The Supplemental Nutrition Assistance Program (SNAP) provides approximately 41 million people nationwide with access to essential food and nutrition.[1] This federally funded food-assistance program was originally designed to redistribute excess farm commodities during the Great Depression.[2] More recently, however, SNAP’s focus has shifted towards alleviating hunger and food insecurity by increasing low-income households’ food-purchasing powers.[3] American families have relied on SNAP for over 85 years; today the program’s future is uncertain as it faces aggressive budget cuts and SNAP Food Restriction Waivers.[4] The United States Department of Agriculture (USDA) boasts that these restriction waivers “empower states with greater flexibility” to manage SNAP benefits.[5] However, in reality, these waivers only further restrict the purchasing of certain non-nutritious items.[6] Though these waivers give states the opportunity to place restrictions on previously SNAP-eligible items, they provide no flexibility for expanding coverage. To ensure these cuts do not risk eroding participants’ purchasing powers, USDA should compensate for these reduced purchasing options by initiating expansion waivers.
Before discussing this issue further, however, it is useful to clarify exactly how SNAP works. Qualifying families receive SNAP benefits on EBT cards[7] that can be used for purchasing eligible foodstuffs at participating retailers.[8] Eligible foodstuffs include “any food or food product intended for human consumption, except alcoholic beverages, tobacco, and hot foods.” [9] A few adjacent items are also classified as eligible foodstuffs, including seeds, edible plants, food procurement equipment (e.g., fishing rods, nets, etc.), and prepared meals from authorized dining facilities.[10]
Broad eligibility requirements and administrative rules are determined at the federal level, but day-to-day SNAP operations are handled by state governments that act through local social-service agencies.[11] The direct state oversight of SNAP benefits would presumably result in some flexibility and opportunity for states to further define exactly what benefits are covered under the food assistance program. However, due to the clear language of the enacting federal statutes and regulations, there is actually very little wiggle room for interpretation at the state level.[12] Rather than any opportunity existing for states to expand their definition of SNAP-eligible items, the only option for refinement is to further limit SNAP-eligible purchases through USDA-approved SNAP Food Restriction Waivers.[13] State Departments of Human Services may submit waiver requests to USDA and, following approval, may amend their respective state statutory definition of SNAP “eligible foods.”[14] Any item not classified as an eligible food may not be purchased using SNAP.[15]
In the wake of the Make America Healthy Again movement, many states are taking action to reduce SNAP purchases of junk food in their jurisdiction.[16] Over the last six months, eleven states have requested restriction waivers; notably, all sought to limit the same item: sugar-sweetened beverages.[17] According to the most recent food-assistance survey by the USDA, participating households spend more SNAP money on soft drinks than on any other item.[18] In light of the significant spending on soft drinks by SNAP households, tremendous debate surrounds the ethics of restricting SNAP participants’ access to sugar-sweetened beverages. While it is broadly recognized across the medical community that sugar-sweetened beverages have negative health impacts and no nutritional value, some scholars have called for increased pilot studies to empirically assess the public health value of any potential SNAP restrictions.[19] Others question the practical logistics of state-specific compliance programs for retailers and the potential for participant confusion.[20] Some critics even point towards the insidious nature of such restrictive legislation that needlessly limits low-income individuals’ freedom of choice.[21] This has been a decade-old controversy that is just now coming to the forefront. One of the most controversial of these criticisms is the loss of SNAP participants’ dignity in choice-making.[22] Since states are unable to expand the definition of SNAP-eligible items, if restriction waivers continue to slash SNAP eligible items, participants will be left with fewer and fewer purchasing options.
A potential remedy for this loss of purchasing autonomy would be a USDA-approved expansion waiver that allows the states to broaden the scope of SNAP eligibility based on public needs. Such a remedy would be best created by Congress which has the constitutional authority to delineate both USDA and the states’ definition of SNAP-eligible food items.[23] If Congress created a broader standard for determining SNAP eligibility, it would grant states more freedom to expand the definition of eligible items rather than just restrict.[24] States would then be in a better position to preserve individuals’ freedom of choice. Because the federal government gives states the tools to restrict SNAP benefits, it should equally give them the opportunity to expand coverage.
[2] Patti S. Landers, The Food Stamp Program: History, Nutrition Education, and Impact, 107 J. Acad. Nutrition and Dietetics 1945 (2007).
[3] 7 U.S.C. 2011 §§ 2, 3(k); Comm. on Examination of the Adequacy of Food Resources and SNAP Allotments, et al., Nat’l Rsch Council, Supplemental Nutrition Assistance Program: Examining the Evidence to Define Benefit Adequacy 2 (Julie A. Caswell & Ann L. Yaktine eds., 2013).
[7] EBT (Electronic Benefits Transfer) is an electronic payment system that allows food assistance program participants to purchase certain items using SNAP benefits. Benefits are distributed to participants’ accounts on a monthly basis and may be accessed using their EBT card. SNAP EBT, USDA: Food and Nutrition Serv. (Feb. 4, 2025), https://www.fns.usda.gov/snap/ebt; What is EBT? How SNAP Works: The Electronic Benefit Transfer (EBT) System, Ctr. for AGRIC. & FOOD SYS., https://farmersmarketlegaltoolkit.org/snap/what-is-ebt/ (last visited Oct. 25, 2025). EBT cards function like debit cards and may be used to purchase SNAP-eligible foods at SNAP-authorized retailers. Id.
[12] States do not generally define SNAP eligible items in state legislation beyond the definition provided in federal law, see, e.g., Vt. Stat. Ann. 33 § 1701 (2025) (“The State of Vermont may participate in the federal Supplemental Nutrition Program Assistance Program (SNAP) pursuant to 7 USC chapter 51.”); see, e.g., Tex. Hum. Res. Code Ann. § 33.002 (West, 2025) (“The commission is responsible for the allocation of supplemental nutrition assistance program benefits allocated . . . by the federal government.”); see, e.g., Or. Rev. Stat. § 411.816 (2023) (“The Department of Human Services shall adopt rules conforming to federal laws and regulations . . .”); Cf. 7 U.S.C. 2012 § 3(k); 7 C.F.R. § 271.2 (SNAP-eligible items are clearly defined at the federal level).
[13] USDA: Food and Nutrition Serv., supra note 4.
[17]SeeSNAP Food Restriction Waivers, supra note 4 (Arkansas: purchase of soda, fruit and vegetable drinks with less than 50% natural juice, unhealthy drinks, and candy; Colorado: purchase of soft drinks; Florida: purchase of soda, energy drinks, candy, and prepared desserts; Idaho: purchase of soda and candy; Indiana: purchase of soft drinks and candy; Louisiana: purchase of soft drinks, energy drinks, and candy; Nebraska: purchase of soda and energy drinks; Oklahoma: purchase of soft drinks and candy; Texas: purchase of sweetened drinks and candy; Utah: purchase of soft drinks; West Virginia: purchase of soda).
[18] USDA Food and Nutrition Serv., Foods Typically Purchased by Supplemental Nutrition Assistance Program (SNAP) Households (Summary) 2 (2016).
[19]Fast Facts: Sugar-Sweetened Beverage Consumption, CDC: Nutrition (Jan. 11, 2024), https://www.cdc.gov/nutrition/php/data-research/sugar-sweetened-beverages.html; Anne Barnhill, Impact and Ethics of Excluding Sweetened Beverages From the SNAP Program, 101 Am. J. Pub. Health 2037 (2011); Marlene B. Schwartz, Moving Beyond the Debate Over Restricting Sugary Drinks in the Supplemental Nutrition Assistance Program, 52 Am. J. Preventative Med. S199 (2017).
In 1969, nearly half of American students in grades K-8 walked or biked to school.[1] By 2017, that number had fallen below 10%.[2] In half a century, the geography of childhood has collapsed—from the neighborhood to the backyard to the living room—while the parental gaze has expanded to fill the void.
This contraction of children’s mobility reflects more than lifestyle change. It signals a deeper shift in how society regulates risk and autonomy. As parental caution hardened into policy, states began to conflate child independence with endangerment. Ordinary childhood acts—walking to a park, waiting in a car, staying home alone briefly—sometimes drew Child Protective Services’ (CPS) scrutiny. Against this backdrop, “free-range parenting” laws—often styled Reasonable Childhood Independence acts—aim to restore balance by clarifying that age-appropriate independence is not neglect.
