seem that if a company is simply asking questions on a questionnaire and doesn't share that information or doesn't base its hiring decisions on that information, maybe there won't be a violation.
John Ochoa:Yeah. So I I think, BIPA and the genetic privacy act in some ways, the genetic privacy act is narrower. In some ways, it's broader. So the biometric privacy act is principally concerned with you can't collect someone's biometric data without first getting their written consent and having a policy in place for how long you're going to keep that information and when you will destroy it. So that's that's a threshold for anyone collecting genetic information.
John Ochoa:I'm sorry, biometric information. And the, genetic privacy act doesn't prohibit the collection of genetic information on its own. What it prohibits is requiring employees to provide genetic information as a condition of employment or the application process. So, theoretically, someone could could voluntarily provide that information so long as the employer made it clear that it wasn't a condition of employment. That being said, you know, you're you're walking into a danger zone anytime you're you're dealing with that sort of thing in the connection with, in connection with employment decisions or hiring or firing or promotions, anything.
John Ochoa:So I I would caution companies to be very careful when they're talking about something that could, be cons considered, genetic information in the hiring process.
Danessa Watkins:Yeah. For now, just apply that term as broadly as possible to protect yourself as seems to be the best, way to proceed.
John Ochoa:That that's what I would do, and, you know, not to give legal advice out here on the show. I I think it's fine for an employer to find out whether or not an employee would be able to perform the tasks required for the job. So if the job was in a warehouse that required a lot of physical activity, physical, you know, labor, it's fair for an employer to find out whether that person is able to, you know, say, lift heavy boxes or whether they might have a condition that would prevent them from doing so. I but that's different from asking someone, you know, does your father have heart disease or hypertension or, you know, because that gets to trying to predict maybe whether that employee in the future may or may not be able to perform those tasks. And that's where you start getting into trouble with, genetic information.
Danessa Watkins:Very excited to see what happens with the genetic privacy act. We'll also keep an eye on BIPA and this bill that's with the legislature right now. Certainly appreciate your time and your insights. Just for our listeners, how can they get in touch with you if they have further questions or, if they're facing issues with these acts that are still being, you know, deciphered and and litigated right now.
John Ochoa:Thanks for having me, Danessa. It's, you can find my profile on Ahmanson Davis' website at Ahmanson ahmansondavislaw.com. You can reach me via email at, jochoa, that's o c h o a, at ahmansondavislaw.com.
Jack Sanker:There's a really interesting opinion piece in New York Times on the emerging legal test that's being utilized first by the, Supreme Court and now by some of the lower courts to decide constitutional questions. The piece starts with a summary of a recent case in Texas from 2022, where a student LGBTQ advocacy group was planning to put on a drag show to raise money for suicide prevention. And the rules around this show were, in my opinion, somewhat reasonable. The kids under the age of 18 can only come if they were to accompanied by an adult. For example, no unaccompanied minors could come.
Jack Sanker:So, basically, the same rules of, like, a rated r movie. But the University of West Texas A&M banned the event from campus calling it derisive, divisive, and demoralizing misogyny. The group sued, arguing that this was an unconstitutional viewpoint discrimination act under the First Amendment. And the piece goes on to note that, the Supreme Court has historically protected speech on public university campuses, so this seemed like a relatively straightforward case and probably an easy win for the student organization. However, the case was assigned to a judge in Texas who has been at the heart of several constitutional rulings lately, and this is in the Northern District of Texas, by the way.
Jack Sanker:And looking at his opinion, it it begins by immediately jumping to and utilizing what's been deemed the history and tradition test. This test was formally adopted by the Supreme Court in the 20 20 2 case, the Bruin case. This was the, one of the gun regulation rulings that the Supreme Court handed down in 2022. The Supreme Court applied that same reasoning in the Dobbs case as well. It's the abortion case.
Jack Sanker:When it found that abortion was, quote, not deeply rooted in the nation's history and tradition. And that's that fact, according to the court at least, was at least somewhat dispositive as to whether or not there was a right to abortion that had existed under Roe beforehand. So utilizing this this history and tradition test, the judge in the Northern District Texas wrote, quote, free speech jurisprudence only intermittently invokes the historical analysis applied to other amendments and clauses. He cites the Bruin case and a few others, explaining that the establishment clause jurisprudence looks to history for guidance. And then the court goes on, said historical analysis reveals a free speech ecosystem drastically different from the expressive conduct absolutism of the plaintiff's briefing, unquote.
