Free speech
Recently, the American Bar Association adopted a resolution entitled “Academic Freedom and Freedom of Expression.” Going forward, for a law school to be accredited by the ABA, the school must, per the resolution, “protect the rights of faculty, students and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests.” The standard also requires schools to prohibit “disruptive conduct that hinders free expression.” The adoption of this new standard comes in response to the censorship of conservative speech at law schools. This new standard is a positive step toward leveling the playing field.
More free speech
This week, Google was forced to issue an apology for the behavior of their newly released AI, Gemini. The AI, it turns out, refused to show images of white people. For instance, when asked to generate an image of America’s founding fathers, Gemini would respond depicting the founders as various people of color. If you asked Gemini to show images celebrating the accomplishments of white people, it would refuse and respond that doing so “perpetuates an imbalance.” Google has now turned off the image generation function of Gemini due to its racist responses. They are working on it, they say. The deeper problem, though, is that AI is going to be a growing presence across all domains in our society. The people programing these AIs are mostly those in the grip of woke ideology, which is why the output is absurdly skewed. The issue is easy to spot when you ask for a picture of George Washington and get a historically inaccurate return. However, there are and will be more subtle and pernicious forms of censorship built in, which puts free speech at tremendous risk in the future.
Textualism and judicial restraint
James and Emily Lapage wanted to have a baby but were having trouble conceiving. In 2013, they visited the Alabama Center for Reproductive Medicine for in vitro fertilization. The Center fertilized several of Emily’s eggs with James’s sperm, creating embryos. They implanted some embryos into Emily’s uterus and froze the rest. This freezing is a common practice to allow for more births later. The couple’s contract with the center stated that the frozen embryos would be kept forever. However, in December 2020, a patient at a hospital attached to the Center wandered into the IVF area through an unsecured door. The patient went into the cryogenic chamber and grabbed some containers of frozen embryos, including the LaPages’. The containers were supercooled and burned the patient’s hands. He dropped the containers on the floor destroying the embryos. The LaPages sued the Center for, among other things, wrongful death. The Center argued that the wrongful death claim was improper because the embryos were not covered by the state wrongful death statute. The case made its way to the Alabama Supreme Court, which ruled this week that the LaPages could bring a wrongful death action. They found that embryos are unborn children for the purposes of Alabama’s wrongful death law.
Much has been made this week about the ruling. The controversy is couched in the abortion debate. But the Alabama Supreme Court was not trying to stake a claim in the culture wars. Quite the contrary. Their ruling is pure textualism and judicial restraint. Alabama has a law called the Wrongful Death of a Minor Act. That act says that a claim may be brought by parents when “the death of a minor child is caused by the wrongful act, omission, or negligence of any person.” The next question, then, is whether an embryo counts as a minor child under Alabama law. The Court first cited two Alabama cases under the wrongful death statute from 2011 and 2012 where they had previously found that an unborn child counts as a “minor child” under the act. Those cases involved actions that caused pregnant women to miscarry. The question then became whether an embryo is an “unborn child.” The Court reviewed the legal and etymological history of the phrase “unborn child” and found nothing to distinguish an embryo from the definition, other than the physical location of the embryo. The Court then turned to the Alabama Constitution to decide whether location in the womb verses a test tube makes a difference. The Alabama Constitution says that “it is the public policy of this state to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate.” The Court found that they were required to come down on the side of defining the embryo as an unborn child per the text of the state Constitution. Nonetheless, the Center asked the Court to use discretion to carve out an exception in the statute for embryos. The Alabama Supreme Court, exercising judicial restraint, declined to do so. The Court denied that request stating, “while we appreciate the defendant’s concerns, these types of policy-focused arguments belong before the Legislature, not this Court.” Amen.
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