Free-range parenting laws are a positive development that should be encouraged. Yet their promise remains unevenly realized. Some states, like Utah and Colorado, enacted clear safe-harbor provisions that protect parents who permit age-appropriate independence. Others, however, have stumbled. New Hampshire’s 2025 legislative effort offers a revealing case study of how good intentions can yield bad drafting. Lawmakers and agencies must also recognize that unnecessary intervention can worsen family trauma and that conflating poverty with neglect perpetuates inequity.
Why this debate matters now
Over the last generation, childhood freedom has narrowed. Parents supervise more than ever; kids do less on their own. This shift coincides with rising youth anxiety and depression—and with exhausted parents.[3] As some observers recently noted, “[k]ids have been strapped into the back seat of their lives—dropped off, picked up, and overhelped,” while parental stress climbs.[4]
Research links “helicopter” parenting to poorer mental health. A 2022 systematic review found a clear positive relationship between intensive parenting and symptoms of anxiety and depression in adolescents and young adults.[5] The American Psychological Association likewise reported that over-controlling parenting leaves children less able to handle life’s challenges.[6]
Meanwhile, programs that gently restore children’s independence are showing promise. For example, more than 1,000 schools nationwide use Let Grow’s Play Clubs and Experience assignments.[7] These opportunities for free play and do-it-yourself tasks correlate with resilience and academic gains.[8] In other words, when adults step back, kids often step up.[9] They also occasionally step in puddles—then figure out how to dry their socks. That is part of the curriculum.[10]
Courts have long cautioned against undue intrusion into parental judgment,[11] and scholars have warned that overbroad neglect statutes risk enshrining overprotective norms.[12] Indeed, vague neglect statutes plus a hair-trigger “see something, say something” culture create a perfect storm in which ordinary independence draws legal scrutiny.[13] The result is not just intrusive; it is inequitable. According to Professor David Pimentel, helicopter parenting is a luxury of the affluent, while risk-averse norms, translated into law, effectively criminalize poverty.[14]
What “free-range” laws do
Beginning with Utah in 2018, several states have clarified that age-appropriate independence is not neglect. Utah’s first-in-the-nation law expressly excludes from “neglect” activities like walking or biking to school, going to and from a nearby store or park, playing outdoors, or staying home for a reasonable time, provided the child’s “basic needs are met” and the child “is of sufficient age and maturity to avoid . . . unreasonable risk of harm.”[15] The statute reframes the legal baseline away from a slippery “possible risk” standard and toward a “reasonable parent” lens tied to maturity and context.[16]
Since 2018, Colorado, Connecticut, Montana, Oklahoma, Texas, and Virginia have enacted similar reforms.[17] Colorado’s law states “[a] child is not neglected when allowed to participate in independent activities that a reasonable and prudent parent . . . would consider safe given the child’s maturity, condition, and abilities . . . .”[18] Oklahoma adopted a similar “reasonable and prudent parent” standard.[19] Texas tightened its neglect definition to bar child removal solely because a parent allowed appropriate, independent activities.[20]
To be clear, these laws do not green-light recklessness. Utah’s carve-out, for instance, still permits agency involvement if a child’s basic needs are unmet or the activity is plainly inappropriate for that child’s age and maturity.[21] Properly drafted, the statutes act as safe harbors against reflexive investigations—not as shields for genuine endangerment.
New Hampshire: A cautionary moment
New Hampshire’s 2025 House Bill 553 moved in the opposite direction.[22] As introduced, it would have replaced “safety” with “physical, emotional or psychological welfare” in the child-abuse definition, broadening grounds for investigation into nearly any claim of harm.[23] Critics—including child-welfare reformers—warned the bill risked turning New Hampshire’s Division for Children, Youth, and Families into the “well-being” police.[24] The legislature ultimately tabled the bill in March 2025.[25]
This incident matters because New Hampshire already removes children from their homes at high rates and places an unusually large number in institutional settings.[26] Reports indicate the Granite State “removes children from their families at a rate nearly double the national average.”[27] Youth who enter foster care in New Hampshire are three times more likely as the national average to be placed in group homes or similar facilities.[28] Expanding vague statutory triggers for intervention would widen the front door for unnecessary cases while doing little to fix real dangers.
If the policy goal is earlier intervention in genuine abuse, states should invest in training and capacity, not broaden definitions that multiply false positives. As Let Grow co-founder Lenore Skenazy observed in writing about HB 553, CPS already investigates 37% of children—and 53% of Black children—before adulthood.[29] Sweeping more families into the net strains limited resources and heightens inequities.
Benefits of “reasonable independence”
The legal safe harbors inherent in free-range parenting laws offer three main benefits: healthier development, parental clarity, and equity. First, independence builds competence. The law should not punish parents for ordinary childhood rites of passage, such as walking to a friend’s house, running errands, or playing outside.[30] Programs like Let Grow’s Play Club, run by schools with light-touch adult presence, aim to restore unstructured, child-led play that fosters resilience, social problem-solving, and confidence.[31] Research shows over-control correlates with anxiety and depression while autonomy and free play support well-being.[32]
Second, parents also deserve knowable rules.[33] Enumerating non-neglectful activities grounds casework in a reasonable parent standard and resists the drift toward zero-risk parenting as the legal floor.[34] Utah’s statutory text is a good model.[35]
Third, when law equates poverty with neglect, poor families are over-surveilled and over-removed.[36] As Pimentel notes, punishing families for “parenting while impoverished” is no way to protect children.[37] The free-range reforms can help prevent CPS from labeling ordinary child independence—often an economic necessity—as maltreatment.
Why the Let Grow approach belongs in policy
Skenazy’s compelling and entertaining book, Free-Range Kids, popularized the case for trust and child autonomy.[38] Her nonprofit, Let Grow, pairs that message with practical tools: Play Clubs, homework-style experience assignments, and legislative advocacy for Reasonable Childhood Independence statutes.[39] Kids have responded not just with better “grit,” but often with joy: “I [learned] that I am brave and can go shop by myself,” one young participant wrote.[40]
Families, schools, libraries, and cities are experimenting with screen-free Play Clubs and independence challenges.[41] Kids say they want more in-person, unsupervised time.[42] This cultural shift could help make legal change stick. To offer an extended metaphor: Think of the law as removing roadblocks—and Let Grow as building sidewalks back to the playground.
Guardrails for New Hampshire—and nationwide
Drawing on Utah, Colorado, and Texas, a sound New Hampshire free-range statute would:
Codify a “reasonable parent” safe harbor. Explicitly list age-appropriate, independent activities that are not neglect when basic needs are met and risks are reasonable.[43]
Tighten the neglect definition. Follow Texas by requiring “blatant disregard” that results in harm or an immediate danger to physical health or safety; bar removal solely because a parent allowed age-appropriate independence.[44]
Resist vague “well-being” expansions. Do not broaden abuse/neglect to open-ended “psychological welfare”—the HB-553 detour—without clear limiting standards and evidence-based triggers.[45]
Decouple poverty from neglect. Clarify that conditions solely related to economic hardship (e.g., a parent working a shift, a child walking home) are not neglect; expand concrete supports (child care, transit, after-school programs) so safety does not depend on income.
Invest in training and oversight. Teach caseworkers and mandatory reporters the new standard, and audit investigations and placements, especially congregate care.
Partner with schools and communities. Encourage Let Grow-style programs to normalize age-appropriate independence as a community value, not just a private choice.
Conclusion
Free-range laws are sensible course corrections. They restore space for ordinary childhood, give parents clearer rules, and rebalance agency resources toward real danger. But statutes alone are not enough. If New Hampshire and other states want fewer tragedies—and fewer traumatic, unnecessary removals—they must pair legal safe harbors with cultural change and concrete support for families. In other words: open the front door, yes—but also make sure there is a neighborhood outside it.
[5] Julia Schønning Vigdal & Kolbjørn Kallesten Brønnick, A Systematic Review of “Helicopter Parenting” and Its Relationship with Anxiety and Depression, 13 Frontiers Psych. 872981 (2022).