Jack Sanker:So the student group loses. Now back to the times piece. I'm gonna quote from there. Quote, the flurry of history and tradition opinions prompted an uproar among liberal court watchers. What counted as historical or traditional?
Jack Sanker:The open ended nature of the term seemed to invite a freewheeling survey of 18th 19th centuries. One commentator, Joseph Furskin, a law professor at the University of California Los Angeles, tweeted that it's basically a fancy way of saying if men in power didn't recognize this right as fundamental in ye old times, we won't recognize it now, un unquote. According to a law review article by a Yale law professor, Reva Siegel, the court was playing, quote, memory games. She asks, why does the conservative majority appeal to history and tradition in exactly those cases when it is changing the law? The Times piece notes this caused all sorts of confusion on the bench.
Jack Sanker:Judge Carlton Reeves, an Obama appointee, pointed out that judges were simply not trained to sort through the competing interpretations of history, Quoting from, judge Reeves, quote, we are not experts in that what white wealthy male property owners thought about firearm regulations in 17/91. Now on the flip side, this new standard gets rid of a lot of the originalism standards that conservative justices have been using since 19 eighties because it really no longer asks what the intention of the framers was at the time that the document was authored. Instead, it asks whether there was a history and tradition of a given right of privilege in the years since the document was written. Justice Amy Coney Barrett actually noted at one point that the history and tradition test encourages judges to hunt for historical sources, which she said is like looking over a crowd and picking out one of your friends from the crowd. So the piece goes on to argue against the ways the history and tradition test is utilized, specifically taking issues with how it was according to the author, but also according to the American Historical Association and the Organization of American Historians used to cherry pick historical examples rather than accurately reflect the real history of the United States, at least in the Dobbs opinion.
Jack Sanker:But I wanna focus more on the judge's qualifications for determining whether there was a history or tradition of a certain thing in the United States at a given point in time. And and here's what I will hang my hat on. I do think that judges are bad historians. I think anytime you're reading a Supreme Court opinion and they're doing this kind of deep dive on, you know, what was going on at a given time in American history, it's usually a pretty pretty bad analysis. And how do I know that?
Jack Sanker:Because every decision that the Supreme Court makes based on history is usually met with universal, like, groans from actual historians. There's always complaints about how they got it wrong one way or the other. And, really, you know, when you think about it, I think it takes quite a bit of hubris to declare yourself an expert in in a a field like this. I think a lot a lot of people look at history as, you know, soft liberal arts, whatever. I don't really think that's fair.
Jack Sanker:I I think it is more like a hard science than people think. And I'll go on the record here saying that history is a hard science. For example, to know how things were at a given point in time, you do have to understand the language, geography, the politics, the economics, the religion, the customs that were prevalent at that time. You have to know where to find that data. You have to know how to evaluate the trustworthiness of that data.
Jack Sanker:Often, the data is in a different language, so you need to know how to read that and so on and so on. Now what I think is interesting is, contrast this with the cases that, judges often hear, you know, maybe in products cases or, intellectual property. I mean, a judge would never so flippantly declare in their opinion that they themselves are experts in, say, chemistry or something like that. In those scenarios, they're going to listen to expert testimony. When considering history, the input of actual historians, though, is almost never given the level of deference that, like, a stem expert would would be getting.
Jack Sanker:And that's kind of what really bothers me about, this this new emphasis at both the supreme court and now in the federal district courts on the quote, history and tradition test is there's really no fact finding element of the history and tradition test. Like, I don't know. Imagine there's a bench trial about whether a certain, you know, molecule either was or was not radioactive. Right? Well, the judge is not gonna just sit there and listen to the lawyer's arguments, you know, one way or the other and take them at their word and then decide, you know, this thing is radioactive.