[11]See, e.g., Troxell v. Granville, 530 U.S. 57, 66, 68 (2000) (emphasizing “the fundamental right of parents to make decisions concerning the care, custody, and control of their children,” and warning states against injecting themselves “into the private realm of the family” absent clear necessity).
[12]See David Pimentel, Protecting the Free-Range Kid: Recalibrating Parents’ Rights and the Best Interest of the Child, 38 Cardozo L. Rev. 1, 57 (2016) (observing that by codifying overprotective norms, the law pressures all parents to conform, lest they be accused of neglect).
[13]See David Pimentel, Criminal Child Neglect and the “Free Range Kid”: Is Overprotective Parenting the New Standard of Care?, 2012 Utah L. Rev. 947, 949 (warning that the trend toward overprotective parenting “may be reinforced and exacerbated by the fear of criminal liability”).
[14] Pimentel, supra note 12, at 4 (discussing challenges faced by parents of limited means).
[15] Utah Code Ann. § 80-1-102(58)(b)(iv)(A)–(F) (LexisNexis 2025).
[16] Fenja R. Schick-Malone, Note, Letting Kids Run Wild: Free-Range Parenting and the (De)Regulation of Child Protective Services, 81 Wash. & Lee L. Rev. 387, 415 (2024).
[33] David Pimentel, Comment, Protecting Childhood Independence and the Families Who Embrace It, 81 Wash. & Lee L. Rev. 439, 442 (2024) (explaining how statutory clarification gives parents certainty and prevents arbitrary enforcement).
Europe introduced mass incarceration in the first half of the 18th century, and the United States imported it later that same century.[1] Proponents of mass incarceration toted it as a more humane punishment than the traditional corporal and capital punishments.[2] Since mass incarceration’s introduction, social reformers, criminal justice scholars, and academics alike have debated how to run these prisons. In the 18th century, prison organization generally took the form of hard labor during the day, and shackles-in-cells at night.[3] Often, no paid staff were around to ensure the smooth operation of the prison, let alone the safety of the inmates.[4] Accordingly, prisons were brutally dangerous and often deadly to those incarcerated within their walls.[5] As the 19th century flourished, humanitarian organizations guided the introduction of a significant number of reforms: increasing the safety of inmates, decreasing overcrowding, and focusing on reforming inmates instead of merely punishing them.[6] Today, reform has taken a back seat to simple incapacitation or isolation, leading to our current mass-incarceration system.[7] Throughout these changes, however, two things have remained largely the same: (1) the fact that the prisoners are kept separately in their own micro-society, and (2) the governance of these prisons.
Even though they are their own societies, all United States prisons were and still are governed under authoritarian, hierarchical systems. Appointed wardens or superintendents make all managing decisions, and they have a cascade of lieutenants and sub-officers who report up the chain of command.[8] The prisoners have no say in the decisions that control their everyday life. The guards set inmate schedules, monitor inmate movement, orchestrate what tasks and duties inmates have and what inmates can use any free time on.[9]
This authoritarian governance style seems antithetical to the principles the United States was founded upon. Article Four, section four of the U.S. Constitution guarantees every state—and by extension all those citizens within the states—a republican form of government.[10] Since the nation’s founding, the Supreme Court has typically refused to rule on questions involving Article IV section four.[11] The Court has generally held that questions regarding this section are political questions, and not to be “questioned in a judicial tribunal.”[12] Consequently, very little judicial history answers this question.[13]
In fact, legal challenges to the disenfranchisement of convicted person’s voting power have generally been Fourteenth Amendment challenges, rather than Article Four challenges.[14] Those challenges, however, are typically shot down because the Fourteenth Amendment specifically exempts those who have committed “some other crime” from its purview.[15] Perhaps the reason for this is because the Article’s text focuses on the states. Advocates may feel that the link between a republican form of government and the micro-societies existing within prisons is too tenuous. Another reason is that because the states have a guaranteed republican government, state-organized prisons still exist under that republican form of government. But prison is a society unto itself, separate from the society of the rest of the state.[16] A society which, as we know, is organized authoritatively.
Several prison systems in the United States have attempted democratic governance. Interestingly, many early 19th century attempts were experiments in self-governance in juvenile prisons.[17] At least one of these took the form of only a judicial system, with a jury of peers in charge of punishment for rule-violators.[18] In the early 20th century, the Ione Reformatory in California—a juvenile reform facility—began an experiment in self-governance.[19] Notably, Ione was the first prison state-authorized self-governance experiment.[20] Perhaps the most famous of these examples was the Mutual Welfare League (“MWL”). Founded at Auburn and later Sing Sing state prisons in New York, the MWL organized prisoners into committees, the heads of which could meet with the warden and upper-level staff to present grievances and develop plans to further the policy needs of the prisoners and the staff.[21] The MWL also organized an inmate-run internal court system with judges and juries handling infractions.[22]
Unfortunately, these attempts at democratic reforms were all aborted before they grew or were truly studied. Most lasted only a few years, and very few survived the tenure of the staff member who was sponsoring the movement.[23] Two elements existed at the forming of all these attempts “containing the seeds of self-destruction.”[24] First, the inmates’ function as some form of judiciary or disciplinarians.[25] Second, the system’s dependence upon one individual sponsor.[26] In 1916 Charles H. Johnson, Superintendent of the Connecticut State Reformatory, lent credence to the first theory when he wrote of the failed self-governance experiment:
The reason for the dissatisfaction in the organization was that it lent itself readily to so much misrule and dishonesty that the inmates were tired of it . . . . It was finally decided at a gathering of the inmates that the management of the institution should be placed with the Superintendent and the officers appointed by law.[27]
Historical evidence bears out the second theory: at only one of the prisons where these experiments took place was staff support enlisted.[28] Decision makers left out those guards and staff most effected by inmate self-governance when considering the formation of these experiments.
Only one version of these experiments seemed to have survived in the United States prison system. This generally takes the form of prisoner advisory councils like California’s Incarcerated Person Advisory Councils.[29] The council is a system where inmates nominate and elect other inmates to serve on an advisory council to the warden. However, these councils are incredibly limited to the point of powerlessness. The only functional role they serve is to “advise and communicate with the warden and other staff those matters of common interest and concern to the incarcerated general population.”[30] The warden determines the eligibility of council nominees.[31] And the advisory capacity is even limited in that members cannot bring grievances from individuals or smaller groups, only those which effect the entire population.[32] In short, these Advisory Councils are merely legislatures paying lip service to the idea of self-governance while ensuring that the inmate’s ability to do something is effectively neutered.
Prison operators abandoned all real attempts at inmate self-governance soon after their inception, but they should be revived. With the benefit of hindsight and a careful analysis of these previous experiments, the United States could create a system in which prison does not unnecessarily deprive the incarcerated of their rights. We can avoid the flaws inherent in their creation which prevented them from reaching their potential: a system where inmates can gain not just labor experience, but experience in management, politics, campaigning, organization, and logistics. A system where the incarcerated have direct advocacy over their own rights and cooperate with the state in running their incarceration rather than leaving the state merely a tool of enforcement. A humanitarian system. A system where the Constitution’s guarantee of a republican form of governance does not stop at the prison gates.
[6]Seegenerally Gershom Powers, A Brief Account of the Construction, Management, and Discipline Etc. Etc. of the New-York State Prison at Auburn (1826) (detailing the management and treatment of prisoners under the Auburn prison system in New York, specifically the focus on reform over punishment alone); see also Josephine Shaw Lowell, Some Facts concerning the Jails, Penitentiaries, and Poorhouses of the State of New York (1881).
[7] Guyora Binder & Ben Notterman, Penal Incapacitation: A Situationist Critique, 54 Am. Crim. L. Rev. 1, 3 (2017).
[13]See Id. (where a challenge implicates certain sections of the constitution including Art. IV, § 4, they are non-justiciable as they are political questions); see also Coleman v. Miller, 307 U.S. 433, 455 (1939); Massachusetts v. E.P.A., 549 U.S. 497, 516 (2007).
[14]See Richardson v. Ramirez, 418 U.S. 24 (1974).
The American criminal justice system grapples with a troubling truth: many convictions once deemed just are based on a foundation of scientific evidence that crumbles under scrutiny. As the scientific community advances, it increasingly abandons forensic methods once routinely admitted in court. This exposes a flaw not only in outdated methodology but in the very structure of how expert testimony is presented to juries. To restore confidence and prevent future wrongful convictions, courts should adopt a dual approach: vigorously enforcing scientific reliability standards and utilizing court-appointed experts to ensure impartiality and objectivity.
Cases like McCrory v. Alabama illustrate the urgency of this crisis.[1] McCrory was convicted of murder in 1985 largely based on forensic bitemark testimony.[2] Years later, the scientific community soundly condemned bitemark analysis, and McCrory’s own original expert fully recanted his testimony.[3] This is not an isolated issue; the National Academy of Sciences reported in 2009 that many subjective forensic methods, including bitemark analysis and hair microscopy, lacked a rigorous scientific basis.[4] Statistics reveal the scale of the problem: more than 1,000 exonerations since 1989 rest partly on forensic evidence found to be false or misleading.[5]
Historically, scientific evidence gained entry to the courtroom through the Frye standard, which requires the scientific principle to be “sufficiently established to have gained general acceptance in the particular field to which it belongs.”[6] In 1993, the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. superseded Frye.[7] This established a powerful gatekeeping mandate for trial judges under the Federal Rules of Evidence, Rule 702.[8] This rule requires judges to ensure all scientific testimony is not only relevant but also rests on a reliable foundation.[9] The inquiry focuses on whether the underlying reasoning or methodology is scientifically valid.[10]
The Daubert framework provides judges with crucial tools for this assessment. The assessment focuses solely on the principles and methodology rather than the conclusion generated.[11] This includes the testability, peer review, error rate, and general acceptance of the science at hand.[12] First, testability is whether the theory or technique “can be (and has been) tested.”[13]Second, a “peer review” is a submission that undergoes scrutiny by the scientific community.[14] It is a component of “good science” and increases the likelihood of detecting flaws.[15] Third, an error rate considers the known or potential rate of error and the existence and maintenance of the standards that control the technique’s operation.[16] Finally, there must be widespread acceptance or “general acceptance” of the science used within the community.[17] This thorough, validity-based screening process is essential. Forensic science practices demonstrate “wide variability” in terms of methodology, reliability, potential errors, and general acceptability.[18] Trial courts acknowledge by fully embracing the Daubert standard that scientific “knowledge” must be grounded in the procedures of science.[19] Expert testimony cannot be based on “subjective belief or unsupported speculation.”[20]
Even when scientific methodology is sound, the presentation of expert evidence under the current model introduces risks of bias and misrepresentation. The Confrontation Clause of the Sixth Amendment ensures an accused’s right “to be confronted with the witnesses against him.”[21] The Supreme Court has repeatedly affirmed that this protection applies fully to forensic analysts who “bear testimony” against the defendant.[22] Prosecutors take shortcuts when there is a large volume of evidence, especially in drug cases. Prosecutors use affidavits or surrogate analysts to introduce laboratory results without calling the original testing analyst.[23] The rationale often cited is that the lab reports, or the original analyst’s notes, are merely “basis evidence” that supports the testifying expert’s independent opinion.[24] Therefore, the evidence is not offered “for the truth of the matter asserted” that would violate rules against hearsay in courts.[25]
The Supreme Court definitively rejects this evasive tactic in Smith v. Arizona. This decision affirms that when an expert relies on an absent analyst’s statements to support an opinion, those statements come into evidence for their truth.[26] Allowing a surrogate expert unconnected to the original testing to serve as a “mouthpiece” for the absent analyst effectively nullifies the defendant’s right to cross-examine the truth witness about their work, qualifications, or potential conflicts.[27] The right to confrontation is crucial because the nature of the legal system compromises the neutrality of the process. A study by the National Academy of Sciences and Melendez-Diaz v. Massachusetts notes that many forensic laboratories are overseen by law enforcement agencies, which create incentives for analysts to “sacrifice appropriate methodology for the sake of expediency.”[28] Cross-examination is the constitutional “crucible” designed to weed out not only the fraudulent analyst but the incompetent ones as well, exposing the flaws in “honesty, proficiency, and methodology.”[29]
Stronger reliability standards mitigate the introduction of “junk science.” These standards eliminate the inherent bias and conflicts of interest and require addressing the core nature of expert witness selection. The solution lies in empowering judges to secure objective and impartial expertise through the appointment of court experts.[30] Rule 706 of the Federal Rules of Evidence explicitly grants the Court discretion to “procure the assistance of an expert of its own choosing.”[31] This expert, once appointed, advises the parties of their findings, may be deposed and called to testify by any party (including the court), and “may be cross-examined by any party, including the party that called the expert.”[32]
Implementing court-appointed experts can offer several advantages. A court-appointed expert operates outside the financial and institutional pressures faced by experts retained by the prosecution or defense, whose compensation may be paid by the court in a criminal case.[33] This mitigates the risk of bias in adversarial selection. By retaining an expert focused purely on scientific validity, the court can better understand complex technical issues and ensure that the testimony presented meets the appropriate reliability threshold established by Daubert.[34] Relying exclusively on party-retained experts often results in confusing battles of experts that fail to clarify scientific issues for the jury. An independent expert can effectively present foundational scientific facts.
Opponents to this argument fear that empowering judges as strict gatekeepers and relying on court-appointed experts might hinder the introduction of innovative theories or constrain adversarial practice. The Supreme Court has made clear, however, that the Federal Rules of Evidence were not designed for “the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.”[35] When a legal conviction or judgment of high consequence hinges on scientific fact, the pursuit of reliable evidence should supersede the traditional clash of narratives by expert witnesses.
In sum, the criminal justice system must protect its integrity by admitting only reliable and objective scientific evidence. Outdated forensic methods and biased expert testimony has exposed the flaws that erode the fairness of trials and public trust. To truly honor the constitutional rights of the accused and uphold the integrity of our system, the expert witness standard must be strengthened by demanding rigorous scientific validity and implementing the tool of court-appointed experts under Rule 706 to secure neutral, scientifically valid findings.[36] The cost of continued reliance on faulty or biased science is simply too high.[37]
[18] Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313 (2009) (quoting National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward, 6–7).
Child Welfare Rights Versus a Mother’s Right to Rear Children: Do Prison Nursery Programs Benefit Both?
By Anna VanRoy
Prison Nursery Programs (PNP) highlight the complex balance between protecting child welfare and honoring a mother’s right to parent, even within the confines of incarceration. Courts often prioritize a state’s authority to incarcerate over maternal rights. Programs in New York and Illinois demonstrate that with proper oversight and support services, safeguarding both the child’s well-being and the mother’s rehabilitative potential is possible. When implemented effectively, PNP’s not only promote healthy early child development but also foster accountability, stability, and stronger family connections—benefiting both mother and child in the long term.
Many women experience pregnancies and even childbirth while behind bars. More women experience this today as incarceration rates have increased.[1] Almost one million women and girls are either incarcerated or on probation or parole.[2] U.S. state and federal prisons, local and regional jails, immigration detention centers, military prisons, Tribal jails, and other so-called correctional facilities hold nearly 172,700 females.[3] Among this group of women, approximately one in 25 enter jails or prisons pregnant.[4] As a result, the number of babies born to mothers who are behind bars has also grown at an alarming rate.[5] Incarcerated mothers birth an estimated 2,000 infants each year.[6] Due to the lack of resources and programs, many prison officials take babies from their mothers a short 24 hours after birth and placed either with a family member or the foster care system.[7]
This special population of prisoners is in dire need of recognition by policy makers. Some states have begun to provide PNP’s for women to participate in. PNP’s vary from state to state, but PNP’s core goal is to emphasize the period between zero to two years for critical infant attachment formation.[8] The programs also highlight the need for stability provided by consistent caregiver interactions.[9] PNP’s exist in California, Illinois, Indiana, Nebraska, New York, Ohio, South Dakota, Washington, and West Virginia.[10] New York was the first state to implement such a program in 1902.[11] Nebraska was the second state to follow suit in 1994.[12]
One of New York State’s PNP’s is in Bedford Hills Correction Facility in upper Westchester County.[13] Women who participated in the PNP often complained about “conflicting demands exerted on the inmate to be simultaneously a prisoner who surrenders autonomy and a mother who cannot function without it.”[14] Within the facility women began to resent not being able to choose the baby’s doctor, food, toys, or clothing.[15] In addition, no mother was given a private space to be with her baby and could not participate in other prison activities away from the nursery floor.[16] Mothers in prison should be allowed to freely parent their children.[17] Although these women are incarcerated for serious crimes at this facility, it is important to recognize the womanly instinct to nurture and protect a child.