Jack Sanker:The judge is gonna hear expert testimony on facts and is gonna rely on that. At the supreme court level, but even at the lower court levels, there's really nothing similar to that when it comes to historical examinations. You know, the litigants, you know, make their arguments, which are meant to be persuasive and, of course, emphasize the good facts while minimizing the bad ones. And there are amicus briefs that are filed, but as I mentioned, they're kinda mostly ignored when they come from actual historians. Instead, the judges kinda take on this mindset of, well, I can just read the history books cited in the briefs myself and decide what happened in the 18 seventies on my own.
Jack Sanker:And they really would never do that in any other context. So as the judges and the justices move more towards this independent, historical analysis that they are going to be the ultimate arbiter of, of, I think the decisions are gonna be getting further and further unmoored from actual historical reality as I think mentioned in this piece, The New York Times that I'm looking at, but just broadly and in in general. And if and if you don't wanna take my word for it, take a look at some of the amicus briefs that are filed anytime something like this is before the Supreme Court, and you'll note, the one sidedness of any of the major associations of history professors or historians, typically don't agree with whatever the majority opinion is.
Danessa Watkins:Yeah. So I'll admit that I have not read up on this case, in preparation for this show, but I have seen just a slew of first amendment issues and freedom of expression issues coming out recently. Well a lot of them on college campuses actually for different reasons. But, it so it seems like so this opinion was saying that drag shows as a category has not been historically viewed as a protected expression. Was that the ruling?
Jack Sanker:Yes. And, that that not every type of speech at the on the on college campus level is broadly protected, which is has, I think, broadly been the interpretation of the law. That only the types of speech and expression that are, quote, rooted in our, history and tradition are going to be protected under the first amendment, which is a significant narrowing of of what I understand to be, the law with respect to, like, college speech and things like that.
Danessa Watkins:Well, it's it's a scary narrowing because, it's it sounds like a stifling of ideas. I mean, especially when you think about the broader purpose of college life. You know? It's to to discover and to learn and, you know, find yourself and, immerse yourself in other ideas and cultures. And so if we start saying, well, historically, this hasn't been protected.
Danessa Watkins:Aren't we silencing, you know, various levels of expression in speech? Yeah. This I I'm hoping they take a close look at this at the appellate level. It seems like there just seems to be this push in a bunch of different avenues and and circumstances to try to equate drag in general, drag shows, with some sort of, like, pornographic thing, as opposed to I think the argument could be made that, it could also be a form of, you know, like a like a a playwright. Like, you're you're putting on a performance.
Danessa Watkins:You're assuming a different, entity or personality. You know, I don't know why. Well, I guess I can understand why, but I don't agree with the shift to try and push it towards this explicit, you know, area that, yes, of course, there are, restrictions under the First Amendment when it comes to obscenities and, you know, time, place restrictions, and content. You know, we we limit content based on children and, you know, the age of the audience. But, yeah, I just, the this seems like just another push to try to put drag into this category that, I mean, I would argue it's not, or it's certainly not in every circumstance.
Danessa Watkins:So it definitely seems overinclusive. I mean, I did read a quick article that just said and I don't know if it was the judge that that made this statement, but, I think it might have been, that it it wasn't so much who the people were. So I think he said if it was the Christian society that were putting on a drag show, the the result would be the same. So he was trying to make it seem like he's not, you know, upholding this ban based on the fact that I think it was LGBTQ community that put it on. But I don't I I don't think that matters either way.
Danessa Watkins:I mean, whoever's putting it on, it is an expression, in my expert opinion. And, yeah, I and I also don't think that, you know, this isn't at a elementary school. So, you're you're taking care of that aspect of, you know, the potential issues with obscenity, but, again, I I think it's wrong to label this categorically as an obscenity, And I wonder if those arguments were made. Let's keep an eye on this. I'm certainly interested, to see how this plays out.
Danessa Watkins:But, But, yeah, thanks for bringing it to our attention, Jack. Alright. Well, that's our show for today. Thank you again to John Ochoa. If, any of our listeners have follow-up inquiries on BIPA or the genetic privacy act, please reach out to him.
Danessa Watkins:As always, leave us comments, your thoughts on the show, topics you want us to cover, and we'll see you next time.