Illinois also implements parental services for mothers and their children. The Moms and Babies Program at the Decatur Correctional Center provides “both in-prison services for incarcerated mothers and their babies, and community-based services following release from prison.”[18] The Moms and Babies Program supports incarcerated mothers and newborn infants for specified amounts of time.[19] While in the program, mothers will utilize support networks, parenting classes, training on communication and relationships, mental health services, and prepare for parenting outside of the prison.[20]
In Troxel v. Granville, the Supreme Court explicitly affirmed that the liberty interest of parents in the care, custody, and control of their children is “perhaps the oldest of the fundamental liberty interests recognized by this Court.”[21] The Court cited earlier precedents which held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home, bring up children”, and control their education.[22] The Court emphasized that the Constitution protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.[23]
However, different state courts have denied the right to raise one’s child while incarcerated. In Pendergrass v. Toombs, the Oregon Court of Appeals held that the right to raise one’s child is incompatible with incarceration.[24] The Court held that incarceration trumps the right of a woman to rear children.[25] This decision is one of the many that highlight the need for PNP’s in every state. Without PNP’s, decisions like this push the harmful consequences of separating children from their mothers early in life.
Although New York is one of the pioneers for PNP’s, courts there have held that mothers cannot be incarcerated with their child depending on their status in the criminal justice system.[26] These decisions have turned on current and pending charges against the mother that highlight the mother’s ability to parent.[27]Bailey v. Lombard, held that it was not in best interests of the newborn child to allow the child to remain with mother in custody in county jail.[28] The court relied on the fact that the mother’s past highlighted a pattern of parent-child separation with her other children and that she had been sentenced for additional criminal offenses in other jurisdictions.[29]
Another NY court distinguished between a mother awaiting trial and one who had a criminal history. In Apgar v. Beauter,[30]the court stated that a mother who gave birth while awaiting trial is different from a mother who is found guilty.[31] Stating that the rights of the mother did not at the time of decision conflict with the rights and welfare of the child.[32]
New NY legislation reflects the same sentiment of balancing the rights of the welfare of the newborn child and the rights of the incarcerated mother.[33] A 2022 law allows for a child to be returned to their mother if the facilities chief medical officer certifies that the mother is fit to care for the child.[34] In cases where the medical officer finds the mother fit, the child is permitted to stay with the mother for roughly the first year of the child’s life.[35] The opportunity for a mother to have a small window to bond and care for her child while incarcerated is a necessary form of rehabilitation.[36] PNP’s will make prisons and jails across the country a place for rehabilitation and growth.
Programs in states like New York and Illinois show that, with proper oversight, both child well-being and maternal rehabilitation can be achieved. While courts have often prioritized the state’s authority to incarcerate, these initiatives prove that balance is possible. PNP’s reveal the ongoing challenge of protecting child welfare while respecting the mothers right to parent—even in confinement. When implemented effectively, PNP’s promote enhancing parenting skills, healthy child development, and accountability.
[1] Analisa Johnson, The Benefits of Prison Nursery Programs: Spreading Awareness to Correctional Administrators Through Informative Conferences and Nursery Program Site Visits, 9 Bos. Univ. Arts & Sci. Writing Program (2016-2017) https://www.bu.edu/writingprogram/journal/past-issues/issue-9/johnson/.
[13] R.L. Segal, Prison Nursery – Bedford Hills Correction Facility, Off. of Just. Programs , U.S. Dep’t. of Just. (1982), https://www.ojp.gov/ncjrs/virtual-library/abstracts/prison-nursery-bedford-hills-correction-facility. This program includes pregnant women convicted of serious offenses and sentenced to a maximum-security prison. Id. In this scenario mothers face extended prison terms and will inevitably be separated from their child. Id.
[18] Moms and Babies Program, Addiction Policy Forum (May 25, 2017), https://www.addictionpolicy.org/post/moms-and-babies-program (mothers must be charged with non-violent offenses only and be deemed mentally and physically fit to participate in the program).
[19]Id. (explaining mothers must be within two years of release and bonding is encouraged for the first year of the newborn’s life).
[24] 24 Or. App. 719, 721 (Or. App. 1976) (explaining petitioner was pregnant at the time she was committed to the Oregon Women’s Correctional Center, after being found guilty of the crimes of attempted murder and assault. A few days later she was taken to a hospital for the birth of her child and was separated from the child and returned to the Correctional Center. The Correctional Center administration refused to grant her temporary leave so that she could be with and breast-feed her child.)
[35]Id. (“A child may remain in the correctional institution with its mother for such period as seems desirable for the welfare of such child, but not after it is one year of age, provided, however, if the mother is in a state reformatory and is to be paroled shortly after the child becomes one year of age, such child may remain at the state reformatory until its mother is paroled, but in no case after the child is eighteen months old.”).
Nearly every generation in America uses social media to connect, learn, or engage in public conversation.[1] These platforms, like Facebook, X (formerly Twitter), Instagram, and TikTok, function as the new town square, yet the government has no ownership of them.[2] This reality presents a constitutional paradox: while the First Amendment protects citizens from government censorship, it does not constrain private platforms that now mediate most of our public disclosure.[3] As social media becomes central to communication and politics, courts and legislatures grapple with a fundamental question: what does “free speech” mean when private companies control the space where speech happens?[4]
Two recent Supreme Court cases, Packingham v. North Carolina and Murthy v. Missouri, capture the tensions between government regulation and private moderation.[5] State and federal lawmakers proposed hundreds of bills to regulate how these platforms operate.[6] These developments suggest that the First Amendment is entering a new era: one defined by blurred boundaries between public and private control over speech.[7]
Constitutional Baseline: Government vs. Private Regulation.
The First Amendment restricts only government action.[8] Private entities are not state actors and therefore have their own First Amendment rights to curate, moderate, or remove speech.[9] The First Amendment does not bound social media companies because they are privately owned.[10] Not only are these private companies allowed to write community guidelines that limit users’ speech, but Section 230 of the Communications Decency Act also shields and protects online platforms from liability for user content and their moderation choices.[11] This statutory immunity allows platforms to remove or restrict posts they find objectionable without fear of legal consequence.[12] For example, TikTok prohibits “hateful behavior or ideologies.”[13] The Supreme Court declined to limit Section 230 twice.[14] The Court suggested Congress should change the law because if the law were revoked, the internet would sink.[15] Supporters argue that Section 230 prevents an avalanche of lawsuits and encourages free expression online;[16] critics counter that it grants private corporations excessive power to silence certain viewpoints.[17]
The result is a constitutional divide: the government cannot censor, but private platforms can.[18] Yet, when the government pressures or collaborates with these platforms to suppress information, the First Amendment may reenter the picture.
Government Officials Online: When Public Accounts Become Public Forums.
Courts began addressing whether an official’s account qualifies as a “public forum” as social media became a vital tool of communication among public officials.[19] The Knight Inst. v. Trump case held that the President’s Twitter account was a public forum because he used it to conduct official business and interact with constituents.[20] Therefore, blocking users for their viewpoints violated the First Amendment.[21] Similarly, the Fourth Circuit in Davison v. Randall reached the same conclusion regarding a local official’s Facebook page.[22] However, not all courts agree. In Morgan v. Bevin, the Sixth Circuit held that the Kentucky Governor’s Facebook and Twitter accounts were not public forums because they were personal and not state controlled.[23] The doctrine depends on whether the space is government-controlled, not merely publicly accessible.
The Supreme Court’s decision in Packingham underscored the significance of online expression but stopped short of treating private social media as government forums.[24] The Court struck down a state law prohibiting registered sex offenders from accessing social media, calling such platforms “the most important places for the exchange of views.”[25] However, the Court also cautioned against treating private social media sites as constitutional public forums and recognized that ownership and control still matter.[26]
Government Regulation of Private Platforms.
Beyond public officials’ accounts, the government sought to regulate the platforms themselves.[27] State legislatures have introduced more than 400 bills since 2021 targeting social media regulation. These efforts range from content moderation transparency requirements to outright bans.[28]
For example, in 2020 TikTok became the central focus.[29] In 2020, President Trump issued an executive order banning TikTok and WeChat from app stores, citing national security concerns.[30] The order never took full effect.[31] Montana later attempted to ban TikTok statewide, and in 2024, President Biden signed a federal law forcing TikTok’s Chinese parent company, ByteDance, to sell or cease operations in the United States.[32] Supporters defended the law as a data privacy safeguard;[33] opponents view it as a disguised speech restriction.[34]
Meanwhile, over a dozen states enacted laws restricting minors’ access to social media and targeted “addictive” design features.[35] Presently, courts are deciding whether these measures infringe on free expression or fall within states’ traditional police powers.[36] California took a different approach in 2022 and required platforms to disclose their content moderation policies.[37] When X challenged the law, a federal court upheld it and ruled that the disclosure requirement promoted transparency without compelling speech or restricting content.[38] These state laws highlight the growing desire to hold private platforms accountable, but they also reveal how the First Amendment limits direct government control over private moderation practices.[39]
Private Power Over Public Speech.
The Constitution restrains the states, but private platforms regulate most of the nation’s expressive life.[40] The private companies determine what speech is amplified, suppressed, or monetized.[41] They enforce age restrictions. Utah and Arkansas’s parental consent laws mirror platform-driven initiatives like Instagram’s screen-time limits.[42] The private platforms remove misinformation, hate speech, or nudity under their community guidelines.[43]
This question parallels debates globally.[44] In the European Union, the “Right to be Forgotten” law allows individuals to request that search engines delete personal information.[45] The United States courts consistently rejected similar claims.[46] In Florida Star v. B.J.F. and Martin v. Hearst Corp., courts held that laws requiring the removal of truthful information violate the First Amendment as impermissible prior restraints.[47] Free expression remains paramount;[48] even when it collides with privacy or reputation interests.[49]
The Government–Platform Nexus: Murthy v. Missouri.
The Supreme Court’s recent decision in Murthy v. Missouri marks the next stage of this debate.[50] Plaintiffs alleged that federal officials coerced social media platforms into suppressing posts related to COVID–19 and election integrity, amounting to government-orchestrated censorship.[51] The Court ultimately dismissed the case on standing grounds, but it emphasized that First Amendment violations require strong factual records linking government acts to suppression of speech.[52] Justice Alito’s dissent warned of the dangers of subtle government “pressure campaigns” that turn private moderation into state censorship by proxy.[53]Murthy leaves open a critical constitutional question: when does cooperation between the government and platforms become unconstitutional coercion? This is a gray area. The public influence meets private control as digital speech regulation grows more complex, and this will shape the next generation of First Amendment law.[54]
Conclusion
The First Amendment was written for a world of printing presses and town squares, not algorithms and app stores. The First Amendment’s core purpose is to preserves open debates and limit state control over expression.[55] This remains as vital as ever.[56] Today, more speech moves to private public platforms, and more of those companies determine what “free speech” means in practice.[57] Courts resist expanding constitutional duties to private entities and prefer to leave reform to Congress.[58] But as social media platforms govern public discourse for billions, the line between private and public power continues to erode.[59] The future of free speech depends less on government restraint and more on the transparency, fairness, and accountability of the private actors who now host our democracy’s conversation.[60] So, who guards the digital public square? Until the law adapts, corporate policy, algorithms, and private platforms’ community guidelines draw the boundaries of free expression because the Court and Congress refuse.[61]
[13] Nott, supra note 2 (quoting TikTok’s community guidelines, “We do not allow any hateful behavior, hate speech, or promotion of hateful ideologies. This includes content that attacks a person or group because of protected attributes.”).
[20] Knight First Amend. Inst. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018), aff’d, 928 F.3d 226 (2d Cir. 2019), cert. granted, judgment vacated sub nom. Biden v. Knight First Amend. Inst. At Columbia U., 141 S. Ct. 1220 (2021).
In 2019, a plea agreement was reached on the eighth floor of the Durham District Attorney’s office. Donald Fields Jr. murdered his father three years prior over a seemingly innocuous fight about the placement of the TV.[1] After consulting from the family, the parties agreed that Fields would plead guilty to second-degree murder and receive a 20-year minimum sentence.[2] The Assistant District Attorney handling the case, Kendra Montgomery-Blinn, took the first step toward restorative justice. She asked Alex Fields, the victim’s brother and the offender’s uncle, if he would like to read the psychological evaluation of Fields that the defense had prepared. Alex read the report detailing Fields’ anger management issues, lack of mental maturity, history of witnessing violence, and recent violent propensities.[3] Alex said that “it read true”; he didn’t “want to lose him [] to the system.”[4] Alex agreed to a restorative justice alterative—one sanctioned by a court but not within one.[5] Over the next four years, the family participated in restorative justice circles where they discussed the effect of Donald’s actions.[6] At first, the family participated in the circle without Fields while Fields received therapy during his pre-trail incarceration. Fields eventually joined the circle and conversation began to unfold.[7] Over time, the family felt that Fields had changed and taken accountability; they felt that sufficiently healed and that Fields could return home.[8]
Restorative Justice (RJ) programs and techniques have been making their way into the American criminal justice system for over three decades.[9] As of 2020, 264 total laws had been passed in 46 jurisdictions spanning 45 states and the District of Columbia.[10] There is, however, a stark lack of uniformity across jurisdictions as they legalize restorative justice.[11] Leading scholars in the field warn that “in present form, restorative justice cannot be viewed as a panacea for all the ills that plague the criminal justice system.”[12] The incorporation of RJ in the criminal system is still in its infancy, and many questions remain unanswered. One of the largest, perhaps, is whether RJ processes should be used for violent crimes, such as homicide. As proponents of legalizing RJ continue their research and incorporation efforts, violent crimes should be included in RJ because the need for and benefits of these alternatives are especially crucial for the individuals affected by violent crime.
Restorative Justice does not offer a uniform blueprint to criminal justice reform; rather, it employs a “radically different way of viewing, understanding, and responding to the presence of crime within our communities.”[13] It is an alternative approach. The retributive criminal justice approach serves justice by punishing the offender. In contrast, the restorative justice approach serves justice by healing the individuals—both victim and offender. [14] The umbrella of RJ covers a variety of techniques, philosophies, and practices; but there is no universal theory of restorative justice or agreed upon method of enacting it.[15] In the criminal context, however, it typically involves a meeting or series of meetings between the stakeholders where the offender expresses remorse and the victim has the opportunity to the heard.[16] As a group, a set of actions are decided upon that could “repair the harm and prevent re-offending.”[17]
One version of this approach that has been used in the United States since the late 1980s is Victim-Offender Mediation (VOM) programs. VOM aims to provide victims the chance to confront the person that harmed them and participate in the process of reaching a restitution agreement. VOM allows the offender an opportunity to acknowledge the harm they caused and express true remorse.[18]
Traditionally, the goal of VOM programs was to reach a restitution agreement, but a more recent “humanistic” VOM approach re-orients the goal to be healing for all parties.[19] This new approach—falling squarely within RJ principles—resulted in the Victim Sensitive Offender Dialogue (VSOD) model. The VSOD model has three phases.[20] First, all parties involved are consulted on multiple occasions as to whether mediation could be a possibility.[21] If all parties agree to participate in mediation, then an agreement is made between the parties regarding the expectations of the mediation.[22] Second, an actual dialogue between the parties occurs, including a pre-dialogue briefing and a post-dialogue de-briefing.[23] Third, the facilitators meet with the parties to discuss any needs that were not met, collect feedback, and hopefully close the case.[24]
VOM is typically used in violent criminal cases post-conviction to achieve therapeutic goals for victims and offenders.[25] The general trend across the country is to exclude more violent crimes—like domestic violence and homicide—from RJ processes.[26] Post-conviction VOM and similar RJ practices, however, result in higher reports of victim and offender satisfaction after serious violent crimes.[27] This indicates that VOM and similar practices have potential to improve victim and offender experiences during earlier stages of litigation.
Some proponents of providing RJ alternatives in cases of serious crimes argue that this is a space where restorative justice is crucially needed.[28] Violent crimes, due to their nature, can result in increased shame for both parties.[29] RJ practices provide a path for the offender to take responsibility for their actions and rely on their community to hold them accountable. This can often transform the offender’s shame into something more productive.[30] RJ can also help victims process common feelings of was this my fault by giving them space to express those emotions.[31]
Another success of RJ is the potential to deliver a result that feels more just. When a violent crime has occurred, the need for “fairness” in the process of delivering justice is crucial.[32] A foundational principle of RJ is respect for the parties throughout the process.[33] The voluntary nature of participation, opportunity to be fully heard, and reliance on mutual agreement for reconciliation maintain the dignity of participants and ensure transparency in the process.[34] Research shows that people who have participated in RJ processes felt they were more “fair and legitimate” than criminal court processes.[35]
Efforts to incorporate RJ into the criminal system have primarily focused on low-level, nonviolent crimes.[36] While there are legitimate concerns to including serious crimes in this effort, the victims and offenders of violent crimes should not be forgotten in restorative efforts. Instead, the activists, scholars, legislators, and jurists that are currently shepherding RJ through its infancy in our criminal system must keep its applicability to violent offenses front of mind. Alex Jones will never fully recover from the grief of losing his brother. But because one District Attorney believed that Don was worthy of a RJ alternative, Jones didn’t have to lose his nephew in addition to his brother. Instead, Jones was empowered by the chance to heal his family.
[13] Mark S. Umbreit et al., Restorative Justice: An Empirically Grounded Movement Facing Many Opportunities and Pitfalls, 8 Cardozo J. Conflict Resol. 511, 518 (2007).
[14] Linday Fullham et al., The Effectiveness of Restorative Justice Programs: A Meta-Analysis of Recidivism and Other Relevant Outcomes, 00 Criminology & Crim. Just. 1, 2–3 (2023).
In 2025, Utah passed House Bill 77 (“HB 77”) without the Governor’s signature. HB 77, a controversial bill, is the first in the nation to ban non-sanctioned flags[1] from all public schools and government property. HB 77’s professed goal is to make classrooms neutral spaces but the bill’s sponsor “repeatedly constructed the bill to specifically ban pride flags in schools.”[2] Several key legal issues arise as to the constitutionality of HB 77 including but not limited to the First Amendment,[3] school speech doctrines, the Equal Protection Clause, and compelled neutrality versus speech suppression.
Historically, the Supreme Court utilizes different tests for determining if actions are unconstitutional.[4] One First Amendment test has distinguished between government and private speech.[5] A central question in determining the type of speech, one must first determine whose speech is HB 77 affecting? Even then, courts may determine that allowing certain symbols while banning others is discriminatory. Further legal analysis is required to compare which type of test the Supreme Court may utilize for this issue and if HB 77 would qualify as unconstitutional.
The School Speech Doctrine is a series of cases the Supreme Court decided that allow schools to regulate speech without violating the First Amendment.[6] Under the Hazelwood standard, schools can regulate speech in school sponsored activities if their actions are reasonably related to legitimate pedagogical concerns.[7] Thus, schools have greater deference to regulate speech that appears to be part of a school’s curriculum. Here, it is difficult to ascertain if HB 77 falls within any of the school speech doctrine standards. Additional case law is needed to determine when the action taken in HB 77 is protected or unconstitutional.
The HB 77 also implicates the Fourteenth Amendment. The Equal Protection Clause under the Fourteenth Amendment in part states “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”[8] HB 77 must have disparate impact or animus towards LGBTQ+ students or staff to be successful under this claim. Parties must also show they are part of a protected class, but generally courts are hesitant to allow claims that involve facially neutral policies.[9]
In a legal and philosophical framework, tensions arise when faced with the issue of neutrality versus censorship. Critics argue that there is a selective enforcement of neutrality that disproportionality affects minority groups.[10] To further agitate this issue, a potential loophole in HB 77 exists. Historic flags used in school curriculum, such as a Nazi or Confederate flags, may be permissible.[11] Additionally, lawmakers in Arizona, Alaska, Florida and North Carolina have recently introduced similar bills.[12] Idaho has also passed a similar ban—HB 41.[13]
Ultimately, several legal issues questioning the constitutionality of Utah’s HB 77 and other similarly worded bills persist. Related issues extend much further than flag bills and can include a student’s appearance, speech inside classrooms, transgender rights in sports, and bans on gender-affirming healthcare.[14] Both the U.S. Supreme Court and lower courts have ruled on both sides of the isle. For example, in United States v Skrmetti, the Supreme Court upheld a Tennessee law banning gender-affirming care and medical treatments for transgender minors.[15] Whereas the Supreme Court still has cases challenging transgender rights in sports under review.[16] During this interim, Utah’s Governor has suggested that HB 77 should be repealed because it creates a cultural war that doesn’t “solve problems [the bill] intends to fix.”[17]
[1] HB 77 states, in part, that it “prohibits a government entity or employee of a government entity from displaying a flag in or on the grounds of government property except certain exempted flags” and does not apply to the following exceptions: (a) official flag of the United States, (b) the official Utah state flag, (c) the official flag of another country or state, (d) a flag representing a city or official municipality, (e) a flag for an official branch of the U.S. military, (g) a flag representing an Indian tribe, (h) an official flag of a college or University, (i) historic versions of a flag, (j) an official public school flag, (k) official flag of the United States Olympics.” H.B. 77, 2025 Gen. Sess. § 3 (Utah 2025).
[3] U.S. Const. amend. I. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Id. (emphasis added).
[5]See Shurtleff v. City of Bos., 596 U.S. 243, 260 (2022).
[6] Broadly this includes 3 categories including the Tinker, Fraser, and Hazelwood standards. See generally Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 515 (1969); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 688 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 277 (1988).
[9]See generally Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 684 (2020).
[10] The Utah Pride Center expressed a similar view in relation to Utah’s HB 77 quoting “it is a deliberate attempt to erase LGBTQIA+ visibility from the public sphere.” Addy Baird, Pride flags banned from Utah schools and government buildings—if Gov. Cox agrees with lawmakers, THE SALT LAKE TRIBUNE (Mar. 6, 2025, 2:00 PM), https://www.sltrib.com/news/politics/2025/03/06/pride-flags-banned-utah-schools/.
[13] H.B. 41, 2025 Leg., First Reg. Sess. (Idaho 2025).
[14] Dara E. Purvis, Transgender Students and the First Amendment, 104 B.U. L. REV. 435, 502 (2024).
[15] United States v. Skrmetti, 145 S. Ct. 1816, 1838 (2025).
[16] The Fourth Circuit found a law in West Virginia banning transgender women from participating on women’s sports teams as being unconstitutional under Title IX. See B.P.J. v. West Virginia, 98 F.4th 542 (4th Cir. 2024), cert. granted, No. 24-43 (2025).
On October 7, 2025, the United States Supreme Court heard oral argument on whether Colorado’s law banning conversion therapy violates the First Amendment. The Court’s conservative majority seemed eager to strike down Colorado’s law, a decision that would endanger similar laws enacted in over twenty other states. However, there is still hope. Even if the Court strikes down Colorado’s law, State governments, Congress, and individual citizens retain alternative means of challenging conversion therapy.
Conversion therapy, also referred to as Sexual Orientation Change Efforts, is a set of practices aimed at changing an individual’s sexual orientation or gender identity.[1] Most often, practitioners conduct conversion therapy through talk therapy, or a combination of talk and aversion therapies.[2] Whatever form it takes, conversion therapy is ineffective; sexual orientation and gender identity are fundamental and fluid parts of human nature that cannot be “corrected.”[3] Furthermore, when society pathologizes non-conforming sexual orientations and gender identities, queer people suffer.[4] Unsurprisingly, people who undergo conversion therapy in their youth face significantly increased risks for attempted suicide, depression, self-harm, substance abuse, anxiety, and social isolation.[5] Minors are especially vulnerable to conversion therapy harms, reporting nearly double the rates of suicidal ideation and depression.[6] In response to the well-documented dangers this treatment poses, numerous states enacted laws banning conversion therapy for minors.[7]
Despite medical and academic consensus, many therapists continue to practice conversion therapy, challenging bans. This includes Kaley Chiles, a Colorado-licensed therapist who claims the law violates her First Amendment right to freedom of speech.[8] The claim that conversion therapy bans violate therapists’ rights to free speech is at the heart of the legal dispute.[9] The First Amendment protects individuals from government interference in their right to express themselves.[10] This, however, does not mean those with professional expertise can use speech as a means of delivering substandard or harmful care.[11] The challenge then lies in determining whether conversion therapy should be classified as protected speech or as conduct. Regulations that target protected speech are subject to strict scrutiny, which is often the kiss of death for such laws.[12] However, if a law only targets conduct with an incidental burden on speech, it is subject to lesser scrutiny.[13]
In light of this, Chiles filed a lawsuit against Colorado in the Colorado District Court.[14] Chiles’s argument hinges on the fact that her therapeutic practices are verbal, so a law banning her from performing this therapy impedes on her freedom of speech.[15] Conversely, Colorado contends that its statute does not violate Chiles’s right to free speech, because it only regulates her performance of a specific treatment, regardless of the treatment’s vehicle.[16]
The Colorado District Court upheld Colorado’s ban on conversion therapy, ruling that the law regulated conduct rather than speech and, on appeal, the Tenth Circuit affirmed.[17] These courts ruled that Colorado’s law did not infringe on the First Amendment because it merely prohibited the conduct of attempting to change someone’s sexual orientation or gender identity, not the speech used in therapeutic settings.[18] The court emphasized that the law applied only to professional conduct, not to the broader array of speech in the public sphere.[19] Unsatisfied, Chiles petitioned for certiorari Supreme Court, which seemed largely sympathetic to Chiles’s position.[20]
Suppose the Tenth Circuit’s decision in Chiles v. Salazar stands and Colorado’s conversion therapy ban is upheld. In that case, it will set a significant precedent in favor of state-level regulation of professional conduct. However, even if the Supreme Court rules that conversion therapy bans are unconstitutional, other avenues exist to protect queer youth from the harms of conversion therapy.
One promising way legislatures could reduce First Amendment challenges is to label conversion therapy as a fraudulent practice. Then, legislatures could include conversion therapy in a larger ban on fraud. In fact, this alternative is well on its way to fruition. On May 5, 2025, Representatives Ted Lieu and Cory Booker introduced the Therapeutic Fraud Prevention Act (TFPA) in the House of Representatives.[21] The TFPA targets conversion therapy as a commercial activity, whereas other conversion therapy bans (like Colorado’s) regulate it as a medical procedure.[22] This change is significant because it allows States to circumvent the First Amendment issues raised by challengers like Kaley Chiles. After all, fraud regulations address commercial activity without regard for the distinction between conduct and pure speech.[23] Therefore, under the TFPA, therapists who claim to “treat” sexual orientation or gender identity would be subject to civil penalties.[24] Additionally, the TFPA’s labeling of conversion therapy as fraud creates a civil violation imposable by the federal government and a private right of action and legal remedies for individual plaintiffs.[25] Thus, the TFPA expands recourse for victims of conversion therapy and states seeking to regulate the practice.
The legal battle over conversion therapy bans, as exemplified by Chiles v. Salazar, underscores the tension between protecting public health and safeguarding constitutional rights. While the Supreme Court’s ruling on the case could set a critical precedent for state-level regulation of harmful professional conduct, it is essential to recognize that alternative legislative avenues, such as the Therapeutic Fraud Prevention Act, may offer a pathway to circumvent First Amendment challenges. Even if the Court rules against conversion therapy bans, these legislative efforts could provide renewed protections for minors by framing conversion therapy as a fraudulent practice rather than a legitimate therapeutic method. Ultimately, the ongoing legal battle against the dangers of conversion therapy highlights the importance of the collective struggle for LGBTQ+ rights. Continued advocacy and creative legislative solutions are essential in this political moment.
[1] M. Williams, Conversion Therapy on LGBTQ+ children as a Form of Torture and the Rights of the Child in the Face of the United States Constitution’s Free Speech and Religious Free Exercise Clauses, 26 J. Gender Race & Just. 393, 393 (2023).
[25] Jordan Hutt, Note, Anything but Prideful: Free Speech and Conversion Therapy bans, State-Federal Action Plans and Rooting out Medical Fraud, 92 Fordham L. Rev. 255, 283 (2023).
Technology is a fast-changing and elusive reality of today’s society. In recent years, Artificial Intelligence (AI) has made its way into the general population’s lives.[1] AI is a technology involving computer systems that perform complex tasks like reasoning, decision-making, or solving problems traditionally done by humans.[2] Common examples used by the general public include ChatGPT, Google Translate, and Apple’s Siri.[3] As these programs become more ingrained in the lives of average individuals, there is a question of how this new technology will affect the judicial system. The question is whether these AI programs will integrate into existing electronics, specifically regarding criminal harassment and stalking laws.
On the federal level, the use of electronic communication systems with the intent to harass or intimidate another individual is criminalized.[4] Accordingly, 18 U.S.C. § 2261 includes interactive computer service or electronic communication system, but artificial intelligence is notably absent.[5] State governments are becoming more aware of the gaps in AI legislation.[6] In the 2025 legislative session, all 50 states, Puerto Rico, the Virgin Islands, and Washington, D.C., have introduced legislation on the topic.[7] Notably, North Dakota’s new law prohibits individuals from using an AI-powered robot to stalk or harass other individuals, expanding current harassment and stalking laws.[8] These state efforts serve as important models for others to follow. State governments can lead the way in tackling these rapidly evolving issues by ensuring that technological progress does not compromise personal safety.
The mens rea element of intent is critical to stalking and harassment charges. True threats of violence lie outside the bounds of the First Amendment’s protection.[9] The State is not required in these instances for the defendant to have had any more specific intent to threaten the victim.[10] But the State must prove the defendant had some understanding of their statements’ threatening character.[11] The analysis becomes more complicated when no “true threat” exists. Furthermore, it becomes more unclear when electronics are used as the primary way of stalking and harassment.
The Supreme Court previously addressed electronic means of communication that were allegedly used to stalk and harass a victim.[12] The case, Counterman v. Colorado, involved an individual’s Facebook posts concerning his soon-to-be ex-wife, police officers, and an FBI agent.[13] The Court held that the statute’s mens rea element requires proof that a defendant transmits communication to threaten, or with knowledge it will be viewed as such threat.[14] To establish criminal liability, a defendant must have the subjective intent that the transmitted communication contained a threat.[15] The Court reversed the lower court’s decision and decided the jury instructions were an error.
If AI software falls under “interactive computer service or electronic communication service,” would subjective intent still matter if delivered via third-party software?[16] What burden must the government prove to meet the same standard used by social media and electronic communications?
While AI and its impact on criminal litigation are uncertain, the same does not apply to potential product liability and tort claims. In Garcia, a mother filed several claims on behalf of her deceased son against AI-software creators.[17] Additionally, the lawsuit named Google as a defendant because the software creators first worked as engineers there.[18] The plaintiff’s son, suffering from an anxiety and mood disorder, had become addicted to Characters imitating fictional persons created initially by Character A.I.[19] The addiction worsened until he tragically took his own life, just minutes after his final communication with the AI Character.[20] The defendant moved to dismiss the claims. However, the court only granted the dismissal of the intentional infliction of emotional distress claim because the mother lacked standing.[21]
Moving forward on appeal, defendants will need to argue that large language models function more like services rather than physical products.[22] The defense’s key argument is that AI software functions similarly, so strict liability should be applicable.[23] Tech companies must now consider that AI systems could be scrutinized not only as expression tools but also as potentially dangerous products.[24]
Technological advancements over the past few decades have had an immense impact on younger generations.[25] As technology and AI grow and society adapts, the judicial system will face pressure to determine liability, criminal or not. These pressures could give vulnerable individuals additional chances for judicial remedies. These pressures might also prompt AI software developers to enhance safety measures to lower liability risks. While criminal liability for stalking and harassment using AI might seem distant, product liability and tort claims are not. Ultimately, how society tackles the gaps in AI legislation will influence the legal options available to plaintiffs and the ethical limits imposed on AI developers.
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